Kumari Bindhu B.F v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **WP(C).No.1776 OF 2013(V)** ## **PETITIONER:** **KUMARI BINDHU B.F** **PROCESS SERVER, SUB COURT, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, RESIDING AT L.B.BHAVAN, PONGIL MULLUVILA P.O., THIRUPURAM VIA, THIRUVANANTHAPURAM-695133.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, JUDICIAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695001.** - **3 DISTRICT JUDGE, THIRUVANANTHAPURAM-695001.** - **4 VISHWA HINDU PAREESHATH VIBHAGH KARYALAYAM, SAMNAVYA BHAVAN, FORT.P.O., THIRUVANANTHAPURAM - 695 023, REPRESENTED BY ITS VIBHAG SECRETARY, SUDHI, AGED 50 YEARS, SON OF SREEDHARAN RESIDING AT KINARUVETTIYAVILA VEEDU, PUTHENKANAM, BALARAMAPURAM, KATTACHALKUZHI.P.O.695 501, THIRUVANANTHAPURAM DISTRICT.** **R1-3 BY SRI.RON BASTIAN,GOVERNMENT PLEADER ADDL.R4 BY SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SMT.C.G.PREETHA SRI.P.N.RAJAGOPALAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.1776 OF 2013(V)** **2** ## **JUDGMENT** This writ petition is filed seeking the following prayers: - _“i) To issue a writ of certiorari quashing Ext.P8 as unjust, illegal and unsustainable;_ - _ii) To declare that the petitioner belongs to Hindu Nadar Community and by her marriage her caste is not changed or altered and therefore she continues to belong to that community even after the marriage;_ - _iii) To direct the respondents to treat the petitioner as belonging to Hindu Nadar Community for the purpose of seniority, promotion and all other incidents of service”_ 2. The petitioner, who belongs to Hindu-Nadar Community had obtained an employment as Last Grade servant (Peon) in the Munsiff's Court, Thiruvananthapuram on 09.01.2006. Thereafter, that she was promoted as Process Server, Sub Court, Nedumangad. It is stated that, by Ext.P8 order dated 04.12.2012, the District Collector, Thiruvananthapuram, on the basis of a letter dated 03.02.2012 of the Land Revenue Commissioner and the report dated 23.12.2011 of the Deputy Collector of Vigilance (South Zone), cancelled the Non-Creamy Layer Certificate dated 05.01.2006, issued to the petitioner as per Ext.P5. The reason stated in Ext.P8 is that the petitioner was a Hindu-Nadar by birth before her marriage. It is stated that on 04.05.2005 she had married a **WP(C).No.1776 OF 2013(V)** **3** person called Lal Damien, who was a christian, in accordance with christian rites. It is further stated that concealing the said fact of her marriage to a christian she had obtained the Non-Creamy Layer Certificate on the basis of earlier Certificates issued to her. The Non-Creamy Layer Certificate issued to her on 05.01.2006 (Ext.P5) is, therefore, recalled and cancelled. 3. The learned counsel for the petitioner would submit that the petitioner was a Hindu-Nadar by birth. Though she had married a christian on 04.05.2005, she had, at no point of time converted to Christianity and there is no allegation that there is any change in the petitioner's religion. It is submitted by the learned counsel that the only allegation is that the petitioner had married a christian and the said fact cannot amount to any change of the community status of the petitioner. The learned counsel places reliance on decisions of the Apex court in **C.M. Arumugam v. S. Rajagopal and Others** [1976 KHC 692] and in **Sunita Singh v. State of Uttar Pradesh and Others** [2018 (2) KHC 178] as well as in **Valsamma Paul v. Cochin University** [1996 KHC 37] and also a **WP(C).No.1776 OF 2013(V)** **4** decision of the Madurai Bench of Madras High Court in Crl. O.P. (MD) No.9209 of 2017. It is contended that even in cases of reconversion to Hinduism it had been held that reservation is provided for getting over the disabilities attached to a particular caste or community and that it is only on a conversion to a religion which does not recognise any such caste or disability that the status would be lost. It is stated that in **Arumugam** 's case (supra) the Apex Court held that once a person who belongs to a Scheduled Caste ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease. But, once he re-converts to Hinduism his social and economic status revives. It is further submitted that the Apex court, in **Sunita Singh** 's case (supra), has held that caste is determined by birth and caste cannot be changed by marriage. In the said case, the Apex court was considering the caste of a lady born in an Agarwal family who married a person belonging to a Scheduled Caste community and claimed Scheduled Caste status. The Apex court in **Valsamma Paul** 's case (supra) held that the caste/community of a person is **WP(C).No.1776 OF 2013(V)** **5** determined by her birth and marriage to a person belonging to a backward class would not change the community status giving her the eligibility to claim backward class status. 