Valsamma Paul v. Rani George — 1995 DIGILAW 27 (KER)

Judgment :- Shanmugam, J. The question referred to the Full Bench is whether the decision of the Division Bench reported in Public Service Commission v. Dr. Kunjamma Alex -1981 KLT 24 has binding force and whether it requires reconsideration. The Division Bench in the judgment while following the judgment of the Single Judge in the decision reported in Dr. Kunjamma Alex v. Public Service Commission -1980 KLT 18 held that when a Syrian Catholic girl marries a Latin Catholic, a change of community takes place and that she is entitled to the benefits of a Latin Catholic as one-of the backward community under the State and Subordinate Services Rules, 1958 (Kerala). Since the questions involved in this case are of great public importance, the matter was referred to the Full Bench. 2. The facts of the case are as follows: One Valsamma Paul filed O.P. No. 16297 88 for a writ, of mandamus directing the Cochin University to appoint her as a lecturer by treating her as a candidate belonging to the Latin Catholic Community. According to the petitioner, though she was a Syrian Catholic, she got married to a Latin Catholic and as per the decision reported in 1980 KLT 18 she is entitled to the benefits of reservation as a Latin Catholic, which is one of the backward communities in Kerala and declared as such. 3. O.P. No. 9450/91 was filed by one Rani George against Cochin University praying for a writ of mandamus directing the University to appoint her in the place of Valsamma Paul, as a Lecturer in Law. According to the petitioner in O.P. No. 94507 91 she belongs to Latin Catholic Community. Two posts of Lecturers were notified by the University, of which the first post was set apart for the open merit quota and the second post was reserved for the members of the backward community. The third respondent Valsamma Paul though belonged to the forward community as she is a Syrian Christian, she was considered as a candidate belonging to backward community and was selected and appointed in the post reserved for backward community. The third respondent Valsamma Paul though belonged to the forward community as she is a Syrian Christian, she was considered as a candidate belonging to backward community and was selected and appointed in the post reserved for backward community. The petitioner also contended that on an earlier occasion in the year 1988 when Valsamma Paul applied for a lecturer post, she was not considered as a candidate belonging to backward community since according to the University the decision in 1981 KLT 24 ; was stayed by the Supreme Court. However, in the subsequent vacancy the University had chosen Mrs. Valsamma Paul and appointed her in the post. The writ petition was filed challenging the same. 4. By a common judgment dated 6-2-1992 (1992 (1) KLT 436) Sreedharan, J. held that the petitioner in O.P. 1629/88 Mrs. Valsamma Paul is not entitled to claim the post by invoking the provisions contained in Rules 14 to 17 of the General Rules and set aside the appointment as Lecturer in Law and further directed the University to make appointment in strict compliance with the provisions contained in Rules 14 to 17 of the General Rules. The Writ Appeals 187 & 416 of 1992 are filed by Mrs. Valsamma Paul against this common judgment. 5. Mr. Chakkappan Kalliath, appearing on behalf of the appellant placed strong reliance on the decision of Subramonian Poti, J. (as he then was) reported in 1980 KLT 18. The learned judge while posing the question whether a Syrian Catholic girl who marries a Latin Catholic boy would become a Latin Catholic, found that mere is no ecclesiastical prohibition to the change over from the Syrian Catholic Rites to the Latin Catholic Rites on the marriage of a Syrian Catholic woman to a Latin Catholic and it is possible for her to become a Latin Catholic either at marriage or thereafter during matrimony. The learned Single judge further held as follows: "When once I find that it is possible for a Syrian Catholic to become a Latin Catholic on marriage the answer to the question raised in this case is simple. There is no dispute that the marriage was conducted according (o Latin Rites. The certificate of the Parish Priest, the genuineness of which is not in question, indicates the conduct of the bride, adopting the Rites of the Latin church. The certificate issued by the Tahsildar, Ext. There is no dispute that the marriage was conducted according (o Latin Rites. The certificate of the Parish Priest, the genuineness of which is not in question, indicates the conduct of the bride, adopting the Rites of the Latin church. The certificate issued by the Tahsildar, Ext. P1, also supports this stand of the petitioner. The Public Service Commission happened to pass the order against the petitioner not on appreciation of facts, but on the assumption that by marriage a Syrian Catholic cannot become a Latin Catholic. This was a question which should have been decided by resort to an approach different from that adopted by the Public Service Commission. Evidently the Commission was guided merely by the observation of the Government-unintelligible at that-and not by any independent consideration of the matter. The approach by the Kerala Public Service Commission is therefore erroneous". 