Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3468 OF 2007

R. Unnikrishnan and Anr. …Appellants

Versus

V.K. Mahanudevan and Ors. …Respondents

WITH

CIVIL APPEAL NO.3469 OF 2007

State of Kerala and Ors. …Appellants

Versus

V.K. Mahanudevan and Ors. …Respondents

AND

CIVIL APPEAL NO.3470 OF 2007

State of Kerala and Ors. …Appellants

Versus

V.K. Ananthan Unnikrishnan and Anr. …Respondents

1

Page 2 AND

CIVIL APPEAL NO. OF 2014

(Arising out of S.L.P. (C) No.24775 of 2013)

State of Kerala and Ors. …Appellants

Versus

Prem Kumar and Ors. …

Respondents

J U D G M E N T

T.S. THAKUR, J.

1.Leave granted in Petition for Special Leave to Appeal

(Civil) No.24775 of 2013.

2.Common questions of law arise for consideration in

these appeals which shall stand disposed of by this common

order. But before we formulate the questions that fall for

determination the factual matrix in which the same arise

need to be summarised for a proper appreciation of the

controversy.

2

Page 3 3.Respondent-V.K. Mahanudevan in Civil Appeal No.3468

of 2007 applied to Tehsildar, Alathur in the State of Kerala

for grant of a Scheduled Caste Certificate on the basis that

he was a ‘Thandan’ which was a notified Scheduled Caste.

The Tehsildar held an enquiry and found that the appellant

did not belong to the Scheduled Caste community and

reported the matter to the Director, Scheduled Caste

Development Department, who in turn forwarded the case to

Director, Kerala Institute for Research, Training and

Development Studies of Scheduled Castes and Scheduled

Tribes, (‘KIRTADS’ for short) for investigation and report.

4.Aggrieved by the denial of the certificate the

respondent filed O.P. No.9216 of 1986 before the High Court

of Kerala which was disposed of by the High Court in terms

of its order dated 25

th

February, 1987 with a direction to the

Tehsildar concerned to issue a caste certificate in favour of

the said respondent. A certificate was accordingly issued in

his favour. It is common ground that the respondent was

appointed as an Assistant Executive Engineer under a special

recruitment scheme for SC/ST candidates.

3

Page 4 5.Long after the certificate had been issued in favour of

the respondent and his appointment as an Assistant

Executive Engineer in the State service, a Full Bench of the

Kerala High Court in Kerala Pattika Jathi Samrekshana

Samithy v. State AIR 1995 Ker 337 observed that a large

number of applications for change of caste name from

‘Thiyya’ to ‘Thandan’ had been received pursuant to The

Scheduled Castes and Scheduled Tribes Order (Amendment)

Act, 1976 and ordered that all such certificates as were

corrected on the basis of such applications after 27

th

July,

1977 ought to be scrutinized by a Scrutiny Committee. The

High Court observed:

“...The filing of a large number of applications for

correction of the name of caste from Ezhava/Thiyya

to Thandan alleging one and the same reason

immediately after inclusion of Thandan community

as Scheduled Caste in the 1976 order can prima

facie be considered only as a concerted attempt on

the part of Section of Ezhavas/Thiyyas to take

advantage of the benefits of Scheduled Castes as

alleged in the counter affidavit of the first

respondent and asserted by the petitioner. It cannot

be easily believed that if a person was really a

Thandan and as such a Scheduled Caste, his caste

would have been noted as Ezhava or Thiyya in the

school records. It cannot also be believed easily that

in large number of cases for no reason whatsoever

the same type of mistake was committed allowed to

be on record till Thandan community was included in

the list of Scheduled Castes. As such taking a

serious view of the entire problem we would hold

4

Page 5 that in all cases where certificates have been issued

on and after 27-7-1977 the date of 1976 order

correcting the name of Caste from Ezhava/Thiyya to

Thandan and other cases where certificates have

been issued changing the Caste into a Scheduled

Caste or Scheduled Tribe such certificates issued are

liable to be declared as of doubtful validly, till they

are scrutinised by the scrutiny Committee to be

constituted by the first respondent as per the

directions we propose to issue in that regard...”

(emphasis supplied)

6.Pursuant to the above directions of the High Court the

caste certificate issued in favour of the respondent also

came under scrutiny. In the course of scrutiny, it was found

that the reports submitted by KIRTADS and relied upon by

the High Court while allowing O.P. No.9216 of 1986 was

erroneous and that the respondent actually belonged to

Ezhuva community which fell under the OBC category.

