Hon'ble Rajan Roy,J.
(Per Rajan Roy, J.) This writ petition has been filed by Nasimuddin S/o Sri Muniruddin under Article 226 of the Constitution of India assailing the decision dated 24.11.2017 contained in Annexure-1 to the writ petition by which the District Level Caste Scrutiny Committee has held that the petitioner does not belong to the Scheduled Caste consequently the caste-certificate issued to him in this regard was fraudulent and illegal and has re-affirmed the earlier decision of the Committee dated 4.11.2016 after re-hearing the matter and deciding the same again after remand of the same by the Divisional Level Scrutiny Committee on 10.1.2017.
The contention of Sri Sharad Pathak, learned counsel for the petitioner was that the ancestors of the petitioner were Hindu. The last known ancestor of the petitioner was Kalu Hela and that the petitioner's family was engaged in traditional work of manufacturing and selling "soop", that he belongs to Hela Community which is a Scheduled Caste community and even after forced conversion to Islam the petitioner continued to follow the Hindu religion since birth and his family never gave up its original character of Hela community. Accordingly the caste-certificate was issued to the petitioner by the Tehsildar, Tehsil-Raniganj, in view of the provisions contained in the government order dated 4.4.2005 and 28.2.2013 which did not suffer from any error, but, without conducting a proper inquiry through the Vigilance Cell as was mandatory under the government orders and the decision of the Supreme Court in the case of Madhuri Patil, the District Level Caste Scrutiny Committee has erroneously held otherwise. He relied upon a decision of the Supreme Court reported in (2016)11 SCC 617, Mohammad Sadique v. Darbara Singh Guru, to contend that even Muslims could be issued Scheduled Caste-Certificates.
Learned Standing Counsel on the other hand submitted that the decision of the District Level Caste Scrutiny Committee was based on evidence collected during inquiry, both documentary and oral, therefore, the findings of fact recorded by the Committee based on such evidence was not liable to be interfered in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. There was ample evidence before the Committee in the form of documents showing him to be Muslim Pathan which is a General category and also his own admission in the form of recitals contained in the sale-deed dated 27.12.2002 by which he had purchased certain lands in Village Delhupur, to the effect that he did not belong to the Scheduled Caste, apart from the oral testimonies of persons belonging to the Muslim community collected during inquiry wherein they had stated that the customs and traditions of the Muslim community were followed by the petitioner and his family. Furthermore, he also contended that wife of the petitioner had contested as an O.B.C. candidate for the post of Pradhan and won the same. Thereafter the petitioner applied to the District Panchayat Raj Officer on 1.10.2015 for declaring Gram Panchayat Tawakkalpur as a General category seat for election to the post of Pradhan, but when the same was declined, he manipulated the issuance of a Scheduled Caste certificate in his favour claiming to belong to the "Hela" caste which is a Scheduled Caste, which was incorrect. He submitted that the decision relied upon by the petitioner does not support his case in view of the findings of fact recorded by the District Level Caste Scrutiny Committee.
Having heard the learned counsel for the parties and perused the records this Court finds that the District Level Caste Scrutiny Committee has recorded findings of fact holding that the petitioner did not belong to the "Hela" Scheduled Caste on the basis of documentary and oral evidence collected during inquiry. It has referred to a sale-deed by which certain lands were purchased by the petitioner wherein it had been categorically stated that neither the vendor nor the vendee belongs to the Scheduled Caste. This document is signed by the petitioiner. The impugned decision also refers to revenue records pertaining to "Bandobast Soyam" of 1330F relating to Khata No.44 wherein the ancestors of Nasimuddin have been mentioned as "Pathan" which is a General Category. A finding has been recorded that no person by the name of "Hela" resided in village Tawakkalpur and that in any case no such family tree had been placed before the Committee tracing the petitioner's ancestry to the said Kalu Hela.
As far as contention of the complainant that the wife of the petitioner had won the election of Pradhan as an O.B.C. candidate, the same was not accepted by the Committee on the ground that one's caste is determined on the basis of one's parentage and the traditions relating thereto. The impugned decision also refers to the oral statements of Mohd. Buddhu S/o Mohd. Rafeeq, Raees S/o Raziullah, Mohd. Mukeem S/o Mohd. Rafeeq, Nasir Ali S/o Shaukat Ali, Abdullah S/o Mohd. Nasir etc. to the effect that the petitioner belongs to the Muslim Pathan community. A finding has been recorded that the family of the petitioner had never been engaged in making and selling of "Soop". There are findings of fact which can not be interfered in writ jurisdiction.