6. The learned counsel further proceeded to submit that appeal filed against misjudgment was dismissed by the Division Bench decision reported in 1981 KLT 24. The Division Bench approved the learned Single judge's view that as per the Canon Law governing the matter by reason of the marriage a change of community had taken place and she had become a member of her husband's community and confirmed the finding of the learned Single Judge. 7. Learned counsel for the appellant further submits that after marriage she has accepted the community of her husband, which carries the right and liability of that community. It has been an accepted custom under Christianity that the wife shares the status of her husband and she follows the custom, rules and rites of the community of her husband. The marriage of the appellant was conducted according to the Latin Catholic rituals and therefore, she is entitled to be declared as belonging to the Latin Catholic community since she has ceased to be a member of the Syrian Calhalic community. Learned counsel also relied on the decision of the Supreme Court reported in N.E.Horuv. Jahan Ara- AIR 1972 SC 1840, wherein it was held that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha Panchayat they become members of the community. Learned counsel also relied on the decision of the Supreme Court reported in N.E.Horuv. Jahan Ara- AIR 1972 SC 1840, wherein it was held that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha Panchayat they become members of the community. It was further held that even if a female is not a member of the tribe by virtue of birth she having been married to a tribal after due observance of all formalities would belong to the tribal community to which her husband belongs. Learned counsel further submitted that in so far as Christians are concerned they will not become Christians by birth, but only after baptism they will be treated as Christians. Therefore, it is submitted that the principle that one belongs to a particular caste or community by birth cannot be accepted in the case of Christians. 8. Learned counsel also submitted that the judgment reported in 1981 KLT 24 is the subject-matter of the appeal before the Supreme Court and the stay granted therein applies' only to the parties concerned and in as much as no final decision has been given, the Division Bench judgment will hold the field in full force. Ultimately the learned counsel submitted that the appellant has been in service and that she is aged about 43 years and at this stage if her appointment is set aside she will be put to irreparable loss and injury. 9. Mr. P. Gopalakrishnan Nair, appearing for the 1st respondent Mrs. Rani George placed strong reliance on the latest decision of the Supreme Court in Indra Sawhney v. Union of India -1992 Supp. (3) SCC 217. Reliance was placed on the observations of the majority judgment in para 779, which is as follows: "The above material makes it amply clear that as caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. (Emphasis added) Even if one ceases to follow that occupation, still he remains and continues a member of that group". In the earlier para viz. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. (Emphasis added) Even if one ceases to follow that occupation, still he remains and continues a member of that group". In the earlier para viz. 778-B the Supreme Court referred to a few passages from K.C. Vasanlh Kumar v. Slate of Karnataka -1985 Supp SCC 714 and quoted Venkataramiah, J.s (as he then was) definition of "caste", which is as follows: "A caste is an association of families which practices the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste.... A case is based on various factors, sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family". While dealing with the question of identification of backward class of persons in para 783 of the judgment the Supreme Court held as follows: "If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward". Further it is found in para 784 as follows: "It is sufficient to say that the classification is not on the basis of the caste but. on the ground that that caste is found to be a backward class not adequately represented in the services of the Stole. Bora heathen, by baptism, it becomes a Christian - to use a simile. Baptism here means passing the test of backwardness". Relying on these observations learned counsel submits that Latin Catholic community as such is declared as a backward community. Nobody can as a matter of choice or volition become a member of the community for the purpose of claiming the benefits. Learned counsel further submitted that since the decisions of 1980 KLT 18 and 1981 KLT 24 did not go into the question of validity of Kerala State and Subordinate Services Rules, 1958 read with Article 16(4) of the Constitution of India, those decisions have to be reconsidered. Learned counsel further submitted that since the decisions of 1980 KLT 18 and 1981 KLT 24 did not go into the question of validity of Kerala State and Subordinate Services Rules, 1958 read with Article 16(4) of the Constitution of India, those decisions