BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/08/2008
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO
AND
THE HONOURABLE MR.JUSTICE R.SUBBIAH
W.P.(MD).No.9388 of 2007
and
M.P.(MD).No.2 of 2007
M.Ramasankar .. Petitioner
Vs
1. The District Level Vigilance Committee,
for Verification of Community,
Tirunelveli District.
2. The Revenue Divisional Officer,
Cheranmahadevi,
Tirunelveli District.
.. Respondents
Petition filed under Article 226 of the Constitution of India praying for
issuance of a writ of Certiorarified Mandamus to call for the records relating
to the proceeding of the first respondent in B4/3652/2005 dated 5.1.2007 and
quash the same in so far as the petitioner is concerned and directing the second
respondent to issue the petitioner a Community Certificate as belonging to Hindu
Pallan.
!For Petitioner ... Mr.G.Prabhu Rajadurai
^For Respondents... Mr.D.Gandhi Raj
Government Advocate
:ORDER
(The order of the court was made by R.SUBBIAH, J.)
This writ petition is filed with the prayer of Certiorarified Mandamus to
quash the proceeding of the first respondent dated 5.1.2007 whereby the
community certificates issued in favour of the writ petitioner in Certificate
No.550 of 1994 dated 01.09.1994 and Certificate No.3949 of 2003 dated 11.11.2003
by the then Tahsildar of Ambasamudram are cancelled.
2. It is the case of the writ petitioner that he belongs to Hindu Pallan
Community, which is recognized as a Scheduled Caste. He was born to one
K.Marudhan and Chellam, who are the parents of the writ petitioner. His mother
chellam is the second wife to his father. She also belongs to the same
community. Though his father belongs to Hindu Pallan Community, his mother was a
Christian by birth, converted into Hindu Religion after her marriage with the
father of the petitioner. In fact, the marriage between his father and mother
took place only in Hindu Temple. So far as the petitioner is concerned, he was
embracing Hindu Religion and custom and traditionally professing only the Hindu
practices. He has no shade of Christian custom or rites.
3. It is further submitted that he was born on 14.6.1976 and was
originally named as M.Jothy. Later his name was changed as M.Ram Sankar when he
was 13 years old. The necessary Gazette Notification was also published by his
father in Tamilnadu Government Gazette Notification dated 5.6.1989. In his
school records, he was referred as ‘Hindu Pallan’ and even in his college
records his caste was mentioned only as ‘Hindu Pallan’. In other words, the
contention of the writ petitioner is that he never followed any Christian
practice or considered himself as Christian. That apart, the writ petitioner
also stated in the affidavit sworn by him and filed in support of his prayer for
issuance of the community certificate that he is a strong believer of Hindu
Faith. He was issued with a Community Certificate No.550 of 1994 dated
01.09.1994 as Hindu Pallan by the then Tahsildar, Ambasamudram. Once again, when
he applied for certificate in the year 2003, the Tahsildar, Ambasamudram issued
a Certificate No.3949 of 2003 dated 11.11.2003 as Hindu Pallan, and that he
belongs to Scheduled Caste.
4. However, a complicated problem arose when his father applied for a
community certificate for his sister Mary Vanitha in the year 2005 and his
sister’s application, with a request for issuance of community certificate as
‘Hindu Pallan’ was rejected by the Tahsildar, Ambasamudram by order dated
19.1.2005. When his father made an appeal against the said rejection order with
the second respondent, the second respondent passed an order dated 31.03.2005
rejecting the appeal filed by his father stating that his daughter (sister of
the petitioner) was baptized in the Kooniyoor RC Church. Further, in the said
order, the second respondent had also observed that a report would be submitted
to the District Collector, Tirunelveli to examine the Community Certificate
already issued in favour of the petitioner herein and to his other sister.
