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J. Das Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 3831 of 1980-F
Judge
Reported inAIR1981Ker164
ActsConstitution of India - Articles 15 and 29; Constitution (Scheduled Castes) Order, 1950; Hindu Law
AppellantJ. Das
RespondentState of Kerala and anr.
Appellant Advocate K.S. Rajamony and; A. Shahul Hameed, Advs.
Respondent Advocate Government Pleader and; T.K.M. Unnithan, Adv.
DispositionPetition dismissed
Cases ReferredC. M. Arumugam v. S. Rajagopal
Excerpt:
.....sc 939). we think it necessary and worthwhile to refer to the facts of these two cases, for a better appreciation of the principles settled by the supreme court therein. the supreme court proceeded to consider whether the appellant satisfied all the requirements of paragraph 2 of the presidential order, namely, the constitution (scheduled castes) order, 1950. the burden to prove that the appellant once again became a member of the adi dravida hindu caste on his re-conversion to the hindu religion was on him. on the evidence available it was held that the appellant failed to establish that he become a full member of the adi dravida hindu caste after his re-conversion to hinduism. in addition to the features projected and considered by the supreme court in the earlier case, the first..........shareholder in that trust. ext. p-12 is the certificate issued by an ex. m. p. belonging to paraya hindu caste testifying to the petitioner's case of conversion and acceptance of the petitioner as a paraya caste hindu. ext. p-13 is a memo dated 16-9-1980 by which the petitioner was directed to appear in person before the firka revenue inspector, pidavoor, for an enquiry. he appeared before the firka revenue inspector. enquiries were made. ext. p-2 select list followed. then he filed ext. p-14 representation. ext. p-15 is a g. o. issued by the government of kerala, giving the guidelines as to when on reconversion to hinduism a person can be said to belong to the scheduled caste. the petitioner prays for a declaration from this court that he belongs to the scheduled caste -- paraya-hindu.....
Judgment:

Khalid, J.

1. This writ petition comes up before us on reference by Bhaskaran, J. The petitioner claims to be a Paraya-Hindu. He is a B. Sc. graduate with Zoology main and Botany and Chemistry as subsidiary subjects. He applied for admission to the M. B. B. S. course for the year 1980-81 claiming a seat reserved for scheduled caste. He was first included in Ext. P-1 provisional rank list dated 21-8-1930. Subsequently, his name was deleted from Ext. P-2 select list dated 25-9-1980. No reasons were given for his exclusion from Ext. P-2 list. He learnt on enquiry that his exclusion was as a result of enquiries conducted by the College authorities who found that he did not belong to scheduled caste.

2. The petitioner's case that he belongs to a scheduled caste. Hindu-Paraya, is set out in the petition as follows : His paternal grandfather was one Athichan of Pathanapuram Taluk, who is now more than 80 years old. He lives with the petitioner's parents in Pathanapuram. The said Athichan was originally a Hindu belonging to the Paraya Caste. Ext. P-3 is an affidavit filed by him stating that he and his forefathers were all Paraya Hindus. While so, he changed his religion and Rot himself converted into Christianity through the Salvation Army Divisional Headquarters, Adoor, changed his name from Athichan to Pathrose Jacob. This conversion is evidenced by Ext. P-4 certificate. Ext. P-5 is an affidavit by the petitioner's father, J. Yesudasan, who is the eldest son of the aforesaid Pathrose Jacob. He was a born Christian as is the petitioner. Ext. P-6 is page No. 3 of the petitioners S. S. L. C. Book in which the petitioner is described as 'Christian-Paraya'. The petitioner got himself converted from Christianity to Hindusim. The formal ceremonies of conversion including the performance of Sudhi was conducted by the Araya Samaj, which is evidencedby Ext. P-7. The petitioner's conversion to Hinduism and consequent change of name was published in the Kerala Gazette dated 29th July, 1980. Ext. P-10 is the certificate dated 5-3-1980 issued by the All Kerala Hindu Sambhava Mahasabha, in proof of the fact that he was accepted as a member of the Paraya Caste. Ext. P-11 is a certificate issued by the Kerala Scheduled Castes and Scheduled Tribes Welfare Trust, showing that the petitioner became a shareholder in that Trust. Ext. P-12 is the certificate issued by an Ex. M. P. belonging to Paraya Hindu Caste testifying to the petitioner's case of conversion and acceptance of the petitioner as a Paraya Caste Hindu. Ext. P-13 is a memo dated 16-9-1980 by which the petitioner was directed to appear in person before the Firka Revenue Inspector, Pidavoor, for an enquiry. He appeared before the Firka Revenue Inspector. Enquiries were made. Ext. P-2 select list followed. Then he filed Ext. P-14 representation. Ext. P-15 is a G. O. issued by the Government of Kerala, giving the guidelines as to when on reconversion to Hinduism a person can be said to belong to the scheduled caste. The petitioner prays for a declaration from this Court that he belongs to the scheduled caste -- Paraya-Hindu caste and for a writ of mandamus directing the respondents to give him admission to the Medical College for the M.B.B.S. course for the year 1980-81 and for other consequential reliefs.

