Dismissed

Mrs.S.Yasmine, v. the Secretary

Madras HC13 Jun 2013WP/6430/2013

Case brief

AI extract

What is this about?

The petitioner, originally from a backward Christian community, sought reservation benefits after converting to Islam but exceeded the open category age limit. The court dismissed her writ petition, holding that conversion to Islam, which rejects caste, results in the loss of previous backward community status.

What did the court decide?

The writ petition seeking direction to treat petitioner as a backward class candidate was dismissed.

Mrs.S.Yasmine, Vs the Secretary — Pension and Retirement Benefits | Madras HC (2013)

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In the High Court of Judicature at Madras

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Dated : 13-06-2013

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Coram :

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The Honourable Mr.Justice V.RAMASUBRAMANIAN

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Writ Petition No.6430 of 2013

Mrs.S.Yasmine

...Petitioner

1.The Secretary, Tamilnadu Public Service Commission, Chennai-3.

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2.The Deputy Secretary-cum-Information

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Officer, Tamilnadu Public Service Commission

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Chennai-3. ...Respondents

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PETITION under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus to call for the records in Memo.No.7426/R1/D1/BST /C2/2012 dated 11.2.2013 issued by the second respondent, quash the same and further direct the respondents to treat the petitioner as backward class (Muslim) and provide her employment opportunity in the selection process of the respondents.

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For Petitioner : Ms.Sudarshana Sundar

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for Mr. M.V.Venkataseshan

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For Respondents : Ms.C.N.G.Niraimathi

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O R D E R

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The petitioner was born to a couple belonging to Christian Nadar community classified as backward community. It appears that she converted herself to Islam and married a Muslim gentleman.

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2.In response to the Notification issued by the Tamilnadu Public Service Commission calling for applications for selection to Group IV Services in the State of Tamilnadu, issued in April 2012, the petitioner applied. She was successful in the written examination conducted on 7.7.2012 and hence, by a communication dated 30.11.2012, she was invited for counselling and verification of certificates held on 26.12.2012.

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At the time of counselling, the petitioner was informed that since she converted herself from Christianity to Islam, she will be treated as a candidate belonging to 'other communities' not entitled to any reservation. Subsequently, the same was also confirmed by the Public Information Officer of the Tamilnadu Public Service Commission by a communication dated 11.2.2013, holding that the candidature of the petitioner stood rejected, as she had crossed the upper age limit of 30 years, which was fixed for open https://hcservices.ecourts.gov.in/hcservices/ category candidates. The upper age limit fixed for backward communities was 35 and the petitioner had completed 31 years 2

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months and 9 days on the crucial date. Therefore, challenging the said communication, the petitioner has come up with the above writ petition seeking issue of a Writ of Mandamus to direct the respondents to treat her as a candidate belonging to backward community (Muslim).

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4.I have heard Ms.Sudarshana Sundar, learned counsel for the petitioner and Ms.C.N.G.Niraimathi, learned counsel appearing for the respondents.

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There are no disputes on facts. The fact that the petitioner hailed from a family of Christian Nadars categorised as a backward class community, the fact that she got converted to Islam and married a Muslim gentleman and the fact that she had crossed the age of 30 years are all admitted on both sides. If the petitioner is treated as a candidate belonging to backward communities, she would have been treated as within the upper age limit for recruitment. Her candidature is today rejected only on the ground that she is treated as a candidate belonging to 'other categories', for whom, the upper age limit is fixed only as 30.

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The stand taken by the respondents is :-

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(i) that once a person gets converted from one religion to another religion, the community status that he or she originally had would stand eclipsed during the period of continuance in the converted religion; and

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(ii) that by converting into another religion, a person cannot acquire a social status of backwardness.

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In the light of such a stand, two questions arise for consideration namely

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(a) whether a person, upon conversion from one religion to another, can claim the social status of backwardness enjoyed by persons, belonging to such sects in that religion ? and

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(b) whether, upon conversion from one religion to another religion, the convert would lose out of the social status enjoyed before conversion ?

