Madras High Court
Mr.Anand vs Mr.P.Subramanian on 9 April, 2009
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 09/04/2009 *CORAM The Honourable Mr.Justice N.PAUL VASANTHAKUMAR +WP.38602 of 2006 #C.Clara $Govt Quai De Milleth Arts College !For Petitioner: Mr.Anand ^For Respondent: Mr.P.Subramanian :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 9-4-2009 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.38602 of 2006 C. Clara @ Gomathi ... Petitioner Vs. The Principal, Government Quai-De-Milleth Arts College for Women, Anna Salai, Chennai - 600 002. ... Respondent This Writ petition came to be numbered under Article 226 of Constitution of India, by transfer of O.A.No.2314 of 1999 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the respondent and quash the termination order issued by the respondent in Rc.No.235/C/98, dated 26.3.1999 and to reinstate her in service.
For Petitioner : Mr.Anand for M/s.Anand & Surya For Respondent : Mr.P.Subramanian, Addl. Government Pleader O R D E R The prayer in the writ petition is to quash the termination order dated 26.3.1999 passed by the respondent and reinstate the petitioner in service.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner was born as Christian Adi Dravida, which is a backward class community and in the year 1991 she converted herself as Hindu and changed her name as Gomathi. Petitioner got married with one K.Govindaraj in the year 1991, who also belongs to Hindu Adi Dravida community.
(b) Prior to the conversion to Hindu religion, petitioner registered her name in the Employment Exchange as Christian Adi Dravidar in the year 1986, mentioning the community as Backward class. Subsequent to the conversion and marriage, according to the petitioner, she has informed the same to the Employment Exchange. Due to the conversion and marrying a Hindu Adi Dravida, petitioner also became a Hindu Adi Dravida, which has been recognised as a scheduled caste community and the list of the said caste is given in Sl.No.284 in the recognised list of Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976.
(c) The respondent College invited a list of candidates for filling up of one scavenger post. Petitioner's name was sponsored by the Employment Exchange for the post of Scavenger in the respondent College in May, 1998, pursuant to which she was called upon to attend interview in June, 1998. Petitioner at the time of interview, produced all the certificates for verification and she has not suppressed anything with regard to her community/caste. After verification of the records, petitioner was given appointment by order dated 10.6.1998 and the petitioner also joined as Scavenger in the respondent College immediately.
(d) On 22.3.1999, petitioner was served with a memo and she was called upon to submit her explanation within three days. Petitioner also submitted her explanation on 26.3.1999 and according to the petitioner, without considering the explanation, the respondent terminated the services of the petitioner by order dated 26.3.1999. The said order was challenged by the petitioner by raising various grounds before the State Administrative Tribunal in O.A.No.2314 of 1999 and the State Administrative Tribunal admitted the original application and ordered notice on 15.4.1999.
(e) Petitioner challenged the order of termination by contending that before terminating the services of the petitioner no enquiry was conducted, from the year 1991 onwards, the petitioner became a Hindu Adi Dravida by conversion, which is a scheduled caste community and a certificate to that effect was also obtained from the Tahsildar, which was produced along with the explanation and therefore the order of termination passed on the ground that the petitioner belongs to backward class community is unsustainable. The community certificate obtained in the year 1989 stating that the petitioner belongs to backward class community was prior to her conversion and marriage. The petitioner though produced fresh community certificate to show that the petitioner belongs to scheduled caste/Hindu Adi Dravida community, the same was not accepted by the respondent erroneously.
