IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 27944 of 2008(B) -------------------------------------- PETITIONER(S): ------------------------ SOUMYA.C , ANAPPRA PUTHEN VEEDU CHERUVALLOOR, ANDOOR P.O., VALAKOM, KOTTARAKKARA, KOLLAM. BY ADV.MR.N.UNNIKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, SCHEDULED CASTE AND SCHUEDULED TRIBE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE DIRECTOR, KIRTADS, KOZHIKODE. 4. THE PRINCIPAL,TVH GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, AYRANIMUTTAM, THIRUVANANTHAPURAM. BY SPL. GOVERNMENT PLEADER P.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2009, ALONG WITH WPC. NO.18365/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27944/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ADMISSION REGISTER FOR SABTM UP SCHOOL, KUREEPPALLY. P2:- COPY OF THE RELEVANT PORTION OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER. P3:- COPY OF THE CERTIFICATE ISSUED BY THE TAHASILDAR, KOTTARAKKARA. P4:- COPY OF THE ALLOTMENT MEMO DTD. 17.7.08 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P5:- COPY OF THE PAYMENT SLIP DTD. 22.7.08. P6:- COPY OF THE ORDER NO.B3-CEE. 2258/2008(3) DTD. 27.8.08 FROM THE 2ND RESPONDENT . P7:- COPY OF THE ANTHROPOLOGICAL SURVEY REPORT SUBMITTED BY THE VIGILANCE OFFICER ATTACHED TO THE 3RD RESPONDENTS'S OFFICE . P8:- COPY OF THE SUDHI CERTIFICATE ISSUED BY THE ARAYA SAMAJ ON 12.12.1988. P9:- COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE DTD. 7TH MARCH 1989. P10:- COPY OF THE CERTIFICATE ISSUED BY THE KERALA PULAYA MAHASABHA, CHEPRA SAKHA. P11:- COPY OF THE G.O.(MS) NO.25/05 /SCSTDD DTD. 20.6.05 ISSUED BY THE IST RESPONDNT. P12:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER SEEKING ADMISSION TO THE PROFESSIONAL COURSE. R2(a):- COPY OF THE PROCEEDINGS NO.B3-1254/07/CEE(90) DTD. 30.6.07 OF THE SCREENING COMMITTEE. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC,J. ------------------------------ W.P.(C).Nos.27944/08 & 18365/09 -------------------------------- Dated this the 24th day of September, 2009. JUDGMENT In WP(c)No.27944/08 challenge is against Ext.P6, an order dated 27.8.2008 rejecting the petitioner's application for admission to Professional Degree Courses for the year 2008 in the Scheduled Caste quota. Again she applied for the year 2009 and that was also rejected by order dated 20.6.2009 and producing the same as Ext.P22, WP(c). No.18365/09 has been filed challenging the order of rejection. She is also seeking a declaration that she is a member of Scheduled Caste community entitled to all benefits available to the members of the scheduled castes in the matter of admission to professional courses. 2. Facts of the case, pleaded in WP(c). No.18365/2009 briefly stated, are that the grand parents of the petitioner, Sri. Yohannan and Smt. Joyis, originally WP(c).No.27944/08 & anor. 2 belonged to Hindu Cheraman, a scheduled caste in Kerala. They converted to Christianity and this factual position is admitted by the petitioner's father in Ext.P24 statement filed before the Vigilance Officer of KIRTADS who conducted an enquiry into the caste status of the petitioner. The petitioner's father was born, baptized and brought up as a Christian, with the name Charles and he married Smt.Gracy, also a Christian. 3. Later, following the procedure as laid down in Ext.P13 Hand Book published by the Scheduled Caste Development Department laying down the procedure to be followed for conversion and reconversion, the petitioner's mother converted to Hindu Cheramar Community and was issued Ext.P8, Sudhi certificate dated 12.12.1988 by the Araya Samaj, Thiruvananthpauram. Ext.P9 is the gazette publication effected by the petitioner's mother, stating that she has embraced Hinduism and adopted the new name, Sunidha.J. During this period, petitioner's father continued as a Christian and the petitioner was born on 27.10.1989. Ext.P1 extract of WP(c).No.27944/08 & anor. 3 the Admission Register shows the petitioner to be a scheduled caste and Ext.P2 SSLC certificate shows her to be a Hindu Cheramar. Ext.P3 is a caste certificate issued by the Tahsildar, Kottaraka, which again certifies that she belongs to Hindu Cheramar. While so, following the procedure laid down in Ext.P13 Hand Book, petitioner's father also converted to Hindu Cheramar and Ext.P14 is the Sudhi certificate issued by Araya Samajam on 12.8.2002. He too, published his religious conversion in Ext.P15 gazette notification wherein it is also stated that on embracing Hinduism, he adopted the name, Y. Chandra Das. 4. According to the petitioner, her mother having adopted Hinduism in 1988, she was born and brought up as Hindu Cheramar and the members of that community accepted her as its member. In 