Kerala High Court
P B Bhanumathi Amma vs State Of Kerala on 2 July, 2025
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W.A No.1245 of 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
WA NO. 1245 OF 2018
AGAINST THE JUDGMENT DATED 28.05.2018 IN WPC NO.29313
OF 2007 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 P B BHANUMATHI AMMA
"NIRMALYAM", THRIKKARIYOOR P.O., KOTHAMANGALAM,
ERNAKULAM DISTRICT.
2 SINDHU
"NIRMALYAM", THRIKKARIYOOR P.O.,
KOTHAMANGALAM,ERNAKULAM DISTRICT.
3 BINDHU B.
"NIRMALYAM", THRIKKARIYOOR P.O.,
KOTHAMANGALAM,ERNAKULAM DISTRICT.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SMT.ASHA BABU
SMT.ASWINI SANKAR R.S.
SRI.T.H.ARAVIND
SRI.S.M.PRASANTH
SHRI.T.RAMPRASAD UNNI
SHRI.G.RENJITH
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2
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER & SECRETARY TO GOVERNMENT
SCHEDULED CASTES & SCHEDULED TRIBES DEVELOPMENT (E)
DEPARTMENT, THIRUVANANTHAPURAM (THE CHAIRMAN, SCRUTINY
COMMITTEE FOR VERIFICATION OF SCHEDULED TRIBES
(MALAYARAYAN) CLAIM OF THE FAMILY MEMBERS OF
SMT.BHANUMATHI)- 695 001.
3 THE DIRECTOR, SCHEDULED CASTES DEVELOPMENT DEPARTMENT
THIRUVANANTHAPURAM - 695 001.
4 THE DIRECTOR, SCHEDULED TRIBES DEVELOPMENT DEPARTMENT
THIRUVANANTHAPURAM- 695 001.
5 THE DIRECTOR, KERALA INSTITUTE FOR RESEARCH, TRAINING
AND DEVELOPMENT STUDIES OF SCHEDULED CASTES & SCHEDULED
TRIBES (KIRTADS), KOZHIKODE-673017.
SMT.LATHA T.THANKAPPAN, SPL. GOVT. PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2025, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
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3
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-court appeal filed under Section 5 of the
Kerala High Court Act, 1958 assails the judgment dated
28.05.2018 passed in W.P.(C) No.29313 of 2007, whereby the writ
petition filed by the appellants/petitioners has been dismissed on
the ground that the Scrutiny Committee adverted to facts and
examined all documents and found that the claim of the
appellants that they belong to Mala Arayan is bogus and they
actually belong to Arayan-OBC/OEC.
2. The brief facts of the case are that the appellants were
certified to be members of the Hindu Mala Arayan community,
which is one of the Scheduled Tribes notified under the orders
issued under the Constitution of India. Their claim was upheld by
the Tiruvalla Subordinate Judge's Court but in a second appeal
filed after five years, it was upturned. Thereafter, Scrutiny
Committee was constituted under the provisions of the Kerala
(Scheduled Castes & Scheduled Tribes) Regulation of Issue of
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Community Certificates Act, 1996 (hereinafter referred to as 'the
Act of 1996'). Notices were issued to the appellants and they
appeared before the Committee and produced the certificates
issued by the Government that they were members of the Hindu
Mala Arayan community. The Scrutiny Committee relied upon the
report issued by the organisation called "Kerala Institute for
Research, Training and Development Studies of Scheduled Castes
& Scheduled Tribes (KIRTADS). Solely based on the report of the
KIRTADS, the Scrutiny Committee held that the family of the
appellants were not members of any Scheduled Tribe but they
were only OBC.
3. Learned counsel for the appellants contended that the
appellants had bonafide availed the benefits and concessions to
the members of the Scheduled Tribes on the basis of the
certificates issued by various Government officials made after
enquiry. The appellants cannot be faulted for the action of the
officials on the well known principles evolved by English courts
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which the Hon'ble Supreme Court has accepted, a subject cannot
be punished or penalised for action of the crown. The aforesaid
principles clearly apply to the case of the appellants. KIRTADS did
not conduct enquiries after giving notice to the appellants or their
family members. In addition to that, KIRTADS had no authority
and had also not recommended cancellation of the certificates
already issued to the appellants.
