Kerala High Court
Jibin C.Baby vs The Commissioner For Entrance ... on 8 January, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937
WP(C).No. 22436 of 2007 (U)
----------------------------
PETITIONER:
---------------
JIBIN C.BABY, CHEMMATHU HOUSE,
KANAKKARY P.O., KOTTAYAM - 686632.
BY ADVS.SRI.P.LEELAKRISHNAN
SRI.SHYAM KRISHNAN
RESPONDENTS:
------------------
1. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
GOVERNMENT OF KERALA
THIRUVANANTHAPURAM.
2. GOVERNMENT OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT
THIRUVANANTHAPURAM.
3. THE VIGILANCE OFFICER, KIRTADS,
KOZHIKODE - 17.
R1-R3 BY SMT.P.K.SANTHAMMA, SPL. GOVT. PLEADER (SC/ST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 22436 of 2007 (U)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: SCHEDULED CASTE CERTIFICATE DTD. 28.2.2007 AS ENTERED BY
THE TAHSILDAR, MEENACHAL TALUK IN THE APPLICATION FOR ENTRANCE
EXAMINATION.
EXT.P2: LETTER BY R1 DTD. 2.4.07 GIVING THE INFORMATION REGARDING
THE DOUBTS ON THE CASTE CERTIFICATE AND REGARDING REFERENCE TO
KIRTADS.
EXT.P3: NOTICE DTD. 9.4.2007 SENT BY R3 KIRTADS TO THE PETITIONER
INTIMATING HIM OF ENQUIRY.
EXT.P4: EXPLANATION DTD. 17.4.2007 BY THE PETITIONER BEFORE THE
KIRTADS INQUIRY.
EXT.P5: TRUE COPY OF THE CERTIFICATE ISSUED BY ARYA SAMAJ
DTD.10.12.1987 REGARDING CONVERSION OF PETITIONER'S FATHER, BABY
CHEMMATH.
EXT.P6: NOTIFICATION IN THE KERALA GAZETTE, PART IV, PAGE 34 DTD.
19.1.1988 REGARDING CHANGE OF CONVERSION TO HINDUISM.
EXT.P7: CERTIFICATE ISSUED BY THE KERALA SAMBAVAR SOCIETY DTD.
5.7.2007 SHOWING THAT PETITIONER'S FATHER WAS ACCEPTED AS ONE AMONG
THEM.
EXT.P8: REPORT DTD. 9.5.1988 OF THE VILLAGE OFFICER,
PERUVANTHANAM WHERE BABY CHEMMATHU'S FOREFATHERS LIVED TO SHOW
ACCEPTANCE OF BABY CHEMMATH AS A HINDU SAMBAVA.
EXT.P9: REPORT DTD. 25.6.2001 BY THE VILLAGE OFFICER, KANAKKARY
VILLAGE WHERE THE PETITIONER AND HIS FATHER LIVE AT PRESENT SHOWING
THAT THEY LIVE AS HINDU SAMBAVA.
EXT.P10: KIRTADS REPORT DTD. 10.5.2007 REJECTING PETITIONER'S CLAIM
AS A SCHEDULED CASTE SAMBAVA.
EXT.P11: INTIMATION DTD. 29.5.2007 BY R1 COMMISSIONER FOR A
HEARING ON 6.6.2007.
EXT.P12: STATEMENT DTD. 6.6.2007 HIGHLIGHTING THE POSITION OF LAW
FILED BY THE PETITIONER DURING THE HEARING.
EXT.P13: EXTRACT DTD. 28.6.2007 TAKEN FROM THE WEBSITE SHOWING
THAT THE PETITIONER WAS CONSIDERED ONLY AS 'BX' i.e., BACKWARD
CHRISTIAN AND NOT AS SCHEDULED CASTE FOR ADMISSION TO THE COURSE.
EXT.P14: MARKS/DATA SHEET DTD. 23.6.2007 SHOWING THE CATEGORY OF
RESERVATION FOR THE PETITIONER.
WP(C).No. 22436 of 2007 (U)
::2::
EXT.P15: KERALA GOVERNMENT GUIDELINES NO.SC/ST/DEVELOPMENT/E-
DEPT.NO.18421/E2/37 DTD. 15.12.1987 FOR ISSUE OF CASTE CERTIFICATE TO
THOSE WHO ARE RECONVERTED TO HINDU SCHEDULED CASTE.
EXT.P16: ORDER OF R1 DTD. 30.6.2007 RELATING TO THE HEARING GIVEN
ON 6.6.2007.
EXT.P17: EXTRACT DTD. 28.7.2007 FROM THE INTERNET WHICH INDICATED
THAT THE RESULT OF THE PETITIONER WAS WITHHELD.
EXT.P18: SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER
ISSUED IN MARCH 2004.
EXT.P19: DEATH CERTIFICATE DTD. 9.4.2015 OF THE PETITIONER'S FATHER.
EXT.P20: DEGREE CERTIFICATE DTD. 17.9.2015 ISSUED BY THE UNIVERSITY
OF KERALA.
EXT.P21: MEDICAL CERTIFICATES INDICATING THAT THE PETITIONER
SUFFERS FROM THYROID CANCER.
RESPONDENTS' EXHIBITS:
EXT.R1(a): PROCEEDINGS ORDER NO.B3-1254/07/CEE(18) DTD. 30.6.2007.
// TRUE COPY //
bkn
P.S TO JUDGE.
ALEXANDER THOMAS, J.
==================
W.P.(C).No. 22436 of 2007
==================
Dated this the 8th day of January, 2016
J U D G M E N T
The petitioner essentially challenges the legality and validity of the decision of the 1st respondent at Ext.P-16 in rejecting the petitioner's claim for Scheduled Caste (Hindu Sambava) status for admission to professional courses, 2007. The said impugned Ext.P-16 dated 30.6.2007 is based on an enquiry report (Ext.P-10) of the 3rd respondent-KIRTADS (Kerala Institute for Research, Training and Development Studies for Scheduled Castes/Scheduled Tribes), which, according to the petitioner, is not taking into account the crucial relevant criteria and the principles laid down by the Apex Court on the issue of conversion and reconversion of Scheduled Castes. The petitioner's paternal great grandfather and paternal grandfather (Chothi) belonged to Hindu Sambava community. It is also not in dispute that his forefathers prior to his paternal great grandfather were also belonging to the said community. It is evident from Ext.P-8 (report dated 9.5.1988 of the Village Officer W.P.(C).22436/07 - : 2 :-
concerned), that the petitioner's grandfather Chothi had renounced Hinduism and had embraced Christian religion in the year 1918 and had changed his name as Devassia. It is also not in dispute that Chothi @ Devessia's son (petitioner's father) one Sri.C.D.Baby was born and brought up as Christian in the Christian Sambava community and had married a lady belonging to Christian Sambava community on 10.10.1987 in a church (as discernible from Ext.P-4). Later, on 10.12.1998, the petitioner's father Sri.C.D.Baby had renounced Christianity and got himself converted to Hinduism by following sudhi ceremony and had changed his name as "Baby Chemmath". This is also evident from Ext.P-8. Ext.P-5 dated 10.12.1987 is the sudhi certificate issued by the Aryasamajam, Trivandrum, evidencing the conduct of the sudhi ceremony and conversion of petitioner's father to Hindu religion, which is in consonance with Ext.P-15 Government circular dated 15.12.1987.
