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Judgment
K. Chandru, J.—The question that arises for consideration in this writ petition is whether an Indian Citizen professing Islam as his Religion
can be disqualified for being considered for a post in a public employment?
The posts of Curator, Epigraphist, Archaeological Officer come under the Archaeological department covered by the Tamil Nadu General
Subordinate Services. The Petitioner claims that he was fully qualified to hold the post. He had passed M.A. Tamil, M.A. History, P.G. Diploma in
Epigraphy and Archaeology and P.G. Diploma in Temple Arts. In his P.G. Diploma in Epigraphy and Archaeology conducted by the Department
of Archaeology, Government of Tamil Nadu in the year 1993-94, he came out in first class and stood first rank. The Petitioner is a Muslim by
religion. The second Respondent Tamil Nadu Public Service Commission (TNPSC) had issued an advertisement No. 216 calling for applications
for the posts of Epigraphist, Curator, Archaeological Officer and Junior Epigraphist. In respect of Curator, five vacancies were notified. It was
stated that the persons professing the Hindu Religion alone are eligible to apply for the posts of Epigraphist, Archaeological Officer and Junior
Epigraphist. There was no reference to any criteria regarding Religion in respect of the post of Curator. It was stated that persons who are
applying for the posts will have to undergo a written examination. In the notification in paragraph 3.K, it was stated as follows:
K. All the concessions / relaxations / benefits applicable to BC and SC candidates are also applicable to BC Muslim and SC (Arunthathiyars on
preferential basis) candidates respectively.
The qualifications for the post of Curator and Epigraphist as found in paragraph 4 of the notification reads as follows:
Sl.No.Name of the Post Qualification
1 2 Epigraphist (Post 1)Second Class Degree of M.A in
code.1838) Curator Archaeology or in Tamil or in
(Post code.1841) Sanskrit or in Ancient Indian
History of any University or
Institution Recognised by the
University Grants Commission for
the purpose of its grant. 2)A
certificate or Diploma in Sanskrit
awarded by any one of the
Universities Recognised by the
University Grants Commission for
the purpose of its grant or
Bharathiya Vidhya Bhawan or
Amara Bharathi or Sanskrit
Educational Society or Dhakshina
Bharat Hindu Prachar Sabha or
Must be able to read and write
Sanskrit Texts (printed and
manuscrips) give meaning of simple
Sanskrit poems and prose writings
and understand the main impart of
inscriptional Sanskrit. and Must
have the knowledge of basic
principle of Architecture,
Iconography, Sculpture, etc., based
on Vastu sastra, Agama Sastra and
Silpa text and also to identify parts
of Temples sculptures and icons
from Drawing and Photographs.
The Petitioner had filled in his application including an OMR coding sheet. As against question No. 6, he had mentioned his religion as Muslim.
As against question No. 7 with reference to community, he had described himself as a Backward class. However, the Respondent TNPSC by the
impugned order, dated 20.11.2009 had rejected his application stating that the rejection was on the ground that he did not profess Hindu Religion.
In view of the last minute rejection, the Petitioner could not challenge the said order since 27.11.2009, 28.11.2009 and 29.11.2009 were holidays
for the Court. The examinations were scheduled on 29.11.2009. Hence the Petitioner had sent a representation, dated 30.11.2009 to the
Respondents. Thereafter, he filed the writ petition challenging the rejection of his application.
The Petitioner''s main contention was that even as per the instructions to candidates, there was no requirement for a person to profess Hindu
Religion for the post of Curator. He submitted that rejection was arbitrary and volatile of Articles 16 and 21 of the Constitution of India.
When the writ petition came up on 14.12.2009, notice was issued to the Respondents. On notice from this Court, the second Respondent has
filed a counter affidavit, dated Nil (2010). It is the stand of the Respondents that the Petitioner had applied for all the four posts. In column No. 23
in his OMR application, he had given preference for the post of Curator. Since only persons professing Hindu Religion alone are eligible for the
appointment to the posts of Epigraphist, Archaeological Officer and Junior Epigraphist, he was not eligible to be considered for those posts. In
respect of Curator post, he did not produce any evidence to show that he has knowledge in Sanskrit as per the qualifications prescribed in the
notification. Therefore, it was contended that in terms of his Religion, he was disqualified for being considered for the posts of Epigraphist,
Archaeological Officer and Junior Epigraphist and he was not eligible to be considered for the post of Curator since he lacked knowledge in
Sanskrit.