Director, KIRTADS accordingly issued notice to the

respondent to appear before him for a personal hearing in

support of the claim that he was a Thandan and hence a

Scheduled Caste. Aggrieved by the said proceedings the

respondent filed O.P. No.5834 of 1991 before the High Court

of Kerala in which he challenged the proposed enquiry

proceedings relating to his caste status primarily on the

ground that the decision of this Court in Palaghat Jilla

5

Page 6 Thandan Samudhaya Samrakshna Samithi and Anr. v.

State of Kerala and Anr. (1994) 1 SCC 359 had settled

the controversy relating to Ezhuva/Thiyya being a ‘Thandan’

in the district of Palaghat. It was also contended that the

respondent’s own case that he was a Thandan Scheduled

Caste had been settled by the High Court in terms of the

order passed by the High Court in O.P. No.9216 of 1986.

These contentions found favour with the High Court who

allowed O.P. No.5834 of 1991 filed by the respondent by its

order dated 15

th

December, 1998 and quashed the ongoing

enquiry proceedings.

7.Aggrieved by the order passed by the High Court the

State of Kerala filed Writ Appeal No.1300 of 1999 which was

allowed by a Division Bench of the High Court by its

judgment and order dated 14

th

June, 1999 and directed a

fresh enquiry into the caste status of the respondent by

KIRTADS. Review Petition No.236 of 1999 filed against the

said order by the respondent was dismissed by the Division

Bench by its order dated 29

th

July, 1999. The Division Bench,

however, specifically reserved liberty for the respondent to

6

Page 7 bring the judgments pronounced in O.P. No.9216 of 1986

and O.P.No.5470 of 1988 to the notice of the Director,

KIRTADS and declined to express any opinion of its own as

to the effect of the said judgments. This is evident from the

following passage from the order passed by the High Court:

“At the time of argument our attention was drawn

to Ext. P7 judgment dated 25.2.87 in O.P. 9216/86

and also the judgment of a Division of this Court in

O.P. 5470/88 for the proposition that this Court has

already accepted the status of the petitioner in the

above two cases. We are not inclined to express

any opinion on the two judgment referred to above.

It is for the review petitioner to place the above two

judgments and other materials, if any before the

Director for his consideration and report. The

Director of Kirtads is directed to send his report to

the State government within three months from the

date of receipt of copy of the judgment and the

Government may consider the entire matter on

merits and pass appropriate orders accordingly,

Review petition is disposed of as above.”

8.A fresh enquiry accordingly commenced in which

Vigilance Officer, KIRTADS, reported that the genealogical

and documentary evidence available on record proved

beyond doubt that the respondent and all his consanguinal

and affinal relatives belonged to the ‘Ezhuva’ and not

‘Thandan’ community. The Scrutiny Committee acting upon

the said report issued a show-cause notice to the respondent

7

Page 8 to show cause as to why the certificate issued in his favour

should not be cancelled.

9.Aggrieved by the notice issued to him the respondent

once again approached the High Court in O.P. No.2912 of

2000 which was disposed of by the High Court by its order

dated 4

th

July, 2001 with a direction that the KIRTADS report

shall be placed before the State Government for appropriate

orders. The State Government accordingly considered the

matter and passed an order dated 18

th

January, 2003 by

which it concurred with the report and the view taken by

KIRTADS and declared as follow:

“(i) It is declared that Shri. V.K. Mahanudevan, S/o

Shri Kunjukuttan, Kunnissery House, Kottaparambil,

Vadakkancherry, Alathur, Palakkad District who is

now working as Executive Engineer, Minor Irrigation

Division, Irrigation Department, Palakkad does not

belong to Thandan Community which is a Sch. Caste,

but belongs to Ezhava Community included in the list

of Other Backward Classes (OBC).

(ii) None of the members of his family shall be

eligible for any of the benefits exclusively intended

for members of the Sch. Castes. If any of the

members of the family of Shri V.K. Mahanudevan

have availed of any of the benefits meant for

members of the Sch. Castes, all such benefits availed

of shall be recovered.

(iii) If the caste entry in respect of the members of

the family of Shri V.K. Mahanudevan as recorded in

8

Page 9 their academic records is Thandan (SC), it shall be

corrected as Ezhava.

(iv) Sch. Caste Certificates shall not be issued to any

of the members of the family of Shri V.K.

Mahanudevan hereafter. All the Sch. Caste

Certificates secured by Shri V.K. Mahanudevan and

his family members will stand cancelled.

