Jilla Thandan Samudhaya Samrakshna Samithi Vs. State of Kerala  INSC 516
(3 December 1993)
S.P. (J) BHARUCHA S.P. (J) SAHAI, R.M. (J) VENKATACHALA N. (J)
1994 SCC (1) 359 JT 1993 (6) 622 1993 SCALE (4)584
Judgment of the Court was delivered by BHARUCHA, J.- Leave granted in the two
special leave petitions, SLP (C) Nos. 6457 of 1990 and 3746 of 1992.
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.
writ petitions pray that the State Government should continue to grant to
members of the Thandan community belonging to the erstwhile Malabar District,
including the present Palghat District, all the benefits due to a caste
included in the Schedule to the Constitution (Scheduled Castes) Order.
appeals arise out of a writ petition (O.P. 2421 of 1982) filed in the High
Court of Kerala by Miss O.K. Lakshmikutty. She had, in an earlier writ
petition (O.P. No. 2000 of 1980), claimed that she belonged to the Thandan
community and, therefore, to a Scheduled Caste and sought a direction that she
be issued a community certificate accordingly. The High Court allowed that writ
had then to file the writ petition out of which the principal appeal arises
because she was denied admission to the first year MBBS course, 1981-82, in a
seat reserved for the Scheduled Castes on the ground that she was not a Thandan.
In the judgment and order under appeal, the High Court noted that Miss Lakshmikutty
had earlier obtained relief as aforesaid. It then noted the affidavit filed on
behalf of the State Government in reply to the writ petition before it wherein
it was stated that there was no Thandan community in the Palghat District
except in certain parts of Chittur Taluk which were formerly part of the
erstwhile Travancore-Cochin State. The State Government had, after the inclusion of Thandans
in the Scheduled Castes Order by reason of the Amendment Act, 1976, made
enquiries which had revealed that a section of Ezhavas/Thiyyas (Para 23) 361 of
the Malabar area and certain Taluks of Trichur District who were called Thandans
had nothing in common with the Scheduled Caste Thandans. Reference to
authoritative texts seemed to indicate that there was a serious controversy.
High Court, therefore, directed the State Government to conduct a public
enquiry to determine whether there was a community called Thandan distinct from
Ezhavas in Palghat District and in areas other than in the erstwhile Chittur Taluk
and also in any other place in the erstwhile Malabar District. The enquiry was
also required to determine whether Miss Lakshmikutty belonged to the Thandan
meantime Miss Lakshmikutty was given provisional admission to the MBBS course
in a reserved seat and it was made clear that if it was found that she was not
a member of the Thandan community entitled to the benefit of reservation, she
would forfeit her seat.
completion of the MBBS course Miss Lakshmikutty applied for admission to a
postgraduate course in a reserved seat and, upon being denied admission, filed
another writ petition before the High Court (O.P. No. 2609 of 1989). She was
given admission subject to the result of these matters before us. The appeal
arising out of SLP (C) No. 6457 of 1990 is filed by the State of Kerala there against.
K. Swamidasan filed before the High Court a writ petition (O.P. No. 6780 of
1987) in similar circumstances.
also given admission by the High Court subject to the result of these matters
before us. The appeal arising out of SLP (C) No. 3746 of 1992 is filed by the
State of Kerala there against.
366(24) defines for the purposes of the Constitution of India the expression
"Scheduled Castes" to mean "such castes, races or tribes or parts
of or groups within such castes, races or tribes as are deemed under Article
341 to be Scheduled Castes for the purposes of this Constitution". Article
341 reads thus:
(1) The President may with respect to any State or Union Territory, and where
it is a State after consultation with the Governor thereof, by public
notification, specify the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of this Constitution be
deemed to be Scheduled Castes in relation to that State or Union territory, as
the case may be.
may by law include in or exclude from the list of Scheduled Castes specified in
a notification issued under clause (1) any caste, race or tribe or part of or
group within any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any subsequent
notification." 8.The Constitution (Scheduled Castes) Order, 1950, was
promulgated by the President in consultation with the Governors and Rajpramukhs
of the various States. Part XVI thereof related to the then State of Travancore-Cochin.