have to be reconsidered. Learned counsel further submits that the pendency of an appeal before the Supreme court will not bar the Full Bench to go into the issues involved in this case. 10. Learned counsel appearing for the University Mr. G. Janardhana Kurup stated that the University is willing to follow the interpretation that will be placed by the Full Bench. But as a counsel assisting this Court, lie supported the plea of the appellant. that the principle of Hindu Caste community will not be imported in so far as the Christians are concerned. By marrying a person belonging to Latin Catholic community which is not prohibited, the appellant has acquired the status of a Latin Catholic woman. According to him caste is different from community and in as much as there is no caste in Christianity, the appellant belongs to the Christian community and as a Latin Catholic she must be given the benefit of belonging to the backward class community. 11. We have heard the arguments of learned counsel and the decisions cited. We find it difficult to accept the principle or the law that by reason of marriage a change of community has taken place and the appellant has become a member of her husband's community viz. Latin Catholic. 12. Before considering the materials placed before us it is necessary to refer to the question of law in regard to the claim of benefits under Kerala Civil Service. The provisions contained in Rules 14 to 17 of the Kerala State and Subordinate Services Rules, 1958 relating to reservation of appointments and communal rotation are made applicable to the appointments under the Cochin University of Science and Technology as per the provisions contained in S.7(2) of the Cochin University of Science & Technology Act, 1986. The Kerala State and Subordinate Services Rules, 1958 are framed under the powers conferred by Article 309 of the Constitution of India. Rule 17(1) places the Latin Catholics in the grouping of Other Backward Classes. They are also placed as a separate category for the purpose of rotation of posts. The Kerala State and Subordinate Services Rules, 1958 are framed under the powers conferred by Article 309 of the Constitution of India. Rule 17(1) places the Latin Catholics in the grouping of Other Backward Classes. They are also placed as a separate category for the purpose of rotation of posts. The power to make reservation in the matter of appointments in favour of backward classes of citizens is conferred under Art.16(4) of the Constitution of India. 13. In Srish Kumar Choudhury v. State of Tripiira AIR 1990 SC 991 the Supreme Court while dealing with the entries in the Presidential Order, held in para 16 as follows: "These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order". 14. A Constitution Bench of the Supreme Court in Basavalingappa v. Munichinappa - AIR 1965 SC 1269 held in para 6 as follows: "It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order: (See Aray (Mala) Dakkal (Dokkalwar) etc.) Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified in the Order. Ordinarily, therefore, it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order'. 15. In Abhoy Pada Saha v. Sudhir Kumar Mondal AIR 1967 SC 115, the item in the Presidential Order read as "Sunri excluding Saha". The Court held that the expression "Saha" referred to a smaller caste group within the bigger caste group of Sunri. 16. 15. In Abhoy Pada Saha v. Sudhir Kumar Mondal AIR 1967 SC 115, the item in the Presidential Order read as "Sunri excluding Saha". The Court held that the expression "Saha" referred to a smaller caste group within the bigger caste group of Sunri. 16. In Kishorilal v. Raja Ram - AIR 1972 SC 598, the Supreme Court was called upon to decide whether Jatav caste was included in Chamar caste, which was mentioned in Scheduled Caste of Datia District of Madhya Pradesh. After referring to the earlier judgments, the Bench held that it was not open to the party to establish that latav caste was the same as Chamar. 17. A Division Bench of the Madras High Court in Karibeeran K.L. President, North ArcotKurumans Kula Sangam, etc. v. State of Tamil Nadu-1994 Writ L.R.435 following the Supreme Court decision held thai there cannot he any addition to or subtraction from the Presidential Order excepting by a Parliamentary enactment passed under Art.342(2) of the Constitution. 18. While dealing with the question whether on marriage a girl becomes member of her husband's family a Division Bench of the Andhra Pradesh High Court in D.Neefima v. Dean, P.G. Studies, A.P.Agrl. University, Hyderabad - AIR 1993 A.P 229 held that a Hindu Caste girl marrying a Scheduled Tribe boy will not be entitled to the benefits of reservation merely because of marriage. The Division Bench while holding that on marriage the bride acquires the caste or tribe of her husband, negatived the right of reservation. Further the Division Bench held in para 45 as follows: "In this background of the exclusionary rule evolved in so far as citizens covered by creamy layer are concerned, the contention of the learned counsel appearing for the claimants for reservation, viz. consequent upon their entertaining into the caste or tribe of their respective husbands they would be