N.S. Ziauddeen Vs. S. Ashok Kumar, Principal Sessions Judge, (Residing at Tower Block), Taylors Road, Kilpauk, Chennai - 600 010, - Court Judgment

Excerpt:
service - appointment - article 226 of constitution of india and section 114 of indian evidence act, 1872 - petitioner challenged appointment of district judge as a scheduled caste who converted from christian religion - respondent made gazette publication for conversion to hinduism and married according to hindu rites - caste certificate issued by authorities shows statutory presumption under section 114 that respondent was scheduled caste - caste certificate issued to respondent never questioned by anybody - petition cannot be extended and to be confined only to aspect of apparent illegality - petition dismissed. - - (b) valsamma paul's case (supra), deals with a conversion but not like the instant one. sudarsanaswami, air 1940 mad 513, in matters affecting the well being or composition of a caste, the caste itself isthe supreme judge .it will, therefore, be seen that on conversion to hinduism, a person born of christian converts, would notbecome a member of the caste to which his parents belonged, prior totheir 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.order1. this writ petition has been filed seeking a writ of quo warranto against the first respondent, who is a district judge, on the ground thathe got into the post of district judge as a scheduled caste even thoughhe is not a scheduled caste and is a c tian.2. the petitioner is a practising advocate and submits thata post of district judge was notified in the year 1987, that the saidpost, according to roster, was reserved for scheduled caste, that thefirst respondent, even though belonging to c faith, had falsely claimedthe status of scheduled caste, applied for the said post, got selectedand then is performing the functions of district judge, that he was notand is not a scheduled caste even now, that he is a christian and isstill practisin g christian faith not only himself but also his wife,children and all other family members and that he should forthwith beinterdicted from acting any further as a district judge.3. counter affidavit has been filed by the first respondent.the second respondent government has produced the records. the third respondent, registrar general, high court, has filed the counteraffidavit. the fourth respondent, tamil nadu p vice commission, isneither a necessary nor a proper party. the petitioner has filed arejoinder to the counter of the first respondent.4. the petitioner avers in the pleadings that the first respondentis still a christian and is a member of parish of st. antony's church inalavanthankulam, that he had been paying taxes levied by the church, thathe had been sending donations to the s d church regularly and that duringthe last three months, he donated rs.3,000.00, that he had married offhis daughter to a christian viz. arul rajendran, that his marriage withms. ebi was performed according to christian rites and that the firstrespon dent, his wife and children are still christians professingchristian faith and visiting churches. these facts are disputed by thefirst respondent. the first respondent counters that he performed suddhiceremony at arya samaj for re-conversion as hind u on 11.4.1971, thatpursuant thereto, a certificate was issued by arya samaj converting himas a hindu on 5.8.1971, that application for gazette publication was madeon 9.9.1971 regarding conversion from christianity to hinduism, thatapplication was ma de on 13.10.1971 for gazette publication for change ofchristian name s. antony samy to hindu name s. ashok kumar and gazette publication for conversion to hinduism was made on 15.5.1974. the first respondent also states that his marriage with ms. ebi w as performed on9.9.1973 according to hindu rites at his residence at thenkulam pudurvillage. he further submits that he contested for the assembly constituency of ottapidaram, reserved for scheduled castes, during theyear 1987, that he led procession on 30.10.1980 condemning rape of 17harijan women resulting in his arrest and prosecution and later on, he had also appeared before ramamurthi commission of inquiry during 1980-81, that that commission of inquiry in its report in 1982, lauded the firstrespondent's efforts in leading the procession, that in sessions caseno.50 of 1985, he was acquitted by judgment dated 9.12.1985, that tahsildar has issued a community certificate dated 28.11.1980 and so alsothe joint commissioner of land administratio n on 23.12.1985 and that allthese facts and documents show unequivocally that he had converted tohinduism, that his conversion was accepted by his community and the society and that he never visits churches but visits temples and he isalso donating mo nies to hindu temples.5. the government had issued a notification dated 16.12.1985 inviting applications for appointment by direct recruitment to the postof district judges grade ii governed by the tamil nadu state higherjudicial service. out of the three posts notified, ne was meant for opencompetition, one was for scheduled castes and another for backward class. three other posts were also notified on 11.3.1986. the first respondentapplied for selection to the post of district judge pursuant to thenotification dat ed 16.12.1985 opting as a reserved candidate asbelonging to scheduled caste. he did not secure the mark in the rostermeant for open competition. he got selected in the post reserved for scheduled castes. he was appointed to the said post by the gove rnmentby its notification in g.o. ms.no.1129, public (spl. a) department,dated 21.7.1987, pursuant to the recommendation made by the high court upon interviewing the candidates. ever since the posting as a districtjudge, the first respondent had been functioning as such and he wasselected to the post of the district judge (supertime scale) with effectfrom 27.4.1989.6. mr. a. sirajudeen, learned counsel for the petitioner,strenuously contends that once a person is born as a christian, or as anon-hindu for that matter, there cannot be any conversion to hindureligion and even if there is a conversion to hindu rel ion, it is aconversion to the hindu religion and not to a caste and as such, nobenefit of reservation is available. he also submits that even acceptingthe plea of the first respondent that he underwent suddhi ceremony byarya samaj, since arya samaj does not believe in any caste, it can onlybe taken that the first respondent converted to hinduism with no castetag and as such, cannot be treated as scheduled caste. learned counselfor the petitioner has filed w.p.m.p. no.6983 of 2002 on behalf of th epetitioner seeking a direction to c.b.c.i.d. for enquiry regarding thesocial status of the first respondent. in support of his argument, heplaced reliance on the text of hindu law and arya samaj as also decisionsrendered by the supreme court in kuma ri madhuri patil v. addl. commissioner, tribal development 1994 air scw 4116, valsamma paul v. cochin university : . 