S. Mohan, J.
1. The petitioner was originally a Hindu. She belonged to Pillaimar community. She got married to one Janab Shapir after em bracing Islam. The marriage took place on 24th December, 1968. The husband of the petitioner belongs to Muslim Labbai community. The said community has been included in the list of Backward classes. Ever since her conversion to Islam, the petitioner has been professing only Islam. The community has also recognised her marriage. In addition to that, the petitioner and her daughter Athya have been treated and accepted as members of her husband's community.
2. She submitted an application for appointment as Tutor in Tamil Nadu Government Arts College in the Tamil Nadu Educational Subordinate Services on 30th July, 1973. Along with her application she filed a certificate to the effect that she had embraced Islam and that on her marrying Janab Shapir, she had been accepted by the members of her husband's community as one amongst them and consequent to conversion to Islam, she bad become a Labbai. In addition to that she also filed the following documents:
(i) Extract from the Marriage Register. (Nikha Book) Muslim Jamath of Nagereoil (True copy of page 235 of 1968, dated 24th December, 1968) original.
(ii) Certificate from Janab S.M. Alavi Sahib, dated 23rd April, 1973 who performed the conversion ceremony on 24th December, 1968 original)
(iii) Certificate of conversion to Islam. dated 24th December, 1968 given by the Presidend of the Muslim Jamath, Nagercoil on 25th April, 1973 (original).
(iv) Memo No. C-7 No. 955/CN/T, dated 6th August, 1973 of Deputy Inspector General of Police C. I. D. Madras regarding the publication of the change of the petitioners religion and name (attested copy).
(v) C. No. 246 of 1973 dated 27th June, 1973 of the Tahsildar, Tirunelveli, relating to the community certificate of the petitioner's husband Thiru B Shapir (attested copy).
(vi) Certificate given by the Government Chief Kaziar of Madurai, dated 20th July. 1973 as to the acceptance of the petitioner's community as Labbai (original).
(vii) Certificate by the village Magistrate, Palayapettai dated 26th June, 1973 regarding community (original).
(viii) Community certificate given by the Panchayat Union Commissioner, Manur, dated 17th July, 1973 before the publication of the change of the petitioner's name in the Gazette.
(ix) Community certificate obtained from the same Panchayat Union Commissioner Manur on 20th May, 1974 after the publication of the change of petitioner's name as K.S. Ameena Shapir in the Gazette (original.)
(x) Copy of the proceedings of the Director of Collegiate Education, Madras, L. Dis. No. 212971/E3/73 dated 1st November, 1973 recognising the change of of the petitioner's name as K. A. Ameena Shapir (attested copy).
She addressed a letter, dated 16th December, 1975 to the Secretary, Tamil Nadu Public Service Commission. Likewise, she wrote another letter to the Secretary, Social Welfare Department on 23rd May, 1977. She raised the following points for consideration among other grounds:
1. As per Hindu law, a Hindu on his/ her conversion to islam ceases to be governed by the Hindu law.
2. After conversion he/she will be governed by Muslim law.
4. According to Muslim law, it is stated that there can be conversions to Islam and such converts are governed by Muslim law.
The Chief Kazi of Madurai, who is an authority on Muslim law, certified on 10th July, 1973, that the petitioner, who was originally known as Meenakshi was converted to Islam en 24th December, 1968 and married to Janab B. Shapir, who belongs to Muslim Labbai community, and that her Islamic name is Ameena Shapir. Hence it is stated that Thirumathi K.S. Meenakshi (Ameena Shapir), the petitioner, belongs to Muslim Labbai Community, which is included in the Backward classes.
