C. Clara @ Gomathi v. The Principal,Government Quai-De-Milleth Arts College for Women

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 9-4-2009CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.38602 of 2006C. Clara @ Gomathi... PetitionerVs.The Principal,Government Quai-De-Milleth Arts College for Women,Anna Salai,Chennai - 600 002.... RespondentThis Writ petition came to be numbered under Article 226 ofConstitution of India, by transfer of O.A.No.2314 of 1999 from thefile of the Tamil Nadu Administrative Tribunal with a prayer tocall for the records relating to the respondent and quash thetermination order issued by the respondent in Rc.No.235/C/98, dated26.3.1999 and to reinstate her in service.For Petitioner:Mr.Anandfor M/s.Anand & SuryaFor Respondent:Mr.P.Subramanian,Addl. Government PleaderO R D E RThe prayer in the writ petition is to quash the terminationorder dated 26.3.1999 passed by the respondent and reinstate thepetitioner in service.2.The brief facts necessary for disposal of the writpetition are as follows:(a)The petitioner was born as Christian Adi Dravida, whichis a backward class community and in the year 1991 she convertedherself as Hindu and changed her name as Gomathi. Petitioner gotmarried with one K.Govindaraj in the year 1991, who also belongs toHindu Adi Dravida community.(b)Prior to the conversion to Hindu religion, petitionerregistered her name in the Employment Exchange as Christian AdiDravidar in the year 1986, mentioning the community as Backwardclass. Subsequent to the conversion and marriage, according to thepetitioner, she has informed the same to the Employment Exchange.Due to the conversion and marrying a Hindu Adi Dravida, petitioner https://hcservices.ecourts.gov.in/hcservices/ also became a Hindu Adi Dravida, which has been recognised as ascheduled caste community and the list of the said caste is givenin Sl.No.284 in the recognised list of Scheduled Caste andScheduled Tribes Order (Amendment) Act, 1976.(c)The respondent College invited a list of candidates forfilling up of one scavenger post. Petitioner's name was sponsoredby the Employment Exchange for the post of Scavenger in therespondent College in May, 1998, pursuant to which she was calledupon to attend interview in June, 1998. Petitioner at the time ofinterview, produced all the certificates for verification and shehas not suppressed anything with regard to her community/caste.After verification of the records, petitioner was given appointmentby order dated 10.6.1998 and the petitioner also joined asScavenger in the respondent College immediately.(d)On 22.3.1999, petitioner was served with a memo and shewas called upon to submit her explanation within three days.Petitioner also submitted her explanation on 26.3.1999 andaccording to the petitioner, without considering the explanation,the respondent terminated the services of the petitioner by orderdated 26.3.1999. The said order was challenged by the petitionerby raising various grounds before the State Administrative Tribunalin O.A.No.2314 of 1999 and the State Administrative Tribunaladmitted the original application and ordered notice on 15.4.1999.(e)Petitioner challenged the order of termination bycontending that before terminating the services of the petitionerno enquiry was conducted, from the year 1991 onwards, thepetitioner became a Hindu Adi Dravida by conversion, which is ascheduled caste community and a certificate to that effect was alsoobtained from the Tahsildar, which was produced along with theexplanation and therefore the order of termination passed on theground that the petitioner belongs to backward class community isunsustainable. The community certificate obtained in the year 1989stating that the petitioner belongs to backward class community wasprior to her conversion and marriage. The petitioner thoughproduced fresh community certificate to show that the petitionerbelongs to scheduled caste/Hindu Adi Dravida community, the samewas not accepted by the respondent erroneously.3.The respondent has filed counter affidavit by statingthat in the Quai-De-Milleth Arts College for Women, Chennai-2, ascavenger post became vacant, which is a scheduled caste vacancy asper the roaster and a list was called for from the EmploymentExchange, Adyar, Chennai. The Employment Officer furnished thelist of 21 candidates belonging to Scheduled caste community.Petitioner's name having been sponsored under the said category,she was appointed temporarily as scavenger and the petitionerjoined duty on 18.6.1998. According to the respondent, at the timeof joining, the petitioner has not reported that she convertedherself as Hindu and changed her name as Gomathi. When thepetitioner completed six months of service, the respondent decidedto send all the original certificates for verification and forregularisation of petitioner's service and during the process of https://hcservices.ecourts.gov.in/hcservices/ verifying the original certificates, it was found that in thecommunity certificate submitted by the petitioner dated 1.3.1989,it was stated that the petitioner belongs to backward community(Christian Adi Dravida community). As the vacancy was intended toscheduled caste candidate and the petitioner belongs to backwardclass community, the District Employment