S. Ruhaiyah Begum vs The Government of Tamil Nadu

K. Chandru, J.—The petitioner in this writ petition is seeking for a direction to the respondents to treat the petitioner as one belonging to

Backward Class (Muslim) for the purpose of appointment in Government service and to recruit her in any one of the post in the Combined

Subordinate Services Examination-II within the stipulated period for which applications were called for vide notification issued by the third

respondent Tamil Nadu Public Service Commission in notification No. 18/2012, dated 02.05.2012. It is the case of the petitioner that she was

born to Hindu parents and she belonged to Hindu religion by birth. She belonged to open category. Initially, her name was Parvathi. Being

influenced by the Muslim faith, she embraced Islam and converted herself to Muslim religion on 26.03.2004. On the date of conversion into

Muslim religion, she had executed a sworn affidavit to that effect. One Tippu Sultan, Jamiya Mosque of Namakkal had certified her conversion

into Muslim religion. After her conversion into Muslim religion, she married one Shahul Hameed, a Muslim by birth. On 26.7.2006, her change of

religion and her name was also published in the Government gazette. She had also obtained a community certificate from the Zonal Deputy

Tahsildar stating that the petitioner Ruhaiyah Begam, wife of Shahul Hameed belongs to Muslim-Thakkani (converted Islam).

The petitioner on seeking an advertisement issued by the TNPSC, dated 02.05.2012 had applied for the post under the Combined Subordinate

Services. She also wrote the written examination. On being successful, she was found eligible for recruitment to the post of Station Officer, Fire

and Rescue services. She was also called for Physical Efficiency Test conducted on 22.11.2012. She had participated in the same. She was

included in the provisional list of candidates called for oral test on 09.01.2013. Subsequently, she had attended the oral test and produced the

original certificates for verification and that she was waiting for an appointment order. When the results were published in the official website of the

TNPSC on 29.01.2013, her name was not in the list of selected candidates. On going through her certificates, she was informed that she is a

converted Muslim from the Hindu religion and she originally belonged to Forward Class. She cannot be given the privilege of Backward class

(Muslim) by way of such conversion and that she will be treated as belonging to other category.

The contention of the petitioner was that she had produced the community certificate dated 27.7.2007 from the competent authority. Therefore,

she is entitled to be considered as Backward Class (Muslim) for the purpose of selection.

When the matter came up on 06.02.2013, this court directed Mr. N.S. Nandakumar, learned Standing counsel to get instruction from the

respondents. Heard the arguments of Mr. V. Srikanth, learned counsel appearing for the petitioner and Mr. N.S. Nandakumar, learned counsel

taking notice for the TNPSC.

The learned counsel for the petitioner placed reliance upon an unreported judgment of the Madurai Bench of this Court in W.P.(MD) No. 9150

and 10859 of 2012, dated 10.01.2013, wherein in paragraphs 6 to 8, it was observed as follows:

It is contended by the learned counsel for the Service Commission that though there are Government Orders conferring the benefit of the

community status upon persons who get converted to Christianity, there are no similar orders in respect of Islam and that therefore, as per the

Government Orders, the petitioner has to be treated only under the category of ''others''. But, the stand taken by the Service Commission is

untenable for two reasons, a) Conversion of a person from one religious faith to another is a fundamental right and b) that if a person has genuinely

converted himself from one faith to another, he cannot be deprived of the benefit that would go along with such conversion, unless the conversion

itself is suspected to be a smoke screen to gain some other advantage.

In similar circumstances, when a Scheduled Caste candidate converted himself into Islam and became backward community candidates and got

backward community certificate, the Service Commission took an identical stand. But, the same was rejected by THE HONOURABLE MR.

JUSTICE VINOD K. SHARMA, in M. Raja Mohammed Vs. Tamil Nadu Public Service Commission, in W.P.(MD) No. 21864 of 2010, dated

20.01.2011. Though a Writ Appeal has been admitted against the said decision and the issue is left open, I have come to the above conclusion on

my own, without following the same.

An additional factor in favour of the petitioner is that the Community Certificate issued in favour of the petitioner is still intact. Therefore, it is not

open to the Service Commission to ignore the Community Certificate and treat the petitioner as a candidate belonging to other communities.

But, however this court is not inclined to accept the same as the issue has been squarely covered by the judgment of the Supreme Court.

