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Reportabl e

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7065 OF 2008

K.P. Manu        ….. Appellant

Versus

Chairman, Scrutiny Committee for Verification of Community Certificate … Respondent  

J U D G M E N T  

Dipak  Misra, J.

In  this  appeal,  by  special  leave,  the  assail  is  to  the  

judgment  and  order  dated  10th March,  2006  passed  by  the  

Division Bench of the High Court of Kerala in M.F.A. No. 55 of  

2006 wherein the High Court has accepted the report of the  

Scrutiny Committee  constituted under  the Kerala  (Scheduled  

Castes  and  Scheduled  Tribes)  Regulation  of  Issue  of  

Community Certificates Act, 1996 (for short “the Act”) wherein

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the  caste  certificate  granted  in  favour  of  K.P.  Manu,  the  

appellant herein, had been cancelled.   

2. The facts giving rise to the present appeal are that one  

Shri  S.  Sreekumar  Menon  invoked  the  jurisdiction  of  the  

Scrutiny Committee under Section 11(3) of the Act challenging  

the  grant  of  caste  certificate,  namely,  Hindu  Pulaya  to  the  

appellant  on  the  ground  that  the  said  certificate  had  been  

obtained  by  him  on  misrepresentation,  and  that  apart  the  

concerned authority  had issued the  caste  certificate  in  total  

transgression of  law.   The Committee conducted an enquiry  

and  eventually  by  its  order  dated  4th February,  2006  had  

returned a finding that the appellant was erroneously issued a  

caste certificate inasmuch as he was not of Hindu origin and  

hence, could not have been conferred the benefit of the caste  

status.  It is not in dispute that the great grandfather of the  

appellant  belonged  to  Hindu  Pulaya  Community.   His  son  

Chothi embraced Christianity and accepted a new name, that  

is, Varghese who married Mariam who originally belonged to  

Hindu  Ezhava  community  and  later  on  converted  to  

Christianity.   In  the  wedlock  three  sons,  namely,  Varghese,  

Yohannan and Paulose were born.  The father of the appellant,

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Paulose, got married to Kunjamma who was a Christian.  The  

appellant who was born on 03.01.1960 sometime in the year  

1984 at the age of 24 converted himself to Hindu religion and  

changed his name to that of K.P. Manu.  On the basis of the  

conversion he applied for a caste certificate to Akhila Bharata  

Ayyappa  Seva  Sangham.   Be  it  stated,  the  appellant  after  

conversion  had  obtained  a  certificate  from  the  concerned  

community on 5th February, 1984.   Eventually, the Tehsildar  

who was authorised to issue the caste certificate had issued  

the necessary caste certificate.    

3. On  the  basis  of  the  complaint  made,  the  Scrutiny  

Committee embarked upon an enquiry and recorded a finding  

holding, inter alia, that the appellant does not belong to that  

caste.  The report of the Scrutiny Committee appears to have  

been influenced by two aspects, namely, that the appellant was  

born to Christian parents, whose grandparents had embraced  

Christianity and second, there is no material brought on record  

to show that the appellant after conversion has been following  

the traditions and customs of the community.  To arrive at the  

second conclusion, emphasis has been laid on the fact that the  

appellant after conversion, had married a Christian lady.

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4. On  the  basis  of  the  aforesaid  report  of  the  Scrutiny  

Committee, the State Government took action and directed the  

employer of the appellant, respondent No. 2 herein, to remove  

him from service and recover a sum of Rs.15 lakhs towards the  

salary paid to him.  The said report of the Committee and the  

order  in  sequitur  having  the  base  on  the  report  were  the  

subject matter of challenge before the High Court in appeal.   

5. On a perusal of the order passed by the High Court it is  

perceptible that it has affirmed the findings of the Committee  

on the basis that the paternal as well as maternal grandfather  

of  the  appellant  belonged  to  Christian  community  and  

professed Christian faith; that the parents of the appellant were  

born as Christians and they continued to profess Christianity;  

that the appellant also was born as a Christian; that there is no  

caste  by  name  ‘Pulaya  convert’;  that  neither  the  state  

government nor the revenue officials have the power to effect  

any alteration in the caste name contrary to the Constitution  

(Scheduled Castes) Order, 1950 issued under the authority of  

the Constitution of India;  that the appellant cannot claim the  

caste  status  of  Pulaya  merely  on  the  ground  that  he  had  

embraced Hinduism at the age of 24; that his claim that he

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should  be  treated  as  one  belonging  to  scheduled  caste  

community has been rightly rejected by the Committee after  

considering all the relevant facts and the law on the subject;  

and that neither the appellant nor his parents had enjoyed the  

caste status of Pulaya.  On the aforesaid basis, the High Court  

opined  that  by  embracing  Hinduism  at  the  age  of  24,  the  

appellant  who  was  born  to  Christian  parents  and  professed  

Christian faith is not entitled to claim that he is “Hindu-Pulaya.”  

In the ultimate result, the writ petition was dismissed.  

6. Calling in question the legal propriety of the aforesaid  

order, it is submitted by Mr. Naphade, learned senior counsel  

for  the appellant  that  the High Court  has fallen into serious  

error  in  its  understanding  of  the  ratio  laid  down  by  the  

Constitution  Bench  in  the  case  of  The  Principal  Guntur  

Medical  College,  Guntur  &  Ors.  v.  Y.  Mohan  Rao1,  

inasmuch as it has ruled that benefit available to a Scheduled  

Caste can only be made available to a person, if his parents  

were converted to Christianity and he has been reconverted  

and further satisfies other conditions like following the customs  

and traditions of the Caste after reconversion but would not be  

1 (1976) 3 SCC 411

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applicable  to  a  person if  his  grandparents  had converted to  

Christianity.   Learned  senior  counsel  would  submit  that  the  

finding  of  the  Scrutiny  Committee  does  not  deserve  

acceptation inasmuch as  the expert  agency which has been  

constituted under Section 9 of the Act to inquire into certain  

aspects  though  has  given  a  categorical  finding  that  the  

appellant  had  produced  the  requisite  certificate,  yet  has  

fallaciously concluded that after  conversion he has not been  

following the traditions of Christian religion, for he has entered  

into wedlock with a Christian woman.  Learned senior counsel  

has  also  placed  reliance  on  a  two-Judge  Bench  decision  in  

Kodikunnil  Suresh  @  J.  Monian  v.  N.S.  Saji  Kumar  &  

Ors.2.   

7. Resisting the submissions canvassed by Mr. Naphade,  

learned  senior  counsel  for  the  appellant,  Ms.  Liz  Mathew,  

learned counsel  for  the respondent-State submitted that  the  

reasoning  of  High  Court  cannot  be  faulted  inasmuch as  the  

Constitution Bench does not lay down that a person born as a  

Christian whose grandparents had embraced Christianity can,  

on reconversion, come back to the stream of his/her original  

2 (2011) 6 SCC 430

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caste  on  acceptance  by  the  community,  and  further  the  

principle stated therein should not be stretched to cover that  

arena.  That apart, submits she, the onus is on the appellant to  

adduce proof in respect of the fact that after conversion he has  

been following the Hindu rites and customs that is meant for  

the caste and in the case at hand the said burden has not been  

discharged.

