w w w . L a w y e r S e r v i c e s . i n



A.A. JOSEPH v/s STATE OF KERALA

    O.P. No. 3324, 3603 of 1980

    Decided On, 28 January 1981

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. SUBRAMONIAN POTI & THE HONOURABLE MR. JUSTICE V. KHALID

    M.M. Cherian, K.M. Ckacko, George Jacob, T.L. Viswanatha Iyer, P.S. Narayanan, K.S. Menon, S. Ramachandran & S.R. Dayanandha Prabhu For Petitioners Siby Mathew, N.L. Krishnamoorthy, V.C. James, P. Gopalakrishnan Nair & Govt. Pleader



Judgment Text

1. The petitioner in O. P. 3324 of 1980 Sri A. A. Joseph as well as the petitioner in O. P. 3603 of 1980 Kumari A. S. Achamma were candidates who sought admission to the First Year M.B.B.S. Course in the Medical Colleges of the State in the year 1980-81. Both of them belong to the Latin Catholic community which is considered as a backward class for the purpose of admission to educational institutions. Both of them have not been included in the list of candidates selected for admission in the quota for Latin Catholics. The petitioner in O. P. 3324 of 1980 claims that he is the 4th in rank in the list of Latin Catholic eligibles judged on the basis of marks and as the 4th in rank he is entitled to obtain admission. He further claims that the person noticed as second in rank Miss Sheela J is not a Latin Catholic and her income is above Rs. 10,000/,


2. In the prospectus for the year 1980 81 mention is made of the availability of 558 seats in the Medical Colleges in the State. Of these seats, the seats available in the Calicut Medical College are to be filled up by students passing out of the Calicut University while the seats available in the 3 other Medical Colleges in the State are to be filled up by candidates passing out from the Kerala University. A proportion of 3:2 is to be maintained between the Science degree-holders and those who have passed the pre-degree examination or equivalent. 2 percent of the total seats available in the State is to be reserved for the Latin Catholic Community in accordance with G.O. (P) 208/66/Edn. dated 2 21966. In the matter of admission to the Medical Colleges of the State during the year 1979-80 there were disputes as to how the seats were to be divided between those who had passed out of the Kerala University and those who had passed out of the Calicut University. The matter ultimately reached the Supreme Court In the decision reported in State of Kerala v. T.P.Roshana (AIR. 1979 SC 765) the Supreme Court indicated a formula to be adopted for the purpose of admission to the seats available in the State. It is pursuant to such direction that in the prospectus for the year 1980-81 allotments have been made and reservation has been provided for. In the said decision the Supreme Court observed that the allotment as between those who had passed out of the Calicut and the Kerala Universities and as between degree-holders in Science and Pre degree pass candidates will be "subject to the die-hard rule of com

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munal reservation". According to the petitioner out of the 219 seats set apart for those who have passed Pre-degree examination 4 seats must necessarily be set apart for those of the Latin Catholic Community Actually it was so provided, 3 in the 3 Medical Colleges in the Travancore-Cochin area and one seat in the Calicut Medical College. The petitioner in O.P. 3324 of 1980 was an applicant as one who had passed Pre-degree from the Kerala University. 3 seats in the Medical Colleges in the erstwhile T C area of the State were filled up by 3 Latin Catholic candidates. But to the one seat in the Calicut Medical College there was no Latin Catholic applicant with a pass in the Pre-degree examination from the Calicut University. The result was that while those who had ranks I, 2 and 3 were selected for admission in the 3 Medical Colleges in the T C area the 4th seat in the Calicut Medical College was not allotted to any Latin Catholic candidate. It may also be mentioned here that only Latin Catholics falling within a specified income group could seek admission on the basis of the rule of reservation. To seek admission to the reservation seats an income limit of Rs. 10,000/- is fixed. The following is the list of persons who were ranked as 1 to 6 on the basis of the marks obtained by them in the Pre-degree examination:


Table:#1



There is no dispute about the admission given to the first in rank Miss Mercy Sebastian. The petitioner in O. P. 3324 of 1980C is Mr. A.A.Joseph He challenges the ranking of Miss Sheela J. who is the 5th respondent in his petition and the 3rd respondent in the other petition. This is on the ground that Miss Sheela is not a Latin Catholic. Though her mother is said to be a Latin Catholic she is said to have married one Gopinathan Nair consequent upon which, according to the petitioner. Miss Sheela, born in that marriage, would not be a Latin Catholic. It is further said that the income of the father of Sheela who was understood to be in the Persian Gulf area for some years was considerable and that added to the income of the mother which was also said to be in excess of Rs. 10,000/- would certainly disentitle Miss Sheela from seeking admission in the reservation quota for Latin Catholics The petitioner therefore sought to displace the 5th respondent in which event he would be the 3rd in rank and would be found entitled to admission in one of the 3 seats available for Latin Catholics who had passed from Kerala University. In the alternative there is another contention. It is that when Latin Catholics are entitled to 4 seats in the State and the said 4 seats represent their eligibility for reservation on the basis of the total number of seats in the State, in order to maintain the die-hard rule of communal reservation it was necessary to allot the one seat in the Calicut Medical College to a Latin Catholic who had passed out of the Kerala University when it was seen that none eligible who had passed out of the Calicut University was available. In otherwords emphasis has to be given not to the University from which a candidate has passed as much as the adequacy of representation for Latin Catholics taking the State as one unit. If that be the case, the petitioner claims, even if he was 4th in rank he should be admitted to the one seat in the Calicut Medical College set apart for a Latin Catholic.


3. The petitioner in O. P. 3603 of 1980 is 6th in rank on the basis of marks. She did not attack the admission of Miss Mercy Sebastian, first in rank, or A. A. Joseph, 4th in rank. She challenges the eligibility of Miss Sheela of the second rank, Miss Margret Henry of the 3rd rank and Mr. Antony Newton of the 5th rank She alleges that Miss Sheela's parents had income much above Rs. 10000/-. Similarly in the case of Miss Margret Henry who was the 4th respondent in O. P 3603 of 1980 she alleges that her father had about 10 acres of plantation from which there was considerable income and besides he was employed by the Bishop of Changanacherry on a salary of Rs. 500/-per mensem. In the case of the 5th respondent in her petition namely Sri. Antony Newton the petitioner's case was that the candidate's father was a medical practitioner inactive and flourishing practice, that his mother was a school teacher getting a salary of Rs. 300/-and brother was also a flourishing medical practitioner and therefore the income of the family was estimated at Rs. 40,000/-per annum. In the case of Miss Sheela there is a further contention, the same as that set up by the petitioner in O. P. 3324 of 1980, that she was not a Latin Catholic.


4. The 5th respondent in O P. 3324 of 1980 Miss Sheela denied the case that her parents had income in excess of Rs. 1000 /- and that therefore she would be disentitled to seek admission in the reservation quota. According to her, her mother was married by one Gopinathan Nair, a Hindu and that being so the marriage was an inter-communal marriage and consequently she was entitled to claim the benefit of the Government Order marked as Ext C2 in the counter-affidavit filed by the 5th respondent in O.P. 3324 of 1980 That is G.O. No. 805/79/D.D. dated 24-4-1979. That refers to the existing orders which extend the benefits due to Scheduled Castes and Scheduled Tribes irrespective of income limit to a case when in an inter-marriage one or other of the spouses belongs to the Scheduled Caste or Scheduled Tribe. It is provided in the said Government Order that the benefit due to Scheduled Castes and Tribes will be available in the case of inter-marriage of backward classes. Therefore, as it stands if one of the two parties to an inter-marriage belongs to a backward class the children born in such marriage would be entitled to the benefit due to such backward class irrespective of the income limit. Based on this the 5th respondent claimed that her mother being a Latin Catholic and she being the off-spring of an inter-marriage she is entitled to the benefit of reservation due to a Latin Catholic irrespective of the income limit. It is submitted by learned counsel for the State Smt. Usha Sukumaran that the selection committee took the view that the above said Government Order is applicable to the 5th respondent and therefore, irrespective of examination of the income limit admission was given to the 5th respondent. It is further contended by Miss Sheela that her father had not been heard of for many years, that he had not been maintaining her family and the only income of the family was the income of the mother which was far below the limit. The 4th respondent in O. P. 3603 of 1980 Miss Margret Henry denied the case of the petitioner that her father had extensive lands or that he had a job under the Bishop of Changanacherry. The income limit furnished by the income certificate of the Revenue authority is said to be the true income. The 5th respondent in that petition Mr. Antony Newton similarly denied the case as to the income of his father. According to him his father is a Homeopathic medical practitioner whose income is very little and the mother is having an income of Rs. 300/-and together the income is less than Rs. 10000/-. That is what the income certificate showed.


