IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 .01.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No.21864 of 2010 and M.P.No.1 of 2010 M.Raja Mohammed .. Petitioner. Vs. 1. Tamil Nadu Public Service Commission Rep. by its Chairman Chennai-600 006. 2. Government of Tamil Nadu Rep. by its Secretary, Department of Animal Husbandary Fort St.George, Chennai 600 009. .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for records of the first respondent in Memo No.1311/OTD-A4/2010 dated 03.09.2010 and quash the same and direct the first respondent to select the petitioner for the post of Veterinary Assistant Surgeon and Junior Veterinary Assistant Surgeon in the Department of the second respondent. For Petitioner : Mr.K.Chandrasekaran For R1 : Ms.C.N.G.Niraimathi For R2 : Mr.B.Vijay, Govt. Advocate O R D E R
The petitioner has invoked the writ jurisdiction of this Court to challenge the order passed by the Tamil Nadu Public Service Commission, vide Memo No. 1311/OTD-A4/2010 dated 03.09.2010. The impugned order reads as under:
“The attention of Dr.Raja Mohammed (Reg.No.00102119) is drawn to the petition cited and he is informed that he has claimed in his application that he belongs to Muslim Labbai included in the list of BC-M on his conversion from Hindu to Muslim. According to clarification received from the Government, in the absence of any orders issued by the Government in respect of converts from Hindu to Islam, they will have to be considered as “Others”. If the petitioner is considered as “Others”, he will be ineligible to apply for the said recruitment for the reason that he is over aged. A show cause notice has therefore been issued to the petitioner in the reference 2nd cited. In view of the above reason, his request to consider him for the post of Veterinary Assistant Surgeon / Junior Veterinary Assistant Surgeon cannot be considered.
Any further representation received in this regard will remain unanswered.”
2. The pleaded case of the petitioner in the affidavit is that he was born as Hindu. Father’s name of the petitioner is Thiru Madasamy and the petitioner belonged to Scheduled Caste Pallan. The petitioner obtained degree of Veterinary Science from Tamil Nadu Veterinary and Animal Science University in the year 1998. The petitioner registered his certificate with State Veterinary Council under the name M.Raja. He was married to one Mrs.Ayisha Beevi of Kadayanallur and after marriage, he got himself converted into Muslim Lebbai and he was, accordingly, issued a community certificate by Zonal Deputy Tahsildar, Tenkasi, dated 02.09.2005 for such conversion. The changed name of the petitioner is Raja Mohammed. A Gazette publication, in this regard, was also made, showing his conversion from Hindu to Muslim religion. The Tahsildar issued a conversion certificate and also community certificate, declaring him to be a member of Backward Class. The community certificate, showing his community, as Scheduled Caste, was cancelled.
3. The stand of the petitioner in the affidavit is that when there is conversion by Hindu to Islam, the conversion is to be made to a particular group, which is predominant in the area, in which, the convert resides. Therefore, he claims to have embraced Muslim Lebbai community. It is also pleaded case of the petitioner that since his conversion is recognized as Muslim by one and all, he is living as Muslim and attending prayers etc. He claims to have shed all his characteristics, habits and way of life as Hindu.
4. The petitioner was appointed as temporary Veterinary Assistant Surgeon and he also appeared for the written examination for the post of Veterinary Assistant Surgeon, wherein, also produced all the certificates. The petitioner, on account of having secured less marks, was not selected for the post of Veterinary Assistant Surgeon in 2006-2007. He, therefore, again appeared for the written examination for the year 2009 and submitted all requisite certificates. It was in response to his application that the petitioner received impugned order calling him to show cause as to why he should not be considered to be in “Others” category having been converted from Hindu to Islam. In addition, the petitioner has also been issued to show cause as to why the temporary selection should not be cancelled.
5. He has challenged impugned order on the ground that in absence of any Government order with regard to conversion from Hindu to Muslim, the status of Backward Class or Most Backward Class cannot be denied, and he cannot be grouped as “Others” and not as Backward Caste or Most Backward Class. That the respondents have failed to take note of the fact that the petitioner converted from Hindu Scheduled Caste to Muslim Lebbai, which is classified as Backward Class, in pursuance to which, he lost his higher privilege from Scheduled Caste to Backward Class. The community, to which the petitioner got converted, stands classified as Backward Community and in fact, the petitioner has in fact been issued a community certificate, declaring him to be belonging to Backward Class, which is in full and not cancelled till date. That the petitioner is belonging to the member of Islam and community, to which, he is converted, therefore, is to be treated as Backward Class.
