That even erroneous decisions can operate as resjudicata
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’.”
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
Citation; 2014 AIR SCW 596
Read original judgment here;click here
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.
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 25th 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.
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 27th 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
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 15th 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 14th 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 29th 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 4th 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 18th 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 11th 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 25th 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 25th 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 28th and 27th 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 5th September, 2012.
12. Two distinct questions fall for determination in these
appeals. The first is whether the appellants could have reopened
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 25th February, 1987, the operative
portion whereof read as under :-
“I record the submission of the Government Pleader
that the 3rd respondent has accepted the findings of
the 4th respondent that the petitioner is a Thandan
and hence entitled to the benefits as a scheduled
caste. The 6th 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 5th 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 5th
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 27th 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 resjudicata
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 :
“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 resjudicata,
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 writpetitioners
(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 27th 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
25
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 29th August, 2007 and was published in the
official gazette on 30th 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. 30th 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 30th 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)
27
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.
28
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:
29
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 5th 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 30th 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
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
Print Page
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’.”
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
Citation; 2014 AIR SCW 596
Read original judgment here;click here
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.
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 25th 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.
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 27th 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
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 15th 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 14th 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 29th 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 4th 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 18th 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 11th 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 25th 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 25th 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 28th and 27th 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 5th September, 2012.
12. Two distinct questions fall for determination in these
appeals. The first is whether the appellants could have reopened
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 25th February, 1987, the operative
portion whereof read as under :-
“I record the submission of the Government Pleader
that the 3rd respondent has accepted the findings of
the 4th respondent that the petitioner is a Thandan
and hence entitled to the benefits as a scheduled
caste. The 6th 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 5th 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 5th
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 27th 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 resjudicata
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 :
“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 resjudicata,
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 writpetitioners
(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 27th 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
25
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 29th August, 2007 and was published in the
official gazette on 30th 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. 30th 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 30th 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)
27
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.
28
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:
29
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 5th 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 30th 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
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
No comments:
Post a Comment