Madras High Court
N.S. Ziauddeen vs S. Ashok Kumar on 10 April, 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 10.04.2002
Coram:-
THE HONOURABLE MR. B. SUBHASHAN REDDY, CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE P.K. MISHRA
Writ Petition No.24733 of 2001
N.S. Ziauddeen ... Petitioner
Vs.
1. S. Ashok Kumar,
Principal Sessions Judge,
(residing at Tower Block),
Taylors Road, Kilpauk,
CHENNAI - 600 010.
2. The State of Tamil Nadu,
rep. by its Chief Secretary,
Fort St. George,
CHENNAI - 600 009.
3. The Registrar General,
High Court of Madras,
MADRAS - 600 104.
4. The Secretary,
Tamil Nadu Public Service Commission,
MADRAS - 600 002. ... Respondents
For Petitioner : Mr. A. Sirajudeen
For Respondent : Mr. G. Masilamani, S.C.,
for Mr. Vijayanarayanan
For Respondents 2 and 3 : Mr. N.R. Chandran,
Advocate General, assisted
by Mr. V. Raghupathy,
Government Pleader
For Respondent 4 : Mr. N. Paul Vasanthakumar.
Petition under Article 226 of Constitution of India to issue a Writ of
Quo Warranto as stated therein
: O R D E R
THE HON'BLE THE CHIEF JUSTICE This writ petition has been filed seeking a Writ of Quo Warranto against the first respondent, who is a District Judge, on the ground that he got into the post of District Judge as a Scheduled Caste even though he is not a Scheduled Caste and is a C tian.
2. The petitioner is a practising advocate and submits that a post of District Judge was notified in the year 1987, that the said post, according to roster, was reserved for Scheduled Caste, that the first respondent, even though belonging to C faith, had falsely claimed the status of Scheduled Caste, applied for the said post, got selected and then is performing the functions of District Judge, that he was not and is not a Scheduled Caste even now, that he is a Christian and is still practisin g Christian faith not only himself but also his wife, children and all other family members and that he should forthwith be interdicted from acting any further as a District Judge.
3. Counter affidavit has been filed by the first respondent. The second respondent Government has produced the records. The third respondent, Registrar General, High Court, has filed the counter affidavit. The fourth respondent, Tamil Nadu P vice Commission, is neither a necessary nor a proper party. The petitioner has filed a rejoinder to the counter of the first respondent.
4. The petitioner avers in the pleadings that the first respondent is still a Christian and is a Member of Parish of St. Antony's Church in Alavanthankulam, that he had been paying taxes levied by the Church, that he had been sending donations to the s d Church regularly and that during the last three months, he donated Rs.3,000.00, that he had married off his daughter to a Christian viz. Arul Rajendran, that his marriage with Ms. Ebi was performed according to Christian rites and that the first respon dent, his wife and children are still Christians professing Christian faith and visiting Churches. These facts are disputed by the first respondent. The first respondent counters that he performed Suddhi ceremony at Arya Samaj for re-conversion as Hind u on 11.4.1971, that pursuant thereto, a certificate was issued by Arya Samaj converting him as a Hindu on 5.8.1971, that application for gazette publication was made on 9.9.1971 regarding conversion from Christianity to Hinduism, that application was ma de on 13.10.1971 for gazette publication for change of Christian name S. Antony Samy to Hindu name S. Ashok Kumar and gazette publication for conversion to Hinduism was made on 15.5.1974. The first respondent also states that his marriage with Ms. Ebi w as performed on 9.9.1973 according to Hindu rites at his residence at Thenkulam Pudur village. He further submits that he contested for the Assembly Constituency of Ottapidaram, reserved for Scheduled Castes, during the year 1987, that he led procession on 30.10.1980 condemning rape of 17 Harijan women resulting in his arrest and prosecution and later on, he had also appeared before Ramamurthi Commission of Inquiry during 1980-81, that that Commission of Inquiry in its report in 1982, lauded the first respondent's efforts in leading the procession, that in Sessions Case No.50 of 1985, he was acquitted by judgment dated 9.12.1985, that Tahsildar has issued a community certificate dated 28.11.1980 and so also the Joint Commissioner of Land Administratio n on 23.12.1985 and that all these facts and documents show unequivocally that he had converted to Hinduism, that his conversion was accepted by his community and the society and that he never visits Churches but visits Temples and he is also donating mo nies to Hindu Temples.