7. countering the arguments of the petitioner, mr. g. masilamani,learned senior counsel appearing for the first respondent, submits thatthe grandparents and the parents of the first respondent were hindusbelonging to scheduled castes, but the parent of the first respondent hadgot converted to christianity and even though the first respondent wasborn as a christian, he got converted to hinduism and referred to thecertificate issued by the arya samaj, the gazette publication recordingconversion, t he contest to ottapidaram assembly constituency as a scheduled caste, leading of procession by the first respondent on30.10.1980 agitating against the offence of rape of 17 harijan women,report of ramamurthi commission, the judgment in sessions case no .50 of 1985 and the community certificate issued by the tahsildar on 28.11.1980and the joint commissioner of land administration dated 23.12.1985.apart from the above, he has also referred to the documents of transferdated 4.1.1927 and 3.9.1930 execu ted by the paternal grandmother of thefirst respondent representing as the first respondent's father's guardianto show that the grandparents and the father of the first respondentbelonged to pallan community of scheduled caste, and also a registered m ortgage deed dated 20.8.1942 executed by the first respondent's father toshow that in between the years 1930 and 1942, the first respondent's father got converted to christianity. the learned senior counsel laidstress on the points of the conversion o f the first respondent tohinduism in view of suddhi ceremony and the conversion certificate issuedby the arya samaj in that regard and also the community certificateissued by the tahsildar and the joint commissioner of landadministration, the concern the first respondent shown when 17 harijanwomen were raped and involving in criminal prosecution, contesting thesame and getting acquittal and contesting the assembly constituency as ascheduled caste candidate, and contended that the above points amp lyprove that the first respondent had genuinely converted himself fromchristianity to hinduism and that on the date of notification invitingapplication for the selection to the post of district judge, the firstrespondent was a hindu and continued to be a hindu even to this date andthat the writ petition is also hit by laches. it is submitted by thelearned senior counsel that apart from the conversion, the firstrespondent, whose ancestors belonged to scheduled caste of hindu religion, had never lo st his status as a hindu and continued to be ahindu in spite of his father's conversion to christianity and the firstrespondent's birth as a christian. mr. g. masilamani, learned seniorcounsel, further submits that the writ is for a quo warranto and itsscope cannot be enlarged by calling for a report and then adjudicate onthe basis of the said report, that neither the caste certificate of thefirst respondent nor his appointment as district judge has been questioned and that so long as the caste c ertificate stands, therespondent cannot be ousted from service. the learned counsel has alsosubmitted that the writ petition is barred by laches in view of longyears of service put in by the first respondent. mr. g. masilamani,learned senior couns el, in support of his legal contentions, has citedthe judgments of supreme court in principal, guntur medical college, guntur v. . 8. mr. n.r. chandran, learned advocate general, has submitted thatpursuant to madhuri patil's case (supra), the state government has issued g.o. (2d) no.18, adi dravidar and tribal welfare (adw.2) department,dated 1.4.1997, constituting a committee o high-ranking officers to makeenquiry regarding the genuineness of the claims of social status asscheduled caste/scheduled tribe and that a direction be issued to thegovernment to cause an enquiry with regard to the social status of thefirst responden t by the committee so constituted.9. (a) in kumari madhuri patil's case (supra), the question was as to whether hindu-koli can be considered as mahadeo-koli. the argument that hindu-koli was equivalent to mahadeo-koli, which was notified asscheduled tribe, was repelled. the cert e obtained in that regard wasnullified. the committee's report to the effect that the appellant'sfather cannot be treated as mahadeo-koli and consequently, the appellantcannot be a scheduled tribe, was upheld by the supreme court. the supreme court also laid down some guidelines regarding the verificationof the caste whenever disputes are raised in that regard. the said caseis not a case relating to conversion.