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A. LIZZIE GRADE RANI (MINOR) REPRESENTED BY FATHER AND GUARDIAN K.A. AROKIAM V/S DIRECTOR OF MEDICAL EDUCATION, EZHILAGAM, MADRAS & OTHERS, decided on Thursday, November 30, 1989.
[ In the High Court of Madras, W.P. No. 9621 of 1989. ] 30/11/1989
Judge(s) : BAKTHAVATSALAM
Advocate(s) : J. Kanakaraj, . J.R K. Bhavanantham, Additional Govt. Pleader (Writs) on behalf of .
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  "1990 (2) LW 670"  







judgment - 1. The petitioner has come to this Court praying for the issuance of a Writ of Mandamus to direct the respondents to select and admit the petitioner in the First Year M.B.B.S. Course 1989 in any one of the Government Colleges.2. It is alleged that the petitioner; be-longs to Vanniar Community and she is an Indian Christian. It is alleged that Vanniar Community has been declared as most Backward”. The petitioner studied in Madurai and after completing the Higher Secondary Course Examination in March 1989 she applied for admission to the first year M B.B.S. Course 1989 in any one of the Government Colleges. She wrote the entrance examination conducted by the second respondent. She has obtained 41.30 marks in the entrance examination out of a total of 50. It is alleged that as per the procedure prescribed in the Government Order as well as the prospectus the petitioner has secured 218.55 out of 250 marks by reducing the marks in Biology Physics and Chemistry. It is stated that when the results of the selection were announced the petitioner's number was not found in the selected list. It is stated that the petitioner made enquiries and came to know that candidates belonging to the most backward community securing 215.3 marks above had been selected and that since the petitioner has scored 218.55 marks the petitioner should have been selected for admission to the First Year M.B B.S. Course. It seems that the petitioner has produced a community certificate issued by the Tashildar to the effect that the petitioner belongs to the most backward class as per G.O.Ms No 242 Social Welfare Department dated 28-3-1989. It is seated that as per the Government Order and as per the prospectus issued by the respondents the petitioner is entitled to be selected to the first year M B.B.S. Course 1989. It is stated that the only poiat is whether a Christain belonging to the Vanniar community is eligible to be considered for the quota reserved for the Most Backward Class. It is stated that if the petitioner is treated as belonging to the Backward Class she has no chance of being selected because the cut off marks are higher for the backward class. As such it is stated that in view of the various. Government Orders the petitioner should only be treated as belonging to the Most Backwards Class and not as Backward Class. If she has been treated as Backward Class the action of the respondents is illegal and discriminatory. It is further stated that on the basis of the certificate issued by the Tahsildar on 19-6-1989 certifying that the petitioner belongs to the Christian Vanniyar Communitv she is entitled to be considered in the 20% quota reserved for the Most Backward Class under G.O.Ms. No. 242 Backward Classes Welfare. Nutritious Meal Programme Social Welfare Department dated 28-3-1989 since her total marks are above the cut off marks for most Backward Class. It is also stated that the certificate issued by the Tahsildar cannot be overlooked unless and until the certificate is cancelled in a manner known to law It is also stated that it is not open to the respondents to question the validity of the certificate issued by the Tahsildar and the respondents should have considered the petitioner as most Backward Class. A reference to G.O.Ms No. 558. Social Welfare (BCC) Department dated 24-2-1986 is made in the affidavit in which the Government accepted the representation that the converts to Christianity suffer from the same social disability as Hindu communities in spite of their conversion and directed that converts from Hindu Backward Class should be treated on par with Backward Class candidates and as such now the Government cannot discriminate between converts to Christianity from most Backward Class and their Hindu Counter-Parts in the most Backward Class. If the respondents give any such construction it will be clearly in violation of Art. 14 of the Constitution. It is also stated that there is no scope in interpreting G.O.Ms. No. 242 Backward Classes Welfare Nutritious Meal Programme Social Welfare Department dated 28-3 1989 as excluding converts to Christianity from the most Backward Class community. It is also stated that two communities have been included in Most Backward Class as items I71 and 172 in the 1989-90 Session Appendix and also converts from some other community whereas Vanniyar community has not been included.3. The third respondent has filed a counter affidavit. The facts are not disputed. It is stated that since the writ petitioner belongs to the Christian Vanniar community she was