Download Report

HIGH COURT OF CHHATTISGARH AT BILASPUR
----------------------------------------------------------------------------------------------------SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
-----------------------------------------------------------------------------------------------------
W.P. No. 4134/2005
PETITIONER
:
Smt. Rekha Khande
Versus
RESPONDENTS
:
State of Chhattisgarh and others
(WRIT PETITION UNDER ARTICLE 226/227 OF THE
CONSTITUTION OF INDIA)
Present:
Mr. Mayank Chandrakar, counsel for the petitioner.
Mr. Sangharsh Pandey, Dy. Govt. Advocate for the
State/respondent.
ORDER ON BOARD
(Passed on 20/03/2015)
1.
Petitioner was appointed as a Supervisor in the Department of
Woman and Child Development by order dated 04/06/1987 as a
Scheduled Caste candidate and thereafter, her caste certificate was
verified by the High Level Caste Scrutiny Committee. The said
Committee by its order dated 05/01/2005, cancelled the caste
certificate issued in favour of the petitioner and held that she is not
entitled for the caste certificate as she is not a member of
Scheduled Caste and consequently State Government ordered for
cancellation of her appointment granted on the reserved post of
Supervisor in the Department.
2.
Questioning the said order, instant writ petition has been filed
2
by the petitioner stating inter alia that by virtue of marriage with
schedule tribe person, she has acquired the status of scheduled
caste and therefore caste certificate (SC) was rightly granted by the
Competent Authority in her favour and finding recorded by Caste
Scrutiny Committee holding her not entitled for such a certificate
deserves to be set-aside being unsustainable and bad in law.
3.
Return has been filed by the State stating inter alia that the
caste certificate issued in favour of the petitioner has already been
cancelled by the High Level Caste Scrutiny Committee, therefore,
the State Government has rightly cancelled the appointment of the
petitioner obtained against the reserved post of Supervisor, and
even otherwise the order dated 05/01/2005 is in accordance with
law and no interference is called for in exercise of supervisory
jurisdiction under Article 227 of the Constitution of India.
4.
Mr. Mayank Chandrakar learned counsel appearing for the
petitioner would submit that petitioner has married with Shri K.D.
Khande, who is a member of Scheduled Caste, and in consequence
of marriage her status would be of Scheduled Caste after marriage,
therefore, she was entitled for caste certificate (SC) as well reserved
post of Scheduled Caste, as such, the order impugned dated
05/01/2005 and consequent order of State Government deserves to
be set-aside.
5.
Mr. Sangharsh Pandey learned Deputy Govt. Advocate
appearing for the State would submit that petitioner's caste
3
certificate has been cancelled by order dated 05/01/2005 of the High
Level Caste Scrutiny Committee, and on the basis of order of High
Level Caste Scrutiny Committee, her appointment on the reserved
post of Supervisor has rightly been cancelled by the State
Government. The order of Caste Scrutiny Committee as well as
order passed by the State Govt. is in accordance with law and no
interference is called for in exercise of jurisdiction under Article 227
of the Constitution of India.
6.
I have heard learned counsel appearing for the parties and
perused the available record with utmost circumspection.
7.
It is not in dispute that the petitioner is admittedly a member of
Other Backward Class and she married with Shri K. D. Khande, who
is a member of Scheduled Caste. It is also not in dispute that the
petitioner was selected on the reserved post of Supervisor and the
High Level Caste Scrutiny Committee by its order dated 05/01/2005
has cancelled the caste certificate issued in favour of the petitioner
on 12/06/1985 holding her ineligible for such certificate.
8.
The question for consideration would be whether the finding
of the Caste Scrutiny Committee holding that the petitioner is not
entitled for caste certificate of scheduled caste is perverse and
contrary to the record?
9.
A careful perusal of the order passed by Caste Scrutiny
Committee
would show that the petitioner’s father was originally
4
resident of Maharashtra belonging to Padhamshali (Koshti caste)
which stood recorded in her school record and the petitioner married
with Shri K. D. Khande a member of scheduled caste on 05/12/1984
and thereafter she was granted caste certificate of scheduled caste
by Naib Tahsildar, Bilaspur on 12/06/1985. Not only this, she also
made a statement before the Committee that her father belonged to
Padhamshali (Koshti caste) and on the cover of marriage, she has
obtained caste certificate of Scheduled Caste and obtained Govt.