The petitioner's father thereafter duly effected publication regarding his renunciation of Christianity and conversion to Hinduism in the State Government's gazette as per Ext.P-6 Government notification dated 19.1.1988. Ext.P-7 is the certificate issued by the Kerala Sambavar Society, certifying that the petitioner's father on W.P.(C).22436/07 - : 3 :-
conversion to Hinduism in 1987, has been accepted as one among the Hindu Sambavar community and that he has been living as Hindu and not as Christian and that he was a member of the State Committee of the Kerala Sambavar Society during 2004 and that he continues to be an active member of the Kerala Sambavar Society, etc. The petitioner was born on 18.5.1989. It is common ground that the petitioner's mother continues to be a member of the Christian religion and almost all her siblings, parents, etc. belonged to the Christian sambava community. It is the definite case of the petitioner that the petitioner's father and the petitioner profess Hindu religion and that they are members of the Hindu Sambavar community and that the Hindu Sambavar community has accepted them as one among them. The petitioner's community status has been entered in the school records as Hindu Sambava community as evident from Ext.P-18. By Ext.P-8 dated 9.5.1988, the Village Officer, Peruvanthanam has found that though the petitioner's paternal grandfather had initially renounced Hindu religion and had accepted Christianity, the petitioner's father had voluntarily renounced Christianity and had converted to Hindu religion and that he has complied with all the requirements of Ext.P-15 Government W.P.(C).22436/07 - : 4 :-
norms and that the essential sudhi certificate and gazette notification referred to above have been duly examined and that the Hindu Sambavar community has accepted him as a member of the Hindu Sambavar community and that the petitioner's father can thus be issued community certificate as Hindu Sambava (SC). Later the petitioner's family had shifted their residence from Peruvanthanam in Idukki district to Kanakkari in Kottayam district and the Village Officer of Kanakkari has also conducted an enquiry and issued Ext.P-9 dated 25.6.2001 reiterating the aforestated facts regarding the sudhi ceremony and conversion of the petitioner's father to Hindu religion and his acceptance by the Hindu Sambavar Community and that he has been living as a Hindu since then and that his son, Jithin C.Baby (petitioner herein) was born after his conversion to Hindu religion and that has accordingly been found therein and that the community certificate can accordingly be issued. All the relevant records were also forwarded along with Ext.P-9.
2. As stated earlier, Ext.P-18 school leaving certificate issued by the General Education Department of the Government of Kerala issued in March 2004, has clearly certified that the W.P.(C).22436/07 - : 5 :-
petitioner's religion is Hindu and caste is Sambava. After completing his higher secondary education, the petitioner had applied for admission to the professional degree courses including engineering courses for the year 2007. The competent Tahsildar concerned (Tahsildar, Meenachil) has certified in Ext.P-1 community certificate that the petitioner herein belongs to Hindu Sambavar community.
3. The 1st respondent expressed a doubt regarding the Scheduled Caste Community status of the petitioner as per Ext.P-2 dated 2.4.2007 and had accordingly, referred the matter for the decision of the competent Screening Committee after verification and enquiry by the 3rd respondent-KIRTADS. Thereupon, by Ext.P-3 dated 9.4.2007, the official concerned of the 3rd respondent- KIRTADS directed the petitioner to appear for the enquiry on 17.4.2007. The petitioner appeared before the 3rd respondent and submitted Ext.P-4 written submission dated 17.4.2007 pointing out the relevant facts and contended that the petitioner's father became a Hindu Sambava consequent to his conversion from Christianity to Hinduism and that the petitioner was born after the conversion of the petitioner's father to Hinduism and that his W.P.(C).22436/07 - : 6 :-
Scheduled Caste status has been correctly certified by the competent authorities concerned, etc. Other relevant materials are also placed by the petitioner before the 3rd respondent. By Ext.P- 10, the 3rd respondent KIRTADS submitted their enquiry report dated 10.5.2007. Therein, the 3rd respondent has also clearly stated that the petitioner's forefathers prior to his paternal grand father were belonging to Hindu Sambava community and that the paternal grandfather was also born and brought up in the Hindu Sambava Community and later had converted from Hinduism to Christianity and that the petitioner's father was also born and brought up as a Christian and that he had married a Christian Sambava lady and that again petitioner's father converted from Christianity to Hinduism on 10.12.1987. In Ext.P-5 sudhi certificate dated 10.12.1987 and Ext.P-6 Gazette notification dated 19.1.1988, it has been disclosed that the petitioner's father, who earlier belonged to Christian Sambava community, had reconverted to Hinduism etc. However, the 3rd respondent takes a considered view in Ext.P-10 that "in fact there was no scope for re-conversion since he (petitioner's father) was born as a Christian and hence the candidate's father, Baby Chammath undoubtedly belongs to W.P.(C).22436/07 - : 7 :-
Christian community". Ext.P-10 also refers to the fact that the petitioner's mother belongs to Christian Sambava Community and that almost all the close siblings and immediate forefathers of the petitioner's mother also belonged to Christian Sambava Community. On this sole basis, the 3rd respondent finds in Ext.P-10 that petitioner's father embraced Hinduism only with the ulterior motive to enjoy the benefits earmarked for SC. On the one hand, Ex.P-10 clearly admits the fact that the petitioner's father had converted from Christianity to Hinduism and on the other hand, for reasons best known to them, they have stated that there was no scope for reconversion, since he was born as a Christian. Curiously it is also stated that hence the petitioner's father belongs to Christian community. The factum of religious conversion of the petitioner's father is not in any way disputed by any of the authorities including the 3rd and 1st respondents. The basic fact that petitioner's father had converted from Christianity to Hinduism as evidenced by Exts.P-5 & P-6 etc., is fully accepted by the 3rd respondent. However, the 3rd respondent proceeds to come to the strange conclusion that there was no scope for such reconversion, since he was born as a Christian. On this specious premise, the 3rd W.P.(C).22436/07 - : 8 :-
respondent comes to the curious conclusion that petitioner's father belongs to Christian community. By Ext.P-11 dated 25.9.2007, the petitioner was directed by the 1st respondent to appear for a hearing to take a decision in the matter by the Screening Committee in pursuance of Ext.P-10 report of the 3rd respondent, etc. The petitioner appeared before the authority (1st respondent) and submitted Ext.P-12 statement dated 6.6.2012 bringing on record all the factual aspects and also pointing out the clear rulings of the Constitution Bench of the Supreme Court in Y.Mohan Rao's case reported in (1976) 3 SCC 411, etc. and accordingly, contended that the petitioner's father on his conversion from Christianity to Hinduism will secure the status as Hindu Sambava and the petitioner was born after his father's conversion to Hinduism and that his Scheduled Caste community status has been correctly certified by the authority concerned, as stated above, etc. While so, by Ext.P13 dated 28.6.2007, the 1st respondent's official has shown the community status of the petitioner as BX (Backward Christian) and not as Scheduled Caste. By Ext.P-14 dated 23.6.2007, the 1st respondent published the marks/data sheet of the petitioner in the Common Entrance Examinations, 2007 and has shown his W.P.(C).22436/07 - : 9 :-
community therein also as Backwad Christian (BX) belonging to Other Eligible Community (OEC).