(v) On completion of the actions as per this order the

services of Shri V.K. Mahanudevan, Executive

Engineer, Minor Irrigation Division in the Irrigation

Department shall be terminated forthwith and a

member of Sch. Caste community shall be appointed

against the post in which Shri V.K. Mahanudevan

was appointed in the Irrigation Department if his

appointment was on consideration as member of

Sch. Caste.”

10.Aggrieved by the order passed by the Government, the

respondent and his brother who is respondent in Civil Appeal

No.3470 of 2007 challenged the order passed by the

Government before the High Court in O.P. No.5596 of 2003

and Writ Petition (C) No.20434 of 2004 respectively which

were allowed by a Single Judge of the High Court in terms of

its order dated 11

th

November, 2005, primarily on the

ground that the issue of caste certificate to the respondent

had already been concluded by the judgment of the High

Court dated 25

th

February, 1987 in O.P. No.9216 of 1986

and that the said question could not be re-opened so long as

the said judgment of the High Court was effective.

9

Page 10 11.The State of Kerala then preferred Writ Appeal No.134

of 2006 which was dismissed by a Division Bench of the High

Court in terms of its order dated 25

th

January, 2006

concurring with the view taken by the Single Judge that the

issue regarding the caste status of the respondent stood

concluded by a judicial order passed inter parties and could

not, therefore, be re-opened. Writ Appeal No.410 of 2006

filed by the aggrieved members of the Irrigation Department

and Writ Appeal No.193 of 2006 filed by the State in relation

to respondent were dismissed by the Division Bench on the

same terms by order dated 28

th

and 27

th

January, 2006

respectively. So also Review Petition No.263 of 2006 filed by

the State against the order passed by the Division Bench

was dismissed with the observation that the judgment in

O.P. No.9216 of 1986 had effectively settled the question

regarding the caste status of the respondent. Civil Appeals

No.3469 and 3470 of 2007 have been filed by the State

against the said judgment of the High Court while Civil

Appeal No.3468 of 2007 has been filed by the members of

the Irrigation Department of the Government of Kerala.

Civil Appeal arising out of Petition for special leave to appeal

10

Page 11 (Civil) No.24775 of 2013 has been filed by State against the

Order dated 5

th

September, 2012.

12.Two distinct questions fall for determination in these

appeals. The first is whether the appellants could have re-

opened for examination the caste status of the respondent-

V.K. Mahanudevan no matter judgment of the High Court in

O.P No.9216 of 1986 had declared him to be a ‘Thandan’

belonging to a Scheduled Caste community. The High Court

has as seen above taken the view that its judgment and

Order in O.P.No.9216 of 1986 effectively settled the

question regarding the caste status of respondent which

could not be reopened as the said judgment had attained

finality. The second and the only other question that would

arise for determination is whether the respondent-V.K.

Mahanudevan can claim protection against ouster from

service and, if so, what is the effect of the change in law

relevant to the caste status of the respondent. We propose

to deal with the two questions ad seriatim.

13.In O.P No. 9216 of 1986, the respondent (writ

petitioners in OP) had claimed to be a Thandan by Caste,

11

Page 12 hence, a Schedule Caste in terms of the Scheduled Castes

and Scheduled Tribes Orders (Amendment) Act, 1976. In the

SLCC book the respondent was described as a “Thandan

Hindu” but falling in the OBC category. He applied for

correction of the SLCC book by deleting his description as an

OBC and for treating him as a member of the Scheduled

Caste. Since the correction did not come about quickly, he

moved to the High Court for a direction against the

respondents to treat him as a Scheduled Caste and to make

appropriate entries in the relevant record. Kerala Public

Service Commission, Director, Harijan Welfare Board,

Trivandrum were among others arrayed as respondents to

the writ petition. When the matter appeared before a Single

Bench of the High Court for hearing, it was reported that

Director, Kerala Institute for Research Training and

Development Studies of Scheduled Castes and Scheduled

Tribes, Kozhikode (KIRTADS) had conducted an

anthropological study and recorded a finding that the

respondent–writ petitioner before the High Court belonged

to Thandan Community and that he was entitled to be

treated as a Scheduled Caste. Government advocate

12

Page 13 representing the respondents appears to have submitted

before the Court that the findings recorded by the KIRTADS

had been communicated to the Director of Harijan Welfare,

Trivandrum–respondent no.3 in the writ petition and

accepted by him. It was on these submissions made before

the High Court that the Single Bench of the High Court

passed an Order dated 25

th

February, 1987, the operative

portion whereof read as under :-

“I record the submission of the Government Pleader

that the 3

rd

respondent has accepted the findings of

the 4

th

respondent that the petitioner is a Thandan

and hence entitled to the benefits as a scheduled

caste. The 6

th

respondent may implement this

finding and issue certificate to the petition in the

prescribed form certifying that the petitioner is a

Thandan, a member of the scheduled caste. This

shall be done within a period of ten days from today.

