BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.13161 of 2009 and M.P.(MD)NO.1 OF 2009 K.P.A.Nallamohamed .. Petitioner Vs. 1.The Director Department of Archaeology, Tamil Valarchi Valagam, Halls Road, Egmore, Chennai-600 008. 2.The Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai-600 002. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration to declare the examination conducted by the second respondent for the post of Curator dated 29.11.2009 as unconstitutional and ultravires, violation of Articles 16 and 21 of the Constitution and consequently to direct the respondents to conduct fresh examination for the same post by allowing the petitioner to participate. !For Petitioner ... Mr.K.K.Kannan ^For Respondents... Mr.S.C.Herold Singh, GA - - - - :ORDER
The question that arises for consideration in this writ petition is
whether an Indian Citizen professing Islam as his Religion can be disqualified
for being considered for a post in a public employment?
2.The posts of Curator, Epigraphist, Archaeological Officer come under the
Archaeological department covered by the Tamil Nadu General Subordinate
Services. The petitioner claims that he was fully qualified to hold the post. He
had passed M.A. Tamil, M.A. History, P.G.Diploma in Epigraphy and Archaeology
and P.G. Diploma in Temple Arts. In his P.G. Diploma in Epigraphy and
Archaeology conducted by the Department of Archaeology, Government of Tamil Nadu
in the year 1993-94, he came out in first class and stood first rank. The
petitioner is a Muslim by religion. The second respondent Tamil Nadu Public
Service Commission (TNPSC) had issued an advertisement No.216 calling for
applications for the posts of Epigraphist, Curator, Archaeological Officer and
Junior Epigraphist. In respect of Curator, five vacancies were notified. It was
stated that the persons professing the Hindu Religion alone are eligible to
apply for the posts of Epigraphist, Archaeological Officer and Junior
Epigraphist. There was no reference to any criteria regarding Religion in
respect of the post of Curator. It was stated that persons who are applying for
the posts will have to undergo a written examination. In the notification in
paragraph 3.K, it was stated as follows:
“K.All the concessions / relaxations / benefits applicable to BC and SC
candidates are also applicable to BC Muslim and SC (Arunthathiyars on
preferential basis) candidates respectively.”
3.The qualifications for the post of Curator and Epigraphist as found in
paragraph 4 of the notification reads as follows:
Sl.No.
Name of the Post
Qualification
1
2
Epigraphist (Post code.1838)
Curator (Post code.1841)
1)Second Class Degree of M.A in Archaeology or in Tamil or in Sanskrit or in
Ancient Indian History of any University or Institution Recognised by the
University Grants Commission for the purpose of its grant.
2)A certificate or Diploma in Sanskrit awarded by any one of the Universities
Recognised by the University Grants Commission for the purpose of its grant or
Bharathiya Vidhya Bhawan or Amara Bharathi or Sanskrit Educational Society or
Dhakshina Bharat Hindu Prachar Sabha or Must be able to read and write
Sanskrit Texts (printed and manuscrips) give meaning of simple
Sanskrit poems and prose writings and understand the main impart of
inscriptional Sanskrit.
and
Must have the knowledge of basic principle of Architecture, Iconography,
Sculpture, etc., based on Vastu sastra, Agama Sastra and Silpa text and also to
identify parts of Temples sculptures and icons from Drawing and Photographs.
4.The petitioner had filled in his application including an OMR coding
sheet. As against question No.6, he had mentioned his religion as Muslim. As
against question No.7 with reference to community, he had described himself as a
Backward class. However, the respondent TNPSC by the impugned order, dated
20.11.2009 had rejected his application stating that the rejection was on the
ground that he did not profess Hindu Religion. In view of the last minute
rejection, the petitioner could not challenge the said order since 27.11.2009,
28.11.2009 and 29.11.2009 were holidays for the Court. The examinations were
scheduled on 29.11.2009. Hence the petitioner had sent a representation, dated
30.11.2009 to the respondents. Thereafter, he filed the writ petition
challenging the rejection of his application.