3. Pending final decision, her application was admitted for recruitment as Tutor provisionally and she was interviewed on September, 1974. She was also selected provisionally for appointment as Tutor in Tamil. The Public Service Commission sought the opinion of the Government by its letter, dated 25th March, 1976 and the Government by its letter, dated 11th June, 1976 stated that the social status of a male/female member of a forward Community would not change merely because he/she had married a person from Backward class of Scheduled caste community, that the crucial test was whether the married couple were accepted by the members of the community to which they claimed to belong, that it could be proved by showing inter-marriage, inter dining, community of worship, dress residence in a particular place and the like and that in the specific case Thirumathi K.S. Meenakshi (Ameena Shapir) resided with her husband and the community of her husband, namely, Labbai, had accepted her as one among themselves. The Government therefore, was of the view that she could be treated as belonging to Labbai community included in the list of Backward classes. The Commission then pointed out to the Government that the Director of Harijan Welfare (presently Adi-Dravidar and Tribal Welfare), who was addressed in the matter, had enclosed a copy of the letter, dated 2nd May, 1975 of the Director General of Backward Classes Welfare, Government of India, Ministry of Home Affairs, New Delhi, and in that letter it is stated that no person who was not a Schedule Caste or Scheduled Tribe by birth would be considered to be a member belonging to Scheduled Caste or Scheduled Tribe merely because she/he married a person belonging to Scheduled Caste or Scheduled Tribe, that the Director had already written to the Government not to extend the concession applicable to Scheduled Caste or Scheduled Tribe to those who did not belong to such class but who married a person belonging to Scheduled Caste or Scheduled Tribe and that the Commission had been considering the Community of candidates only with reference to their birth and not with reference to their marriage. It was also pointed out that the Delhi High Court on a writ petition filed by one Tmt. Urmila Ginda against the Union of India and others held that a high caste family girl could not be treated as belonging to Scheduled Caste merely : on the ground of of her marriage to a person belong to Scheduled Caste. The Commission requested the Government to re-examine the matter.
4. The Government relying upon a decision of this Court in Seethalakshmi Ammal v. Ponnuswamy Nadar (1967) 80 L.W. 151 : I.L.R. (1966) Mad. 373, and also the decision of the Supreme Court in G. M. Arumugam v. Rajagopalan and others : 3SCR82 , stessed that the acceptance by the community people of the individual was the most important factor in deciding as to whether a member belonging to the forward community could be regarded as a person belonging to backward community, consequent on the marriage of the petitioner with a Labbai Muslim and consequent on the acceptance by the community of her husband as one among them. The Government took the view that there were no grounds for re-examining the case of the petitioner Tmt. K.S. Meenakshi (Ameena Shapir). The Commission then pointed out that the acceptance by the community would arise only in the case of conversion or reconversion to Hinduism since proselytization was not recognised in it and since there was caste system in it, but in the case of religions which recognised proselytization, the question, of acceptance by the community did not arise at all. It was further pointed out that when one is converted to Christianity or Islam by valid modes, Christian or Muslim community, as the case may be, had to accept him and there was no other alternative, that the examination of the question of acceptance by that community in those religions did not arise, that the principle laid down by the judicial authority in regard to conversion or reconversion to Hinduism was not applicable to conversion or reconversion to other religions : that therefore, the question of acceptance by community was a vague criterion which would not be satisfactorily established or de-established, and that one could not become backward or forward by marriage. The Government after a careful examination of the issues involved and in consultation with the Advocate-General, finally ordered on 11th April, 1930 that by marriage alone, a forward community person could not be considered as backward community candidate and that by changing religion the petitioner in this case, who is a member of the forward community, had become a Muslim only and had not become a Labbai Muslim, a backward class, and that therefore, she was not entitled to the benefits given to backward classes. The Government accordingly modified its orders, dated 11th June, 1976, Based on the orders of the Government dated 11th April. 1980 the Tamil Nadu Public Service Commission considered Tmt. Meenakshi (Ameena Shapir), the petitioner herein, to belong to 'others' and rejected her application on the ground that she was over-aged for appointment as Tutor in Tamil in the Tamil Nadu Educational Subordinate Service. It is under those circumstances that the present writ petition has been preferred for a certiorarified mandamus to call for the records of the second respondent, Tamil Nadu Public Service Commission in connection with its letter dated 11th August, 1980 in and by which the application of the petitioner was rejected as over-aged.