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A similar issue came up before me in two writ petitions W.P.Nos.9150 and 10859 of 2012, while sitting in Madurai Bench of Madras High Court. In that case also, the writ petitioners earlier belonged to Hindu Nadar community and had got converted into Islam. Without going into the merits of the issues in detail, I allowed both the writ petitions by an order dated 10.1.2013, following a judgment rendered by Vinod K.Sharma,J on 20.1.2011 in W.P.No.21864 of 2010. Apart from following the decision of Vinod K.Sharma,J, I pointed out one more thing, namely

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(i) that the right of a person to profess any religion, which includes a right to get converted, is a Fundamental Right; and

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(ii) that when such conversion is genuine and not created as a make belief affair for the purpose of getting some benefit, the benefits that go along with conversion cannot be deprived.

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9.In the light of the decision that I had already taken at Madurai, the writ petition was taken up even at the stage https://hcservices.ecourts.gov.in/hcservices/ of admission on the impression that it is a case covered by a precedent. But, in the course of hearing, it was

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demonstrated by the learned Standing Counsel for the respondents that the issue raised in the writ petition is not as simple as I had presumed it to be at Madurai. Therefore, I heard the learned counsel on both sides at length.

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Question No.1 :

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As pointed out earlier, the first question that arises for consideration is as to whether a person, upon conversion from one religion to another, would acquire the status of backwardness, as available to the others, who are born in that religion. This question does not pose any great difficulty. No person can acquire backwardness or most backwardness socially, upon conversion from one religion to another. Backwardness is determined by birth and not by conversion. Today, a person, who belongs to a community, which is a forward community, cannot get converted to Islam and suddenly become eligible to claim the benefit of reservation available to backward class (Muslim). If this is permitted, the yardstick for determining social backwardness will be left entirely to the will of the individual. Therefore, on the first question, there can be only one answer namely that by conversion, a person cannot acquire the social status that is normally available to persons already professing that religion. Question NO.2 :

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The second question that arises for consideration is as to whether a person professing a particular religion and belonging to a backward or most backward or scheduled caste community, would lose even that status merely by getting converted into another religion or not. This question appears to be a little tricky and is actually on a slippery slope, as evidenced by my own decision at Madurai.

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Ms.C.N.G.Niraimathi, learned counsel for the respondents relies upon the decision of the Supreme Court in Kailash Sonkdar Vs. Smt.Mayadevi [1984 (2) SCC 91]. The questions that came up for consideration before the Supreme Court in that case were

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(i) as to what happens if a member of the scheduled caste or scheduled tribe leaves his present fold, namely Hinduism and embraces Christianity or Islam ?

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(ii) as to whether it would amount to a complete loss of the original caste, to which, he belonged for ever ? and

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(iii) as to whether there would be revival of the original caste, if he or his children subsequently choose to abjure the new religion and get re-converted to the old religion ?

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In paragraph 12 of its decision, the Supreme Court posed the following questions to itself :

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(i) is membership in a caste or tribe to be determined solely by birth or by allegiance or by the opinion of its members or of the neighbourhood ? and

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(ii) does one lose his caste on conversion or by excommunication ?

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To find out an answer to these questions, the Supreme Court referred to the triple test laid down in Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram (AIR 1954 SC 236). The triple test is (i) the reactions of the old body; (ii) the https://hcservices.ecourts.gov.in/hcservices/ intentions of the individual; and (iii) the rules of the new order. If the old order is tolerant of the new faith and seems no reason

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to out-cast or ex-communicate the convert and the individual himself desires or intends to retain his old social and political ties, the conversion is only nominal for all practical purposes. It was further pointed out by the Supreme Court in Jasani, which was cited with approval in Kailash Sonkar that if a convert had shown, by his conduct and dealings that his break from the old order is so complete and final, that he no longer regards himself as a member of the old body and there is reconversion and re-admittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages, which are special to the old order.