Based thereon the 5

th

respondent will also make the

necessary changes in the S.S.L.C. book of the

petitioner treating him as a scheduled caste and not

as an D.B.C. This also will be done by the 5

th

respondent within a period of one month from

today.”

14.A caste certificate was in the above circumstances

issued in favour of the respondent pursuant to the order

passed by the High Court which order has attained finality

for the same has not been challenged leave alone modified

or set aside in any proceedings till date. The question in the

13

Page 14 above context is whether a fresh enquiry into the Caste

Status of the respondent could be instituted by the

Government. The enquiry, as seen earlier, was initiated in

the light of the certain observations made by the full bench

of the Kerala High Court in Kerala Pattika Jathi

Samrekshana Samithy v. State AIR 1995 Ker 337

whereby the High Court had entertained suspicion about the

validity of certificates that were corrected after 27

th

July,

1997. That pronouncement came nearly eight years after

the High Court had disposed of O.P. No.9216 of 1986 and a

resultant certificate issued in favour of the respondent. It

was in the above backdrop rightly argued by Mr. Giri

appearing for the respondent that the judgement and order

passed by the High Court in O.P No.9216 of 1986 having

attained finality no fresh or further enquiry into the question

settled thereby could be initiated, the observations of the

full bench of the High Court to the contrary notwithstanding.

The judgement of the High Court in Pattika Jathi’s case

(supra), it is obvious, from a reading thereof, does not deal

with situations where the issue regarding grant of validity of

a caste certificate secured earlier than the said judgment

14

Page 15 had been the subject matter of judicial proceedings and

effectively and finally resolved in the same. That apart, the

respondent was not a party to the proceedings before the

full bench nor was the certificate issued in his favour under

challenge in those proceedings. The full bench did not even

incidentally have to examine the validity of the certificate

issued to the respondent or the correctness of the order

passed by the High Court pursuant to which it was issued.

Such being the position the direction issued by the full bench

of the High Court could not possibly have the effect of

setting at naught a judgment delivered inter-parties which

had attained finality and remained binding on all concerned.

15.It is trite that law favours finality to binding judicial

decisions pronounced by Courts that are competent to deal

with the subject matter. Public interest is against individuals

being vexed twice over with the same kind of litigation. The

binding character of judgments pronounced by the Courts of

competent jurisdiction has always been treated as an

essential part of the rule of law which is the basis of the

administration of justice in this country. We may gainfully

15

Page 16 refer to the decision of Constitution Bench of this Court in

the Daryao v. State of U.P. AIR 1961 SC 1457 where

the Court succinctly summed up the law in the following

words:

“It is in the interest of the public at large that a

finality should attach to the binding decisions

pronounced by Courts of competent jurisdiction, and

it is also in the public interest that individuals should

not be vexed twice over with the same kind of

litigation.(***) The binding character of judgments

pronounced by courts of competent jurisdiction is

itself an essential part of the rule of law, and the rule

of law obviously is the basis of the administration of

justice on which the Constitution lays so much

emphasis.”

16.That even erroneous decisions can operate as res-

judicata is also fairly well settled by a long line of decisions

rendered by this Court. In Mohanlal Goenka v. Benoy

Kishna Mukherjee AIR 1953 SC 65, this Court observed:

“There is ample authority for the proposition that

even an erroneous decision on a question of law

operates as ‘res judicata’ between the parties to it.

The correctness or otherwise of a judicial decision

has no bearing upon the question whether or not it

operates as ‘res judicata’.”

17.Similarly in State of West Bengal v. Hemant Kumar

Bhattacharjee AIR 1966 SC 1061 , this Court reiterated

the above principles in the following words :

16

Page 17 “A wrong decision by a court having jurisdiction is as

much binding between the parties as a right one and

may be superseded only by appeals to higher

tribunals or other procedure like review which the

law provides.”

18.The recent decision of this Court in Kalinga Mining

Corporation v. Union of India (2013) 5 SCC 252 is a

timely reminder of the very same principle. The following

passage in this regard is apposite:

“In our opinion, if the parties are allowed to

reagitate issues which have been decided by a court

of competent jurisdiction on a subsequent change in

the law then all earlier litigation relevant thereto

would always remain in a state of flux. In such

circumstances, every time either a statute or a

provision thereof is declared ultra vires, it would

have the result of reopening of the decided matters

within the period of limitation following the date of

such decision.”