4. After the issuance of Exts.P-13 and P-14, the petitioner had approached this Court by filing the instant Writ Petition, wherein this Court had passed interim order dated 23.7.2007 to the following effect:
"From Ext.P8 report of the Village Officer, I find that the petitioner's Grandfather was originally of Hindu-Sambava community and he converted to Christian-Sambava community. Petitioner's father, later on converted as Sambava-Hindu. In view of the fact that by Ext.P15 circular issued by the Government, the Government has permitted descendantstoof Scheduled Caste forefathers who havereconverted issue Community Certificates to embraced Christianity, there would be an interim order as prayed for. However, the benefits obtained by the petitioner on the basis of this order would be liable for cancellation, if ultimately the petitioner loses the writ petition."
5. Later during the pendency of this Writ Petition, the 1st respondent had issued Ext.P-16 order dated 30.6.2007 for and on behalf of the Screening Committee concerned ordering that the petitioner cannot be given the status as Scheduled Caste and that the SC certificate earlier issued to him by the Tahsildar concerned is cancelled as per the provisions of Sec.6A of the Kerala SC & ST (Regulation of Issue of Community Certificates) Act 1996 (Act 11 of 1996) as amended by the Amendment Ordinance, 2007, etc. In Ext.P-16 also the 1st respondent reiterates more or less the same W.P.(C).22436/07 - : 10 :-
grounds as those disclosed in Ext.P-10 report of the 3rd respondent KIRTADS. It is also stated in Ext.P-16 that neither the claimants nor their parents or grandfathers had suffered any disability of Scheduled Caste Sambava Community and that they have also gained advantage by virtue of their Christian background. Based on Ext.P-16, the 1st respondent also issued Ext.P-17, withholding the results of the petitioner in the Entrance Examination. Thereupon, the Writ Petition was amended to incorporate the challenge as Exts.P-16 & P-17. This Court had also passed an interim order dated 13.8.2007 granting stay of the operation and implementation of the impugned Exts.P16 & P17 orders and also directed that the respondents should treat the petitioner's community status as Scheduled Caste for the purpose of the admission to professional course.
6. It is pointed out by the both sides that the petitioner has secured admission to the engineering degree course in the year 2007 in Government Engineering College, Thiruvananthapuram pursuant to the aforestated interim orders passed by this Court in this Writ Petition in the Scheduled Caste quota. It is also stated in the additional affidavit filed by the petitioner producing additional W.P.(C).22436/07 - : 11 :-
documents that there was some break in his studies. That althogh he completed his four year B-Tech Engineering Degree course in 2011, he could not clear all the examinations in time due to the illness of his father and later due to his own illness, etc. It is evident from Ext.P-21 series of certificates that the petitioner has been suffering from thyroid carcinoma (cancer) and has undergone two surgeries and had also undergone treatment in Govt. Medical College, Kottayam as well as the Regional Cancer Centre, Trivandrum. Ext.P-21 series of certificates are those issued by the Government Medical College Hospital, Kottayam and the Directorate of Medical Education, Kerala and the Nuclear Medicine Division of Regional Cancer Centre, Trivandrum, etc. which show that the petitioner is still being treated for Thyroid carcinoma. It is pointed out by the petitioner that he could clear his balance papers in Engineering Course only later and now he has cleared the requisite examinations in the B.Tech course in February 2015, and he has been duly awarded degree of B.Tech in Electronics & Communication Engineering by the University of Kerala as evident from Ext.P-20 dated 17.9.2015, etc. It is also pointed out that the petitioner's father has died on 19.8.2014 as evident from Ext.P-19 W.P.(C).22436/07 - : 12 :-
death certificate, etc. It is pointed out by the petitioner's counsel that as the petitioner secured admission on the basis of the interim orders of this Court in this Writ Petition, it is necessary that this Court should consider the merits of the respective contentions and that accordingly it is contended by the petitioner that the impugned Ext.P-16 and consequently, the impugned Ext.P-17 proceedings are liable to be set aside and consequential reliefs may be granted to the petitioner, etc.
7. The 1st respondent has filed a counter affidavit in the matter. After referring to the factual aspects, upto the issuance of Ext.P-10 report, it is stated in paragraph 8 of the counter affidavit that the petitioner in his written statement has clearly stated that he was born as Hindu Sambava and that his father converted to Hinduism more than two years prior to his birth and the petitioner also submitted that the Hindu Sambava Committee has accepted them as one among the Hindu Sambava community, etc. The main contention raised in para 9 of the counter affidavit appears to be one on the basis of the ruling of the learned Single Judge of this Court reported in 1990(1) KLT 62, wherein it has been held that Christianity does not recognise caste discrimination and there are W.P.(C).22436/07 - : 13 :-
no SC among Christians and that the claim that a person is a Scheduled Caste Christian is a misnomer and that even if the person born as Christian has later adopted Hinduism by undergoing sudhi karma under the auspices of Arya Samajam etc., a Christian by conversion to Hinduism will not become a member of the Scheduled Caste community and that conversion to Hinduism will not confer on such person's status of member of SC, etc. Further it is stated that Ext.P-15 Government Circular dated 15.12.1987 is intended for enabling the Certificate Issuing Authority to issue certificates to persons who converted back to Hinduism after embracing Christianity and that "the parents of the claimant's conversion were not reconversion". That in fact the petitioner's father was born as Christian and hence there is no element of reconversion in the petitioner's case. Hence the question of reviving caste as SC Sambava does not arise, etc.
8. It has been pointed by the petitioner that the Government of India has framed norms and guidelines relating to the issue of conversion and reconversion of members of Scheduled Caste in consonance with the rulings of the Apex Court in the Constitution Bench decision in Y.Mohanrao's case (supra). Paragraph W.P.(C).22436/07 - : 14 :-
10 of the Writ Petition has referred to the Ministry of Home Affairs Circular Letter No.35/1/72-RV-(SCT.V) dated 2.5.1975 and B.C12025/2/76-SCT.1 dated 22.3.1977 and has extracted paragraph 4 of the said guidelines which reads as follows:
"4. Cases of conversion and reconversion
(i) Where a Scheduled Caste person gets converted to a religion other than Hinduism or Sikhism and then reconverts himself back to Hinduism or Sikhism, he will be deemed to have reverted to his original Scheduled Caste, if he is accepted by the members of that particular caste as one among them.
(ii) In the case of a descendant of a Scheduled Caste convert, the mere fact of conversion to Hinduism or Sikhism will not be sufficient to entitle him to be regarded as a member of the Scheduled Caste to which his forefathers belonged. It will have to be established that such a convert has been accepted by the members of the caste claimed as one among themselves and thus become a member of that caste."
