BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO
THE HONOURABLE MR.JUSTICE R.SUBBIAH
W.P.(MD).No.9388 of 2007
M.P.(MD).No.2 of 2007
M.Ramasankar .. Petitioner
1. The District Level Vigilance Committee,
for Verification of Community,
2. The Revenue Divisional Officer,
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
(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.
1. The District Level Vigilance Committee,
for Verification of Community,
2. The Revenue Divisional Officer,Cheranmahadevi,