High Court · 2007

THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.12.2007CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE K.K. SASIDHARANW.A.Nos.2057 & 2058 of 2001& W.P.No.23054 of 2002Kanyakumari Mavatta Meen PedikkumThozhilalar Sangam Reg.No.104/KKMNo.51, MeenakshipuramNagercoil-1 rep.by itsPresident Mr.G.Selestine...Appellant in W.A.No.2057 of 2001/RespondentS.Joseph Gerald..Appellant in W.A.No.2058 of 2001/ Respondent -Vs.-1. Government of Tamil Nadu rep.by Secretary to Government Revenue Department Fort St.George Chennai-9.2. The Secretary to Government Backward Classes, Most Backward Classes and Minorities Welfare Department Fort St.George Chennai-9.3. The District Collector Kanyakumari District at Nagercoil..Respondents in both appeals/ RespondentS. Surjith.Pettiioner in W.P.No.23054 of 2002-Vs.- https://hcservices.ecourts.gov.in/hcservices/

1. Government of Tamil Nadu rep.by its Commissioner and Secretary to Government Revenue Department,Fort St.George Chennai-9.2. Commissioner and Secretary to Government Backward Classes Welfare Nutrition Meals Programme and Social Welfare Department Fort St.George, Chennai-9.3. The Tahsildar Agasthesswaram Taluk Kanyakumari District.4. The Secretary Tamil Nadu Engineering Admission Anna University, Chennai-25. ..Respondents in the W.P.No. 23054/02Writ appeals against the common order dated 16.7.2001 inReview Application Nos.66 and 65 of 2001 in W.P.Nos.17070 of 1998 andW.P.Nos.5075 of 1997 respectively.Petition filed under Article 226 of the Constitution of India,praying to issue a Writ of Certiorarified Mandamus calling for therecords relating to the order in G.O.M.S.No. 1509 Revenue Department,dated 27.11.1991, quash the same in so far as it relates to ParavarChristians in Kanyakumari District and Shencottai Taluk ofTirunelveli-Kattabomman District under the Caption “Conversion Cases”in the Annexure to the said Government order, and direct theRespondents to treat Paravar Christians in Kanyakumari District andShencottai Taluk of Tirunelveli Kattabomman District as Most BackwardClass as per Government Order G.O.Ms.No. 242, Backward Class WelfareNutritious Meal Programme and Social Welfare Department, dated28.3.1989 as amended in Government Letter No. 42124/BCC/89-6 BackwardClass, Nutritious Meal Programme and Social Welfare Department, dated14.8.89 and G.O.M.No. 1566, Social Welfare Department dated 30.7.1985,respectively.Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issue of a writ of a Writ of Mandamus directingthe 4th respondent to give admission to the petitioner in 1st yearB.E.Degree Course for the year 2002-2003 under Most Backward Quotapursuant to G.O.Ms.NO.28, Backward and Most Backward Classes WelfareDepartment dated 19.7.1994. https://hcservices.ecourts.gov.in/hcservices/ For Appellants & petitioner in WP : Mr.R.Subramanian, SC for Mrs.HemalathaFor Respondents : Mr.L.S.M.Hasan Fizal, GANo.1 to 3 in Was & WPCOMMON JUDGMENT(Judgment of the Court was delivered by P.K.Misra, J) Heard Mr.R.Subramanian, learned Senior Counsel for theappellants and Mr.L.S.M.Hasan Fizal, learned Government Advocate forthe respondents. 2. These two writ appeals are directed against the commonorder passed by the learned Single Judge in review application Nos.65and 66 of 2001. The present appellants had filed W.P.Nos.5075 of 1997and 17070 of 1998 respectively for quashing G.O.Ms.No.1509 dated27.11.1991. The learned Single Judge after hearing the counsel forboth parties had allowed the said writ petitions by a common orderdated 4.8.2000. Subsequently the Government filed Review ApplicationNos.65 and 66 of 2001 against the said order. The learned Single Judgehowever at that stage allowed the review applications and dismissedthe writ petitions. The two appeals are against the said order.3. The connected W.P.No.23054/2002 was filed by a student inthe year 2002 claiming that he should be treated as belonging to "MostBackward Community" as per G.O.Ms.No.28 of 1994 dated 19.7.1994 andshould be given admission to a particular college. It is no doubttrue, since the admissions to the particular college for thatparticular year and in fact for five subsequent years are over, noreal relief could be granted to such petitioner. However thecontentions raised in the said writ petition are also required to benoticed, as the said contentions are similar to the contentionsraised in the two writ appeals. https://hcservices.ecourts.gov.in/hcservices/

