Madras High Court
Mu.Aariffaa vs The Secretary To The Government on 9 April, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.04..2014
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)No.4209 of 2013
and
M.P.(MD).No.1 of 2013
MU.Aariffaa ... Petitioner
Vs.
1. The Secretary to the Government,
(P & AR Department),
Fort St. George,
Chennai - 600 009.
2. The Chairman,
Tamil Nadu Public Service Commission,
Greams Road,
Chennai-600 006.
3. The Secretary,
Tamil Nadu Public Service Commission,
Greams Road,
Chennai-600 006.
4. The Joint Secretary,
Tamil Nadu Public Service Commission,
Greams Road,
Chennai-600 006. ... Respondents
* * *
Prayer
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus directing the respondents to
appoint the petitioner as Station - Fire and Rescue Services (1096) Officer in
Advertisement No.18/2012 in CSSE-II (SFO).
* * *
!For Petitioner ... Mr.M.V.Venkataseshan
^For Respondents ... Mr.R.Anandaraj,
Government Advocate for R1
Ms.C.N.G.Niraimathi
for Mr.S.P.Maharajan,
Standing Counsel for RR 2 to 4
Mr.M.Ajmalkhan, Senior Counsel
appointed as AMICUS CURIAE
:ORDER
An interesting question that arises for consideration is as to whether the petitioner, who originally belonged to Hindu Nadar community, which is admittedly classified as Backward Class, on conversion to Islam as Labbai Muslim, can continue to claim the status of Backward Class ?
2. The facts leading to the filing of this writ petition are as follows:
(i) The petitioner belonged to Hindu Nadar Community, a Backward Class Community, as notified by the Tamil Nadu Government. The same is not in dispute, i.e., she was born in Hindu Nadar Community. Her name was Visalakshi at that time. She was a Graduate in B.A. Tamil with first class from the Madurai Kamarajar University. She got married to one Mr.Baskar. Unfortunately, she became widow and left with four minor children by late Baskar. In those circumstances, the petitioner converted to Islam as Labbai Muslim on 05.07.2006 and she changed her name M.S.Barveen Rifana.
(ii) Later, she married one Mr.Y.Mohamed Saathick in 2006. She got a Community Certificate bearing No.9359241 in Sl.No.138/2010 dated 11.01.2010, issued by the Zonal Deputy Tahsildar, Thoothukudi, that she, being a Labbai Muslim, belongs to Backward Class as per Sl.No.69 of G.O.Ms.No.28, Backward Class and Most Backward Class Welfare Department, dated 19.07.1994. Thereafter, she changed her name as MU.Aariffaa through necessary notification issued in the Tamil Nadu Government Gazette.
(iii) Pursuant to the notification issued by the Tamil Nadu Public Service Commission (for short "TNPSC") dated 21.07.2010 in Advertisement No.248 calling for applications for the post of Village Administrative Officer in Tamil Nadu Ministerial Service (2009-2010), she applied for the said post. That is, while she converted as Labbai Muslim in 2006, she applied for the post of Village Administrative Officer in 2010. There were 1576 vacancies. The last date for submission of applications was 20.08.2010. Based on her application, she also appeared for the written examination held on 20.02.2011. Her Register Number was 02432173.
(iv) When the result was published in the website of the TNPSC on 20.04.2012, the registration number of the petitioner was included in the list of rejected candidates. However, no reason was given for the rejection. Hence, she made a representation dated 20.05.2012 to the TNPSC requesting to inform the reason for rejection. The TNPSC issued an order dated 08.06.2012 stating that since she had converted from Hinduism to Islam religion, she was treated as "Others", i.e., forward community, and therefore, her application itself was rejected, since she did not pay the examination fee treating her as Backward Class.
(v) The petitioner questioned the same by filing W.P.(MD)No.9150 of 2012 seeking to quash the aforesaid order dated 08.06.2012 of TNPSC and to direct the respondents 2 to 4 therein to appoint her as Village Administrative Officer in Tuticorin District.
(vi) This Court by the interim order dated 06.07.2012 made in M.P.(MD)No.1 of 2012 in W.P.(MD)No.9150 of 2012 directed the respondents to reserve one post of Village Administrative Officer vacant, for the petitioner, in Tuticorin District, until further orders.
(vii) The petitioner also applied for the posts included in Combined Subordinate Services Examination (for short "CSSE") - I, pursuant to the notifications dated 30.12.2010 in 'the Hindu' and 08.02.2011 in 'Dhina Thanthi". She also appeared for the written examination. She was not called for the oral test. She made a representation dated 23.07.2012 requesting the reason for not calling her for the oral test/Interview. However, as in the earlier case, the TNPSC passed the order dated 27.07.2012 stating that she was considered as "Others", i.e., forward community, as per the clarification issued by the Tamil Nadu Government to consider the application of candidates, who converted from Hinduism to Islam religion, under "Others" category. In view of the same, she had not reached the zone of consideration for admission to Oral Test for the posts included in CSSE-I, as per the said order dated 27.07.2012.
(viii) She filed W.P.(MD)No.10859 of 2012 seeking to quash the order dated 27.07.2012 of the TNPSC and to issue a direction to the TNPSC to permit her to appear for interview for the posts included in CSSE-I.
(ix) Those two W.P.(MD)Nos.9150 and 10859 of 2012 were allowed by The Hon'ble Mr.Justice V.Ramasubramanian by a common order dated 10.01.2013 in the following words:
"6. .... the stand taken by the Service Commission is untenable for two reasons. a) Conversion of a person from one religious faith to another is a fundamental right and b) that if a person has genuinely converted himself from one faith to another, he cannot be deprived of the benefit that would go along with such conversion, unless the conversion itself is suspected to be a smoke screen to gain some other advantage."
(x) In addition to the above reasons, the another reason given by the learned Judge is as follows :
"8. An additional factor in favour of the petitioner is that the Community Certificate issued in favour of the petitioner is still intact. Therefore, it is not open to the Service Commission to ignore the Community Certificate and treat the petitioner as a candidate belonging to other communities."
(xi) Ultimately, the learned Judge allowed the writ petitions in the following terms :
"9. Therefore, these Writ Petitions are allowed and the Service Commission is directed to treat the petitioner as a candidate belonging to the backward community (Muslim) and pass appropriate orders, if she has secured the cut off marks for appointment. The respondents are directed to pass appropriate for both the posts to which she will be eligible, namely, one post under the previous selection and the another post in the next selection, within a period of four weeks from the date of receipt of a copy of this order. It will be open to the petitioner to choose any one of the posts, if she has secured necessary cut off marks for both the posts. ......."
(xii) Though one post of Village Administrative Officer was directed to be kept vacant by the interim order and ultimately, the writ petitions were allowed and a positive direction was issued in the common order dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012, the same are not complied with.
(xiii) In the meantime, the petitioner also applied for the posts included in CSSE-II, pursuant to the Notification No.18/2012 dated 02.05.2012 issued by the TNPSC. She passed in the written examination held on 04.08.2012. She was asked to appear for the Physical Efficiency Test held on 22.11.2012. As she was successful in both the written examination and physical efficiency test, TNPSC sent a Memorandum dated 04.01.2013 calling the petitioner to appear for oral test on 09.01.2013. Accordingly, she appeared for the oral test.
(xiv) No order is passed either selecting her or rejecting her candidature, after the oral test. Hence, she made a representation dated 29.01.2013 to the TNPSC to appoint her as Station Officer - Fire and Rescue Services under the Backward Class Muslim category.
(xv) Thereafter, she filed this W.P.(MD)No.4209 of 2013 praying for issuance of a Writ in the nature of Mandamus directing the respondents to appoint her as Station - Fire and Rescue Services (1096) Officer pursuant to Notification No.18/2012 in CSSE-II.
3. No counter-affidavit is filed by the respondents.
4. However, considering the importance of the issue raised in this case, I appointed Mr.M.Ajmal Khan, learned Senior Counsel as Amicus Curiae to assist the Court by the order dated 17.04.2013.
5. Heard both sides.
6.0. The learned Amicus Curiae made a detailed submissions and also produced a typed-set of papers running to 48 pages. The learned Amicus Curiae produced the judgments both, in favour of and against the petitioner. 6.1. He submitted that the Tamil Nadu Government enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Act 45 of 1994) (hereinafter referred to as "Act 45 of 1994") for providing reservation under Articles 15(4) and 16(4) of the Constitution of India and issued G.O.Ms.No.85, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008 under Section 3 of the Act 45 of 1994 listing the Backward Class communities. 6.2. The learned Amicus Curiae submitted that with reference to reservation, there is confusion relating to three things, namely, (i) Caste ;
(ii) Conversion from one religion to another religion ; and (iii) Marriage. 6.3. He submitted that based on marriage, no person can claim the benefit of reservation, that is, a person belonging to forward community, after marrying a person belonging to Backward Class (BC) / Most Backward Class (MBC) / Scheduled Caste (SC) cannot claim BC / MBC / SC status, based on marriage and he/she would continue to be a person belonging to forward community even after the marriage. Likewise, a person belonging to Backward Class, after marrying a person belonging to MBC / SC cannot claim MBC / SC status based on marriage and he/she would continue to be a person belonging to Backward Class, even after the marriage. It is the same case that a person belonging to Most Backward Class, after marrying a person belonging to Scheduled Caste cannot claim the SC status for the purpose of reservation, based on marriage and he/she would continue to be a person belonging to Most Backward Class even after the marriage. The learned Senior Counsel submitted that it is well-settled that no person can derive advantage of reservation under Articles 15(4) and 16(4) of the Constitution based on marriage.
6.4. (i) As far as the caste is concerned, he submitted that it is attached with the birth in the Hindu society. Therefore, no one can change the caste in the Hindu society, as it is attached to the birth.
(ii) The problem arises only when a person converts from Hinduism to other religion, namely, Christianity or Islam, etc.
(iii) As far as conversion from one religion to another is concerned, there is no bar as the same is based on one's faith and one can change his faith and it is his/her fundamental right, as provided under Article 25 of the Constitution and a person has liberty to have any faith and to change the faith to which he or she wishes to.
(iv) He submitted that though in the Western world there is no caste in the Christian religion, in India it is an admitted fact that the caste tag continues even after conversion to Christianity. That is, as an illustration, if a person belonging to Hindu Nadar Community converts to Christianity, the person becomes Christian Nadar ; if a person belonging to Hindu Shanar converts to Christianity, the person becomes Christian Shanar, likewise, if a person belonging to Hindu Gramani converts to Christianity, the person becomes Christian Gramani. It is a fact that a Hindu Chettiar / Hindu Nadar / Hindu Pillai / Hindu Vanniyar / Hindu Mudaliyar, etc., on conversion to Christianity, would become Christian Chettiar / Christian Nadar / Christian Pillai / Christian Vanniyar / Christian Mudaliyar, etc., i.e., the caste tag continues even after conversion.
(v) On conversion to Christianity, he further submitted, that the convert can claim the benefit of reservation as provided in G.O.Ms.No.85, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008.
(vi) The learned Senior Counsel took me to List II of G.O.Ms.No.85, dated 29.07.2008, which is the List of Backward Class Christians. The List II contains 5 items under Sl.Nos.1 to 5, which are extracted hereunder:
II. List of Backward Class Christians :
1.Converts to Christianity from Scheduled Castes irrespective of the generation of conversion for the purpose of reservation of seats in Educational institutions and for seats in Public Services.
2.C.S.I. formerly S.I.U.C. (in Kanyakumari District and Schencottah Taluk of Tirunelveli District)
3.Latin Catholics (in Kanyakumari District and Schencottah Taluk of Tirunelveli District)
4.Christian Nadar, Christian Shanar and Christian Gramani.
5.Converts to Christianity from any Hindu Backward Classes Community or Most Backward Classes Community (except the Converts to Christianity from Meenavar, Parvatharajakulam, Pattanavar, Sembadavar, Makkuvar or Mukayar and Paravar) or Denotified Communities.
