Kerala High Court
Mohammed Rafi vs The Secretary on 20 October, 2008
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28949 of 2008(U)
1. MOHAMMED RAFI, AGED 32 YEARS,
... Petitioner
Vs
1. THE SECRETARY, DEPARTMENT OF PERSONNEL
... Respondent
2. THE SECRETARY, KERALA PUBLIC SERVICE
3. THE UNDER SECRETARY I, GOVERNMENT WING
4. TAHSILDAR, TALUK OFFICE,
For Petitioner :SRI.P.A.MOHAMMED SHAH
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :20/10/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No.28949 of 2008
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Dated this the 20th October, 2008.
J U D G M E N T
The petitioner is an applicant for appointment to the post of III Grade Overseer/Tracer in the Public Works Department/Irrigation Department. He belongs to the Muslim community and claims the benefit of reservation available to other backward communities. The petitioner has filed this writ petition aggrieved by the delay on the part of the respondents in issuing a Non Creamy Layer Certificate to him and seeking a direction to the Kerala Public Service Commission to include his name in the list of Muslim candidates. The petitioner has also prayed for a declaration that he is eligible for reservation as a member of a backward community.
2. The petitioner was admittedly born and brought up as a Christian. His parents are still Christians. The petitioner admits that he converted to Islam during the year 1996 and that after such conversion, he married a Muslim woman and that two W.P.(C) No.28949/2008 2 children were born in that marriage. The petitioner claims that he is living with his wife and children as a true Muslim and that he is entitled to the benefit of reservation by treating him as a member belonging to a backward community.
3. The question whether a person born and brought up as a member of a forward caste is eligible to the benefit of reservation under Articles 15 and 16 of the Constitution of India, after conversion, was considered by the Apex Court in Mrs.Valsamma Paul v. Cochin University and others (AIR 1996 SC 1011). The Apex Court, in paragraph 34 of the aforesaid decision held as follows:-
"34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, (1995) 3 JT (SC) 563:
(1995 AIR SCW 2224); and R.Chandevarappa v. State of Karnataka (1995) 7 JT (SC) 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the Stat has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or at a post under the State under Article 16(4).W.P.(C) No.28949/2008 3
Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) of 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15 (4) and 16(4) of the Constitution."
The petitioner who was admittedly born and brought up as a Christian and converted to Islam in the year 1996 cannot claim the benefit of reservation available to Muslim Candidates. The Writ Petition is in my opinion, without any merit. It is accordingly dismissed in limine.
P.N.RAVINDRAN, JUDGE nj.