Madras High Court
M. Siva vs District Elementary Educational on 2 August, 2007
Author: P.D.Dinakaran
Bench: P.D.Dinakaran, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02/08/2007
CORAM
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
W.A.(MD)No.301 of 2007,
W.A.(MD)No.302 of 2007
and
M.P(MD)Nos.1 + 1 of 2007
M. Siva ... Appellant in
both W.As
Vs
1. District Elementary Educational
Officer, Theni, Theni District.
2. Additional Assistant Elementary
Educational Officer,
Periyakulam, Theni District.
3. Secretary,
Rangakrishnan Middle School,
Vadagarai, Periyakulam,
Theni District. ... Respondents in
both W.As
Writ Appeals filed under clause 15 of the Letters Patent against the
common order of the learned single Judge dated 09.05.2007 made in
W.P(MD)Nos.5646 and 8181 of 2006.
!For Appellant ... Mr. C. Selvaraj
Senior Counsel for
Mr. S. Mani
^For Respondent ... Mr. R. Janakiramalu
Special Government Pleader
:JUDGMENT
(Judgment of the Court was delivered by P.D.DINAKARAN, J.) These Writ Appeals are directed against the common order of the learned Single Judge dated 09.05.2007, dismissing the writ petitions in W.P(MD)Nos.5646 and 8181 of 2006.
2. For the purpose of convenience, the parties are referred to by their original rank in the writ petition itself.
3. The petitioner was born as a Christian, but he got converted as Hindu on 01.07.1992 and the same was notified in the District Gazette on 07.08.1992 and published in the Tamil Nadu Government Gazette on 16.09.1992, which reads as follows:-
"Thiru. M.Simon Jeevaraj (Christian), Son of Thiru. S. Masilamani, born on 24th November 1971 (native place: Periyakulam) residing at 77, V.R.B.Naidu Street, Vadakarai, Periyakulam has converted to Hinduism with the name of M.Siva on 1st July 1992.
Periyakulam, 7th August 1992. M.SIMON JEEVARAJ"
Based on such conversion, the petitioner has obtained community certificate as "Hindu Adi Dravidar Parayan" from the Tahsildar, Saidapet in the community certificate serial No.6121/92 A2 dated 29.12.1992.
4. The petitioner was appointed as Junior Grade B.T. Assistant in the third respondent school. However, the first respondent, by his proceedings dated 15.06.2006, placing reliance upon Government Letter No.81 Adi Dravidar and Tribal Welfare Department dated 19.09.2000 refused to approve the appointment of the petitioner. In Government Letter No.81, it has been stated that even though the conversion is notified in the Government Gazette, they are not entitled to the benefit of reservation, which is applicable to "Hindu born S.C. Persons". Thereafter, by a proceedings dated 01.08.2006, the first respondent, refusing to place reliance on the community certificate of the petitioner issued by the Tahsildar, Saidapet in the community certificate serial No.6121/92 A2 dated 29.12.1992, directed the petitioner to get a fresh community certificate from the Tahsildar, Periyakulam, where he was employed. Hence, the petitioner has filed the writ petitions.
5. Learned Single Judge taking into consideration the fact that the petitioner by birth is a Christian and subsequently converted to Hinduism, that he had obtained the community certificate from the Tahsildar, Saidapet held that no reason has been given by the petitioner as to why he got community certificate from the Tahsildar, Saidapet as his native place is Vadakarai of Periyakulam. Holding that the community certificate issued to the petitioner was not issued by the competent authority, learned Single Judge dismissed both the writ petitions. Hence, these writ appeals.
6. The issues to be decided in these writ appeals are as follows:-
(i) Whether the right of the petitioner, who is Christian by birth and converted to Hinduism, to claim reservation in the matter of his appointment as Schedule Caste Candidate can be denied? and
(ii) Is not the petitioner entitled to the benefit on the basis of the community certificate which was neither withdrawn nor cancelled so far in the manner known to law?
7.1. Issue (i):- Whether the right of the petitioner, who is Christian by birth and converted to Hinduism, to claim reservation in the matter of his appointment as Schedule Caste Candidate can be denied?