4. Learned counsel for the appellants submitted that the
entire procedure adopted by KIRTADS and Scrutiny Committee
are totally invalid in law and in contravention of the provision of
the Act of 1996. The KIRTADS was not duly constituted. The
reasons stated in the order of the Scrutiny Committee are far
from convincing to support their findings. In any event, the
certificates issued by the Government in exercise of their powers
cannot be cancelled by the Scrutiny Committee or KIRTADS. The
1st appellant already stood retired long back and has also taken all
the service benefits in accordance with law. The appellants 2 and
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3 are the daughters of the 1st appellant. The 2nd appellant also
retired from service and the 3rd appellant is a qualified Doctor. No
purpose will be served by declaring the caste status of the
appellants at this stage. It is further contended that there is no
provision to retrospectively declare a person to be a member of a
particular community. The action of the Scrutiny Committee is
clearly in contravention of the relevant Statute and is in violation
of the various fundamental rights enjoyed by the appellants. As
per the impugned judgment, respondents have taken a decision
to prosecute the appellants herein for making false claims.
5. Learned counsel for the appellants contended that the
following issues arise for consideration by this Court:
(a) There has been no validly constituted Scrutiny
Committee at all.
(b) The Scrutiny Committee has no power to order
retrospective prosecution for an alleged act done
years back as the same will be patently violative of
Article 20 of the Constitution of India.
(c) The well settled principle that the 'crown cannot go
back on the performance of duty by its own officials',
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has been overlooked by the Scrutiny Committee
since the various certificates have been issued by
different authorities testifying to the correctness of
the certificates issued to the appellants not on their
application but while being minors.
(d) Act 11 of 1996 has no retrospective operation as has
been held by series of decisions of the apex court
and of this Hon'ble Court-
(2012) 8 SCC 430
(2013) 16 SCC 526
(2017) 8 SCC 670
2009 (4) KLT 112
2013(2) KLT 488
&
Judgment in W.P.(c) No. 22711 of 2016
(e) The report of the Scrutiny Committee has not been
furnished to the appellants thereby clearly violating
the principles of natural justice.
(f) The appellants have been deprived of their livelihood
thereby violating Articles 14, 19 and 21 of the
Constitution of India without following the mandatory
requirements in law.
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6. Learned counsel for the appellants contended that no
enquiry was conducted as per the procedure laid down under
Section 11 of the Act of 1996 as well as the procedure laid down
by the Hon'ble Apex Court in the case of Kum.Madhuri Patil &
Another v. Additional Commissioner, Tribal Development &
Others [(1994) 6 SCC 241].
7. Section 11 of the Act 11 of 1996 provides for cancellation
of false community certificate. Section 11 reads thus:
"11. Cancellation of false community
certificate- (1) Where before or after the commencement
of this Act, a person not belonging to any of the
Scheduled Castes or the Scheduled Tribes has obtained a
false community certificate to the effect that either
himself or his children belongs or belong to such Caste or
the Tribe, the Scrutiny Committee may either suo motu or
on a written complaint or report by any person or
authority, call for the records and enquire into the
correctness of such certificate and if it is of the opinion
that the certificate was obtained fraudulently, it shall, by
order, cancel the certificate after giving the person
concerned an opportunity of making a representation, if
any.
(2) xxx
(3) The Scrutiny Committee while performing its
functions for verification and cancellation of community
certificates shall follow such procedure as may be
prescribed."
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8. Learned counsel for the appellants placed reliance on the
case of Vijayan P.S. and Others v. State of Kerala and Others
[2013 (2) KHC 149] to contend that, a community certificate
cannot be cancelled on a mere finding that the person in whose
favour the certificate was issued does not belong to Scheduled
Caste or Scheduled Tribe community. However, before cancelling
the certificate, the Scrutiny Committee has to form an opinion that
it was obtained fraudulently. He further stated that there is no
allegation of obtaining the caste certificate by fraud or
misrepresentation. Therefore, unless it is held that the certificate
was obtained by fraud, the same cannot be cancelled. He further
submitted that as per the decision of the Hon'ble Apex Court in
R.Unnikrishnan & Another v. V.K. Mahanudevan & Others
[(2014) 4 SCC 434], the appellants are entitled to enjoy all
benefits which accrued prior to the Constitution (Scheduled
Castes) Order Amendment Act, 2007. In short, if it is found that
the caste certificate has been obtained due to fraud, the employee
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cannot claim the scheduled tribe's status any further, but he/she is
entitled to retain all benefits which he/she had accrued prior to
coming into force of the Amendment Act, 2007. In view of the
aforesaid, the order passed in consequence to the impugned
proceedings of the Scrutiny Committee, is liable to be set aside.
9. Learned counsel for the appellants further submitted that
the Hon'ble Apex Court in the case of State of Maharashtra v.
Milind & Others [(2001) 1 SCC 4] has held that "respondent No.1
therein had joined the medical course for the year 1985- 86.