At item 22 of Part XVI was specified the caste Thandan for the 362 purposes of
the entire State. The Constitution Scheduled Castes (Modification) Order, 1956,
modified the Scheduled Castes Order. In the list in Part V, applicable to the
State of Kerala (the successor to the State of Travancore- Cochin), at item 14, was specified the caste Thandan for the
purposes of the entirety of the State except Malabar District. The Scheduled
Castes and Scheduled Tribes (Amendment) Act, 1976, came into force on July 27, 1977. In the First Schedule thereof,
under Part VII relative to the State of Kerala, Thandan was specified at item 61. In Part VII only in respect of two
castes, namely, Boyan and Malayan, were specific areas of the State of Kerala designated. In other words, all
other castes listed in Part VII, including Thandan, were Scheduled Castes for
the purposes of the entirety of the State.
9.On May 17, 1979 the Government of Kerala issued an
order which noted that upon the coming into force on July 27, 1977, of the Scheduled Castes and
Scheduled Tribes (Amendment) Act, 1976, the Thandan community throughout the
State of Kerala came to be included in the list of
Scheduled Castes. Complaints were received and reports showed "that there
is a section of the Ezhavas/Thiyyas of Malabar area and of certain Taluks of Trichur
District who were called Thandans. These Thandans have nothing in common with
the Scheduled Caste Thandans. In fact these two categories of Thandans are
quite different and distinct from each other" It was, therefore, ordered
that "the applications for the issue of Community Certificates to the Thandans
of all the four Districts of Malabar area and of the Taluks of Thalapilly, Vadakkancherry
and Chavakka in Trichur District may be enquired into in detail to ascertain
whether the applicant belongs to the Thandan Community of the Scheduled Castes
or the Thandan section of the Ezhava/Thiyya Community and while issuing
Community Certificates to the Thandans who are Scheduled Castes, the
authorities issuing the certificates in respect of the areas mentioned above
four Districts of Palghat, Malappuram, Kozhikode and Cannanore and the Taluks of Thalapilly, Vadakkancherry and Chavakkad
in Trichur District should note the name of the community in the certificates
as Thandans other than Ezhava or Thiyya". On October 15, 1984 the
Government of Kerala issued an order which stated that, having reconsidered the
matter in all its aspects, the 1979 order was cancelled and "Thandans
throughout Kerala would be treated as members of Scheduled Caste as existing in
the list of Scheduled Castes of this State as per Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 and Community Certificate issued
accordingly". The 1984 order was modified by the order of the Government
of Kerala dated November
24, 1987, which is
under challenge before us. The operative portion of the 1987 order reads thus:
have again considered the matter in all its aspects and in partial modification
of the Government order read above as second paper Government now order that
persons belonging to the Thandan Caste throughout Kerala would be treated as
members of Scheduled Caste as existing in the list of Scheduled Castes of this
State as per the 363 Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1976. While issuing such caste certificate the Revenue authorities should
clarify after proper verification that the person concerned belongs to Thandan
caste and not Ezhava/Thiyya." 10.Learned counsel for Miss Lakshmikutty and
for the petitioners in the writ petitions submitted that once a group of
persons known by a caste name was specified in the Scheduled Castes Order, the
same was binding upon all. The State Government was not empowered to modify the
same in the manner in which it had purported to do by the issuance of the 1987
order. A modification of the Scheduled Castes Order could only be made by
Parliament under the provisions of Article 341. The Thandans of the Malabar
area were a distinct class from the Ezhavas/Thiyyas. In any event, even if it
be assumed that there was a section of the Ezhavas/Thiyyas community which was
called Thandan in the Malabar area of the State, that section also fell within
the scope of the Scheduled Castes Order by virtue of the Amendment Act, 1976,
and the State Government was not entitled to order to the contrary.
counsel for the State Government contended that persons named or called Thandan
in the Malabar area were not intended to be covered by the Scheduled Castes
Order and the State Government was, therefore, entitled to issue the 1987
the first place, we must notice that the contention of learned counsel for the
State Government does not accord with the case of the State Government put
forward on its behalf in the counter-affidavit to the writ petition filed by
R.B. Pathak, Secretary to the State Government in the Harijan Welfare
Department, dated September 4, 1984. In paragraph 4 of the counter-affidavit it
is stated that after the Amendment Act, 1976, was passed by Parliament, "it
has come to the notice of the Government that in the erstwhile Malabar area,
particularly in Palghat Jilla, a section of Ezhava/Thiyya community are called Thandans.