Hence, the father of the petitioner had filed an appeal against the said order
before the first respondent stating that he had not brought up his children as
Christians. With reference to his appeal, the first respondent called for a
report from the second respondent. Accordingly, a report dated 2.6.2005 was also
sent to the second respondent by the first respondent. On being summoned, the
petitioner has also attended the enquiry before the First respondent on
19.9.2005, since the father of the petitioner was not in a position to attend
the enquiry. After completing the enquiry, the first respondent passed an order
dated 5.1.2007 in the appeal rejecting the same and cancelled the certificates
issued in favour of the writ petitioner by the then Tahsildar of Ambasamudram
and decided that the writ petitioner does not belong to Hindu Pallan Community.
Aggrieved by the said order, the petitioner herein filed an appeal before the
State Level Scrutiny Committee at Madras challenging the order dated 05.01.2007
passed by the first respondent.
5. In the meantime, he has also filed the present writ petition
challenging the order of the first respondent. The main contention of the writ
petitioner in the present writ petition is that his family is professing
Hinduism and right from the days of his childhood, he is practising Hinduism
though alleged to have been Baptized on 18.09.1976, when the petitioner was
three months old and that his father by progeny belongs to Hindu Pallan
Community and that his mother, who was Christian by birth though belonging to
Pallan community, but on the day of her marriage, to the father of the
petitioner she converted as Hindu from Christianity and changed her name from
Stanzy to Chellam. It is the further case of the petitioner that even in the
school records and college records the petitioner was clearly mentioned only as
belonging to Hindu Pallan Community. When he applied for the Community
certificate in the year 1994 as well as in the year 2003, before issuing the
community certificate a detailed enquiry was conducted by the then Tahsildar,
Ambasamudram by examining the persons from his village both from his community
as well as from the other community and the village headman and also the Parish
Priest of a Church on two occasions who had stated that the petitioner is not a
Christian and he did not become the member of the Church at any point of time,
and issued a certificate that the petitioner is not a Christian. Based on those
evidence the then Tahsildar, Ambasamudram issued certificate in favour of writ
petitioner stating that he belongs to Hindu Pallan Community While the situation
stood thus, the order dated 31.03.2005 came to be passed by the second
respondent herein rejecting the appeal filed his father against the order dated
19.1.2005 rejecting the application of the petitioner’s sister filed for
issuance of the community certificate, in which order the second respondent had
observed that a report would be submitted to the District Collector, Tirunelveli
to examine the community certificate already issued to the petitioner and to his
other sister by the then Tahsildar of Ambasamudram. Subsequently, pursuant to
the observation made in the order dated 31.3.2005, the second respondent had
also submitted a report dated 02.06.2005 stating that the then Tahsildar,
Ambasamudram had issued community certificate to the writ petitioner as Hindu
Pallan community wrongly. Based on the report of the second respondent, enquiry
was conducted by the first respondent. The writ petitioner had also appeared in
the enquiry and after completing the enquiry, the first respondent had cancelled
the community certificate of the petitioner.
6. By assailing the order dated 5.1.2007, the learned counsel for the writ
petitioner contended that the first respondent while passing the said order, has
not met all the points which were raised by the father of the petitioner, and
the said order was passed without application of mind. Further, the learned
counsel for the petitioner took this Court to the report dated 2.6.2007
forwarded by the second respondent to the first respondent which had become the
base for the first respondent to pass the order of cancellation of the community
certificates issued in favour of the petitioner and pointed out the various
infirmities found in the said report.