5.The petitioner’s main contention was that even as per the instructions
to candidates, there was no requirement for a person to profess Hindu Religion
for the post of Curator. He submitted that rejection was arbitrary and
violative of Articles 16 and 21 of the Constitution of India.
6.When the writ petition came up on 14.12.2009, notice was issued to the
respondents. On notice from this court, the second respondent has filed a
counter affidavit, dated Nil (2010). It is the stand of the respondents that the
petitioner had applied for all the four posts. In column No.23 in his OMR
application, he had given preference for the post of Curator. Since only persons
professing Hindu Religion alone are eligible for the appointment to the posts of
Epigraphist, Archaeological Officer and Junior Epigraphist, he was not eligible
to be considered for those posts. In respect of Curator post, he did not produce
any evidence to show that he has knowledge in Sanskrit as per the qualifications
prescribed in the notification. Therefore, it was contended that in terms of his
Religion, he was disqualified for being considered for the posts of Epigraphist,
Archaeological Officer and Junior Epigraphist and he was not eligible to be
considered for the post of Curator since he lacked knowledge in Sanskrit.
7.Insofar as the stand taken by the respondents in the counter affidavit
regarding lack of knowledge in Sanskrit, the same was not indicated as a reason
for rejection. When the petitioner had stated that he had applied for the post
of Curator, he had only mentioned the Code No.1841 as his preference. Therefore,
the respondents ought to have considered his case for the post of Curator, if he
is otherwise disqualified for the other three posts in view of the religious
requirement. It is highly condemnable that the second respondent did not even
disclose the actual reason for rejecting the case of the petitioner. Since the
respondents had stated that for the posts of Epigraphist, Archaeological
Officer and Junior Epigraphist, the holders of office must profess Hindu
Religion, they had not indicated as to where from they got the right to
prescribe such a qualification. In fact, all the four posts are under the
Archaeological department coming under the Tamil Nadu General Subordinate
Services.
8.Under Article 16(1) of the Constitution of India, it has been guaranteed
equality of opportunity for all citizens in the matter relating to employment or
appointment to any post under the State. Article 16(2) prohibits any
discrimination on the ground of religion. Article 16(2) reads as follows:
“16(2)No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of, any employment or office under the State.” (Emphasis
added)
9.However, the Supreme Court struck down the then Madras Government’s
communal G.O reserving posts based on caste and religion such as Muslim and
Christians. The pre-constitutional order came to be attacked on the touchstone
of Article 16(2) of the Constitution. The Supreme Court held that reservation of
post based on either caste or religion is unconstitutional. It is necessary to
refer to the judgment of the Supreme Court in B.Venkataramana Vs. The State of
Madras and another reported in AIR 1951 SC 229. The following passage found in
paragraph 4 may be usefully reproduced below:
“4….For instance, the petnr. may be far better qualified than a Muslim or a
Christian or a Non-Brahmin candidate & if all the posts reserved for those
communities were open to him, he would be eligible for appointment, as is
conceded by the learned Advocate-General of Madras, but, nevertheless, he cannot
expect to get any of those posts reserved for those different categories only
because he happens to be a Brahmin. His ineligibility for any of the posts
reserved for the other communities, although he may have far better
qualifications than those possessed by members falling within those categories,
is brought about only because he is a Brahmin & does not belong to any of those
categories. This ineligibility created by the Communal G.O. does not appear to
us to be sanctioned by cl.(4) of Art.16 & it is an infringement of the
fundamental right guaranteed to the petnr. as an individual citizen under
Art.16(1) &(2). The Communal G.O., in our opinion, is repugnant to the
provisions of Art.16 & is as such void & illegal. This, in our opinion, is
sufficient to dispose of this appln. & we do not consider it necessary to
consider the effect of Art.14 or 15 of the Constitution on the case of the
resps.”