5. Mr. G. Ramaswami, learned Counsel for the petitioner, states that the order of the Public Service Commission. dated 11th August, 1980, consequent on the change of view of the Government, as evidenced by its letter, date 11th April, 1980 is clearly wrong. If. by conversion from Hinduism to Islam. the petitioner is a Muslim, it would naturally follow that she belongs to the community to which her husband belongs, namely Labbai. Even in International Law, it is the husband's nationality that matters. The earlier view of the Government that the community should accept, is the proper view and one cannot say that the petitioner would become only a Muslim but not Labbai Muslim. Such a view does not take note of either realities or the acceptance of Labbai community itself that the petitioner belongs to such community. In support of his submission that what is essential is the acceptance by the Community, reliance is placed by the learned Counsel on a decision of the Supreme Court in N. E Hero v. Smt. Jahan Ara Jaipal Singh : 1972CriLJ746 .
6. The learned Government Pleader relying upon a decision of the Delhi High Court in Mrs. Urmila Ginda v. Union of India and Ors. : AIR1975Delhi115 , states that the present case is clearly governed by the ratio of that ruling. Further the test of acceptance by the community is a vague one and that cannot in any way be applicable. May be, if Muslim law recognises conversion, by that conversion the petitioner ceases to be a Hindu and thereafter she would belong to Muslim religion. How she could further claim that she belongs to Labbai community is a surprise, because in Muslim law communities are not recognised.
7. I have given my very careful consideration to this case. These are days when both the Central and State Governments are not only advocating bat also earnestly desiring to establish casteless society. The first step, as the policy as announced would indicate is the abolition of the caste system. It is in that regard encouragement is given by the Government of Tamil Nadu by instituting prizes for those who get married inter-caste. Nobody can have any quarrel with such promotion of inter-caste system since more they are encouraged, speedier will be the establishment of a casteless society. If this background is kept in mind since it forms the hard core of reality of the situation, as it obtains to-day, I do not think that there will be any difficulty in appreciating the stand of the petitioner.
8. It well-settled that even in International Law, a wife on her marriage, acquires the nationality of her husband, unless the municipal law prevents such an acquisition. In this case, the petitioner, who was originally a Hindu and was called by name K. S. Meenakshi, embraced Islam and married Jahab Shapir. By reason of such marriage which is recognised by Muslim law, she became a Muslim. I am unable to appreciate the argument of the learned Government Pleader that Muslim law does not recognise caste system. That is only a textual law; but in practice and in reality at any rate in this part of the country, Muslims are classified on the basis of community. That is obvious from the list of backward classes prepared by the Government of Tamil Nadu containing the name of Labbai, which is a community of Muslims. On the same principle, it stands to reason that a wife must belong not only to the religion to which her husband belongs, but to the community as well. If, therefore, this salutary principle is adopted that by marriage from one community to another within the same religion as in the Hindu religion or from one religion to another as in the instant case the husband's community alone is to prevail, there is absolutely no possibility of accepting the revised view of the Government. Of course if the case on hand happens to be reverse it would be different. Therefore, the golden rule appears to be, it is the community or the religion to which the husband belongs that should matter. One other test which was correctly propounded by the Government by its letter, dated 11th June, 1976, was the acceptance by community.
9. The Supreme Court in two cases has laid down such a test. In N. E. Horo v. Smt. Jahan Ara Joipal Singh : 3SCR361 , the Supreme Court had laid down as follows:
Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence it is proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become member of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda woman's marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to get changed when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is noteworthy that a Hinduised Munda and Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas, Mr. Hero himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reason for disagreeing with the view of the High Court an the points under discussion.