(b) valsamma paul's case (supra), deals with a conversion but not like the instant one. in the said case, the appellant therein was asyrian catholic (forward class) having married a latin catholic (backwardclass - fishermen) and claiming status of h r husband, she was appointedas lecturer in the university for the post reserved against the backwardclass. the matter ultimately was dealt with by the full bench of thekerala high court and it was held that even though the appellant became abackward class by being married to a backward class husband, she cannot claim the benefit of reservation. the said view was affirmed by thesupreme court in valsamma paul's case, on appeal. it was held by thesupreme court, '34.... thus, education, employment and economic empowerment are some of the programmes, the state has evolved and also provided reservation inadmission into educational institutions, or in case of other economicbenefits under articles 15(4) and 46, o r in appointment to an office ora post under the state under article 16(4). therefore, when a member istransplanted into dalits, tribes and obcs, he/she must of necessity alsoundergo same handicaps, be subject to the same disabilities, disadvantages , indignities or sufferings so as to entitle the candidateto avail the facility of reservation. a candidate who had the advantageous start in life being born in forward caste and had march ofadvantageous life but is transplanted in backward caste by a doption ormarriage or conversion, does not become eligible to the benefit ofreservation either under article 15(4) or 16(4), as the case may be.acquisition of the status of scheduled caste etc. by voluntary mobilityinto these categories would play fraud on the constitution and wouldfrustrate the benign constitutional policy under articles 15(4) and 16(4) of the constitution.'(c) in s. swvigaradoss v. zonal manager, f.c.i. : [1996]1scr995 , arising out of the state of tamil nadu, the parents of thepetitioner therein got already converted into christian religion. he wasselected in the vacancy reserved for sched stes and on coming to knowthat he was not a scheduled caste but a christian, a show cause noticewas issued but the same challenged by filing a suit, but ultimately, itwas held that as he was born a christian, he continued to be a christiannot entitle d for the benefit of s.c. reservation. the contention ofthe petitioner was that even though he was born of christian parents,with the consent of his parents, he got converted into hinduism at theage of 14 and on such conversion, he became adi dravida and consequently entitled to the status of scheduled caste. but the said contention wasrepelled by the supreme court stating,'8.....in view of the admitted position that the petitioner was born ofchristian parents and his parents also were converted prior to his birthand no longer remained to be adi dravida, a scheduled caste for thepurpose of tirunelveli district in tamil nadu as notified by the president, petitioner cannot claim to be a scheduled caste....'to support his argument, the learned counsel for the petitioner laysstress on what is stated by the supreme court in valsamma paul's case (supra) in paragraph 34, which has been extracted above, and also inswvigaradoss's case (supra) in paragraph 8, e xtracted above. valsamma paul's case did not involve any adjudication as to whether a non-hindu can be converted to hinduism. in that case, both the husband and wifewere christians but one was a syrian catholic belonging to forward classand another la tin catholic belonging to backward class. status andreservation as a backward class was claimed by the wife on the basis ofthe marriage and though status was recognised, reservation was negatived.what is stated in paragraph 34 in valsamma paul's cas e (supra) have to be read only in the said context and cannot be construed as laying downany broad proposition that no non-hindu can be converted as a hindu. inswagiradoss's case (supra), there was no plea that the parents of the appellant therein had ever belonged to scheduled caste. the said casearose out of second appeal no.270 of 1984 on the file of this court andwe have perused the pleadings and judgment in the said case. it was found as a fact that there was no pleading that the appellant' s parentsoriginally belonged to adi dravida caste (scheduled caste). it was heldthat as a fact, no legally acceptable proof was adduced to accept thecontention of the appellant that he converted himself as a hindu. whatis stated in paragraph 8, ext racted above in swigaradoss's case (supra), has to be understood only in that context and not laying down any absolute proposition that a non-hindu cannot be converted as a hindu. infact, the relevant proposition is found in the judgment of the supremecourt in the cases of c.m. arumugam and mohan rao (supra). in c.m. arumugam's case (supra), it was held that there is no prohibition for aperson belonging to other religion to convert as a hindu and the saidview was affirmed by a constitution bench o f the supreme court in mohan rao's case (supra). to the same effect are the judgments laterpronounced by the supreme court in kailash sonkar's case and anbalagan's case (supra). basing upon the legal principles stated by the supremecourt in the above four decisions viz. c.m. arumugam, mohan rao, kailash sonkar and anbalagan (supra), we hold that there is no bar for a non-hindu to convert as a hindu. excepting the case of mohan rao, allother cases relate to election in which both oral and documenta ryevidence were adduced before the election tribunal under therepresentation of people act, 1951 and basing upon the said evidence, itwas held that there was conversion to hinduism. even in the case ofmohan rao (supra), it went by concession, as the state did not want to disturb the admission already made. the supreme court did not adjudicateon the merits of the material on record because of the above concession.having laid down the legal principles, the supreme court held,'8. this view would have ordinarily required us to find whether, onthe material on record, it could be said to have been established by therespondent that, on conversion to hinduism, he was accepted as a member of madiga caste by the other members of hat caste, for it is only if hewas so accepted that he could claim to be a member of a scheduled caste. but it is not necessary for us to undertake this inquiry because, asalready pointed out, it has been agreed by the state that, whatever bethe resu lt of this appeal, the admission of the respondent will not bedisturbed.'10. we are not accepting the laches theory propounded bymr.g.masilamani, the learned senior counsel for the first respondent. inkashinath g. jalmi's case (supra), which is the latest and leading judgment on the question of laches, a distincti awn between the reliefpersonal to the petitioner as compared to a class action and it was heldthat the class action, whose objective is to promote public interest andgood administration, cannot be rejected as otherwise, it would amount tosanction for continuation of usurpation of office and perpetuation of anillegality. but we find it difficult to grant