8. As  we  perceive,  the  controversy  fundamentally  has  

three arenas, namely, (1) whether on conversion and at what  

stage  a  person  born  to  Christian  parents  can,  after  

reconversion  to  the  Hindu  religion,  be  eligible  to  claim  the  

benefit of his original caste; (ii) whether after his eligibility is  

accepted and his original community on a collective basis takes  

him within its fold, he still can be denied the benefit; and (iii)  

that who should be the authority to opine that he has been  

following the traditions and customs of  a  particular  caste or  

not.  We have enumerated the basic tests and in course of our  

discussion, we shall  delve into certain ancillary issues regard  

being had to the area of analysis.

9. To appreciate the questions that we have formulated, it  

is necessary to refer to the authorities in chronology.  A three-

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Judge  Bench  in  C.M.  Arumugam  V.  S.  Rajgopal  and  

others3,  while dealing with the concept of caste, referred to  

the pronouncements  in  Coopoosami Chetty V.  Duraisami  

Chetty4, Muthusami V. Masilamani5 and G. Michael V. S.  

Venkateswaran6 and opined thus:  

“It  is  no  doubt  true,  and there  we agree with  the  Madras  High  Court  in  G.  Michael  case that  the  general  rule  is  that  conversion  operates  as  an  expulsion  from  the  caste,  or,  in  other  words,  the  convert ceases to have any caste, because caste is  predominantly  a  feature  of  Hindu  society  and  ordinarily a person who ceases to be a Hindu would  not be regarded by the other members of the caste  as  belonging  to  their  fold.  But  ultimately  it  must  depend on the structure of the caste and its rules  and  regulations  whether  a  person  would  cease  to  belong to the caste on his abjuring Hinduism. If the  structure of the caste is such that its members must  necessarily belong to Hindu religion, a member, who  ceases  to  be  a  Hindu,  would  go  out  of  the  caste,  because no non-Hindu can be in the caste according  to  its  rules  and  regulations.  Where,  on  the  other  hand, having regard to its structure, as it has evolved  over  the  years,  a  caste  may  consist  not  only  of  persons  professing  Hindu religion  but  also  persons  professing  some  other  religion  as  well,  conversion  from Hinduism to that other religion may not involve  loss of caste, because even persons professing such  other  religion  can  be  members  of  the  caste.  This  might happen where caste is based on economic or  occupational  characteristics  and  not  on  religious  identity or the cohesion of the caste as a social group  is  so  strong  that  conversion  into  another  religion  does  not  operate  to  snap  the  bond  between  the  

3  (1976) 1 SCC 863 4  ILR 33 Mad 57 5  ILR 33 Mad 342; Mad I.J. 49 6  AIR 1952 Mad. 474

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convert and the social group.  This is indeed not an  infrequent  phenomenon  in  South  India  where,  in  some  of  the  castes,  even  after  conversion  to  Christianity,  a  person  is  regarded as  continuing  to  belong  to  the  caste. When  an  argument  was  advanced before the Madras High Court in G. Michael  case

“that  there  were  several  cases  in  which  a  member  of  one  of  the  lower  castes  who  has  been  converted  to  Christianity  has  continued  not  only  to  consider  himself  as  still  being  a  member  of  the  caste,  but  has  also  been  considered so by other members of the caste  who had not been converted”,

Rajamannar, C.J., who, it can safely be presumed,  was  familiar  with  the  customs  and  practices  prevalent  in  South  India,  accepted  the  position  “that instances can be found in which in spite of  conversion the caste distinctions might continue”,  though  he  treated  them  as  exceptions  to  the  general rule.”  

[Emphasis supplied]

10. Thereafter, the Court referred to number of authorities of  

various High Courts and ruled that it cannot be laid down as an  

absolute rule uniformly applicable in all cases that whenever a  

member of caste is converted from Hinduism to Christianity, he  

loses his membership of the caste.  It is true that ordinarily on  

conversion to Christianity, he would cease to be a member of  

the  caste,  but  that  is  not  an  invariable  rule,  and  it  would  

depend  on  the  structure  of  the  caste  and  its  rules  and  

regulations.  The Court referred to certain castes, particularly in  

South  India,  where  this  consequence  could  not  follow  by

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conversion  since  such  castes  comprise  both  Hindus  and  

Christians.  Eventually, the Court opined that:

“There  is  no  reason  either  on  principle  or  on  authority which should compel us to disregard this  view which has prevailed for almost a century and  lay down a different rule on the subject. If a person  who  has  embraced  another  religion  can  be  reconverted  to  Hinduism,  there  is  no  rational  principle why he should not be able to come back to  his  caste,  if  the  other  members  of  the  caste  are  prepared to readmit him as a member. It stands to  reason that he should be able to come back to the  fold to which he once belonged, provided of course  the community is willing to take him within the fold.  It is the orthodox Hindu society still dominated to a  large  extent,  particularly  in  rural  areas,  by  medievalistic  outlook  and  status-oriented  approach  which attaches social and economic disabilities to a  person belonging to a scheduled caste and that  is  why certain favoured treatment is given to him by  the Constitution. Once such a person ceases to be a  Hindu  and  becomes  a  Christian,  the  social  and  economic  disabilities  arising  because  of  Hindu  religion cease and hence it is no longer necessary to  give him protection and for this reason he is deemed  not to belong to a scheduled caste. But when he is  reconverted  to  Hinduism,  the  social  and  economic  disabilities once again revive and become attached  to  him  because  these  are  disabilities  inflicted  by  Hinduism. A Mahar or a Koli or a Mala would not be  recognised as anything but a Mahar or a Koli  or a  Mala after  reconversion to Hinduism and he would  suffer from the same social and economic disabilities  from which he suffered before he was converted to  another  religion.  It  is,  therefore,  obvious  that  the  object  and  purpose  of  the  Constitution  (Scheduled  Castes) Order, 1950 would be advanced rather than  retarded by taking the view that on reconversion to  Hinduism,  a  person  can  once  again  become  a

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member  of  the  scheduled  caste  to  which  he  belonged prior to his conversion.”  

(Emphasis added)

11. The aforesaid pronouncement has to be understood from  

constitutional and social perspective as the Court has viewed  

that there is no rational principle why should a person, who has  

embraced another religion should not be able to come back to  

his  caste,  and  further  the  object  and  purpose  of  the  

Constitution  (Scheduled  Castes)  Order,  1950  would  be  

advanced if, on reconversion, to his original religion, he would  

become a member of his original caste and not suffer from the  

same social and economic disabilities.  

12. Before the Constitution Bench, in Y. Mohan Rao (supra),  

the question arose whether a person whose parents belong to a  

scheduled caste before their conversion to Christianity can, on  

conversion  or  re-conversion  to  Hinduism,  be  regarded  as  a  

member of  the Scheduled Caste so as to be eligible for  the  

benefit  of  reservation  of  seats  for  scheduled  castes  in  the  

matter of admission to a medical college.  The parents of the  

respondent  therein  originally  professed  Hindu  religion  and  

belonged to Madiga caste which is admittedly a caste deemed  

to  be  a  scheduled  caste  in  the  State  of  Andhra  Pradesh as

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specified  in  Part  I  of  the  schedule  to  the  Constitution  

(Scheduled  Castes)  Order,  1950.   The  respondent  was  born  

after the conversion, that is to say, he was born of Christian  

parents  and  he  had  got  himself  converted  to  Hinduism  on  

September  20,  1973  from  Andhra  Pradesh  Arunchatiya  

Sangham  stating  that  he  had  renounced  Christianity  and  

embraced Hinduism after going through Suddhi ceremony and  

he was thereafter  received back into Madiga caste of  Hindu  

fold.   On the  strength  of  the  certificate,  he  had applied  for  

admission in respect of the reserved seat to Guntur Medical  

College.  Initially he was provisionally selected for admission,  

but his selection was cancelled as he was not Hindu by birth.  