19.In Mathura Prasad v. Dossibai (1970) 1 SCC 613 ,

this Court held that for the application of the rule of res-

judicata, the Court is not concerned with the correctness or

otherwise of the earlier judgement. The matter in issue if

one purely of fact decided in the earlier proceedings by a

competent Court must in any subsequent litigation between

the same parties be recorded as finally decided and cannot

be re-opened. That is true even in regard to mixed questions

17

Page 18 of law and fact determined in the earlier proceeding between

the same parties which cannot be revised or reopened in a

subsequent proceeding between the same parties. Having

said that we must add that the only exception to the

doctrine of res-judicata is “fraud” that vitiates the decision

and renders it a nullity. This Court has in more than one

decision held that fraud renders any judgment, decree or

orders a nullity and non-est in the eyes of law. In A.V.

Papayya Sastry v. Government of A.P. , (2007) 4 SCC

221, fraud was defined by this Court in the following words:

“Fraud may be defined as an act of deliberate

deception with the design of securing some unfair or

undeserved benefit by taking undue advantage of

another. In fraud one gains at the loss and cost of

another. Even most solemn proceedings stand

vitiated if they are actuated by fraud. Fraud is thus

an extrinsic collateral act which vitiates all judicial

acts, whether in rem or in personam. The principle of

“finality of litigation” cannot be stretched to the

extent of an absurdity that it can be utilised as an

engine of oppression by dishonest and fraudulent

litigants.”

20.To the same effect is the decision in Raju Ramsingh

Vasave v. Mahesh Deorao Bhivapurkar and Ors. ,

(2008) 9 SCC 54, where this Court held:

18

Page 19 “If a fraud has been committed on the court, no

benefits therefrom can be claimed on the basis of

thereof or otherwise.”

21.In the case at hand we see no element of fraud in the

Order passed by the High Court in O.P.No.9216 of 1986.

The order it is evident from a plain reading of the same

relies more upon the submissions made before it by the

Government Counsel than those urged on behalf of the writ-

petitioners (respondents herein). That there was an enquiry

by KIRTADS into the caste status of the writ petitioners

(respondents herein) which found his claim of being a

Thandan justified hence entitled to a scheduled caste

certificate has not been disputed. That the report of

KIRTADS was accepted by the Director of Harijan Welfare,

Trivandrum is also not denied. That apart, the State

Government at no stage either before or after the Order

passed by the Single Judge of the High Court questioned the

conclusions recorded therein till the full bench in Pattika

Jathi’s case (supra) expressed doubts about the corrections

being made in the records and certificates for the grant of

scheduled caste status. That being the case, the High Court

19

Page 20 could not be said to have been misled or fraudulently

misguided into passing an order, leave alone, misled by the

writ-petitioners (respondent herein). It is only because the

full bench of the Kerala High Court held that anthropological

study conducted by KIRTADS may not provide a sound basis

for holding Thandan’s like the respondent as those belonging

to the scheduled caste category that the issue regarding the

correctness of the certificate and a fresh investigation into

the matter surfaced for consideration. Even if one were to

assume that the conclusion drawn by KIRTADS was not for

any reason completely accurate and reliable, the same

would not have in the absence of any other material to show

that such conclusion and enquiry was a complete farce

based on wholly irrelevant or inadmissible material and

motivated by extraneous considerations by itself provided a

basis for unsettling what stood settled by the order passed

by the High Court. Suffice it to say that the contention urged

on behalf of the appellants that the order passed by the High

Court in O.P. No. 9216 of 1986 was a nullity on the ground

of fraud has not impressed us in the facts and circumstances

of the case. The upshot of the above discussion, therefore, is

20

Page 21 that the order passed by the High Court in O.P.No.9216 of

1986 which had attained finality did not permit a fresh

enquiry into the caste status of writ-petitioner. Inasmuch as

the High Court quashed the said proceedings and the order

passed by the State Government pursuant thereto, it

committed no error to warrant interference.

22.That brings us to the second question which can be

answered only in the perspective in which the same arises

for consideration. The Constitution (Scheduled Castes)

Order, 1950 specified the castes that are recognised

as Scheduled Castes for different states in the Country. Part

XVI related to the then State of Travancore and Cochin.