a writ of quo warranto assought for. a writ of quo warranto pre-supposes that the holder of anoffice is a usurper or his appointment is contrar y to constitutional orstatutory provisions or rules framed thereunder. we could have straightaway issued a writ of quo warranto against the first respondenthad we accepted the plea of the petitioner that the first respondenthaving born a christian ca nnot be converted a hindu and even if suchconversion is permissible, the reservation benefit cannot be made available. but as already stated above, we are unable to accept thecontention of mr. a. sirajudeen, learned counsel for the petitioner,that ei ther there is an absolute bar for a non-hindu to convert intohinduism or that even such conversion will not restore the old caste towhich he or his parents belonged to and more so in view of theauthoritative pronouncement of the constitutional bench o f the supremecourt in mohan rao's case (supra). in fact, that case is closer to the facts of this case. in that case, mr. mohan rao was born to parents belonging to madiga caste, which is a recognised scheduled caste in thestate of andhra pradesh and they were both converted to christianity andmr. mohan rao was born a christian and later on, when he attained theage of 14, he was re-converted a hindu. it is apt to extract therelevant passage contained in paragraph 7 thereto.'the reasoning on which this decision proceeded is equallyapplicable in a case where the parents of a person are converted fromhinduism to christianity and he is born after their conversion and on hissubsequently embracing hinduism, the members o e caste, to which the parents belonged prior to their conversion, accept him as a member withinthe fold. it is for the members of the caste to decide whether or not toadmit a person within the caste. since the caste is a social combinationof persons governed by its rules and regulations, it may, if its rulesand regulations so provide, admit a new member just as it may expel anexisting member. the only requirement for admission of a person as amember of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by krishnaswami ayyangar, j., indurgaprasada rao v. sudarsanaswami, air 1940 mad 513, 'in matters affecting the well being or composition of a caste, the caste itself isthe supreme judge . it will, therefore, be seen that on conversion to hinduism, a person born of christian converts, would notbecome a member of the caste to which his parents belonged, prior totheir 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.in this case too, the parents of the first respondent belonged to adidrivadar caste and they got converted to christianity in mid-thirties andthese facts are not disputed. equally, the facts that the firstrespondent was a born christian after the con version of his parents intochristianity, that his name was s. antonysamy, a christian name, and itcontinued to be so in all the school records and even up to the degreeand post-graduate degree, including that of degree in law and that he wasenrolled as an advocate in the name of s. antony samy, are not disputed.but the first respondent claims that he got converted a hindu pursuant tosudhi ceremony and that he got married according to hindu rites and evenhis daughter married a hindu according t o hindu rites and that he is notprofessing christianity but professing hinduism and that still he remainsa hindu and that he was accepted as a hindu by his community onre-conversion and that the authorities to issue the caste certificatehave issued t he same on verification. while the conducting of sudhiceremony by the arya samaj and the effect thereof and also the acceptanceof the first respondent into their community, performance of marriagebetween the first respondent and his wife according to hindu rites andalso that of his daughter later, are all pure questions of fact. thereis no scope for enquiry in this writ petition and as rightly pointed outby the learned senior counsel for the first respondent, this writpetition for quo warranto does not have such scope for enquiry. we arealso accepting the arguments of mr. g. masilamani that so long as thesocial status of the first respondent, as depicted by the castecertificate issued by the authorities, stands, there is a statutorypresum ption under section 114 of indian evidence act that the firstrespondent is a scheduled caste and he cannot be called a usurper of theoffice. in fact, his caste certificates have not so far been questionedby anybody and as such, there was no occasion for any enquiry. this is clear from not only the records produced by the government but also inthe counter filed by the registrar general of the high court. we arealso accepting the argument of the first respondent's counsel that thescope of the wri t petition cannot be extended and has to be confinedonly to the aspect of the apparent illegality. in this context, we feelit apt to refer to the nine-bench judgment of the supreme court in nareshv. state of maharashtra : . 'we have referred to these respective arguments just to indicatethe extent of the field which has been covered by learned counsel whoassisted us in dealing with the present petitions. as this court hasfrequently emphasised, in dealing with const ional matters, it isnecessary that the decision of the court should be confined to the narrowpoints which a particular proceeding raises before it. often enough, indealing with the very narrow point raised by a writ petition, widerarguments are urge d before the court, but the court should always becareful not to cover ground which is strictly not relevant for thepurpose of deciding the petition before it. obiter observations anddiscussion of problems, not directly involved in any proceedings, s houldbe avoided by courts in dealing with all matters brought before them, butthis requirement becomes almost compulsive when the court is dealing withconstitutional matters. that is why we do not propose to deal with thelarger issues raised by the learned counsel in the present proceedings,and we wish to confine our decision to the narrow points which thesepetitions raise.'11. in view of what is stated supra, this writ petition failsand is accordingly dismissed. no costs. consequently, w.p.m.ps. areclosed.