Job in the reserved seat for Scheduled Caste.
10.
The Govt. of India Ministry of Home Affairs has issued
notification No. 35/1/72/R.V./[S.T.C.V.] April 1975 stating that a
person who is not member of Scheduled Caste or Scheduled Tribe
by birth, marries with Scheduled Caste or Scheduled Tribe, then
he/she is not entitled for the caste certificate of Scheduled
Caste/Scheduled Tribe and the privileges of such caste. Likewise
the circular issued by the State of Madhya Pradesh on 01/08/1996,
provides at Para-12 as follows:-
**12- ¼1½ ;fn dk sb Z O;fDr tUe l s gh vuq l wf pr
tkfr ;k tutkfr dk lnL; ugh a gS rk s mldk fookg
vuq l wf pr tkfr vFkok tutkfr d s lnL; l s gk sr k gS rk s
ml s tkfr iz e k.k&i= iz k Ir dju s dh ik=rk ugh a gk sx hA
¼2½ ;fn dk sb Z O;fDr vuq l wf pr tkfr vFkok vuq l wf pr
tutkfr dk lnL; gS vkS j og xS j vuq l wf pr tkfr ,o a
vuq l wf pr tutkfr d s lnL; vFkkZ r ~ lkekU; oxZ d s
lnL; l s fookg dj y sr k gS rk s Hkh mUg s a iz e k.k&i=
iz k Ir dju s dh ik=rk gk sx hA**
11.
In the matter of Valsamma Paul (Mrs.) v. Cochin University
5
and others1, their Lordships of the Supreme Court has held that
when a woman marries outside her caste, she became member of
the family of her husband and observed in paragraph 31 as under:“31.It is well-settled law from Bhoobum Moyee Debia v.
Ram Kishore Achari Chowdhry [(1863-66) 10 MLA 279 :
3WR 15 (PC)] that judiciary recognized a century-and-ahalf ago that a husband and wife are one under Hindu
law, and so long as the wife survives, she is half of the
husband. She is ‘Sapinda’ of her husband as held in
Lullobhoy Bappoobhoy Cassidass Moolchund v. Cassibai
[(1879-80) 7 IA 212]. It would therefore, be clear that be it
either under the Canon law or the Hindu law, on marriage
the wife becomes an integral part of the husband’s marital
home entitled to equal status of husband as a member of
the family. Therefore, the land, on marriage, becomes a
member of the family and thereby she becomes a
member of the caste to which she moved. The caste
rigidity breaks down and would stand no impediment to
her becoming a member of the family to which the
husband belongs and she gets herself transplanted.” ”
12.
However, in later part of judgment paragraph 33 , the Supreme
Court formulated the following question for determination:“33…….Whether a lady marrying a Scheduled Caste,
Scheduled Tribe or OBC citizen, or one transplanted by
adoption or any other voluntary act, ipso facto, becomes
entitled to claim reservation under Article 15(4) of 16(4),
as the case may be?”
13.
The said question by their Lordships was answered in
paragraph 34 of judgment as under:
“34. In Murlidhar Dayandeo Keekar v. Vishwanath Pandu
Barde and R. Chandevarappa v. State of Karnataka this
Court has held that economic empowerment is a
fundamental right to the poor and the State is enjoined
under Article 15(3), 46 and 39 to provide them
opportunities. Thus, education, employment and
1
(1996) 3 SCC 545
6
economic empowerment are some of the programmes the
State has evolved and also provided reservation in
admission into education institutions, or in case of other
economic benefits under Articles 15(4) and 46, or in
appointment to an office or a post under the State under
Article 16(4) Therefore, when a member is transplanted
into the Dalits, Tribes and OBCs, he/she must of
necessity also have had undergone the same handicaps,
and must have been subjected to the same disabilities,
disadvantages, indignities or sufferings so as to entitle the
candidate to avail the facility of reservation. A candidate
who had the advantageous start in lie being born in
forward caste and had march of advantageous life but is
transplanted in Backward caste by adoption or marriage
or conversion, does not become eligible to the benefit of
reservation either under Article 15(4) or 16(4), as the case
may be. Acquisition of the status of Scheduled Caste, etc,
by voluntary mobility into these categories would play
fraud on the Constitution, and would frustrate the benign
constitutional policy under Article 15(4) and 16(4) of the
Constitution.”