On a writ petition being filed, the High Court referred to the  

Constitution (Scheduled Castes) Order, 1950 and opined that a  

candidate,  in  order  to  be  eligible  for  a  seat  reserved  for  

scheduled caste, need not belong to a scheduled caste by birth  

and  when  such  a  stipulation  is  made  by  the  Government  

Notification, it has travelled beyond the 1950 order.   The view  

expressed by the learned Single Judge in the writ petition was  

accepted by the Division Bench.  It was contended by the State  

before  the  larger  Bench  that  when  the  respondent  was

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converted  to  Hinduism,  he  did  not  automatically  become  a  

member of the Madiga caste, but it was open to the members  

of the Madiga caste to accept him within their fold and it was  

only if he was so accepted, that he could have claimed to have  

become a member of the said caste.  The Constitution Bench  

referred to the three-Judge Bench in C.M. Arumugam (supra)  

and posed the issue in the following manner:  

“Now, before we proceed to consider this contention,  it is necessary to point out that there is no absolute  rule applicable in all cases that whenever a member  of a caste is converted from Hinduism to Christianity,  he loses his membership of the caste.  This question  has  been  considered  by  this  Court  in  C.  M.  Arumugam v. S. Rajgopal and it has been pointed  out there that ordinarily it is true that on conversion  to Christianity, a person would cease to be a member  of the caste to which he belongs, but that is not an  invariable rule.  It would depend on the structure of  the caste and its rules and regulations.  There are  some castes, particularly in South India, where this  consequence  does  not  follow  on  conversion,  since  such  castes  comprise  both  Hindus  and  Christians.  Whether  Madiga  is  a  caste  which  falls  within  this  category is a debatable question.  The contention of  the respondent in his writ petition was that there are  both Hindus and Christians in Madiga caste and even  after  conversion  to  Christianity,  his  parents  continued  to  belong  to  Madiga  caste  and  he  was,  therefore, a member of Madiga caste right from the  time of his birth.  It is not necessary for the purpose  of the present appeal to decide this question.  We  may assume that, on conversion to Christianity, the  parents of the respondent lost their membership of  Madiga  caste  and  that  the  respondent  was,  therefore,  not a Madiga by birth.   The question is:

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could the respondent become a member of Madiga  caste on conversion to Hinduism?  That is a question  on which considerable light is thrown by the decision  of this Court in C.M. Arumugam (supra).”

Thereafter,  the  Court  accepting  the  principle  stated  in  

C.M.  Arumugam (supra)  proceeded  to  opine  that  the  

reasoning given in the said judgment has to be accepted and  

made applicable to a case where the parents of a person are  

converted from Hinduism to Christianity and he is born after  

their conversion and has subsequently embraced Hinduism.  In  

addition  to  the  conversion,  he  has  to  be  accepted  by  the  

members of the caste and is taken as a member within its fold.  

In that context, the Court ruled thus:

“The reasoning on which this decision proceeded is  equally applicable in a case where the parents of a  person are converted from Hinduism to Christianity  and  he  is  born  after  their  conversion  and  on  his  subsequently embracing Hinduism, the members of  the caste to which the parents belonged prior to their  conversion accept him as a member within the fold.  It is for the members of the caste to decide whether  or not to admit a person within the caste.  Since the  caste is a social combination of persons governed by  its  rules  and  regulations,  it  may,  if  its  rules  and  regulations so provide, admit a new member just as  it  may  expel  an  existing  member.   The  only  requirement for admission of a person as a member  of the caste is the acceptance of the person by the  other members of the caste, for, as pointed out by  Kirshnaswami Ayyangar,  J.,  in    Durgaprasada Rao    v. Sudarsanaswami  7  ,   “in matters affecting the well    

7 AIR 1940 Mad 513 : ILR 1940 Mad 653 : (1940) 1 MLJ 800

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being or composition of a caste, the caste itself is the  supreme  judge”.   (emphasis  supplied).   It  will,  therefore, be seen that on conversion to Hinduism, a  person born of Christian converts would not become  a member of the caste to which his parents belonged  prior to their conversion to Christianity, automatically  or as a matter of course, but he would become such  member, if the other members of the caste accept  him as a member and admit him within the fold.”

[underlining is ours]

13. From the aforesaid paragraph, it is plain as day that if the  

parents  of  a  person  are  converted  from  Hinduism  to  

Christianity and he is born after the conversion and embraces  

Hinduism and the members of the caste accept him, he comes  

within the fold of the caste.   

14. Mr.  Naphade,  learned  senior  counsel  for  the  appellant  

would  contend  that  the  reasoning  that  has  been  made  

applicable to the parents, there is no reason or justification for  

not applying the said principle to the grandparents.  Learned  

counsel  for  the  State,  per  contra,  would  contend  that  the  

Constitution Bench has not laid down any principle as regards  

the grandparents and the same is with the avowed purpose as  

it  cannot cover several generations.  In this regard, we may  

profitably  refer  to  a  three-Judge  Bench  decision  in  Kailash

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Sonkar V. Maya Devi8.  In the said case, the Court posed the  

issue thus:

“The knotty and difficult, puzzling and intricate issue  with which we are faced is, to put it shortly, “what  happens if a member of a scheduled caste or tribe  leaves  his  present  fold  (Hinduism)  and  embraces  Christianity or  Islam or any other religion” — does  this amount to a complete loss of the original caste  to which he belonged for ever and, if so, if he or his  children choose to abjure the new religion and get  reconverted to the old religion after performing the  necessary  rites  and  ceremonies,  could  the  original  caste revive? The serious question posed here arose  and has formed the subject-matter of a large catena  of decisions starting from the year 1861, traversing a  period of about a century and a half, and culminating  in  a  decision  of  this  Court  in  the  case  of  G.M.  Arumugam v. S. Rajagopal.”

15. The Court,  after  referring to  several  decisions  including  

the decision in C.M. Arumugam (supra), has held thus:

“31. In  our  opinion,  the  main  test  should  be  a  genuine intention of the reconvert to abjure his new  religion and completely dissociate himself from it. We  must  hasten to  add here that  this  does not  mean  that  the  reconversion  should  be  only  a  ruse  or  a  pretext or a cover to gain mundane worldly benefits  so that the reconversion becomes merely a show for  achieving  a  particular  purpose  whereas  the  real  intention may be shrouded in mystery. The reconvert  must exhibit a clear and genuine intention to go back  to his old fold and adopt the customs and practices  of the said fold without any protest from members of  his erstwhile caste. In order to judge this factor, it is  not  necessary  that  there  should  be  a  direct  or  conclusive proof of the expression of the views of the  community  of  the  erstwhile  caste  and it  would  be  

8  (1984) 2 SCC 91

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sufficient compliance of this condition if no exception  or protest is lodged by the community members, in  which  case  the  caste  would  revive  on  the  reconversion of the person to his old religion.

32. Another aspect which one must not forget is that  when a child is born neither has he any religion nor is  he capable of choosing one until he reaches the age  of  discretion and acquires proper  understanding of  the situation. Hence, the mere fact that the parents  of  a  child,  who  were  Christians,  would  in  ordinary  course get the usual baptism certificate and perform  other ceremonies without the child knowing what is  being  done  but  after  the  child  has  grown  up  and  becomes fully mature and able to decide his future,  he ought not to be bound by what his parents may  have  done.  Therefore,  in  such  cases,  it  is  the  intention  of  the  convertee  which  would  determine  the revival of the caste. If by his clear and conclusive  conduct  the person reconverts to  his old faith and  abjures  the  new religion  in  unequivocal  terms,  his  caste automatically revives.”