Judgment:
ORDER

1. This writ petition has been filed seeking a Writ of Quo Warranto against the first respondent, who is a District Judge, on the ground thathe got into the post of District Judge as a Scheduled Caste even thoughhe is not a Scheduled Caste and is a C tian.

2. The petitioner is a practising advocate and submits thata post of District Judge was notified in the year 1987, that the saidpost, according to roster, was reserved for Scheduled Caste, that thefirst respondent, even though belonging to C faith, had falsely claimedthe status of Scheduled Caste, applied for the said post, got selectedand then is performing the functions of District Judge, that he was notand is not a Scheduled Caste even now, that he is a Christian and isstill practisin g Christian faith not only himself but also his wife,children and all other family members and that he should forthwith beinterdicted from acting any further as a District Judge.

3. Counter affidavit has been filed by the first respondent.The second respondent Government has produced the records. The third respondent, Registrar General, High Court, has filed the counteraffidavit. The fourth respondent, Tamil Nadu P vice Commission, isneither a necessary nor a proper party. The petitioner has filed arejoinder to the counter of the first respondent.

4. The petitioner avers in the pleadings that the first respondentis still a Christian and is a Member of Parish of St. Antony's Church inAlavanthankulam, that he had been paying taxes levied by the Church, thathe had been sending donations to the s d Church regularly and that duringthe last three months, he donated Rs.3,000.00, that he had married offhis daughter to a Christian viz. Arul Rajendran, that his marriage withMs. Ebi was performed according to Christian rites and that the firstrespon dent, his wife and children are still Christians professingChristian faith and visiting Churches. These facts are disputed by thefirst respondent. The first respondent counters that he performed Suddhiceremony at Arya Samaj for re-conversion as Hind u on 11.4.1971, thatpursuant thereto, a certificate was issued by Arya Samaj converting himas a Hindu on 5.8.1971, that application for gazette publication was madeon 9.9.1971 regarding conversion from Christianity to Hinduism, thatapplication was ma de on 13.10.1971 for gazette publication for change ofChristian name S. Antony Samy to Hindu name S. Ashok Kumar and gazette publication for conversion to Hinduism was made on 15.5.1974. The first respondent also states that his marriage with Ms. Ebi w as performed on9.9.1973 according to Hindu rites at his residence at Thenkulam Pudurvillage. He further submits that he contested for the Assembly Constituency of Ottapidaram, reserved for Scheduled Castes, during theyear 1987, that he led procession on 30.10.1980 condemning rape of 17Harijan women resulting in his arrest and prosecution and later on, he had also appeared before Ramamurthi Commission of Inquiry during 1980-81, that that Commission of Inquiry in its report in 1982, lauded the firstrespondent's efforts in leading the procession, that in Sessions CaseNo.50 of 1985, he was acquitted by judgment dated 9.12.1985, that Tahsildar has issued a community certificate dated 28.11.1980 and so alsothe Joint Commissioner of Land Administratio n on 23.12.1985 and that allthese facts and documents show unequivocally that he had converted toHinduism, that his conversion was accepted by his community and the society and that he never visits Churches but visits Temples and he isalso donating mo nies to Hindu Temples.

5. The Government had issued a notification dated 16.12.1985 inviting applications for appointment by direct recruitment to the postof District Judges Grade II governed by the Tamil Nadu State HigherJudicial Service. Out of the three posts notified, ne was meant for OpenCompetition, one was for Scheduled Castes and another for Backward Class. Three other posts were also notified on 11.3.1986. The first respondentapplied for selection to the post of District Judge pursuant to thenotification dat ed 16.12.1985 opting as a reserved candidate asbelonging to Scheduled Caste. He did not secure the mark in the rostermeant for Open Competition. He got selected in the post reserved for Scheduled Castes. He was appointed to the said post by the Gove rnmentby its notification in G.O. Ms.No.1129, Public (Spl. A) Department,dated 21.7.1987, pursuant to the recommendation made by the High Court upon interviewing the candidates. Ever since the posting as a DistrictJudge, the first respondent had been functioning as such and he wasselected to the post of the District Judge (Supertime Scale) with effectfrom 27.4.1989.

6. Mr. A. Sirajudeen, learned counsel for the petitioner,strenuously contends that once a person is born as a Christian, or as anon-Hindu for that matter, there cannot be any conversion to Hindureligion and even if there is a conversion to Hindu rel ion, it is aconversion to the Hindu religion and not to a caste and as such, nobenefit of reservation is available. He also submits that even acceptingthe plea of the first respondent that he underwent Suddhi ceremony byArya Samaj, since Arya Samaj does not believe in any caste, it can onlybe taken that the first respondent converted to Hinduism with no castetag and as such, cannot be treated as Scheduled Caste. Learned counselfor the petitioner has filed W.P.M.P. No.6983 of 2002 on behalf of th epetitioner seeking a direction to C.B.C.I.D. for enquiry regarding thesocial status of the first respondent. In support of his argument, heplaced reliance on the text of Hindu Law and Arya Samaj as also decisionsrendered by the Supreme Court in KUMA RI MADHURI PATIL v. ADDL. COMMISSIONER, TRIBAL DEVELOPMENT 1994 AIR SCW 4116, VALSAMMA PAUL v. COCHIN UNIVERSITY : .