2007, claiming the reservation benefits available to scheduled caste candidates, and describing herself to be a Hindu Cheramar, petitioner applied for admission to Professional Degree Courses. On WP(c).No.27944/08 & anor. 4 receipt of her application, following the procedure as laid down in Section 6 of the Kerala(Scheduled Castes and Scheduled Tribes (Regulation of Issue of Community Certificates) Act, 1996 (Act 11 of 1996), the Screening Committee referred her claim to the Expert Agency, viz., KIRTADS. Accordingly, an enquiry was conducted and Ext.P7 report dated 26.5.2007 was submitted by the Vigilance Officer of KIRTADS reporting that the petitioner is a Christian and therefore her application for admission in the quota reserved for Scheduled Caste is liable to be rejected. Accordingly, her claim was rejected by Ext.R2(a) order dated 30.6.2007. 5. In 2008, when applications were invited for admission to Professional Degree Courses, petitioner again submitted her application and in view of Exts.P7 and R2(a) referred to above, by Ext.P6 order dated 27.8.2008, the application was rejected. For the present, all that is needed to be noticed from Ext.P6 order is that the petitioner's sister Smt C. Ramya has been given admission under SC category for the year 2006. It WP(c).No.27944/08 & anor. 5 was when her application was rejected in 2008 by Ext.P6 order, WP(c).No.27944/08 was filed seeking to quash Ext.P6 order of rejection. 6. In 2009, petitioner again applied under the SC category for admission to Professional Degree Courses. On this occasion, she was issued Ext.P4 show cause notice dated 14.6.2009 calling upon her to show cause why her application shall not be rejected. She submitted Ext.P5 reply but however her application was finally rejected by Ext.P22 order. Here it needs to be stated that Ext.P17 is the ranked list and going by the ranking she obtained, if she were included in the ranked list, her name would have been at rank No.49 in the SC list. On rejection of her candidature as above by Ext.P22, WP(c). No.18365/99 was filed challenging Ext.P22 and seeking a declaration that she is entitled to be treated as a Scheduled Caste candidate eligible for the benefits that are extended to that category. WP(c).No.27944/08 & anor. 6 7. In these writ petitions the basic issue to be considered is the validity of Ext.P7, the enquiry report submitted by the Vigilance Officer of KIRTADS, based on which the petitioner's candidature was rejected by Ext.R2(a), Ext.P6 and Ext.P22 orders referred to above. 8. Impugning the validity of the findings in Ext.P7 report, the counsel for the petitioner mainly relied on Exts.P1 to P3, Exts.P8 to Ext.P10, Exts.P14 and P15, Ext.P19, P20 and P21 documents and according to him, though these documents were available before the Vigilance Officer, these documents are not even referred to while preparing or submitting Ext.P7 enquiry report. He also relied on the Apex Court judgments in C.M.Arumugam V. S. Rajagopal & Ors. (1976(1)SCC 863), The Principal, Guntur Medical College Guntur & Ors. V. Y. Mohan Rao( 1976(3)SCC 411) and Kailash Sonkar V. Smt Maya Devi (1984(2) SCC 91) and contended that the conclusions in the report are contrary to the principles laid down therein. WP(c).No.27944/08 & anor. 7 9. On the other hand, the learned Special Government Pleader attempted to sustain Ext.P7 and the consequential orders rejecting the claim of the petitioner for scheduled caste status. According to the learned Special Government Pleader, the petitioner's grandparents had admittedly converted to Christianity and the petitioner's father and mother were born as Christians. It is stated that even going by the pleadings in the writ petition, the conversion of the petitioner's parents to Hindu Cheramar was only in 1988 and 2000. It is stated that this was a belated and mala fide conduct and was motivated to avail of the reservation benefits that are available only to scheduled castes. It is stated that the petitioner cannot successfully lay a claim as a scheduled caste candidate and claim admission in that category. He also placed considerable reliance on the judgments in Chinnamma V. Secretary to Government (1990(1) KLT 62), S.Swvigaradoss V. Zonal Manager (AIR 1996(SC) 1182) and the judgment in MFA.No.55/06. WP(c).No.27944/08 & anor. 8 10. I have considered the submissions made. As already stated Ext.R2(a), P6 and P22 orders rejecting the applications made by the petitioner was entirely acting upon Ext.P7, the report submitted by the Vigilance Officer of KIRTADS. Therefore, if the conclusion in Ext.P7 report is found to be sustainable, necessarily, the consequential orders rejecting the candidature of the petitioner also will have to be upheld. Therefore, what is to be examined is whether the report is one, worthy of acceptance. 