considered only under backward class. The cut off mark for the candidates selected under Backward Class being 227 055 the petitioner could not be accommodated under backward class and therefore she was not selected It is stated that the list of most Backward Classes owes its origin to a representation made in 1954 by the Tamil N adu Washermen Federation to the then Chief Minister of Tamil Nadu. On the basis of the investigation so ordered in 1954 a list of Castes which can be treated as “most Backward” among the Backward Classes was prepared. The Kakha Khalelkar Commission has also identified certain castes as most Backward and suggested that preference may be given to them over other castes in the list of Backward Classes. Accordingly the Government passed G.O.Ms. No. 353 Industries Labour and Co operation dated 31-1-1957 recognising a list of most Backward Classes for whom educational concessions alone need be granted for the present as admissible to schedule castes from the Academic Year 1957-58. The number of communities in the list of most Backward Classes at that time was fifty eight. It is stated that these fifty eight communities which figured in the list of most Backward Classes were reduced to thirty nine by the first Backward Classes commission constituted under the chairmanship of Thiru A.N. Sattanathan after deleting the communities which figured in the list ot schedules castes and scheduled Tribes and the Communities which were not found in the State of Tamil Nadu removing redundancies and repetitions. The Government approved the revised list of most Backward Classes in G.O.Ms. No. 437 Social Welfare dated 15-5-1972. By this G.O. persons who are themselves converts to Christianity from scheduled castes have been included in the list of Backward Classes for the purpose of reservation of seats in educational Institutions and for posts in public services. In G.O Ms. No. 733 Social Welfare dated 16.9-1975 the Government have decid-to treat all the Scheduled Castes converts to Christianity irrespective of generation of conversion as Backward Classes. Again in 1978 by G.O.Ms. No. 1116 Social Welfare Department dated 20-11-1978 Government declared the Christian converts from Mukkuvar Mukayar Paravar and Meenavar (Parvatharajakulam Pattanavar Sembada-var) also as Backward Classes. In 1980 the Government raised the percentage of reservation for backward classes from 31 percent to 50 percent commensurate with the population of the Backward Classes in the State. The Government orders relating to the list of Backward Classes and 50 percent reservation for Backward Classes were challenged in the Supreme Court in Writ Petition No. 4995 of 1980 etc. On a statement made by the counsel for the State before the Supreme Court the Supreme Court directed the State Government to appoint a commission to review the existing enumeration and classification of Backward Classes. In view of this in 1982 the Tamil Nadu second Backward Classes commission was set up by the Government under the Chairmanship of Thiru J.A. Amba-sankar I.A.S. (Retd.). After the formation of this commission the Government declared the Christian Nadar Christian Sankar and Christian Gramni as Backward Classes in August 1983. Based on the reports of the Tamil Nadu Second Backward Classes Commission the Government have approved the revised and comprehensive list of Backward Classes including most Backward Classes and denotified communities in G O.Ms. No. 1564 Social Welfare dated 30-7-1985. The Government have also approved in G.O.Ms. No. 1666 Social Welfare dated 30-7-1985 a list of Most Backward Classes for the purpose of availing the existing educational concessions and scholarships. The list of Most Backward Classes approved in G.O.Ms. No. 437 Social Welfare dated 15-5-1972 was adopted in toto in the list of most Backward Classes in G.O.Ms. No. 1566 Social Welfare dated 30-7-1985 with the addition of converts to Christianity in respect of Meenavar Parvatharajakulam Pattanavar and Sembada-var as recommended by the Tamil Nadu second Backward Classes commission. The Government also continued the 50% reservation for Backward Classes. It is stated in the counter that the Christian converts from the other Hindu Backward Class Communities have made representation to extend all the concessions granted to the Hindu Communities treating them as Backward notwithstanding their conversion as Christians on the ground that these Christian communities are also suffering from all Social disabilities as Hindu Communities in spite of theit conversion and that it is not the religion but the Social and educational backwardness that should be basis for inclusion of any community in the list of Backward Classes. The majority members of the Tamil Nadu second Backward Classes Commission also recommended that when once the various Hindu Backward Glass Communities are listed their respective converts to other religions also be included in the Backward Classes list as was done in the case of Christian Nadar Christian Shanar Christian Gramani Christian Paravar