Dr. Santhi Prakash vs Union Of India

1 Heard Sri M. Srikanth, learned counsel for the petitioner and Sri K.V.V.Vedanthacharya, learned standing counsel for the Central Government.

2 Petitioner filed the present writ petition seeking to declare the enquiry ordered in Memorandum F.No.4-22/2007-NI (pt), dated 06.02.2018 issued by the Joint Secretary (DEPwD) and Chairperson, EC, AYJNISHD, Mumbai as illegal and arbitrary and consequently to set aside the same.

3 Petitioner asserts that she was appointed as Lecturer (Education) by proceedings dated 30.06.1995 in Ali Yavar Jung National Institute for the Hearing Handicapped Calcutta, which has now been renamed as Ministry of Social Justice & Empowerment, Government of India. She further asserts that she belongs to Hindu – Mala Community which is a Scheduled Caste. Since the parents of the petitioner were facing social disgrace, they got converted into Christianity when the petitioner was minor. After the marriage of the petitioner on 29.09.1990, she got reconverted into Hinduism before Arya Samaj (Central) Madras on 7.10.1990. A certificate to that effect was also given by Arya Samaj and the factum of conversion of the petitioner to Hinduism was also published in Part VI-Section 4 of Tamil Nadu Government Gazette dated 13.11.1991.

4 The petitioner further submits that though she had completed 20 years of service and was due for Modified Career Advancement Program (MACP) on 17.07.2015, she was denied the said benefit on the ground that disciplinary proceedings are pending against her.

5 The grievance of the petitioner is that though she had served the organization of the respondents for a period of 20 years without there being any suspicion, the respondents have resorted to order disciplinary action stating that she had produced a fake caste certificate only when she claimed MACP increment. Hence the present writ petition.

6 The respondents filed counter affidavit stating that pursuant to the recruitment notification dated 05.11.1994 the petitioner submitted her application along with caste certificate obtained from Gandhi hospital, Secunderabad in the name of Muchu Mery Claramma W/o Shri S.Gnana Rathna Prakash dated 08.08.1994 for wrongful gaining of appointment against the reserved post of SC category whereas she belonged to Christian community by birth in Andhra Pradesh. The petitioner managed to forge two SC caste certificates; one is used for applying and appearing in the interview for the post of Lecturer Education (SC certificate dated 08.08.1994); and another for joining the post (SC certificate dated 23.03.1992) issued from Tamil Nadu. Therefore, the impugned charge sheet levelling three charges was issued on 06.02.2018. The petitioner submitted her defence for the Articles of Charge and not being satisfied with the said defence, the impugned disciplinary action has been initiated.

7 It is further submitted that the proceedings of the District Level Vigilance Committee, Thiruvallur District were received vide letter dated 24.06.2016 confirming the certificate issued by the Tahsildar, Ponneri on 23.03.1912 as genuine.

8 It is the further case of the respondents that the petitioner herself stated that before marriage her name was Muchu Mary Claramma and she belonged to Christian religion, caste Mala from Andhra Pradesh. She married to a family belonging to Hindu religion, Mala caste and as a part of social and family responsibility on her own converted to Hindu community; therefore, it is clear that the petitioner was not SC by birth. It is further stated that as per instructions contained in DOPT OM No.11012/7/91-Estt (a) date 19.05.1993, which have been reiterated vide OM No.36011/1/2012 dated 10.01.2013, wherever it is found that a Government servant who was not qualified or eligible in terms of recruitment rules for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment he should not be retained in service. If he is a probationer or a temporary Government servant, he should be discharged or his service should be terminated. If he has become a permanent Government employee, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 maybe held and if the charges are proved, the Government servant should be removed or dismissed from service. Since the SC certificate submitted by the petitioner was not legally valid in view of the above stated facts, the impugned disciplinary action has been initiated.

9 Having heard the rival contentions advanced by both sides, this Court is of the considered opinion that the petitioner is not entitled to the relief sought for, for the following reasons:

10 Firstly, the contention of the petitioner was that her parents originally belong to Hindu religion and Mala by caste. But in order to avoid social disgrace, they converted into Christianity when she was minor. So on that basis, she claims that by birth she belongs to SC community. She also produced a caste certificate in order to show that the she belong to S.C community and secured employment.