He firstly, pointed out that the aforesaid list II makes it clear that no person belonging to a forward community, on conversion to Christianity, can claim the benefit of reservation, as he/she would continue to be a person belonging to forward community, even after conversion. Secondly, all other converts, either belonging to BC/MBC/SC while they were Hindus, could be treated only as BC, on conversion to Christianity. Thirdly, there is an exception to this in the case of Meenavar, Parvatharajakulam, Pattanavar, Sembadavar, Makkuvar or Mukayar and Paravar or Denotified Communities, who are classified as Most Backward Classes, when they are Hindus and on conversion also, they would continue to be the Most Backward Classes.
(vii) In this case, if the petitioner, who originally belonged to Hindu Nadar Community, opted to convert to Christianity, no problem would arise as she would be treated as Backward Class Christian, as per Sl.No.4 of List II of G.O.Ms.No.85, as she would become Christian Nadar, on conversion.
(viii) He submitted that on conversion to Islam, the convert could choose anyone of the sects in Islam, as he/she wishes, but the caste tag disappears on embracing Islam.
(ix) The learned Senior Counsel took me to List III of G.O.Ms.No.85 which contains the list of Backward Class Muslims and the list contains Sl.Nos.1 to 7, which are as follows:
III. List of Backward Classes Muslims:
1.Ansar
2.Dekkani Muslims
3.Dudekula
4.Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or Urudu)
5.Mapilla
6.Sheik
7.Syed
(x) He submitted that barring a person from a forward community converted to Islam, all other converts, irrespective of status as to whether they belong to BC/MBC/SC, would only become Backward Class Muslim, if they had chosen anyone of the sects mentioned in List III of G.O.Ms.No.85.
(xi) He further submitted that there are also other sects in Islam, which are not included in the List III of G.O.Ms.No.85 and if the convert had chosen anyone of those sects that are not included in List III, they would not be treated as Backward Class Muslim and the convert could not get the benefit of reservation. As an illustration, he submitted that there are sects called Bora Muslim and Ahmadi Muslim etc. in Muslim religion, which are not included in the List III of G.O.Ms.No.85 and the persons belonging to those sects cannot claim reservation, so also the converts.
(xii) It is submitted that the convert could choose any sect in Islam, but there is no Muslim called converted Muslim, while in the case of Christianity, the converts are distinctly recognised by caste.
(xiii) Now in this case, he brought to my notice that the petitioner, on conversion to Islam, had chosen the sect Labbai Muslim. It is absolutely the discretion of the petitioner, who got converted to Islam to choose the sect. The reason could be many. After conversion, the petitioner wanted to marry a person belonging to Labbai Muslim, that is not relevant, because the conversion is relevant and not the marriage. The fact remains that the petitioner is a Labbai Muslim, on conversion to Islam, even before marriage, which is classified as Backward Class. Suppose, if she remained unmarried without marrying a person belonging to Labbai Muslim, even then, she would be Labbai Muslim and she could claim the Backward Class Muslim status.
(xiv) He submitted that while no person can claim the benefit of reservation based on marriage, no such absolute bar in the case of conversion from one religion to another. He further submitted that whether convert is entitled to the benefit of reservation depends on the Statute and the Government Orders governing the same. However, he made it clear that a person belonging to forward community cannot get the benefit of reservation, based on conversion.
7. The learned Senior Counsel relied on the following decisions of this Court in support of his submissions :
(1)The Judgment of The Hon'ble Mr.Justice Vinod K.Sharma (as he then was) in M.Raja Mohammed Vs. Tamil Nadu Public Service Commission reported in 2011 (1) CWC 314 ;
(2)The Judgment of The Hon'ble Mr.Justice K.Ravichandra Baabu in D.Rahamathulla Vs. The Tamil Nadu Public Service Commission reported in 2012 (1) CWC 817; (3)The Common Order of The Hon'ble Mr.Justice V.Ramasubramanian dated 10.01.2013 in W.P.(MD) Nos.9150 and 10859 of 2012 [M.S.Barveen Rifana and Mrs.MU.Aariffaa V. The Secretary to Government (P & AR Department), Fort St. George, Chennai and Others (respectively)].
(4)The Common Order of The Hon'ble Mr.Justice V.Ramasubramanian dated 10.01.2013 in W.P.(MD)Nos.3745 and 7893 of 2012 [M.Younus V. The Chairman, Tamil Nadu Public Service Commissioner and another]
8. The learned Senior Counsel also submitted that since the community certificate issued to the petitioner that she belongs to Labbai sect is intact and it is issued by the competent authority, the same cannot be rejected by the TNPSC as held by the Full Bench of this Court in TNPSC V. R.Manikandan reported in (2011) 6 MLJ 609 and the TNPSC has no option but to give appointment to the petitioner based on the community certificate, and the TNPSC could, at the most, state that the appointment of the petitioner is subject to the verification of the genuineness of the community certificate. That is, the genuineness has to be gone into by the concerned competent authority and the TNPSC has no role on the same.
9.0. He also brought to my notice the judgments rendered by The Hon'ble Mr.Justice K.Chandru (as he then was) dated 30.01.2013 in W.P.No.29618 of 2012 (A.Fathima V. The Secretary to Government, Personnel and Administrative Reforms Department, Fort St. George, Chennai - 600009 and another) and dated 19.02.2013 in W.P.No.2972 of 2013 (S.Ruhaiyah Begum V. The Government of Tamil Nadu rep. by Secretary to Government, P & AR Department, Fort St. George, Chennai and Others), which are striking a different view to the judgments referred to in paragraph 7 of this judgment.
9.1. In Fathima's case, the petitioner was born in Hindu Sengunthar Community, which is classified as Backward Class in G.O.Ms.No.85. At that time, her name was Premavathy. She converted to Islam and married a person belonging to Labbai Muslim. She appeared for the examination for the post of Assistant conducted by the TNPSC. She was not treated as Backward Class Muslim. Hence, she filed the writ petition seeking a direction to treat her as Backward Class Muslim. The learned Judge has held in paragraph 6 of the order dated 30.01.2013 in Fathima's case that the petitioner cannot claim that she belongs to Labbai Muslim sect based on the marriage and cannot claim Backward Class status. The relevant portion of the Paragraph 6 of the order in Fathima's case is extracted hereunder :
"6. The petitioner, admittedly, was a Hindu before her marriage and born in Hindu Sengunthar Community. Therefore, she cannot transfer her community only because of her marriage. The issue as to whether by marriage, either inter-caste or inter-religion, the wife can become a member of the caste of her husband, came to be considered by the Hon'ble Supreme Court in Valsamma Paul Vs. Cochin University [(1996) 3 SCC 545). ....."
9.2. The learned Senior Counsel submitted that it is not known as to whether the community certificate issued in that case described the petitioner therein as Backward Class Muslim due to marriage. If it is so, the same could not be correct. The status of the petitioner therein should have been ascertained as to which sect she belongs to, on conversion to Islam and based on the same the status has to be determined.
9.3. The learned Senior Counsel, thereafter, took me to paragraph 10 of the judgment in Fathima's case and submitted that the learned Single Judge is not correct in stating as follows :
"10. Even from the list of Backward Class prescribed by TNPSC, it can be seen that in respect of the Schedule Castes, who converted into Christianity from Schedule Caste, were notified as Backward Class community under Serial No.131. In the absence of such converted Muslims automatically being including in the Backward Class list, the petitioner's prayer that she should be declared as Backward Class Muslim and consequently, be selected for the post, cannot be accepted by this Court and such claim has to be rejected out right."
9.4. He submitted that the learned Judge failed to take note of the fact that while in the case of Christianity, the caste tag continues and therefore, the convert also would be with the same caste tag, but in the case of Islam, the caste tag disappears and the person should be in anyone of the sects in Islam as the convert had chosen. Therefore, it was submitted that the reason given by the learned Judge that converted Muslim is not shown in the List III, while converted Christians are shown in List II and therefore, the convert cannot claim the status of Backward Class Muslim, has no merit. On the other hand, he submitted that this Court could follow the decision rendered by many other Judges that are referred to in paragraph 7 of this judgment and the relief as prayed for by the petitioner could be granted.
9.5. The learned Senior Counsel asserted that there is no Muslim called Converted Muslim. After conversion, the convert is a Muslim and there is no distinction between the Convert Muslim and the person, who was born a Muslim. That is why, G.O.Ms.No.85, also does not use the word "converted Muslim", according to him.
9.6. The learned Senior Counsel took me through the judgment of the Apex Court in Valsamma Paul Vs. Cochin University, [(1996) 3 SCC 545] relied on by the learned Judge in Fathima's case. Valsamma Paul originally belonged to Syrian Christian, which is a forward community. She married a Backward Class Christian. On marriage, she claimed reservation applicable to Backward Class Christian. The same was negatived by the Apex Court on the ground that though Valsamma Paul was accepted as a member in the family of her husband, which belongs to Backward Class, she would not be treated as a person belonging to Backward Class for the purpose of Articles 15(4) and 16(4) of the Constitution, since she had an advantageous start in her life till her marriage as she belonged to forward community. That is the law laid down by the Apex Court in that case.
9.7. In the second judgment of the Hon'ble Mr.Justice K.Chandru in Ruhaiyah Begum's case, the petitioner therein belonged to forward community in Hindu religion. Her name was Parvathi at that time. She converted to Islam and married a Dekkani Muslim. Based on her marriage, she claimed reservation applicable to Backward Class Muslim as her husband belongs to Backward Class Muslim. The learned Judge, following the judgment of the Apex Court in Valsamma Paul's case (cited supra), rejected the claim of the petitioner therein. 9.8. The learned Senior Counsel submitted that since the petitioner in Ruhaiyah Begum's case belonged to forward community, she could not claim the status of Backward Class, on marriage, either she converted to Christianity or Islam or any religion. That is, irrespective of the conversion either to Christianity or Islam etc., a person belonging to forward community cannot claim the benefit of reservation applicable to Backward Class, based on marriage or on conversion. Therefore, in the facts of that case, the petitioner therein has no right to claim reservation. He sought to distinguish these two judgments of The Hon'ble Mr.Justice K.Chandru stating that this Court could follow the aforesaid four judgments, referred to in paragraph 7 of this judgment, relied on by him in support of his submissions.
10.1. The learned counsel for the TNPSC made elaborate submissions and also produced a typed-set of papers running to 56 pages. 10.2. She submitted that the TNPSC treated the petitioner, being a converted Labbai Muslim, as "Others", as per the directions issued by the Tamil Nadu Government in Letters dated 04.02.2010 and 22.08.2012 to the effect that the converts from Hinduism to Islam shall be treated as "Others" and the TNPSC is bound by the directions issued by the Government, in this regard. Therefore, the petitioner cannot claim the status of Backward Class. 10.3. She further submitted that the Converted Ansar Muslims / Converted Dekkani Muslims / Converted Dudekula Muslims / Converted Labbais, Rowther, Marakayar Muslims / Converted Mapilla Muslims / Converted Sheik Muslims / Converted Syed Muslims are not included in the list III which classifies Backward Class Muslims. That is, according to her, the word "Converted" is absent in List III of G.O.Ms.No.85, while in List II, the word "Converted" is specifically mentioned in the case of Christians. According to her, the born Muslims as Ansar / Dekkani Muslims / Dudekula / Labbais, Rowther, Marakayar / Mapilla / Sheik / Syed alone are classified as Backward Muslims. 10.4. The learned Counsel for the TNPSC heavily relied on the judgment of The Hon'ble Mr.Justice K.Chandru in Ruhaiyah Begum's case, wherein, the learned Judge was not inclined to accept the judgment dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012 (filed by the petitioner in the present case) rendered by The Hon'ble Mr.Justice V.Ramasubramanian and the judgment of The Hon'ble Mr.Justice Vinod K.Sharma in M.Raja Mohammed's case. According to her, the views of the Hon'ble Mr.Justice K.Chandru is correct and the same may be followed by this Court and she particularly relied on paragraphs 10, 11 and 13 of the judgment in Ruhaiyah Begum's case, wherein, the learned Judge has held that the State shall undertake an exercise to decide as to whether the converted Muslims becomes Backward Muslims and in the absence of "converted Muslim" is included in the Backward Classes List, the converted Muslims cannot claim Backward Class status.
10.5. She has also brought to my notice that the Backward Class Commission in its Letter No.35/TNBCC/2013, dated 05.04.2013, while expressing its views on the interim direction issued by a Division Bench consisting of the Hon'ble Mr.Justice K.N.Basha (as he then was) and the Hon'ble Mr.Justice K.Ravichandra Baabu of this Court, approved the views of the Hon'ble Mr.Justice K.Chandru in Fathima's case and disapproved the directions issued by the Division Bench in W.P.(MD)No.1009 of 2013 and also disapproved the judgment of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case and of the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamathulla's case. In W.P.(MD)No.1009 of 2013, the Division Bench issued an interim direction to the TNPSC to treat the candidates, who are converted to Islam from Scheduled Caste, as persons belonging to Backward Class Muslims. Therefore, she fervently appealed to this Court to follow the views of the Backward Classes Commission, as expressed in its letter dated 05.04.2013.
10.6. She also brought to my notice, by circulation, since order in this writ petition was reserved on 30.04.2013, the order dated 13.06.2013 in W.P.No.6430 of 2013 (S.Yasmine V. The Secretary, Tamil Nadu Public Service Commission reported in 2013 (4) CTC 53) of the Hon'ble Mr.Justice V.Ramasubramanian, who rendered the common judgment dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012, and the present petitioner was the petitioner in those two writ petitions. She brought to my notice that the learned Judge changed his mind in paragraph 20 of the judgment in Yasmine's case in the following words :
"20. ..... The decision rendered by me in W.P.Nos.9150 and 10859 of 2012 dated 10.01.2013 does not appear to represent the correct position of law."
Therefore, the learned Judge held that the petitioner Yasmine in W.P.No.6430 of 2013, who was earlier a Christian Nadar belonged to Backward Class, on conversion to Islam, could be treated only as "Other community". She submitted that since the learned Judge changed his mind that was expressed in the common order dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012, wherein the present writ petitioner was the petitioner, this writ petition is liable to be rejected. It was further submitted that writ appeals were filed against the order dated 10.01.2013 in W.P.(MD)No.9150 and 10859 of 2012. However, it is admitted that the writ appeals are yet to be numbered.
10.7. The learned Counsel relied on certain paragraphs, namely, paragraphs 78 to 98 and 176 in Indra Sawhney Vs. Union of India reported in 1999 Supp (3) SCC 217.
10.8. She submitted that the List of Backward Classes in G.O.Ms.No.1564, Social Welfare Department, dated 30.07.1985 notified by the Tamil Nadu Government, was approved by the Apex Court in Indra Sawhney's case. According to her, the convert Labbai Muslim is not in the List of Backward Classes in G.O.Ms.No.1564, that was approved by the Apex Court in Indra Sawhney's case and therefore, the convert Labbai Muslim cannot seek Backward Class status for the purpose of reservation, based on List III in G.O.Ms.No.85 Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008, which also does not include converted Lebbai Muslims. 10.9. She also submitted that TNPSC addressed Letters to the District Collectors not to issue Backward Class Community Certificate to the converted Muslims as the Government issued directions in the letters dated 04.02.2010 and 22.08.2012 that the converted Muslims are to be treated as "Others".
10.10. She also circulated the order issued by the TNPSC selecting the petitioner for the post of Assistant by treating her as Others, and this selection was pursuant to her application for the posts included in CSSE-I, which is the subject matter in W.P.(MD)No.10859 of 2012.
11. Therefore, as I have stated, the interesting question has arisen for the consideration.
Caste System:
12. The Apex Court in paragraph 96 in Indra Sawhney Vs. Union of India reported in 1999 Supp (3) SCC 217, has held that caste evil originated from Hindu religion and it receives sanction from the Hindu religion itself and perpetuated all through.
13. It is also noted by the Apex Court in paragraph 8 in Kailash Sonkar Vs. Smt.Maya Devi reported in 1984 (2) SCC 91, that it was duly recognized by all schools of Hindu thought that birth alone would determine the caste and that it is well settled - whether one accepts it or not - that caste is the result of birth and not of choice volition.
14. Nobody would dispute that the pernicious caste system has been in vogue in India from time immemorial, particularly, that the caste system is pernicious because the same recognized that all people are not equal. The Hinduism cannot exist by itself without the existence of caste. There is no equality of status of persons belonging to various castes in the Indian society.
15. As noted in paragraph 17 of Indra Sawhney Vs. Union of India reported in 1999 Supp (3) SCC 217, "the Hindus who form the majority, in our country, are divided into four Varnas - namely, Brahmins, Kshatriyas, Vaishyas and lastly Shudras and having a four tier demarcated hierarchical caste system based on religion". One is higher than the other and at the top is the Brahmins and the lowest is the Shudras. In the same paragraph, it is stated that "Beyond the 4 Varnas, Hinduism recognises a community, by name Panchama (untouchables) though Shudras are recognised as being the lowest rung of the hierarchical race". Thus, the Panchama (Scheduled Caste), who were untouchables, are outcast and all the four Varnas were standing on their shoulders. Panchamas are referred to as depressed and oppressed caste.
16. The caste system is so cruel and the outcast, namely, "Panchama" (SC) were not permitted to enter the Hindu Temples. Even some sections of the Shudras, for example, Nadars, were not permitted to enter the Temples in the then Madras Presidency. In the Southern most part of Madras Presidency, the women-folk of Nadar community should not wear upper garments. There were agitations and uprising by Nadar community against such stigma.
17. In the then Madras Presidency, before independence, the major political parties were the Congress and the Justice Party. Both held hundreds and thousands of conferences to propagate the right of Harijans and Nadars to enter and worship in Hindu temples. But nobody dared to make an entry in Hindu temples and only it was propaganda, as stated above.
18. For the first time in the history, the same was taken as a movement at Vaikom in Kerala. It was then under the control of the Travancore Kingdom. The agitation held on 30.03.1924 was led by the great Reformist, E.V.Ramaswamy Naicker, popularly known as "Periyar" in Tamil Nadu. People like Kamaraj, Jeevanantham went along with Periyar and there was big agitation against the untouchability practiced at Vaikom. Periyar was imprisoned twice. Ultimately, the Travancore Kingdom was the first one to issue proclamation on 12.11.1936 permitting the Harijans to enter into the Temples. Reference is made to Periyar in para 19 of the judgment in Indra Sawhney's case, which is extracted hereunder:
"19. Recognizing and recalling the selfless and dedicated social service carried on by those great leaders from their birth to the last breath; the then Prime Minister while making his clarificatory statement regarding the implementation of the Mandal Commission's Report in the Rajya Sabha on August 9, 1990 paid the tributes in the following words:
"In fact this is the realisation of the dream of BHARAT RATNA Dr.B.R.Ambedkar, of the great PERIYAR Ramaswamy and Dr.Ram Manohar Lahia." "
19. When so many conferences propagating the right of Harijans and Nadars to enter the Temples by the major political parties in the Madras Presidency, did not really bring the temple entry, the above said proclamation made Thiru.Vaidyanatha Iyer, President of Tamil Nadu Harijan Seva Sang, a branch of All India Seva Sang, that was established by Mahatma Gandhi, to take Harijans of Tamil Nadu in two buses to visit the Temples in Trivandrum and the adjacent areas that came under the control of Travancore Kingdom.
20. Only thereafter, after visiting those places, the Temple entry was made in Meenakshi Amman Temple at Madurai by Shri.Vaidyanatha Iyer by taking 6 persons along with him on 8.7.1939. 5 among them are Scheduled Caste and one is Shanmuga Nadar. One among the five Scheduled Caste members was Shri.Late.Kakkan, who was later a Minister in the Congress Government in Tamil Nadu after independence.
21. Thereafter, the temple entries were made in other temples, one after another. In fact, a case was registered against Shri.Vaidyanatha Iyer by the British Government in this regard. It was set right at the intervention of Rajagopalachariar, popularly known as "Rajaji" by bringing a suitable legislation. All these facts are culled out from the book titled "The Life History of Late A.Vaidyanatha Iyer - Father of Harijans" written by Dr.P.S.Chandraprabhu-a history professor, and published by the Tamil Nadu Harijana Seva Sangam, Madurai.
22.1. At this juncture, it is relevant to extract the following passages from pages 95-97 from the Book titled "KUfd; tzf;fj;jpd; kWgf;fk;"
written by Thiru.Sigaram S.Senthilnathan, Advocate practising in Madras High Court to highlight the agitations of Nadar community seeking right to enter various temples in the Southern districts of the then Madras Presidency:
"Mya EiHt[g; nghuhl;lk; ,Ugjhk; Ehw;whz;oy; murpay; fl;rpfspd; gpd;dzpapy; tPWbfhz;L vGtjw;F Kd;ng. jkpHfj;jpd; bjd;khtl;l ehlhh;fs; j';fs; chpikia epiyehl;l fsj;jpy; ,w';fpdh;/ Mjpjpuhtplh;fistpl rK:f mikg;gpy; ehlhh;fs; xUgo nkyhdth;fs; vd;whYk;Tl. mth;fSk; eilKiwapy; Mjpjpuhtplh;fs; nghynt elj;jg;gl;lhh;fs;/ nfhapYf;Fs; EiHa mth;fSf;Fk; rK:fj;jil ,Ue;jJ/ Mjpjpuhtplh;fistpl bghUshjhu epiyapy; nkyhf ,Ue;ejjhy; mth;fshy; nghuhl Koe;jJ/ jd;bdGr;rpahf mr;rK:fk; nghuhoaJ/ gj;bjhd;gjhk; Ehw;whz;onyna mth;fs; fyff; bfhoia cah;j;jpdh;/ ehlhh;fs; nfhapypy; EiHa[k; chpiknfhUk; nghuhl;lk; Kjypy; mUg;g[f;nfhl;ilapy; Muk;gkhdJ/ j';fs; tPLfspy; jpUkzk; elf;Fk;nghJ. kzCh;tyk; nghft[k;. gy;yf;fpy; nghft[k; jh';fs; mDkjpf;fg;gl ntz;Lk; vd;whh;fs;/ Cuhh; mDkjp kWf;fnt ePjpkd;wj;ij ehodhh;fs;/ ePjpkd;wk; me;j chpikia ehlhh;fSf;F mspj;jJ/ Mdhy; me;jj; jPh;g;ig eilKiwg;gLj;j Koatpy;iy/ mjpfhu th;f;fKk; fhty;Jiwa[k; ehlhh;fSf;F ve;j cjtpiaa[k; bra;a Kd;tutpy;iy vd;gJ kl;Lk; my;y mth;fs; vjpuhf ,Ue;jhh;fs;/ 8/9/1860,y; kw;w rhjpapdh; jpuz;L ehlhh;fs;kPJ jhf;Fjy; bjhLj;jdh;/ mth;fSila tPPLfs; R{iwahlg;gl;ld/ njhl;l';fs; mHpf;fg;gl;ld/ bgUk; ,Hg;ig ehlhh;fs; re;jpf;f ntz;oapUe;jJ/ mUg;g[f; nfhl;ilapy; ehlhh;fs; fzprkhd vz;zpf;ifapy; ,Ue;jnghJk;. mth;fistpl TLjy; vz;zpf;ifapy; kw;w rhjpapdh; ,Ue;jhh;fs;/ vJt[k; bra;a ,ayhj epiyapy; ehlhh;fs; j';fSf;bfd;W nfhapy;fisf; fl;of; bfhz;L. g{rhhpfisa[k; epakpj;Jf; bfhz;ldh;/ 1872Mk; Mz;oy; jpUr;bre;Jhh; nfhapypy; ehlhh;fs; EiaH Kad;wdh;/ gpuhkzh;fSk; ntshsh;fSk; mth;fisj; jLj;jdh;/ mJ kl;Lk; my;y .; ehlhh;fs; kPJ tHf;Fk; nghlg;gl;lJ/ kJiu kPdhl;rp nfhapypy; K:f;fh ehlhh; vd;gth; rhkp Fk;gplg; nghdhh;/ mth; ehlhh; vd;gijr; rpy ngh; nkhg;gk; gpoj;Jtpl;ldh;/ mjd;gpwF moj;nj mtiuf; bfhd;W tpl;ldh;/ jPz;lhikf; bfhLik ve;j epiyapy; ,Ue;jJ vd;gjw;F ,e;j epfH;r;rpna Xh; cjhuzk; ! ,J ele;j Mz;L 1874/ ePjpkd;wj;ij mQqfpg; ghh;j;jhh;fs;/ kJiu kPdhl;rp nfhapypy; EiHa[k; chpik mth;fSf;F ,y;iy vd;W ifia tphpj;Jtpl;lJ ePjpkd;wk;/ gy Ch;fspYk; ,Jjhd; epiyik/ fGFkiyapy; nfhapy; tHpahf Ch;tyk; elj;j ehlhh;fs; vl;lag[uk; $kPd;jhhplk; mDkjp nfl;lhh;fs;/ mth;fSf;F mDkjp kWf;fg;gl;lJ/ mDkjp kWf;fg;gl;lnghJk; ehlhh;fs; Ch;tyk; vLj;jhh;fs;/ me;j Ch;tyj;ijj; jLf;f Kaw;rp ele;jJ/ mjpy; fytuk; Vw;gl;lJ/ vl;lag[uk; $kPd;jhhpd; gpuhkz mjpfhhp xUth; Fj;jpf; bfhy;yg;gl;lhh;/ 7 ehlhh;fSk; bfhy;yg;gl;lhh;fs; vd;whYk; ehlhh;fs; gpd; th';fhky; Ch;tyj;ij elj;jpf; fhl;odhh;fs;/ ,e;j btw;wp mth;fSf;Ff; fpl;oa Mz;L 1895/ fGFkiyapy; ehlhh;fs; bgw;w btw;wp mth;fSf;Fg; g[jpa ek;gpf;ifiaa[k; bjk;iga[k; je;jJ/ rptfhrpapy; cs;s tp!;tehjh; nfhapypy; EiHtJ vd;W jPh;khdpj;J vjph;g;iga[k; Kwpaoj;J nfhapYf;Fs; g[Fe;jhh;fs;/ ehlhh;fis kwth;fSk; ntshsh;fSk; vjph;j;jhh;fs;/ kpfg; bghpa fytuj;ij me;j rptfhrp re;jpj;jJ/ ehlhh; my;yhj midtUk; xd;W jpuz;lhh;fs;/ 6/6/1899Mk; Mz;L nfhukhd jhf;Fjy; ehlhh;fs; kPj bjhLf;fg;gl;lJ/ 25 ehlhh;fs; bfhy;yg;gl;lhh;fs;/ fytuj;jpy; <Lgl;l 1958 ngh; fhty;Jiwahy; ifJ bra;ag;gl;lhh;fs;/ ,e;j vz;zpf;if vt;tst[ nrjk; tpise;jpUf;Fk; vd;gijr; brhy;Yk;/ tHf;fpd; Kotpy; 552 ngUf;F jz;lid fpilj;jJ/ bfhiyf; Fw;wj;jpw;fhf 7 ngUf;Fj; Jhf;Fj; jz;lid fpilj;jJ/ jkpH;ehlod; fzprkhd mst[ Mjpjpuhtlh;fSk; ehlhh;fSk; Vd; fpwpj;Jt kjj;ij mile;jhh;fs; vd;gJ ,g;nghJ g[hpfpwJ my;yth ?"
The aforesaid inhuman treatment meted out to the Nadar Community in the past is particularly relevant for this case, as the petitioner belonged to Hindu Nadar Community before conversion.
22.2. At this juncture, it is relevant to extract the words of Dr.B.R.Ambedkar, the Architect of our Constitution, to explain the inhuman treatment of the Untouchables in the Hindu society from the book titled "Annihilation of Caste". The major reason for conversion to other religions from Hinduism is inhuman treatment, as protest. Paragraphs 2.8 to 2.12 and 19.5 to 19.7 from "Annihilation of Caste" are extracted hereunder :
"2.8 Under the rule of the Peshwas in the Maratha country, the Untouchable was not allowed to use the public streets if a Hindu was coming along, lest he should pollute the Hindu by his shadow. The Untouchable was required to have a black thread either on his wrist or around his neck, as a sign or a mark to prevent the Hindus from getting themselves polluted by his touch by mistake. In Poona, the capital of the Peshwa, the Untouchable was required to carry, strung from his waist, a broom to sweep away from behind himself the dust he trod on, lest a Hindu walking on the same dust should be polluted. In Poona, the Untouchable was required to carry an earthen pot hung around his neck wherever he went - for holding his spit, lest his spit falling on the earth should pollute a Hindu who might unknowingly happen to tread on it. 2.9. Let me take more recent facts. The tyranny pactised by the Hindus upon the Balais, an Untouchable community in Central India, will serve my purpose. You will find a report of this in the Times of India of 4th January 1928. The correspondent of the Times of India reported that high-caste Hindus - viz., Kalotas, Rajputs and Brahmins, including the Patels and Patwaris of the villages of Kanaria, Bicholi-Hapsi, Bicholi-Mardana, and about fifteen other villages in Indore district (of Indore State) - informed the Balais of their respective villages that if they wished to live among them, they must conform to the following rules :
1.Balais must not wear gold-lace-bordered pugrees.
2.They must not wear dhotis with coloured or fancy borders.
3.They must convey intimation of the death of any Hindu to relatives of the deceased - no matter how far away these relatives may be living.
4.In all Hindu marriages, Balais must play music before the procession and during the marriage.
5.Balai women must not wear gold or silver ornaments ; they must not wear fancy gowns or jackets.
6.Balai women must attend all cases of confinement of Hindu women.
7.Balais must render services without demanding remuneration, and must accept whatever a Hindu is pleased to give.
8.If the Balais do not agree to abide by these terms, they must clear out of the villages."
2.10. The Balais refused to comply; and the Hindu element proceeded against them. Balais were not allowed to get water from the village wells ; they were not allowed to let their cattle graze. Balais were prohibited from passing through land owned by a Hindu, so that if the field of a Balai was surrounded by fields owned by Hindus, the Balai could have no access to his own field. The Hindus also let their cattle graze down the fields of Balais. The Balais submitted petitions to the Darbar against these persecutions ; but as they could get no timely relief, and the oppression continued, hundreds of Balais with their wives and children were obliged to abandon their homes - in which their ancestors had lived for generations - and to migrate to adjoining states ; that is, to villages in Dhar, Dewas, Bagli, Bhopal, Gwalior and other states. What happened to them in their new homes may for the present be left out of our consideration.
2.11. The incident at Kavitha in Gujarat happened only last year. The Hindus of Kavitha ordered the Untouchables not to insist upon sending their children to the common village school maintained by the government. What sufferings the Untouchables of Kavitha had to undergo, for daring to exercise a civil right against the wishes of the Hindus, is too wll known to need detailed description. Another instance occurred in the village of Zanu, in the Ahmedabad district of Gujarat. In Novermber 1935 some Untouchable women of well-to-do families started fetching water in metal pots. The Hindus looked upon the use of metal pots by Untouchables as an affront to their dignity, and assaulted the Untouchable women for their impudence.
2.12. A most recent event is reported from the village of Chakward in Jaipur state. It seems from the reports that have appeared in the newspapers that an Untouchable of Chakwara who had returned from a pilgrimage had arranged to give a dinner to his fellow Untouchables of the village, as an act of religious piety. The host desired to treat the guests to a sumptuous meal, and the items served included ghee (butter) also. But while the assembly of Untouchables was engaged in partaking of the food, the Hindus in their hundreds, armed with lathis, rushed to the scene, despoiled the food, and belaboured the Untouchables who left the food, and ran for their lives. And why was this murderous assault committed on defenceless Untouchables? The reason given is that the Untouchable host was impudent enough to serve ghee, and his Untouchable guests were foolish enough to taste it. Ghee is undoubtedly a luxury for the rich. But no one would think that consumption of ghee was a mark of high social status. The Hindus of Chakwara thought otherwise, and in righteous indignation avenged themselves for the wrong done to them by the Untouchables, who insulted them by treating thee as an item of their food - which they ought to have known could not be theirs - consistently with the dignity of the Hindus. This means that an Untouchable must not use ghee, even if he can afford to buy it, since it is an act of arrogance towards the Hindus. This happened on or about the 1st of April 1936! ...........
19.5. Again it must be borne in mind that although there are castes among non-Hindus, as there are among Hindus, caste has not the same social significance for non-Hindus as it has for Hindus. Ask a Mahomedan or a Skih who he is. He tells you that he is a Mahomedan or a Sikh, as the case may be. Hes does not tell you his caste although he has one, and you are satisfied with his answer. When he tells you that he is a Muslim, you do not proceed to ask him whether he is a Shia or a Sunni ; Sheikh or Saiyad ; Kahtik or Pinjari. When he tells you he is a sikh, you do not ask him whether he is Jat or Rods ; Mazbi or Ramdasi. But you are not satisfieed if a person tells you that he is a Hindu. You feel bound to inquire into his caste. Why ? Because so essential is caste in the case of a Hindu, that without knowing it you do not feel sure what sort of a being he is.
19.6. That caste has not the same social significance among non-Hindus as it has among Hindus is clear, if you take into consideration the consequences which follow breach of caste. There may be castes among Sikhs and Mahomedans, but the Sikhs and the Mahomedans will not outcast a Sikh or a Mahomedan if he broke his caste. Indeed, the very idea of excommunication is foreign to the Sikhs and the Mahomedans. But with the Hindus the case is entirely different. A Hindu is sure to be outcasted if he broke caste. This shown the difference in the social significance of caste to Hindus and non-Hindus. This is the second point of difference.
19.7. But there is also a third and more important one. Caste among the non-Hindus has no religious consecration ; but among the Hindus most decidedly it has. Among the non-Hindus, caste is only a practice, not a sacred institution. They did not originate it. With them it is only a survival mechanism. They do not regard caste as a religious dogma. Religion compels the Hindus to treat isolation and segregation of castes as a virtue. Religion does not compel the non-Hindus to take the same attitude towards caste. If Hindus wish to break caste, their religion will come in their way. But it will not be so in the case of non-Hindus. It is, therefore, a dangerous delusion to take comfort in the mere existence of caste among non-Hindus, without caring to know what place caste occupies in their life and whether there are other "organic filaments" which subordinate the feeling of caste to the feeling of community. The sooner the Hindus are cured of this delusion, the better."
22.3. It is also relevant to extract the following excerpts from the Speech delivered by Dr.B.R.Ambedkar, on the occasion of Conversion to Buddhism on 15.10.1956 at Nagpur :
"We are fighting for honour and self-respect. We are getting ready to take the human being towards the perfection, for that we are ready for any sacrifice.
"Through a resolution at Yeole in 1935, we started the movement renoucing the Hindu Religion. Long back I had vowed, "Though I am born as a Hindu I will not die as a Hindu and I proved it yesterday. I am overjoyed, I am exalted. I feel I have been liberated for the hell."
....
We started a movement to infuse enthusiasm in our minds, then the education would be started. I began my education by wearing a loin-cloth. I could not get even water to drink in the School. I spent many days without water in the School. The same situation was maintained even in the Elphinston College of Bombay. If such is the situation, what else conditions will be crated. Only clerks will be produced.
....
By remaining in the Hindu religion nobody can prosper in any way. Because of the stratification in Hindu Religion, it is fact that higher varnas and castes are benefited. But, what about the others. The moment Brahman woman delivers a child her eyes are focused towards a post of High Court Judge where it is lying vacant. On the contrary, when our sweeper woman delivers a child, her eyes are focused on a post of sweeper where it is lying vacant. The Varna- System of Hindu religion is responsible for such a strange social structure. What improvement can take place from this ?"
23. Thus, the untouchables were treated inhumanely and they were not allowed to enter the temple. They were not allowed to walk in the streets of the Caste Hindus wearing footwear and they could not put the towels on the shoulder and they had to tie the same in the hip. In fact, they had to take their footwears in their hands or on their head, when the Caste Hindus were coming in the way or when they were crossing the streets of Caste Hindus. They were not allowed to ride the bicycles in the streets of the Caste Hindus. They were not allowed to enter the houses of the Caste Hindus and they were almost engaged as Coolies for agricultural operations etc. and since they could not enter the houses of the Caste Hindus, they were not employed as cooks or domestic helps in the houses of Caste Hindus. The poor persons belonging in the same caste were employed in the houses of rich Caste Hindus. The Untouchables resided in huts in segregated settlements far away from the residences of the Caste Hindus in the rural areas.
24. Even today, in some rural pockets, the Harijans are not allowed entry in the Hindu Temples and it is a reality in Tamil Nadu as the same are reported in Media. "Two Tumbler System" is still prevalent in the rural areas, that is, a separate tumbler is given to Scheduled Caste people for taking tea/water in tea shops. They are not allowed to vote in certain pockets. The latest in Tamil Nadu was the day light killing of 6 persons for having contested in panchayat election in Melavalavu near Madurai. The conviction of the accused persons to life imprisonment in that case was upheld by the Apex Court in Alagarsamy V. State rep. by DSP, reported in AIR 2010 SC 849. It is noted with pain by the Apex Court in Lata Singh V. State of U.P. and Another reported in (2006) 5 SCC 475 that "Honour Killings" take place for contracting marriage with the Scheduled Caste person. In fact, I had an occasion to deal with a matter in C.R.P.(PD)No.1789 of 2010 on 20.05.2010, wherein, the cars carrying the Statues of Jebamalai Matha and St.Antony were not permitted to go to the streets of Dalit Christians by the Vanniar Christians and I issued a direction to take the cars to the streets of Dalit Christians following the Division Bench judgment of this Court in K.Rajangam Vs. Superintendent of Police, Dindigul District and Others [2005-4-L.W. 200] and the judgment of the Apex Court in Lata Singh's case (cited supra). Even now, the Untouchables in the rural areas of Tamil Nadu mostly live in huts in the segregated settlements known as Cheri, far away from the residences of the Caste Hindus.
25. During the British rule in India, for the higher posts in the hierarchy of justice and administration, namely, Judges, Public Prosecutor, Officers like District Collectors etc., Britishers alone were appointed and even the upper caste persons, who were educated at that time, were not given appointment to those higher posts. Those upper caste persons were appointed in the posts subordinate to those posts. The British Officers, who were holding the high positions, had no inhibition in appointing the persons from Schedule Caste as Cooks and Domestic Helps at their residence/ Offices. But the upper caste people, who worked under them, had not allowed the Scheduled Caste people and Shudras to enter into their residence. The upper caste people, who saluted the Britishers, would not take water or tea offered by the Scheduled Caste domestic help. This situation coupled with the establishment of educational institutions and hospitals by the Christian Missionaries also made the suppressed people to switch over to Christianity.
26. The aforesaid inhuman treatment was the reason for conversion, particularly, for the Scheduled Caste and the Nadars to Christianity and other religions. Barring the Scheduled Caste Christians and Nadar Christians, the other Christians are marginal in Tamil Nadu even today. It was a rebellious action against the aforesaid inhuman treatment meted out to them. In the words of the Apex Court in paragraph 20 in Kailash Sonkar's case (1984 (2) SCC 91) "this appears to be particularly so in the case of members of the scheduled castes, who embrace other religions in their quest for liberation ....".
Whether the conversion from Hinduism to other religions erases caste mark ?
27. Though every other religion professes that there is no caste system in their religion, the reality is otherwise. The judicial decisions have taken note of the same. Hence, it is difficult to agree with the submission made by the learned Amicus Curiae that Islam is an exception to other religions and that the caste is totally erased on conversion to Islam. It is true that in some religions like Christianity, particularly, in South India and North-Eastern part of India, caste mark continues absolutely even after conversion and the degree may be less in Islam.
28. The Apex Court considered this question as to whether the caste mark gets erased on conversion to other religions from Hinduism in Kailash Sonkar Vs. Smt.Maya Devi reported in 1984 (2) SCC 91, wherein, the Apex Court referred to its earlier decision in Chaturbhuj Vithaldas Jasani V. Moreshwar Parashram reported in AIR 1954 SC 236 and G.M.Arumugham V. S.Rajagopal reported in (1976) 1 SCC 863.
28.1. The respondent in Kailash Sonkar's case was elected as a Member of the Legislative Assembly in the seat reserved for Scheduled Caste. The election of Tmt.Mayadevi was questioned in that case on the ground that she did not belong to Scheduled Caste and that she was a Scheduled Caste Christian. The respondent Smt.Maya Devi was born to Christian Scheduled Caste parents. She reconverted to Hinduism. The issue was as to whether on reconversion, her caste would revive. The Apex Court held that there would be revival of caste on reconversion and the revival of caste, on reconversion, does not even require admission of the members of the community of the caste to the original faith. 28.2. The question as to whether the caste mark erased on conversion to another religion from Hinduism is considered in paragraph 13 of Kailash Sonkar's case and that is extracted hereunder, which is an extract from Chaturbhuj Vithaldas Jasani V. Moreshwar Parashram reported in AIR 1954 SC 236:
"14. ...... If the old order is tolerant of the new faith and sees no reason to outcaste or ex-communicate the convert and the individual himself desires and intends to retain his old social and political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter....."
29. In the same judgment, in Kailash Sonkar Vs. Smt.Maya Devi reported in 1984 (2) SCC 91, in paragraph 18, the Apex Court also extracted the following passage from its earlier judgment in G.M.Arumugham V. S.Rajagopal reported in (1976) 1 SCC 863 as hereunder :
"18. .......... But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion.. . If the structure of the caste is such that its member must necessarily belong to Hindu religion, out of the caste, because no non- Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu- religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste......... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. ............. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians."
30. The Apex Court expressed its view in paragraph 28 of the judgment in Kailash Sonkar's case (cited supra) as hereunder:
"28. ..... (a) Where a person belonging to a scheduled caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new Order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion however does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North-Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new Order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste. ......."
31. Therefore, the conversion to Christianity or Islam does not automatically result in the erosion of the caste mark and particularly, it is categorically held in the above referred to decisions in G.M.Arumugham's case ([1976] 1 SCC 863) and Kailash Sonkar's case (1984 (2) SCC 91) rendered by the Apex Court that in South India and North-Eastern States it is peculiar that even after conversion to Christianity, the caste mark is continued.
32. In fact, the Apex Court in Kailash Sonkar's case (cited supra) expressed in paragraph 19 that the observations extracted from G.M.Arumugham's case (cited supra) are "weighty observations" supporting the view that after reconversion to Hindu religion, the caste will normally revive, since the caste mark continues even after conversion. Ultimately, the Apex Court upheld that the respondent Smt.Maya Devi therein, belonged to Scheduled Caste and therefore, her success in the election was upheld. The following passage from paragraph 30 is extracted hereunder:
"30. .... 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 of indignities insults and are looked down upon as slaves or vassals, meant merely to serve the members of the higher caste."
33. Therefore, there is no difficulty in cases, where there is no erosion of caste, after conversion, for revival of caste on reconversion, even after so many generations. In the case of Christian in South India and in North-Eastern States, where the caste tag continues even after conversion to Christianity and on reconversion to Hinduism, the caste would get revived. When a person is converted to Christianity or some other religion and the caste tag does not continue after conversion, 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. The Apex Court had a rider in those cases, where there is erosion of caste on conversion, as found in paragraph 34, that it may be difficult to apply the doctrine of eclipse to the revival of caste, if reconversion takes place after several generations.
34. The Nine-Judge Bench of the Apex Court in Indra Sawhney Vs. Union of India reported in 1992 Supp (3) SCC 217 also noted the aforesaid fact in paragraphs 84, 87, 94 and 96 and those paragraphs are extracted hereunder:
"84. It is said that the caste system is unknown to other communities such as Muslims, Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste system is not recognised and permitted. But in practice, it cannot be irrefutably asserted that Islam, Christianity, Sikhism are all completely immune from casteism.
87. Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.
94. Sikhism, no doubt, strictly believes in social equality and justice, denounces all sorts of social discrimination between man and man, strongly advocates the equality and parity in all humanity and propagates that caste, birth or colour cannot make one superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept of equality of man as the basis of egalitarian society. Notwithstanding Sikhism is violently against casteism, some converts to Sikhism from the Scheduled Castes still retain their caste label.
96. Though in India, caste evil originated from Hindu religion that evil has taken its root so deep in the social structure of all the Indian communities and spread its tentacles far and wide thereby leaving no community from being influenced by the caste factor. In other words, it cannot be authoritatively said that some of the communities belonging to any particular religion are absolutely free from casteism or at least from its shadow. The only difference being that the rigour of caste varies from religion to religion and from region to region. Of course, in some of the communities, the influence of the caste factor may be minimal. So far as the Hindu society is concerned, it is most distressing to note that it receives sanction from the Hindu religion itself and perpetuated all through."
35. Therefore, the Nine-Judge Bench of the Apex Court in Indra Sawhney's case (1992 Supp (3) SCC 217) has approved, in paragraph 87 extracted above, that in Southern India, the caste tag continues even after conversion to Christianity. This fact is evidence from the List II of G.O.Ms.No.85, dated 29.07.2008, which is the list of Backward Class Christians and the same is also extracted above.
36. The Apex Court has noted in paragraph 96 of the Indra Sawhney's case (cited supra) that the rigour of caste varies from religion to religion and from region to region on conversion and in some of the communities, the influence of caste factor may be minimal.
37. In the light of the aforesaid findings of the Apex Court, I am not in full agreement with the submission of the learned Amicus Curiae that while caste mark is continued in the case of Christianity, it is totally erased in Islam. However, the issue as to the caste mark is continued or not assumes much importance only in cases, where there is reconversion for the purpose of deciding the caste on such reconversion. In this case, we are concerned only with the conversion of the petitioner from Hindu Nadar community to Labbai Muslim in Islam.
Whether a person belonging to Hindu Backward Class would, on conversion to anyone of the 7 sects of Islam referred to in List III of G.O.Ms.No.85, get the benefit of Backward Class status ?
38. It is useful to again reproduce the List III of G.O.Ms.No.85, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008, issued under Section 3 of the Act 45 of 1994, which contains the list of Backward Class Muslims. The list is extracted hereunder:
III. List of Backward Classes Muslims:
1.Ansar
2.Dekkani Muslims
3.Dudekula
4.Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or Urudu)
5.Mapilla
6.Sheik
7.Syed
39. It was the submission of the learned Amicus Curiae that if a person belonging to Hindu BC/MBC/SC community converts to anyone of the above seven sects of the Islam, as mentioned in the List III of G.O.Ms.No.85, the person could be treated as Backward Class.
40.1. As submitted by the learned Amicus Curiae, (1) the Hon'ble Mr.Justice Vinod K. Sharma in Raja Mohammed's case reported in 2011 (1) CWC 314, (2) the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatulla's csae reported in 2012 (1) CWC 817, (3) the Hon'ble Mr.Justice V.Ramasubramanian in the common order dated 10.01.2013 in W.P.(MD)Nos.3745 and 7893 of 2012 (Younus's case), and (4) the Hon'ble Mr.Justice V.Ramasubramanian in the common order dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012 (the petitioner in this writ petition is the petitioner in both W.P.(MD)Nos.9150 and 10859 of 2012), supported the proposition that a person belonging to Hindu Backward Class, on conversion to Islam, would get the Backward Class status.
40.2. The common order dated 10.01.2013 in Younus's case of the Hon'ble Mr.Justice V.Ramasubramanian is also confirmed by a Division Bench of Hon'ble Mr.Justice N.Paul Vasanthakumar and Hon'ble Mr.Justice P.Devadass in the judgment in Chairman, TNPSC Vs. M.Younus reported in (2014) 1 MLJ 232. The Division Bench, while confirming the order, issued a direction to the TNPSC to give appointment to the petitioner therein giving liberty to the TNPSC to verify the genuineness of the community certificate as held by the Full Bench in TNPSC V. V.R.Manikandan, (2011) 6 MLJ 609, if the TNPSC had any doubt over the genuineness of the same.
40.3. In none of the aforesaid judgments, Act 45 of 1994 or G.O.Ms.No.85, dated 29.07.2008, issued under Section 3 of Act 45 of 1994 were taken note of.
41.(i) In Raja Mohammed's case reported in 2011 (1) CWC 314, the petitioner therein belonged to Scheduled Caste Pallan community. He got converted into Muslim Labbai, as found in paragraph 2 of the judgment. The Zonal Deputy Tahsildar, Tenkasi, issued the community certificate dated 02.09.2005 declaring him to be a member of Backward Class. It is also stated in paragraph 3 of the judgment that Raja Mohammed embraced Muslim Labbai community.
41.(ii) However, TNPSC treated him as "Others" and refused to treat him as a Member of the Backward Class. The petitioner therein, namely, Raja Mohammed, approached this Court by filing W.P.No.21864 of 2010. The writ petition was allowed by Hon'ble Mr.Justice Vinod K.Sharma and the impugned order was set aside and the respondents therein were directed to consider the case of the petitioner therein for the post of Veterinary Assistant Surgeon by treating him to be a member belonging to the Backward Class.
41.(iii) It is relevant to extract the following passages from paragraphs 8 and 9 of the order of Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case (2011 (1) CWC 314) :
8. ..... It is now well settled law that a person by conversion cannot take advantage of reservation, that is to say, that the person belonging to higher caste, by marriage or other means, cannot acquire status of Scheduled Caste or Backward Class. But, this principle cannot be applied to detriment of Scheduled Caste candidate to treat him as "Others" merely because of conversion. .....
9. In the present case, the petitioner cannot be denied the benefit of reservation. In case, he belonged to higher caste / general category as Hindu, then only, he could not claim the status of Backward Class by conversion to Islam. But in the case in hand, the petitioner, admittedly, belonged to Scheduled Caste. ....."
41.(iv) Hon'ble Mr.Justice Vinod K.Sharma has categorically held that the petitioner therein could not claim the benefit of reservation treating him as member of Backward Class on conversion to Labbai Muslim, if he belonged to forward community. The learned Judge held that since the petitioner therein belonged to SC, he could very well claim the benefit of reservation to treat him as Backward Class.
41. (v) Though W.A.No.1260 of 2012 was filed against the judgment of Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case, the writ appeal was dismissed without going into the merits since the order of the learned Single Judge was complied with. In these circumstances, the writ appeal was dismissed observing that the order of the Division Bench shall not be treated as a precedent.
42.(i) In D.Rahamatulla's case reported in 2012 (1) CWC 817, the petitioner therein was born in Christian Parayan community which was included in the list of Backward Class. The caste tag, namely, Parayan community continued after conversion to Christianity. Parayan community is a Scheduled Caste community. Scheduled Caste Christians belong to backard class and there is no dispute over the same. The petitioner therein converted to Labbai sect in Islam and claimed to be a member of the Backward Class community. But the same was denied to him by the TNPSC as in Raja Mohammed's case, referred to above. He approached this Court by filing W.P.(MD)No.3177 of 2011. Following the judgment of Hon'ble Mr.Justice Vinod K.Sharma, the writ petition was allowed by Hon'ble Mr.Justice K.Ravichandra Baabu.
42. (ii) Furthermore, while allowing the writ petition, Hon'ble Mr.Justice K.Ravichandra Baabu also referred to and extracted paragraph 5 of the Division Bench judgment of this Court in TNPSC Vs. Theivanaivalli and 2 others reported in 2010 (2) CWC 475 and paragraphs 23 and 28 of the Full Bench judgment of this Court in TNPSC rep. by its Secretary Vs. R.Manikandan and another, reported in 2011 (6) MLJ 609, and held that when the competent authority issued a community certificate that a person belongs to Backward Class Community, the TNPSC cannot treat the person as "Others".
43.(i) The Hon'ble Mr.Justice V.Ramasubramanian passed two orders on 10.01.2013, one in Younus's case (W.P.(MD)Nos.3745 and 7893 of 2012) and another in W.P.(MD)Nos.9150 and 10859 of 2012, wherein the present writ petitioner was the petitioner. Though two separate orders dated 10.01.2013 were passed, as stated above, those two orders were on identical terms and the reasons for allowing the writ petitions were also the same. The writ petitions were allowed and a positive direction was issued to the TNPSC to treat Younus and the petitioner in W.P.(MD)No.9150 and 10859 of 2012/the petitioner herein as the candidates belonging to Backward Community (Muslims).
43.(ii) However, the learned Judge gave independent reasons for issuing such a direction and consciously did not rely on the order of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case. I am of the view that the learned Judge gave independent reasons for allowing those writ petitions without following judgment of the Hon'ble Mr.Justice Vinod K.Sharma, since the Division Bench, while dismissing W.A.No.1260 of 2012 on 02.07.2012 questioning the order of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case stated that the order shall not be treated as a precedent.
43.(iii) At this juncture, it is relevant to extract the reasons given by the Hon'ble Mr.Justice V.Ramasubramanian in Younus's case and the common order dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012. In both the orders, paragraph 6 is one and the same and the relevant portion of the same is extracted hereunder:
"6. ..... But, the stand taken by the Service Commission is untenable for two reasons. a) Conversion of a person from one religious faith to another is a fundamental right and b) that if a person has genuinely converted himself from one faith to another, he cannot be deprived of the benefit that would go along with such conversion, unless the conversion itself is suspected to be a smoke screen to gain some other advantage."
43.(iv). At this juncture, it is relevant to note that though those writ petitions were allowed, I am of the view that as far as the second reason given by the learned Judge is concerned, it gives an impression that even if a person belonging to a Hindu forward community converts to Islam genuinely, he should be treated as Backward Class Muslim. But the same is contrary to the view expressed by the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case. However, no such difficulty has arisen in the case of Younus or in W.P.(MD)Nos.9150 and 10859 of 2012, wherein, this writ petitioner was the petitioner, since both did not belong to forward community.
43.(v). In fact, the order of the learned Single Judge in Younus's case was upheld by a Division Bench consisting of the Hon'ble Mr.Justice N.Paul Vasanthakumar and the Hon'ble Mr.Justice P.Devadass in W.A.(MD)Nos.459 and 460 of 2013, wherein, the Division Bench has taken note of the fact that Younus belonged to MBC community before conversion to Islam and confirmed the order of the learned Single Judge.
43.(vi). Therefore, in view of the judgment of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case, the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatulla's case and the orders of the Hon'ble Mr.Justice V.Ramasubramanian in Younus's case and W.P.(MD)Nos.9150 and 10859 of 2012, and also the judgment of the Division Bench in Chairman, TNPSC Vs. M.Younus reported in (2014) 1 MLJ 232, I am of the view that the petitioner is entitled to succeed in this writ petition.
44.(i) However, learned counsel for the TNPSC has circulated the judgment of the Hon'ble Mr.Justice V.Ramasubramanian in Yasmine V. The Secretary, TNPSC reported in 2013(4) CTC 53, wherein, in the last three lines in paragraph 20, it was held as hereunder:
"20. ..... The decision rendered by me in W.P.Nos.9150 and 10859 of 2012 dated 10.01.2013 does not appear to represent the correct position of law."
44.(ii). The order in Younus's case and the order dated 10.01.2013 in W.P.(MD)Nos.9150 and 10859 of 2012 are verbatim the same and on identical terms. The TNPSC was a party in both the proceedings. The Division Bench of the Hon'ble Mr.Justice N.Paul Vasanthakumar and the Hon'ble Mr.justice P.Devadass confirmed the order dated 10.01.2013 of the Hon'ble Mr.Justice V.Ramasubramanian in Younus's case on 04.06.2013 in W.A.(MD)Nos.459 and 460 of 2013 (Chairman, TNPSC V. M.Younus and Another reported in (2014) 1 MLJ 232). But the same was not brought to the notice of the learned Judge when the judgment in Yasmine's case was delivered on 13.06.2013.
44.(iii). The Hon'ble Mr.Justice V.Ramasubramanian has proceeded in paragraph 8 of the order in Yasmine's case that he followed the judgment of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case. paragraph 8 of the order in Yasmine's case is extracted hereunder:
"8. A similar issue came up before me in two writ petitions W.P.Nos.9150 and 10859 of 2012, while sitting in Madurai Bench of Madras High Court. In that case also, the writ petitioners earlier belonged to Hindu Nadar community and had got converted into Islam. Without going into the merits of the issues in detail, I allowed both the writ petitions by an order dated 10.1.2013, following a judgment rendered by Vinod K.Sharma, J. on 20.1.2011 in W.P.No.21864 of 2010. Apart from following the decision of Vinod K.Sharma, J., I pointed out one more thing, namely (i) that the right of a person to profess any religion, which includes a right to get converted, is a Fundamental Right; and
(ii) that when such conversion is genuine and not created as a make belief affair for the purpose of getting some benefit, the benefits that go along with conversion cannot be deprived."
44.(iv). I am afraid that whether it is factually correct. The learned Judge has stated in the orders dated 10.01.2013, both Younus's case and in W.P.(MD)Nos.9150 and 10859 of 2012, as follows :
"In similar circumstances, when a Scheduled Caste candidate converted himself into Islam and became backward community candidate and got backward community certificate, the Service Commission took an identical stand. But the same was rejected by THE HONOURABLE MR.JUSTICE VINOD K.SHARMA in M.Raja Mohammed Vs. Tamil Nadu Public Service Commission, in W.P.(MD)No.21864 of 2010, dated 20.01.2011. Though a Writ Appeal has been admitted against the said decision and the issue is left open, I have come to the above conclusion on my own, without following the same."
44.(v). But Hon'ble Mr.Justice V.Ramasubramanian framed two questions in Yasmine's case. The first question was "as to whether a person, upon conversion from one religion to another, would acquire the status of backwardness, as available to the others, who are born in that religion. The answer to the question was rendered in paragraph 10 of Yasmine's case and the same is extracted hereunder:
"10. ...... No person can acquire backwardness or most backwardness socially, upon conversion from one religion to another. Backwardness is determined by birth and not by conversion. Today, a person, who belongs to a community, which is a forward community, cannot get converted to Islam and suddenly become eligible to claim the benefit of reservation available to backward class (Muslim). If this is permitted, the yardstick for determining social backwardness will be left entirely to the will of the individual. Therefore, on the first question, there can be only one answer namely that by conversion, a person cannot acquire the social status that is normally available to persons already professing that religion."
44.(vi). In my view, firstly, the learned Judge did not take note of the Act 45 of 1994 and G.O.Ms.No.85 issued under Section 3 of the Act 45 of 1994 classifying the Backward Class Muslims in List III.
44.(vii). Secondly, there is no quarrel that a person belonging to a forward community cannot acquire the status of Backward Class Muslim, on conversion to Islam. But the learned Judge was of the view that even a person belonging to forward community, on conversion, would be treated as Backward Class, while expressing reason b) in Younus's case and W.P.(MD)No.9150 and 10859 of 2012, that was extracted above.
44.(viii). Now the learned Judge took a complete "U" turn that even a person belonging to Hindu SC/MBC/BC, on conversion genuinely to Islam and comes under anyone of the 7 sects, as notified in G.O.Ms.No.85, would not get the benefit of Backward Class Muslim status.
44.(ix). I am respectfully in disagreement with the view taken by the learned Judge, in view of the judgment of Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case and Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatullah's case and the judgment of the Division Bench of this Court in Chairman, TNPSC V. M.Younus and Another reported in (2014) 1 MLJ 232, wherein, the fact that Younus was the person belonging to MBC before conversion to Islam was taken note of by the Division Bench for granting him the status of Backward Class Muslim.
44.(x). The second question that was framed by Hon'ble Mr.Justice V.Ramasubramanian in Yasmine's case is as to whether a person professing a particular religion and belonging to a backward or most backward or scheduled caste community, would lose even that status merely by getting converted into another religion or not ?
Here again, the learned Judge did not take into account the Act 45 of 1994 and G.O.Ms.No.85, issued under Section 3 of the Act 45 of 1994, while answering the question No.2.
44.(xi). A Hindu SC/MBC/BC, on conversion to Islam, be treated only as a Backward Class Muslim as per List III of G.O.Ms.No.85. That is, a Hindu SC/MBC could get an inferior level in the case of reservation and they could not be treated as SC/MBC and they could be treated only as Backward Class Muslim.