9. It is further stated that the Government of Kerala has accepted the above guidelines and has later issued various Govt. Orders including Ext.P15 Government Circular dated 15.12.1987 and G.O.(MS) No. 34/87/SC/ST DD dated 27.7.1987. A reading of G.O.(MS) No.34/87/SC/ST DD dated 27.7.1987 and Ext.P-15 Government Circular dated 15.12.1987 would make it clear that the modalities for issuance of Scheduled Caste community certificates to those Scheduled Caste members who accepted Christian religion or their descendants, who have later reconverted to Hinduism, has W.P.(C).22436/07 - : 15 :-
already been dealt with in the previous Government Orders and that the said orders have been issued to streamline the process and to ensure that the remedial action in the matter of complaints that the officers are not issuing such community certificates to such genuine claimants etc. The main requirements in the said Government Order and Ext.P15 Government Circular are that a person who was reconverted and applied for a caste certificate should produce the following certificates before the Village Officer for the consideration of the caste certificate, (1) Gazette notification regarding reconversion of the applicant. (2) The certificate issued by any of the five approved Hindu Religious Organisations as shown below indicating the re-
conversion of the applicant to Hinduism :
a) Akhila Bharata Ayyappa Seva Sangham.
b) All India Dayananda Salvation Mission (Arya Samaj Kerala Branch), Thiruvananthapuram.
c) Kerala Hindu Mission, Thiruvananthapuram.
(d) Sri.Ramadasa Mission Universal Society, SreeNeelakandapuram,Thiruvananthapuram-695581.
e) Calicut Arya Samaj, Arya Samaj Mandir, Puthiyara P.O., W.P.(C).22436/07 - : 16 :-
Calicut-673004.
(3) The names and their address of those who are present in the Sudhi ceremony of a person who has been re-converted to the Hindu religion.
(4) The certificate of responsible member of the community into which the person has re-converted, which would indicate that the re-convertee has been accepted as one among the community and that he or she is living as a Hindu and not as a Christian in the habitat of the concerned community etc. The aforestated guidelines and norms issued by the Government of Kerala would clearly indicate that the State Government has fully regulated the procedure for grant of community certificate in compliance with the aforestated legal principles laid down by the Apex Court in the aforestated rulings.
10. Heard Sri.Shyam Krishnan, learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents.
11. At the outset, it is profitable to refer to the legal principles well settled by the Apex Court in a series of decisions on the issue regarding the revival of SC status in the cases where the W.P.(C).22436/07 - : 17 :-
candidates or their forefathers, who earlier belonged to Scheduled Caste community had converted to a religion other than Hinduism like Christianity and had again converted to Hinduism.
12. The main question which arose for consideration in the case C.M.Arumugam v. S.Rajagopal & Others reported in (1976) 1 SCC 863, was as to whether the respondent therein Sri.P.S.Rajagopal, who belonged to Adi Dravida Caste before his conversion to Chirstianity, could on reconversion to Hinduism, once again become a member of the Adi Dravida caste. The three-Judge Bench of the Apex Court, after examining the question of principle and after referring to a catena of decided cases, held that the consistent view taken in this country since 1886 is that on reconversion to Hinduism, a person can once again become a member of the caste, in which, he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. The Supreme Court held categorically therein that there was no reason, either on principle or on authority, which should compel it to disregard this clear view which has prevailed for almost a century in order to deviate from the same to lay down a different rule on the subject and W.P.(C).22436/07 - : 18 :-
categorically concluded in C.M.Arumugam's case supra that on reversion to Hinduism, the claimant could once again revert to his Adi Dravida (SC) caste, for he was accepted by the other members of the caste, etc. In para 9 of C.M.Arumugam's case the Apex Court has also held that the caste system tended to develop a group snobbery with one caste looking down upon another and thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so-called upper higher castes on the lower castes and it was for this reason that the Constitution-makers found it necessary to accord favoured treatment to the lower castes, who were afflicted by social and economic disabilities, etc. In para 10 of C.M.Arumugam's case, Justice P.N.Bhagwati in his inimitable style observed that the multiplicity of castes and sub-castes, has disfigured the Indian social scene. In para 17 of C.M.Arumugam's case supra the Supreme Court held that if a person, who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the castes are prepared to readmit him as a member. That once a Scheduled Caste person ceases to be a Hindu W.P.(C).22436/07 - : 19 :-
and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a Scheduled Caste. But when he is reconverted to Hinduism, his social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. That a Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion and that on reconversion to Hinduism, a person can become a member of the Scheduled caste to which he belonged prior to his conversion.
13. The matter again came up for consideration before a Constitution Bench (five-Judges) of the Apex Court in the case The Principal, Guntur Medical College, Guntur v. Y.Mohan Rao reported in (1976) 3 SCC 411 = 1976 SCR 1046. In the said case, the parents of the respondent therein Sri.Y.Mohan Rao, originally professed Hindu religion and belonged to Madiga caste, which is SC, and the parents converted to Christianity and the claimant Sri.Y.Mohan Rao W.P.(C).22436/07 - : 20 :-
was born after his parents' conversion. The respondent later applied for Medical College admission in 1973. But he could not succeed in getting admission and thereupon he got himself converted to Hinduism on 20th September 1973 and the conversion was effected through an authorised agency, which showed that he had renounced Christianity and embraced Hinduism after going through sudhi ceremony and that he was thereafter "received back into the Madiga caste of Hindu fold.". On the strength of the said certificate claiming to be a member of the Madiga caste (SC), the respondent applied for admission to Guntur medical college on the basis that he is a member of SC and he was provisionally selected for admission. But later his admission was rejected on the ground that he was not a Hindu by birth and that his admission is against the clause in the Admission prospectus, which stipulated that "no candidate other than Hindu including a Sikh can claim to belong to SC. No candidate can claim to belong to SC except by birth.". The matter was challenged in the High Court of Andhra Pradesh, which held that the said impugned clause in the prospectus was in derogation of the provisions contained in the Constitution (Schedule Castes) Order, 1950 and therefore void insofar as the provisions contained in para W.P.(C).22436/07 - : 21 :-
3 of the Constitution (Scheduled Castes) Order, 1950, only stipulate that no person, who professes a religion different from Hindu or Sikh religion, shall be deemed to be a member of SC and that therefore the said provision in the Constitution Order, 1950, does not stipulate that a person in order to get SC status, should by birth be a Hindu or Sikh, but that it is only necessary that the claimant for SC status should necessarily profess Hindu or Sikh religion at the time he makes the claim and not that necessarily the claimant by birth should be a Hindu. The said judgment of the Andhra Pradesh High Court was impugned before the Apex Court. The Apex Court in para 3 on page 414 of the SCC report held that by reason of para 3 of the Constitution (SC) Order, 1950, a person belonging to Madiga caste (SC) should not be deemed to be a member of the SC unless he professes Hindu or Sikh religion at the relevant time and for this it is not necessary that he should have been born as Hindu as Sikh and that the only thing required is that at the material time he was professing Hindu or Sikh religion and accordingly, held that the impugned stipulation in the prospectus is void as it is repugnant to the aforestated Constitution (SC) Order, 1950. However, the State also contended that when the respondent was converted into W.P.(C).22436/07 - : 22 :-
