Madras High Court
The Chairman vs D.Rahamatulla on 16 June, 2023
W.A.(MD)No.1313 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :16.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.1313 of 2016
and
C.M.P.(MD)Nos.9271 of 2016 and 3123 of 2017
The Chairman,
Tamil Nadu Public Service Commission,
Represented by its Secretary,
Government Estate,
Chennai-2. ... Appellant/Petitioner
Vs.
1.D.Rahamatulla
2.The Tahsildar,
Manamadurai Taluk,
Sivagangai ... Respondents
1/17
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W.A.(MD)No.1313 of 2016
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying
this Court to set aside the order dated 14.02.2012 made in
W.P.(MD)No.3177 of 3011 on the file of this Court.
For Appellant : Mr.V.Panneer Selvam
For Respondents : Mr.S.Vellaichamy for R1
Mr.A.K.Manikkam
Special Government Pleader
for R2
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This Writ Appeal has been directed against the order passed by
the writ Court in W.P(MD).No.3177 of 2011 dated 14.03.2012.
2. The first respondent originally belonged to Christian Religion and
at that time, his name was D.Rayappan. Thereafter, he converted into
Muslim on 23.09.2000 and also married one Mumtaj Begam on
08.04.2001. After the marriage, he changed his name as D.Rahamatula and
accordingly, he was accepted the Muslim Community. The change of name
has also been published in Tamil Nadu Government Gazette on
11.12.2002.
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W.A.(MD)No.1313 of 2016
3. Considering such conversion as Muslim Labbai Community, the
Tahsildar concerned vide proceedings dated 11.06.2007 issued a
Community Certificate that the first respondent belongs to Muslim Labbai
Backward Class Community.
4. The first respondent had already been appointed on temporary
basis with consolidated pay as Junior Assistant in Commercial Tax Office
at Karur on 15.07.2003.
5. In that capacity, the first respondent was working. While that
being so, the Government, in order to regularize the services of such
temporary appointees like the first respondent, decided to conduct a
Special Competitive Examination through the appellant/TNPSC in the year
2007. Therefore, the applications for Group-IV Services Special
Competitive Examination for the year 2007 were called for by the
appellant/TNPSC. The petitioner also had applied and written the
examination where he has become successful.
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W.A.(MD)No.1313 of 2016
6. Though the results had been published in respect of all the
candidates, the result in respect of the first respondent has not been
published.
7. When this was enquired by the first respondent with the
appellant/TNPSC, it was revealed that since the first respondent has
converted from Christian to Muslim and those who had been converted
into Muslim from Christian, whether are to be treated as Backward Class
Community or any other Community since has so far not been clarified by
the Government and no Government Order to that effect since has been
issued, in the absence of any such Government Order, the first respondent
can only be treated as others. Only for the said reason, the result has not
been published. That was the reason seems to have been revealed by the
TNPSC to the first respondent.
8. Only at that juncture, the said writ petition had been filed by the
first respondent seeking for a writ of Mandamus to direct the TNPSC to
consider the application of the first respondent in Group-IV Services
considering him as belonging to Backward Class.
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W.A.(MD)No.1313 of 2016
9. The said writ petition was heard and decided by a learned Single
Judge, by order dated 14.02.2012, whereunder, the learned Judge has
allowed the said writ petition by giving the following directions:
“16. Consequently, the writ petition is allowed and the
first respondent is directed to consider the petitioner in Group-
IV services by considering him as one belonging to Backward
Class, if the petitioner is otherwise qualified to the said post to
which his appointment is to be considered. Such exercise shall
be made by the first respondent within a period of eight weeks
from the date of receipt of a copy of this order. Consequently,
the connected M.P is closed. No costs.”
10. Aggrieved over the same, the State Service Commission has
preferred the present Intra-Court Appeal.