4. A counter affidavit has been placed on record by the 1[st] respondent. It is stated that the petitioner was advised for appointment as Last Grade Servant in the Munsiff's Court, Thiruvananthapuram. She had been later promoted to the post of Process Server. The petitioner was issued with a Non-Creamy Layer Certificate on 05.01.2006 showing her community as Hindu-Nadar. It is stated that one Mr.Sasidharan Nair has filed complaint that the petitioner got appointed in the post of Process Server on the basis of a false certificate. It is stated that the complaint was inquired by the Deputy Collector of Vigilance (South Zone) and it was found that after her marriage to a christian on 04.05.2005, she has been following Christianity. It is stated that the Deputy Collector of Vigilance (South Zone) reported that the Non-Creamy Layer certificate issued by the Tahasildar, Neyyattinkara, was not proper and accordingly the above certificate was cancelled by the District **WP(C).No.1776 OF 2013(V)** **6** Collector. It is stated that it was understood that the petitioner was following Christianity after her marriage and that the order passed by the District Collector is valid. 5. The learned counsel for the additional 4[th] respondent who was impleaded as per order dated 01.04.2018 attempted to support the impugned order on the ground that reservation is provided for persons of the Hindu Nadar community as members of Other Backward Classes and that the petitioner, who is following Christianity, is not entitled to the same. It is submitted by the learned counsel for the additional 4[th] respondent that the judgments relied on are in respect of re-conversion and that they have no application in the instant case. 6. I have heard the learned counsel for the petitioner and the learned Government pleader for respondents 1 to 3 and the learned counsel for the 4[th] respondent. 7. The petitioner, admittedly, was born as a Hindu Nadar. Ext.P1 is her SSLC Book where there is a validation of her community as Hindu-Nadar. The SSLC Book of the petitioner's **WP(C).No.1776 OF 2013(V)** **7** father is produced as Ext.P7 which would show that he is a HinduNadar. It appears that the petitioner had married a christian on 04.05.2005. She had obtained employment as a Last Grade Servant (Peon) in the Munsiff's Court, Thiruvananthapuram on the basis of the Community Certificate and Non-Creamy Layer Certificate issued to her from time to time. It is not disputed that the appointment of the petitioner was in the year 2006. By Ext.P8 dated 04.12.2010, the Non-Creamy Layer Certificate issued to the petitioner has been unilaterally cancelled without apparently issuing any notice to the petitioner on the ground that she had married a christian on 04.05.2005 and was following Christianity. It is stated in Ext.P8 that the petitioner had concealed “the fact of her marriage to a christian” and had obtained the Non-Creamy Layer Certificate by the said suppression. 8. Having considered the contentions advanced, I find that there is no whisper in Ext.P8 or even in the counter affidavit placed on record by the 1[st] respondent that the petitioner had, at any point of time, converted to Christianity. It is apparent that the caste or **WP(C).No.1776 OF 2013(V)** **8** community of a person is to be decided on the basis of her birth in the said community. It is for suffering the disabilities attached to a particular community that reservation is provided in terms of Article 15(3) of the Constitution of India to persons belonging to backward classes. The petitioner, admittedly, is a person belonging to HinduNadar community by birth. Marriage to a christian cannot have the effect of negating the disability suffered by the petitioner by reason of her birth as a member of a backward community. In the instant case, apart from the contention that the petitioner had married a christian, there is no allegation that she had converted to Christianity and had, therefore, ceased to be a member of the Hindu-Nadar community. Moreover, Ext.P8 order is completely vitiated since it has been passed without any manner of notice being served on the petitioner. The finding in Ext.P8 to the effect that Ext.P5 community certificate was obtained by fraud on the part of the petitioner is completely vitiated by non-application of mind. In such circumstances, I am of the opinion that Ext.P8 is perverse, illegal and unsustainable. **WP(C).No.1776 OF 2013(V)** **9** Ext.P8 is, therefore, set aside. There will be a direction to the respondents to treat the petitioner as belonging to Hindu-Nadar community, taking note of her community as provided in ExtP1. The writ petition is ordered accordingly. ## **Sd/-** **ANU SIVARAMAN JUDGE** Skk//281019 **WP(C).No.1776 OF 2013(V)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE PETITIONER** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 30.03.2002 EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 12.01.2004 EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 29.07.2004 EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 05.01.2006** - **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE PETITIONER'S FATHER** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 4.2.2012 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P9 COPY OF THE DECISION IN PRAKASH V. STATE OF KERALA 2002(2) KLT 580** - **EXHIBIT P10 COPY OF THE DECISION IN ANIL V. STATE OF KERALA 2009(4) KLT 112** - **EXHIBIT P11 COPY OF THE DECISION IN DATTU NAMDEV THAKUR V. STATE OF MAHARASHTRA AIR 2012 SC 360.** **RESPONDENTS' EXHIBITS: NIL**