Insofar as the stand taken by the Respondents in the counter affidavit regarding lack of knowledge in Sanskrit, the same was not indicated as a
reason for rejection. When the Petitioner had stated that he had applied for the post of Curator, he had only mentioned the Code No. 1841 as his
preference. Therefore, the Respondents ought to have considered his case for the post of Curator, if he is otherwise disqualified for the other three
posts in view of the religious requirement. It is highly condemnable that the second Respondent did not even disclose the actual reason for rejecting
the case of the Petitioner. Since the Respondents had stated that for the posts of Epigraphist, Archaeological Officer and Junior Epigraphist, the
holders of office must profess Hindu Religion, they had not indicated as to where from they got the right to prescribe such a qualification. In fact, all
the four posts are under the Archaeological department coming under the Tamil Nadu General Subordinate Services.
Under Article 16(1) of the Constitution of India, it has been guaranteed equality of opportunity for all citizens in the matter relating to
employment or appointment to any post under the State. Article 16(2) prohibits any discrimination on the ground of religion. Article 16(2) reads as
follows:
16(2)No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State.
(Emphasis added)
However, the Supreme Court struck down the then Madras Government''s communal G.O reserving posts based on caste and religion such as
Muslim and Christians. The pre-constitutional order came to be attacked on the touchstone of Article 16(2) of the Constitution. The Supreme
Court held that reservation of post based on either caste or religion is unconstitutional. It is necessary to refer to the judgment of the Supreme
Court in B. Venkataramana Vs. The State of Madras and Another, . The following passage found in paragraph 4 may be usefully reproduced
below:
...For instance, the pent. may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the posts reserved for
those communities were open to him, he would be eligible for appointment, as is conceded by the learned Advocate-General of Madras, but,
nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His
ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members
falling within those categories, is brought about only because he is a Brahmin & does not belong to any of those categories. This ineligibility created
by the Communal G.O. does not appear to us to be sanctioned by cl.(4) of Article 16 & it is an infringement of the fundamental right guaranteed to
the pent. as an individual citizen under Article 16(1) &(2). The Communal G.O., in our opinion, is repugnant to the provisions of Article 16 & is as
such void & illegal. This, in our opinion, is sufficient to dispose of this apply. & we do not consider it necessary to consider the effect of Article 14
or 15 of the Constitution on the case of the rasps.
Perhaps to save the reservation for the underprivileged, after the judgment the Constitution of India underwent with its first amendment in the year
1951.
The Supreme Court subsequently in Triloki Nath Tiku v. State of Jammu and Kashmir reported in (1969) 1 SCR 103 took exception to
Religion based reservation adopted by the Jammu and Kashmir Government. In paragraph 6 it was held as follows:
...In effect the State policy which Malik Ghulam Nabi spoke to was a policy not of reservation of some appointments or posts: it was a scheme
of distribution of all the posts community wise. Distribution of appointments, post or promotions made in implementation of that State policy is
contrary to the constitutional guarantee under Article 16(1) and (2)and is not saved by clause(4).
However, an exception to religion being a criteria for appointment is provided under Article 16(5) which reads as follows:
16(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any
religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to
a particular denomination.
(Emphasis added)
In construing Article 16(5), the Supreme Court in S.P. Mittal v. Union of India reported in (1983) 1 SCC 51 in paragraph 8 had observed as
follows:
Article 16(2) guarantees that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment or office under the State. Article 16(5) exempts from the right guaranteed
under Article 16 the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.
In her separate opinion, Justice Ruma Pal, in the case relating to T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, had
observed in paragraphs 336, 344, 345 and 346 which is as follows:
Under the Indian Constitution there is no such ""wall of separation"" between the State and religious institutions. Article 16(5) recognizes the
validity of laws relating to management of religious and denominational institutions. Article 28(2) contemplates the State itself managing educational
institutions wherein religious instructions are to be imparted. And among the subjects over which both the Union and the States have legislative
competence as set out in List III of the Seventh Schedule to the Constitution. Entry 28 are:
Charities and charitable institutions, charitable and religious endowments and religious institutions.
(emphasis supplied)
In the ultimate analysis the Indian Constitution does not unlike the United States, subscribe to the principle of non-interference of the State in
religious organizations but it remains secular in that it strives to respect all religions equally, the equality being understood in its substantive sense as
is discussed in the subsequent paragraphs.