Though the petitioner produced a community certificate obtained from the Zonal Deputy Tahsildar, Namakkal, as noted above, such a community

certificate is not valid because the petitioner did not belong to Muslim Thakkani Community and that it is only her husband who belongs to the said

community.

In the list of Backward Classes published along with the prospectus of TNPSC issued to the candidates, insofar as the list of Backward Class

Muslim is concerned, the same is covered by G.O.Ms. No. 85, Backward Class, Most Backward Class, Minority Welfare Department, dated

29.07.2008 and it reads as follows:-

List of Backward Classes (Muslims)-G.O.Ms. No. 85 BC, MBC and Minorities Welfare (BCC) Department, dated 29.07.2008.

Ansar

Dekkani Muslims

Dudekula

Labbais including Rowthar and Marakayar

(whether their spoken language is Tamil or Urdu)

Mapilla

Sheik

Syed.

The petitioner, admittedly, was a Hindu before her marriage. Therefore, she cannot transfer her community only because of her marriage. The

issue as to whether by marriage, either inter-caste or inter-religion, the wife can become a member of the caste of her husband, came to be

considered by the Hon''ble Supreme Court in Mrs. Valsamma Paul Vs. Cochin University and others, . In the said judgment in paragraphs 31 &

34, the Hon''ble Supreme Court has observed as follows:-

It is well-settled law from Bhoobum Moyee Debia Vs. Ram Kishore Acharj Chowdhry [(1865) 10 MIA 279] that judiciary recognised a

century and a half ago that a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband. She is

''Sapinda'' of her husband as held in (1880) L.R. 7 I.A. 212 (Privy Council) . It would, therefore, be clear that be it either under the Cannon law or

the Hindu law, on marriage the wife becomes an integral part of husband''s marital home entitled to equal status of husband as a member of the

family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved.

The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she

gets herself transplanted.

...

In Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu Barde and Another, and R. Chandevarappa and Others Vs. State of Karnataka and

Others, 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 provide 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 have had undergone the same handicaps, and must have been subjected 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) or 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.

Therefore, the present prayer, namely, that she has produced Backward Class Muslim Certificate and should be considered as Backward Class

Muslim, cannot stand to reason as her claim is based upon only by marriage and not by birth. The Community Certificate issued by the Zonal

Deputy Tahsildar, Namakkal, describing the petitioner as Muslim Thakkani Community so as to bring her within the Backward Class Muslim,

cannot be also accepted as the petitioner does not belong to the said community and it is only her husband who belongs to the said community.

As to whether any converted Backward Class Muslim will automatically become Backward Class Muslim is also an issue that can be

considered in the present case.

For the purpose of communal reservation in the terms of Article 15(4) and 16(4) of the Constitution, a community has to be identified as a

Backward Class, which is not adequately represented by the State under the service of the State. Therefore, it requires an exercise to be

undergone by the State whether the Converted Backward Class Muslim automatically becomes Backward Class Muslim whether by marriage or

any other reason. In the present case, the list of Backward Class Muslim shows that there are several other Muslim communities left out.

Therefore, in the absence of exercise by the State Government by including a particular caste or religion group into the list of Backward Class,

which requires undergoing of an exercise by the State Government, the converted backward class Muslim will not be included as a Backward

Class. A caste can be relevant factor for identifying the Class, as laid down by the Hon''ble Supreme Court in Indira Sawhney Vs. Union of India

and Others, .

Even from the list of Backward Class prescribed by TNPSC, it can be seen that in respect of the Scheduled Castes, who converted into

Christianity from Schedule Caste, were notified as Backward Class community under Serial No. 131. In the absence of such converted Muslims

automatically being including in the Backward Class list, the petitioner''s prayer that she should be declared as Backward Class Muslim and

consequently, be selected for the post, cannot be accepted by this Court and such claim has to be rejected out right.

Apart from this, the petitioner admittedly belonged to Forward class and belonged to Hindu religion. Merely because of her marriage, she

cannot get the certificate of her husband''s community and transpose herself into her husband''s community and get the certificate. The certificate

issued by the Zonal Deputy Tahsildar has got no legal value and it is totally opposed to the judgment of the Supreme Court in Valsamma Paul''s

case (cited supra). In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands

closed.