16. What is important for our purpose is paragraph 34 of the  

said decision, which is as follows:

“In  our  opinion,  when  a  person  is  converted  to  Christianity or some other religion the original caste  remains under eclipse and as soon as during his/her  lifetime  the  person  is  reconverted  to  the  original  religion  the  eclipse  disappears  and  the  caste  automatically revives. Whether or not the revival of  the caste depends on the will and discretion of the  members of the community of the caste is a question  on which we refrain from giving any opinion because  in the instant case there is overwhelming evidence to  show  that  the  respondent  was  accepted  by  the  community of her original Katia caste. Even so, if the  fact  of  the  acceptance  by  the  members  of  the  community  is  made  a  condition  precedent  to  the  revival  of  the  caste,  it  would  lead  to  grave

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consequences  and  unnecessary  exploitation,  sometimes motivated by political considerations. Of  course, if apart from the oral views of the community  there  is  any  recognised  documentary  proof  of  a  custom or code of conduct or rule of law binding on a  particular caste, it may be necessary to insist on the  consent of the members of the community, otherwise  in  normal  circumstances  the  case  would  revive  by  applying  the  principles  of  doctrine  of  eclipse.  We  might pause here to add a rider to what we have said  i.e. whether it appears that the person reconverted  to the old religion had been converted to Christianity  since several generations, it may be difficult to apply  the  doctrine  of  eclipse  to  the  revival  of  caste.  However, that question does not arise here.”

[Emphasis added]

17. Learned counsel for the State has laid immense emphasis  

on  the  last  part  of  the  aforequoted  paragraph  wherein  the  

Court  has  observed  that  in  a  case  where  the  person  

reconverted  to  the  old  religion  had  been  converted  to  

Christianity  since  several  generations,  it  may  be  difficult  to  

apply  the  doctrine  of  eclipse  to  the  relevant  caste.   Mr.  

Naphade, learned senior counsel would contend that the three-

Judge  Bench  has  not  referred  to  the  Constitution  Bench  

decision in Y. Mohan Rao (supra) and had that been adverted  

to, in all possibility, the Court could have held if it could travel  

to  the  immediate  generation,  there  was  no  warrant  or  

justification not to take in its fold the grandparents.  His further

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submission is in the case at hand, it is not a case of several  

generations, but only the grandparents.   

18. In this context, a reference may be made to the authority  

in  S. Anbalagan v. B. Devarajan and others9. In the said  

case, the Court dwelt upon the legal position in regard to the  

caste, their status on conversion, or reconversion to Hinduism.  

After referring to various authorities, namely,  Administrator-

General  of  Madras  v.  Anandachari10,  Muthusami  

Mudaliar  v.  Masilamani (supra),  Gurusami  Nadar  v.  

Irulappa  Konar11,   Rajagopal  v.  Armugam12,  Perumal  

Nadar  v.  Ponnuswami13,  Vermani  v.  Vermani14,  

Durgaprasada  Rao (supra)  and  Chatturbhuj  Vithaldas  

Jasani v. Moreshwar Parashram15, came to hold as follows:

“These  precedents,  particularly  those  from  South  India, clearly establish that no particular ceremony is  prescribed for reconversion to Hinduism of a person  who had earlier  embraced another  religion.  Unless  the  practice  of  the  caste  makes  it  necessary,  no  expiatory rites need be performed and, ordinarily, he  regains  his  caste  unless  the  community  does  not  accept him.  In fact,  it  may not be accurate to say  that he regains his caste; it may be more accurate to  say that he never lost his caste in the first instance  

9  (1984) 2 SCC 112 10  ILR 9 Mad 342 11  1934 MLJ 389; AIR 1934 Mad 630 12  (1969) 1 SCR 254 13  (1971) 1 SCR 49 14  AIR 1943 Lah 51: 205 IC 290 15  1954 SCR 817

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when he embraced another religion. The practice of  caste however irrational it may appear to our reason  and however repugnant it may appear to our moral  and  social  sense,  is  so  deep-rooted  in  the  Indian  people that its mark does not seem to disappear on  conversion to a different religion.  If it disappears, it  disappears  only  to  reappear  on  reconversion.  The  mark  of  caste  does  not  seem  to  really  disappear  even  after  some  generations  after  conversion. In  Andhra Pradesh and in Tamil Nadu, there are several  thousands  of  Christian  families  whose  forefathers  became Christians and who, though they profess the  Christian religion, nonetheless observe the practice  of  caste.  There  are  Christian  Reddies,  Christian  Kammas,  Christian  Nadars,  Christian  Adi  Andhras,  Christian  Adi  Dravidas  and  so  on.  The  practice  of  their  caste  is  so  rigorous  that  there  are  intermarriages with Hindus of the same caste but not  with  Christians  of  another  caste.  Now,  if  such  a  Christian becomes a Hindu, surely he will  revert to  his original caste, if he had lost it at all. In fact this  process goes on continuously in India and generation  by  generation  lost  sheep  appear  to  return  to  the  caste-fold  and  are  once  again  assimilated  in  that  fold. This appears to be particularly so in the case of  members  of  the  Scheduled  Castes,  who  embrace  other religions in their quest for liberation, but return  to their old religion on finding that their disabilities  have clung to them with great tenacity. We do not  think  that  any  different  principle  will  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.”

[Underlining is ours]

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Thus, in the aforesaid case the Court has ruled that there  

is no reason that any different principle will apply to a person  

whose forefathers had abandoned Hinduism.

19. In  Puneet Rai v. Dinesh Chaudhary16, S.B. Sinha, J. in  

his concurring opinion has observed thus:

“30. In  Caste and the Law in India by Justice S.B.  Wad  at  p.  30  under  the  heading  “Sociological  Implications”, it is stated:

“Traditionally, a person belongs to a caste in  which he is  born.  The caste of  the parents  determines  his  caste  but  in  case  of  reconversion  a  person  has  the  liberty  to  renounce his casteless status and voluntarily  accept his original caste. His caste status at  birth  is  not  immutable.  Change  of  religion  does not  necessarily  mean loss  of  caste.  If  the  original  caste  does  not  positively  disapprove, the acceptance of the caste can  be presumed. Such acceptance can also be  presumed if he is elected by a majority to a  reserved seat. Although it appears that some  dent  is  made  in  the  classical  concept  of  caste,  it  may  be  noticed  that  the  principle  that  caste  is  created  by  birth  is  not  dethroned. There is also a judicial recognition  of  caste  autonomy  including  the  right  to  outcaste a person.”

31. If  he  is  considered  to  be  a  member  of  the  Scheduled  Caste,  he  has  to  be  accepted  by  the  community.”