Item 22 of that part specified the “Thandan” as a scheduled

caste for the purposes of the entire State. The Presidential

Order was modified by The Scheduled Castes & Scheduled

Tribes Lists (Modification) Order 1956. In the list comprising

Part V applicable to the State of Kerala (the successor to the

State of Trivandrum, Kochi), ‘Thandan’ as a caste appeared

at Item 14 for the purposes of the entire State except

Malabar District. Then came the Scheduled Castes and

21

Page 22 Scheduled Tribes Orders (Amendment) Act, 1976 with effect

from 27

th

July, 1997. In the first Schedule under part VII

applicable to the State of Kerala ‘Thandan’ as a caste was

shown at Item 61. Unlike two other castes shown in the said

part namely Boyan and Malayan which were shown as

scheduled caste for specific areas of the State of Kerala,

Thandan had no such geographical or regional limitation.

This implied that ‘Thandan’ was included as a Scheduled

Caste for the entire State of Kerala.

23.Consequent upon the promulgation of the Scheduled

Castes and Scheduled Tribes Orders (Amendment) Act,

1976, the Kerala State Government started receiving

complaints alleging that a section of Ezhuva/Thiyya

community of Malabar areas and certain taluk of Malabar

districts who were also called ‘Thandan’ were taking

undeserved advantage of the Scheduled Caste reservations.

The complaints suggested that these two categories of

Thandan were quite different and distinct from each other

and that the benefit admissible to Thandans generally

belonging to the Scheduled Caste community should not be

22

Page 23 allowed to be taken by those belonging to the Ezhuva/Thiyya

community as they are not scheduled castes. Acting upon

these reports and complaints, the State Government

appears to have issued instructions to the effect that

applications for issue of community certificates to ‘Thandans’

of all the four districts of Malabar areas and Taluks of

Thalapilly, Vadakkancherry and Chavakka in Trichur District,

should be scrutinised to ascertain whether the applicant

belongs to the Thandan community of the scheduled caste

or the Thandan section of Ezhuva/Thiyya community and

that while issuing community certificate to the ‘Thandans’

who were scheduled caste, the authorities should note the

name of the community in the certificate as “Thandans other

than Ezhuva/Thiyya”. These instructions were withdrawn to

be followed by another order passed in the year 1987 by

which the Government once again directed that while issuing

caste certificate, the Revenue Authority should hold proper

verification to find out whether the person concerned

belongs to Thandan caste and not to Ezhuva/Thiyya. The

matter eventually reached this Court in Palghat Jilla

Thandan Samudhaya Samrakshna Samithi and Anr. v.

23

Page 24 State of Kerala and Anr. (1994) 1 SCC 359 in which this

Court formulated the principal question that fell for

consideration in the following words:

“The principal question that arises in these writ

petitions and appeals is in regard to the validity of

the decision of the State of Kerala not to treat

members of the Thandan community belonging to

the erstwhile Malabar District, including the present

Palghat District, of the State of Kerala as members

of the Scheduled Castes.”

24.This Court reviewed the legal position and declared that

Thandan community having been listed in the Scheduled

Caste order as it then stood, it was not open to the State

Government or even to this court to embark upon an

enquiry to determine whether a section of Ezhuva/Thiyya

which was called Thandan in the Malabar area of the State

was excluded from the benefits of the Scheduled Caste

order. This Court observed:

“Article 341 empowers the President to specify not

only castes, races or tribes which shall be deemed to

be Scheduled Castes in relation to a State but also

“parts of or groups within castes, races or tribes”

which shall be deemed to be Scheduled Castes in

relation to a State. By reason of Article 341 a part or

group or section of a caste, race or tribe, which, as a

whole, is not specified as a Scheduled Caste, may be

specified as a Scheduled Caste. Assuming, therefore,

that there is a section of the Ezhavas/Thiyyas

community (which is not specified as a Scheduled

24

Page 25 Caste) which is called Thandan in some parts of

Malabar area, that section is also entitled to be

treated as a Scheduled Caste, for Thandans

throughout the State are deemed to be a Scheduled

Caste by reason of the provisions of the Scheduled

Castes Order as it now stands. Once Thandans

throughout the State are entitled to be treated as a

Scheduled Caste by reason of the Scheduled Castes

Order as it now stands, it is not open to the State

Government to say otherwise, as it has purported to

do in the 1987 order.”

(emphasis supplied)

25.What followed from the above is that Thandans

regardless whether they were Ezhuvas/Thiyyas known as

Thandans belonging to the Malabar area, were by reason of

the above pronouncement of this Court held entitled to the

benefit of being treated as scheduled caste by the

Presidential Order, any enquiry into their being Thandans

who were scheduled caste having been forbidden by this

Court as legally impermissible. The distinction which the

State Government sought to make between Ezhuva/Thiyyas

known as Thandans like the respondent on one hand and

Thandans who fell in the scheduled caste category, on the

other, thus stood abolished by reason of the above

pronouncement. No such argument could be countenanced

against the respondent especially when it is not the case of

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Page 26 the appellants that the respondent is not an Ezhuva from

Malabar area of the State of Kerala.