Perhaps to save the reservation for the underprivileged, after the judgment the
Constitution of India underwent with its first amendment in the year 1951.
10.The Supreme Court subsequently in Triloki Nath Tiku v. State of Jammu
and Kashmir reported in (1969) 1 SCR 103 took exception to Religion based
reservation adopted by the Jammu and Kashmir Government. In paragraph 6 it was
held as follows:
“6…… In effect the State policy which Malik Ghulam Nabi spoke to was a
policy not of reservation of some appointments or posts: it was a scheme of
distribution of all the posts community wise. Distribution of appointments, post
or promotions made in implementation of that State policy is contrary to the
constitutional guarantee under Article 16(1) and (2)and is not saved by
clause(4).”
11.However, an exception to religion being a criteria for appointment is
provided under Article 16(5) which reads as follows:
“16(5)Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of any
religious or denominational institution or any member of the governing body
thereof shall be a person professing a particular religion or belonging to a
particular denomination.” (Emphasis added)
12.In construing Article 16(5), the Supreme Court in S.P. Mittal Vs. Union
of India reported in (1983) 1 SCC 51 in paragraph 8 had observed as follows:
“8.Article 16(2) guarantees that no citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment or office
under the State. Article 16(5) exempts from the right guaranteed under Article
16 the operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.”
13.In her separate opinion, Justice Ruma Pal, in the case relating to
T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481 had
observed in paragraphs 336, 344, 345 and 346 which is as follows:
“336.Under the Indian Constitution there is no such “wall of separation” between
the State and religious institutions. Article 16(5) recognises the validity of
laws relating to management of religious and denominational institutions.
Article 28(2) contemplates the State itself managing educational institutions
wherein religious instructions are to be imparted. And among the subjects over
which both the Union and the States have legislative competence as set out in
List III of the Seventh Schedule to the Constitution. Entry 28 are:
“Charities and charitable institutions, charitable and religious endowments and
religious institutions.” (emphasis supplied)
……
344.In the ultimate analysis the Indian Constitution does not unlike the United
States, subscribe to the principle of non-interference of the State in religious
organisations but it remains secular in that it strives to respect all religions
equally, the equality being understood in its substantive sense as is discussed
in the subsequent paragraphs.
Article 30(1) and Article 14
345.”Equality” which has been referred to in the preamble is provided for in a
group of articles led by Article 14 of the Constitution which says that the
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Although stated in
absolute terms Article 14 proceeds on the premise that such equality of
treatment is required to be given to persons who are equally circumstanced.
Implicit in the concept of equality is the concept that persons who are in fact
unequally circumstanced cannot be treated on a par. The Constitution has itself
provided for such classification in providing for special or group or class
rights. Some of these are in Part III itself [Article 26, Article 29(1) and
Article 30(1)]. Other such articles conferring group rights or making special
provision for a particular class include Articles 336 and 337 where special
provision has been made for the Anglo-Indian community. Further examples are to
be found in Articles 122, 212 and other articles giving immunity from the
ordinary process of the law to persons holding certain offices. Again Articles
371 to 371-H contain special provisions for particular States.
346.The principles of non-discrimination which form another facet of equality
are provided for under the Constitution under Articles 15(1), 16(1) and 29(2).
The first two articles are qualified by major exceptions under Articles 15(3)
and (4), 16(3), (4), (4-A) and Article 335 by which the Constitution has
empowered the executive to enact legislation or otherwise specially provide for
certain classes of citizens. The fundamental principle of equality is not
compromised by these provisions as they are made on a consideration that the
persons so “favoured” are unequals to begin with whether socially, economically
or politically. Furthermore, the use of the words “any person” in Article 14 in
the context of legislation in general or executive action affecting group rights
is construed to mean persons who are similarly situated. The classification of
such persons for the purposes of testing the differential treatment must, of
course, be intelligible and reasonable – the reasonableness being determined
with reference to the object for which the action is taken. This is the law
which has been settled by this Court in a series of decisions, the principle
having been enunciated as early as in 1950 in Charanjit Lal Chowdhury v. Union
of India56.”
