N. Jayarani v. Tamil Nadu Public Service Commission, rep.by its Secretary, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22-4-2009CoramTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.42261 of 2006M.P.No.1 of 2008N. Jayarani ..PetitionerVs.1.Tamil Nadu Public Service Commission,rep.by its Secretary,Chennai.2.The Under Secretary,Tamil Nadu Public Service Commission,Chennai. ..RespondentsThis Writ petition came to be numbered under Article 226 of theConstitution of India, by transfer of O.A.No.3626 of 1999 from thefile of the Tamil Nadu Administrative Tribunal with a prayer to callfor the records of the second respondent vide his MemorandumNo.697/PSD-D3/99 dated 14.6.1999 and quash the same as illegal.For Petitioner:Mrs.A.ArulmozhiFor Respondents:Mr.BhaskarStanding Counsel for TNPSCO R D E RThe prayer in the writ petition is to quash the order of thesecond respondent dated 14.6.1999, directing the petitioner toproduce the community certificate obtained in her father's name asthe community certificate produced by the petitioner in the name ofher husband cannot be accepted.2.The case of the petitioner as could be seen from theaffidavit are as follows:(a)Petitioner was born to the parents belonging to Adi DravidaChristian community and passed B.Com degree. During her marriagewith one Nathan, she re-converted to Hinduism and the marriage wassolemnised under the Hindu rites on 21.10.1992. Petitioner's husbanddied in an accident on 11.4.1996. Petitioner declared her status as https://hcservices.ecourts.gov.in/hcservices/ she belongs to scheduled caste community, in the Tamil NaduGovernment Gazettee, dated 22.7.1998 by stating that she re-convertedto Hinduism in the name of D.Jayarani Nathan on 21.10.1992.(b)Petitioner applied for the post of Group-IV servicesconducted by the TNPSC for the year 1996-1997. She had produced acertificate issued by the Tahsildar, Radhapuram, dated 31.3.1993,wherein it is certified that the petitioner belongs to Hindu AdiDravida community, which is recognised as a scheduled castecommunity, as per G.O.Ms.No.1564 dated 13.7.1985 and the SC&ST Orders(Amendment) Act, 1976, vide Sl.No.204. Petitioner also produced acertificate from the Sub-Collector, Cheranmahadevi, dated 1.10.1996to show that she is a destitute widow as her husband died on11.4.1996.(c)The respondents, provisionally selected the petitioner forappointment to the post of Junior Assistant-cum-Typist and theselection order was communicated by the second respondent through hismemo dated 19.1.1999. Petitioner was allotted to Tirunelveli RevenueDistrict and she joined in service as Junior Assistant in MadhapuramTreasury Office, Tirunelveli District in February, 1999.(d)While the petitioner was serving in the said post, shereceived a memo issued by the second respondent dated 14.6.1999,wherein the petitioner was requested to produce a fresh communitycertificate obtained in her father's name, as the communitycertificate already produced in the name of her husband cannot beaccepted. Petitioner was also directed to produce the B.Com degreecertificate or provisional certificate.(e)The petitioner has no objection to produce the B.Com degreeor provisional certificate and only the direction to produce thefresh community certificate obtained in her father's name ischallenged by the petitioner by filing O.A.No.3626 of 1999. TheTamil Nadu Administrative Tribunal by order dated 5.7.1999 grantedinterim stay, which was ordered to continue until further orders on19.7.1999 and by virtue of the said order, petitioner is continuouslyserving in the Revenue Department as no further order is passed bythe respondents.(f)The grounds raised in the original application, which isnow transferred to this Court and numbered as the above writ petitionare that the petitioner has already converted herself to Hinduism on21.10.1992 and her marriage was performed as per the Hindu rites andcustoms; and that the petitioner's late husband Nathan was a HinduAdi Dravida and the petitioner having been converted to Hinduism andher marriage performed as per the Hindu rites and customs with thesaid Nathan, who was admittedly a Hindu Adi Dravida, the communityaccepted the petitioner as a Hindu Adi Dravida and taking note of thesaid facts, the Tahsildar, Radhapuram, issued community certificate https://hcservices.ecourts.gov.in/hcservices/ to the petitioner on 31.3.1993 and the said community certificatehaving not been cancelled or challenged by