7. The learned counsel for the petitioner argued that the second
respondent prepared the said report on the following assumptions:
(i) the petitioner was baptized in the Church (ii) the mother of the
petitioner is only following Christianity (iii) Christian symbols are found in
the house of the petitioner. On going through the said report, we find that the
second respondent has come to the conclusion that the petitioner is not a Hindu
and he is following Christianity, and as such, he cannot be considered to belong
Hindu Pallan Community as stated in the Certificates issued by the then
Tahsildar of Ambasamudram. Hence, based on the earlier report of the then Zonal
Deputy Tahsildar who made an enquiry in the village by examining the people of
the petitioner’s case and also people belongs to other caste, the second
respondent has come to the conclusion that the community certificate issued in
favour of the writ petitioner as Hindu Pallan is wrong. Further, a careful
scrutiny of the said report reveals that the second respondent has come to the
said conclusion, mainly based on the statement given by the Parish Priest of the
Church and also based on the extract of the Baptism Register of the RC Church
Cheranmahadevi. Further it is found from the report of the second respondent,
that the Parish Priest in his statement had admitted that an earlier occasion he
has given a certificate to the effect that the petitioner does not belong to
Christian community only to oblige the request made by the father of the
petitioner, without verifying the Baptism Register, and further in the said
statement he had accepted the particulars given by him on the earlier occasion
in favour of the writ petitioner are incorrect and thereby prevaricated his
versions and stated that the writ petitioner belongs to Christianity and he was
Baptized in the Church on 18.09.1976 in the name of Marie Joei. Further in the
said statement, he had also stated that from the father of writ petitioner he
came to know that writ petitioner Ram Sankar was also called as Marie Joei,
which name was found in the Baptism Register. Hence, by placing a strong
reliance on the statement of the Priest and also on the Baptism Register,
respondent No.2 sent a report to the respondent No.1, stating that the writ
petitioner is a Christian and does not belong to Hindu Pallan community which
have influenced the first respondent to cancel the earlier community certificate
issued in favour of the writ petitioner by the then Tahsildar, Ambasamudram.
8. Per contra, the learned Government Advocate made his submission that
the report sent by the respondent No.2 could not be found fault with and as
such, the cancellation made by the respondent No.1 based on the said report is a
well considered order and the writ petition has got to be dismissed.
9. Now the question to be decided in this writ petition is whether the
order dated 5.01.2007, passed by the first respondent cancelling the earlier
community certificate of the writ petitioner based on the second respondent’s
report dated 2.6.2005 is proper.
10. It is not in dispute that the writ petitioner belongs to Pallan
community. The issue is only with regard to which religion the petitioner
belongs to. A perusal of order dated 5.01.2007, clearly shows that the Baptism
Register issued by R.C.Church, Cheranmadevi and the statement of Parish Priest
of R.C.Church have become the main reasons for the cancellation of community
certificate.
11. As pointed out by the learned counsel for the petitioner the same
Priest on earlier occasion had stated that the petitioner does not belong to
Christian Community. Further more, the earlier certificate was issued by the
Tahsildar after making a detailed enquiry through his Zonal Deputy Tahsildar
with the residents of the village from where the petitioner is hails by
examining the persons from his community and also from the other community and
also based on the report of Zonal Deputy Tahsildar. In the said circumstances,
in our considered view the cancellation made by the first respondent by giving
importance to the statement of Parish Priest, who has given contradictory
statement on two different occasions is not correct. Moreover, the said Parish
Priest has stated in his statement, he knows that only from the father of the
petitioner that the writ petitioner was also called as Maria Joie. That portion
of statement clearly shows that he was not making any definite statement.
Moreover, even assuming for a moment, that the writ petitioner was Baptized on
18.9.1976 in the name of Marie Joie he was only 3 months old child, at the time
of the said Baptism. In the said circumstances there should be a conclusive
evidence that the writ petitioner was following only Christianity right from
his childhood especially in the circumstances when he was born to a Father who
belongs to Hindu Pallan community and whose mother also belongs to the same
community after conversion from Christianity to Hindu at the time of her
Marriage. Hence, as argued by the counsel for appellant by relying upon the
judgement reported in AIR 1984 Supreme Court case 600 in the case of Kailash
Sonkar vs. Smt.Maya Devi performing of ceremonies without the child knowing what
is being done but after the child has grown up and becomes fully mature and also
has to decide his future, is fully acceptable one considering the facts of the
given case. In the instant case, no such conclusive evidence was available on
records whether the petitioner was following only Christianity, even if the
Baptism is taken as true. Therefore, the cancellation made by the first
respondent based on the report of the second respondent is not proper since the
second respondent had formed an opinion based on the statement of the Parish
Priest who was giving a frequently changing stance with regard to the Religion
of writ petitioner and also not making any definite statement with regard to the
name found in the Baptism Register. Further more, the learned counsel also
vehemently contended that the writ petitioner was practicing only Hinduism and
he is strong believer of Hinduism and in such circumstances, no significance can
be given to the Baptism given to him when he was a 3 months old child, even if
it is assumed to be true.