5. The Government had issued a notification dated 16.12.1985 inviting applications for appointment by direct recruitment to the post of District Judges Grade II governed by the Tamil Nadu State Higher Judicial Service. Out of the three posts notified, ne was meant for Open Competition, one was for Scheduled Castes and another for Backward Class. Three other posts were also notified on 11.3.1986. The first respondent applied for selection to the post of District Judge pursuant to the notification dat ed 16.12.1985 opting as a reserved candidate as belonging to Scheduled Caste. He did not secure the mark in the roster meant for Open Competition. He got selected in the post reserved for Scheduled Castes. He was appointed to the said post by the Gove rnment by its notification in G.O. Ms.No.1129, Public (Spl. A) Department, dated 21.7.1987, pursuant to the recommendation made by the High Court upon interviewing the candidates. Ever since the posting as a District Judge, the first respondent had been functioning as such and he was selected to the post of the District Judge (Supertime Scale) with effect from 27.4.1989.
6. Mr. A. Sirajudeen, learned counsel for the petitioner, strenuously contends that once a person is born as a Christian, or as a non-Hindu for that matter, there cannot be any conversion to Hindu religion and even if there is a conversion to Hindu rel ion, it is a conversion to the Hindu religion and not to a caste and as such, no benefit of reservation is available. He also submits that even accepting the plea of the first respondent that he underwent Suddhi ceremony by Arya Samaj, since Arya Samaj does not believe in any caste, it can only be taken that the first respondent converted to Hinduism with no caste tag and as such, cannot be treated as Scheduled Caste. Learned counsel for the petitioner has filed W.P.M.P. No.6983 of 2002 on behalf of th e petitioner seeking a direction to C.B.C.I.D. for enquiry regarding the social status of the first respondent. In support of his argument, he placed reliance on the text of Hindu Law and Arya Samaj as also decisions rendered by the Supreme Court in KUMA RI MADHURI PATIL v. ADDL. COMMISSIONER, TRIBAL DEVELOPMENT (1994 AIR SCW 4116), VALSAMMA PAUL v. COCHIN UNIVERSITY (AIR 1996 S.C. 1011) and S.SWVIGARADOSS v. ZONAL MANAGER, F.C.I. (AIR 1996 S.C. 1182).
7. Countering the arguments of the petitioner, Mr. G. Masilamani, learned senior counsel appearing for the first respondent, submits that the grandparents and the parents of the first respondent were Hindus belonging to Scheduled Castes, but the parent of the first respondent had got converted to Christianity and even though the first respondent was born as a Christian, he got converted to Hinduism and referred to the certificate issued by the Arya Samaj, the gazette publication recording conversion, t he contest to Ottapidaram Assembly Constituency as a Scheduled Caste, leading of procession by the first respondent on 30.10.1980 agitating against the offence of rape of 17 Harijan women, report of Ramamurthi Commission, the judgment in Sessions Case No .50 of 1985 and the community certificate issued by the Tahsildar on 28.11.1980 and the Joint Commissioner of Land Administration dated 23.12.1985. Apart from the above, he has also referred to the documents of transfer dated 4.1.1927 and 3.9.1930 execu ted by the paternal grandmother of the first respondent representing as the first respondent's father's guardian to show that the grandparents and the father of the first respondent belonged to Pallan community of Scheduled Caste, and also a registered m ortgage deed dated 20.8.1942 executed by the first respondent's father to show that in between the years 1930 and 1942, the first respondent's father got converted to Christianity. The learned senior counsel laid stress on the points of the conversion o f the first respondent to Hinduism in view of Suddhi ceremony and the conversion certificate issued by the Arya Samaj in that regard and also the community certificate issued by the Tahsildar and the Joint Commissioner of Land Administration, the concern the first respondent shown when 17 Harijan women were raped and involving in criminal prosecution, contesting the same and getting acquittal and contesting the Assembly Constituency as a Scheduled Caste candidate, and contended that the above points amp ly prove that the first respondent had genuinely converted himself from Christianity to Hinduism and that on the date of notification inviting application for the selection to the post of District Judge, the first respondent was a Hindu and continued to be a Hindu even to this date and that the writ petition is also hit by laches. It is submitted by the learned senior counsel that apart from the conversion, the first respondent, whose ancestors belonged to Scheduled Caste of Hindu religion, had never lo st his status as a Hindu and continued to be a Hindu in spite of his father's conversion to Christianity and the first respondent's birth as a Christian. Mr. G. Masilamani, learned senior counsel, further submits that the Writ is for a Quo Warranto and its scope cannot be enlarged by calling for a report and then adjudicate on the basis of the said report, that neither the caste certificate of the first respondent nor his appointment as District Judge has been questioned and that so long as the caste c ertificate stands, the respondent cannot be ousted from service. The learned counsel has also submitted that the writ petition is barred by laches in view of long years of service put in by the first respondent. Mr. G. Masilamani, learned senior couns el, in support of his legal contentions, has cited the judgments of Supreme Court in PRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR v. Y. MOHAN RAO (AIR 1976 S.C. 1904), C.M. ARUMUGAM v. S. RAJAGOPAL AND OTHERS (1976 (1) S.C.C 863 = AIR 1976 S.C. 939), KAILA SH SONKAR v. SMT. MAYA DEVI (AIR 1984 S.C. 600) and S. ANBALAGAN v. B. DEVARAJAN (AIR 1984 S.C. 411).