11 If really the parents of the petitioner belong to SC community of Hindu religion, the petitioner ought to have produced or led some kind of evidence to fortify her contention that her parents belong to SC community. She just stated that they originally belong to SC community of Hindu religion and only in order to come over the social disgrace they converted into Christianity. So, in all probabilities, it has to be presumed she belongs to the caste to which her father belongs. The petitioner must have taken steps to assert that her parents belong to such particular community, which fall under the SC category. Therefore, without there being any documentary or at least circumstantial evidence, mere oral statement does not fructify. The petitioner further stated that after her marriage with a SC community person, she again converted into SC community.

12 It is to be noted that as per Ministry of Home Affairs Circular dated 02.05.1975, no person who was not a SC or ST by birth will be deemed to be a member of SC or ST merely because she mad married a person belonging to SC or ST category.

13 In Valsamma Paul and Ors. vs. Cochin University (1996) 3 SCC 545 the Hon’ble Apex Court held at para Nos.34 and 35 as follows:

In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu [1995] 2 SCR 260 and R. Chandevarappa v. State of Karnataka (1995) 6 SCC 309, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3) 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

Further question is: Whether recognition by the community, as is envisaged by law and expressly recognised by this Court in Mohan Rao's case would give the benefit of reservation? In that case, parents of Mohan Rao originally belonged to a Scheduled Caste in A.P. Mohan Rao became a Christian but reconverted into Hinduism and claimed the status as a Scheduled Caste. The Constitution Bench had held that by reconversion, he could not become a Hindu but recognition by the community is a precondition. In that case, it was found that caste/community had recognised him after reconversion as a member of the Scheduled Caste. In Kailash Son/car's case (supra), this Court, in the context of election law, considered the question of reconversion into Hindu fold. On conversion to a Christianity or any other religion, the convertee would lose the said caste. Where a person belonging to the Scheduled Caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family law by which he was originally governed. Where the new religion does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenants of the new order to which he has gone, as a matter of common practice continues to exist from times immemorial. If a person abjures his old religion and converts to a new one, there is no loss of caste. However, where the convertee exhibits by his actions and behavior his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that "in our opinion the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste." In that case it was held from his conduct, the respondent established that she by her conduct became a member of the community entitled to contest the elections as a Scheduled Caste. In Mohan Rao's case (supra), this Court found as a fact that after conversion he was accepted as a member of the Dalits by the community. Similar are the facts in Hero case (supra). In CM. Arumugam v. S. Rajagopal and Ors. [1976] 3 SCR 82 , this Court did not accept reconversion, though Rajagopal proclaimed by conduct of his becoming a member of Scheduled Caste and his relations treated him as a member of Dalits. In Hero case also the respondent was recognised as a member of the Scheduled Tribe. Further in election law the compulsion of political party nominating a candidate and voters' verdict may be looked into. In Soosai v. Union of India AIR 1986 SC  733, Bhagwati, C.J. speaking for a three Judge Bench held that non-recognition of Scheduled Caste Christians as Dalits was not violative of Article 14 as by reason of conversion they were not similarly handicapped as Dalits. In Madhuri's case and Laveti Giri's case, this Court directed procedure for issuance of social status certificates. As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact, the new faith; whether he suffered all the handicaps as a Dalit or tribe; whether conversion is only a ruse to gain constitutional benefits under Article 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and then issue such a certificate.

14 In D. Neelima vs. The Dean of P.G. Studies MANU/AP/0531/1992 the erstwhile High Court of Andhra Pradesh held at Para No.41 as follows:

In this backward of the exclusionary rule evolved in so far as I citizens covered by creamy layer are concerned, the contention of the learned counsel appearing for the claimants for reservation, viz. consequent upon their entering into the caste or tribe of their respective husbands they would be entitled to the reservations envisaged by Art. 15(4) of the Constitution, though neither of the two claimants underwent the stresses or strains or suffered the environmental disadvantages, the real backward class citizens faced, and on the other hand they belonged to forward castes in Hindu society before their marriage that took place after they completed their graduation and thus were not socially and educationally backward, do not deserve appreciation in as much as acceding to the said submission would defeat the very provision and its purpose. By the device of marriage just before the time of applying for admission into the post-graduation courses, if they were to be permitted to invoke the benefit and protection available to the classes of persons who really suffer from environmental disadvantages and incidental stresses and strains, it amounts to letting the purpose of reservation to whittle down, besides permitting entry of citizens better, if not, equally, placed as those constituting creamy layer. Turning to the contention that the G.Os., Circulars etc., would entail the present claimants to seek the benefits covered by them, it is to be noticed, as submitted, the benefits were being enjoyed by the citizens of reserved classes and those were extended to the spouses of inter-caste marriages with a view to encourage the same. If in fact by virtue of marriage they are entitled to the benefits enjoyed by the reserved class citizens there would absolutely be no need to extend the same to the married citizens. It is only because they are not entitled to the benefits covered by them by virtue of marriage simplicitor they are specifically sought to be extended. Further, those are benefits of non-statutory nature. If the G.Os., so permit, they can certainly enjoy those benefits. However basing on those G.Os., they cannot be permitted to seek enlargement of the scope and content of the said G.Os., Circulars, etc., so as to entail them to the benefit of reservation envisaged by Art. 15(4) of the Constitution of India.