4. For appreciating the question involved, it would benecessary to notice the various facts and developments. G.O.Ms.No.437dated 15.5.1972 contains the list of communities forming part ofBackward Classes within the State of Tamil Nadu. As per Sl.No.20 ofsuch list, converts to Christianity from Schedule Caste areconsidered as "Backward Class" throughout Tamil Nadu. As per Sl.No.76“Paravar” is considered as belonging to "Backward Class" throughoutTamil Nadu. As per Sl.No.77 Paravar Christian (in Kanyakumari andShencottah Taluk of Tirunelveli District) was considered as belongingto "Backward Class". At this stage it is necessary to notice thatHindu Paravar in Kanayakumari and Shencottah Taluk of TirunelveliDistrict had been included as belonging to Schedule Caste as per thePresidential notification and continues to be so. 5. Subsequently on the basis of the representation receivedfrom Christian Association to extend all concessions granted toFisherman community (Hindus) to Fisherman Christians (ParavarChristians), the Government issued a notification declaring theFisherman Christians belonging to Paravar, Mukkuvar or Mukayar,Parvatharajakulam, Pattanavar, Sembadavar, Meenavar communities inTamil Nadu as socially and educationally backward class of citizenswithin the meaning and for the purpose of Article 15(4) of theConstitution of India. Accordingly amendment was made in respect ofentries 64,76 and 79 by including Mukkuvar or Mukayar includingconverts to Christianity, Paravar including converts to Christianity,Meenavar (Parvatharajakulam, Pattanavar, Sembadavar) includingconverts to Christianity as belonging to "Backward Class". In suchamendment, entry No. 77 was omitted. That was obviously because asper entry 76 Paravar including converts to Christianity had beenincluded and therefore there was no necessity to continue a separateentry as per Sl.No.77. 6. Subsequently, G.O.Ms.No.1566 dated 30.7.1985 was issuedindicating certain communities to form part of "Most Backward Class"for educational purposes. As per Sl.No.27 Paravar (Except inKanyakumari District and Shencottah Taluk of Tirunelveli Districtwhere the community is Scheduled Caste) was considered as "MostBackward Class" for educational purposes. Sl.No.28 indicated Meenavar(Parvatha Rajakulam, Pattanavar, Sembudavan) including converts toChristianity as "Most Backward Class". Thereafter G.O.Ms.No.242dated 28.3.1989 was issued wherein the above communities were treatedas "Most Backward Class" for the purpose of appointment in publicservice.7. Subsequently representations having been received from theChristian Association, the Government decided to amend G.O.Ms.No.242dated 28.3.1989. The amendment is to the following effect: https://hcservices.ecourts.gov.in/hcservices/ " In the said Government order, in theAnnexure under the heading "List of MostBackward Classes throughout the State of TamilNadu" for the entries against serial number 27,the following entries shall be substituted,namely :-"27. Paravar (except in Kanniyakumaridistrict and Shencottah taluk of Tirunelveli –Kattabomman district where the community isscheduled caste)(including converts toChristianity)".8.In G.O.Ms.No.1509 dated 27.11.1991, it was clarified asfollows:-"If a person belonging to ScheduledCaste converts himself to Christianity, hewill cease to belong to scheduled caste andhe will be deemed to belong to BackwardClasses. Backward Classes, Most BackwardClasses and Denotified Communities convertedto Christianity will be treated only asBackward Classes. There are certainexceptions. In the case of Meenavarparvatharajakulam, Pattanavar Sembadavar andMukkuvar of Mukayar found in