3. The respondent has filed counter affidavit by stating that in the Quai-De-Milleth Arts College for Women, Chennai-2, a scavenger post became vacant, which is a scheduled caste vacancy as per the roaster and a list was called for from the Employment Exchange, Adyar, Chennai. The Employment Officer furnished the list of 21 candidates belonging to Scheduled caste community. Petitioner's name having been sponsored under the said category, she was appointed temporarily as scavenger and the petitioner joined duty on 18.6.1998. According to the respondent, at the time of joining, the petitioner has not reported that she converted herself as Hindu and changed her name as Gomathi. When the petitioner completed six months of service, the respondent decided to send all the original certificates for verification and for regularisation of petitioner's service and during the process of verifying the original certificates, it was found that in the community certificate submitted by the petitioner dated 1.3.1989, it was stated that the petitioner belongs to backward community (Christian Adi Dravida community). As the vacancy was intended to scheduled caste candidate and the petitioner belongs to backward class community, the District Employment Officer, Adyar, was addressed to clarify as to how the petitioner's name was sponsored for the vacancy meant for scheduled caste community and the District Employment Officer replied that the appointment of the petitioner may be treated as irregular appointment and she may not be permitted to continue in the vacancy meant for scheduled caste community. Based on the same, petitioner's service was terminated. It is further stated in the counter affidavit that the petitioner's representation was also considered and the community certificate produced by the petitioner subsequently was also verified, which was issued on 23.3.1999 by the Tahsildar, Mylapore-Triplicane Taluk, Chennai, i.e., after the issue of the show cause notice by the respondent, wherein the petitioner's name was mentioned as C.Clara and not as C.Clara @ Gomathi. After terminating the petitioner's service, the District Employment Officer was addressed to furnish a list of scheduled caste candidates and after receiving the list, interview was conducted on 19.4.1999 and appointment order was issued to one Kaliammal on 20.4.1999 and she also joined as Scavenger on 21.4.1999 and therefore there is no vacancy available. Relying upon the above averments made in the counter affidavit, the respondent prayed for dismissal of the above writ petition.
4. The learned counsel for the petitioner submitted that there is no dispute with regard to the facts of the case viz., petitioner was a Christian Adi Dravida, which was a backward class community and the petitioner converted to Hindu faith and the General Secretary of Arya Samaj (Central Madras) issued a certificate on 9.6.1991 bearing D.Sl.No.2355/91 certifying that the petitioner converted to Hinduism after due Shuddhi ceremony and she is conferred upon the same rights and privileges, which the other Hindus enjoy. Petitioner's previous name is mentioned as C.Clara and her Hindu name is mentioned as C.Gomathi. The date of conversion is also mentioned as 9.6.1991. The learned counsel also pointed out the marriage invitation of the petitioner with K.Govindaraj, had taken place on 1.7.1991. In the said marriage invitation it is stated that the marriage of the petitioner with K.Govindaraj is to be performed in Arulmigu Palaniandavar Thirukkoil, Vadapalani, Chennai-26. In the marriage invitation also petitioner's name is mentioned as C. Clara @ C.Gomathi. Petitioner also has filed a community certificate issued by the Tahsildar, Mylapore-Triplicane Taluk, Chennai-28, dated 23.3.1999 to prove her community as Hindu Adi Dravida. Relying upon the said documents the learned counsel for the petitioner submitted that when conversion to Hinduism has taken place as early as in the year 1991 and marriage of the petitioner having taken place with the said K.Govindaraj, who also belong to scheduled caste community and the marriage having been taken place at the famous temple at Vadapalani, the petitioner is to be treated as a scheduled caste community candidate from the date of conversion i.e., from 9.6.1991.
5. The learned counsel also submitted that by virtue of the marriage, the Hindu Adi Dravida community accepted that the petitioner belongs to scheduled caste and she is also suffering with all the social and educational backwardness of the community. The learned counsel also submitted that the petitioner has not suppressed anything either before the Employment Officer or before the first respondent and the petitioner's name having been sponsored and selected and joined as scavenger without any misrepresentation or suppression of facts, which was explained by the petitioner in her reply to the show cause notice along with community certificate dated 23.3.1999, the order passed by the respondent terminating the petitioner's service that too without conducting any enquiry cannot be sustained.
6. The learned Additional Government Pleader on the basis of the averments contained in the counter affidavit submitted that the vacancy having been earmarked for scheduled caste community candidate and the petitioner, who belongs to backward class community, having been sponsored by the District Employment Officer by mistake and on verification the petitioner's community certificate it was disclosed that she belongs to backward class community, the respondent was justified in terminating the petitioner's service as the appointment order given to the petitioner was found irregular and there is no illegality in the said order.
7. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Government Pleader for the respondent.
8. The point for consideration is as to whether the petitioner really belongs to Hindu Adi Dravida community and whether the petitioner suppressed any material fact and obtained the order of appointment and whether on conversion to Hinduism, petitioner will get all rights and privileges of a Hindu Adi Dravida.
9. The petitioner was originally a Christian Adi Dravidar, belonging to backward community, which was also certified by the Tahsildar in her community certificate dated 1.3.1989. The certificate of conversion to Hinduism signed by the General Secretary issued by the Arya Samaj (Central Madras) dated 9.6.1991 clearly establishes the fact that the petitioner changed her name as C.Gomathi and converted to Hinduism on 9.6.1991 after undergoing Suddhi ceremony.