12. In this regard, the reliance was also placed by the learned counsel
for the petitioner in the Judgment of the Hon’ble Supreme Court reported in AIR
1984 S.C. (411) (S.Anbalagan vs. B.Devarajan), a dictum which squarely applies
to the facts of the present case. In the said case, it has been held as follows:
“The birth extract of the first respondent, Devarajan shows his parents as
Hindu Adi Dravidas. Throughout his educational career, he was treated as a Hindu
student belonging to the Scheduled Castes and was awarded scholarships on that
basis. The school records relating to his children also show them as Hindu Adi
Dravidas. On one occasion in the admission register of a school, he was wrongly
shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back
as in 1948. He never attended a church. On the other hand, there is acceptable
evidence to show that he was offering worship to Hindu deities in Hindu temples
and that his marriage was performed according to Hindu custom and rites. Our
attention was however, drawn to the finding of the Tribunal that the sisters of
the first respondent professed Christianity as revealed by their service
registers. Our attention was further invited to certain evidence indicating that
the parents of the first respondent had become Christians and that the first
respondent himself had been baptised when he was seven months old. Even assuming
that the parents and sisters of the first respondent had become Christians and
that the first respondent himself had been baptized when he was seven months
old, we see no difficulty in holding, on the evidence in the case, that the
first respondent had long since reverted to Hinduism and to the Adi Dravida
caste. There is not a scrap of acceptable evidence to show that he ever
professed Christianity after he came of age. On the other hand, every bit of
evidence in the case shows that from his childhood, he was always practicing
Hinduism and was treated by everyone concerned as an Adi Dravida. There is then
the outstanding circumstance that the voters of the Rasipuram Parliamentary
Constituency reserved for the Scheduled Castes accepted his candidature for the
reserved seat and elected him to the Lok Sabha twice. We have no doubt
whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed
no religion other than Hinduism. The case was rightly decided by the Election
Tribunal and the appeal is accordingly dismissed with costs.”
13. Per contra, the learned counsel appearing for the respondents relied
upon a judgment reported in AIR 1996 SC 1182, S.Swvigaradoss vs. Zonal Manager,
F.C.I., wherein it has been held that,
“In view of the admitted position that the petitioner was born of
Christian parents and his parents also were converted prior to his birth and no
longer remained to be Adi Dravida, a Scheduled Caste for the purpose of
Tirunelveli District in Tamil Nadu as notified by the President, petitioner
cannot claim to be a Scheduled Caste. In the light of the Constitutional Scheme
Civil Court has no jurisdiction under Section 9 of C.P.C to entertain the suit.
The Suit, therefore, is not maintainable. The High Court, therefore, was right
in dismissing the suit as not maintainable and also not giving any declaration
sought for.”