the list ofMost Backward Classes, both the Hindus andChristian converts will be treated as MostBackward Classes vide G.O.Ms. No.1566 SocialWelfare Department dated 30.7.1985 andG.O.Ms.No.929 Backward Classes, WelfareNutritious Meals Programme an Social WelfareDepartment dated 7.11.89 respectively. Inthe case of paravar the Hindu Paravars willbe treated as Most Backward Classesthroughout the State except in KanniyakumariDistrict and Shencottah Taluk ofTirunelveli-Kattabomman District where thecommunity is Scheduled Caste and ParavarChristians will be treated as Most BackwardClasses throughout the state except inKanniyakumar District and Shencottah Talukof Tirunelveli District where the ParavarChristians will be treated as BackwardClasses – vide Government letterNo.42124/BCC/89-6, Backward Classes WelfareNutritious Meals Programme and Social https://hcservices.ecourts.gov.in/hcservices/ Welfare Department, dated. 14.09.1989."9. Contending that such clarification was against thetenor of the amendment effected as per letter dated 14.9.1989,the two writ petitions viz., W.P.Nos.5075 of 1997 and 17070 of1998 were filed. Such writ petitions were allowed in the firstinstance on the conclusion that in view of the amendment as perletter dated 14.9.1989, persons belonging to Paravar communityin Kanyakumari District and Shencottah Taluk of TirunelveliDistrict on being converted to Christianity would be treated asbelonging to "Most Backward Class." Subsequently, howeverthose orders were reviewed in the review applications. The twoappeals are against such orders passed in the ReviewApplications.10. The only question to be decided is whether the personsbelonging to Paravar Community in Kanyakumari District and ShencottahTaluk of Tirunelveli District, who are converted to Christianityshould be treated as belonging to "Most Backward Class" or should betreated as belonging to "Backward class"?11. The contention of the appellants is to the effect thatkeeping in view the history of the various amendments and GovernmentOrders issued, it is obvious that the persons belonging to suchParavar community, who were converted to Christianity should betreated as belonging to "Most Backward Class" as per G.O.Ms.No.242 asamended on 14.9.1989. The learned counsel appearing for the State onthe other hand has submitted that the conclusion of the learned SingleJudge in the two review applications is correct and those personsbelonging to Paravar Community in Kanyakumari District and ShencottahTaluk of Tirunelveli District, who were converted to Christianityshould be treated only as belonging to "Backward Class" as perSl.No.20 of G.O.Ms.No.437 dated 15.5.1972. It is submitted by thelearned counsel for the State that the expression "except inKanyakumari District and Shencottah Taluk of Tirunelveli Districtwhere the community is Scheduled Caste" also qualifies the subsequentexpression "including converts to Christianity" and therefore theParavar Community in Kanyakumari District and Shencottah Talu, ifthey belong to Hindu religion should be considered as belonging to"Scheduled Caste" and those who were converted to Christianity shouldbe treated as belonging to "Backward Class". 12. We have already noticed in detail the various changeseffected. As per Presidential notification, persons belonging to HinduParavar in Kanyakumari District and Shencottah Taluk of TirunelveliDistrict were members of Schedule Caste. There was a specific entryrelating to Paravar Christian in Kanyakumari District and ShencottahTaluk of Tirunelveli District as per Sl.No.77 in G.O.Ms.No.437 dated https://hcservices.ecourts.gov.in/hcservices/