10. Petitioner's marriage with K.Govindaraj, who belongs to scheduled caste community and the performance of the said marriage at Arulmigu Palaniandavar Temple, Vadapalani, Chennai-26, and the date of marriage as 1.7.1991 are all proved by producing the marriage invitation. The birth certificate of the petitioner's son by name Mathivanan, born to the petitioner and K.Govindaraj is also produced in the typed set of papers. The community certificate issued by the Tahsildar, Mylapore-Triplicane Taluk, dated 23.3.1999 is also filed in the typed set of papers, wherein it is certified that the petitioner belongs to Hindu Adi Dravida community, which is recognised as scheduled caste community as per the SC&ST Orders (Amendment) Act, 1976, vide Sl.No.254. Admittedly, the termination order was passed by the respondent on 26.3.1999 i.e, after receipt of explanation from the petitioner along with community certificate dated 23.3.1999, issued by the competent authority. Thus, it is evident that even though the petitioner's name was mistakenly sponsored by the Employment Exchange to the respondent, the fact remains that the petitioner converted herself to Hinduism as early as on 9.6.1991 and her marriage was performed under the Hindu rites on 1.7.1991 in a temple at Vadapalani, Chennai-26. It is not in dispute that the petitioner's husband belongs to Hindu Adi Dravida community and there is no denial of the fact that the petitioner is subjected to social and economic backwardness due to the caste to which the petitioner and her husband belongs. The community has also accepted the petitioner as Hindu Adi Dravida as there is no contra evidence and after verification of the same the petitioner is issued with a community certificate dated 23.3.1999.
11. In the light of the above undisputed facts, the petitioner is bound to be treated as Hindu Adi Dravida (Scheduled Caste community) from the date of conversion i.e., 9.6.1991. Petitioner's conversion to Hinduism and marrying a Hindu Adi Dravida and getting a certificate definitely create a presumption that she has been accepted as Hindu Adi Dravida by the community at large.
12. (a) Similar issue arose before the Honourable Supreme Court in the decision reported in (1984) 2 SCC 91 (Kailash Sonkar v. Maya Devi). In the said case, a Christian by birth when converted to Hinduism and married a member of the Scheduled Caste, was held to be belonging to her husband's caste on the evidence that she had not only been accepted, but also welcomed by the important members including the President and Vice President of the community.
(b) In the decision reported in (2003) 8 SCC 204 (Punit Rai v. Dinesh Chaudhary) it is held that the caste of the parents determines the caste of the person, but in case of re-conversion, a person has the liberty to renounce his casteless status and voluntarily accept his original caste. His caste status at birth is not immutable. Change of religion does not necessarily mean loss of caste. If the original caste is not positively disproved, the acceptance of the caste can be presumed. Such acceptance can also be presumed if he is elected by a majority to a reserved seat.
(c) In the decision reported in (2004) 1 SCC 1082 (State of Kerala & Another V. Chandramohanan) it is held that it cannot be accepted that merely by change of religion person ceases to be a member thereof or not must be determined by the appropriate court as such and the question would depend upon the facts of each case. In such a situation it has to be established that a person who has embraced another religion is suffering from social disability and also following the customs and traditions of the community.
(d) Similar question was considered by the Division Bench of this Court in the decision reported in 2002 WLR 825 (N.S.Ziauddeen v. S.Ashok Kumar, Principal Sessions Judge) and in paragraph 10 the Division Bench held as follows:
"10. ....................... we are unable to accept the contention of Mr.A.Sirajudeen, learned counsel for the petitioner, that either there is an absolute bar for a non-Hindu to convert into Hinduism or that even such conversion will not restore the old caste to which he or his parents belonged to and more so in view of the authoritative pronouncements of the Constitution Bench of the Supreme Court in Mohan Rao's case (supra). In fact, that case is closer to the facts of this case. In that case, Mr.Mohan Rao was born to parents belonging to Madiga caste, which is a recognised Scheduled Caste in the State of Andhra Pradesh and they were both converted to Christianity and Mr.Mohan Rao was born as Christian and later on, when he attained the age of 14, he was re-converted as Hindu. It is apt to extract the relevant passage contained in paragraph 7 thereto.
"The reasoning on 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 caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sundarsanaswami, AIR 1940 Mad 513 = 51 L.W.159, in matters affecting the well being or composition of a caste, the caste itself is the supreme judge (emphasis supplied). 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."