(Emphasis added)
14.However, there is no difficulty in the State reserving certain posts
for qualified persons from a particular religion under Article 16(5) if such
posts are created in connection with the affairs of a Religion. But, in the
present case, the Department of Archaeology is an independent department and not
a wing of the Tamil Nadu Hindu Religions and Charitable Endowment Department.
Even under the Tamil Nadu Hindu Religions and Charitable Endowments Act, 1959,
under Section 10 only certain posts have been reserved for persons professing
Hindu Religion. Section 10 may be usefully reproduced below to indicate the
nature of the office:
10.Commissioner, etc., to be Hindus.-The Commissioner, [the Additional
Commissioner] [every Joint, Deputy or Assistant Commissioners] and every other
officer or servant appointed to carry out the purposes of this Act, by
whomsoever appointed, shall be a person professing the Hindu Religion and shall
cease to hold office as such when he ceases to profess that religion.”
Therefore, it is doubtful that the respondents can reserve any other posts other
than the posts which have been notified under the Act.
15.It is not as if the post of an Epigraphist or an Archaeologist must
work inside an Hindu temple. In a Country like India where there has been
civilization even before the advent of all religions, the work of Epigraphists
or Archaeologists cannot be confined to persons professing Hindu religion alone.
Further, all the religions recognised by the Constitution also have similar
heritage and antiquity.
16.To know the nature of these posts, it is necessary to unravel the true
meaning of these words. The term of “Archaeology” has been defined in “Chambers
20th Century Dictionary”, which is as follows:
“the scientific study of human antiquities, usually as discovered by excavation”
The Webster’s New World Dictionary and Thesauruss defined the term as follows:
“the scientific study of the life and culture of past, esp. ancient, peoples, as
by excavation of ancient cities, artifacts, etc. ”
17.The term “Epigraphy” is defined in Webster’s New World Dictionary and
Thesaurus, which reads as follows:
“the study that deals with deciphering, interpreting, and classifying
inscriptions, esp. ancient inscriptions”
18.Therefore, the nature of duties performed by an Ephigraphist or
Archaeologist is not strictly confined to Hindu Religious structures alone.
19.For example to decipher Brahmi inscription sites which were found are
not inside any temple. But those sites are spread over the length and breadth of
Tamilnadu. Likewise there are Jain and Budhist places of abodes, worship or
caves and cave paintings are found all over this State. With reference to Brahmi
inscriptions in Tamilnadu, the famous scholar Iravatham Mahadevan had stated
that the Tamil Brahmi inscriptions are the only record of old Tamil which are
even prior to Sangam poetry. In his interview published in “Frontline” an
English Fortnightly magazine, dated 17.7.2009, he had stated as follows:
“Tamil-Brahmi inscriptions are important not only in the history of Tamil Nadu
and the rest of South India but for the whole country. They have many unique
distinctions. They are the oldest writings in any Dravidian language. They are
also the oldest Jaina inscriptions in India. I believe that the Mankulam Tamil-
Brahmi inscription of [Pandyan king] Nedunchezhiyan is older than the Karavela
inscription at Udayagiri in Orissa.
Tamil-Brahmi inscriptions are the only record of the old Tamil, the one prior to
Sangam poetry. Many Tamil-Brahmi inscriptions are important landmarks in our
history. For example, the inscriptions of Nedunchezhiyan at Mankulam, the
Irumporai inscriptions at Pugalur near Karur and the Jambai inscription of
Adhiyaman Neduman Anji link the Sangam age with the Tamil-Brahmi age. It is the
Jambai inscription that prove that the “Satyaputo” mentioned by Asoka was none
other than the Adhiyaman dynasty, which ruled from Tagadur, modern Dharmapuri.