etc. After considering the representation of the Christian converts the Government declared that in addition to the Christian converts already declared as Backward Glasses the persons belonging to other Christian communities who are converts from any Hindu community included in the list of Backward Classes also be treated as Backward Classes for the purpose of Arts. 15(4) and 16(4) of the Constitution in February 1986. But it is stated in the counter that the converts to Christianity from the Hindu community have not been declared as most Backward Classes even though converts to Christianity include Hindu Communities included in the list of most Backward Classes. It is stated that Vanniar sangams and associations of different communities belonging to Backward Classes have represented that major portion of the reservation benefit is being cornered by more advanced groups among the Backward Classes. After a detailed and careful consideration of all relevant facts and issues the Government in modification of the orders issued in 198S provided a special reservation of 20% from out of the 50% reservation available for Backward Classes to most Backward Classes and denotified communities in G.O.Ms. No. 242 Backward Classess Welfare Nutritious Meal Programme Social Welfare Department dated 28-3-1989. It is to be stated at this stage that this Government Order is in existence now. It may be seen that the list of most Backward Classes approved in G O.Ms. No. 437 Social Welfare dated 15-5-1972 is continued till date with slight addition of Christian converts in respect of Meenavar Parvatharajakulam Patta-navar and Sembadavar based on the recommendation of Tamil Nadu second Backward Classes commission. No fresh community has been included in the above list. It is stated that the petitioner being a Christian Vanniar cannot be treated as belonging to most Backward Class as pleaded in the affidavit filed in support of the Writ Petition. The Vanniar Christian is not included in the list of most Backward Classes. It is stated that further instructions were also issued to selection committees appointed to select candidates with reference to the Caste to which the individual belongs to as found in the community certificates issued by the Revenue Officials and with reference to the comprehensive list appended to Government letter dated 30-5-1989. It is stated that the certificate issuing authorities should issue community certificate with reference to the list approved by the Government and in the instant case the Tahsildar has issued the community certificate contrary to the approved list. It is stated that if the request of the Petitioner is accepted similar requests may arise from the Christian converts belonging to all other 105 communities and if all the Christian converts from Hindu Backward Class communities listed as most Backward Classes are treated as most Backward Classes then the 20% reservation now provided for most Backward Classes and denotified communities will have to be raised proportionate to the population after taking into account the population of the Christian converts. It is stated that the converts to Christianity from Vanniar community as in the petitioner's case have not been declared as Most Backward Classes. Since the petitioner belongs to Christian Vanniar community she was considered only under Backward Classes Quota and the cut off marks for the candidates selected under Backward Class being 227.055 she was not selected. Since the petitioner is not belonging to the most Backward Class she is not eligible to be considered under 20% quota reserved for most Backward Classes. It is stated that the community certificate issued by the Tahsildar that she belongs to Vanniar Christain has been issued without authority. The community certificate issued by the Tahsildar as belonging to Vanniar Christian is not disputed but the community certificate specifying the Vanniar Christian as most Backward Classes is disputed in the counter affidavit. It is stated that the certificate is countrary to the approved list of most Backward Classes and hence the petitioner cannot derive any benefit out of the certificate. It is stated that this certificate is not in accordance with the rules and has been detected even prior to admission. It is stated that the Tahsildars are expected to issue community ertificates with reference to G.O.Ms. Nos. 1564 1566 and 1567 Social Welfare dated 30-7-1985 and the petitioner being a convert from Vanniar community ought to have been issued Certificate only as Backward Class with reference to the above Government Orders read with the G.O.Ms. No. 558 Social Welfare Department dated 24-2-1986. It is stated that all the converts to Christianity from any Hindu Backward Class community except the converts from Meenavar Community are treated as Backward Classes only. The other allegations made are denied in the counter-affidavit.4. Mr. J. Kanakaraj learned counsel appearing for the petitioner contends that G.O Ms. No. 242 Backward Classes Welfare Nutritious Meal Programme