Hinduism, he did not automatically become a member of Madiga caste (SC), but it was open to the members of the Madiga caste to accept within their fold and that it was only if he has been so accepted, that he could claim to have become a member of the Madiga caste and that there was no evidence in that case to show that the respondent therein, on his conversion to Hinduism was accepted as a member of the Madiga caste by the other members of that caste and that therefore he was not at the time of the application for admission a member of SC, etc. The Constitution Bench of the Apex Court in para 5 of Y.Mohan Rao's case supra, after placing reliance on the case in C.M.Arumugam's case reported in (1976) 1 SCC 863, considered the pointed question as to whether a person could become a member of the Madiga caste (SC) on conversion to Hinduism. The Constitution Bench of the Apex Court in Y.Mohan Rao's case supra held that, on conversion to Christianity, the parents of the respondent therein lost their membership in Madiga caste the respondent was therefore not a Madiga by birth and the pointed question considered by the Apex Court was as to whether the respondent therein could become a member of the Madiga caste on conversion to Hinduism. In this crucial aspect of the matter, the W.P.(C).22436/07 - : 23 :-
Constitution Bench placed reliance on the earlier three-Judge Bench ruling in C.M.Arumugam v. Rajagopal reported in (1976) 1 SCC 863, which held that there was no reason, either on principle or on authority, which should compel it to disregard the consistent earlier view, which prevailed for almost a century. That on reconversion to Hinduism, a person can once again become a member of the caste in which he born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. Thereafter, in para 7 of Y.Mohan Rao's case supra the Constitution Bench categorically held that the reasoning on which the decision in C.M.Arumugam's case supra, proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and the claimant is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which his parents belonged prior to their conversion, accept him as a member within the fold. That it is for the members of the caste to decide whether or not to admit a person within the caste. It was thus held 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 W.P.(C).22436/07 - : 24 :-
conversion to Christianity, automatically or as a matter of course, but that he would become such member, if the other members of the caste accept him as a member and admit him within the fold.
14. In the case S.Anbalagan v. B.Devarajan & Ors. reported in (1984) 2 SCC 112, a three-judge Bench of the Apex Court has again considered the issue and held that the consistent precedents clearly establish that no particular ceremony is prescribed for the reconversion to Hinduism of a person who had earlier embraced another religion and that 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. That it may not be accurate to say that he regains his caste, but that it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. It would be profitable to make a reference to para 13 of S.Anbalagan's case supra, which reads 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 W.P.(C).22436/07 - : 25 :-
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 rigorous 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 religions 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 to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion."
15. In the case, Kailash Sonkar v. Smt.Maya Devi, reported in AIR 1984 SC 600 = 1984 (2) SCC 91, a three-Judge Bench of the Apex Court dealt with a case where the parents of the respondent therein (Maya Devi) had converted from Hindu Katia caste (SC) to Christianity and she was born as a Christian and was baptized according to Christian rites and before her proposed marriage to a person belonging to a Hindu Katia community, she converted herself to Hinduism and thereafter, she had married a person belonging to Hindu Katia community and it was claimed that the W.P.(C).22436/07 - : 26 :-
members of the Hindu Katia community had consistently accepted her as a member of that community. About four years after her conversion to Hinduism, she had stood as a candidate to the Legislative Assembly in the reserved SC constituency in the year 1980 and had won, which was challenged in that case. The Apex Court has held in paras 29 to 34 of the SCC report as follows:
'29. The other important question which is to be answered and which is really the controversy in the present case is: if after a person is converted to a new religion -- in the instant case, Christianity -- does his caste revive if he is reconverted to his old religion and, if so, under what circumstances? As indicated above, starting from the Privy Council to the present day, authorities of the High Courts and this Court have laid down certain norms and conditions under which a caste could revive. These conditions are as follows: (1) where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefit or gain, (2) where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) rules of the new order in permitting the convertee to join the new caste.
30. Unless the aforesaid conditions are fulfilled the loss of caste on conversion is complete and cannot be revived. In our opinion, having regard to the present set-up and the circumstances prevailing in our modern society, it will be difficult to insist on the second condition viz. the insistence on the members of the community of the caste to admit the convertee on reconversion to the original faith because such a course of action may lead to dangerous consequences and ill-conceived exploitation. The curse and cancer of untouchability despite thirty years of social reforms still persist and no quarter should be given to further persecution of the members of the scheduled castes who, as we often find, are subjected to all kinds W.P.(C).22436/07 - : 27 :-
of indignities, insults and are looked down upon as slaves or vassals, meant merely to serve the members of the higher caste. In the case of Ganpat v. Returning Officer[(1975) 1 SCC 589] this Court speaking through Alagiriswami, J. highlighted this particular aspect in the following words: (SCC p. 596, para 12) "The monstrous curse of untouchability has got to be eradicated. It has got to be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchable should assert their self-respect and fight for their dignity than that members of the other communities should forget about it."
31. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.
32. Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives.
33. Another dominant factor to determine the revival of the caste of a convert from Christianity to his old religion would be that in cases of election to the State Assemblies or the Parliament where under the Presidential Order a particular constituency is reserved for a W.P.(C).22436/07 - : 28 :-
member of the scheduled caste or tribe and the electorate gives a majority verdict in his favour, then this would be doubtless proof positive of the fact that his community has accepted him back to his old fold and this would result in a revival of the original caste to which the said candidate belonged.
34. In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revival of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made a condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said i.e. whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here."
16. The Apex Court held that though the respondent Maya Devi was undoubtedly born of Christian parents, she had voluntarily reconverted to Hinduism and therefore, on such reconversion her original caste would automatically revive. It was held that if it is proved that she has voluntarily reconverted to Hinduism, then on reconversion, her original caste would automatically revive as per the well settled legal principles in that regard. On appreciating the W.P.(C).22436/07 - : 29 :-
evidence, the Apex Court held that the materials on record clearly indicated that the Hindu Katia community and its social leaders had unequivocally accepted Maya Devi into the Hindu Katia fold on her reconversion to Hinduism from Chiristian Katia community and on her marriage to a person belonging to Hindu Katia community, etc. In the light of these aspects, the Apex Court held that the respondent Maya Devi was rightly conferred the status of Scheduled Caste and that she was eligible to contest in the SC reserved constituency, etc.