The expression "Scheduled Caste" fell for consideration before the Supreme Court in the case of Guntur Medical College v. Y. Mohan Rao, (1976) 3 SCC 411, and it was held that it had a technical meaning as given to it by Clause (24) of Article 366 and it meant "such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Caste for the purposes of this Constitution". The President in exercise of power conferred upon him under Article 341 has issued the Constitution (Scheduled Castes) Order, 1950 (hereinafter rererred as ''Order 1950'). Paras 2 and 3 of the said Order read as under:
"2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XIII of the Schedule to this Order shall, in relation to the states to which thse Parts respectively relate, be deemed to be Scheduled Cstes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.
3. Notwithstanding anything contained in Para 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste."
As is evident from para-3 of the Order 1950, notwithstanding anything contained in para-2, no person who professes a religion different from the Hindu or Sikh Religion, shall be deemed to be a Member of a Scheduled Caste. The petitioner admittedly is neither a Hindu nor a Sikh.
However, in the case of S. Anbalagan v. B. Devarajan (1984) 2 SCC 112, the Supreme Court observed that if a Scheduled Caste Hindu embraces another religion in their quest for liberation, but subsequently returns to the original religion on finding that his disabilities have clung to him, then surely he will revert to his original caste. It was a case of conversion from Hindu Religion to Christianity and re-conversion to Hinduism. But this aspect would depend upon the facts of each case.
In Kailash Sonkar v. Maya Devi, (1984) 2 SCC 91, the Supreme Court was seized with the question - whether the loss of caste is absolute, irrevocable so as not to revive under any circumstance ? The Apex Court observed that "where a person belonging to a Scheduled Caste is converted to Cristianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where Members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion, however, does not at all accept or believe in the caste system, the loss of the caste would be final and complete." Kailash Sonkar's case was one of conversion to Christianity and not Islam just as was the case in S. Anbalagan (supra).
After sighting a few examples in paragraph 28(a) pertaining to South India and North Eastern States where persons after converting to Christianity retained their castes without violating the tenets of the new order or Religion, in paragraph 28(b), the Supreme Court observed that "in all other cases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion."
As per our knowledge, ''Islam' speaks of equality and does not approve of any caste system at all, therefore, as far as our understanding of the Islamic religion is concerned, it does not at all tolerate, accept or believe in Caste System.
The Supreme Court further observed in Kailash Sonkar's case (supra) - "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 re-converted to the original religion, the eclipse disappears and the caste automatically revives", but this would be a question of fact to be determined in each case.
It also observed that "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." this again would be a question of fact to be detrimental in each case.
In the present case admittedly the petitioner is a Muslim having been born of Muslim parents. He says that his forefathers had been forcibly converted to Islam. There is no assertion in the writ petition that the petitioner Nasimuddin had re-converted to Hinduism. What he says is that he has been following the customs and traditions of the "Hela" community which is a Scheduled Castes amongst the Hindus i.e. the original religion of the forefathers, in spite of having been born in a Muslim family however, this again is a question of fact which cannot be determined in writ jurisdiction, especially when the District Level Caste Scrutiny Committee has found it to be otherwise.
As far as the decision in the case of Mohd. Sadique (supra) is concerned, in the case of Mohd. Sadiq the Court upturned the judgment of the High Court on the ground that Mohd. Sadiq, though born to Muslim parents, there was evidence to establish that he had embraced Sikhism on 13.4.2006 and followed all rights and traditions of Sikh religion, and had been accepted by the Sikh community, meaning thereby on such re-conversion from Islam to Sikhism, his old caste of "Doom" stood revived. Furthermore, the Court found that the Scheduled Caste certificate issued to him had not been cancelled. The facts of the said case were very different from the facts of this case. There is nothing on record to show that the petitioner who was a Muslim having been born to Muslim parents had ever re-converted to Hinduism, therefore, the the said judgment is not applicable to the case at hand.
In view of the above, we are not inclined to consider the other pleas raised as we find that this is not a fit case for interference under Article 226 of the Constitution of India, however, considering the factual issues involved which cannot be adjudicated under Article 226, we leave it open for the petitioner to raise his claim before the Divisional Level Caste Scrutiny Committee or such other Forum or Court as may be available to him in law. With these observations we dismiss this writ petition.
(Rajan Roy,J.) (Shabihul Hasnain,J.) Order Date :- 30.08.2018 A.Nigam