7.2. For appreciation of the case, it is apt to quote the relevant portion of the impugned letter dated 19.09.2000, which reads as follows:-
"Sir, Sub: Adi Dravidar Welfare - Whether Adi Dravidar Christians on conversion to Hinduism are eligible to enjoy benefits of reservation means for Scs - Clarification issued.
Ref: 1.Government Lr.No.83832/ADW2/83-18 Social Welfare Department dated 09.07.1984.
2. Lr. Ms.No.804 AD & TN Dept., dated 30.04.1990
3.Lr.From the District Collector, Salem, No. R.O.C.No.62756/94/D10 dated 10.06.2000.
- - - - - - -
The District Collector, Salem, has informed that the following clarification had been issued with regard to the issuance of Community Certificates to the Adi Dravidars who convert from Christianity to Hinduism:
(1) The conversion shall be notified in the Government Gazette. (2) An affidavit has to be obtained from the members of his Community that he has been accepted by them as one among their community members.
The District Collector, Salem, has sought clarification as to whether a Adi Dravida Christian convert to Hinduism is eligible to enjoy the benefits of reservation?
The Government considered the above subject. Children born to Christian parents belong to Christianity. The Hon'ble Supreme Court had held that a Christian by birth, even on conversion to Hinduism subsequently shall not be eligible to enjoy the benefits of reservation in its order dated 25.01.1996 in S.L.P.No.27571 of 1995 Therefore, it is clarified that as per the above judgment, a Christian by birth on conversion to Hinduism shall neither be eligible to get Scheduled Caste Certificate nor be eligible to enjoy the benefits of reservation.
Yours faithfully, for Secretary to Government"
7.3. A Division Bench of this Court in the decision in R. Shankar ..vs.. The Registrar General, High Court, Madras and two others (2006 (4) M.L.J. 1503) had an occasion to consider a similar situation. The Division Bench relied upon the decision of the Supreme Court in S.Anbalagan ..Vs.. B.Devarajan and others (1984 (2) S.C.C. 112) wherein O.CHINNAPPA REDDY, J., speaking for the Bench, has observed as follows:-
"13. These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless, observe the practice of caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigourous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact, this process goes on continuously in India and generation by generation lost sheep appear to return to the caste fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religious in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable tot he case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion".
7.4. Following the above said decision, the Division Bench in R.Shankar ..vs.. The Registrar General, High Court, Madras and two others (2006 (4) M.L.J. 1503) held that the petitioner therein, born to Christian parents, who was originally Hindu Adi Dravidars, embraces Christianity, but later renounces Christianism and reconverted to his original community viz., Hindu Adi Dravidar and his re-conversion was accepted by his community people and the association, is entitled to the rights and benefits given to the Scheduled Caste people.
7.5. The validity of the Government Letter No.81 dated 19.09.2000 came up for consideration before this Court in the decision reported in Prof.I.Elangovan ..Vs.. State of Tamil Nadu (2007 (3) M.L.J. 209), wherein a Division Bench of this Court has held that the clarification in Government Letter No.81 dated 19.09.2000 cannot be the deciding factor, as even though ordinarily a person who is converted from Hindusim to Christianity would cease to be a member of the caste to which he belonged, the same is not an invariable rule. If a child is born after such conversion and the child later reconverts to Hindusim, the question whether the child will regain the caste will depend on whether the members of the caste to which the parents belonged prior to their conversion accept the child as a member within their fold.
7.6. While holding so, the Division Bench relied upon the decision of the Constitution Bench of the Supreme Court in the case of Guntur Medical College, Guntur and others ..Vs.. Y. Mohan Rao (A.I.R. 1976 S.C. 1904) wherein while endorsing the decision in C.M.Arumugam ..Vs.. S. Rajagopal and others (A.I.R. 1976 S.C. 939), the Constitution Bench has held as follows:-
"7. The reasoning by which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the case, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao ..Vs.. Sundarsanaswami (A.I.R. 1940 MADRAS 513), "in matters affecting the well being or composition of a caste, the caste itself is the supreme Judge". It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold".
