Kerala High Court
Lithin Thampy vs State Of Kerala on 1 February, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
W.P.(C)No.32355/2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
WP(C) NO. 32355 OF 2019
PETITIONER:
LITHIN THAMPY
AGED 33 YEARS
S/O.T.J.THAMPY, THOPPIL HOUSE,
KANJIKUZHY, MATTAMBALAM,
KOTTAYAM, PIN-686004.
BY ADVS.
SRI M.POLY MATHAI
SRI.VIMAL K.CHARLES
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
SC/ST DEVELOPMENT DEPARTMENT,
THIRUVANANTHAPURAM-695033.
2 THE CHAIRMAN,
SCRUTINY COMMITTEE FOR VERIFICATION OF
COMMUNITY CERTIFICATES, SC/ST DEVELOPMENT
DEPARTMENT, THIRUVANANTHAPURAM, PIN-695033.
3 THE CONVENOR,
SCREENING COMMITTEE, COMMISSIONER OF ENTRANCE
EXAMINATIONS, SHANTI NAGAR, THIRUVANANTHAPURAM,
PIN-695001.
4 THE DIRECTOR,
KIRTADS, CHEVAYOOR, KOZHIKODE-17, PIN-673017.
BY SRI ROBIN RAJ (SPL. GOVERNMENT PLEADER-
SC/ST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22.11.2023, THE COURT ON 01.02.2024 DELIVERED THE
FOLLOWING:
W.P.(C)No.32355/2019
2
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.32355 of 2019
--------------------------------------------
Dated this the 1st day of February, 2024
JUDGMENT
The petitioner has approached this Court being aggrieved
by Exts.P1, P5, P10, and P11 whereby the KIRTADS, the
Screening Committee, the Scrutiny Committee, and the
Government have held that the petitioner and his family do
not belong to the Hindu Sambava Community, which is a
Scheduled Caste Community. The petitioner applied for the
Common Entrance Examination for admission to the five-year
LLB Course during 2018-19 under the SC quota. Doubting the
caste status of the petitioner, the matter was referred to
KIRTADS for a report. KIRTADS submitted its report on
17.08.2018. The Screening Committee thereafter passed
orders on 31.03.2018 rejecting the claim of the petitioner
under the SC quota. The petitioner filed a review petition
before the Government on 04.02.2019 under the provisions of
Act 11 of 1996. The Government referred the matter to the
Scrutiny Committee, which heard the petitioner on
28.05.2019. The Screening Committee rejected the claim of
the petitioner by order dated 09.08.2019, and the Government
thereafter issued Exts.P11 order on 22.10.2019 declaring that
the petitioner and his family members were not persons
belonging to the Scheduled Caste Community.
2. The petitioner submits that the Screening
Committee had passed Ext.P5 order even without giving a
copy of the KIRTADS report to the petitioner. The petitioner
obtained a copy of the report by filing an application under the
Right to Information Act. According to the petitioner, the
Expert Agency, as well as the Scrutiny Committee, ignored the
fact that the petitioner's father belongs to a Scheduled Caste
Community, and even if it were to be held that the petitioner's
mother did not belong to a Scheduled Caste Community, the
petitioner is entitled to the benefits available to the children
born out of inter-caste marriage.
3. Reliance is placed on the Full Bench decision of this
Court reported in Indira v. State Kerala [2005 (4) KLT
119], wherein this Court has held that if a child is born out of
inter-caste marriage and brought up with the same handicap,
disadvantage and suffering, it will be harsh to deny the SC
benefit to the child for the reason that one of his parents does
not belong to an SC. The judgment of the Full Bench was
upheld by the Hon'ble Supreme Court in Rameshbhai Dabhai
Naika v. State of Gujarat (Civil Appeal No.654/2012]; it
is contended.
4. Coming to the facts of the case, the petitioner's
paternal grandfather, Sri Yohannan Thopppil, belonged to the
Scheduled Caste Sambava Community, and he had converted
to Christianity. He had married the late Saramma, who was a
native of Puthanangadi, Kottayam, belonging to the Scheduled
Caste Sambava Community, who had also converted to
Christianity. Seven children were born out of the wedlock, and
the petitioner's father, T.J.Thampi, is one among them.
5. KIRTADS noted in its report that the siblings of
Thampy T.J., named John, Santhamma, David, Lailamma,
Jacob, and Wilson, have married persons who had converted
to Christianity from the Hindu Sambava Community. It is also
noted in the report that T.J.Thampi had reconverted to the
Hindu religion when he was 24 years of age through Kerala
Hindu Mission, Thiruvananthapuram, on 18.07.1994, and the
same had been notified in the Gazette on 10.09.1974. Though
such a conscious decision to re-convert was taken by Sri
T.J.Thampi, the report proceeds to say that it is clear that the
"petitioner's father is nurtured and socialised as a Christian"
and that he had accepted Hinduism later.
6. The report also says that on the maternal side of
the petitioner, the maternal grandfather, who belonged to the
Scheduled Caste Sambava Community, had converted to
Christianity, and he married Saramma, who was also a
member of the Sambava Community who had converted to
Christianity. The School Leaving Certificate showed the caste
status of the mother of the petitioner as Christian Sambava.