5. One of the main questions in this case concerns the number of seats available for Latin Catholics. 4 seats have been found to be their legitimate due based on the principle of 2 percent reservation out of the total seats. As a matter of fact we find that ii all the total seats are taken into account, 2% will work out to 11 seats. Actually only 6 seats have been reserved for degree-holders and 4 seats for pre-degree candidates. This is evidently because the proportion has been worked out on number of seats as separately allotted to degree-holders and pre-degree candidates. As observed by the Supreme Court in Para.30 of the decision in State of Kerala v. T.P. Roshana (AIR 1979 SC. 765) the rule of communal reservation is to be an overriding factor. This is to ensure that the representation envisaged for backward classes are guaranteed to them despite the various divisions on the basis of the Universities from which qualifying examinations are passed and the qualifying examinations themselves. Therefore such representation must necessarily be on the sum total of the seats. In other words if 218 seats are set apart for those who have passed pre-degree examination 4 seats out of this must be available to the Latin Catholic candidates No doubt regional considerations are of importance and as far as possible it can only be subject to such regional considerations that the reserved seats can be filled up. But where, on account of the non-availability of a candidate in a region of the class which is entitled to reservation the seat is vacant that should not result in that class losing its right to that seat In such circumstances if there are other applicants eligible to fill up the seat though not in the same region the most eligible among them should necessarily be found to be entitled to admission in such a seat. That alone would ensure to the community proper representation. This view may perhaps be the reason why the selection committee prudently chose not to fill up the one seat in the Calicut Medical College. Allotment of that seat also to a Latin Catholic candidate appears to be in consonance with the spirit of the direction contained in the judgment of the Supreme Court. The representation to backward classes is intended to achieve a purpose and that purpose would be defeated if such representation is denied on a purely technical ground such as that in a seat set apart in the Calicut Medical College there is no one who has passed out from the Calicut University available for admission. In these circumstances we find that one more seat is available to Latin Catholics for admission to the Medical Colleges for the first year M.B.B.S. course and that is the seat in the Medical College, Calicut which is lying vacant. That seat will goto the 4th candidate and the petitioner in O.P. 3324 of 1980 Sri. A. A. Joseph being the 4th in rank he would naturally get that seat.