Officer, Adyar, wasaddressed to clarify as to how the petitioner's name was sponsoredfor the vacancy meant for scheduled caste community and theDistrict Employment Officer replied that the appointment of thepetitioner may be treated as irregular appointment and she may notbe permitted to continue in the vacancy meant for scheduled castecommunity. Based on the same, petitioner's service was terminated.It is further stated in the counter affidavit that the petitioner'srepresentation was also considered and the community certificateproduced by the petitioner subsequently was also verified, whichwas issued on 23.3.1999 by the Tahsildar, Mylapore-TriplicaneTaluk, Chennai, i.e., after the issue of the show cause notice bythe respondent, wherein the petitioner's name was mentioned asC.Clara and not as C.Clara @ Gomathi. After terminating thepetitioner's service, the District Employment Officer was addressedto furnish a list of scheduled caste candidates and after receivingthe list, interview was conducted on 19.4.1999 and appointmentorder was issued to one Kaliammal on 20.4.1999 and she also joinedas Scavenger on 21.4.1999 and therefore there is no vacancyavailable. Relying upon the above averments made in the counteraffidavit, the respondent prayed for dismissal of the above writpetition.4.The learned counsel for the petitioner submitted thatthere is no dispute with regard to the facts of the case viz.,petitioner was a Christian Adi Dravida, which was a backward classcommunity and the petitioner converted to Hindu faith and theGeneral Secretary of Arya Samaj (Central Madras) issued acertificate on 9.6.1991 bearing D.Sl.No.2355/91 certifying that thepetitioner converted to Hinduism after due Shuddhi ceremony and sheis conferred upon the same rights and privileges, which the otherHindus enjoy. Petitioner's previous name is mentioned as C.Claraand her Hindu name is mentioned as C.Gomathi. The date ofconversion is also mentioned as 9.6.1991. The learned counsel alsopointed out the marriage invitation of the petitioner withK.Govindaraj, had taken place on 1.7.1991. In the said marriageinvitation it is stated that the marriage of the petitioner withK.Govindaraj is to be performed in Arulmigu PalaniandavarThirukkoil, Vadapalani, Chennai-26. In the marriage invitationalso petitioner's name is mentioned as C. Clara @ C.Gomathi.Petitioner also has filed a community certificate issued by theTahsildar, Mylapore-Triplicane Taluk, Chennai-28, dated 23.3.1999to prove her community as Hindu Adi Dravida. Relying upon thesaid documents the learned counsel for the petitioner submittedthat when conversion to Hinduism has taken place as early as in theyear 1991 and marriage of the petitioner having taken place withthe said K.Govindaraj, who also belong to scheduled caste community https://hcservices.ecourts.gov.in/hcservices/ and the marriage having been taken place at the famous temple atVadapalani, the petitioner is to be treated as a scheduled castecommunity candidate from the date of conversion i.e., from9.6.1991.5.The learned counsel also submitted that by virtue of themarriage, the Hindu Adi Dravida community accepted that thepetitioner belongs to scheduled caste and she is also sufferingwith all the social and educational backwardness of the community.The learned counsel also submitted that the petitioner has notsuppressed anything either before the Employment Officer or beforethe first respondent and the petitioner's name having beensponsored and selected and joined as scavenger without anymisrepresentation or suppression of facts, which was explained bythe petitioner in her reply to the show cause notice along withcommunity certificate dated 23.3.1999, the order passed by therespondent terminating the petitioner's service that too withoutconducting any enquiry cannot be sustained.6.The learned Additional Government Pleader on the basis ofthe averments contained in the counter affidavit submitted that thevacancy having been earmarked for scheduled caste communitycandidate and the petitioner, who belongs to backward classcommunity, having been sponsored by the District Employment Officerby mistake and on verification the petitioner's communitycertificate it was disclosed that she belongs to backward classcommunity, the respondent was justified in terminating thepetitioner's service as the appointment order given to thepetitioner was found irregular and there is no illegality in thesaid order.7.I have considered the rival submissions made by thelearned counsel for the petitioner as well as the learnedAdditional Government Pleader for the respondent.8.The point for consideration is as to whether thepetitioner really belongs to Hindu Adi Dravida community andwhether the petitioner suppressed any material fact and obtainedthe order of appointment and whether on conversion to Hinduism,petitioner will get all rights and privileges of a Hindu AdiDravida.9.The petitioner was originally a Christian Adi Dravidar,belonging to backward community, which was also certified by theTahsildar in her community certificate dated 1.3.1989. Thecertificate of conversion to Hinduism signed by the GeneralSecretary issued by the Arya Samaj (Central Madras) dated 9.6.1991clearly establishes the fact that the petitioner changed her nameas C.Gomathi and converted to Hinduism on 9.6.1991 after undergoingSuddhi ceremony. https://hcservices.ecourts.gov.in/hcservices/