The report further says that the petitioner's Secondary School
Leaving Certificate shows his caste as Hindu Sambava. The
conclusions in the report, however, leave many unanswered
questions. It is not understood how the report concluded that
"the candidate's father was born and brought up as a
member of a Christian Community of Sambava origin."
There cannot be a Christian Community of Sambava origin.
The report says that in a discrete enquiry it was revealed that
even though the petitioner's father had embraced Hinduism,
he did not continue to be a Hindu, as claimed. It is further
stated that the petitioner was born and brought up and spent
his childhood in Mavelikkara, Alappuzha, along with his
maternal kin, and hence he was nurtured and socialised in the
Christian way. It is not understandable as to how the report
concludes that the investigation reveals that the petitioner's
'belief' is that of a Christian. It is in evidence that the
petitioner had studied in Mavelikkara only for a few years and
that the Hindu rituals were followed in the case of the children
of T.J.Thambi. The concerned organization of the community
had also certified that T.J. Thambi belonged to the Hindu
Sambava Community.
7. The petitioner had contended that documents which
are referred to in the orders were not actually made available
to him. The Government Pleader has, along with a memo,
produced three letters as documents 1 to 3. The first
document is a letter from the Commissioner for Entrance
Examinations to the petitioner, informing about the reference
to the KIRTADS. Document No.2 is a letter issued by the Vicar
of CSI St.Mark's Church stating that the Church Members
Register shows that Jacob T.J. Thoppil, Saramma Jacob, Majo
John Jacob, Jacob T. Wilson, Leelamma Wilson, Ajay Jacob
Wilson, Aleena Merin Wilson, Lailamma Chacko and Jeril
Chacko James are persons who belong to Sambava Christian
Community. The above said persons are close relatives of the
petitioner. The third document produced is a letter from one
Lalu Johns, who is the brother of the petitioner's mother, which
says that the petitioner had studied in Mavelikara during his
school days. The letter, however, also says that the petitioner
was following the Hindu way of life. It also says that Hindu
ceremonies were conducted of the children of the petitioner's
sister on completion of 28 days of birth. The Scrutiny
Committee and the order of the Government also endorse the
same reasons, and there are no further reasons stated.
8. Heard Sri Poly Mathai on behalf of the petitioner
and Sri Robin Raj, Special Government Pleader (SC/ST) on
behalf of the respondents.
9. The question involved in this case is no longer res
integra. The Hon'ble Supreme Court had occasion to consider
the effect of reconversion to Hinduism in the decision in Manu
K.P. v. Chairman, Scrutiny Committee for Verification of
Community Certificate [(2015) 4 SCC 1]. The Hon'ble
Supreme Court held as follows:
36. We have referred to the aforesaid materials and the
observations singularly for the purpose that there has
been detailed study to indicate that the Scheduled Caste
persons belonging to Hindu religion, who had embraced
Christianity with some kind of hope or aspiration, have
remained socially, educationally and economically
backward. The Constitution Bench in Y. Mohan
Rao [Guntur Medical College v. Y. Mohan Rao,
(1976) 3 SCC 411] has clearly laid down that if a
person born to Christian parents, who, belonging to
Scheduled Caste had converted themselves to
Christianity, the said person on reconversion to his
religion and on acceptance by his community with a
further rider that he would practise the customs and
traditions of the caste, would be treated as a member of
the said Scheduled Caste and if the said caste is one of
the castes falling within the Constitution (Scheduled
Castes) Order, 1950, then he will be treated as a
Scheduled Caste.
37.2. In S. Anbalagan [S. Anbalagan v. B.
Devarajan, (1984) 2 SCC 112] which we have
referred to in extenso earlier, has laid down that if the
caste disappears, it disappears only to reappear on
reconversion and the mark of caste does not seem to
really disappear even after some generations after
conversion. As has been held therein, the process goes
on continuously in India and generation by generation
the lost sheep to return to their caste fold are once
again assimilated to that fold. The three-Judge Bench
has commented that the members of the Scheduled
Castes who had embraced another religion in their quest
for liberation, but return to their old religion on finding
that their disabilities have clung to them with great
tenacity; and thereafter stated that it does not think
that any different principle would apply to the case of
conversion to Hinduism of a person whose forefathers
had abandoned Hinduism and embraced another religion
from the principle applicable to the case of reconversion
to Hinduism of a person who himself had abandoned
Hinduism and embraced another religion. This view, in
our considered opinion, is in consonance with the
Constitution Bench in Y. Mohan Rao [Guntur Medical
College v. Y. Mohan Rao, (1976) 3 SCC 411] and
does not run counter to it. One may raise a question
how does one find out about the forefathers. There can
be a false claim but that would be the subject-matter of
inquiry. Therefore, the principle of "definitive
traceability" may be applied during the inquiry and the
onus shall be on the person who claims the benefit after
reconversion. To elaborate, he has to establish beyond a
shadow of doubt that his forefathers belonged to the
Scheduled Caste that comes within the Constitution
(Scheduled Castes) Order, 1950 and he has been
reconverted and his community has accepted him and
taken him within its fold.