6. We will examine the other alternative case of the petitioner. Even though the petitioner in O.P. 3324 of 1980 may succeed even without such examination, since in O.P. 3603 of 1980 also there is an attack against the admission of the 5th respondent in O.P. 3324 of 1980 we are constrained to consider that question. That Alice Koshy, the mother of Miss Sheela is a Latin Catholic is not a matter which can seriously be disputed. She is seen to have been married by one Gopinathan Nair. In reply to the categorical averments made by the petitioner in O.P. 3603 of 1980 we called upon the mother of Miss Sheela to file a detailed counter-affidavit. That counter-affidavit has made matters clear. Though the case of Miss Sheela is that her father was a Nair and continued to be a Nair that does not appear to be really the case He was no doubt a person belonging to the Nair Community before the marriage. But he seems to have been converted into Christianity before he married Alice Koshy. We do not think we should summon the records relating to the alleged baptism of the said Gopinathan Nair through the Catholic Church nor do we think it necessary to call for the other church records. That the marriage has been conducted in a church is now admitted. That Gopinathan Nair's name is Joseph Gopinathan Nair is seen from the very application for admission of Miss Sheela. It is evident that Mr. Gopinathan Nair took the name Joseph prior to the marriage which was conducted in a Latin Catholic Church. On these facts, for the purpose of this petition we can safely assume that it was a marriage between a Hindu Nair who just before the marriage became a Christian and a Christian Lady of the Latin Catholic community, a marriage which took place in a Catholic Church of Latin rites. According to the petitioner in O.P. 3324 of 1980, if such a marriage is conducted the child will not be a Latin Catholic and reference has been made to the decision in Dr. Kunjamma Alex v P.S.0 (1980 KLT.18). That was a case of a marriage between a Latin Catholic and a Syrian Catholic. The Syrian Catholic girl married a Latin Catholic boy and as a result of the marriage the girl claimed that she had become a Latin Catholic. Evidently that gave her advantage in service, since Latin Catholic was a backward class while Syrian Catholic was not. This court held in that case that it is possible for a Syrian Catholic to become a Latin Catholic on marriage and if that was possible on the facts of that case it could be found that there was such a conversion from Syrian Catholic into Latin Catholic by reason of the rites under which the marriage was held and other circumstances of the case. According to learned counsel Sri. M. M. Cherian it must be found that when a Latin Catholic female marries a gentleman who was till then a Hindu the child born in that marriage, though may be a Christian, may not be a Latin Catholic, for, the father even if he is converted into Christianity would not have been taken into the Latin Catholic fold and the child must take after the father. We do not think that there is scope for any assumption that the child must belong to the class to which the father belongs. It would depend on the circumstances relating to the marriage such as the rites under which the marriage was conducted. If the marriage is conducted in a Latin Catholic church under Latin Catholic rites normally the children born in that marriage would be Latin Catholics. Moreover there is nothing to indicate that the father belonged to any church other than the Latin Catholic Church on his conversion into Christianity. We may be understood as expressing our views for the purpose of this case only. It is not for us to go into this matter further in this Original Petition as the scope of examination here must necessarily be limited and we must, unless there is material sufficient to discredit the community certificate accept the certificate issued by a competent authority. Hence we find that Alice Koshy, the mother of Miss Sheela was a Latin Catholic and Miss Sheela is also a Latin Catholic


7. The further and the more difficult question is whether a marriage between Mrs. Alice Koshy, the mother of Miss Sheela and Joseph Gopinathan Nair was an inter-marriage (we use this term to denote the concept of 'misravi-vaham' a term used in the Government Order) in the sense in which this term 'misravivaham' has been used in Ext. C2 Government Order. There is no scope for a controversy that the marriage, had it taken place before Mr. Gopitnathan Nair became a Christian would have been an inter-marriage the progeny of which would certainly get the benefit of Ext. C2 Order. But when, before the marriage, Sri. Gopinathan Nair is seen to have been converted into Christianity and the marriage between him and Alice Koshy is conducted in the church could it be said to be an inter-marriage and could it be said that the 5th respondent as the progeny in such marriage is entitled to the benefit of Ext. C2 Government Order? An inter-marriage is a marriage between persons belonging to two religions or two communities within same religion. An inter-marriage as envisaged in the Government Order is one consequent on which a social disability would normally arise to the parties to the marriage. General social acceptance of caste distinctions in India has contributed in an abundant measure to social inequalities and large classes of people have been subjected to varying degrees of social disability by the die-hard practice of caste distinctions. Enlightened opinion in this country has no doubt been vociferous in voicing their grave concern in perpetuating the caste system and maintaining caste barriers But looking back over the past three decades, a period when our Nation was free to shape its destiny and direct its own course, nothing much seems to have been achieved. Speeches galore in the promotion of the cause of abolition of castes and social inequalities perpetuated by the caste system have merely created wripples on the surface. The intensity of caste ferver seems to have remained as deep rooted as ever. In this land of Kerala we had a great social reformer in Sri. Narayana Guru whose call for oneness of castes seems to have caught up well at one time but now there is a different story to tell. There are many who solemnly swear by his name, but not all of them follow his precepts Inter-caste marriages have been suggested as the only practical way of annihilating caste distinctions in due course. But such marriages continue to be a rare phenomena and have not yet made any material impact on our society or our social outlook. Persons who marry out of caste are subjected to social disabilities, the intensity depending on various factors. Society still frowns on it except perhaps in large cosmopolitan cities. The spouses in an inter-marriage quite often find themselves as social out castes. It needs a lot of courage of conviction to withstand this. Measures such as those envisaged by the order on which the 5th respondent relies, Ext.C2. are really intended to alleviate the social disabilities of those who enter into inter-marriages. It is in this background that the scope of the term 'misra vivaham' has to be appreciated. A 'misravivaham' is therefore a marriage which, judged by the current social customs and attitudes does not generally obtain the approval, acceptance or recognition of the society in which the spouses move and particularly the communities to which they belong.