11. Heard Mr.V.Panneer Selvam, the learned Standing Counsel
appearing for the appellant/TNPSC, who has mainly relied upon a
Government Letter dated 14.02.2020 where it has been stated as follows:
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W.A.(MD)No.1313 of 2016
“ghh;itapy; fhQqk; j';fspd; fojj;jpd; kPJ ftdj;ij <h;f;fpnwd;/
jhH;j;jg;gl;nlhh;. gpwg; Lj;jg;gl;nlhh;. kpfg;gpwg; Lj;jg;gl;nlhh; kw;Wk; rPh;kugpdh;
tFg;g[fspypUe;J fpwpj;Jt kjj;jpw;F khwpath;fis gpw;gLj;jg;gl;l kw;Wk;
kpfg;gpw;gLj;jg;gl;l tFg;g[fshf mwptpj;J Mizfs; btspaplg;gl;Ls;sd/
Mdhy; nkw;Fwpg;gpl;l tFg;g[fspypUe;J ,!;yhk; kjk; my;yJ ntW kj';fSf;F
khwpath;fisg; gpw;gLj;jg;gl;l tFg;g[fshf mwptpj;J murhiz VJk;
btspaplg;gltpy;iy/ jhH;j;jg;gl;l. gpw;gLj;jg;gl;l. kpfg;gpw;gLj;jg;gl;l kw;Wk;
rPh;kugpdh; tFg;g[fspypUe;J. fpwpj;Jt kjk; eP';fyhf. ntW kj';fSf;F
khwpath;fis gpw;gLj;jg;gl;l tFg;ghf mwptpj;J Miz VJk; btspaplg;glhj
epiyapy; mth;fis jw;nghJ ,ju tFg;gpduhfnt fUj Koa[k; vd;gijj;
bjhptpj;Jf;bfhs;fpnwd;/
2.kz;ly; FG tHf;Ffspy; jPh;g;gpid tH';fpa ,e;jpa cr;rePjpkd;wk;
gpwg;gpj;j fl;lisf;fpz';f ve;jbthU tFg;gpida[k;
gpw;gLj;jg;gl;nlhh/;kpfg;gpw;gLj;jg;gl;nlhh; gl;oaypy; nrh;f;ff; nfhUk;
nfhhpf;ifapid Ma;t[ bra;J muRf;F ghpe;Jiu bra;a jkpH;ehL
gpw;gLj;jg;gl;nlhh; Mizak; vd;w mikg;g[ Vw;gLj;jg;gl;L bray;gl;L tUfpwJ.
nkw;Fwpg;gpl;l Mizaj;jpd; ghpe;Jiuapd; mog;gilapy; kl;Lnk ve;jbthU
tFg;gpida[k; gpw;gLj;jg;gl;nlhh;/kpfg;gpwg; Lj;jg;gl;nlhh; gl;oaypy;
nrh;f;fg;gl ,aYk;// nkw;Fwpg;gpl;l NH;epiyapy; jhH;j;jg;gl;nlhh;. gpwg; Lj;jg;gl;nlhh;.
kpfg;gpw;gLj;jg;gl;nlhh; kw;Wk; rPh;kugpdh; tFg;g[fspypUe;J ,!;yhk; kjj;jpw;nfh
my;yJ Vida kj';fSf;nfh khwpath;fisa[k; gpwg; Lj;jg;gl;l tFg;g[fshf
mwptpj;J Miz btspaplf;nfhhp bgwg;gl;l kD Ma;t[ bra;J mwpf;ifapid
mDg;g[k; bghUl;L jkpH;ehL gpwg; Lj;jg;gl;nlhh; Mizaj;jpw;F mDg;gp
itf;fg;gl;Ls;sJ/ ,J bjhlh;ghd Mizaj;jpd; mwpf;if vjph;ghh;f;fg;gLfpwJ
vd;gija[k; nkw;Fwpgpl;l nfhhpf;if kPjhd Mizaj;jpd; mwpf;if fpilj;j
gpwnf muR ghprPypj;J KobtLf;f ,aYk; vd;gija[k; j';fSf;F bjhptpj;Jf;
bfhs;sg; gzpf;fg;gl;Ls;nsd;/
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W.A.(MD)No.1313 of 2016
j';fs; cz;ika[s;s
muR brayhsUf;fhf”
12. Relying upon this communication, the learned Standing Counsel
appearing for the appellant would contend that, insofar as those who
converted into Christianity, they can be treated as Backward Class or Most
Backward Class Community as the case may be as per the various
Government Orders that have been issued by the Government. However,
for those who converted into Islam or Muslim Community, such a
Government Order so far has not been passed and that issue has been
pending before the Government for consideration. A decision would be
taken later on.
