IMPORTANT POINT
Community certificates cannot be cancelled without evidence of fraud; retrospective actions violating procedural norms are invalid.

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 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 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 1^st appellant already stood retired long back and has also taken all the service benefits in accordance with law. The appellants 2 and 3 are the daughters of the 1^st appellant. The 2^nd appellant also retired from service and the 3^rd 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 coun