8. Mr. N.R. Chandran, learned Advocate General, has submitted that pursuant to MADHURI PATIL's case (supra), the State Government has issued G.O. (2D) No.18, Adi Dravidar and Tribal Welfare (ADW.2) Department, dated 1.4.1997, constituting a Committee o high-ranking officers to make enquiry regarding the genuineness of the claims of social status as Scheduled Caste/Scheduled Tribe and that a direction be issued to the Government to cause an enquiry with regard to the social status of the first responden t by the Committee so constituted.
9. (a) In KUMARI MADHURI PATIL's case (supra), the question was as to whether Hindu-Koli can be considered as Mahadeo-Koli. The argument that Hindu-Koli was equivalent to Mahadeo-Koli, which was notified as Scheduled Tribe, was repelled. The cert e obtained in that regard was nullified. The Committee's report to the effect that the appellant's father cannot be treated as Mahadeo-Koli and consequently, the appellant cannot be a Scheduled Tribe, was upheld by the Supreme Court. The Supreme Court also laid down some guidelines regarding the verification of the caste whenever disputes are raised in that regard. The said case is not a case relating to conversion.
(b) VALSAMMA PAUL's case (supra), deals with a conversion but not like the instant one. In the said case, the appellant therein was a Syrian Catholic (forward class) having married a Latin Catholic (backward class - fishermen) and claiming status of h r husband, she was appointed as Lecturer in the University for the post reserved against the backward class. The matter ultimately was dealt with by the Full Bench of the Kerala High Court and it was held that even though the appellant became a backward class by being married to a backward class husband, she cannot claim the benefit of reservation. The said view was affirmed by the Supreme Court in Valsamma Paul's case, on appeal. It was held by the Supreme Court, "34.... Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15 (4) and 46, o r in appointment to an office or a post under the State under Article 16 (4). Therefore, when a member is transplanted into Dalits, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages , indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by a doption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15 (4) or 16 (4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution and would frustrate the benign constitutional policy under Articles 15 (4) and 16 (4) of the Constitution."
(c) In S. SWVIGARADOSS v. ZONAL MANAGER, F.C.I. (AIR 1996 S.C. 1182), arising out of the State of Tamil Nadu, the parents of the petitioner therein got already converted into Christian religion. He was selected in the vacancy reserved for Sched stes and on coming to know that he was not a Scheduled Caste but a Christian, a show cause notice was issued but the same challenged by filing a suit, but ultimately, it was held that as he was born a Christian, he continued to be a Christian not entitle d for the benefit of S.C. reservation. The contention of the petitioner was that even though he was born of Christian parents, with the consent of his parents, he got converted into Hinduism at the age of 14 and on such conversion, he became Adi Dravida and consequently entitled to the status of Scheduled Caste. But the said contention was repelled by the Supreme Court stating, "8.....In view of the admitted position that the petitioner was born of Christian parents and his parents also were converted prior to his birth and no longer remained to be Adi Dravida, a Scheduled Caste for the purpose of Tirunelveli District in Tamil Nadu as notified by the President, petitioner cannot claim to be a Scheduled Caste...."
To support his argument, the learned counsel for the petitioner lays stress on what is stated by the Supreme Court in VALSAMMA PAUL's case (supra) in paragraph 34, which has been extracted above, and also in SWVIGARADOSS's case (supra) in paragraph 8, e xtracted above. VALSAMMA PAUL's case did not involve any adjudication as to whether a non-Hindu can be converted to Hinduism. In that case, both the husband and wife were Christians but one was a Syrian Catholic belonging to Forward Class and another La tin Catholic belonging to backward class. Status and reservation as a backward class was claimed by the wife on the basis of the marriage and though status was recognised, reservation was negatived. What is stated in paragraph 34 in VALSAMMA PAUL's cas e (supra) have to be read only in the said context and cannot be construed as laying down any broad proposition that no non-Hindu can be converted as a Hindu. In SWAGIRADOSS's case (supra), there was no plea that the parents of the appellant therein had ever belonged to Scheduled Caste. The said case arose out of Second Appeal No.270 of 1984 on the file of this Court and we have perused the pleadings and judgment in the said case. It was found as a fact that there was no pleading that the appellant' s parents originally belonged to Adi Dravida Caste (Scheduled Caste). It was held that as a fact, no legally acceptable proof was adduced to accept the contention of the appellant that he converted himself as a Hindu. What is stated in paragraph 8, ext racted above in SWIGARADOSS's case (supra), has to be understood only in that context and not laying down any absolute proposition that a non-Hindu cannot be converted as a Hindu. In fact, the relevant proposition is found in the judgment of the Supreme Court in the cases of C.M. ARUMUGAM and MOHAN RAO (supra). In C.M. ARUMUGAM's case (supra), it was held that there is no prohibition for a person belonging to other religion to convert as a Hindu and the said view was affirmed by a Constitution Bench o f the Supreme Court in MOHAN RAO's case (supra). To the same effect are the judgments later pronounced by the Supreme Court in KAILASH SONKAR's case and ANBALAGAN's case (supra). Basing upon the legal principles stated by the Supreme Court in the above four decisions viz. C.M. ARUMUGAM, MOHAN RAO, KAILASH SONKAR and ANBALAGAN (supra), we hold that there is no bar for a non-Hindu to convert as a Hindu. Excepting the case of MOHAN RAO, all other cases relate to election in which both oral and documenta ry evidence were adduced before the Election Tribunal under the Representation of People Act, 1951 and basing upon the said evidence, it was held that there was conversion to Hinduism. Even in the case of MOHAN RAO (supra), it went by concession, as the State did not want to disturb the admission already made. The Supreme Court did not adjudicate on the merits of the material on record because of the above concession. Having laid down the legal principles, the Supreme Court held, "8. This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of hat caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the resu lt of this appeal, the admission of the respondent will not be disturbed."