These Thandans are different from the recognised backward Scheduled Caste Thandans.
Such a section of Thandans who are allied to Ezhava/Thiyya Community are not
entitled to the benefits meant for Scheduled Caste Thandans". In paragraph
6 it is stated that the High Court was satisfied "that the Thandan
community of the erstwhile Malabar area, Palghat Jilla is a controversial
community and that the position is not clear whether this community in these
areas can be conclusively treated as a Scheduled Castes Thandan
community". In paragraph 7 the controversy is stated to be "about the
status of this community in the said Malabar area, by reason of which the High
Court had directed the State Government to conduct an enquiry". In
paragraph 11 It is stated, "Pending the proposed investigation into the
status of the Thandan community in the Malabar area, the Thandans from all over
Kerala will continue to be treated as a Scheduled Caste".
paragraph 12 it is stated, "Based on the report of the proposed enquiry,
Government will consider the issue and, if necessary, the Government will
submit necessary proposals to 364 the Government of India. Parliament alone is
competent to make any change in the law on the subject". In paragraph
14(e) it is stated that a study by various authors shows "that there are Thandans
belonging to the Scheduled Caste as well in certain families belonging to
of this position, it is all the more necessary to identify the Thandans
belonging to Scheduled Caste separating the other class of Thandans in the
paragraph 14(f) it is stated, "The scope of the proposed enquiry is to
find out whether there is a community called Thandan distinct from Ezhava in Palghat
District and also in other places in erstwhile Malabar District".
the counter-affidavit it is, therefore, clear that the case of the State
Government is that there is a community called Thandan which is not entitled to
the benefits available to Scheduled Castes under the Scheduled Castes Order.
This case is very different from the submission of its counsel that persons
named or called Thandan in the Malabar area are not intended to be covered by
the Scheduled Castes Order and that the 1987 order is only intended to exclude
such individuals named or called Thandan. Patently, in the circumstances, we
must base our decision upon the case of the State Government put on oath in the
counter-affidavit filed on its behalf.
State Government's counter-affidavit is noteworthy also because it states in
paragraph 11 that, pending the proposed enquiry into the status of the Thandan
community in the Malabar area, Thandans from all over Kerala would continue to
be treated as a Scheduled Caste. Having regard to this statement on oath on its
behalf before this Court the State Government ought not to have issued the 1987
order. Again, in paragraph 12 of the affidavit it is stated that the State
Government would, if necessary, submit the necessary proposals to the
Government of India since "Parliament alone is competent to make any
change in the law on the subject". As we shall hereafter show, this is a
correct statement of the law which the State Government recognised when the
counter-affidavit was filed but from which position it would appear to have resiled
by issuing the 1987 order.
now proceed upon the basis that the State Government is right when it says that
there is a section of the Ezhavas/Thiyyas community which is called Thandan in
the Malabar area of the State.
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.
therefore, that there is a section of the Ezhavas/Thiyyas community (which is
not specified as a Scheduled 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 365 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.
may usefully draw attention to the judgment of a Bench of three learned Judges
of this Court in Srish Kumar Choudhury v. State of Tripura'. This judgment considered the
Constitution Bench judgments in B. Basavalingappa v. D. Munichinnappa2 and Bhaiyalal
v. Harikishan Singh' and certain other judgments. It held that the two
Constitution Bench judgments indicated that any amendment to the Presidential
Orders could only be by legislation. The Court could not assume jurisdiction
and order an enquiry to determine whether the terms of the Presidential Order
included a particular community. A State Government was entitled to initiate
appropriate proposals for modification in cases where it was satisfied that
modifications were necessary and, if after appropriate enquiry, the authorities
were satisfied that a modification was required, an amendment could be
undertaken as provided by the Constitution.
judgments leave no doubt that the Scheduled Castes Order has to be applied as
it stands and no enquiry can be held or evidence let in to determine whether or
not some particular community falls within it or outside it. No action to
modify the plain effect of the Scheduled Castes Order, except as contemplated
by Article 341, is valid.