14. We are of the opinion that the case relied upon by the learned counsel
for the respondents is not applicable to the facts of the given case, since in
the case on hand, there is abundant material to hold that the father of the
petitioner is a Hindu by birth and was professing the same till date and even
though the mother of the petitioner was a Christian, she also converted to
Hinduism after her marriage. At this juncture, it is also to be pointed out that
a caste to which a Hindu belongs is essentially determined by birth. When a
person is converted to Christian or some other religion, 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. For this, we draw support from the judgment of the
Honourable Apex Court in KAILASH SONKAR vs. MAYA DEVI [(1984) 2 SCC 91]. Even
earlier, in C.M.ARUMUGAM vs. S.RAJAGOPAL [(1976) 1 SCC 863], a Three Judge Bench
of the Honourable Apex Court has held:
“On reconversion to Hinduism, a person can once again become a member of
the caste in which he was born and to which he belonged before conversion to
another religion, if the members of the caste accept him as a member. Hence, on
reconversion to Hinduism, a person can once again become a member of the
Scheduled Caste to which he belonged prior to his conversion for the social and
economic disabilities once again revive and become attached to him.
Since a caste is a social combination of persons governed by its rules and
regulations, it may, if its rules and regulations so provide, admit a new member
just as it may expel an existing member. The rules and regulations of the caste
may not have been formalised; they may not exist in black and white; they may
consist only of practices and usages. If, according to the practices and usages
of the caste, any particular ceremonies are required to be performed for
readmission to the caste, a reconvert to Hinduism would have to perform those
ceremonies if he seeks readmission to the caste. But, if no rites or ceremonies
are required to be performed for readmission of a person as a member of the
caste, the only thing necessary for readmission would be the acceptance of the
person concerned by the other members of the caste.”
For all the above reasons, the judgment relied on by the learned counsel
for the respondents has no application to the facts of the case on hand.
15. The case relied upon by the learned counsel for the petitioner reported
in AIR 1984 S.C. (411)(cited supra) has clearly discussed about the effect of
the Baptism given to a child, who is not knowing what is being done but after
the child has grown up and become fully matured, and can decide its future and
also the consequent by following another religion and its social status. In the
light of the above, we are of the opinion, first of all the report sent by the
second respondent is not based on any conclusive proof when already a community
certificate was issued by the then Tahsildar of Ambasamudram by making a
detailed enquiry. Secondly even assuming for a moment, the baptism is true, the
baptism given to the writ petitioner, when he was three months old child have
any bearing in changing his social status. Subsequently, when he practiced
Hinduism from the childhood which is a vital issue to be decided, especially,
in the circumstances, when he was born to a father belonging to Hindu Pallan
Community and mother, who though by progeny belong to Pallan Community and
embraced Christianity and got converted from Christianity to Hinduism at the
time of her marriage. But in the report submitted by the second respondent, no
detailed discussion was made with regard to the above aspects.
16. At this juncture, we also feel it apt to quote a Constitutional Bench
judgment of the Honourable Apex Court in E.V.CHINNAIAH vs. STATE of A.P. [(2005)
1 SCC 394, wherein it has been held as follows:
“Scheduled Caste is not a caste in terms of its definition as contained in
Article 366(24) of the Constitution. They also brought within the purview of the
said category by reason of their abysmal backwardness. Scheduled Caste consists
of not only the people who belong to some backward caste but also race or tribe
or part of or groups within caste, races or tribes. They are not merely backward
but the backwardmost. A person does not even cease to be a Scheduled Caste
automatically even on his conversion to another religion”.
17. In the said circumstances, we are of the view that the cancellation
made by an order dated 5.01.2007 issued by the first respondent is not proper
and hence we do not hesitate to set aside the said order. Accordingly, the said
order is quashed and consequently we are referring this matter to the first
respondent Committee. The first respondent Committee is directed to
independently conduct an enquiry by giving an opportunity to both the parties
and also summoning and examining all the relevant records, which the committee
feels necessary to decide the issue covering the entire points raised for
discussion in this order, in the light of the legal principle enunciated by the
judicial pronouncements and the test to be followed to decide the caste of a
person as referred to above. Hence, the Writ petition is disposed of
accordingly. Consequently, connected Miscellaneous petition is also closed. No
costs.
akv
To
1. The District Level Vigilance Committee,
for Verification of Community,
Tirunelveli District.
2. The Revenue Divisional Officer,
Cheranmahadevi,
Tirunelveli District.