Recently, Tamil-Brahmi inscriptions have been found on hero stones in the upper
Vaigai valley near megalithic graves, thus providing a link, for the first time,
between the megalithic and the early historical periods of Tamil Nadu. The
Tamil-Brahmi inscriptions occurring on coins, rings, potsherds and seals add
another dimension to the history of Tamil Nadu. For example, the Pandyan coin of
Peruvazhuthi or the silver portrait coins of Cheras. There are also numerous
gold, silver and bronze rings of merchants and noblemen from the prosperous
trading town of Karur of the Sangam age. Again, recently, excavations at
Pattanam in Kerala have brought to light the remains of the ancient and famous
Sangam age port of Musiri, known as Muziris to the classical historians of the
West. These facts demonstrate the importance of Tamil-Brahmi inscriptions to our
history.
It is, therefore, a great tragedy that the cave inscriptions of Tamil-Brahmi and
Jaina sculptures [and beds] are being systematically vandalised by ignorant
tourists and destroyed by granite quarries. It is impossible to stop quarrying
because of vested interests and the money power and the muscle power at their
disposal. Already, in my lifetime, many Tamil-Brahmi cave inscriptions have been
lost or have been damaged severely. I understand from scholars undertaking
recent field work that the destruction is now proceeding much faster. It is sad
that the public are indifferent [to this], and the State government and the
Central government are helpless to stop this wanton destruction of our cultural
heritage. Perhaps all the Tamil-Brahmi cave inscriptions will disappear within a
decade.
The only consolation I have is that a serious attempt to record whatever remains
by means of video photography and digitisation has been made by the classical
Tamil project authorities. In Early Tamil Epigraphy: From the Earliest Times to
the Sixth Century A.D., I had anticipated this disastrous development and I had
pleaded for greater awareness of our cultural heritage and more purposeful steps
for their conservation. What I did not expect was that the destruction would be
so swift and so colossal. I can only shed tears at whatever has been lost as,
frankly, I am not hopeful that whatever remains will be saved.”
20.Hence the respondents cannot make it appear that the Department of
Archaeology is a wing of the Hindu Religious Endowment Board. It cannot be the
stand of the State Government which functions under the Constitution. Therefore,
in order to make out a case under Article 16(5), the respondents ought to have
established that these posts are created in connection with the affairs of Hindu
Religion. Certainly it is not the job of the Department of Archeology to confine
its excavation work only on the Hindu Religious structures. There are other
religions such as Buddhism, Jainism, Christianity and Islam which also had their
own sway over the political and geographical boundaries in the areas now known
as Tamilnadu. Therefore, when the respondents called for applications for the
posts of Archeologists or Epigraphists, they ought not to have made blanket
reservation in these posts for candidates belonging to Hindu Religion alone.
21.Further, Article 16(5) related to an incumbent to an office in
connection with the affairs of any religion. The Epigraphist or Archaeologist
are certainly not an office holder in connection with the affairs of Hindu
religion. The respondents cannot reserve any post of Ephigraphist or
Archeologist coming under the department of Archeology notified under the Tamil
Nadu General Subordinate Services for candidates professing only Hindu
Religion. They cannot recruit persons to a State service overlooking the
Constitutional injunction contained under Article 16(2).
22.The Supreme Court in Air India Vs. Nergesh Mirza reported in 1981 (4)
SCC 335 has held that for an infraction of the various entries found under
Article 16(2) as those words were prefixed by the term “only”, it has to be
proved that the discrimination alleged must be solely based on the prohibited
entry, such as Sex, Caste or religion, etc. In the present case, it is not the
stand of the respondents that the posts advertised were covered by Article 16(5)
of the Constitution. Further, no attempt was made to establish that the
discrimination made was not only on grounds of religion. Hence the impugned
notification suffers from the vice of infracting Article 16(2) of the
Constitution.
23.Hence the Court has no hesitation to strike down such blatant
discrimination adopted by the Department of Archaeology. The impugned order
disqualifying the petitioner is invalid. The note appended in the notification
that for the advertised posts only Hindus alone should apply is also invalid.
