W.P. (C) No. 9979 of 2007 and Connected Cases. Case: Babu, T.G. and Others Vs Secretary, Ministry of Social Justice and Empowerment and Others. High Court of Kerala (India)

Case NumberW.P. (C) No. 9979 of 2007 and Connected Cases
CounselFor Appellant: Sri S.M. Prasanth and Dr. K. Balakrishnan and For Respondents: Sri P. Parameswaran Nair, ASG of India for 1st Respondent, Smt. Laly Vincent, Special Government Pleader for Respondents 2 & 3 and Sri Alexander Thomas, SC, KPSC for 4th Respondent
JudgesMr. P.N. Ravindran, J.
IssueConstitution of India - Articles 300A, 330, 335, 341, 341 (2), 341(1), 342, 366 (24), 366(25)
Citation2012 (3) KLT 709
Judgement DateJune 07, 2012
CourtHigh Court of Kerala (India)

Judgment:

Mr. P.N. Ravindran, J.

1. A common question arises for consideration in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. W.P.(C) No. 15448 of 2008 is treated as the main case and unless otherwise specified, the documents referred to are those produced therein. The petitioners in these writ petitions belong to Wayanad District. All of them claim to be members of the Pathiyan Community, which is a Scheduled Caste in the State of Kerala. The petitioners applied to the Tahsildar, Sultan Bathery Taluk for the issuance of a caste certificate to the effect that they belong to the Pathiyan Community which is recognized as a Scheduled Caste in the State of Kerala. He in turn informed them that persons belonging to the Pathiyan Community in Wayanad District are not members of a Scheduled Caste community, but are included only in the list of Other Eligible Communities and therefore, they should move the Village Officer concerned for caste certificates. The petitioners thereupon moved and the Village Officer who issued community certificates to the effect that they belong to the Pathiyan Community, which is included in the list of Other Eligible Communities in the State of Kerala.

2. The petitioner in W.P.(C) No. 15448 of 2008 did not let the matter rest there. He filed W.P.(C) No. 7566 of 2008 in this Court seeking a direction to the Tahsildar to issue a caste certificate to the effect that he belongs to the Pathiyan Community, which is a Scheduled Caste in the State of Kerala. By Ext. P-5 judgment delivered on 7-3-2008, a learned Single Judge disposed of the writ petition with a direction that in the event of the petitioner moving the Tahsildar concerned for a caste certificate, the Tahsildar will consider the same and pass orders thereon within ten days from the date of receipt of the application. The petitioner in W.P.(C)No. 15448 of 2008 thereupon moved the Tahsildar, Sultan Bathery, who by Ext. P-7 memo dated 17-4-2008 informed him that as per Entry 37 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950, as amended, only those members of the Pathiyan Community, who are washermen, are included in the list of Scheduled Castes, that the petitioner does not belong to that community, but only to the community known as Pathiyan other than washermen and therefore, he is not eligible for a caste certificate to the effect that he is a member of the Pathiyan Community which is a Scheduled Caste in the State of Kerala. He however, held that it will be open to the petitioner to move the Village Officer concerned and obtain a certificate to the effect that he belongs to the Pathiyan Community other than washermen, which is included in the list of Other Eligible Communities in the State of Kerala. W.P.(C) No. 15448 of 2008 was thereupon filed inter alia seeking a direction to the Tahsildar, Sultan Bathery Taluk, to issue a caste certificate to the effect that the petitioner belongs to the Pathiyan Community, which is a Scheduled Caste in the State of Kerala. Similar reliefs are sought in the other writ petitions as well.

3. The main contention raised in the writ petitions is that as per Entry 37 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950, as amended by Act 51 of 2002, Pathiyan Community is recognised as a Scheduled Caste throughout the State of Kerala along with Mannan, Perumannan, Vannan and Velan that in view of such inclusion it is not open to the State and its agencies to discriminate among members of Pathiyan Community either on the basis of their avocation or on the basis of their place of residence, to deny caste certificates to the effect that they are members of a Scheduled Caste community.

4. In the counter-affidavit dated 24-12-2009 sworn to by the Under Secretary to Government, Ministry of Social Justice and Empowerment, it is stated that the list of Scheduled Castes in Kerala is contained in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950, as amended, that communities known as Mannan, Pathiyan, Perumannan, Vannan and Velan appear in serial No. 37 and Pathiyan Community has been clubbed along with communities known as Mannan, Perumannan, Vannan and Velan, It is also stated that the issue and verification of caste certificates is the responsibility of the concerned State Government/Union Territory Administration. In the counter-affidavit filed in W.P.(C) No. 29860 of 2009 by the very same Under Secretary to Government, Ministry of Social Justice and Empowerment, the deponent has stated as follows:

4. It is further submitted that the list of Scheduled Castes of Kerala is contained in 'Part VIII of the Constitution (Scheduled Castes) Order, 1950, as amended from time to time. The 'Mannan, Pathiyan, Perumannan, Vannan, Velan' community figures at Sr. No. 37 of the list of Scheduled Castes of Kerala. The Pathiyan Community has been clubbed with 'Mannan, Perumannan, Vannan and Velan' communities, which shows that only those Pathiyans having affinity with above-mentioned communities and pursuing the occupation of washerman have only been notified as Scheduled Castes.

In short, the contention raised in the counter-affidavit filed on behalf of the first respondent is that as Pathiyan Community has been clubbed along with Mannan, Perumannan, Vannan and Velan it shows that only those Pathiyans having affinity with the aforementioned communities whose occupation is that of washermen have been notified as Scheduled Castes.

5. The Tahsildar, Sultan Bathery Taluk has filed a counter-affidavit dated 15-10-2008 in W.P.(C) No. 15448 of 2008. Similar counter-affidavits have been filed in other cases also. In paragraph 2 of the counter-affidavit filed by the Tahsildar, Sulthan Bathery Taluk in W.P.(C) No. 15448 of 2008 it is admitted that the petitioner belongs to Pathiyan (other than washermen) Community and is residing in Wayanad District, that the petitioner and his parents and family members are socially, economically and culturally advanced people and none among them were washermen, that persons belonging to the community known as Pathiyan, which is included as item 37 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950 are washermen, that members of Pathiyan Community in Wayanad District are not engaged in that avocation, that members of Pathiyan Community (other than washermen) are included in the list of Other Eligible Communities and therefore, the application submitted by the petitioner was rightly rejected. In paragraph 5 of the counter-affidavit it is stated that when the controversy arose regarding the claim made by the petitioner and other persons who are really not members of a Scheduled Caste community, the issue was referred to KIRTADS and the Director of KIRTADS has in its letter No. D1-746/07, dated 4-1-2008 formally informed that the community known as Pathiyan (other than washermen) is a community entirely different from Pathiyan community enlisted as serial No. 37 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950. It is stated that the Director has also clarified that members of Pathiyan Community (other than washermen) are not eligible for getting Scheduled Caste status.

6. I heard Sri S.M. Prasanth, Learned Counsel appearing for the petitioners, Sri Alex Varghese and Smt. P. Renuka Devi, learned Central Government Counsel appearing for the Union of India and Smt. P. K. Santhamma, learned Special Government Pleader appearing for the State of Kerala. The question that arises for consideration in these writ petitions is whether the petitioners who admittedly belong to the Pathiyan Community (according to the State of Kerala, Pathiyan other than washermen) are entitled to have caste certificates issued to them certifying that they are members of Pathiyan Community, which is a Scheduled Case in the State of Kerala. The community known as Pathiyan was included as item 52 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Orders Order, 1950. Later, by Central Act 61 of 2002, Part VIII of the Constitution...

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