13. When such was a position that has been communicated or
conveyed by the State Government to the appellant/TNPSC, it was the
stand of TNPSC that whether the conversion that has been made by the
first respondent from Christianity to Muslim can be treated as a conversion
towards the Backward Class, is a matter to be decided which cannot be
independently decided by the Service Commission, unless and until a
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Government Order issued by the State Government is made available
giving such a clarification to be followed by TNPSC.
14. The learned Standing Counsel appearing for the appellant
Service Commission also would contend that, it is not only the letter dated
14.02.2020, but subsequent letters to that effect were issued from time to
time by the State Government on 22.08.2012, 04.05.2017 and 17.05.2019
reiterating the same position. Therefore, still the situation is fluid as to
whether those who have converted to Muslim Community or Islam, can be
treated as Backward Class Community or not, which has so far not been
clarified by the Government. Therefore, the Service Commission did not
have any other option except to treat the first respondent only as a
candidate belonging to others (i.e.,) others Community means OC and if
that consideration is made, that has been conveyed to the first respondent.
Only at that juncture, he had approached this Court and the writ petition
was ordered. Aggrieved over the same, the Service Commission had
preferred this Writ Appeal. Therefore, the learned Standing Counsel seeks
indulgence of this Court against the order impugned passed by the writ
Court.
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W.A.(MD)No.1313 of 2016
15. On the other hand, Mr.S.Vellaichamy, the learned counsel
appearing for the first respondent would submit that the earlier community
of the first respondent itself is a Christian community which has also been
treated as Backward Class Community. This is an admitted position and
from that community, since the first respondent has converted into Islam
where the Community has accepted him as Muslim Labbai Community
person, based on which, the Competent Authority (i.e.,) the second
respondent having considered the plea of the first respondent had issued a
necessary Community Certificate declaring him as a Backward Class
Community Candidate and that Certificate even though has been produced
by the first respondent to the appellant Service Commission, the same has
not been taken into account. In this context, he would submit that once the
Community Certificate has been issued by the Competent Authority, unless
and until it is modified or revoked or cancelled in the manner known to
law, the same shall be accepted as genuine Community Certificate and in
this context, the law is well settled. Therefore, the TNPSC should accept
either the Community Certificate issued in favour of the first respondent
and accordingly, treat him as Backward Class candidate, otherwise, the
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W.A.(MD)No.1313 of 2016
original community of the first respondent which is a Christian Community
which has also been a Backward Class Community should be accepted. In
both the cases, the first respondent belongs to Backward Class
Community and at any cost, he cannot be placed under the category of
''others''. Therefore, to that extent, the action taken or inaction on the part
of the Service Commission having been found fault with and accordingly,
the learned Single Judge allowed the said writ petition.
16. The learned counsel appearing for the first respondent also
brought to our notice that, though he had been appointed in the year 2003
as Junior Assistant, since this legal battle has been continuing for all these
years and because of pendency of this writ appeal, the service of the first
respondent has never been regularized and in fact, he attained the
superannuation on 31.07.2022 and retired from service, therefore, he seeks
indulgence of this Court to comply with the order passed by the writ Court
regularizing his service from the date of appointment and accordingly, he
is entitled to get all service benefits for the whole service that has been
rendered by him from 2003 to 2022. To that extent also, indulgence has
also been sought for by the learned counsel appearing for the first
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W.A.(MD)No.1313 of 2016
respondent.
17. We have given our anxious consideration to the said submissions
made by the learned counsel for the parties and have perused the materials
placed before this Court.
18. We have perused the order impugned passed by the learned
Judge, recorded the factual matrix where the first respondent originally
belonged to Christian Community which is included in the list of
Backward Class and thereafter, later only, he converted to Muslim
Religion where a Community Certificate as Muslim Labbai was given by
the second respondent, who is the Competent Authority and the said
Community Certificate has been in tact and has never been modified or
changed or canceled.
19. The learned Judge has recorded this factual matrix and also has
considered the judgment of another learned Judge made in
W.P(MD).No.21864 of 2010 dated 20.01.2011, where a similar plea raised
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W.A.(MD)No.1313 of 2016
by the Service Commission was negated and the plea raised by the
candidate concerned was accepted.