anybody, the respondentsare bound to accept the said community certificate for all purposesand demanding fresh community certificate mentioning the name of thepetitioner's father, is unsustainable.3.The respondents filed counter affidavit stating that thepetitioner's father's name was Devadasan and the said name being aChristian name, doubt arose as to whether the petitioner actuallybelongs to Hindu religion. It is also stated therein that only aperson belonging to Hindu religion, hails from the communitiesincluded in the list of Scheduled Caste, can be considered as aScheduled caste candidate and the person belonging to Christianreligion, even though belongs to anyone of the communities includedin the list of scheduled caste, cannot be considered as a scheduledcaste candidate and they can be considered only as backward classcandidate, and that a person who is a scheduled caste by birth alonewill be deemed to be a member of the scheduled caste community. TheGovernment also issued letter No.81 Adi Dravida and Tribal WelfareDepartment, dated 19.9.2000 stating that a christian converted toHindu faith cannot claim the status of Hindu Adi Dravida andtherefore the demand of the respondents to produce a fresh communitycertificate through the impugned order is valid.4.Heard the learned counsel for the petitioner as well as thelearned standing counsel for the respondents.5.The point for consideration in this writ petition is,whether the petitioner can claim the status of scheduled caste onbeing converted to Hindu religion and by marrying the said Nathan on21.10.1992 and after the demise of her husband on 11.4.1996, whethershe can be treated as Scheduled Caste destitute widow, to claimappointment under the said category for selection to the post ofJunior Assistant-cum-Typist, coming within Group-IV service.6.The petitioner was born to christian parents, is not indispute. Petitioner's conversion to Hindu faith and her marriage withthe said Nathan on 21.10.1992 according to Hindu rites and custom isalso not in dispute. By virtue of the said marriage, Hindu AdiDravida community accepted the petitioner to the said community iswell established. Petitioner applied for community certificate beforethe Tahsildar, Radhapuram, who issued the community certificate on31.3.1993 after local enquiry, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Certificate No.2185501District Code : 18 Taluk Code: 09 Village Code : 001COMMUNITY CERTIFICATEThis is to certify that Jayarani, wife of ThiruNathan of V.Vallioor II Village/Town RadhapuramTaluk, Tirunelveli Kattabomman District of the Stateof Tamil Nadu, belongs to Hindu Adi Dravidarcommunity, which is recognised as a Scheduled Casteas per G.O.Ms.No.1564 dated 30.7.85. The S.C. andS.T. Orders (Amendment) Act, 1976, vide Sl.No.204.2.It is certified that Jayarani and herfamily ordinarily reside(s) at V.Vallioor IIVillage/Town Radhapuram taluk, TirunelveliKattabomman district of the State of Tamil Nadu.Sd/- xxxx 31-3-93Tahdildar, Radhapuram."On the death of the petitioner's husband on 11.4.1996, she had alsoobtained destitute widow certificate from the Sub-Collector,Cheranmahadevi. In the gazettee notification dated 22.7.1998, it isnotified as follows:"Thirumathi D.Jayarani (Christian), daughter ofThiru M.Devadason, born on 19th May, 1967 (nativeplace: Vallioor), residing at 31, East Street,Oothady, Vallioor and Post - 627 117, hasreconverted to Hinduism with the name of D.JeyaraniNathan on 21st October, 1992. D. JEYARANI."From the above referred documents it is evident that the petitionergot herself converted to Hindu religion on 21.10.1992 and living asHindu Adi Dravida and her husband having died on 11.4.1996, she is adestitute scheduled caste widow.7.The petitioner applied for Group-IV service and wasselected and appointed as Junior Assistant/Typist. The impugnednotice was issued on the ground that the Government issued letterNo.81 Adi Dravida and Tribal Welfare Department, dated 19.9.2000stating that persons converted to Hinduism from Christian religionare not entitled to claim scheduled caste status. The saidGovernment letter was cancelled through G.O.Ms.No.1 Adi Dravida andTribal Welfare Department, dated 2.1.2009, pursuant to the orderissued by the Division Bench of this Court in W.P.No.14769 of 2002dated 13.4.2007 and the Government ordered to give scheduled caste https://hcservices.ecourts.gov.in/hcservices/ status to the persons re-converted to Hinduism, Sikhism