Article 30(1) and Article 14
345.""Equality"" which has been referred to in the preamble is provided for in a group of articles led by Article 14 of the Constitution which says that
the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Although stated in
absolute terms Article 14 proceeds on the premise that such equality of treatment is required to be given to persons who are equally
circumstanced. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on a par.
The Constitution has itself provided for such classification in providing for special or group or class rights. Some of these are in Part III itself
[Article 26, Article 29(1) and Article 30(1)]. Other such articles conferring group rights or making special provision for a particular class include
Articles 336 and 337 where special provision has been made for the Anglo-Indian community. Further examples are to be found in Articles 122,
212 and other articles giving immunity from the ordinary process of the law to persons holding certain offices. Again Articles 371 to 371-H contain
special provisions for particular States.
The principles of non-discrimination which form another facet of equality are provided for under the Constitution under Articles 15(1), 16(1)
and 29(2). The first two articles are qualified by major exceptions under Articles 15(3) and (4), 16(3), (4), (4-A) and Article 335 by which the
Constitution has empowered the executive to enact legislation or otherwise specially provide for certain classes of citizens. The fundamental
principle of equality is not compromised by these provisions as they are made on a consideration that the persons so ""favored"" are unequal to begin
with whether socially, economically or politically. Furthermore, the use of the words ""any person"" in Article 14 in the context of legislation in
general or executive action affecting group rights is construed to mean persons who are similarly situated. The classification of such persons for the
purposes of testing the differential treatment must, of course, be intelligible and reasonable - the reasonableness being determined with reference to
the object for which the action is taken. This is the law which has been settled by this Court in a series of decisions, the principle having been
enunciated as early as in 1950 in Charanjit Lal Chowdhury v. Union of India 56.
(Emphasis added)
However, there is no difficulty in the State reserving certain posts for qualified persons from a particular religion under Article 16(5) if such
posts are created in connection with the affairs of a Religion. But, in the present case, the Department of Archaeology is an independent
department and not a wing of the Tamil Nadu Hindu Religions and Charitable Endowment Department. Even under the Tamil Nadu Hindu
Religions and Charitable Endowments Act, 1959, u/s 10 only certain posts have been reserved for persons professing Hindu Religion. Section 10
may be usefully reproduced below to indicate the nature of the office:
Commissioner, etc., to be Hindus.-The Commissioner, [the Additional Commissioner] [every Joint, Deputy or Assistant Commissioners] and
every other officer or servant appointed to carry out the purposes of this Act, by whomsoever appointed, shall be a person professing the Hindu
Religion and shall cease to hold office as such when he ceases to profess that religion.
Therefore, it is doubtful that the Respondents can reserve any other posts other than the posts which have been notified under the Act.
It is not as if the post of an Epigraphist or an Archaeologist must work inside an Hindu temple. In a Country like India where there has been
civilization even before the advent of all religions, the work of Epigraphists or Archaeologists cannot be confined to persons professing Hindu
religion alone. Further, all the religions recognized by the Constitution also have similar heritage and antiquity.
To know the nature of these posts, it is necessary to unravel the true meaning of these words. The term of ""Archaeology"" has been defined in
Chambers 20th Century Dictionary"", which is as follows:
the scientific study of human antiquities, usually as discovered by excavation.
The Webster''s New World Dictionary and Thesaurus defined the term as follows:
the scientific study of the life and culture of past, esp. ancient, peoples, as by excavation of ancient cities, artifacts, etc.
The term ""Epigraphy"" is defined in Webster''s New World Dictionary and Thesaurus, which reads as follows:
the study that deals with deciphering, interpreting, and classifying inscriptions, esp. ancient inscriptions.
Therefore, the nature of duties performed by an Epigraphist or Archaeologist is not strictly confined to Hindu Religious structures alone.
For example to decipher Brahmi inscription sites which were found are not inside any temple. But those sites are spread over the length and
breadth of Tamilnadu. Likewise there are Jain and Budhist places of abodes, worship or caves and cave paintings are found all over this State.