16  (2003) 8 SCC 204

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20. In  State of Kerala & Anr. v. Chandramohanan17, the  

appellant  had  lodged  a  complaint  against  the  respondent  

alleging  that  he  had  taken  one  eight  year  old  girl  to  the  

classroom in Pattambi Government U.P. School with an intent  

to dishonour and outrage her modesty.  The said complaint was  

treated as  first  information  report  under  Section  509 of  the  

I.P.C.  The Investigating Officer, during investigation, came to  

know  that  the  father  of  the  victim  belonged  to  Mala  Aryan  

community, which is considered to be a Scheduled Tribe in the  

State  of  Kerala  and  lodged  another  FIR  charging  the  

respondent under Section 3(1)(xi) of the Scheduled Castes and  

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,  

‘the 1989 Act’) as well as under Section 509 of the I.P.C.  Being  

aggrieved by  the said  order,  the respondent  filed a  petition  

under  Section  482  of  the  Code  of  Criminal  Procedure,  for  

quashing of the charges framed under Section 3(1)(xi) of the  

1989  Act  and  the  High  Court  took  the  view  that  since  the  

victim’s  parents  had  embraced  Christianity,  the  victim  had  

ceased to be a member of the Scheduled Tribe and accordingly  

quashed  the  charges  in  respect  of  the  said  offences.   The  

three-Judge Bench referred to Article 342 of the Constitution,  17  (2004) 3 SCC 429

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the object of the said Article which is meant to provide right for  

the  purpose  of  grant  of  protection  to  the  Scheduled  Tribes  

having regard to the economic and educational backwardness  

wherefrom  they  suffer,  the  Constitution  (Scheduled  Tribes)  

Order,  1950 made in terms of  the aforesaid provisions,  The  

Customary Laws of Muda and Oraon by Dr. Jai Prakash Gupta,  

Tribal India: A Profile in Indian Ethnology by K.L. Bhowmik, the  

decisions in Nityanand Sharma v. State of Bihar18, Puneet  

Rai (supra),  N.E.  Horo  v.  Jahanara  Jaipal  Singh19 and  

thereafter held that:-

“Before a person can be brought within the purview  of the Constitution (Scheduled Tribes) Order,  1950,  he must belong to a tribe. A person for the purpose  of  obtaining  the  benefits  of  the  Presidential  Order  must fulfil the condition of being a member of a tribe  and  continue  to  be  a  member  of  the  tribe.  If  by  reason of  conversion  to  a  different  religion  a  long  time back, he/his ancestors have not been following  the  customs,  rituals  and  other  traits,  which  are  required to be followed by the members of the tribe  and even had not been following the customary laws  of succession, inheritance, marriage etc. he may not  be accepted to be a member of a tribe. In this case,  it has been contended that the family of the victim  had been converted about 200 years back and in fact  the father of the victim married a woman belonging  to a Roman Catholic, wherefrom he again became a  Roman Catholic. The question, therefore, which may  have  to  be  gone  into  is  as  to  whether  the  family  continued to be a member of a Scheduled Tribe or  

18  (1996) 3 SCC 576 19  (1972) 1 SCC 771

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not.  Such a question can be gone into only during  trial.”

21. After  so  holding,  the  Court  referred  to  in  extenso  the  

decision in C.M. Arumugam (supra) and came to rule thus:-

“18. The aforementioned decision is,  thus,  also an  authority for the proposition that upon conversion, a  person may be governed by a different law than the  law governing the community to which he originally  belonged  but  that  would  not  mean  that  notwithstanding  such  conversion,  he  may  not  continue to be a member of the tribe.

19. Learned counsel for the appellant has drawn our  attention  to  the  circulars  issued  by  the  State  of  Kerala with a view to show that the members of the  tribes are being treated in the same capacity despite  conversion. We are afraid that such circulars being  not  law  within  the  meaning  of  Article  13  of  the  Constitution of India, would be of no assistance.  

20. We, therefore, are of the opinion that although  as a broad proposition of law it cannot be accepted  that merely by change of religion a person ceases to  be  a  member  of  the  Scheduled  Tribe,  but  the  question as to whether he ceases to be a member  thereof  or  not  must  be  determined  by  the  appropriate court as such a question would depend  upon the facts of each case. In such a situation, it  has  to  be  established  that  a  person  who  has  embraced  another  religion  is  still  suffering  from  social disability and also following the customs and  traditions  of  the  community,  which  he  earlier  belonged to. Under such circumstances, we set aside  the order under appeal and remit the same to the  Sessions Court, Palakkad, to proceed in accordance  with law.”

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22. At this juncture, we are disposed to think that reference to  

certain reports and articles would be profitable for the purpose  

of  understanding  the  ground  reality  and  appreciate  factual  

score in proper perspective.  In the article, namely, “Dalits in  

India” by James Massey, B.R. Ambedkar, as is reflected from  

the said article,  has devoted two long essays on the subject  

under  the  title  “Christianising  the  Untouchables”  and  “The  

Condition  of  the  Convert”.   Speaking  about  the  general  

conditions  of  Christians  Dalits,  Ambedkar  had  put  a  direct  

challenge by saying:

“It is necessary to bear in mind that Indian Christians  are drawn chiefly from the Untouchables (Dalits) and,  to  a  much  less  extent  from  low  ranking  Shudra  castes.   The  social  services  of  Missions  must  therefore be judged in the light of the needs of these  classes.   What  are  those  needs?   The  services  rendered by the Missions in the fields of education  and medical relief are beyond the ken of the Indian  Christians.  They go mostly to benefit the high caste  Hindu.”

23.  James  Massey  has  analysed  the  reasons  ascribed  by  

Ambedkar by stating:-

“What  has  Christianity  achieved  in  the  way  of  changing  the  mentality  of  the  convert?   Has  the  Untouchable  convert  risen  to  status  of  the  touchables?   Have  the  touchable  and  untouchable  converts  discarded  caste?   Have  they  ceased  to  worship their old pagan gods and to adhere to their

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old  pagan  superstitions?   These  are  far-reaching  questions.  They must be answered and Christianity  in India must stand or fall by the answers it gives to  these questions.”

24. James  Massey,  the  learned  author  has  referred  to  the  

observations  of  Karnataka  Backward  Classes  Commission,  

1952.  The relevant part is as follows:-

“A Scheduled Caste (man) might have made some  progress,  or  might  have  embraced  Islam  or  Christianity, and thereby the disabilities, under which  he suffered as a result of untouchability, might have,  to some extent, disappeared.  But the fact remains  that  such  castes,  tribes  and  racial  groups  still  continue to suffer under other social, educational and  economic handicaps and taboos.”

25. Archbishop George Zur, Apostolic Pro-Nuncio to India  

in his inaugural address to the Catholic Bishops Conference of  

India,  (CBCI)  in  the  meeting  held  in  Pune  during  December  

1991, made the following observations:

“Though  Catholics  of  the  lower  castes  and  tribes  form 60 per cent of Church membership they have  no  place  in  decision-making.   Scheduled  caste  converts are treated as low caste not only by high  caste  Hindus  but  by  high caste  Christians  too.   In  rural areas they cannot own or rent houses, however,  well-placed  they  may  be.   Separate  places  are  marked  out  for  them  in  the  parish  churches  and  burial  grounds.   Inter-caste  marriages  are  frowned  upon  and  caste  tags  are  still  appended  to  the  Christian names of high caste people.  Casteism is  rampant among the clergy and the religious.  Though  Dalit Christians make 65 per cent of the 10 million  Christians in the South, less than 4 per cent of the

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parishes are entrusted to Dalit priests.  There are no  Dalits among 13 Catholic bishops of Tamil Nadu or  among the Vicars-general and rectors of seminaries  and directors of social assistance centres.”   