17. In the case, Kodikunnil Suresh @ J.Monian v.
N.S.Sajikumar & Ors. reported in 2011 (6) SCC 430, the Apex Court dealt with a case where the parents of the appellant therein originally belonged to Hindu Cheramar (SC) community and had accepted Christianity and the appellant was born later in that wedlock and the materials like the schools records had clearly shown that his community was Christian Cheramar and later in the year 1978 at the age of 16, he had undergone Sudhi ceremony and had reconverted to Hinduism. Necessary changes by way of gazette notification were made in that regard as per the prescribed government procedure. The Hindu Cheramar community W.P.(C).22436/07 - : 30 :-
organization had also issued necesssay certificate showing that the said community had accepted him as a member of the Hindu Cheramar community, etc., The appellant had earlier contested and won in 4 previous Lok Sabha elections in a reserved SC Parliamentary constituency. He had again contested the reserved SC Parliamentary constituency in the year 2009, which was objected to by his rival candidates on the ground that he does not belong to SC community and that he belongs to Christian Cheramar community, etc. The objections were overruled by the returning officer and he contested the said election and had won, which was challenged in an election petition. The High Court in an Election Petition held that though the appellant had undergone sudhi ceremony in 1978 and converted to Hinduism, he had not then attained the age of discretion as he had not attained the age of majority. It was also held by the High Court that though the appellant had married a Hindu and though he professed Hindu religion at the time of his admission in a Law College, there was no acceptable evidence to prove that he was accepted as a member of the Hindu Cheramar caste after his reversion to Hinduism, etc. On this basis, the appellant's election was set aside in the Election Petition. In the W.P.(C).22436/07 - : 31 :-
appeal, the Apex Court after referring to a catena of rulings, including those referred to herein above, held that the evidence on record has clearly shown that though he initially belonged to Christian Cheramar community in as much as he was born after his parents' conversion from Hindu Chermar community to Chiristian religion, he had converted himself voluntarily to Hinduism in 1978 at the age of 16 years after undergoing sudhi ceremony. Necessary certificates like the one issued by the Kerala Hindu Mission and the gazette notification were also taken in to account. The community of the appellant was shown as Hindu religion at the time of his admission in 1984 in the Govenrment Law College. The Hindu Cheramar Sangham had issued certificate dated 25.10.1979, which clearly shows that the appellant was accepted and taken to the fold of Hindu Cheramar Committe by its members. After taking into account various such circumstances, including the fact that the appellant had consistently won in four previous Parliament elections in a SC reserved constituency, the Apex Court clearly held that the view taken by the High Court that he did not belong to Hindu Cheramar (SC community) is legally wrong and reversed the judgment and upheld his election.
W.P.(C).22436/07 - : 32 :-
18. In the case of K.P.Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate reported in 2015 (4) SCC 1, the Apex Court dealt with an appeal against the judgment dated 10.3.2006 of the Division Bench of this Court in M.F.A No. 55/2006. In the said case, the appellant's forefathers including his paternal great grandfather and paternal grandfather belonged to Hindu Pulaya community. Later his paternal grandfather Chothi renounced Hinduism and embraced Christianity after accepting a new name as Varghese. The said paternal grandfather Varghese married one Mariyam, who originally belonged to Hindu Ezhava Community and had later converted into Christianity, and in that wedlock, three sons, Varghese, Yohannan and Poulose (father of the appellant herein) were born. The appellant's paternal grandfather also belonged to Christian community of Pulaya origin and their only daughter happened to be the mother of the appellant therein. The appelant's mother also had embraced Christianity. In the marital union between the aforesaid Poulose and his wife, three children including the appellant, were born. The family continued to follow Christian religion and they were members of Christian Pulaya. Later, at the age of 24, the W.P.(C).22436/07 - : 33 :-
appellant embraced Hinduism along with his brother and had undergone sudhi ceremony in accordance with the procedure prescribed by the applicable Government orders. The competent authority, on being satisfied that the appellant had satisfied the legal requirements had issued community certificate showing his status as SC and he was selected and appointed in a public sector undertaking. The claimant had married a Christian lady by registering marriage under the Special Marriage Act. Much later his caste status was disputed and the Scrutiny Committee under the Act held that he cannot be conferred the status of SC. The decision of the Scrutiny Committee was impugned in a statutory appeal before this Court in M.F.A No. 55/2006, which was rejected as per impugned judgment dated 10.3.2006. In the appeal, the Apex Court in the aforestated ruling reported in 2015 (4) SCC 1, set aside and reversed the judgment of this Court in M.F.A.55/2006 and held that the appellant was rightly conferred with SC status.
19. It may be noted that in K.P.Manu's case supra the Scrutiny Committee in its impugned order had mainly relied on the ruling of the two-Judge Bench of the Apex Court in the case S.Swvigaradoss v. Zonal Manager, F.C.I. reported in AIR 1996 SC W.P.(C).22436/07 - : 34 :-
1182 = (1996) 3 SCC 100. In S.Swvigaradoss' case, the parents of the claimant therein, who initially belonged to Adi Dravida SC caste had, before the birth of the claimant, converted to Chrisitan religion and thereafter, the claimant was born. The claimant at the age of 14, with the consent of his parents, converted to Hindu religion and sought the status as Adi Dravida Hindu SC status. The Apex Court in the two-Judge Bench decision reported in AIR 1996 SC 1182 held in para 8 thereof as follows:
"8. The Courts, therefore, have no power except President. It is settled law that the Court would look into the public notification under Section 341 (1) or 342 (1) for a limited purpose. The notification issued by the President and the Act of the Parliament under Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 and the Schedules appended thereto can be looked into for the purpose to find whether the castes, races or tribes are 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 the 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 Tirunelvedi 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 CPC 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 sought for."
20. Later the Apex Court in K.P.Manu's case reported in (2015) 4 SCC 1 in paragraphs 46 to 50, held that the aforestated W.P.(C).22436/07 - : 35 :-
view taken by the two-judge Bench ruling reported in AIR 1996 SC 1182 = (1996) 3 SCC 100, has been rendered by overlooking and ignoring the binding Constitution Bench ruling of the Apex Court in Y.Mohan Rao's case (supra) as well as the aforecited three-Judge Bench rulings in Kailash Sonker v. Maya Devi reported in (1984) 2 SCC 91 and S.Anbalagan's case reported in (1984) 2 SCC 112. Accordingly, it was held that the view rendered in S.Swvigardoss' case supra was rendered per incuriam and is liable to be ignored. Further, on the basis of the aforestated Constitution Bench rulings and three-Judge Bench rulings cited above, the Apex Court held in K.P.Manu's case supra that he had voluntarily reconverted to Hinduism after following the prescribed sudhi ceremony and that evidence on record would clearly show that the Hindu Pulaya Community Organisation had accepted him as a member of their community. The objection taken by the respondents that the appellant had married a Chiristian lady and therefore, he cannot be treated as a member of the Hindu Pulaya SC was also repelled.
21. After refering to the case in Kailash Sonkar v. Smt. Maya Devi reported in (1984) 2 SCC 91 as well as the case in S.Anbalagan v. Devarajan & Others reported in (1984) 2 SCC 112, W.P.(C).22436/07 - : 36 :-
the Apex Cout in K.P.Manu's case (supra) has held in paragraph 37 thereof, as follows:
"37. As we understand the authority it does not lay down that it only would apply to the parents and exclude the grandparents. At this stage, two decisions are required to be properly understood:
37.1. In Kailash Sonkar [(1984) 2 SCC 91], the three-Judge Bench while applying the doctrine of eclipse to the original caste and the principle of revival applying the said doctrine, has observed whether to a situation where the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. The Court, by way of abundant caution, has also proceeded to state that the question did not arise there. That apart, it has not expressed any opinion. Therefore, it cannot be treated as a precedent for the purpose that it would only encompass the previous generation.