7. Countering the arguments of the petitioner, Mr. G. Masilamani,learned senior counsel appearing for the first respondent, submits thatthe grandparents and the parents of the first respondent were Hindusbelonging to Scheduled Castes, but the parent of the first respondent hadgot converted to Christianity and even though the first respondent wasborn as a Christian, he got converted to Hinduism and referred to thecertificate issued by the Arya Samaj, the gazette publication recordingconversion, t he contest to Ottapidaram Assembly Constituency as a Scheduled Caste, leading of procession by the first respondent on30.10.1980 agitating against the offence of rape of 17 Harijan women,report of Ramamurthi Commission, the judgment in Sessions Case No .50 of 1985 and the community certificate issued by the Tahsildar on 28.11.1980and the Joint Commissioner of Land Administration dated 23.12.1985.Apart from the above, he has also referred to the documents of transferdated 4.1.1927 and 3.9.1930 execu ted by the paternal grandmother of thefirst respondent representing as the first respondent's father's guardianto show that the grandparents and the father of the first respondentbelonged to Pallan community of Scheduled Caste, and also a registered m ortgage deed dated 20.8.1942 executed by the first respondent's father toshow that in between the years 1930 and 1942, the first respondent's father got converted to Christianity. The learned senior counsel laidstress on the points of the conversion o f the first respondent toHinduism in view of Suddhi ceremony and the conversion certificate issuedby the Arya Samaj in that regard and also the community certificateissued by the Tahsildar and the Joint Commissioner of LandAdministration, the concern the first respondent shown when 17 Harijanwomen were raped and involving in criminal prosecution, contesting thesame and getting acquittal and contesting the Assembly Constituency as aScheduled Caste candidate, and contended that the above points amp lyprove that the first respondent had genuinely converted himself fromChristianity to Hinduism and that on the date of notification invitingapplication for the selection to the post of District Judge, the firstrespondent was a Hindu and continued to be a Hindu even to this date andthat the writ petition is also hit by laches. It is submitted by thelearned senior counsel that apart from the conversion, the firstrespondent, whose ancestors belonged to Scheduled Caste of Hindu religion, had never lo st his status as a Hindu and continued to be aHindu in spite of his father's conversion to Christianity and the firstrespondent's birth as a Christian. Mr. G. Masilamani, learned seniorcounsel, further submits that the Writ is for a Quo Warranto and itsscope cannot be enlarged by calling for a report and then adjudicate onthe basis of the said report, that neither the caste certificate of thefirst respondent nor his appointment as District Judge has been questioned and that so long as the caste c ertificate stands, therespondent cannot be ousted from service. The learned counsel has alsosubmitted that the writ petition is barred by laches in view of longyears of service put in by the first respondent. Mr. G. Masilamani,learned senior couns el, in support of his legal contentions, has citedthe judgments of Supreme Court in PRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR v. .

8. Mr. N.R. Chandran, learned Advocate General, has submitted thatpursuant to MADHURI PATIL's case (supra), the State Government has issued G.O. (2D) No.18, Adi Dravidar and Tribal Welfare (ADW.2) Department,dated 1.4.1997, constituting a Committee o high-ranking officers to makeenquiry regarding the genuineness of the claims of social status asScheduled Caste/Scheduled Tribe and that a direction be issued to theGovernment to cause an enquiry with regard to the social status of thefirst responden t by the Committee so constituted.

9. (a) In KUMARI MADHURI PATIL's case (supra), the question was as to whether Hindu-Koli can be considered as Mahadeo-Koli. The argument that Hindu-Koli was equivalent to Mahadeo-Koli, which was notified asScheduled Tribe, was repelled. The cert e obtained in that regard wasnullified. The Committee's report to the effect that the appellant'sfather cannot be treated as Mahadeo-Koli and consequently, the appellantcannot be a Scheduled Tribe, was upheld by the Supreme Court. The Supreme Court also laid down some guidelines regarding the verificationof the caste whenever disputes are raised in that regard. The said caseis not a case relating to conversion.

(b) VALSAMMA PAUL's case (supra), deals with a conversion but not like the instant one. In the said case, the appellant therein was aSyrian Catholic (forward class) having married a Latin Catholic (backwardclass - fishermen) and claiming status of h r husband, she was appointedas Lecturer in the University for the post reserved against the backwardclass. The matter ultimately was dealt with by the Full Bench of theKerala High Court and it was held that even though the appellant became abackward class by being married to a backward class husband, she cannot claim the benefit of reservation. The said view was affirmed by theSupreme Court in Valsamma Paul's case, on appeal. It was held by theSupreme Court,

'34.... Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation inadmission into educational institutions, or in case of other economicbenefits under Articles 15(4) and 46, o r in appointment to an office ora post under the State under Article 16(4). Therefore, when a member istransplanted into Dalits, Tribes and OBCs, he/she must of necessity alsoundergo same handicaps, be subject to the same disabilities, disadvantages , indignities or sufferings so as to entitle the candidateto avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march ofadvantageous life but is transplanted in backward caste by a doption ormarriage or conversion, does not become eligible to the benefit ofreservation either under Article 15(4) or 16(4), as the case may be.Acquisition of the status of Scheduled Caste etc. by voluntary mobilityinto these categories would play fraud on the Constitution and wouldfrustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.'