With reference to Brahmi inscriptions in Tamilnadu, the famous scholar Iravatham Mahadevan had stated that the Tamil Brahmi inscriptions are the
only record of old Tamil which are even prior to Sangam poetry. In his interview published in ""Frontline"" an English Fortnightly magazine, dated
17.7.2009, he had stated as follows:
Tamil-Brahmi inscriptions are important not only in the history of Tamil Nadu and the rest of South India but for the whole country. They have
many unique distinctions. They are the oldest writings in any Dravidian language. They are also the oldest Jaina inscriptions in India. I believe that
the Mankulam Tamil-Brahmi inscription of [Pandyan king] Nedunchezhiyan is older than the Karavela inscription at Udayagiri in Orissa.
Tamil-Brahmi inscriptions are the only record of the old Tamil, the one prior to Sangam poetry. Many Tamil-Brahmi inscriptions are important
landmarks in our history. For example, the inscriptions of Nedunchezhiyan at Mankulam, the Irumporai inscriptions at Pugalur near Karur and the
Jambai inscription of Adhiyaman Neduman Anji link the Sangam age with the Tamil-Brahmi age. It is the Jambai inscription that prove that the
Satyaputo"" mentioned by Asoka was none other than the Adhiyaman dynasty, which ruled from Tagadur, modern Dharmapuri.
Recently, Tamil-Brahmi inscriptions have been found on hero stones in the upper Vaigai valley near megalithic graves, thus providing a link, for the
first time, between the megalithic and the early historical periods of Tamil Nadu. The Tamil-Brahmi inscriptions occurring on coins, rings, potsherds
and seals add another dimension to the history of Tamil Nadu. For example, the Pandyan coin of Peruvazhuthi or the silver portrait coins of
Cheras. There are also numerous gold, silver and bronze rings of merchants and noblemen from the prosperous trading town of Karur of the
Sangam age. Again, recently, excavations at Pattanam in Kerala have brought to light the remains of the ancient and famous Sangam age port of
Musiri, known as Muziris to the classical historians of the West. These facts demonstrate the importance of Tamil-Brahmi inscriptions to our
history.
It is, therefore, a great tragedy that the cave inscriptions of Tamil-Brahmi and Jaina sculptures [and beds] are being systematically vandalized by
ignorant tourists and destroyed by granite quarries. It is impossible to stop quarrying because of vested interests and the money power and the
muscle power at their disposal. Already, in my lifetime, many Tamil-Brahmi cave inscriptions have been lost or have been damaged severely. I
understand from scholars undertaking recent field work that the destruction is now proceeding much faster. It is sad that the public are indifferent
[to this], and the State government and the Central government are helpless to stop this wanton destruction of our cultural heritage. Perhaps all the
Tamil-Brahmi cave inscriptions will disappear within a decade.
The only consolation I have is that a serious attempt to record whatever remains by means of video photography and digitization has been made by
the classical Tamil project authorities. In Early Tamil Epigraphy: From the Earliest Times to the Sixth Century A.D., I had anticipated this
disastrous development and I had pleaded for greater awareness of our cultural heritage and more purposeful steps for their conservation. What I
did not expect was that the destruction would be so swift and so colossal. I can only shed tears at whatever has been lost as, frankly, I am not
hopeful that whatever remains will be saved.
Hence the Respondents cannot make it appear that the Department of Archaeology is a wing of the Hindu Religious Endowment Board. It
cannot be the stand of the State Government which functions under the Constitution. Therefore, in order to make out a case under Article 16(5),
the Respondents ought to have established that these posts are created in connection with the affairs of Hindu Religion. Certainly it is not the job of
the Department of Archeology to confine its excavation work only on the Hindu Religious structures. There are other religions such as Buddhism,
Jainism, Christianity and Islam which also had their own sway over the political and geographical boundaries in the areas now known as
Tamilnadu. Therefore, when the Respondents called for applications for the posts of Archeologists or Epigraphists, they ought not to have made
blanket reservation in these posts for candidates belonging to Hindu Religion alone.
Further, Article 16(5) related to an incumbent to an office in connection with the affairs of any religion. The Epigraphist or Archaeologist are
certainly not an office holder in connection with the affairs of Hindu religion. The Respondents cannot reserve any post of Epigraphist or
Archeologist coming under the department of Archeology notified under the Tamil Nadu General Subordinate Services for candidates professing
only Hindu Religion. They cannot recruit persons to a State service overlooking the Constitutional injunction contained under Article 16(2).