14.
Thereafter in the matter of Sobha Hymavathi Devi v. Setti
Gangadhara Swamy and others2, the Supreme Court considered
the question whether a non-tribal who marries with a tribal could
claim to contest a seat reserved for tribal and held as under:“10. ………Even otherwise, we have difficulty in
accepting the position that a non-tribal who marries a
tribal could claim to contest a seat reserved for tribals.
Article 332 of the Constitution speaks of reservation of
seats for Scheduled Tribes in Legislative Assemblies. The
object is clearly to give representation in the legislature to
Scheduled Tribe candidates, considered to be deserving
of such special protection. To permit a non-tribal under
cover of a marriage to contest such a seat would tend to
defeat the very object of such a reservation. The decision
of this Court in Valsamma Paul v. Cochin University
supports this view. Neither the fact that a non-backward
female married a backward male nor the fact that she was
recognized by the community thereafter as a member of
2
(2005) 2 SCC 244
7
the backward community, was held to enable a nonbackward to claim reservation in terms of Article 15(4) or
16(4) of the Constitution.”
15.
Recently the Supreme Court noticed the judgment of
Valsamma Paul (supra) and Sobha Hymavathi Devi (supra) in the
matter of
Rameshbhai Dabhai Naika v. State of Gujarat and
others3, and held as under:“16. The third plea raised by Sobha in support of her
being a tribal and the claim of Valsamma were both based
on their voluntary action in marrying a tribal man. In both
cases the Court held that getting transplanted into the
tribal community through voluntary mobility cannot be the
basis or the forward caste/non-tribal woman to avail of the
benefits of reservation under Article 15 and 16 (in
Valsamma) or under Article 332 of the Constitution (in
Sobha Hymavathi Devi). But in neither of the two cases
the question of a child born of an inter-caste marriage or a
marriage between a tribal and a non-tribal was directly in
issue.”
16.
Applying the principle of law laid down in the aforesaid cases
i.e. Valsamma Paul, Sobha Hymavathi Devi and Rameshbhai
Dabhai Naika (supra) it is held that a non-S.C. woman marrying
with a man belonging to Scheduled Caste is not entitled to avail the
benefits of Scheduled Caste under Article 15, 16, 332 of the
Constitution of India. Reverting to the facts of the case, it would
apparent that petitioner is originally member of Padhamshali (Koshti
caste) and under the cover of marriage with her husband who is a
member of Scheduled Caste, had claimed and obtained the caste
certificate of scheduled caste, which the Caste Scrutiny Committee
has held not entitled. On the basis of material brought on record as
3
(2012) 3 SCC 400
8
well the circular issued by the Govt. of India and erstwhile State of
Madhya Pradesh and relying upon the judgment of Supreme Court
in the matter of Valsamma Paul (supra), in the considered opinion of
this Court, the findings recorded by the Caste Scrutiny Committee is
in accordance with circular issued by the Govt. of India and State of
Madhya Pradesh as well as principle of law laid down by the
Supreme Court in the aforesaid cases i.e. Valsamma Paul, Sobha
Hymavathi Devi and Rameshbhai Dabhai Naika (supra). It is
neither perverse, nor contrary to the material available on the
record.
17.
As a fallout and consequence of the aforesaid discussion, it is
held that the Caste Scrutiny Committee did not err in reaching to
such a finding that petitioner is not entitled for caste certificate of
Scheduled Caste and as such, the finding is based on material
available on record and the petitioner's appointment on the reserved
post has rightly been cancelled on the basis of revocation of her
caste certificate by the High Level Caste Scrutiny Committee. I do
not find any illegality or jurisdictional error in the said finding
recorded by the Caste Scrutiny Committee.
18.
Accordingly, the writ petition deserves to be and is hereby
dismissed. No order as to cost(s).
JUDGE
Tiwari
9
1
HEAD-NOTE
Non-S.C. woman marrying with a person belonging to
Scheduled Caste is not entitled to avail the benefits and privilege of
Scheduled Caste.
,d vuqlwfpr tkfr ds O;fDr ls fookg djus okyh xSj
vuqlwfpr tkfr dh efgyk vuqlwfpr tkfr dks izkIr ykHk vkSj
fo'ks”kkf/kdkj dk miHkksx djus dk gdnkj ugh gSA
(Indrajeet Sahu)
P.S. To His Lordship