and Buddhismfrom christianity, provided they are accepted by their community.The relevant portion of G.O.Ms.No.1 Adi Dravida and Tribal WelfareDepartment, dated 2.1.2009 reads as follows:"The children born to Christian Schedule Casteparents i.e., Christian by birth, converted toHinduism, Sikhism or Buddhism at a later date andthe Scheduled Caste parents embracing Hinduism,Sikhism or Buddhism converted to other religion andsubsequently reconverted to Hinduism, Sikhism orBuddhism, if they are accepted by their communitypeople, the Revenue Authorities can issue ScheduledCaste community certificate to them to becomeeligible for the constitutional privileges conformedon the Hindu Scheduled Caste (following Hinduism,Sikhism or Buddhism) and order accordingly."8.In the light of the above stand of the Government andhaving regard to the fact that the community certificate issued tothe petitioner by the Tahsildar, Radhapuram, is not cancelled, therespondents have no jurisdiction to direct the petitioner to producecommunity certificate mentioning the name of her father.9.Whether a Christian Adi Dravida converted to Hindu faithmarrying a Hindu Adi Dravida and accepted by the community asScheduled caste member, can get the benefit of reservation given tothe Scheduled caste community, was considered by me in W.P.No.38602of 2006 dated 9.4.2009, and held that the petitioner in the saidwrit petition is bound to be treated as scheduled caste candidate.The following decisions of the Supreme Court as well as the DivisionBench of this Court were followed in the said case.(a)In (1984) 2 SCC 91 (Kailash Sonkar v. Maya Devi), aChristian by birth when converted to Hinduism and married a member ofthe Scheduled Caste, was held to be belonging to her husband's casteon the evidence that she had not only been accepted, but alsowelcomed by the important members including the President and VicePresident of the community.(b)In the decision reported in (2003) 8 SCC 204 (Punit Rai v.Dinesh Chaudhary) it is held that the caste of the parents determinesthe caste of the person, but in case of re-conversion, a person hasthe liberty to renounce his casteless status and voluntarily accepthis original caste. His caste status at birth is not immutable.Change of religion does not necessarily mean loss of caste. If theoriginal caste is not positively disproved, the acceptance of thecaste can be presumed. Such acceptance can also be presumed if he iselected by a majority to a reserved seat. https://hcservices.ecourts.gov.in/hcservices/ (c)In the decision reported in (2004) 1 SCC 1082 (State ofKerala & Another V. Chandramohanan) it is held that it cannot beaccepted that merely by change of religion person ceases to be amember thereof or not must be determined by the appropriate court assuch and the question would depend upon the facts of each case. Insuch a situation it has to be established that a person who hasembraced another religion is suffering from social disability andalso following the customs and traditions of the community.(d)Similar question was considered by the Division Bench ofthis Court in the decision reported in 2002 WLR 825 (N.S.Ziauddeen v.S.Ashok Kumar, Principal Sessions Judge) and in paragraph 10 theDivision Bench held as follows:"10........................ we are unable toaccept the contention of Mr.A.Sirajudeen, learnedcounsel for the petitioner, that either there is anabsolute bar for a non-Hindu to convert intoHinduism or that even such conversion will notrestore the old caste to which he or his parentsbelonged to and more so in view of the authoritativepronouncements of the Constitution Bench of theSupreme Court in Mohan Rao's case (supra). In fact,that case is closer to the facts of this case. Inthat case, Mr.Mohan Rao was born to parentsbelonging to Madiga caste, which is a recognisedScheduled Caste in the State of Andhra Pradesh andthey were both converted to Christianity andMr.Mohan Rao was born as Christian and later on,when he attained the age of 14, he was re-convertedas Hindu. It is apt to extract the relevant passagecontained in paragraph 7 thereto."The reasoning on which this decisionproceeded is equally applicable in a casewhere the parents of a person are convertedfrom Hinduism to Christianity and he is bornafter their conversion and on his subsequentlyembracing Hinduism, the members of the caste,to which the parents belonged prior to theirconversion, accept him as a member within thefold. It