26. Mandal  Commission  report  of  the  Backward  Classes  

Commission  1980,  speaking  about  the  Indian  Christians  in  

Kerala had expressed thus:-

“....  Christians  in  Kerala  are  divided  into  various  denominations on the basis of beliefs and rituals and  into various ethnic groups on the basis of their caste  background  ....  even  after  conversion,  the  lower  caste  converts  were  continued  to  be  treated  as  Harijans by all sections of the society including the  Syrian Christians,  even though with conversion the  former ceased to be Harijans and untouchables.....  In  the  presence  of  rich  Syrian  Christians,  the  Harijan  Christians  had  to  remove  their  head-dress  while  speaking with their Syrian Christian masters.  They  had to keep their mouth closed with a hand ........  It  was found that the Syrian and Pulaya members of  the same Church conduct religious rituals separately  in separate buildings ...  Thus lower caste converts to  a  very  egalitarian  religion  like  Christianity,  ever  anxious  to  expand  its  membership,  even  after  generations were not able to efface the effect of their  caste background.”

27. A Church of South India Commission in 1964 investigating  

the  grievances  of  Dalit  Christians,  whether  they  split  off  or  

remain with the Church of South India, wrote:-

“First  and  foremost  is  the  feeling  that  they  are  despised, not taken seriously, overlooked, humiliated  or simply forgotten.  They feel that again and again  affairs in the diocese are arranged as if they did not  exist.  Caste appellations are still occasionally used

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in Church when they have been abandoned even by  Hindus.   Backward  class  desires  and  claims  seem  again and again to be put on the waiting list, while  projects which they feel aim chiefly at the benefit of  the  Syrian  community  seem  to  get  preferential  consideration.   In  appointments,  in  distribution  of  charity, in pastoral care and in the attitude shown to  them, in disputes with the authorities, the treatment  they receive, when compared with that received by  their Syrian brothers, suggests a lack of sympathy,  courtesy and respect.”

28. Chinappa Commission Report (1990) states:-  

“By and large, the Christian community in Karnataka  is  an  advanced  community  except  for  SC  and  ST  converts,  whose  position  has  not  improved  very  much  for  the  better.   Thanks  to  the  all  pervasive  caste system which has penetrated the barriers  of  religion also, SC and ST converts to Christianity and  their descendants continue, to a great degree, to be  victims of the same social injustice to which the SCs  and STs are subjects”.

29. Dr.  Y.  Antony  Raj,  the  author  of  “Social  Impact  of  

Conversion” comments:

“The mass conversion from Christianity to Hinduism,  Islam  and  Buddhism  is  often  explained  as  the  frustration of the coverts to Christianity.  Devadason  names  the  reason  for  such  reconversion  as  ‘disillusionment’  among  the  CSCO.   “Till  recently”  says  he,  “the  conversion  to  Christianity  was  considered an attractive proposition.  That trend has  slowed down, if not stopped.   This was because of  the disillusionment among the Harijan converts, who  discovered  that  they  had  carried  with  them  their  caste stigma and that inter-caste marriage and other  contacts continued to be as difficult as before.”

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30. As per the analysis made by John C.B. Webster, in  

the book, “The Dalit Christians: A History”, in Chapter III  

titled  “The  Politics  of  Numbers”,  Dr.  Ambedkar,  being  

aware of the continuing problems of Dalit Christians had  

ruled out conversion to Christianity.  To quote the learned  

author:

“He  was  certainly  aware  of  them.  In  what  was  probably  the  most  perceptive  analysis  of  the  Christian  community  from  this  period,  Ambedkar  noted that caste Hindus were the chief beneficiaries  of Christian educational and medical work, that caste  continued  within  the  churches,  and  that  Dalits  suffered  from the same disabilities  after  as  before  conversion  to  Christianity.   More  importantly,  Christianity  failed the political test.  For one thing,  while Christianity may have inspired Dalit converts to  change  their  social  attitudes,  it  had  not  inspired  them to take practical steps to redress the wrongs  from which they suffered.”

31. In this context, it will be fruitful to make a reference to the  

authority  in  State  of  M.P.  and  Another  v.  Ram Kishna  

Balothia  and  Another20.   In  the  said  case,  the  two-Judge  

Bench  was  called  upon  to  deal  with  the  validity  of  the  

Scheduled  Castes  and  Scheduled  Tribes  (Prevention  of  

Atrocities) Act, 1989, especially Section 18 that stipulates that  

Section  438  of  the  CrPC  will  not  apply  to  the  persons  

committing an offence under the said Act.  While upholding the  20  (1995) 3 SCC 221

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validity  of  the  provisions  and annulling  the judgment  of  the  

High Court  of  M.P.,  the learned Judges have referred to  the  

Statement  of  Objects  and  Reasons  accompanying  the  

Scheduled Castes and Scheduled Tribes Bill, 1989 when it was  

introduced in the Parliament.  To quote:

“It  sets  out  the  circumstances  surrounding  the  enactment  of  the  said  Act  and  points  to  the  evil  which  the  statute  sought  to  remedy.  In  the  Statement of Objects and Reasons it is stated:

“Despite  various  measures  to  improve  the  socio-economic  conditions  of  the  Scheduled  Castes and the Scheduled Tribes, they remain  vulnerable.  They  are  denied  number  of  civil  rights. They are subjected to various offences,  indignities,  humiliations and harassment.  They  have, in several brutal incidents, been deprived  of  their  life  and  property.  Serious  crimes  are  committed against them for  various historical,  social and economic reasons

2. … When they assert their rights and resist  practices  of  untouch-ability  against  them  or  demand statutory minimum wages or refuse to  do any bonded and forced labour,  the vested  interests  try  to  cow them down and  terrorise  them.  When  the  Scheduled  Castes  and  the  Scheduled  Tribes  try  to  preserve  their  self- respect or honour of their women, they become  irritants  for  the  dominant  and  the  mighty.  Occupation  and  cultivation  of  even  the  Government  allotted  land  by  the  Scheduled  Castes  and  Scheduled  Tribes  is  resented  and  more  often  these  people  become  victims  of  attacks by the vested interests.  Of late,  there  has been an increase in the disturbing trend of  commission of certain atrocities like making the

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Scheduled  Caste  persons  eat  inedible  substances like human excreta and attacks on  and mass killings of helpless Scheduled Castes  and  Scheduled  Tribes  and  rape  of  women  belonging  to  the  Scheduled  Castes  and  the  Scheduled  Tribes….  A  special  legislation  to  check  and  deter  crimes  against  them  committed by non-Scheduled Castes and non- Scheduled  Tribes  has,  therefore,  become  necessary.”

The above statement graphically describes the social  conditions which motivated the said legislation. It is  pointed out in the above Statement of Objects and  Reasons  that  when  members  of  the  Scheduled  Castes and Scheduled Tribes assert their rights and  demand statutory protection, vested interests try to  cow  them  down  and  terrorise  them.  In  these  circumstances,  if  anticipatory  bail  is  not  made  available to persons who commit such offences, such  a  denial  cannot  be  considered  as  unreasonable  or  violative  of  Article  14,  as  these  offences  form  a  distinct class by themselves and cannot be compared  with other offences.”

32. We  have  referred  to  the  aforesaid  materials  and  the  

observations  singularly  for  the  purpose  that  there  has  been  

detailed  study  to  indicate  the  Scheduled  Castes  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 (supra) has clearly laid down that if a  

person born to Christian parents, who, belonging to Scheduled  

Caste  had  converted  themselves  to  Christianity,  the  said

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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.  