26.The legal position has since the pronouncement of this

Court in Pattika Jathi’s case (supra) undergone a change

on account of the amendment of the Presidential Order in

terms of The Constitution (Scheduled Castes) Order

Amendment Act, 2007 which received the assent of the

President on 29

th

August, 2007 and was published in the

official gazette on 30

th

August, 2007. The Act, inter alia,

made the following change in Part VIII – Kerala for entry

61:–

“61. Thandan (excluding Ezhuvas and Thiyyas who

are known as Thandan, in the erstwhile Cochin and

Malabar areas) and (Carpenters who are known as

Thachan, in the erstwhile Cochin and Travancore

State)”.

27.There is in the light of the above no manner of doubt

that Ezhuvas and Thiyyas who are also known as Thandan,

in the erstwhile Cochin and Malabar areas are no longer

scheduled caste for the said State w.e.f. 30

th

August, 2007

the date when the amendment was notified. The Parliament

has, it is evident, removed the prevailing confusion

26

Page 27 regarding Ezhuvas and Thiyyas known as Thandan, in the

erstwhile Cochin and Malabar areas being treated as

scheduled caste. Ezhuvas and Thiyyas even if called

Thandans and belonging to the above area will no longer be

entitled to be treated as scheduled caste nor will the benefits

of reservation be admissible to them.

28.Taking note of the amending legislation, Government of

Kerala has by Order No.93/2010/SC/ST dated 30

th

August,

2010 directed that Ezhuvas and Thiyyas who are known as

Thandan, in the erstwhile Cochin and Malabar shall be

treated as OBCs in List III. This part was not disputed even

by Mr. Giri, counsel appearing for the respondent who fairly

conceded that consequent upon the Amendment Act of 2007

(supra) Ezhuvas and Thiyyas known as Thandan, in the

erstwhile Cochin and Malabar areas stand deleted from the

Scheduled Castes List and are now treated as OBCs by the

State Government. What is significant is that the deletion is

clearly prospective in nature for Ezhuvas and Thiyyas known

as Thandan in the above region were in the light of the

decision of this Court in Pattika Jathi’s case (supra)

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Page 28 entitled to be treated as scheduled caste and the distinction

sought to be made between ‘Thandans’ who were Ezhuvas

and Thiyyas and those who were scheduled caste was held

to be impermissible and non est in the eye of law. The law

declared by this Court in Pattika Jathi’s case (supra)

entitled all Thandans including those who were Ezhuvas and

Thiyyas from Cochin and Malabar region to claim the

scheduled caste status. That entitlement could be taken

away retrospectively only by specific provisions to that effect

or by necessary intendment. We see no such specific

provision or intendment in the amending legislation to hold

that the entitlement was taken away retrospectively so as to

affect even those who had already benefited from the

reservation for scheduled caste candidates. At any rate, a

certificate issued to an Ezhuvas known as Thandan who was

a native of Cochin and Malabar region of the State could not

be withdrawn as The Constitution (Scheduled Castes) Order,

1950 did not make a distinction between the two categories

of Thandans till the Amendment Act of 2007 for the first

time introduced such a difference.

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Page 29 29.That apart the question of ouster of Ezhuvas and

Thiyyas known as Thandan on account of the confusion that

prevailed for a considerable length of time till the decision of

this Court in Pattika Jathi’s case (supra) would be

unjustified both in law and on the principles of equity and

good conscience. In State of Maharashtra v. Milind

(2001) 1 SCC 4, this Court was dealing with a somewhat

similar situation. That was a case where a student had

secured admission to the MBBS degree course by claiming

himself to be a Scheduled Tribe candidate. The student

claimed that Halba-Koshti were the same as Halba,

mentioned in the Constitution (Scheduled Tribes) Order. This

Court held that neither the Government nor the Court could

add to the List of castes mentioned in the Order and that

Halba-Koshtis could not by any process of reasoning or

interpretation treated to be Halbas. Having said that, the

question that fell for consideration was whether the benefit

of the reservation could be withdrawn and the candidate

deprived of the labour that he had put in obtaining a medical

degree. This Court while protecting any such loss of

qualification acquired by him observed:

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Page 30 “In these circumstances, this judgment shall not

affect the degree obtained by him and his practising

as a doctor. But we make it clear that he cannot

claim to belong to the Scheduled Tribe covered by

the Scheduled Tribes Order. In other words, he

cannot take advantage of the Scheduled Tribes

Order any further or for any other constitutional

purpose. (***) we make it clear that the admissions

and appointments that have become final, shall

remain unaffected by this judgment”.