In this case too, the parents of the first respondent belonged to Adi Dravidar caste and they got converted to Christianity in mid-thirties and these facts are not disputed. Equally, the facts that the first respondent was a born Christian after the conversion of his parents into Christianity, that his name was S. Antonysamy, a Christian name, and it continued to be so in all the school records and even up to the degree and Post-graduate degree including that of Degree in law and that he was enrolled as an advocate in the name of S.Antony Samy, are not disputed. But the first respondent claims that he got converted as Hindu pursuant to Sudhi ceremony and that he got married according to Hindu rites and even his daughter married a Hindu according to Hindu rites and that he is not professing Christianity but professing Hinduism and that still he remains a Hindu and that he was accepted as Hindu by his community on re-conversion and that the authorities to issue the Caste Certificate have issued the same on verification. While the conducting of Sudhi ceremony by the Arya Samaj and the effect thereof and also the acceptance of the first respondent into the community, performance of marriage between the first respondent and his wife according to Hindu rites and also that of his daughter later are all pure questions of fact. ............."
13. The Government of Tamil Nadu also, by G.O.Ms.No.1 Adi Dravidar and Tribal Welfare (CV-1) Department, dated 2.1.2009, ordered to treat the persons converted from Christian Scheduled Caste to Hinduism as Hindu Scheduled caste with all constitutional privileges. The operative portion of the said Government Order reads as follows:
"The children born to Christian Schedule Caste parents i.e., Christian by birth, converted to Hinduism, Sikhism or Buddhism at a later date and the Scheduled Caste parents embracing Hinduism, Sikhism or Buddhism converted to other religion and subsequently reconverted Hinduism, Sikhism or Buddhism, if they are accepted by their community people, the Revenue Authorities can issue Scheduled Caste community certificate to them to become eligible for the constitutional privileges conformed on the Hindu Scheduled Caste (following Hinduism, Sikhism or Buddhism) and order accordingly."
14. Applying the above case laws and the undisputed fact of conversion of petitioner to Hinduism and marrying K.Govindaraj, who belongs to Hindu Adi Dravidar as per the Hindu rites and accepting the petitioner as a Hindu Adi Dravida by the Society and having regard to the fact that the petitioner has given a community certificate on 23.3.1999, the petitioner is to be treated as she belongs to Hindu Adi Dravida community. It is also a fact that the genuineness of the community certificate issued to the petitioner by the competent authority dated 23.3.1999 is not doubted and no enquiry is ordered to verify its genuineness. It is well settled proposition of law that once a valid community certificate is issued by the competent authority, unless and until the same is set aside, the same is bound to be accepted as valid community certificate by all as per the decision of the Supreme Court in (1997) 7 SCC 505 (R.Kandasamy v. Chief Engineer, Madras Port Trust). Hence the termination order passed by the respondents cannot be sustained.
15. In the counter affidavit filed by the respondent it is stated that another person was appointed in petitioner's place on 21.4.1999 i.e., after admission of the original application, challenging the order of termination. The original application was filed on 31.3.1999 and was admitted on 15.4.1999 i.e, after admission of the original application by the Tribunal, the other person was given appointment. Though the appointment is made subsequent to the filing of the original application, still the person appointed is continuously serving as Scavenger in the respondent College for about ten years. Therefore the said appointment cannot be set aside, particularly when she is not made as a party in this writ petition.
16. Taking note of all the above facts, the impugned order is set aside with a direction to the respondent to reinstate the petitioner as scavenger without disturbing the person appointed in petitioner's place, within a period of four weeks from the date of receipt of copy of this order either in any one of the existing vacancy or and if no vacancy is now available in the immediate arising vacancy in the respondent college. Till a regular vacancy arises in the respondent College in the sanctioned post, the respondent is directed to pay salary from the date of reinstatement without any backwages. The petitioner is not entitled to claim any backwages by applying the principle of 'no work, no pay'. As and when a regular vacancy arises, petitioner shall be accommodated in the said vacancy with continuity of service from the date of her appointment i.e, from 10.6.1998 without backwages with all other service benefits.
The writ petition is ordered accordingly. No costs.
Index : Yes/No. Website : Yes/No. 9-4-2009 vr To
The Principal, Government Quai-De-Milleth Arts College for Women, Anna Salai, Chennai - 600 002.
N. PAUL VASANTHAKUMAR, J.
Vr Pre-Delivery Order in W.P.No.38602 of 2006 9-4-2009