20. The learned Judge also has relied upon two other decisions in the
case of Tamil Nadu Public Service Commission vs. V.Theivanaivalli and
others reported in 2010 (2) CWC 475 and in the case of Tamil Nadu
Service Commission vs. R.Manikandan and others reported in 2011 (5)
CTC 1. Having considered all these legal positions, where the law is well
settled by more than one judgment, the learned Judge has come to a
conclusion that the candidate must either be considered as a Muslim
Labbai Community candidate based on the Community Certificate that has
been issued in his favour, or assuming that the Government has not given
so far any clarification as to the erstwhile community of the candidate from
where only he has converted, the candidate must be considered only as a
Backward Class community candidate and therefore, at any cost, the
consideration that has been shown by the Service Commission by treating
him as “others” category is unlawful and unjustifiable. Therefore, on that
ground, the learned Judge was pleased to allow the writ petition.
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W.A.(MD)No.1313 of 2016
21. In addition to the said reasons stated by the learned Judge in the
impugned order, we find one more reason stating that even in the letters
that have been very much relied upon by the learned Standing Counsel
appearing for TNPSC, starting from 04.02.2010 till 04.05.2017, it has been
stated that those who have converted from Hindu community to Islam
whether can be treated as Backward Class Community or not, was the
question which is lingering at an appropriate level to take a decision for
several years. Therefore, the Government says that a decision would be
taken and communicated to the Service Commission.
22. Here, the question is entirely different. The candidate has not
converted from Hindu Religion to Islam Religion. He has converted from
Christian Religion to Islam Religion and the Christian religion where he
belongs to a Community has already been declared as a Backward Class
Community from where he has converted into Community in an Islam
religion that has also been declared to be a Backward Class Community
and to that effect, a Backward Class Certificate also has been given.
23. Therefore, these clarifications that have been pending before the
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Government as reflected in those orders or letters would not stand in the
way to safely conclude that the candidature of the first respondent can very
well be accepted as a Backward Class candidate either under his own
community from where he has converted or in the converted community as
per the Community Certificate. Therefore, at any cost, treating him as
“others” or Open Competition candidate is thoroughly unjustifiable and
not based on any materials. Therefore, we feel that the approach of the
learned Single Judge and the conclusion reached by him in the order
impugned is to be fully acceptable and justifiable. Hence, the said order
which is impugned herein is to be sustained.
24. In the result, the following orders are passed in this writ appeal:
(i) that the order passed by the learned Judge which is impugned
herein is to be sustained and accordingly, it is sustained. Therefore, this
Writ Appeal fails and hence, it is liable to be dismissed.
(ii) as a sequel, since the first respondent has already superannuated
on 31.07.2022, he shall be regularized in his service where he was
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W.A.(MD)No.1313 of 2016
originally appointed in the year 2003 as, for the said exercise of
regularization only, the limited competitive examination in the year 2007
was conducted by TNPSC, where admittedly, the first respondent since has
become successful, such a needful action shall be undertaken by the
appellant/TNPSC and a communication to that effect shall be given to the
parent Department where the first respondent was working and retired.
Such a communication shall be sent by the appellant within a period of
four weeks from the date of receipt of a copy of this judgment.
(iii) on receipt of such communication from TNPSC, the employer
Department where the first respondent worked and retired on 31.07.2022,
shall pass necessary orders absorbing or regularizing the services of the
first respondent with effect from his initial appointment (i.e.,) in the year
2003. It is needless to mention that consequently, he shall be entitled to get
all service benefits including pensionary benefits, if any, under the relevant
provisions of law which are in vogue. The needful shall be undertaken by
such Department within a period of 12 weeks thereafter (i.e.,) on receipt of
the communication from TNPSC.
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W.A.(MD)No.1313 of 2016
25. With these directions, this Writ Appeal is dismissed
accordingly. There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
(R.S.K., J.) & (K.K.R.K, J.)
16.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
ssb
To
The Tahsildar,
Manamadurai Taluk,
Sivagangai.
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W.A.(MD)No.1313 of 2016
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
ssb
W.A.(MD)No.1313 of 2016
16.06.2023
https://www.mhc.tn.gov.in/judis