11. It is the specific case of the petitioner that during the course of the enquiry, 26 documents were produced. In this writ petition, petitioner placed reliance on Exts.P1 to P3, the extract of the school admission register, copy of the SSLC book and also the caste Certificate issued by the Tahsildar Kottarakkara, which all show that the petitioner is certified to a Hindu Cheramar. Exts.P8 and P14 are the Sudhi certificates issued by the Araya Samaajam certifying conversion of her parents into Hindu faith. Exts.P9 and P15 WP(c).No.27944/08 & anor. 9 are the gazette notifications which were published by her parents on their conversion into Hindu faith and adopting new names. Ext.P10 is a certificate issued by Branch No.1469 of Kerala Pulaya Mahasabha to the effect that petitioner's father and his whole family are members and active workers of the Branch and that they are living following the customs and traditions that are prevailing in the community. Ext.P19 is a report submitted by the Village Officer of Ummannur Village which also states that the family members of the petitioner belong to Hindu Cheramar community. Ext.P20 is a certificate issued by the General Secretary of Kerala Pulaya Mahasabha which also certifies that the family members of the petitioner are living in accordance with the customs of Hindu Community and that the petitioner is eligible for the benefits available to the Hindu Cheramar community. Similarly Ext.P21 is a certificate issued by the Tahsildar Kottarakkara which also certifies the petitioner's caste as Hindu Cheramar. WP(c).No.27944/08 & anor. 10 12. Though, these documents include some obtained subsequent to the report of the KIRTADS, fact remains that several documents were available and produced before the Vigilance Officer which supported the claim of the petitioner that she and her family belonged to Hindu Cheramar community and therefore, are eligible for the benefit of reservation. In addition to the above documents what is relied on by the petitioner is three judgments rendered by the Apex Court in the cases of C.M.Arumugam V. S. Rajagopal & Ors. (1976(1)SCC 863, Principal, Guntur Medical College Guntur & Ors. V. Y. Mohan Rao( 1976(3)SCC 411) and Kailash Sonkar V. Smt Maya Devi (1984(2)SCC 91). 13. C.M.Arumugam V. S. Rajagopal & Ors. (1976(1) SCC 863) was a case, where a person belonging to Adi Dravida, a scheduled caste, was converted to Christianity in 1949 and re-converted to Hinduism later. Thereafter he claimed that on re-conversion he was again a Adi Dravida, eligible to contest in a seat reserved for Scheduled Caste candidates. In WP(c).No.27944/08 & anor. 11 that judgment, the Apex Court pointed out that even in spite of conversion to a forward community, there are circumstances where a person can still continue as a member of the scheduled caste community to which he originally belonged. It is stated that what is material to consider is how the caste looks at the question of conversion and if the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member, notwithstanding his conversion, he would continue to be a member of the caste. Proceeding further, it held that even in spite of conversion into Christianity the first respondent in that case did not cease to belong to Adi Dravida caste. 14. Principal, Guntur Medical College Guntur & Ors. V. Y. Mohan Rao( 1976(3)SCC 411) was a case where the parents of the respondent originally professed Hindu religion and belonged to Madiga caste, a scheduled caste in Andhra Pradesh. Later both of them converted to Christianity and the respondent therein was born after his parents embraced WP(c).No.27944/08 & anor. 12 Chrisitianity. It would appear that in the State of Andra Pradesh for the purpose of admission to educational institutions, converted Christians were treated as a backward caste and on that basis respondent unsuccessfully sought admission to a reserved seat in one of the medical colleges. Thereafter he renounced Christianity and embraced Hinduism undergoing Sudhi ceremony and was received into Madiga caste of Hindu fold. Claiming to be a Madiga , a scheduled caste, he applied for admission to Guntur Medical College and was admitted. However relying on a Government Order that no candidate can claim to belong to Scheduled caste except by birth, his admission was cancelled by the Principal. Cancellation of admission was successfully challenged before the Andra Pradesh High Court. The College authorities challenged the judgment before the Apex Court and the Apex Court applying the reasoning adopted by it in Arumughan's case(Supra) held as follows; WP(c).No.27944/08 & anor. 13 “The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the 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 only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyanger, J in Durgaprasada Rao V. Sudarsanaswami “ in the matters affecting the wellbeing or composition of a caste, the caste itself is the supreme judge” (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.” 