Thandan community in the instant case having been listed in the Scheduled
Castes Order as it now stands, it is not open to the State Government or,
indeed, to this Court to embark upon an enquiry to determine whether a section
of Ezhavas/Thiyyas which was called Thandan in the Malabar area of the State
was excluded from the benefits of the Scheduled Castes Order.
counsel for the State relied upon the decision in Bhaiya Ram Munda v. Anirudh
Patar4 referred to in paragraph 15 of the judgment in Srish Kumar Choudhury
case' for the view taken there was that evidence was admissible for the purpose
of showing what an entry in the Presidential Order was intended to mean. In paragraphs
8, 9, 10 and 11 of the judgment in Srish Kumar Choudhury case' the Constitution
Bench judgments referred to above are discussed, as also two other judgments
taking the same view.
in paragraph 14, the judgments of this Court in the case of Dina v. Narayan
Singh' and Bhaiya Ram Munda v. Anirudh Patar4 are referred to and it is stated
that both were rendered by the same Bench of two learned Judges.
14 goes on to set out the substance of the decision in Dina case' and paragraph
15 sets out the substance of the decision in Bhaiya Ram 1 1990 Supp SCC 220 2
(1965) 1 SCR 316: AIR 1965 SC 1269: 26 ELR 446 3 (1965) 2 SCR 877 : AIR 1965 SC
1557 4 (1970) 2 SCC 825 :(1971) 1 SCR 804 5 38 ELR 212 (SC) 366 case 4. In
paragraph 16 it is said, "These authorities clearly indicate, therefore,
that the entries in the Presidential Order have to be taken as final and the
scope of enquiry and admissibility of evidence is confined within the
limitations indicated. It is, however, not open to the court to make any
addition or subtraction from the Presidential Order". There is, therefore,
no doubt that the Court in Srish Kumar Choudhury case' accepted and followed,
as it was bound to do, the Constitution Bench judgments and not the two-Judge
judgments in the Dina' and Bhaiya Ram Munda 4 cases.
enquiry that was ordered by the High Court in the order under appeal to
"find out whether there was a community called Thandan distinct from Ezhavas
in Palghat District in areas other than in the erstwhile Chittur Taluk and also
in any other place in erstwhile Malabar District" has proceeded to a
conclusion on the basis of an interim order passed by this Court on January 16,
1989. It is not for the State Government or for this Court to enquire into the
correctness of what is stated in the report that has been made thereon or to utilise
the report to, in effect, modify the Scheduled Castes Order. It is open to the
State Government, if it so deems proper, to forward the report to the
appropriate authority to consider whether the Scheduled Castes Order needs
amendment by appropriate legislation.
the Scheduled Castes Order is amended, it must be obeyed as it reads and the
State Government must treat Thandans throughout Kerala as members of the
Scheduled Castes and issue community certificates accordingly.
Kumaran, who claims to be the Chairman of the Kerala Scheduled Castes
Protection Council, sought impleadment to these matters. We declined to implead
him but we heard him in the character of an intervener. His submission, in the
main, was that in Malabar Ezhavas/Thiyyas are known as Thandans but this did
not mean that they belonged to the Scheduled Castes. As we have indicated, it
is not for this Court to go into the question. It is for the appropriate
authority to do so and, if satisfied, initiate proceedings to amend the
Scheduled Castes Order.
the result, the writ petitions are allowed and the State Government is directed
to grant to all members of the Thandan community, including those belonging to
the erstwhile Malabar District and the present Palghat District, the benefits
due to a Scheduled Caste included in the Schedule to the Constitution Scheduled
Castes Order as amended up to date and to issue to them community certificates
accordingly. The order of the State Government dated November 24, 1987, is quashed and set aside. Civil
Appeal No. 4807 of 1984 is allowed to the extent that the High Court's
directions that Miss O.K. Lakshmikutty's admission to the MBBS course and to
the postgraduate course were provisional are set aside. The appeals by the
State of Kerala arising from SLP (C) No. 6457 of
1990 and SLP (C) No. 3746 of 1992 are dismissed.
There shall be no order as to costs.