3. The respondents in their counter-affidavits admit that the petitioner's paternal grandfather was a Parava-Hindu and that the petitioner and his father are born Christians. According to the respondents, the entries in the petitioner's S. S. L. C. Book that he is a Christian-Paraya is made only for the purpose of securing benefits available to the backward communities regarding fee concession etc. The conversion of the petitioner immediately before his application for admission to the M. B. B. S. course will be according to the respondents, confer on him the status as a scheduled caste. Under Ext. P-15 G. O. persons who are converted will have to establish that they have been accepted by the caste as one among them. The other members of his family are still continuing as Christians.

He has not established how he has been accepted by the members of the Caste as one among them. Exts. P-10, P-11 and P-12, which came into existence just before his application for admission to the M. B. B. S. course do not satisfy the requirements of Ext. P-15 G. O. They are of recent origin and have been made designedly for the purpose of admission to the M. B. B. S. course.

4. In the light of the facts set out above, the only case that has to be considered is whether the petitioner has satisfactorily established that he has been accepted by the community as a member of that community. It is not disputed that the petitioner's paternal grandfather was a Paraya-Hindu. He got himself converted into Christianity at the age of 20. The petitioner's father was a born Christian. So was the petitioner. When the petitioner got himself reconverted into Hinduism, it may be that he came back to the caste of his forefathers. But the question would still remain whether by this conversion of recent origin, which from the facts and materials in the case was only for the purpose of admission to the Medical Colleges, the petitioner could be said to have satisfied the requirements of Ext. P-15 G. O. The relevant portion of Ext. P-15 G. O. reads as follows:

'Cases of conversion and re-conversion :--

(i) Where a scheduled caste person gets converted to a religion other than Hinduism or Sikhism and then reconverts himself back to Hinduism or Sikhism, he will be deemed to have reverted to his original scheduled caste, if he is accepted by the members of that particular caste as one among them.

(ii) In the case of a descendant of scheduled caste convert the mere fact of conversion to Hindusim and Sikhism will not be sufficient to entitle him to be regarded as a member of the scheduled caste to which his forefathers be-longed.. It will have to be established that such a convert has been accepted by the members of the caste claimed as one among themselves and has thus become a member of that taste.'

The most important thing, therefore, that the petitioner has to establish is that he was accepted by the members of his caste as one among them. We have nohesitation to hold that Exts. P-10, P-11 and P-12 cannot meet the requirements of Ext. P-15 G. O. or the test laid down by the Supreme Court in the followingcases:

5. The principle of law governingsuch cases is now settled by the Supreme Court in the decision reported in S. Rajagopal v. C. M. Arumugam. (AIR 1969 SC 101) and in C. M. Arumugam v. S. Rajagopal (AIR 1976 SC 939). We think it necessary and worthwhile to refer to the facts of these two cases, for a better appreciation of the principles settled by the Supreme Court therein. In AIR 1969 SC 101, the appellant was Rajagopal and the first respondent, C. M. Arumugam. They and three others filed nominations for election to the Legislative Assembly of the State of Mysore in 1967 General Elections from the K. G. F. constituency. At the time of scrutiny of nomination papers, the first respondent raised an objection against the nomination papers of the appellant on the ground that the nominations were in respect of a seat reserved for a member of the scheduled caste, that the appellant was not an Adi Dravida Hindu but an Indian Christian and was, therefore, disqualified to stand as a candidate for this reserved seat. This objection was rejected. Elections were held and the appellant was declared as the successful candidate. An election petition was filed by the first respondent challenging the validity of the appellant's election on the ground that the appellant was not qualified to be a candidate to fill the seat reserved for a member of the Scheduled Caste. The respondent admitted that the appellant was born as an Adi Dravida Hindu but stated that he got himself converted into Christianity, sometime in 1949 and thereafter continued to be a Christian and hence was not a member of the scheduled caste. The respondent denied his conversion to Christianity and pleaded in addition that even if his conversion to Christianity was found to be true, he had got himself re-converted into Hinduism at the time he filed the nomination papers. The main questions that fell for consideration before the Court were (1) whether the respondent was an Indian Christian (Protestant by conversion) and not a member of the scheduled caste (Adi Dravida) thus disentitlinghim to stand for election to the Assembly from a seat reserved for scheduled caste; (2) whether the respondent had Rot re-converted back to Hindu religion and whether such re-conversion would in law give him the benefit of the protection as a scheduled caste. The High Court had found on the evidence that the appellant became a Christian in the year 1949. This finding was confirmed by the Supreme Court. The Supreme Court also found on the evidence that at the relevant time in 1967 the appellant was professing Hindu religion. Even so, the Supreme Court held that this finding could not finally settle the matter in dispute. The Supreme Court proceeded to consider whether the appellant satisfied all the requirements of paragraph 2 of the Presidential Order, namely, the Constitution (Scheduled Castes) Order, 1950. The burden to prove that the appellant once again became a member of the Adi Dravida Hindu Caste on his re-conversion to the Hindu religion was on him. After discussing this aspect of the case with reference to the earlier cases, the Supreme Court held that a re-convert to Hinduism could become a member of the caste to which he belonged earlier if the Caste which was the Supreme Judge in such cases accepted him as a full member. On the evidence available it was held that the appellant failed to establish that he become a full member of the Adi Dravida Hindu Caste after his re-conversion to Hinduism. The Supreme Court held so despite the fact that the appellant had married a Hindu Adi Dravida woman in 1951, that against the entries of the children in the school records the caste of the mother was shown as Adi Dravida Hindu, that his children were brought up as Hindus, that when his children were admitted to school they were shown as Hindus, that in 1961 the appellant made an application for correcting his service records by showing his caste as Adi Dravida Hindu instead of Christian, that in 1962 General Elections he stood as an Adi Dravida Hindu and that he again stood as a candidate in the General Elections in 1967. These materials, weighty as they may appear, did not persuade the Supreme Court to accept the appellant's contention that he had become a Adi Dravida Hindu by caste on reconversion.

6. The same parties were pitted against one another in the reverse order before the Supreme Court in AIR 1978 SC 939. There Arumugham was the appellant and Rajagopal and others, the respondents. The appellant and the respondents were candidate for the election to the Legislative Assembly in 1972 in the same K. G. F. constituency. The first respondent's nomination was rejected since it was found that he was not an Adi Dravida Hindu. In the election that followed, the appellant was declared elected. The first respondent thereupon filed an election petition to set aside the election of the appellant on the ground that the rejection of his nomination paper was not proper as he had become an Adi Dravida Hindu by caste. The High Court accepted his case and set aside the election of the appellant. This was challenged in the Supreme Court. The same questions which were considered in, AIR 1969 SC 101 fell for consideration in this decision also and were debated at length. Four years had elapsed after the earlier election at the time first respondent filed his nomination papers for the election in question. In addition to the features projected and considered by the Supreme Court in the earlier case, the first respondent pressed additional features which had to be considered by the Supreme Court to ascertain whether the first respondent satisfied Clause (2) of the Presidential Order. Twelve circumstances appearing from the evidence were considered by the High Court and it was on the basis of these twelve circumstances that the High Court held that the Adi Dravida (Hindu) Caste had accepted the first respondent as a member of that Caste. The twelve circumstances included some which were considered by the Supreme Court in its earlier judgment. Three new circumstances influenced the Supreme Court to find in this decision that the respondent had been accepted by the Caste as its member. They were: (1) the first respondent was invited to lay the foundation stone for the construction of the new wall of the temple at J., which was essentially a temple of Adi Dravida Hindus, (2) that he was requested to participate in the Margazhi Thiruppavai celebrations at the Kannabhiran temple and (3) that he was Invited to preside at the Adi Kritikaifestival at Mariamman temple, where the devotees are all Adi Dravidas. The Supreme Court held that these three circumstances were strongly indicative of the fact that the first respondent was accepted and treated as a member of the Adi Dravida Caste.