and Social Welfare Department dated 28-3-1989 does not specifically include Vanniar Christians in the list of most Backward Class eligible for 20% reservation and that G.O.Ms. No. 558 Social Welfare Department dated 24-2-1986 states that converts from Hindu Communities included in the Backward Class also will be considered as Backward Class entitled to the benefit of Arts. 15 (4) and 16(4) of the Constitution. He further contends that the Government Order does not specifically state as to how to treat the converts from the most Backward Class because at that time there was no special reservation for the most Backward Class. The contention of the petitioner is that G.O Ms. No. 558 Social Welfare Department dated 24-2-1986 having treated both the converts and non-converts as equal there cannot be a further discrimination when some of the Backward Class communities are given a special reservation of 20%. Learned Counsel farther contends that the petitioner also belongs to the Vanniar Community and whether she is a Christian or a Hindu she should be given the benefit of 20% reservation. Reliance is placed upon the decision in Roshan Lal Tandon v. Union of India and another 1 and Kunj Behari v. Unionof India and Other 2. He further contends that G.O. Ms. No. 242 Backward Classes Welfare Nutritious Meal Programme Social Welfare Department dated 28-3-1989 which gives a special reservation of 20% for Vanniars includes reservation for Vanniar Christian also and it is apparent from the several certificates issued by the revenue authorities. He relied upon the decision in CM. Arumugam v. S. Rajagopal and others 3 for the proposition that even converts continue to be of the same community. He also referred to the decision in S P. Sakthi Devi v. The Collector of Salem Salem and 3 others 4. For the proposition that once the revenue authorities issue a certificate the same has to be acted upon by all other authorities unless and until the said certificate is cancelled in a manner known to law. He further contends that in this case the petitioner has been issued a certificate that she belongs to the most Backward Class and so far as the Certificate is not cancelled the petitioner cannot be denied a seat for the M.B B.S. course.5. Per contra the learned Additional Government Pleader refers to G.O.Ms No. 558 Social Welfare Department dated 24-2-1986 and states that the Government declared the other Christian converts from any Hindu community included in the list of Backward Classes also as Backward Classes. He also refers to G.O.Ms. No. 242 Backward Classes Welfare Nutritious Meal Programme and Social Welfare Department dated 28-3-1989 which points out in para 3 (iii) that from and out of the present reservation of 50% available for all Backward Classes 20% shall be reserved for the most Backward Classes and denotified Communities specified in the annexure to the order and the remaining 30% shall be reserved for the Backward Classes declared in the Government Orders in G O.Ms. No. 1564 Social Welfare Department dated 30-7-1985 and G.O.Ms. No. 558 Social Welfare Department dated 24-2-1986. As such he contends that the petitioner belongs only to Backward Class and not most Backward Class and she is not eligible to get a seat for the MBBS course. He further contends that by mistake the certificate has been issued and action is being taken against the Tahsildar who issued the wrong certificate under proceedings of the Secretary to Government dated 22-9-1989 in which similar instances are noted and instructions have been issued to cancel the certificates. He also contends that the petitioner cannot insist for a seat based upon a wrong certificate issued by the Tahsildar.6. I have considered the arguments of Mr. J. Kanakaraj. learned counsel for the petitioner and the Additional Government Pleader (Writs). First of all the writ as prayed for cannot be granted. The petitioner is not questioning the policy of the Government in this writ petition. G O.Ms. No 242. Backward Classes Welfare. Nutritious Meal Programme Social Welfare Department dated 28-3 1989 is not questioned at all in this writ petition. In that G.O. reservation for seats in Educational Institutions in cert ain percentages are fixed. Paragraph 3 of the said G.O. states as follows :—“Alter a derailed and careful consideration of all relevant facts and issues the Government in modification of the orders issued in the Government order second read above pass the following orders :—(i) The present system of reservation of 18 per cent for Scheduled Castes and Scheduled Tribes shall be continued as at present.(ii) The availability of 32 percent in which all sections viz Scheduled Castes Scheduled Tribes Backwatd Classes Most Backward Classes Denotified Communities and Forward Communities—can benefit under Open Compensation shall be continued as at present.