37.2. In S. Anbalagan [(1984) 2 SCC 112] which we have referred to in extenso earlier, has laid down that if the caste disappears, it disappears only to reappear on reconversion and the mark of caste does not seem to really disappear even after some generations after conversion. As has been held therein, the process goes on continuously in India and generation by generation the lost sheep to return to their caste fold are once again assimilated to that fold. The three-Judge Bench has commented that the members of the Scheduled Castes who had embraced another religion in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity; and thereafter stated that it does not think that any different principle would apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion. This view, in our considered opinion, is in consonance with the Constitution Bench in Y. Mohan Rao [(1976) 3 SCC 411] and does not run counter to it. One may raise a question how does one find out about the forefathers. There can be a false claim but that would be the subject-matter of inquiry. Therefore, the principle of "definitive traceability" may be applied during the inquiry and the onus shall be on the person who claims the benefit after reconversion. To elaborate, he has to establish beyond a shadow of doubt that his forefathers belonged to the Scheduled Caste that comes within the Constitution (Scheduled Castes) Order, 1950 and he W.P.(C).22436/07 - : 37 :-
has been reconverted and his community has accepted him and taken him within its fold."
22. Thus the Apex Court in K.P.Manu's case (supra) has now categorically held that the view taken in pargraph 13 of the three Judge Bench rulings in S.Anbalagan's case reported in (1984) 2 SCC 112 is in consonance with the rulings of the Constitution Bench in Y.Mohan Rao's case supra reported in (1976) 3 SCC 411 and does not run counter to it and that Kailash Sonkar's case reported (1984) 2 SCC 91, para 34, has held that the said question did not arise therein and that therefore, Kailash Sonkar's case cannot be treated as a precedent for the purpose that revival of caste would encompass only the previous generation. However, the Apex Court in paragraph 37.2 of K.P.Manu's case (supra) has also observed that one may raise a question as to how one can find about the forefathers and there can be a false claim but that would be the subject matter of enquiry and that the principle of "definitive traceablility" may be applied during the inquiry and the onus shall be on the person who claims the benefit after reconversion and that he has to establish beyond a shadow of doubt that his forefathers belonged to the Sheduled Caste that comes within the Constitution W.P.(C).22436/07 - : 38 :-
(Scheduled Castes) Order, 1950 and that he has been reconverted to Hinduism and his community has accepted him and taken him within its fold, etc.
23. Coming to the facts of the instant case, it can be seen that there is no factual dispute at all on the following cruicial aspects. That the forefathers of the petitioner including and upto the petitioner's paternal great grandfather and paternal grandfather were members of the Hindu Sambava (SC community). In the year 1918, the paternal grandfather of the petitioner had voluntarily converted himself to Christianity and his family members were part of the Christian Sambava community. The father of the petitioner was also born and brought up as a Christian Sambava community.
He had married a Christian Sambava lady on 10.10.1987 in a Christian church. The petitioner's father later reconverted to Hinduism on 10.12.1987 by undergoing the Sudhi ceremony. Ext.P-5 sudhi certificate dated 10.12.1987 issued by the Arya Samaj and Ext.P-6 gazette notification dated 19.1.1978 would clearly show that the requisite formalities stipulated for conversion as per Ext.P-15 Government Circular dated 15.10.1987 and G.O.(Ms) No. 34/87/ SC/ST/DD dated 27.7.1987 referred to in Ext.P-15 have W.P.(C).22436/07 - : 39 :-
been strictly followed. The petitioner was born on 18.5.1989, which is more than 1= years after the aforestated conversion. Ext.P-7 certificate issued by the Kerala Sambava Sabha Society clearly shows that the said Society had accepted the petitioner's father as a member of the Hindu Sambava Community and that he was even a office bearer of the State Committee of the said organisation and that he continues to be an active member of the society, etc. Ext. P-8 report dated 9.5.1988 issued by the Village Officer, Peruvanthanam and the subsequent report as per Ext.P-9 dated 25.6.2001 issued by the Village Officer, Kanakkary, would clearly fortify all these aspects that the petitioner's father had voluntarily accepted Hinduism, after performing sudhi ceremony and has fulfilled the necessary requirements of Ext.P-15 Government Circular and that the Hindu Sambava community had accepted him as a member of that community and that the petitioner was born after the said conversion.
24. It is the specific case of the petitioner as can be seen from the impugned Ext.P16 as well as the averments in paragraph 8 of the counter affidavit of the respondents that he was born as Hindu Sambava and that the Hindu Sambava Community had W.P.(C).22436/07 - : 40 :-
accepted them as one among the said community. The respondents 1 and 3 do not have a case in Ext.P10 or the impugned Ext.P16 that the petitioner's father had not voluntarily accepted Hinduism or that conversion was in any way vitiated by fraud, mis-representation, coercion etc. So also, they do not have a case that thereafter the petitioner's father had at any point of time again renounced Hinduism and had got himself converted to Christian religion and that he is a member of the Christian religion etc. The said respondents do not have a case that the petitioner is not following Hindu religion or that he has accepted Christian religion. Equally, the respondents do not have a case that petitioner's father and the petitioner have not been accepted by Hindu Sambava Sabha as one among them. On the other hand, the clear materials on record at the instance of none other than the competent State officials concerned, like Ext.P8 report dated 9.5.1988 issued by the Village Officer, Peruvanthanam and Ext.P9 report dated 25.6.2001 issued by the Village Officer, Kanakkary Village would clearly show that the aforestated submissions of the petitioner are correct. It may be noted that Ext.P8 was issued by the Village Officer, Peruvanthanam, on 9.5.1988 at a time when the petitioner's father was residing at W.P.(C).22436/07 - : 41 :-
Peruvanthanam in Idukki District. Later, when the family shifted to Kanakkary village in Kottayam District, the Village Officer, Kanakkary has issued Ext.P9 on 25.6.2001 which is almost 13 years after the issuance of Ext.P8. The only objection raised by respondents 1 and 3 in Ext.P10 and Ext.P16 is that there is no scope for any reconversion since the petitioner's father was born as a Christian. This is not a facutal allegation or averment. The said submission is only an argument or contention of the respondents that there is no scope for conversion since the petitioner's father was born as a Christian. It is only on the basis of this contention that the respondents have further proceeded to say in Ext.P10 that they are belonging to Christian community. Such a contention is absolutely untenable and unsustainable. It is only on this premise that again it is reiterated in Ext.P10 that the petitioner was born to Christian parents. It is beyond dispute that the petitioner's mother belongs to Christian religion. But the clear fact of the matter is that the petitioner's father had converted to Hinduism atleast 1= years prior to the birth of the petitioner. Therefore, to contend that the petitioner was born to Christian parents is absolutely untenable and unsustainable. Therefore, the aforestated contentions in Ext.P10 W.P.(C).22436/07 - : 42 :-
that there was no scope for reconversion since the petitioner's father was born as a Christian and therefore, petitioner's father undoubtedly belonging to Christian community and that the petitioner was born to Christain parents, etc. are based on totally irrelevant and extraneous considerations. True that yet another contention is raised in Ext.P10 that the petitioner's parents or grand parents have not suffered any disabilities of Scheduled Caste Hindu Sambava Community by virtue of their earlier conversion to chiristianity. All the aforestated objections taken by the 3rd respondent in Ext.P10 are patently against the aforestated well settled legal principles laid down by the Apex Court in the case The Principal Guntur Medical College, Guntur & Others v. Y.Mohan Rao reported in (1976) 3 SCC 411, the three-Judge Bench ruling in C.M.Augmugam v. S.Rajgopal And Others reported in (1976) 1 SCC 863, S.Anbalagan v. B.Devarajan And Others (1984) 2 SCC 112 , Kailash Sonkar v. Smt. Maya Devi reported in 1984 (2) SCC 91 as well as the two-judges Bench rulings in Kodikunnil Suresh Alias J.Monian v. N.S.Saji Kumar and Others reported in (2011) 6 SCC 430 and K.P.Manu v. Chairman, Scrutiny Committee for Verificaton of Community Certificate reported in (2015) 4 SCC 1.