7. The question of medical college admission of a student who claimed to be a scheduled caste fell far consideration by the Supreme Court in AIR 1976 SC 1904. In that case, the parents of the student in question originally professed Hindu religion and belonged to Madiga caste, which was admittedly a caste deemed to be scheduled caste in the State of Andhra Pradesh. They were both converted into Christianity. Admittedly, the student was born after their conversion. In the State of Andhra Pradesh, converts to Christianity were treated as belonging to backward classes for purposes, inter alia, for admission to the Medical College. The student, who was the respondent, applied for admission to Gandhi Medical College in 1973, describing himself as a member of the backward community. He did not succeed in getting admission wherefore he got himself converted into Hinduism on 20th September, 1973. A certificate was issued to him by the Andhra Pradesh Arunchatiya Sangham stating that he had renounced Christianity and that he was received hack to the Madiga Caste of Hindu fold after going through the Sudhi ceremony. On the strength of this certificate, he applied for admission to the Medical College. He was provisionally selected but subsequently was informed by the Principal that his selection was cancelled as he was not a member of the Mediga Caste. The principal was apparently influenced by the G. O. of the Andhra Pradesh which denied benefits available to scheduled castes if a person claiming it was not a scheduled caste by birth. The respondent moved the High Court. The respondent's case was that the restriction imposed by the Andhra Pradesh G. O. went against the Presidential Order and hence denial of admission was bad. This challenge was accepted by a learned single Judge of the Andhra Pradesh High Court which was confirmed by the Division Bench. The matter reached Supreme Court by special leave. By then, the Supreme Court had rendered the two decisionsreferred to above laying down the law on the point. The Supreme Court held as follows: fat P. 1908)

It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a 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.'

In that case, the Supreme Court had not to proceed further to find out whether on evidence the respondent had made out that he was accepted as a member of the Madiga Caste, because of a concession made by the State that irrespective of the result of the appeal, admission of the respondent would not be disturbed. The Supreme Court in that case once again reiterated that on re-conversion to Hinduism a person could become a member of the caste to which his parents or grandparents belonged with the important rider that he should establish that he had been accepted by the other members of the caste as one among them,

8. With the principle of law governing the issue so finally settled, we will consider the facts of the present case. Ext. P-15 G. O. recognises the requirements of the principle laid down by the Supreme Court to be proved by a person who claims to be a scheduled caste by conversion. The conversion of the petitioner to Hinduism is of recent origin. This has been done sometime before he applied to the Medical College. Ext. P-10 dated 5-8-1980, Ext. P-11 dated 4-9-1980 and Ext. P-12 dated 11-10-1980 of which reference has al-ready been made are not sufficient to establish that the members of his caste had accepted him as a member of their caste. The petitioner and his father are born Christians. The evidence in the case is far from satisfactory to show that the members of his caste have accepted him as one among them. It is stated in the counter-affidavit filed by the State that the other members of the petitioner's family are still continuing as Christians. Merely by taking a membership in the All Kerala Hindu Sambhava Mahasabha or by becoming ashare-holder of the Kerala Scheduled Castes and Scheduled Tribes Welfare Trust, the petitioner cannot claim that he has been accepted as a member of the scheduled caste by the members of that community. Far more acceptable evidence should be available to extend the principle enunciated by the Supreme Court and the benefit of Ext. P-15 G. O. to the petitioner. Not without justification is it stated by the learned Government Pleader that the conversion in this case was only for the purpose of making an application to the Medical College for admission.

9. The validity of Ext. P-15 G. O. cannot be assailed on any ground because it is strictly in conformity with the law of the land as laid down by the Supreme Court in the decisions referred to above. The petitioner is not entitled to any relief. We dismiss the petition. No costs.


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