(iii) From out of the present reservation of 50% available for all Backward Classes 40% shall be reserved for the Most Backward Classes and Denotified Communities specified in the Annexure to this order and the remaining 30 percent shall be reserved for the Backward Classes declared in the Government orders first and fifth read above other than the Most Backward Classes and Denotified communities.’Earlier to this Government Order there was a Government Order passed in 1986 G.O.Ms. No. 558 Social Welfare Department dated 24-2-1986 in which the Government decided how to treat Christian converts from any Hindu Backward Class. Paragraph 4 of the said Government Order reads as follows :—“The Government after carefully examining the representations with reference to the social status and educational backwardness have decided to declare the other Christian converts from any Hindu Community included in the list of Backward Classes also as Backward Classes.”The annexure to the latest Government Order issued in 1989 in item No 26 relates to Van-niakula Kshatriya which is to the following effect :“Vanniakula Kshatriya (including Vanniyar Vanniya Vannia Gounder Gounder or Kander Padayachi Palli and Agnikula Kshatriya.”)On a reading of both the Government Orders it is very clear that Vanniyakula Kshatriya alone is treated as most backward and not a convert from Vanniyar Community. Item No. 28 is as follows :“Meenavar (Parvatharajakulam Pattanavar Sembadavar including converts to Christianity.)This shows that Meenavar is a most backward community. Whereas the Government have not clearly stated that all converts to Christianity belong to most Backward Class. When the Government has declared a policy it is not open to the petitioner to claim a seat without questioning the policy of the State. If the petitioner is aggrieved by the policy the petitioner should have challenged the Government Order passed granting 20% of the reservation of 50% for all Backward Classes. The writ petition is not for that purpose. As such it is not possible for me to grant the prayer as asked for by the petitioner since she is not entitled to question the policy of the Government which is said to be violated in her case. This court cannot shut its eyes to the policy of the Government and the orders passed by it and issue a mandamus as prayed for. Surely it cannot be done. Without challenging the policy of the Government it is not open to the petitioner to seek admission to the Medical College praying herself alone to be treated as most Backward Class. Surely it cannot be done. I am not inclined to accept the contention of the counsel for the petitioner about the certificate issued by the Tahsildar. It is true that the division bench has held in S.P. Sakthi Devi v. The Collector of Salem Salem and 3 others 1 that a caste/community certificate isseud by an empowered public authority under seal continues to be a valid document till it is cancelled by the said authority or by his superior authority but it has to be seen in that case that the community certificate issued to the petitioner was “Konda Reddy”. The Supreme Court had occasion to consider a similar case in Atul Khullar and others v. State of J & K and others 2 wherein the candidates who claimed benefit tiled the tahsildar's certificate and the Supreme Court observed as follows :—“The candidates who claimed the benefit have filed a Tahsildar's Certificate in the prescribed Form in support of their claim and there is nothing on record ex facie to doubt the correctness of that Certificate. Nor is it for the Court in this proceeding to inquire into the correctness of the Certificates. Annexure II to Notification S.R.O. 272 dated July 3 1982 makes provision for the grant of such Certificates their prescribed Forms the authority entrusted with the power to grant them and the conditions subject to which they can be granted. Even if this court could be said to possess jurisdiction to enter into an enquiry whether the Tahsildar's Certificates are valid and reliable documents it appears difficult having regard to the state of the record before us to sustain the challenge to their validity.”The Supreme Court refused to entertain the contention that the certificates are not correct on the ground that there was no satisfactory material to indicate that certificates are not reliable documents. But here it is very clear that a reading of the latest Government Orders passed in 1989 has not included the community of the petitioner in the most Backward Class. As I have already stated in the Annexure to the Government Order also the petitioner's caste is not included as most Backward Class. As such any certificate issued in contravention of the Government Order in my view is not valid in law. It is not necessary that the certificate should be set aside by an authority. No more evidence is necessary so far as this type of case is concerned. When a Government has not included a particular caste in the list of most Backward Class it is not open to any authority or Officer of the Government to issue a certificate contrary to the Government Orders. This Court sitting under Art. 226 of the constitution cannot allow such an illegal Certificate to be relied upon for any purpose. The facts in the case