7.7. Again, a similar question came up for consideration before the Supreme Court in the decision reported in S.Swvigaradoss ..Vs.. Zonal Manager, FCI (A.I.R. 1996 S.C. 1182) where the parents of the petitioner had got converted to Christianity from Adi Dravida (Scheduled Caste) prior to the birth of the petitioner. The petitioner therein was born to Christian parents. In the said case, it was held as follows:-
"8.... The Notification issued by the President and the Act of Parliament under Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 and the Schedules appended thereto can be looked into for the purpose to fine whether the castes, races or tribes are (sic or) parts of or groups within castes, races or tribes shall be Scheduled Castes for the purposes of the Constitution. Under the Amendment Act, 1976, again Parliament has included or excluded from Schedules appended to the Constitution which are now conclusive. Schedule I relates to Scheduled Castes and Schedule II relates to Scheduled Tribes. Christian is not a Scheduled Caste under the Notification issued by the President. In view of the admitted position that the petitioner was born of Christian parents and his parents also were converted prior to his birth and no longer remained to be Adi-Dravida, a Scheduled Caste for the purpose of Tirunelveli District in Tamil Nadu as notified by the President, petitioner cannot claim to be a Scheduled Caste. In the light of the constitutional scheme, Civil Court has no jurisdiction under Section 9 of Code of Civil Procedure to entertain the Suit. The Suit, therefore, is not maintainable. The High Court, therefore, was right in dismissing the suit as not maintainable and also not giving any declaration as sought for".
7.8. Based on the decision of S.Swvigaradoss ..Vs.. Zonal Manager, FCI (A.I.R. 1996 S.C. 1182 = 1996 (3) S.C.C. 100), without reference to the decision of Constitution Bench in Guntur Medical College, Guntur and others ..Vs.. Y. Mohan Rao (A.I.R. 1976 S.C. 1904), C.M.Arumugam ..Vs.. S. Rajagopal and others (A.I.R. 1976 S.C. 939), Government Letter No.81 dated 19.09.2000 came to be issued, clarifying to the effect that a Christian by birth, on conversion to Hinduism, shall neither be eligible to get Schedule Caste Certificate nor be eligible to enjoy the benefits of reservation.
7.9. The Division Bench of this Court in Prof.I.Elangovan ..Vs.. State of Tamil Nadu (2007 (3) M.L.J. 209), after having taken note of entire issue, has held that the clarification in the letter dated 19.09.2000 requires to be reconsidered in the light of the decisions in Guntur Medical College, Guntur and others ..Vs.. Y. Mohan Rao (A.I.R. 1976 S.C. 1904), C.M.Arumugam ..Vs.. S. Rajagopal and others (A.I.R. 1976 S.C. 939) and directed the State Government to issue a fresh clarification.
7.10. Hence, the first issue is answered accordingly and the learned Single Judge has committed an error in rejecting to extend the benefit to the petitioner merely because of Government Letter No.81 dated 19.09.2000. To that extent, the order of the learned Single Judge is set aside.
8.1. Issue (ii) :- Is not the petitioner entitled to the benefit on the basis of the community certificate which was neither withdrawn nor cancelled so far in the manner known to law?
8.2. As far as the second issue is concerned, it is not in dispute that the Original Community Certificate issued to the petitioner based on the re-conversion as notified in the Government Gazette on 16.09.1992 is neither withdrawn nor cancelled in the manner known to law. If that be so, so long as the social status of the petitioner, as depicted by the caste certificate issued by the authorities stands, there is a statutory presumption under Section 114 of the Indian Evidence Act that the petitioner belongs to the Scheduled Caste and the benefit under the same cannot be denied to him (vide N.S.Ziauddeen ..Vs.. S.Ashok Kumar (2002 W.L.R. 825)).
8.3. The second issue is answered accordingly.
9. In fine, the common order of the learned Single Judge dated 09.05.2007 made in W.P(MD)Nos.5646 and 8181 of 2006 is quashed and these Writ Appeals are allowed. No costs. Consequently, the connected M.P(MD)Nos.1 + 1 of 2007 are closed. Since the Petitioner continues in service on the strength of the Interim Order of this Court, the District Elementary Educational Officer / first respondent is directed to pass an order of approval, approving the post of the petitioner within a period of four weeks from the date of receipt of a copy of this order.
Dpn/-
To:
1. District Elementary Educational Officer, Theni, Theni District.
2. Additional Assistant Elementary Educational Officer, Periyakulam, Theni District.