8. Judged in this context if a Nair convert to Christianity marries a Christian lady, despite the fact till the moment of the marriage he was a Nair there would be no inter-marriage. That is because it is for the acceptance of the society that the conversion is resorted to by one of the spouses. He may not be seeking conversion so much out of conviction as out of necessity or expediency, the need to have the approval by

the society in which the marriage is celebrated. It cannot therefore be said that Mr. Gopinathan Nair, once he becomes Joseph and marries Alice Koshi is entering into an inter-marriage. Therefore the benefit of Ext. C2 will not be available to Miss Sheela.


9. All the same she is entitled to succeed for another reason. Her parent's income is, in the facts of the case, only the income of her mother. The income certificate shows that such income is below the ceiling limit. The father is said to have been not heard of fora fairly long time There is no reason to doubt that statement. The mother's income, according to the petitioner in O P. 3603 of 1980 is above Rs. 10,000/- even on the admission in the counter-affidavit of Alice Koshi. Our attention has been drawn by Government Counsel to G.O No 135/77/M. Edn. dated 19-8-1977 which refers to the mode of determination of the income of a salaried person. It mentions that in the case of a person drawing income from salary D.A. will not be included for the purpose of calculation of income and that is in the context of determining income for reservation of seats in the educational institutions. In the light of this Government Order D. A. earned by the mother of Miss Sheela cannot be taken into account in determining the total income. If that is excluded it is below Rs. 10000/- and therefore if Sheela is a person belonging to the Latin Catholic community her parent's income being less than Rs 10000/- she would be entitled to admission now that she is shown to have obtained the second rank.


10. Though the petitioner in O. P. 3603 of 1980 has attacked the eligibility of Miss Margret Henry and Mr. Antony Newton in an attempt to displace them so that after so displacing them she may go over to the 4th rank, the income certificates of Miss Margret Henry and that of Antony Newton show that their incomes are far below Rs. 10000/- There are only vague averments about the income of these persons in the affidavit of the petitions. These averments have been contradicted in the counter-affidavits and there is no material to substantiate the case of the petitioner in O. P. 3603 of 1980. So we are unable to hold that the income of the parents of these persons are above Rs.10,000/-. There is no scope for displacing these persons. For these reasons the petitioner in O P. 3603 of 1980 must be found to be not entitled to succeed.


The result is that O. P. 3603 of 1980 is dismissed. O. P. 3324 of 1980 is allowed. The petitioner in that petition has to be admitted to one of the seats reserved for a Latin Catholic in the Calicut Medical College. The concerned respondents are directed in this behalf. Parties are directed to suffer costs in both the cases.


Khalid J: I agree with the learned Ag. C. J that O. P. 3324 of 1980 has to be allowed and O. P. 3603 of 1980 has to be dismissed. Though regional consideration has to be kept in mind while distributing seats, the principle of communal reservation should override such considerations. Non-avilability of candidates in one region should not be taken as a rigid rule to deny a particular community its due share if candidates from that community are available in the other region. This is how the observation of the Supreme Court about the supremacy of the die hard rule of communal reservation has to be understood. This is the reason why we are persuaded to direct the vacant seat in the Calicut Medical College to be given to the petitioner in O. P No. 3324 of 1930.


I also agree that the marriage between the father of Miss Sheela, once Mr. Gopinathan Nair, now Joseph and her mother Alice Koshy cannot be held to be an inter-marriage so as to confer the benefit of Ext. C2 G 0. on her. The conversion of the husband to Christianity Before the solemnisation of the marriage robs it of its character as a 'misravivaharn' in the contemplation of the G O and destroys the purpose for which the G.O. recognises it. About the fine sentiments expressed in the main judgment about'misravivaham', I have nothing to say except that I am not very conversant with its semantics. For this reason. I do not venture to tread unfamiliar regions
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