15 Since the guiding principle is that no person who was not SC by birth will be deemed to be a member of SC community merely because she has married a person belonging to SC category. The petitioner simply produced a certificate dated 08.08.1994 issued by the Gandhi General Hospital, Secunderabad but did not prove the contents of it. Admittedly, the petitioner was born in the year 1966 as her age was 52 years by the date of filing of the present writ petition. The certificate issued by Gandhi General Hospital, Secunderabad was of the year 1994, 28 years after her birth. The hospital will give the certificate mentioning the date of birth of a child but it does not mention the caste of the child. Therefore, the respondents have rightly subjected the certificate to determine its authenticity. Gandhi hospital, Secunderabad is not the competent authority to give caste certificate.

16 In Andhra Pradesh Scheduled Tribes Employees Association vs. Aditya Pratap Bhanj Dev 2001 (6) ALD 582 (FB) a Full Bench of the erstwhile High Court of Andhra Pradesh held as follows:

The Act regulates issue of Community Certificates to persons belonging to SCs., STs., and BCs. In exercise of the power under Sub-section (1) of Section 20 of the Act, the Governor had made Rules in G.O.Ms.No.58, Social Welfare, dated 12.8.1997 known as A.P. Scheduled Castes, Scheduled Tribes and Backward Classes -Issue of Community, Nativity and Date of Birth Certificates Rules, 1997. The competent authority shall issue community certificate on receipt of applications. Section 4 of the Act provides for issue of certificates by the competent authority. Rule 5 of the Rules provides for elaborate enquiry/ verification before an integrated community certificate is issued under Section 4 of the Act. When any authority has a reason to believe either suo motu or on a written complaint that any community certificate was obtained fraudulently, it is only the District Collector who can initiate enquiry under the Act. Such enquiry shall be conducted in accordance with Rules 8 and 9 of the Rules. Section 21 of the Act provides that unless a community certificate is cancelled in accordance with the provisions of the Act, the community certificate issued by any authority shall be valid and the same shall be deemed to have been issued under the provisions of the Act.

17 So, from the above decision it is clear that the competent authority to issue the caste certificate is the revenue authority but not the hospital. Petitioner did not clarify why she obtained caste certificate from the Government of Tamil Nadu when she belongs to the State of Andhra Pradesh. The caste certificate is issued by the State Government of the respective individual. Every State Government or UT administration has provided a proper procedure to issue the certificates. Every state government and Union territory has its own procedure for this process. In the State of Andhra Pradesh, the State Government / revenue department is the competent authority to issue the caste certificate.

18 It may be true that the certificate issued by the Tahsildar, Ponneri dated 23.03.1992 may be genuine, but it is only in respect of the issuance of the certificate, whereas it was not clarified that she originally belongs to S.C caste.

19 Petitioner, except giving an oral assertion, also failed to take steps to establish that her father belong to SC community or she at least could not establish that her parents converted into Christianity when she was minor. She also did not file any of her school documents in order to prove the caste in which she born.

20 In the light of the above facts and circumstances, and having regard to the principle enunciated in the cases cited supra, I see no irregularity much less illegality in the action initiated by the respondents for determination of the caste status of the writ petitioner. If ultimately it is found that the petitioner belongs to S.C. community, she will automatically be entitled to the benefits to which she is entitled. Since the caste status of the petitioner is doubted certainly initiation of enquiry into the issue does not call for interference. Moreover, it is not known why the petitioner has produced two certificates. So all these aspects will come to light during the course of enquiry. Therefore, the writ petition is liable to be dismissed as devoid of any merit.

21 In the result, the writ petition is dismissed. No order as to costs. Miscellaneous petitions if any pending in this writ petition shall also stand dismissed.