before the division bench were entirely different. If such issuance of a wrong certificate is going to be allowed it will be very easy to obtain a wrong certificate and obtain admission and continue to study till the certificate is cancelled declaring that she or he is entitled to the benefits under the certificate. I do not think that this is the dicta laid down by the Division Bench. I am not able to understand why Mr. Kanakaraj learned counsel for the petitioner should rely upon the certificate which is invalid and when the petitioner is stated not to belong to most Backward Class This cannot be made as an argument before this court. In such cases the erring officials should be taken to task by the Government. Further the Supreme Court had occassion to consider what is the effect of Scheduled Caste member converted into Christianity in Soosai etc. v. Unionof India and others 3. The Supreme Court has held that it is not sufficient to show that the same caste continues after conversion and that it is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin— Hinduism continue in their oppresive severity in the new environment of a different religious community. As I have stated the petitioner has not challenged the order of the Government. Assuming that the petitioner's contention is correct it cannot be decided in this writ petition. Simply because the converts of Vanniyars have been included in the backward community it does not mean that they should be included in the most Backward Community. It is for the Government to decide and take a policy decision in this aspect and it is not for this court to suggest how to treat a community for the purpose of putting it under the head “most Backward Class”. It depends upon so many facts and investigation and it is not within the jurisdiction of this Court to decide that.7. The Supreme Court with regard to the power of the High Court for the issuance of a writ of Mandamus in a case The Comptroller and Auditor General of India Gian Prakash New Delhi and another v. K.S. Jagannathan and another 1 observed as follows :—“The High Courts exercising their jurisdiction under Art. 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevent Considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can in the exercise of its jurisdiction under Art. 226 issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority.”In this case I find the authorities have only acted upon the latest Government Order passed on this subject only in the year 1989 and as such this court cannot issue a writ of mandamus contrary to the Government Order which has been passed enunciating a particular policy of reservation.8. Further I do not think that the relief asked for can be granted straightaway since the petitioner has not obtained the requisite marks to get a seat as belonging to a backward community. When the marks obtained by the petitioner is below the cut off marks which is prescribed for a Backward community student I do not see how this Court can issue a writ of mandamus to admit her treating her as a student belonging to the roost Backward Community.9. In another angle also I am not inclined to entertain this writ petition. The petitioner applied to the said course under the rules prescribed for admission to Government Medical Colleges in Tamil Nadu as per the prospectus for the medical courses 1989-90. In the appendix to the prospectus a list showing the candidates belonging to scheduled castes scheduled tribes Backward Classes and Most Backward Classes/Denotified Communities in the State of Tamil Nadu is shown. The Community to which the petitioner belongs is not shown in the Appendix as most Backward Class. Having applied under this prospectus it is not open to the petitioner now to turn around and question the method of reservation when she is not able to obtain a seat. In similar circumstances a relief which is similar to the relief asked for in this writ petition was denied in a case which is reported in Om Prakas Shukla v. Akhilesh Kumar Shukla and others 2 . In which the Supreme Court at page 1053 observed as follows :—“Moreover this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination.”As such the petitioner is not entitled to obtain the relief as prayed for.10. As I have already stated so far as the petitioner does not belong to the most Backward community in accordance with the relevant Government Order it is not open to the petitioner to claim that she should be considered as a most Backward Class candidate. I do not find any force in the argument that the certificate issued by the Tashildar valid certificate to get an admission. I do not think as already stated that the petitioner is challenging the policy of the Government with regard to the Government Order passed in 1989. I do not think it necessary to consider the other decisions cited by Mr. J. Kanakaraj learned counsel for the petitioner since I feel they are unnecessary for the purpose of deciding this petition. There are no merits in this Writ Petition and it is accordingly dismissed. No costs.