24.It is worthwhile to note that in the title suits heard and disposed of
by a Full Bench of the Allahabad High Court in the case starting from Gopal
Singh Visharad (dead) and others Vs. Zahoor Ahmad and others (Other Original
Suit No.1/1989, etc. batch), the work done by the Archaeological Survey of India
(ASI) came up for severe indictment. Though ‘Babri Masjid’ was protected
monument, the bench directed the ASI to seek for an expert opinion. The ASI in
turn deployed the services of a Company called Tojo-Vikas International Limited
to undertake geological surveys. The bench also ordered an excavation to see it
there was any structure below the mosque and ruled that the exercise would be
undertaken by five eminent archaeologists including two Muslims. When it was
found that the team of experts selected 20 members had only one Muslim, the
Bench took notice of that fact and asked the ASI to remedy. The ASI continued to
defy the orders of the Bench. Of the total 89 labourers it employed in the site
it had only nine Muslims. The Bench irritated by the conduct of the ASI
appointed a new Team leader. Monitors were also nominated by the Bench to
oversee the operations done by ASI. For full details one can read the opinion of
Justice Sudhir Agarwal, a member of the Full Bench of the Allahabad High Court.
The attempt by the Court to maintain balance even in matters relating to
archaeology is to create public confidence and not to appease any particular
religion. Hence the Department of Archaeology in order to maintain its
reputation must be manned by persons belonging to all religions. Lest it may be
accused of losing the secular character which is the hallmark of Indian
republic.
25.In the present case, the petitioner had claimed relief only to be
considered for the post of Curator. The additional reason given for
disqualifying the petitioner as set out in the counter affidavit was that for
being considered for the post of Curator, he did not have knowledge in Sanskrit.
But that was not a reason found in the impugned order. The knowledge of Sanskrit
need not be proved by producing any recognised certificates alone as the
impugned notification stipulated that it will be sufficient if a person is able
to read and write Sanskrit Texts. There is no column in the OMR sheet regarding
a prior information to be furnished on this qualification. If the knowledge in
Sanskrit was not expected to be proved by producing certificates from any
recognised bodies, then such a requirement can be found only during the
interview or by separately calling for details on that fact. That was not done
in this case. One cannot assume that the petitioner lacked knowledge in
Sanskrit. Hence the action of the respondent is a blatant infringement of
Constitutional guarantee given to the petitioner.
26.Justice Rajinder Sachar Committee (appointed by the Central Government)
probed the question whether different socio-religious categories in India have
had an equal chance to reap the benefits of development with a focus on Muslims
in India. In paragraph 3.3, Justice Sachar made the following recommendations:
“A more transparent recruitment system will help to build public confidence in
the system. It is not being suggested that inclusion of minorities in selection
committees will improve the chances that Muslims will get selected, it can
surely improve the confidence of Muslim applicants during the selection process.
It is imperative to increase the employment share of Muslims particularly in
contexts where there is a great deal of public dealing. Their public visibility
will endow the larger Muslim community with a sense of confidence and
involvement and help them in accessing these facilities in larger numbers and
greater proportion.”
The stand taken by the respondents clearly shows that recruitments make by them
needs greater transparency which was lacking in the present selection. Hence the
impugned order is liable to be set aside and the writ petition deserves to be
allowed.
27.The writ petition is allowed with costs. It is quantified at Rs.5000/-
(Rupees five thousand only). The respondents are directed to consider the
candidature of the petitioner for any one of the posts advertised in the
impugned notification. This exercise shall be undertaken within twelve weeks
from the date of receipt of the copy of this order. Consequently, connected
miscellaneous petition stands closed.
vvk
To
1.The Director Department of Archaeology,
Tamil Valarchi Valagam,
Halls Road,
Egmore, Chennai-600 008.
2.The Secretary,
Tamil Nadu Public Service Commission,
Omanthoorar Government Estate,
Chennai-600 002.