Almost 15 years have passed and he has already completed the
course and may be practicing as a doctor. Taking into
consideration the length of time, it is for nobody's benefit to annul
his admission. Huge amount is spent on each candidate for
completion of the medical course. No doubt, one Scheduled Tribe
candidate was deprived of joining the medical course by the
admission given to respondent no.1. If any action is taken against
respondent No.1, it may lead to depriving the service of a doctor
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to the society on whom public money has already been spent. In
these circumstances, this judgment shall not affect the degree
obtained by him and his practicing 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. Having regard to the passage of
time, in the given circumstances, including interim orders passed
by this Court in SLP (C) No. 16372/85 and other related affairs, we
make it clear that the admissions and appointments that have
become final, shall remain unaffected by this judgment."
10. From the above observations, it is seen that since more than
a decade has passed, the benefits already accrued to respondent No.1
in Milind (Supra) were not withdrawn; however, made it clear that he
cannot claim to belong to the Scheduled Tribe covered by the
Scheduled Tribes Order and also he cannot take advantage of the
Scheduled Tribes Order any further or for any other constitutional
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purpose and restricted the same to the benefit which he had already
availed.
11. In view of the aforesaid, the judgment passed by the
learned Single Judge is vitiated by grave irregularities and is liable
to be interfered with, and the present writ appeal deserves to be
allowed.
12. On the other hand, learned counsel for the respondents
submitted that due procedure has been followed before cancelling
the certificates. It is also submitted that the action taken against
the appellants is an inevitable consequence of the proceedings of
the Caste Scrutiny Committee whereby the caste certificate has
been cancelled.
13. Heard both sides.
14. In the case of Vijayan P.S. (supra), a Division Bench of this
Court had occasion to deal with identical issue and it was held as
under:
"A false community certificate which is not cancelled
in accordance with Section 11 of the Act without entering
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into a finding that such certificate is obtained fraudulently
will have to be treated as valid by virtue of Section 30 of
the Act. A false community certificate may be issued under
various circumstances. It may be issued due to a genuine
or inadvertent mistake of the competent authority, it may
be due to a mistake in showing relevant details by the
applicant in the application for community certificate due
to a genuine belief or a wrong impression about his caste.
Thus, a false certificate may be issued not merely due to
any fraud committed by the person concerned. Therefore,
the crucial aspect to be considered under Section 11 of the
Act is not whether false community certificate is issued,
but the question is whether such false community
certificate was obtained by the person concerned
fraudulently. Learned Special Government Pleader
submitted that the appellants obtained various benefits
using the false community certificates which are actually
due to the members of a Scheduled Tribe. Therefore, the
certificate was rightly cancelled. This argument cannot be
accepted. What is crucial under Section 11 of the Act is
whether the applicant "obtained" the community certificate
fraudulently and not whether it was "used" for obtaining
any benefit".
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15. In Chairman and Managing Director, Food
Corporation of India and others v. Jagdish Balaram Bahira
and others [(2017) 8 SCC 670], the Hon'ble Apex Court has held
that, once claim of being member of SC/ST found by Scrutiny
Committee to be false, further requirement of their dishonest
intention cannot be imported for consequential withdrawal of civil
benefits which had accrued to them on the strength of their claim
and as such the benefits cannot be withdrawn retrospectively for
which the appellants can be prosecuted at a belated stage. In
fact, there is no finding at all with regard to obtaining the
certificate by fraud or misrepresentation by the appellants.
16. It is not in dispute that the 1st appellant already
received the benefits of employment based on the caste certificate
obtained and she has superannuated long back. The 2nd appellant
also retired from service and the 3rd appellant is a qualified
Doctor. All of them had taken the benefits of the caste certificate.
As per Milind (Supra), the Hon'ble Apex Court has held that the
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benefit already accrued during subsistence of the caste certificate
cannot be withdrawn at a subsequent stage, however, benefit of
the caste certificate may not be granted to them further. In the
present case, there is no finding in Ext.P1 proceedings of the
Scrutiny Committee that the appellants had misled the officials in
issuing community certificates to them. The sine qua non for
exercise of the power under Section 11 of the Act of 1996 did not
exist and therefore, the directions in Ext.P2 order to prosecute the
appellants cannot be legally sustained.
17. In view of the aforesaid, the learned Single Judge erred
in dismissing the writ petition by holding that it does not find any
reason to interfere with the order of the Scrutiny Committee and
that the Government has taken a decision based on the report of
the Scrutiny Committee and decided to prosecute the appellants
and such decision cannot be subjected to judicial review.
Accordingly, we are of the considered opinion that the
judgment passed by the learned Single Judge deserves to be set
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aside and is hereby set aside and as a consequence, Exts.P1 and
P2 orders stand quashed.
The writ appeal is allowed. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp
