IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2008
CORAM
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.7320 of 2005
S.Thenmozhi .. Petitioner
-vs-
1. The Director of School Education
Government of Tamil Nadu
D.P.I.Campus, College Road
Chennai 600 006
2. The District Educational Officer
Thanjavur
3. The Secretary
Sir Sivaswami Ayyar Higher Secondary School
Thirukkattupalli 613 104
Thanjavur District .. Respondents
Petition under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the respondents herein, comprised in the impugned proceedings of the 2nd respondent herein in Rc.No.8745/B1/2002 dated 6.11.2002 and of the 1st respondent in Rc.No.84403/D1(2)/03 dated 20.9.2004, rejecting approval of the petitioner's appointment as a Secondary Grade Assistant in the 3rd respondent-school, effective from 10.9.2002, quash both the impugned orders as illegal and unconstitutional, and consequently directing the respondents 1 & 2 to approve the petitioner's appointment as such together with all service and monetary benefits effective from 10.9.2002.
For Petitioner :: Mr.G.Thangavel
For Respondents :: Mr.A.Suresh
Government Advocate (Edn.)
for R1 & R2
ORDER
The petitioner is aggrieved against the order of the second respondent in Rc.No.8745/B1/2002 dated 6.11.2002 and of the first respondent in Rc.No.84403/D1(2)/03 dated 20.9.2004, declining to approve the appointment of the petitioner as Secondary Grade Assistant in the third respondent-school with effect from 10.9.2002. While seeking to quash both the impugned orders, the petitioner seeks for a direction to the respondents 1 & 2 to approve her appointment with all service and monetary benefits with effect from 10.9.2002.
2. The brief facts which are required to be stated are that the petitioner claims herself to belong to Adi Dravida community since her father belonged to the said community, namely, Hindu Parayan community, by birth, though subsequently he got converted to Christianity by religion. The petitioner claims that after her birth, she was named as S.Helen Casimir and that she got herself converted back to Hindu community through Arya Samaj with effect from 11.7.99 and also got her name changed as “S.Thenmozhi”. According to her, after her conversion to Hindu community, she also got the community certificate from the Tahsildar, Thanjavur in proceedings D.Dis.24/31/99 dated 31.12.99, which bears the serial no.56 of the said office with the Community Certificate No.9805055. The petitioner would therefore claim that by virtue of her present community status, namely, Hindu Parayan, which is a Scheduled Caste, she applied for the post of Secondary Grade Assistant in the third respondent-school and she was also issued with the order of appointment dated 26.3.2002. She was stated to have been subsequently sent for Child Psychology Training by the Chief Educational Officer, Thanjavur and after completion of her training, she was also issued with the Certificate dated 9.9.2002. Thereafter, her pay scale was stated to have been fixed by the proceedings in Rc.No.123 dated 10.9.2002 in the pay scale of Rs.4500-125-7000 plus other allowances admissible to a Secondary Grade Assistant. She is stated to have been continuing in the post of Secondary Grade Assistant eversince 26.3.2002 in the third respondent-school and that since her appointment came to be made through employment exchange and she satisfied all the requirements, she was under the impression that her appointment would be duly approved by the respondents 1 & 2. According to her, when the third respondent by their letter dated 17.9.2002 approached the second respondent for approval of her appointment, the same was rejected by the second respondent in his proceedings dated 6.11.2002 and that the appeal preferred by the third respondent-school before the first respondent was also rejected by the impugned order dated 20.9.2004. Aggrieved against the same, the petitioner has come forward with the present writ petition.
3. Assailing the orders of the respondents 1 & 2, Mr.Thangavel, learned counsel for the petitioner placed reliance upon a Division Bench decision in Prof.I.Elangovan v. State of Tamil Nadu rep.by the Chief Secretary to Government, Chennai and another reported in 2007 (3) MLJ 209. In the said Division Bench decision, a challenge was made to a Letter No.81 issued by the Adi Dravidar and Tribal Welfare Department dated 19.9.2000, in which certain guidelines were issued by the State Government in respect of conferment of the benefit of reservation for Scheduled Castes on conversion from Christianity to Hinduism. The Division Bench after referring to the decisions of the Hon’ble Supreme Court in C.M.Arumugam v. S.Rajagopal and others, (1976) 1 SCC 863, a Constitution Bench decision in Guntur Medical College, Guntur v. Y.Mohan Rao, AIR 1976 SC 1904 and the decision in S.Swvigaradoss v. Zonal Manager, FCI, (1996) 3 SCC 100, held as under in paragraph-14:
“…..It should be brought to their notice that the Supreme Court in the case of Guntur Medical College, Guntur and others v. Mohan Rao (supra) observed that “there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste. Paragraph-7 of the said judgment, as quoted above, should also be brought to the notice of the authority for proper appreciation. Giving reference to such judgments, the Secretary, instead of forming any opinion without looking into the relevant facts of a claimant, should leave it open to the concerned authority to determine any individual case on its own merit.”
So holding, the Division Bench set aside the clarification as given in sub-paragraph to paragraph-2 of the letter dated 19.9.2000 issued by the Secretary to Government, Adi Dravida and Tribal Welfare Department and remitted the case to the authority concerned with a direction to issue a fresh clarification by giving reference to the other judgments rendered by the Supreme Court as discussed in the said Division Bench decision by fixing a time limit of two months. The rest of the part in the letter dated 19.9.2000 was not interfered with.