6. The writ petition is opposed by the learned Government Advocate on the plea that in absence of any order by the Government in respect of convert from Hindu to Islam, they have to be considered as “Others” as rightly held by the Tamil Nadu Public Service Commission. It is the stand of the learned Government Advocate that the petitioner, by conversion, cannot take advantage, and claim himself to be belonging to the Backward Class. In support of the stand that the petitioner was not entitled to be considered as a member, belonging to Backward Class, reliance was placed on the judgment of Hon’ble Supreme Court in the case of Indra Sawhney and others vs. Union of India and others repoted in 1992 Supp.(3) SCC 217, the following principles were laid down by the Hon’ble Supreme Court:
(3)The expression, ‘backward class of citizens’ occurring in Article 16(4) is neither defined nor explained in the Constitution. However, the backward class or classes can certainly be identified in Hindu society with reference to castes along with other criteria such as traditioinal occupation, poverty, place of residence, lack of education etc. and in communities where caste is not recognised by the above recognised and accepted criteria exxcept caste criterion.
(4)In the process of identification of backward class of citizens under Article 16(4) among Hindus, caste is a primary criterion or a dominant factor though it is not the sole criterion.
(6)The power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended.
(7)The provision for reservation of appointments or posts in favour of any backward class of citizens is a matter of policy of the Government, of course, subject to the constitutional parameters and well settled principles of judicial review.
By referring to the Principles laid down, the learned Government Advocate contended that in absence of Government Order, permitting the convert to be treated as Backward Class, the petitioner could not claim the status of Backward Class merely on conversion as a matter of right.
7. On consideration, I find force in the stand taken by the petitioner. The Government of Tamil Nadu, vide G.O.Ms.No.1 dated 02.01.2009, has been pleased to lay down as under:
“4. In order to clear the ambiguity and also to certify the Adi Dravidar people, who have converted to Hinduism, Sikhism or Buddhism from other religions, the Government have issued the instructions as referred to in Para 2 above based on the orders of the Hon’ble High Court of Madras, the instructions of the Government of India, orders of the Hon’ble Supreme Court, legal opinion given by the Advocate General and Additional Advocate General, Government of Tamil Nadu, the Government have examined the issue in detail. As per the orders of the Hon’ble High Court of Madras, the Government have now issued the following revised instructions cancelling the clarifications issued in letter No.81, Adi Dravidar and Tribal Welfare Department, dated 19.09.2000:
“The children born to Christian Schedule Caste parents, i.e., Christian by birth, converted to Hinduism, Sikhism or Buddhism at a later date and the Scheduled Caste parents embracing Hinduism, Sikhism or Buddhism converted to other religion and subsequently reconverted Hinduism, Sikhism or Buddhism, if they are accepted by their community people, the Revenue Authorities can issue Scheduled Caste community certificate to them to become eligible for the constitutional privileges conformed on the Hindu Scheduled Case (following Hinduism, Sikhism or Buddhism) and order accordingly”.”
8. The reading of this order in G.O.Ms.No.1 would show that the earlier stand of the Government that the person on conversion would not be entitled to community certificate to enjoy constitutional benefit was not accepted by Government of India and the Hon’ble Supreme Court, which resulted in the passing of G.O.Ms.No.1 dated 02.01.2009. 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. The settled proposition of law is, by way of conversion, one cannot claim benefit of reservation, as he continues to be belonging to the caste, to which, he belonged earlier to 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. A community certificate, certifying him as Scheduled Caste was also issued to him, which ultimately stood cancelled, as the petitioner embraced Islam. It is also not in dispute that the caste, to which, the petitioner got converted is the notified Backward Class. It was on account of this that a community certificate was issued to the petitioner, which was also accepted by the respondent on earlier occasion. It may also be noticed that the Hon’ble Supreme Court in the case of State of Kerala and another vs. Chandramohanan reported in (2004) 3 SCC 429 was pleased to lay down that a member of a tribe despite his change in religion may remain a member of the tribe if he continues to follow the tribal traits and customs. The Hon’ble Supreme Court was pleased to lay down that on facts and circumstances of the case, even on conversion, it could be proved that the persons continues to be belonging to the same tribe.
10. The impugned order cannot be sustained for the reason that the petitioner’s community certificate has not so far been cancelled. Even if, for the sake of argument, it is taken that the petitioner is not entitled to be treated as candidate belonging to Backward Class, in that event, he is to be treated as candidate, belonging to Scheduled Caste. In any case, conversion cannot be taken to disadvantage of the petitioner. The situation would have been different, in case, the petitioner had converted to Islam (Backward Class) from Higher Caste. The principle laid down in G.O.Ms.No.1 would be applicable to present case, even though the G.O.Ms.No.1 may not be applicable as such. The conversion to Islam in facts and circumstances of this case cannot be to his disadvantage.
11. For the reasons stated above, the impugned order is set aside and the respondents are directed to consider the case of the petitioner for the post of Veterinary Assistant Surgeon by treating him to be a member belonging to the Backward Class, as the petitioner has surrendered his SC community certificate and the community certificate issued on conversion is in full force.
Accordingly, the writ petition is allowed . No costs. Consequently, connected miscellaneous petition is closed.
ar
To
1. The Chairman
Tamil Nadu Public Service Commission
Chennai-600 006.
2. The Secretary
Government of Tamil Nadu
Department of Animal Husbandary
Fort St.George,
Chennai 600 009