10.Petitioner's marriage with K.Govindaraj, who belongs toscheduled caste community and the performance of the said marriageat Arulmigu Palaniandavar Temple, Vadapalani, Chennai-26, and thedate of marriage as 1.7.1991 are all proved by producing themarriage invitation. The birth certificate of the petitioner's sonby name Mathivanan, born to the petitioner and K.Govindaraj is alsoproduced in the typed set of papers. The community certificateissued by the Tahsildar, Mylapore-Triplicane Taluk, dated 23.3.1999is also filed in the typed set of papers, wherein it is certifiedthat the petitioner belongs to Hindu Adi Dravida community, whichis recognised as scheduled caste community as per the SC&ST Orders(Amendment) Act, 1976, vide Sl.No.254. Admittedly, the terminationorder was passed by the respondent on 26.3.1999 i.e, after receiptof explanation from the petitioner along with community certificatedated 23.3.1999, issued by the competent authority. Thus, it isevident that even though the petitioner's name was mistakenlysponsored by the Employment Exchange to the respondent, the factremains that the petitioner converted herself to Hinduism as earlyas on 9.6.1991 and her marriage was performed under the Hindu riteson 1.7.1991 in a temple at Vadapalani, Chennai-26. It is not indispute that the petitioner's husband belongs to Hindu Adi Dravidacommunity and there is no denial of the fact that the petitioner issubjected to social and economic backwardness due to the caste towhich the petitioner and her husband belongs. The community hasalso accepted the petitioner as Hindu Adi Dravida as there is nocontra evidence and after verification of the same the petitioneris issued with a community certificate dated 23.3.1999.11.In the light of the above undisputed facts, thepetitioner is bound to be treated as Hindu Adi Dravida (ScheduledCaste community) from the date of conversion i.e., 9.6.1991.Petitioner's conversion to Hinduism and marrying a Hindu AdiDravida and getting a certificate definitely create a presumptionthat she has been accepted as Hindu Adi Dravida by the community atlarge.12.(a)Similar issue arose before the Honourable SupremeCourt in the decision reported in (1984) 2 SCC 91 (Kailash Sonkarv. Maya Devi). In the said case, a Christian by birth whenconverted to Hinduism and married a member of the Scheduled Caste,was held to be belonging to her husband's caste on the evidencethat she had not only been accepted, but also welcomed by theimportant members including the President and Vice President of thecommunity.(b)In the decision reported in (2003) 8 SCC 204 (Punit Raiv. Dinesh Chaudhary) it is held that the caste of the parentsdetermines the caste of the person, but in case of re-conversion, aperson has the liberty to renounce his casteless status andvoluntarily accept his original caste. His caste status at birthis not immutable. Change of religion does not necessarily meanloss of caste. If the original caste is not positively disproved, https://hcservices.ecourts.gov.in/hcservices/ the acceptance of the caste can be presumed. Such acceptance canalso be presumed if he is elected by a majority to a reserved seat.(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 courtas such and the question would depend upon the facts of each case.In such 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.Ziauddeenv. S.Ashok Kumar, Principal Sessions Judge) and in paragraph 10 theDivision Bench held as follows:"10........................ we are unableto accept the contention of Mr.A.Sirajudeen,learned counsel for the petitioner, that eitherthere is an absolute bar for a non-Hindu toconvert into Hinduism or that even such conversionwill not restore the old caste to which he or hisparents belonged to and more so in view of theauthoritative pronouncements of the ConstitutionBench of the Supreme Court in Mohan Rao's case(supra). In fact, that case is closer to thefacts of this case. In that case, Mr.Mohan Raowas born to parents belonging to Madiga caste,which is a recognised Scheduled Caste in the Stateof Andhra Pradesh and they were both converted toChristianity and Mr.Mohan Rao was born asChristian and later on, when he attained the ageof 14, he was re-converted as Hindu. It is apt toextract the relevant passage contained inparagraph 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 hissubsequently embracing Hinduism, the membersof the caste, to which the parents belongedprior to their conversion, accept him as amember within the fold. It is for the membersof the caste to decide whether or not toadmit a person within the caste. Since thecaste is a social combination of personsgoverned by its rules and regulations, itmay, if its rules and regulations so provide,admit a new member just as it may expel anexisting member. The only requirement foradmission of a person as a member of thecaste is the acceptance of the person by theother members of the caste, for, as pointed https://hcservices.ecourts.gov.in/hcservices/ out by Krishnaswami Ayyangar, J., inDurgaprasada Rao v. Sundarsanaswami, AIR 1940Mad 513 = 51 L.W.159, in matters affectingthe well being or composition of a caste, thecaste itself is the supreme judge (emphasissupplied). It