4. When a reference is made to the decisions of the Hon’ble Supreme Court in Guntur Medical College case (supra) and in Swvigaradoss case (supra), it is to be seen that in both the above said cases, the parents of the applicants who originally belonged to Hindu Scheduled Caste community got converted to Christianity and after such conversion, the applicants were born. Thereafter, the respective applicants claimed that they got converted back to Hinduism and claimed the community status of a Scheduled Caste to which their parents originally belonged. Dealing with the said situation, in the Guntur Medical College case, the Hon’ble Supreme Court held that “on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.” Therefore, the relevant criteria to be followed in such cases would be for a person who claims to have got converted into Hindu fold, it is for the person concerned to establish that such conversion was well accepted by the Hindu brethren without any hesitation and that such conversion to Hinduism was real and bona fide. Consequently, when such a claim is made by the person concerned, it will be incumbent upon the authorities who deal with such cases to examine such factors placed before them in an unbiased manner and make a thorough search based on the materials placed before them and in the event of satisfactory proof being made before them, they should not hesitate to accept such a status claimed by the person concerned and grant appropriate relief. Therefore, on the one hand, while it is the responsibility of the person concerned who claims such conversion to Hinduism to establish to the satisfaction of the authorities about such conversion having taken place, the authorities concerned should consider such a claim dispassionately and render a finding as regards such claim without any bias and pass appropriate orders.
5. Keeping the above stated legal position in mind, when the case on hand is examined, I find that the petitioner, who was born to Hindu parents by virtue of their earlier conversion from Scheduled Caste to Christianity, claims to have reconverted to Hinduism through Arya Samaj, Thanjavur as disclosed in the certificate of conversion to Hinduism issued by the said institution on 11.7.99. Among other persons, the name of the petitioner, which was originally mentioned as Helen Casimir, D/o Santhanam, was stated to have been renamed as “S.Thenmozhi” after conversion. Thereafter, the petitioner is also stated to have issued a publication in the Tamil Nadu Government Gazette dated 8.9.99 published in Part-VI Section-4 stating that she got reconverted to Hinduism with the changed name of S.Thenmozhi on 11.7.99. Subsequently, by proceedings dated 31.12.99, the Tahsildar, Thanjavur has stated that after conversion, the petitioner was accepted by the Hindu Adi Dravida community people as belonging to their sect. A community certificate has also been issued by the Tahsildar, Thanjavur certifying that the petitioner belongs to Hindu Parayan community, a Scheduled Caste on 31.12.99. It is one thing to say whether the Tahsildar was competent to issue the community certificate in respect of a Scheduled Caste after 11.11.89. De hors the said certificate, the authorities have to examine the claim of the petitioner.
6. The third respondent-school issued the order of appointment dated 26.3.2002 appointing the petitioner as Secondary Grade Assistant in the vacancy reserved for Scheduled Castes subject to the approval to be granted by the respondents 1 & 2. In the impugned order of the second respondent dated 6.11.2002, by relying upon the communication of the Adi Dravidar and Tribal Welfare Department dated 19.9.2000, he has rejected the approval sought for by the third respondent. No other ground was referred to in the said order for rejecting the approval. The third respondent approached the first respondent in their appeal dated 4.12.2003 setting out the various details as regards the status of the petitioner and sought for the approval of the appointment of the petitioner. However, by the impugned order dated 20.9.2004, the first respondent also rejected the approval solely based on the communication of the Adi Dravidar and Tribal Welfare Department dated 19.9.2000. In the said communication, though it is stated that a converted Hindu from Christianity is not entitled to claim the Scheduled Caste status, as per the decision of the Hon’ble Supreme Court, no such decision has been referred to in the said impugned order. Therefore, the impugned orders of the second respondent dated 6.11.2002 as well as that of the first respondent dated 20.9.2004 cannot be sustained for the reasons set out in this order.
7. Accordingly, while setting aside the orders impugned in the writ petition, the matter is remitted back to the second respondent for fresh consideration, who is hereby directed to examine the claim of the petitioner in the light of the ratio laid down by the Hon’ble Supreme Court in Guntur Medical College case (supra) as referred to in the Division Bench decision reported in 2007 (3) MLJ 209, consider the various materials relied upon by the petitioner in support of her claim that she really got converted to Hinduism on and after 11.7.99 by giving her an opportunity of personal hearing and pass appropriate orders in accordance with law. Since the appointment of the year 2002 is hanging fire for more than six years, it is just and necessary that the second respondent pass appropriate orders expeditiously. Therefore, the second respondent is directed to issue notice, after receipt of copy of this order, to the petitioner and the third respondent-school to appear before him by fixing a specific date within two weeks. It is open to the petitioner to place any further material apart from whatever material already filed by her before the second respondent and also submit any statement in support of her claim in the form of an affidavit with any other supporting affidavits. Thereafter, the second respondent shall pass appropriate orders within four weeks from the date of hearing of the petitioner and the third respondent.
8. The writ petition stands allowed with the above directions. No costs.
ss
To
1. The Director of School Education
D.P.I.Campus, College Road
Chennai 600 006
2. The District Educational Officer
Thanjavur