But in the case of a Hindu SC/MBC/BC, on conversion to Christianity, the status could be decided based on List II of G.O.Ms.No.85. In both the cases of conversion to Islam or Christianity, a person belonging to forward community could not be treated as a Backward Class either under List II or List III in G.O.Ms.No.85, as pointed out by the learned Amicus Curiae, which was extracted in paragraph 6.4.(vi) of this judgment and the relevant portion of paragraph 6.4.(vi) of this judgment is again extracted hereunder due to the importance of the issue:
"He firstly, pointed out that the aforesaid list II makes it clear that no person belonging to a forward community, on conversion to Christianity, can claim the benefit of reservation, as he/she would continue to be a person belonging to forward community, even after conversion. Secondly, all other converts, either belonging to BC/MBC/SC while they were Hindus, could be treated only as BC, on conversion to Christianity. Thirdly, there is an exception to this in the case of Meenavar, Parvatharajakulam, Pattanavar, Sembadavar, Makkuvar or Mukayar and Paravar or Denotified Communities, who are classified as Most Backward Classes, when they are Hindus and on conversion also, they would continue to be the Most Backward Classes."
44.(xii). Therefore, the answer to Question No.2 should be that the status of a person, after conversion, for the purpose of reservation under Articles 15(4) and 16(4) of the Constitution of India, would depend on G.O.Ms.No.85 and G.O.Ms.No.85 is not under challenge.
44.(xiii). On the other hand, learned Judge has relied on the judgment of the Apex Court in Kailash Sonkar V. Smt.Mayadevi reported in 1984(2) SCC 91 and came to the conclusion that though the petitioner Yasmine belonged to Christian Nadar community which is a Backward Class, she, on conversion to Islam, would not be treated as Backward Class Muslim.
44.(xiv). I have also considered the Kailsah Sonkar's case in ex- tenso. The learned Judge has stated in paragraph 12 of the judgment in Yasmine's case that three questions arose in Kailash Sonkar's case. In this regard, paragraph 12 of Yasmines's case is extracted hereunder:
"12. Ms.C.N.G.Niraimathi, learned counsel for the respondents relied upon the decision fo the Supreme Court in Kailash sonkdar V. Mayadevi, 1984 (2) SCC
91. The questions that came up for consideration before the Supreme Court in that case were:
"(i) as to what happens if a member of the scheduled caste or scheduled tribe leaves his present fold, namely Hinduism and embraces Christianity or Islam ?
(ii) as to whether it would amount to a complete loss of the original caste, to which, he belonged for ever ? and
(iii) as to whether there would be revival of the original caste, if he or his children subsequently choose to abjure the new religion and get re-converted to the old religion ?"
44.(xv). In paragraph 16 of Yasmine's case, the learned Judge has recorded as follows :
"16. After analysing the import of all these decisions, the Supreme Court held in paragraph 27 that -
"the caste to which a Hindu belongs, is essentially determined by birth and that if a Hindu is converted to Christianity or another religion, which does not recognise caste, the conversion amounts to a loss of the said caste."
44.(xvi). According to the learned Judge, the Apex Court held that conversion from Hinduism to Christianity or other religions that do not recognize caste, the caste tag would not continue and also, according to the learned Judge, it is the view of the Apex Court, as held in paragraph 27 of the judgment in Kailash Sonkar's case. In fact paragraph 27 of the judgment in Kailash Sonkar's case shall be read along with paragraphs 28 to 30. I have extracted the relevant portions from paragraphs 28 to 30 of Kailash Sonkar's case in paragraphs 28 to 32 of this judgment and held that the Apex Court in Kailash Sonkar's case has noted and held that in South India and North-Eastern States, the caste tag is continued, on conversion to Christianity.
44.(xvii). Further, I have also extracted paragraphs 86, 87, 94 and 96 of the judgment of the Apex Court in Indra Sawhney's case expressing the similar view. Therefore, there is no absolute loss of caste in every case, on conversion, and the rigour of caste varies from religion to religion and from region to region and that is what the words used by the Apex Court and the same is extracted by me, as stated above.
44.(xviii). In paragraph 17 of Yasmine's case, paragraph 34 of Kailash Sonkar's case is extracted and I would like to extract paragraph 17 of Yasmine's case as hereunder :
"17. Despite clinching the issue as such in paragraph 27, the Supreme Court added something more in paragraph 34, which is as follows :
"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 life time, the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives."
44.(xix). The aforesaid paragraph 34 cannot be read in isolation. The same has to be read along with paragraph 18 of the judgment in Kailash Sonkar's case and a substantial portion of paragraph 18 of the judgment in Kailash Sonkar's case was extracted in paragraph 29 of this Judgment. Therefore, the Apex Court has held in Kailash Sonkar's case that in some cases, more particularly, in South India, the caste tag continues even after conversion to Christianity and in those cases, there is no difficulty in the revival of the caste on reconversion to Hinduism, since the caste tag never disappeared. Only in other cases, there is an eclipse, as stated in paragraph 34 of Kailash Sonkar's case. Therefore, the issue as to whether the caste tag continued or got eclipsed has to be gone into, in the facts and circumstances of each case.
44.(xx). As far as this case is concerned, no question of reconversion to Hinduism has arisen and also the petitioner herein is the first person to get converted to Labbai Muslim in Islam from her family. Therefore, it is not relevant as to whether the caste tag continues on conversion to Islam and the only thing that has to be seen is whether the petitioner belonged to BC/MBC/SC before conversion to Islam.
44.(xxi). In this case, the petitioner belonged to Hindu Nadar community, a Backward Class community, which is not in dispute. The learned counsel for the TNPSC also does not dispute about the genuineness of the conversion of the petitioner to Labbai Muslim. According to her, the "converted" Labbai Muslim is not used/included in the List III of G.O.Ms.No.85 and the List III covered only the persons born as Labbai Muslim. This is in fact doing violence to G.O.Ms.No.85. The only one thing that has to seen is as to whether the candidate has genuinely converted to anyone of the sects in List III of G.O.Ms.No.85. If it is so, there ends the matter.
44.(xxii). In fact, the Apex Court in Indra Sawhney's case held that the converted Labbai Muslim is also entitled to be treated as Backward Class and the said paragraphs are extracted hereunder:
"88. In Tamil Nadu, after persistent effort and agitations some of the sections of people belonging to some castes or communities converted either to Islam or Christianity have become successful in having them included in the list of 'backward classes' on par with their corresponding Hindu caste people.
89. The Government of Tamil Nadu on the basis of the report of the Second Backward Classes Commission issued a revised list of 'backward classes' by GO Ms. No. 1564 (Social Welfare Department) dated 30th July 1985 wherein the following castes and communities converted to Islam and Christianity are included for the purpose of reservation under Articles 15(4) and 16(4) of the Constitution.
Serial No. 26 Converts to Christianity from Scheduled Castes irrespective of the generation of conversion for the purpose of reservation of seats in Educational Institutions and for seats in Public Services.
98* Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or Urdu.) 100 ....
110 ....
115 ....
118 ....
136 ....
* Item No. 98 denotes Muslim community."
44.(xxiii). In view of the categorical pronouncement of the Apex Court in Indra Sawhney's case, more particularly, in paragraph 88, I have no hesitation to come to the conclusion that a person belonging to Hindu Backward Class community, on conversion to Islam, would get the benefit of Backward Class status, if the person is covered under List III of G.O.Ms.No.85.
45. The learned counsel for the TNPSC has relied on the paragraphs 78 to 98 and 176 of Indra Sawhney's case, but failed to take note that the paragraphs 88 and 89 of Indra Sawhney's case are in favour of the petitioner and the aforesaid paragraphs supported the orders of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case, the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatullah's case, and judgment of the Division Bench of the Hon'ble Mr.Justice N.Paul Vasanthakumar and the Hon'ble Mr.Justice P.Devadass in the Chairman, TNPSC VS. M.Younus reported in (2014) 1 MLJ 232 and disapproved the judgment of the Hon'ble Mr.Justice V.Ramasubramanian in Yasmine's case.
46.(i). The reliance placed by the learned counsel for TNPSC on the judgments of the Hon'ble Mr.Justice K.Chandru in Fathima's case and in Ruhaiyah Begum's case is also of no use. The learned Judge has considered the List III of G.O.Ms.No.85, but came to the conclusion that List III does not include the "converted Muslims" as there is an absence of the words "Converted Muslims". In contrast, the learned Judge noted that in List II converted Christians were included. The aforesaid conclusion of the learned Judge is, in my respectful view, strictly in conflict to paragraph 88 and 89 of the judgment of the Apex Court in Indra Sawhney's case, that was extracted above. Therefore, the conclusion of the learned Judge that the converted Muslims belong to seven sects mentioned in List III could not be treated as Backward Class Muslims is not correct.
46.(ii). The learned Judge has also relied on the judgment of the Apex Court in Valsamma Paul's case reported in (1996) 3 SCC 545. In my view, the judgment of Valsamma Paul's case has nothing to do with the present case, which is under consideration. Valsamma Paul's case is not a case relating to a person converted from one religion to another religion. On the other hand, Valsamma Paul, who was a Syrian Christian, a forward community, married a Backward Class Christian and based on the marriage, she claimed Backward Class status. The same was declined by the Full Bench of the Kerala High Court and the same was upheld by the Apex Court. The Apex Court accepted that though on marriage, the petitioner Valsamma Paul was accepted as the member of the family of the husband, who belonged to the Backward Class community, the same cannot make her to get the benefit of reservation under Articles 15(4) and 16(4) of the Constitution by treating her as Backward Class, since she had an advantageous start as a forward community woman in her life till her marriage. The relevant passage in paragraph 34 and paragraph 36 of Valsamma Paul's case are extracted hereunder:
"34. ........ A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be.
36. The recognition of the appellant as a member of the Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class. "
47. The three judgments, namely, (i) the judgment of the Division Bench of this Court in A.R.Gokulakrishnan Vs. T.N.Ramanathan, Secretary, Backward and Mostbackward Class Welfare Department and another reported in CDJ 2009 MHC 2172, (ii) the judgment of the Division Bench of Himachal Pradesh High Court in Smt.Manju V. State of H.P. Reported in AIR 2007 HP 74, and (iii) Unreported judgment of the Division Bench of Bombay High Court in Hemlata Milind Bacchav aka Kum.Hemlata Nivrutti Kakad Vs. State of Maharashtra, through its Secretary, Social Welfare Department, Mantralaya, Mumbai and others, (Civil W.P.No.8342 of 2006, dated 15.02.2008) relied on by the learned counsel for the TNPSC also would not render any assistance to her. In all these cases, the persons, who did not belong to Scheduled Caste/Scheduled Tribe, on marriage with a Schedule Caste/Scheduled Tribe person claimed SC/ST status and the same was rightly declined by the Courts based on the judgment of the Apex Court in Valsamma Paul's case.
48. In view of the aforesaid reasons, the reliance placed by the learned counsel for the TNPSC on the letter of the Tamil Nadu Backward Classes Commission has no basis, since the Commission simply endorsed the view of the Hon'ble Mr.Justice K.Chandru and rejected the views taken by the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case, the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatulla's case. I have already came to the conclusion that the judgment of the Hon'ble Mr.Justice K.Chandru is in contrary to paragraphs 88 and 89 of Indra Sawhney's case.
49. Paragraphs 88 and 89 of the judgment of the Apex Court in Indra Sawhney's case was not brought to the notice of the Hon'ble Mr.Justice K.Chandru. Had it been brought to the notice of the learned Judge, I am of the view that the learned Judge could not have come to such a conclusion. The Backward Classes Commission also did not take note of this. Therefore, I have no hesitation to come to the conclusion that the petitioner is entitled to be treated as Backward Class Muslim, on conversion from Hindu Nadar community to Islam as Labbai Muslim, in view of List III of G.O.Ms.No.85 and paragraphs 88 and 89 of the judgment of the Apex Court in Indra Sawhney's case.
Whether the TNPSC is correct in addressing the Collectors not to issue Backward Class community certificate to the converted Muslims covered under G.O.Ms.No.85 ?