(c) In S. SWVIGARADOSS v. ZONAL MANAGER, F.C.I. : [1996]1SCR995 , arising out of the State of Tamil Nadu, the parents of thepetitioner therein got already converted into Christian religion. He wasselected in the vacancy reserved for Sched stes and on coming to knowthat he was not a Scheduled Caste but a Christian, a show cause noticewas issued but the same challenged by filing a suit, but ultimately, itwas held that as he was born a Christian, he continued to be a Christiannot entitle d for the benefit of S.C. reservation. The contention ofthe petitioner was that even though he was born of Christian parents,with the consent of his parents, he got converted into Hinduism at theage of 14 and on such conversion, he became Adi Dravida and consequently entitled to the status of Scheduled Caste. But the said contention wasrepelled by the Supreme Court stating,

'8.....In view of the admitted position that the petitioner was born ofChristian parents and his parents also were converted prior to his birthand no longer remained to be Adi Dravida, a Scheduled Caste for thepurpose of Tirunelveli District in Tamil Nadu as notified by the President, petitioner cannot claim to be a Scheduled Caste....'

To support his argument, the learned counsel for the petitioner laysstress on what is stated by the Supreme Court in VALSAMMA PAUL's case (supra) in paragraph 34, which has been extracted above, and also inSWVIGARADOSS's case (supra) in paragraph 8, e xtracted above. VALSAMMA PAUL's case did not involve any adjudication as to whether a non-Hindu can be converted to Hinduism. In that case, both the husband and wifewere Christians but one was a Syrian Catholic belonging to Forward Classand another La tin Catholic belonging to backward class. Status andreservation as a backward class was claimed by the wife on the basis ofthe marriage and though status was recognised, reservation was negatived.What is stated in paragraph 34 in VALSAMMA PAUL's cas e (supra) have to be read only in the said context and cannot be construed as laying downany broad proposition that no non-Hindu can be converted as a Hindu. InSWAGIRADOSS's case (supra), there was no plea that the parents of the appellant therein had ever belonged to Scheduled Caste. The said casearose out of Second Appeal No.270 of 1984 on the file of this Court andwe have perused the pleadings and judgment in the said case. It was found as a fact that there was no pleading that the appellant' s parentsoriginally belonged to Adi Dravida Caste (Scheduled Caste). It was heldthat as a fact, no legally acceptable proof was adduced to accept thecontention of the appellant that he converted himself as a Hindu. Whatis stated in paragraph 8, ext racted above in SWIGARADOSS's case (supra), has to be understood only in that context and not laying down any absolute proposition that a non-Hindu cannot be converted as a Hindu. Infact, the relevant proposition is found in the judgment of the SupremeCourt in the cases of C.M. ARUMUGAM and MOHAN RAO (supra). In C.M. ARUMUGAM's case (supra), it was held that there is no prohibition for aperson belonging to other religion to convert as a Hindu and the saidview was affirmed by a Constitution Bench o f the Supreme Court in MOHAN RAO's case (supra). To the same effect are the judgments laterpronounced by the Supreme Court in KAILASH SONKAR's case and ANBALAGAN's case (supra). Basing upon the legal principles stated by the SupremeCourt in the above four decisions viz. C.M. ARUMUGAM, MOHAN RAO, KAILASH SONKAR and ANBALAGAN (supra), we hold that there is no bar for a non-Hindu to convert as a Hindu. Excepting the case of MOHAN RAO, allother cases relate to election in which both oral and documenta ryevidence were adduced before the Election Tribunal under theRepresentation of People Act, 1951 and basing upon the said evidence, itwas held that there was conversion to Hinduism. Even in the case ofMOHAN RAO (supra), it went by concession, as the State did not want to disturb the admission already made. The Supreme Court did not adjudicateon the merits of the material on record because of the above concession.Having laid down the legal principles, the Supreme Court held,

'8. This view would have ordinarily required us to find whether, onthe material on record, it could be said to have been established by therespondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of hat caste, for it is only if hewas so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, asalready pointed out, it has been agreed by the State that, whatever bethe resu lt of this appeal, the admission of the respondent will not bedisturbed.'