10. We are not accepting the laches theory propounded by Mr.G.Masilamani, the learned senior counsel for the first respondent. In KASHINATH G. JALMI's case (supra), which is the latest and leading judgment on the question of laches, a distincti awn between the relief personal to the petitioner as compared to a class action and it was held that the class action, whose objective is to promote public interest and good administration, cannot be rejected as otherwise, it would amount to sanction for continuation of usurpation of office and perpetuation of an illegality. But we find it difficult to grant a Writ of Quo Warranto as sought for. A Writ of Quo Warranto pre-supposes that the holder of an office is a usurper or his appointment is contrar y to constitutional or statutory provisions or rules framed thereunder. We could have straightaway issued a Writ of Quo Warranto against the first respondent had we accepted the plea of the petitioner that the first respondent having born a Christian ca nnot be converted a Hindu and even if such conversion is permissible, the reservation benefit cannot be made available. But as already stated above, we are unable to accept the contention of Mr. A. Sirajudeen, learned counsel for the petitioner, that ei ther 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 pronouncement of the constitutional Bench o f 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 a Christian and later on, when he attained the age of 14, he was re-converted a 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 o e 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. Sudarsanaswami, AIR 1940 Mad 513, '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 Drivadar 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 con version 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 a Hindu pursuant to Sudhi ceremony and that he got married according to Hindu rites and even his daughter married a Hindu according t o 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 a Hindu by his community on re-conversion and that the authorities to issue the Caste Certificate have issued t he 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 their 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. There is no scope for enquiry in this writ petition and as rightly pointed out by the learned senior counsel for the first respondent, this writ petition for Quo Warranto does not have such scope for enquiry. We are also accepting the arguments of Mr. G. Masilamani that so long as the social status of the first respondent, as depicted by the caste certificate issued by the authorities, stands, there is a statutory presum ption under Section 114 of Indian Evidence Act that the first respondent is a Scheduled Caste and he cannot be called a usurper of the office. In fact, his caste certificates have not so far been questioned by anybody and as such, there was no occasion for any enquiry. This is clear from not only the records produced by the Government but also in the counter filed by the Registrar General of the High Court. We are also accepting the argument of the first respondent's counsel that the scope of the wri t petition cannot be extended and has to be confined only to the aspect of the apparent illegality. In this context, we feel it apt to refer to the nine-Bench judgment of the Supreme Court in NARESH v. STATE OF MAHARASHTRA (AIR 1967 S.C. 1) (at page 7 pa ragraph 16).
"We have referred to these respective arguments just to indicate the extent of the field which has been covered by learned counsel who assisted us in dealing with the present petitions. As this Court has frequently emphasised, in dealing with const ional matters, it is necessary that the decision of the Court should be confined to the narrow points which a particular proceeding raises before it. Often enough, in dealing with the very narrow point raised by a writ petition, wider arguments are urge d before the Court, but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems, not directly involved in any proceedings, s hould be avoided by courts in dealing with all matters brought before them, but this requirement becomes almost compulsive when the Court is dealing with constitutional matters. That is why we do not propose to deal with the larger issues raised by the learned counsel in the present proceedings, and we wish to confine our decision to the narrow points which these petitions raise."
11. In view of what is stated supra, this writ petition fails and is accordingly dismissed. No costs. Consequently, W.P.M.Ps. are closed.
(B.S.R., CJ) (P.K.M., J) bh/ 10.04.2002