10. In C.M. Arumugam v. S. Rajagopal and Ors. : 3SCR82 , the same principle of acceptance by community was reiterated. In that case the Supreme Court has observed as follows:
These cases show that the consistent view taken in this country since Administrator-General of Madras v. Anandachari (1886) I.L.R. Mad. 466, was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hindusim, there is on rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided, of course, the Community is willing to take him within the fold. It is the orthodox Hindu Society still dominated to a large extent, particularly in rural areas by medievalistic outlook and status-oriented approach which attaches social and economic disabilities to person belonging to a Scheduled Caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and ecocomic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to Scheduled Caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after-reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950, would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the 1st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.
Therefore, the argument addressed on behalf of the Public Service Commission that the petitioner would become merely a Muslim and would stop there and would not become a member of the community to which her husband belonged, does net constitute a realistic approach. It is more theoretical than practical.
11. I will now deal with the decision of the Delhi High Court in Mrs. Urmila Ginda v. Union of India and Ors. : AIR1975Delhi115 , cited on behalf of the respondents. In that case the learned Judge held that the petitioner in that case, who was a high caste Hindu lady and who married a Scheduled Caste husband, could not on the ground of marriage claim the post reserved for Scheduled Caste. The reasoning of the learned Judge was, to quote his own words:
It seems to me that to permit a lady like the petitioner belonging to a higher caste to compete for a seat reserved for such socially and educationally backward class of people merely by reason of her marrying a person belonging to such a caste might even defeat the provision made by the State in favour of such specially and educationally backward classes by reserving certain posts for them. The special provision reserving a seat for scheduled castes would be nullified if a person not subject to educational or other backwardness is allowed to compete with those who are so handicapped.
It must be conceded in fairness to the petitioner that she has not been shown to have married a person belonging to the Scheduled Castes merely for the purpose of seeking a reserved Government post. But for considering the question whether a person belonging to a higher caste can claim to be appointed to such a reserved post only by reason of marriage it seems necessary to even think of the possibility of the same being abused. If it is to be held that a high caste wife marrying a Scheduled Caste husband would become a Scheduled Caste candidate entitled to such a reserved post it would be to let that person, who is not subjected to the same social or educational backwardness, to compete with those who are socially and educationally backward, to advance whom the Government makes such a special provision as permitted by Article 15 (4) of the Constitution.
12. With great respect, I an unable to agree with this line of reasoning. If this theory is accepted, then what will happen to the children born out of this wedlock? Are they to be considered as high caste Hindus or scheduled caste? I should go to the extent of saying that even if a high caste woman marries a person belonging to the Scheduled Caste just for the sake of obtaining a reserved post, what is wrong in it? For more than 2000 years people belonging to the Scheduled Caste were treated as chattel in this country of ours and no less a person than the Father of the Nation laid down his life at the altar of freedom for the betterment of these unfortunate lot. A social stigma, notwithstanding the revolutionary ideas preached day in and day out, attaches to people belonging to the Scheduled Caste, which is something like the theory of apartheid practised in South Africa. No person would normally be happy to be called a member of the Scheduled Caste; it may be, it would enable a person to get a few jobs, or a few loaves, but what about the social stigma? Perhaps one may even recall the words of Shakespeare that 'a leopard cannot change its spots, nor can a Negro his colour'. In other words, once a person is stated to belong to the Scheduled Caste, the social stigma will remain indelible for all time to come. That will be so in the case of their offisprings; right from the day of birth till they return to dust.
13. Having regard to these handicaps, if the policy as I have stated is not adopted, it will be impossible to think of a casteless society, which is the avowed goal of this Nation. Therefore, I am of the view that the memorandum of the Service Commission, dated 11th August, 1980, has to be quashed; it is accordingly quashed. The rule nisi is made absolute. The petitioner will be entitled to her costs. Counsel's fee Rs. 300 (Rs. Three hundred only).