will, therefore, be seen thaton conversion 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, buthe would become such member, if the othermembers of the caste accept him as a memberand admit him 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 Christianafter the conversion of his parents intoChristianity, that his name was S. Antonysamy, aChristian name, and it continued to be so in allthe school records and even up to the degree andPost-graduate degree including that of Degree inlaw and that he was enrolled as an advocate in thename of S.Antony Samy, are not disputed. But thefirst respondent claims that he got converted asHindu pursuant to Sudhi ceremony and that he gotmarried according to Hindu rites and even hisdaughter married a Hindu according to Hindu ritesand that he is not professing Christianity butprofessing Hinduism and that still he remains aHindu and that he was accepted as Hindu by hiscommunity on re-conversion and that theauthorities to issue the Caste Certificate haveissued the same on verification. While theconducting of Sudhi ceremony by the Arya Samaj andthe effect thereof and also the acceptance of thefirst respondent into the community, performanceof marriage between the first respondent and hiswife according to Hindu rites and also that of hisdaughter later are all pure questions offact. ............."13.The Government of Tamil Nadu also, by G.O.Ms.No.1 AdiDravidar and Tribal Welfare (CV-1) Department, dated 2.1.2009,ordered to treat the persons converted from Christian ScheduledCaste to Hinduism as Hindu Scheduled caste with all constitutionalprivileges. The operative portion of the said Government Orderreads as follows: https://hcservices.ecourts.gov.in/hcservices/ "The children born to Christian ScheduleCaste parents i.e., Christian by birth, convertedto Hinduism, Sikhism or Buddhism at a later dateand the Scheduled Caste parents embracingHinduism, Sikhism or Buddhism converted to otherreligion and subsequently reconverted Hinduism,Sikhism or Buddhism, if they are accepted by theircommunity people, the Revenue Authorities canissue Scheduled Caste community certificate tothem to become eligible for the constitutionalprivileges conformed on the Hindu Scheduled Caste(following Hinduism, Sikhism or Buddhism) andorder accordingly."14.Applying the above case laws and the undisputed fact ofconversion of petitioner to Hinduism and marrying K.Govindaraj, whobelongs to Hindu Adi Dravidar as per the Hindu rites and acceptingthe petitioner as a Hindu Adi Dravida by the Society and havingregard to the fact that the petitioner has given a communitycertificate on 23.3.1999, the petitioner is to be treated as shebelongs to Hindu Adi Dravida community. It is also a fact that thegenuineness of the community certificate issued to the petitionerby the competent authority dated 23.3.1999 is not doubted and noenquiry is ordered to verify its genuineness. It is well settledproposition of law that once a valid community certificate isissued by the competent authority, unless and until the same is setaside, the same is bound to be accepted as valid communitycertificate by all as per the decision of the Supreme Court in(1997) 7 SCC 505 (R.Kandasamy v. Chief Engineer, Madras PortTrust). Hence the termination order passed by the respondentscannot be sustained.15.In the counter affidavit filed by the respondent it isstated that another person was appointed in petitioner's place on21.4.1999 i.e., after admission of the original application,challenging the order of termination. The original application wasfiled on 31.3.1999 and was admitted on 15.4.1999 i.e, afteradmission of the original application by the Tribunal, the otherperson was given appointment. Though the appointment is madesubsequent to the filing of the original application, still theperson appointed is continuously serving as Scavenger in therespondent College for about ten years. Therefore the saidappointment cannot be set aside, particularly when she is not madeas a party in this writ petition.16.Taking note of all the above facts, the impugned order isset aside with a direction to the respondent to reinstate thepetitioner as scavenger without disturbing the person appointed inpetitioner's place, within a period of four weeks from the date ofreceipt of copy of this order either in any one of the existingvacancy or and if no vacancy is now available in the immediate https://hcservices.ecourts.gov.in/hcservices/ arising vacancy in the respondent college. Till a regular vacancyarises in the respondent College in the sanctioned post, therespondent is directed to pay salary from the date of reinstatementwithout any backwages. The petitioner is not entitled to claim anybackwages by applying the principle of 'no work, no pay'. As andwhen a regular vacancy arises, petitioner shall be accommodated inthe said vacancy with continuity of service from the date of herappointment i.e, from 10.6.1998 without backwages with all otherservice benefits.The writ petition is ordered accordingly. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrToThe Principal, Government Quai-De-Milleth Arts College for Women, Anna Salai, Chennai - 600 002.1 cc To M/s.Anand & Suryas, Advocate, SR.13431.1 cc To The Government Pleader, SR.13660.W.P.No.38602 of 2006 KA(CO)RVL 13.04.2009