33. As we understand the authority it does not lay down that  

it  only  would  apply  to  the  parents  and  exclude  the  

grandparents.  At this stage, two decisions are required to be  

properly understood.  In  Kailash Sonkar (supra),  the three-

Judge  Bench  while  applying  the  doctrine  of  eclipse  to  the  

original  caste  and  the  principle  of  revival  applying  the  said  

doctrine, has observed whether to a situation where the person  

reconverted  to  the  old  religion  had  been  converted  to  

Christianity  since  several  generations,  it  may  be  difficult  to  

apply the doctrine of eclipse to the revival of caste.  The Court,  

by way of abundant caution, has also proceeded to state that  

the  question  did  not  arise  there.   That  apart,  it  has  not  

expressed any opinion.  Therefore, it cannot be treated as a  

precedent for the purpose that it  would only encompass the

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previous generation.  In S. Anbalagan (supra) 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 last  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 (supra) and does not run counter to it.  One may  

raise a question how does one find out about the forefathers.

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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.    

34. 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.   

35. In the case at hand, as far as the first aspect is concerned,  

as  we  have  stated  hereinbefore,  there  is  no  dispute.   If  a

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person who is born to Christian parents who had converted to  

Christianity  from  the  Scheduled  Caste  Hindu  can  avail  the  

benefit  of  the caste certificate after  his embracing Hinduism  

subject to other qualifications, there cannot be any soundness  

of  logic  that  he cannot avail  the similar  benefit  because his  

grandparents were converted and he was born to the parents  

who were Christians.  They must have belonged to that caste  

and after conversion the community has accepted.  Our view is  

fortified by the authority in  S. Anbalagan (supra).  Thus, the  

reasoning as ascribed by the Scrutiny Committee as well as by  

the High Court on this score is unacceptable.   

36. As  far  as  the  community  acceptance  is  concerned,  Mr.  

Naphade  has  drawn  our  attention  to  the  enquiry  report  

submitted  by  the  expert  agency,  conclusion  of  which  reads  

thus:

“CONCLUSION

Thus, the anthropological study has revealed that  the claimant K.P. Manu’s case father K.P. Paulose  and  his  mother  Kunjamma  belong  to  Christian  Community  of  Pulayan  origin.   The  investigation  has revealed they still profess Christianity.

In  the  Government  Circular  No.  18421/E2/87  SCSTDD dated 15.12.1987 it has been made clear  that the religious status of parents will  not affect

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the  caste  status  of  neo-converts  provided  they  become major and copy of the said GO is marked  here  as  Document-7.   So  the  claimant  after  becoming major  embraced Hinduism and revived  his  caste.   The  caste  organisation  to  which  he  belongs has also accepted his conversion.  It has  been found that he has a registered marriage with  Sylamma  belonging  to  Christian  community  of  Pulayan origin.   The claimant and his children do  not follow Christian religion.”

37. The  community  certificate  which  was  produced  by  the  

appellant is as follows:

“AKHILA BHARTA AYYAPPA SEVA SANAGHOM

HEAD OFFICE – KOTTAYAM

At the request of Mr. K.P. JOHN and his family  residing  in  Kanayannur  Taluk,  Mulamthuruthy  Village,  Ward-VI,  Kaniyamol  House,  the  persons  listed  below  is  converting  today  on  behalf  of  Ayyappa  Seva  Sangham  from  Christian  Pulayan  community  to  Hindu  Pulayan  community,  after  performing  Sudhi  Karma  according  to  the  Hindu  rites and customs.

The  new  names  adopted  are  mentioned  against the old names of the persons listed below:

 Kottayam – 5/2/1984

  General Secretary

No .

Old Name New  Name

Date of Birth Ag e

1. 2.

K.P. John K.P. Thomas

K.P. Manu K.P. Babu

31.1.1960 20.4.1968

23 15

For Akhila Bharata Ayyappa Seva Sangham

Sd/-

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General Secretary”  

38. Be  it  stated  here  that  the  said  “Sangham”  has  been  

recognised as one of the agencies by the Government of Kerala  

as  a  competent  organisation  to  issue  the  community  

certificate.  There is no doubt that the appellant had converted  

himself  and thereafter was accepted by the community.   He  

has been taken within its fold.

39.   At this juncture, certain findings recorded by the Scrutiny  

Committee require to be reproduced:

“The Committee examined the aspect whether the  aforementioned  decisions  can  have  any  application  to  the  claimant’s  conversion  to  Hinduism  in  1984.   The  Committee  noted  that  neither the claimant nor his parents was born as  Hindu  and  later  converted  to  Christianity  from  Hinduism.   In  fact  they  are  born  as  Christians.  Hence there is no element of re-conversion in the  claimant’s case.  Hence the question of reviving  caste status as Pulayan (SC) on the ground that  some of his ancestors were having Pulayan (SC)  status  does  not  arise.   The  claimant  traces  SC  (Pulayan)  status  from  generations  back  despite  the  fact  that  his  ancestors  in  the  descending  generation,  consistently  opted  to  renounce  Pulayan caste status and Hindu religious status by  converting  to  Christianity.   Ordinarily  one  gets  his/her caste on the basis of his/her parents.  In  other words, one shall be, on birth deemed to be  belonging to the caste of his/her parents.  In the  facts  and  circumstances  of  the  claimant’s  case,  the claimant and his parents were devoid of any  caste  identity  right  from  their  birth.   It  is

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significant  to  note  that  ten  years  after  his  conversion  to  Hinduism,  the  claimant  has  contracted marriage with a Christian lady, as per  Special  Marriage  Act.   Hence,  the  Committee  found  that  the  claimant’s  case  does  not  come  under the ambit of aforementioned verdicts.”

The said report has been given the stamp of approval by  

the High Court.   In the impugned order,  the Division Bench,  

after referring to the report, has held thus:

“The paternal as well as maternal grand father of the  appellant  belonged  to  Christian  community  and  professed Christian faith.   Patents of  the appellant  were  born  as  Christians  and  they  continued  to  profess Christianity.  The appellant also was born as  a Christian.  Annexure-I Certificate shows that in the  SSLC  book  he  is  shown  as  a  person  belonging  to  Christian religion. As rightly found by the respondent  there is no caste by name ‘Pulaya convert’.  Neither  the state government nor the revenue officials have  the power to effect any alteration in the caste name  contrary to the Presidential Order issued under the  authority  of  the  Constitution  of  India.   Appellant  cannot claim the caste status of Pulayan merely on  the ground that he embraced Hinduism at the age of  24.   His  claim  that  he  should  be  treated  as  one  belonging to scheduled caste community has been  rightly rejected by the respondent after considering  all relevant facts and the law on the subject.  Neither  the appellant nor his parents had enjoyed the caste  status of Pulayan.  Hence by embracing Hinduism at  the  age  of  24,  the  appellant  who  was  born  to  Christian parents and professed Christian faith is not  entitled to claim that he is Hindu-Pulaya.”

40. The aforesaid reasoning is contrary to the decisions  

of this Court and also to what we have stated hereinbefore.  

As far as marriage is concerned, in our considered opinion,

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that  should  not  have been considered as  the  central  and  

seminal facet to deny the benefit.  When the community has  

accepted and the community, despite the marriage, has not  

ex-communicated  or  expelled,  the  same  would  not  be  a  

disqualification.   

41. The committee, as we find, has placed reliance on S.  

Swvigaradoss  v.  Zonal  Manager,  F.C.I.21 The  said  

decision requires to be adverted to.  In the said case, the  

parents of the petitioner, initially belonged to Adi Dravid by  

caste,  hailing  from  Kattalai  village  in  Tirunelveli  District,  

Tamil  Nadu and they had, before his birth,  converted into  

Christian religion.  The petitioner had filed a suit contending,  

inter  alia,  that  after  he  had  become  a  major,  he  has  

continued  as  Adi  Dravid.   The  suit  was  decreed  but  

eventually,  it  was  reversed  in  second  appeal.   The  Court  

referred to Article 341(1) of the Constitution, decisions in B.  