15.5.1972 indicating that such persons belong to "Backward Class". If Sl.No.20 of the said Government Order was to be applicable to allcoverts to Christianity from Scheduled Caste, there was no necessityat that stage to specifically include Paravar Christians inKanyakumari District and Shecottah Taluk of Tirunelveli District asbelonging to "Backward Class". One must also notice that at thatstage Sl.No.76 relating to "Paravar" has come within "Backward Class"list. This obviously refers to Paravar Community throughout the Stateother than Kanyakumari and Shencottah Taluk in Tirunelveli Districtbecause such persons in Kanyakumari and Shencottah Taluk ofTirunelveli District were already included as Scheduled Caste as perPresidential Notification. Subsequently amendment was effected as perG.O.Ms.No.1116 dated 20.11.1978. At that stage all the six sub-sections of Fishermen and Fisherman converted to Christianity werebrought within the fold of "Backward Class" as per entries 64, 76 and79, which are extracted hereunder:-64. Mukkuvar or Mukayar including converts to Christianity.76. Paravar including converts to Christianity.79. Meenavar (Parvatharajakulam, Pattanavar,Sembadavar) including converts to Christianity"Since Paravar including converts to Christianity was already includedas belonging to Backward Class as per Sl.No.76, there was no furthernecessity to continue Sl.No.77 and therefore, such entry was omitted.Subsequently, G.O.Ms.No.1564 indicated the above communities asbelonging to "Most Backward Class" for educational purpose andG.O.Ms.No.242 indicated those persons as "Most Backward Class" for thepurpose of public service and only because of the representation madeb the Christian Association at that stage, the amendment was effected.13. It is thus obvious, keeping in view the background, theintention was to treat all the converts from Paravar communitythroughout the State as belonging to "Most Backward Class". Theexpression "Except in Kanyakumari and Shecottah Taluk of TirunelveliDistrict where the community is Scheduled Caste" obviously has areference to the Paravar community belonging to "Hindus, which was allalong being treated as belonging to Scheduled Caste as per thePresidential notification.14. Without keeping in view the background and history ofsuch amendment, the learned Single Judge has subsequently reviewed theearlier order. In our considered opinion, the conclusion renderedoriginally by the learned single Judge in the writ petitions was https://hcservices.ecourts.gov.in/hcservices/ correct and the subsequent order in the review applications was passedwithout keeping in view the real intention, background and the historyof the amendment. In such view of the matter the order passed in thereview applications is liable to be set aside and the order passed inthe writ petitions is restored. Accordingly, the writ appeals areallowed.15. Even though the above conclusion supports the maincontention raised in W.P.No.23054 of 2002, no specific direction canbe issued at this stage. However the petitioner in that case can seekfor further remedy for any purpose in accordance with law. So far asthe two appeals are concerned, necessary action shall be taken by theGovernment for issuance of community certificates to thepersons belonging to Paravar Community converted to Christiansthroughout the State including Kanyakumari and Shencottah Taluk ofTirunelveli District as belonging to "Most Backward Class".16. Clarification being contrary to the amendment, is of noeffect so far as converted Paravars of Kanyakumari District and ofShencottah Taluk of Tirunelveli District are concerned. No costs.Tr/dpkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government,Revenue Department,Fort St George,Chennai-9.2. The Secretary to Govt, Backward Classes, Most Backward Classes andMinorities Welfare Department, Fort St George, Chennai. -9.3. The District Collector, Kanyakumari District at Nagercoil.4.The Tahsildar, Agastheeswaram Taluk, Kanyakumari District.5.The Secretary, Tamilnadu, Engineering Admission, Anna University,Chennai-25.6.The Commissioner and Secretary to Govt, Backward Classes WelfareNutrition Meals Programme and Social Welfare Department, Fort St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

7. The Section Officer, Writ Section, High Court, Chennai-104.+ 2 Ccs to M/s. Hemalatha Advocate SR 74013+One cc to Govt Pleader SR 74023CU (co), sg 04/01/08W.A.NOS.2057 & 2058 OF 2001 & WP.No.23054 OF 2002