50.(i). The learned counsel for TNPSC submitted that the TNPSC addressed letters to the District Collectors not to issue Backward Class community certificate to the converted Muslims as the Government issued Letters dated 04.02.2010 and 22.08.2012 that the converted Muslims are to be treated as Others. The Tamil Nadu Backward Classes Commission in the letter dated 05.04.2013 recommended to the State Government to take action against the revenue officials for issuing community certificate to the persons converted to Islam certifying that they belong to Backward Class Muslims.
50.(ii). While approving the judgment of the Hon'ble Mr.Justice K.Chandru in Fathima's case and disapproving the judgments of the Hon'ble Mr.Justice Vinod K.Sharma in Raja Mohammed's case, the Hon'ble Mr.Justice K.Ravichandra Baabu in Rahamatulla's case and the interim direction of the Division Bench of the Hon'ble Mr.Justice K.N.Basha and the Hon'ble Mr.Justice K.Ravichandra Baabu in W.P.(MD)No.1009 of 2013, the Tamil Nadu Backward Classes Commission came to the erroneous conclusion by terming the community certificate issued to the persons, who are converted to Islam, as false and fraudulent in paragraph 45 of its letter dated 05.04.2013. The Tamil Nadu Backward Classes Commission also disapproved the judgment of the Full Bench of this Court in TNPSC V. V.R.Manikandan, (2011) 6 MLJ 609, wherein, it is held that the TNPSC is bound by the community certificates issued by the competent authorities and the said judgment is followed by various Division Benches and Single Judges of this Court, day in and day out.
50.(iii). According to the Commission, no convert to Islam is entitled to get the community certificate treating him/her as Backward Class Muslim and such certificate to all converts are bogus, false and fraudulent. In my view, for the elaborate reasons stated above, the view expressed by the Commission has no basis and the same has to be rejected. In fact, the effect would result in the denial of community certificate to all the converts to Islam, though they are covered under the List III of G.O.Ms.No.85.
50.(iv). The contents of letter of the Backward Class Commission are contradictory in its terms. At one breath, it is rhetoric by shedding tears for not granting Scheduled Caste status to Scheduled Christian and Scheduled Muslims, while the same is granted to Scheduled Caste Hindus, Scheduled Caste Sikhs and Scheduled Caste Buddhists, but, the Commission expressed its views that the persons converted to Islam, including the persons belonging to Scheduled Caste, are not even entitled to Backward Class status.
50.(v). This is nothing but persecution of our Muslim brothers and therefore, it amounts to interfering with one's right guaranteed under Article 25 of the Constitution of India to change faith from one religion to another.
50.(vi). It is, in my view, akin to "untouchability" practiced on the Scheduled Caste. Therefore, I have no hesitation in directing the first respondent as well as the Principal Secretary, Backward Classes, Most Backward Classes and Minorities Welfare Department, Government of Tamil Nadu, to ignore the Letter No.35/TNBCC/2013, dated 05.04.2013 of the Tamil Nadu Backward Classes Commission. It is a different matter if in a particular case, it is found that the community certificate was obtained by fraud and in such a case action could be taken. But it is a different thing to direct to take action against the revenue officials for issuing certificate to all the converts to Islam, though they are covered under the List III of G.O.Ms.No.85. By no stretch of imagination, such a certificate would be termed as false or fraudulent certificate.
50.(vii). Further, denial of Backward Class community certificate to the converted Muslims amounts to deprieval of the fundamental rights guaranteed to them under Articles 15(4) and 16(4) of the Constitution.
51.(i) At this juncture, it is relevant to consider the judgment of the Apex Court in Valsamma Paul's case, wherein the issue as to what is false certificate was considered in detail. It is relevant to extract the question posed by the Apex Court in paragraph 10 of the judgment in Valsamma Paul's case as hereunder:
"10. Whether a candidate, by marriage, adoption or obtaining a false certificate of social status would be entitled to an identification as such member of the class for appointment to a post reserved under Article 14(4) or for admission in an educational institution under Article 15(4) ?"
51.(ii). In the above question, while including the claim for reservation based on marriage and adoption as bogus, conversion is not specifically included therein.
51.(iii). Various cases were dealt in Valsamma Paul's case while answering the aforesaid question. Those facts could be looked into and the same would throw light on the issue.
51.(iv). In paragraph 10 of Valsamma Paul's case, the Apex Court considered its earlier judgment in Kumari Madhuri Patil and Another V. Additional Commissioner, Tribal Development and ors. [(1994) 6 SCC 241. The appellants therein were born in a Hindu forward class family. They obtained a false certificate that they belonged to Scheduled Tribe and obtained admission in medical college. On finding that they belong to forward community, the admissions were cancelled and the writ petitions filed challenging the same were dismissed. When the issue came before the Apex Court, the Apex Court has held that it had not accorded to a member of forward class, by obtaining a false certificate, the status of a Scheduled Tribe and the admission given on the basis of false community certificate is unconstitutional.
51.(v). In paragraph 11 of Valsammal Paul's case, the Apex Court has referred to the judgment in Director of Tribal Welfare, Government of Andhra Pradesh V. Laveti Giri and Another, [(1995) 3 SCR 430]. The father of the respondent therein, who was a Government servant, obtained false community certificate and obtained admission in Engineering College. While the father was a Kapu, which is a forward class in Andhra Pradesh, a certificate was obtained as if he belonged to Konda Kapu, Scheduled Tribe. In the said circumstances, it was held that the false claim by fraud vitiated the community certificate.
51.(vi). The Apex Court in paragraph 12 of Valsamma Paul's case, dealt with the judgment of the Andhra Pradesh High Court in Andhra Holwa Society V. Union of India and Others, in W.P.No.17011 of 1984, dated 28.02.1986. In that case, the petitioner Society sought the Scheduled Tribe community certificate to the person belonging to Holva Community, a backward class, in Telangana Region of Andhra Pradesh, while Holuva is a Scheduled Tribe. The Andhra Pradesh High Court held that it was a clear case of seeking issuance of false certificate.
51.(vii). In the same paragraph, i.e., in paragraph 12 of Valsamma Paul's case, the Apex Court noted that a person belonging to Jangama community, which was classified as Backward Class, sought to obtain false certificate as Beda or Budaga Jangama, Scheduled Caste. It was held that they are not entitled to such certificate.
51.(viii). In paragraph 13 of Valsamma Paul's case, the Apex Court again dealt with the judgment of the Andhra Pradesh High Court in A.S.Sailaja V. Kurnool Medical College, Kurnool and Others, (AIR 1986 AP 209). In that case, the petitioner therein is the daughter of one A.S.Radhakrishna, an advocate of Cuddapah in Andhra Pradesh. While she appeared for Common Entrance Examination, she described herself to be daughter of natural father Radhakrishna. But in the application made in the subsequent year for admission to the medical course, she claimed that she was adopted by one Sivaramaiah, Shepard, a backward class in Andhra Pradesh. Therefore, it was held by the Andhra Pradesh High Court that though the petitioner became member of the backward class by adoption, she was not entitled to admission in medical college under Article 15(4) of the Constitution, since she did not undergo any sufferings or disadvantages, handicaps or ignominy to which the members of the backward class are subjected to.
51.(ix). The Apex Court in paragraph 14 of Valsamma Paul's case, referred to various judgments of the Karnataka High Court and has held that the Karnataka High Court has consistently held that on adoption, a person belonged to a forward class, by a backward class is not entitled to reservation under Article 15(4) of the Constitution.
51.(x). In paragraph 15 of Valsamma Paul's case, the Apex Court referred to the judgment in Smt.D.Neelima V. The Dean of P.G.Studies, A.P.Agricultural University, Hyderabad and Others, AIR 1993 AP 229. The appellant therein was born in Reddy Caste, which is a forward caste in Andhra Pradesh. She married to a person belonging to Scheduled Tribe (basket weaving community). Basedon the marriage, she sought admission in M.Sc., (Home Science) in Agricultural University as a Scheduled Tribe. She filed writ Petition seeking a direction for admission. The Andhra Pradesh High Court rejected the writ petition holding that she is not entitled to claim Scheduled Tribe status.
51.(xi). In the same paragraph of Valsamma Paul's case, the Apex Court also referred to the judgment of the Andhra Pradesh High Court in W.P.No.1313 of 1992. The petitioner therein was born in a Vysys community and she married a person from Bestha community (fishermen community). She applied for admission to Post Graduate Medical Course (D.C.H.) under the quota reserved for Backward Class - A Group. Her writ petition was allowed by a learned Single Judge. The diverse views were challenged before the Division Bench and the Division Bench held therein that though on marriage the girls become members of their husbands families snapping all their ties from parental home and acquire the status as a Scheduled Tribe or backward class, they are not entitled, by virtue of marriage, to the rights to reservation envisaged under Article 15(4) as applicable to Scheduled Tribe/Backward Class.
51.(xii). The Apex Court in the same paragraph 15 of Valsamma Paul's case referred to the judgment of the Delhi High Court in Urmila Ginda Vs. Union of India, AIR 1975 Delhi 115 and the judgment of the Bombay High Court in Mrs.Vaishali V. Union of India, (1978) 80 BLR 182 and held that the ladies belonging to the upper caste married to the Scheduled Caste men were not entitled to the reservation under Article 16(4).
51.(xiii). The Apex Court also noted in paragraph 15 of Valsamma Paul's case that in Khazan Singh V. Union of India, AIR 1980 Del 60, a Single Judge of Delhi High Court had held that a Jat boy, on adoption into a Scheduled Caste family, is entitled to the benefit of reservation under Article 16(4) of the Constitution. In paragraph 37 of the judgment in Valsamma Paul's case, it is categorically held that the judgment in Khazan Singh's case did not lay the law correctly.
52. Therefore, the aforesaid elaborate survey made by the Apex Court would make it clear that the community certificate issued by the Revenue Department to the converted Muslim as per the List III of G.O.Ms.No.85, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008, could not be termed as false or fraudulent or bogus certificate, particularly, in view of the categorical pronouncement of the Apex Court in paragraph 88 and 89 of the judgment in Indra Sawhney's case.
53. In the result,
(a) this writ petition is allowed and a direction is issued to the respondents to treat the petitioner as a candidate belonging to the Backward Class Muslim as mentioned in List III of G.O.Ms.No.85 and place her at the appropriate place in the seniority list meant for Backward Class Muslim for selection for the post of Station - Fire and Rescue Services - Officer (1096) and pass consequential selection order, if she is otherwise eligible. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
(b) It is made clear that it is open to the petitioner to continue in the present post of Assistant or to join in the post of Station - Fire and Rescue Services - Officer, if she has reached the zone of consideration as Backward Class Muslim. If she opts to continue in the post of Assistant, her selection shall be classified as a person belonging to Backward Class Muslim and she should be assigned at the appropriate place in the selection list accordingly.
(c) I am of the view that a general direction has to be issued, in the interest of justice, to the Principal Secretary, Backward Classes, Most Backward Classes and Minorities Welfare Department, and the Principal Secretary, Revenue Department, Government of Tamil Nadu, to issue necessary direction to the concerned competent authorities to issue Backward Class Community Certificate to the persons converted to Islam, as per G.O.Ms.No.85, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 29.07.2008.
54. This Court place on record its appreciation to Mr.M.Ajmal Khan, learned Senior Counsel, who assisted the Court as Amicus Curiae, for his valuable services.
gg To
1. The Secretary to the Government P & AR Department, Fort St. George, Chennai - 600 009.
2. The Chairman, Tamil Nadu Public Service Commission, Greams Road, Chennai-600 006.
3. The Secretary, Tamil Nadu Public Service Commission, Greams Road, Chennai-600 006.
4. The Joint Secretary, Tamil Nadu Public Service Commission, Greams Road, Chennai-600 006.
Copy to :
1. The Principal Secretary, Backward Classes, Most Backward Classes and Minorities Welfare Department, Government of Tamil Nadu, Fort St. George, Chennai - 600 009.
2. The Principal Secretary, Revenue Department, Government of Tamil Nadu, Fort St. George, Chennai - 600 009.