W.P.(C).22436/07 - : 43 :-
25. Now coming to the impugned Ext.P16 order, one of the main objections raised therein is that as the petitioner's father had earlier belonged to Sambava Christian community and had reconverted to Hinduism there was no scope for reconversion since he was born as a Christian, etc. This is the very same objection raised in Ext.P10 and it is irrelevant and unsustainable for the reasons stated earlier herein above. Another objection raised therein is that once a Hindu Scheduled Caste converts to a religion like Christianity, then he/she will loose the caste identity since Christian religion does not have a caste system and that neither the claimant nor their parents or grand parents have suffered any disability of Sambava Community etc and that they have all the advantageous status in their life by virtue of the parents' non-Scheduled Caste milieu and circumstances, etc. These grounds urged in Ext.P16 are also patently against the legal principes settled by the Constitution Bench and other rulings cited above. Moreover, the stand taken by the respondents in Exts.P10 and P16 is patently against the stand taken by the State Government in Ext.P15 Government Circular dated 15.12.1987 and the Government Order dated 27.7.1987, referred to therein. The learned Special Government Pleader has W.P.(C).22436/07 - : 44 :-
fairly submitted that the said Ext.P15 Government Circular and the Government Order referred to therein are still in force. Now in the light of these aspects, the first respondent proceeded in Ext.P16 to cancel the Scheduled Caste certificate granted to the petitioner and has further ordered that community of the petitioner should be treated as Backward Christian (BX) belonging to other eligible community (OEC). Nobody has a case that the petitioner has at any time accepted Christian religion. The petitioner was born to a Hindu father and he continued to be a Hindu. Therefore, it is not known as to what had prompted the first respondent to state in Ext.P16 that the petitioner's community is Backward Christian. Be that as it may, the aforestated aspects would clearly show that all the relevant aspects of the matter in the light of the aforestated rulings of the Apex Court as well as the norms laid down by none other than the State Government in Ext.P15 Government Circular and the Government Order referred to therein have been properly adverted to and complied with in the issuance of Exts.P8 and P9 and therefore, it is only to be held that the certificate issued as per Ext.P1, in terms of Exts.P8 and P9, is in compliance with the aforestated rulings of the Apex Court. Therefore, it is only to be W.P.(C).22436/07 - : 45 :-
held that the impugned order is liable to be interfered with.
26. The learned Special Government Pleader contended that at the time of issuance of Ext.P16 order dated 30.6.2007, the two Judge Bench Ruling of the Apex Court in (1996) 3 SCC 100 was not then held as per incuriam and moreover the decision of the Division Bench of this Court in M.F.A.No.55/2006 in K.P.Manu's case (supra) was also in force. The aforestated rulings of this Court in Chinnamma v. Secretary to Government [1990(1) KLT 62] and Madhu v. C.A.T. reported in 2000 (1) KLT SN 36 are also pointed out by the learned Special Govt. Pleader. Accordingly, it is contended that it is in the light of the legal principles laid down in rulings as in S.Swvigardoss v. Zonal Manager, F.C.I. reported in 1996 (3) SCC 100, the Division Bench judgment in MFA 55/2006 in K.P.Manu's case rulings as well as the decision in Chinnamma v.
Secretary to Government reported in 1990 (1) KLT 62 and Madhu v. Central Administratiave Tribunal reported in 2000 (1) KLT S.N.36 (See case No.41) that the first respondent had issued impugned Ext.P16 order. It may be noted that the ruling reported in S.Swvigaradoss v. Zonal Manager, F.C.I. reported in 1996 (3) SCC 100 has already been held as per incuriam by the Apex Court in W.P.(C).22436/07 - : 46 :-
K.P.Manu's case reported in 2015 (4) SCC 1. The Division Bench judgment in M.F.A. No.55/2006 has already been set aside and reversed by the Apex Court in the judgment in K.P.Manu's case reported in 2015 4 SCC (1). In the Division Bench ruling in Madhu v. Central Administrative Tribunal reported in 2000(1) KLT SN 36 (See case No.41) it has been held that persons born of Christian parents cannot claim to be a member of Scheduled Caste if his parents converted prior to his birth and ceased to be members of Scheduled Caste and on his subsequent conversion into a Scheduled Caste Community also will not entitle him to claim the benefits available to Scheduled Caste etc. Similar view has also been taken by this Court by a learned Single Judge in the aforestated ruling in Chinnamma v. Secretary to Government reported in 1990 (1) KLT
62. In view of the categorical ruling of the Apex Court in K.P.Manu's case (supra) that the ruling in S.Swvigaradoss v. Zonal Manager, F.C.I. reported in (1996) 3 SCC 100 has already been rendered per incuriam, it is only to be held that similar views taken as in the rulings reported in Madhu v. Central Administrative Tribunal reported in 2000 (1) KLT S.N.36 (See case No.41), and Chinnamma v. Secretaty to Government, reported in 1990 (1) KLT W.P.(C).22436/07 - : 47 :-
62, etc. need not be followed. Therefore, the contentions of the learned Special Government Pleader based on the rulings in 2000 (1) KLT SN. 36 (case No.41) and 1990 (1) KLT 62 are devoid of any substance. In the light of the aforestated decisions, it is only to be held that since Ext.P16 is liable to be interfered with, consequential Ext.P17 proceedings, will have no legs to stand. Accordingly, it is ordered that the impugned proceedings at Ext.P16 and Ext.P17 are set aside. Resultantly, it is only to be held that the admission granted to the petitioner to the Engineering Degree course pursuant to the interim orders dated 23.7.2007 and 30.8.2007 have been made correctly and the admission granted to the petitioner should be treated as regular for all purposes.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
al+ Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
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P.S. To Judge.