38. In our considered opinion, three things that need to
be established by a person who claims to be a
beneficiary of the caste certificate are: (i) there must be
absolutely clear-cut proof that he belongs to the caste
that has been recognised by the Constitution
(Scheduled Castes) Order, 1950; (ii) there has been
reconversion to the original religion to which the parents
and earlier generations had belonged; and (iii) there
has to be evidence establishing the acceptance by the
community. Each aspect according to us is very
significant, and if one is not substantiated, the
recognition would not be possible.
10. The above judgment was rendered in a case where
the court was examining the caste status of a person who was
born to Christian parents who had embraced Christianity,
giving up their community status as Hindu Pulaya. The
appellant before the Hon'ble Supreme Court had reconverted
to Hinduism at the age of 24 by undergoing the process of
conversion, and the concerned social organisation had
accepted him as a member of Pulaya community and issued
him with a certificate to that effect. The Hon'ble Supreme
Court held that the issuance of the certificate was sufficient to
show that the community had accepted him. The Court also
held that the mere fact that a person was born of Christian
parents does not disentitle him to reconvert or convert to
Hinduism.
11. In Jibin C.Baby v. Commissioner for Entrance
Examinations & Ors. [2016 (1) KLJ 683], a learned Single
Judge of this Court considered the issue extensively making
particular reference to the decision in Manu (supra). The
learned Judge was considering a case where the petitioner
challenged the legality of the rejection of his claim for
Scheduled Caste (Hindu Sambava) status for admission to a
professional course. It is also a case wherein the father of the
petitioner therein, who earlier belonged to the Sambava
Community, had converted to Christianity and later re-
converted to Hinduism. The Court found that since the
petitioner therein was born to a Hindu father and he continued
to be a Hindu, reservation cannot be denied. The case on
hand also relates to a person whose father had reconverted to
Hinduism after his earlier conversion from the Hindu Sambava
community to Christianity. The Full Bench of this Court in
Indira (supra) held that if a child is born out of inter-caste
marriage and brought up with the same handicap,
disadvantage, and suffering, it will be harsh to deny the SC
benefit to the child since one of his parents does not belong to
an SC.
12. In the case on hand, admittedly, the petitioner's
father had re-converted to Hinduism by performing
'Shudhikarma' (ശശുദദ്ധികർമ) on 10.09.1974. Ext.P2 is the
certificate issued by the Kerala Hindu Mission regarding the
reconversion. The Kerala Hindu Sambava Mahasabha,
Kottayam Town Branch, which is the organisation of the
community in the locality has issued Ext.P3 certificate to the
petitioner's father on 16.02.1984 stating that the petitioner's
father belongs to Hindu Sambava Mahasabha. The petitioner's
father had published the above fact of embracing Hinduism in
the official Gazette on 22.01.1985. It is stated that the
petitioner's father had married the petitioner's mother on
11.01.1986 and the Hindu rites were followed. Thus, it is a
case where the petitioner is born out of a marriage in which
one of the parents is Hindu Sambava, which is a Scheduled
Caste community. In view of the decisions in Manu (supra)
and Jibin (supra), the claim of the petitioner for being
treated as a Scheduled Caste Sambava has to be upheld.
13. In the above circumstances, this writ petition is
allowed. Exts.P1, P5, P10 and P11 are quashed. It is declared
that the petitioner belongs to the Hindu Sambava Scheduled
Caste community and is entitled to the benefits available to
the said community.
Sd/-
T.R. RAVI
JUDGE
dsn
APPENDIX OF WP(C) 32355/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPORT FILED BY R4 ALONG
WITH THE DOCUMENTS THEREIN.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY
HINDU MISSION DATED 10.09.1974.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY
HINDU SAMBAVA MAHASABHA DATED 16.2.1984.
EXHIBIT P4 TRUE COPY OF GAZETTE NOTIFICATION DATED
22.1.1985.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS PASSED BY THE
3RD RESPONDENT DATED 31.8.2018.
EXHIBIT P6 TRUE COPY OF THE LETTER FROM INFORMATION
OFFICER DATED 17.11.2018.
EXHIBIT P7 TRUE COPY OF THE STATEMENT GIVEN BY
MATERNAL UNCLE BEFORE THE 4TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY
MADOONA U.P.SCHOOL, KOTTAYAM DATED
8.1.2019.
EXHIBIT P9 TRUE COPY OF THE TRANSFER CERTIFICATE
ISSUED BY M.D.SEMINARY SCHOOL, KOTTAYAM
DATED 7.6.2004.
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE 2ND
RESPONDENT DATED 9.8.2019.
EXHIBIT P11 TRUE COPY OF THE G.O. DATED 22.10.2019
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P12 TRUE COPY OF CERTIFICATE ISSUED BY AKHILA
KERALA HINDU SAMBAVAR MAHA SABHA, KOTTAYAM
UNIT DT.7.3.2020.