30.Kavita Solunke v. State of Maharashtra , (2012) 8

SCC 430, was also a similar case where the question was

whether the appellant who was a ‘Halba-Koshti’ could be

treated as ‘Halba’ for purposes of reservation and

employment as a Scheduled Tribe candidate. This Court

traced the history of the long drawn confusion whether a

‘Halba’ was the same as ‘Halba-Koshti’ and concluded that

while ‘Halba’ and ‘Halba-Koshti’ could not be treated to be

one and the same, the principle stated in Milind’s case

(supra) was attracted to protect even appointments that

were granted by treating ‘Halba-Koshti’ as Halba Scheduled

Tribe although such extension of the expression ‘Halba’

appearing in the Presidential Constitution (Scheduled

Castes) Order 1950 was not permissible. This Court

observed:

30

Page 31 “If “Halba-Koshti” has been treated as “Halba” even

before the appellant joined service as a teacher and

if the only reason for her ouster is the law declared

by this Court in Milind case, there is no reason why

the protection against the ouster given by this Court

to appointees whose applications had become final

should not be extended to the appellant also. The

Constitution Bench had in Milind case noticed the

background in which the confusion had prevailed for

many years and the fact that appointments and

admissions were made for a long time treating

“Koshti” as a Scheduled Tribe and directed that such

admissions and appointments wherever the same

had attained finality will not be affected by the

decision taken by this Court”.

31.In Sandeep Subhash Parate v. State of

Maharashtra and Others, (2006) 7 SCC 501, also

dealing with a similar confusion between ‘Halba’ and ‘Halba-

Koshti’ and applying the principle underlying in Milind’s

case (supra) this Court held that ouster of candidates who

have obtained undeserved benefit will be justified only

where the Court finds the claim to be bona fide. In State of

Maharashtra v. Sanjay K. Nimje, (2007) 14 SCC 481

this Court held that the grant of relief would depend upon

the bona fides of the person who has obtained the

appointment and upon the facts and circumstances of each

case.

31

Page 32 32.In the instant case there is no evidence of lack of bona

fide by the respondent. The protection available under the

decision of Milind’s case (supra) could, therefore, be

admissible even to the respondent. It follows that even if on

a true and correct construction of the expression ‘Thandan’

appearing in The Constitution (Scheduled Castes) Order

2007 did not include ‘Ezhuvas’ and ‘Thiyyas’ known as

‘Thandan’ and assuming that the two were different at all

relevant points of time, the fact that the position was not

clear till the Amendment Act of 2007 made a clear

distinction between the two would entitle all those appointed

to serve the State upto the date of the Amending Act came

into force to continue in service.

33.In Civil Appeal arising out of SLP (C) No.24775 of 2013

filed against an order dated 5

th

September, 2012 passed by

the Division Bench of the High Court of Kerala, the High

Court has found the cancellation of the Caste Certificate

issued in favour of the respondent in that appeal to be

legally bad inasmuch as the Scrutiny Committee had not

applied its mind to the material which was relied upon by

32

Page 33 the respondent in that case. No enquiry into the validity of

the certificate was found to have been conducted nor was

the order passed by the Scrutiny Committee supported by

reasons. There is, in our opinion, no legal flaw in that

reasoning muchless any perversity that may call for our

interference. The order passed by the High Court takes a

fair view of the matter and does not suffer from any illegality

or irregularity of any kind.

34.In the result these appeals fail and are, hereby,

dismissed. We, however, make it clear that while the benefit

granted to the respondent V.K. Mahanudevan as a

Scheduled Caste candidate till 30

th

August, 2007 shall

remain undisturbed, any advantage in terms of promotion or

otherwise which the respondent may have been granted

after the said date solely on the basis of his being treated as

a Scheduled Caste candidate may if so advised be withdrawn

by the Competent Authority. It is axiomatic that the

respondent-V.K. Mahanudevan shall not be entitled to claim

any benefit in the future as a scheduled caste candidate but

33

Page 34 no benefit admissible to him as an OBC candidate shall be

denied. Parties are directed to bear their own costs.

……………………………………….……….…..…J.

(T.S. THAKUR)

………………………… ..…………………..…..…J.

New Delhi (VIKRAMAJIT

SEN)

January 10, 2014

34