The Supreme Court in AIR India Vs. Nergesh Meerza and Others, has held that for an infraction of the various entries found under Article
16(2) as those words were prefixed by the term ""only"", it has to be proved that the discrimination alleged must be solely based on the prohibited
entry, such as Sex, Caste or religion, etc. In the present case, it is not the stand of the Respondents that the posts advertised were covered by
Article 16(5) of the Constitution. Further, no attempt was made to establish that the discrimination made was not only on grounds of religion.
Hence the impugned notification suffers from the vice of infracting Article 16(2) of the Constitution.
Hence the Court has no hesitation to strike down such blatant discrimination adopted by the Department of Archaeology. The impugned order
disqualifying the Petitioner is invalid. The note appended in the notification that for the advertised posts only Hindus alone should apply is also
invalid.
It is worthwhile to note that in the title suits heard and disposed of by a Full Bench of the Allahabad High Court in the case starting from Gopal
Singh Visharad (dead) and Ors. v. Zahoor Ahmad and Ors. (Other Original Suit No. 1/1989, etc. batch), the work done by the Archaeological
Survey of India (ASI) came up for severe indictment. Though ''Babri Masjid'' was protected monument, the bench directed the ASI to seek for an
expert opinion. The ASI in turn deployed the services of a Company called Tojo-Vikas International Limited to undertake geological surveys. The
bench also ordered an excavation to see it there was any structure below the mosque and ruled that the exercise would be undertaken by five
eminent archaeologists including two Muslims. When it was found that the team of experts selected 20 members had only one Muslim, the Bench
took notice of that fact and asked the ASI to remedy. The ASI continued to defy the orders of the Bench. Of the total 89 laborers it employed in
the site it had only nine Muslims. The Bench irritated by the conduct of the ASI appointed a new Team leader. Monitors were also nominated by
the Bench to oversee the operations done by ASI. For full details one can read the opinion of Justice Sudhir Agarwal, a member of the Full Bench
of the Allahabad High Court. The attempt by the Court to maintain balance even in matters relating to archaeology is to create public confidence
and not to appease any particular religion. Hence the Department of Archaeology in order to maintain its reputation must be manned by persons
belonging to all religions. Lest it may be accused of losing the secular character which is the hallmark of Indian republic.
In the present case, the Petitioner had claimed relief only to be considered for the post of Curator. The additional reason given for disqualifying
the Petitioner as set out in the counter affidavit was that for being considered for the post of Curator, he did not have knowledge in Sanskrit. But
that was not a reason found in the impugned order. The knowledge of Sanskrit need not be proved by producing any recognized certificates alone
as the impugned notification stipulated that it will be sufficient if a person is able to read and write Sanskrit Texts. There is no column in the OMR
sheet regarding a prior information to be furnished on this qualification. If the knowledge in Sanskrit was not expected to be proved by producing
certificates from any recognized bodies, then such a requirement can be found only during the interview or by separately calling for details on that
fact. That was not done in this case. One cannot assume that the Petitioner lacked knowledge in Sanskrit. Hence the action of the Respondent is a
blatant infringement of Constitutional guarantee given to the Petitioner.
Justice Rajinder Sachar Committee (appointed by the Central Government) probed the question whether different socio-religious categories in
India have had an equal chance to reap the benefits of development with a focus on Muslims in India. In paragraph 3.3, Justice Sachar made the
following recommendations:
A more transparent recruitment system will help to build public confidence in the system. It is not being suggested that inclusion of minorities in
selection committees will improve the chances that Muslims will get selected, it can surely improve the confidence of Muslim applicants during the
selection process.
It is imperative to increase the employment share of Muslims particularly in contexts where there is a great deal of public dealing. Their public
visibility will endow the larger Muslim community with a sense of confidence and involvement and help them in accessing these facilities in larger
numbers and greater proportion.
The stand taken by the Respondents clearly shows that recruitments make by them needs greater transparency which was lacking in the present
selection. Hence the impugned order is liable to be set aside and the writ petition deserves to be allowed.
The writ petition is allowed with costs. It is quantified at Rs. 5000/- (Rupees five thousand only). The Respondents are directed to consider the
candidature of the Petitioner for any one of the posts advertised in the impugned notification. This exercise shall be undertaken within twelve weeks
from the date of receipt of the copy of this order. Consequently, connected miscellaneous petition stands closed.