10. We are not accepting the laches theory propounded byMr.G.Masilamani, the learned senior counsel for the first respondent. InKASHINATH G. JALMI's case (supra), which is the latest and leading judgment on the question of laches, a distincti awn between the reliefpersonal to the petitioner as compared to a class action and it was heldthat the class action, whose objective is to promote public interest andgood administration, cannot be rejected as otherwise, it would amount tosanction for continuation of usurpation of office and perpetuation of anillegality. But we find it difficult to grant a Writ of Quo Warranto assought for. A Writ of Quo Warranto pre-supposes that the holder of anoffice is a usurper or his appointment is contrar y to constitutional orstatutory provisions or rules framed thereunder. We could have straightaway issued a Writ of Quo Warranto against the first respondenthad we accepted the plea of the petitioner that the first respondenthaving born a Christian ca nnot be converted a Hindu and even if suchconversion is permissible, the reservation benefit cannot be made available. But as already stated above, we are unable to accept thecontention of Mr. A. Sirajudeen, learned counsel for the petitioner,that ei ther there is an absolute bar for a non-Hindu to convert intoHinduism or that even such conversion will not restore the old caste towhich he or his parents belonged to and more so in view of theauthoritative pronouncement of the constitutional Bench o f the SupremeCourt in MOHAN RAO's case (supra). In fact, that case is closer to the facts of this case. In that case, Mr. Mohan Rao was born to parents belonging to Madiga caste, which is a recognised Scheduled Caste in theState of Andhra Pradesh and they were both converted to Christianity andMr. Mohan Rao was born a Christian and later on, when he attained theage of 14, he was re-converted a Hindu. It is apt to extract therelevant passage contained in paragraph 7 thereto.

'The reasoning on which this decision proceeded is equallyapplicable in a case where the parents of a person are converted fromHinduism to Christianity and he is born after their conversion and on hissubsequently embracing Hinduism, the members o e caste, to which the parents belonged prior to their conversion, accept him as a member withinthe fold. It is for the members of the caste to decide whether or not toadmit a person within the caste. Since the caste is a social combinationof persons governed by its rules and regulations, it may, if its rulesand regulations so provide, admit a new member just as it may expel anexisting member. The only requirement for admission of a person as amember of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., inDurgaprasada Rao v. Sudarsanaswami, AIR 1940 Mad 513, 'in matters affecting the well being or composition of a caste, the caste itself isthe supreme judge . It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts, would notbecome a member of the caste to which his parents belonged, prior totheir 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.In this case too, the parents of the first respondent belonged to AdiDrivadar caste and they got converted to Christianity in mid-thirties andthese facts are not disputed. Equally, the facts that the firstrespondent was a born Christian after the con version of his parents intoChristianity, that his name was S. Antonysamy, a Christian name, and itcontinued to be so in all the school records and even up to the degreeand Post-graduate degree, including that of Degree in law and that he wasenrolled as an advocate in the name of S. Antony Samy, are not disputed.But the first respondent claims that he got converted a Hindu pursuant toSudhi ceremony and that he got married according to Hindu rites and evenhis daughter married a Hindu according t o Hindu rites and that he is notprofessing Christianity but professing Hinduism and that still he remainsa Hindu and that he was accepted as a Hindu by his community onre-conversion and that the authorities to issue the Caste Certificatehave issued t he same on verification. While the conducting of Sudhiceremony by the Arya Samaj and the effect thereof and also the acceptanceof the first respondent into their community, performance of marriagebetween the first respondent and his wife according to Hindu rites andalso that of his daughter later, are all pure questions of fact. Thereis no scope for enquiry in this writ petition and as rightly pointed outby the learned senior counsel for the first respondent, this writpetition for Quo Warranto does not have such scope for enquiry. We arealso accepting the arguments of Mr. G. Masilamani that so long as thesocial status of the first respondent, as depicted by the castecertificate issued by the authorities, stands, there is a statutorypresum ption under Section 114 of Indian Evidence Act that the firstrespondent is a Scheduled Caste and he cannot be called a usurper of theoffice. In fact, his caste certificates have not so far been questionedby anybody and as such, there was no occasion for any enquiry. This is clear from not only the records produced by the Government but also inthe counter filed by the Registrar General of the High Court. We arealso accepting the argument of the first respondent's counsel that thescope of the wri t petition cannot be extended and has to be confinedonly to the aspect of the apparent illegality. In this context, we feelit apt to refer to the nine-Bench judgment of the Supreme Court in NARESHv. STATE OF MAHARASHTRA : .

'We have referred to these respective arguments just to indicatethe extent of the field which has been covered by learned counsel whoassisted us in dealing with the present petitions. As this Court hasfrequently emphasised, in dealing with const ional matters, it isnecessary that the decision of the Court should be confined to the narrowpoints which a particular proceeding raises before it. Often enough, indealing with the very narrow point raised by a writ petition, widerarguments are urge d before the Court, but the Court should always becareful not to cover ground which is strictly not relevant for thepurpose of deciding the petition before it. Obiter observations anddiscussion of problems, not directly involved in any proceedings, s houldbe avoided by courts in dealing with all matters brought before them, butthis requirement becomes almost compulsive when the Court is dealing withconstitutional matters. That is why we do not propose to deal with thelarger issues raised by the learned counsel in the present proceedings,and we wish to confine our decision to the narrow points which thesepetitions raise.'

11. In view of what is stated supra, this writ petition failsand is accordingly dismissed. No costs. Consequently, W.P.M.Ps. areclosed.