15. The 3rd judgment relied on by the counsel for the petitioner is Kailash Sonkar (1984(2)SCC 91). In paragraph 18, it has been held that; WP(c).No.27944/08 & anor. 14 “In our opinion, there is one aspect which does not appear to have been dealt with by any of the cases discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies?. In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in a Christian family? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor WP(c).No.27944/08 & anor. 15 was present in the mind of Bhagwati, J., who delivered the leading judgment in a later decision of this Court G.M. Arumugan V. S. Rajagopal where speaking for the Court, he made the following observations: It is sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity... But hat immediately raise the question: what is a caste? When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian Social scene..... A caste is more a social combination than a religious group. But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceased to be a member of the caste in which he was born and to which he belonged prior to his conversion.... If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the WP(c).No.27944/08 & anor. 16 other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste.... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians.” 16. Thereafter, reference is made to Arumughan's case (supra) the observations made support the view that after reconversion, the caste will normally revive. On the question, whether loss of caste is absolute, irrevocable so as not to revive under any circumstances, the guiding principles formulated by the court are the following. “The question that arises for consideration is- whether the loss of the caste is absolute, irrevocable so as not to revive under any circumstances? In considering this question the courts have gone into the history of the WP(c).No.27944/08 & anor. 17 caste system and have formulated the following guiding principles to determine this question. (a) Where a person belonging to a scheduled caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion, however, does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North-Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted too a new one, there is no loss of caste. Moreover, it is a common feature of many converts to a new religion to believe, or have faith in the saints belonging to other religions. For instance, a number of Hindus WP(c).No.27944/08 & anor. 18 have faith in the Muslim saints, Dargahs, Imambadas which becomes a part of their lives and some Hindus even adopt Muslim names after the saints but this does not mean that they have discarded the old order and got themselves converted to Islam. (b) In all other cases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion. 17. Proceeding further, answering the question whether after a person is converted to a new religion, does his caste survive if he is reconverted to other religion and if so under what circumstances, the Apex Court held that the loss of caste on conversion is absolute and cannot be revived, unless the following three conditions are fulfilled. “i. Where a convertee exhibits by his actions and behavior his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefit or gain. ii. Where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and WP(c).No.27944/08 & anor. 19 iii. rules of the new order in permitting the convertee to join the new caste. 18. It is held that the main test should be a genuine intention of the reconvert to abjure his new religion and completely disassociate himself from it. It was also pointed out that in a case when a child is born to parents who are converted to Christianity, in spite of the baptism to which the child is unknowingly subjected, after he is grown up and become fully mature and able to decide his future, he ought not to be bound by what his parents may have done. The judgment concludes by stating that “In our opinion, when a person is converted to Christianity 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 disppaears and the caste automatically revives. Whether or not the revival of the caste depends on the will ad discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case thee is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste.” WP(c).No.27944/08 & anor. 20 19. Though, at