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15.In Kailash Sonkar, the Supreme Court referred to the decision in S.Rajagopal Vs. C.M.Arumugam (AIR 1969 SC 101), to point out that the question as to what happens after the reconversion was left undecided in Arumugam. The Court then referred to the latter decision in G.M.Arumugam Vs.S.Rajagopal (AIR 1976 SC 939) and to the subsequent decision in S.Anbalagan Vs. B.Devarajan (AIR 1984 SC 411).

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After analysing the import of all these decisions, the Supreme Court held in paragraph 27 that "the caste to which a Hindu belongs, is essentially determined by birth and that if a Hindu is converted to Christianity or another religion, which does not recognise caste, the conversion amounts to a loss of the said caste."

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Despite clinching the issue as such in paragraph 27, the Supreme Court added something more in paragraph 34, which is as follows :

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"In our opinion, when a person is converted to Christianity or some other religion, the original caste remains under eclipse and as soon as during his/her life time, the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives."

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Therefore, it appears clearly from the decision in Kailash Sonkar that even the original caste, to which the petitioner belonged namely Christian Nadar community categorised as a backward class is now eclipsed due to the conversion to Islam. But, this aspect was not noted either by me or by Vinod K.Sharma,J, when we allowed a couple of writ petitions there.

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It is interesting to note that even 30 years before Kailash Sonkar was decided by the Supreme Court, a Division Bench of this Court decided similar issue in G.Michael Vs. S.Venkateswaran [1952 (1) MLJ 239]. It was held by the Division Bench therein as follows :

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"Christianity and Islam are religions prevalent not only in India but also in other countries in the world. We know that in other countries these religions do not recognise a system of castes as an integral part of their creed or tenets. Is it different in India? Mr. Venkatasubramania Aiyar frankly confessed that so far as Islam is concerned there is no question that it does not tolerate any difference based on caste distinction. A member of one of the castes of sub-castes when he is https://hcservices.ecourts.gov.in/hcservices/ converted to Islam ceases to be a member of any caste. He becomes just a Mussalman and his place in Muslim society

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is not determined by the caste to which he belonged before his conversion. Learned counsel also conceded that generally this is so even when there has been a conversion to Christianity. But he said that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted. I am prepared to accept that instances can be found in which in spite of conversion, the caste distinctions might continue. This is somewhat analogous to cases in which even after conversion certain families and groups continue to be governed by the law by which they were governed before they became converts. But these are all cases of exception and the general rule is conversion operates as an expulsion from the caste; in other words, a convert ceases to have any caste."

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Therefore, the inevitable conclusion of the above discussion appears to be that upon conversion, the petitioner lost her community status as belonging to a backward community. It is more pronounced in the case of the writ petitioner, since she got converted from Christianity to Islam, both of which are more rigid in their denial of the division of the society into castes and communities. Hence, the respondents were right in treating the category, to which the petitioner belongs, as 'other communities'. The decision rendered by me in W.P.Nos.9150 and 10859 of 2012 dated 10.1.2013 does not appear to represent the correct position in law.

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Therefore, the writ petition is dismissed. No costs.

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Sd/Deputy Registrar /true copy/ Sub Assistant Registrar.

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RS/Svn

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To 1.The Secretary, Tamilnadu Public Service Commission, Chennai-3.

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2.The Deputy Secretary-cum-Information Officer, Tamilnadu Public Service Commission, Chennai-3. +1cc to Mr. M.V.Venkataseshan, Advocate SR.No.28876 KSJ(CO) ka 25/06

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ORDER IN WP.NO.6430 OF 2013

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https://hcservices.ecourts.gov.in/hcservices/

Mrs.S.Yasmine, v. the Secretary

Case brief

What is this about?

What did the court decide?

Mrs.S.Yasmine, v. the Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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