is for the members of the caste todecide whether or not to admit a person withinthe caste. Since the caste is a socialcombination of persons governed by its rulesand regulations, it may, if its rules andregulations so provide, admit a new member justas it may expel an existing member. The onlyrequirement for admission of a person as amember of the caste is the acceptance of the https://hcservices.ecourts.gov.in/hcservices/ person by the other members of the caste, for,as pointed out by Krishnaswami Ayyangar, J., inDurgaprasada Rao v. Sundarsanaswami, AIR 1940Mad 513 = 51 L.W.159, in matters affecting thewell being or composition of a caste, the casteitself is the supreme judge (emphasissupplied). It will, therefore, be seen that onconversion to Hinduism, a person born ofChristian converts, would not become a memberof the caste to which his parents belonged,prior to their conversion to Christianity,automatically or as a matter of course, but hewould become such member, if the other membersof the caste accept him as a member and admithim within the fold."In this case too, the parents of the firstrespondent belonged to Adi Dravidar caste and theygot converted to Christianity in mid-thirties andthese facts are not disputed. Equally, the factsthat the first respondent was a born Christian afterthe conversion of his parents into Christianity,that his name was S. Antonysamy, a Christian name,and it continued to be so in all the school recordsand even up to the degree and Post-graduate degreeincluding that of Degree in law and that he wasenrolled as an advocate in the name of S.AntonySamy, are not disputed. But the first respondentclaims that he got converted as Hindu pursuant toSudhi ceremony and that he got married according toHindu rites and even his daughter married a Hinduaccording to Hindu rites and that he is notprofessing Christianity but professing Hinduism andthat still he remains a Hindu and that he wasaccepted as Hindu by his community on re-conversionand that the authorities to issue the CasteCertificate have issued the same on verification.While the conducting of Sudhi ceremony by the AryaSamaj and the effect thereof and also the acceptanceof the first respondent into the community,performance of marriage between the first respondentand his wife according to Hindu rites and also thatof his daughter later are all pure questions offact. ............."Applying the above said decisions to the facts of this case, I holdthat the petitioner has established her status as a member of thescheduled caste community. https://hcservices.ecourts.gov.in/hcservices/

10.The next issue is, whether the respondents can direct thepetitioner to produce fresh community certificate, mentioning thename of petitioner's father and whether the TNPSC has jurisdiction tomake such a demand.11.A similar matter was considered by the Division Bench ofthis Court in the decision reported in 2004 WLR 372(K.K.Senthilkumaran & Another v. The Secretary, Tamil Nadu PublicService Commission). The Division Bench in the above casespecifically held that the TNPSC has no power to verify thegenuineness of the community certificate of the candidates to beselected and if a candidate has produced valid community certificate,the same shall be accepted for giving appointment. Following thesaid Division Bench decision, I have set aside similar notice issuedby the TNPSC and the said judgment is reported in 2006 (5) CTC 252(R.Suguna v. The Tamil Nadu Public Service Commission). InR.Kandasamy v. The Chief Engineer, Madras Port Trust, reported in1997 WLR 806, the Honourable Supreme Court held that once a communitycertificate is issued to a person by the competent authority, thesame is valid until the same is cancelled. Thus, the respondentshave no jurisdiction to issue the impugned notice.12.The impugned order passed by the respondents is heldunsustainable as the petitioner has already produced valid communitycertificate issued by the competent authority to show that shebelongs to Hindu Adi Dravida, a scheduled caste community.The writ petition is allowed and the impugned order dated14.6.1999 is set aside. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary, Tamil Nadu Public Service Commission, Chennai.2.The Under Secretary, Tamil Nadu Public Service Commission, Chennai.+ 1 c.c. to Mr. M. Baskar, Advocate. S.R.No.16875.+ 2 c.cs. to Mrs. A. Arulmozhi, Advocate. S.R.Nos.16616 & 11927. Order in W.P.No.42261 of 2006TS (CO)GSK 28.04.2009.