Basavalingappa  v.  D.  Munichinnappa22,  Bhaiyalal  v.  

Harikishan Singh23,  Srish Kumar Choudury v. State of   

21  (1996) 3 SCC 100 22  AIR 1965 SC 1269 23  AIR 1965 SC 1557

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Tripura24,  Kumari  Madhuri  Patel  v.  Addl.   

Commissioner, Tribal Development25 and opined thus:

“The Courts, therefore, have no power except to give  effect to the notification issued by the President. It is  settled law that the Court would look into the public  notification under Article 341(1) or Article 342(1) for  a  limited  purpose.  The  notification  issued  by  the  President and the Act of Parliament under Scheduled  Castes  and  Scheduled  Tribes  Order  (Amendment)  Act, 1976 and the Schedules appended thereto can  be looked into for the purpose to find whether the  castes, races or tribes are (sic or) parts of or groups  within  castes,  races  or  tribes  shall  be  Scheduled  Castes for  the purposes of  the Constitution.  Under  the  Amendment  Act,  1976,  again  Parliament  has  included  or  excluded  from  schedules  appended  to  the Constitution which are now conclusive. Schedule  I relates to Scheduled Castes and Schedule II relates  to  Scheduled  Tribes.  Christian  is  not  a  Scheduled  Caste under the notification issued by the President.  In view of the admitted position that the petitioner  was born of Christian parents and his parents also  were  converted  prior  to  his  birth  and  no  longer  remained to be Adi-Dravida, a Scheduled Caste for  the purpose of Tirunelveli District in Tamil Nadu as  notified by the President, petitioner cannot claim to  be  a  Scheduled  Caste. In  the  light  of  the  constitutional scheme civil  court has no jurisdiction  under Section 9 of CPC to entertain the suit. The suit,  therefore,  is  not  maintainable.  The  High  Court,  therefore,  was  right  in  dismissing  the  suit  as  not  maintainable  and  also  not  giving  any  declaration  sought for.”     

                                                        [Emphasis  added]

24  (1990) Supp SCC 220 25  (1994) 6 SCC 241

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42. The two principles that have been stated in the aforesaid  

paragraph are (i) that a court can look into the Notification by  

the  President  and  the  act  of  the  Parliament  under  the  

Scheduled  Castes  and Scheduled  Tribes  Order  (Amendment)  

Act, 1976 and the schedule appended thereto for the limited  

purpose to find whether the castes, races or tribes are parts or  

groups within the caste, races or tribes, especially scheduled  

castes for the purpose of Constitution, and it is because what  

has been included or excluded therein are conclusive; and (ii)  

that a person born to  Christian parents, who initially belonged  

to  the  Scheduled  Caste,  even  after  his  reconversion  cannot  

claim to be a Scheduled Caste. As far as first proposition of law  

is  concerned,  there  can  be no  cavil  over  the  same and  we  

respectfully concur.  

43. As far as the second principle is concerned, it is essential  

to note that the authorities of larger Bench in  Y. Mohan Rao  

(supra),  Kailash Sonkar (supra) and S. Anbalagan (supra)  

were not brought to the notice of the Court.  Irrefragably, the  

second principle runs contrary to the proposition laid down in  

the  Constitution  Bench  in  Y.  Mohan  Rao (supra)  and  the  

decisions rendered by the three-Judge Bench.  When a binding

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precedent is not taken note of and the judgment is rendered in  

ignorance or forgetfulness of the binding authority, the concept  

of  per  incuria comes  into  play.   In  A.R.  Antulay  v.  R.S.  

Nayak26,  Sabyasachi  Mukherji,  J.  (as  His  Lordship  then was)  

observed that:

“42. ....  ‘Per incuriam’ are those decisions given in  ignorance  or  forgetfulness  of  some  inconsistent  statutory provision or of some authority binding on  the court concerned, so that in such cases some part  of  the  decision  or  some  step  in  the  reasoning  on  which it  is  based,  is  found,  on that  account  to  be  demonstrably wrong.”

At a subsequent stage of the said authority, it has been  

held  that:

“47.  .... It is a settled rule that if a decision has been  given per incuriam the court can ignore it.”

44. In Union of India and Others v. R.P. Singh27, the Court  

observed thus:   

“In  Siddharam  Satlingappa  Mhetre v.  State  of  Maharashtra28,  while dealing with the issue of “per  incuriam”, a two-Judge Bench, after referring to the  dictum in  Young v. Bristol Aeroplane Co. Ltd29. and  certain  passages  from  Halsbury’s  Laws  of  England  and  Union  of  India  v.  Raghubir  Singh30,  had  ruled  thus:  

26  (1988) 2 SCC 602 27  (2014) 7 SCC 340 28  (2011) 1 SCC 694 29  1944 KB 718 30  (1989) 2 SCC 754

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“The analysis of English and Indian Law clearly  leads to the irresistible conclusion that not only  the judgment of a larger strength is binding on  a  judgment  of  smaller  strength  but  the  judgment of a coequal strength is also binding  on a Bench of Judges of coequal strength. In the  instant case, judgments mentioned in paras 124  and  125  are  by  two  or  three  Judges  of  this  Court. These judgments have clearly ignored a  Constitution  Bench  judgment  of  this  Court  in  Sibbia case31 which has comprehensively dealt  with  all  the  facets  of  anticipatory  bail  enumerated  under  Section  438  CrPC.  Consequently,  the  judgments  mentioned  in  paras  124  and  125  of  this  judgment  are  per  incuriam.”

Tested  on  the  aforesaid  principles,  it  can  safely  be  

concluded that the judgment in  S. Swvigaradoss (supra), as  

far as the second principle is concerned, is per incuriam.

45. In  the  instant  case,  the  appellant  got  married  to  a  

Christian lady and that has been held against him.  It has also  

been opined that he could not produce any evidence to show  

that he has been accepted by the community for leading the  

life of a Hindu.  As far as the marriage and leading of Hindu life  

are concerned,  we are of  the convinced opinion that,  in the  

instant  case,  it  really  cannot  be  allowed  to  make  any  

difference.  The community which is a recognised organisation  

by  the  State  Government,  has  granted  the  certificate  in  31  (1980) 2 SCC 565

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categorical  terms  in  favour  of  the  appellant.   It  is  the  

community  which  has  the  final  say  as  far  as  acceptance  is  

concerned,  for  it  accepts  the  person,  on  reconversion,  and  

takes him within its fold.  Therefore, we are inclined to hold  

that the appellant after reconversion had come within the fold  

of  the  community  and  thereby  became  a  member  of  the  

scheduled caste.  Had the community expelled him the matter  

would have been different.  The acceptance is in continuum.  

Ergo, the reasonings ascribed by the Scrutiny Committee which  

have  been  concurred  with  by  the  High  Court  are  wholly  

unsustainable.  

46. Consequently,  the  appeal  is  allowed  and  the  judgment  

and order of the High Court, findings of the Scrutiny Committee  

and  the  orders  passed  by  the  State  Government  and  the  

second  respondent  are  set  aside.   The  appellant  shall  be  

reinstated in service forthwith with all the benefits relating to  

seniority and his caste, and shall also be paid backwages upto  

75% within eight weeks from today.  There shall be no order as  

to costs.

............................................J.                                               [Dipak Misra]

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............................................J.                                                       [V. Gopala Gowda]

New Delhi February 26, 2015.