entitled to the reservations envisaged by Art.15(4) of the Constitution, though neither of the two claimants underwent the stresses or strains or suffered the environmental disadvantages, the real backward class citizens faced, and 011 the other hand they belonged to forward castes in Hindu society before their marriage that took place after they completed their graduation and thus were not socially and educationally backward, do not deserve appreciation inasmuch as acceding to the said submission would defeat the very provision and its purpose. By the device of marriage just before the time of applying for admission into the post-graduation courses, if they were to be permitted to invoke the benefit and protection available to the classes of persons who really suffer from environmental disadvantages and incidental stresses and strains, it amounts to letting the purpose of reservation to whittle down, besides permitting entry of citizens better, if not, equally, placed as those constituting creamy layer". 19. The Delhi High Court in Urniila Ginda v. Union of India - AIR 1975 Delhi 115 held that a high caste lady marrying scheduled caste husband cannot claim the benefit of reservation. While holding so a Single Judge of the Delhi High Court held as follows: "Article 15 does not enable the State to make any reservation in respect of backward classes or of scheduled castes or scheduled tribes except to the extent permitted i.e. for helping social and educational advancement of members of such classes, castes or tribes. The petitioner, who is a high caste Hindu not subject to any social or educational backwardness cannot, merely on the ground that she has married a scheduled caste husband, take advantage of any such special provision because she is not one of them. To permit the petitioner to compete for a reserved post would defeat the very provision made by the State for such socially and educationally backward classes". 20. In K. Shantha Kumar v. State of Mysore -1971 (1)MysL.J. 21 (he petitioner who was given in adoption claimed reservation for admission to Medical Colleges in Mysore State under Article 15(4) of the Constitution. The facts disclosed that the natural father of the adoptee was a Supervisor in the office of the National Extension Service and the adoptee before adoption that took place at the age of 16 years did not suffer from any environmental disadvantage and the environmental conditions of his up-bringing for three years by his adoptive father who may belong to a socially and educationally backward class, cannot be said to destroy or nullify the advantage of the environmental conditions of his up-bringing for 16 years by his natural parents. 21. The Constitution Bench of the Supreme Court in Indra Sawhney v. Union of India - (1992 Supp. 21. The Constitution Bench of the Supreme Court in Indra Sawhney v. Union of India - (1992 Supp. (3) SCC 217) in para 784 held as follows: "The only basis for saying that caste should be excluded from consideration altogether while identifying the backward class of citizens for the purpose of Article 16(4) is clause (2) of Article 16. This argument, however, overlooks and ignores the true purport of clause (2). It prohibits discrimination on any or all of the grounds mentioned therein. The significance of the word "any' cannot be minimised. Reservation is not being made under clause (4) in favour of a "caste' but a backward class. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Art.16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of clause (2) of Art.16 has no application whatsoever. Similarly, the argument based upon secular nature of the Constitution is too vague to be accepted. It has been repeatedly held by the U.S. S supreme Court in school desegregation cases dial if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent. It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the State". The Court while dealing with the identification of backward classes held that it must be left to the authority appointed to identify. It can adopt such methtxl/procedure as it thinks convenient for such identification. 22. Taking into consideration all the above decisions on the identity of a particular class or backward class, the Latin Catholic community is treated as a backward class for the purpose of reservation under the rules. Therefore, in our view, it is not open to the appellant to contend that by marriage a person can become a member of that community. It is clear, based on the principles laid down by the Supreme Court, that a person cannot become a member of the community by choice. Therefore, in our view, it is not open to the appellant to contend that by marriage a person can become a member of that community. It is clear, based on the principles laid down by the Supreme Court, that a person cannot become a member of the community by choice. Latin Catholic community is treated as a class based on their backwardness and also on the ground that they are not adequately represented compared to that of forward groups including that of Syrian Christians. It will be defeating the very purpose of reservation if one is permitted to be included into a backward class. 23. The Supreme Court while summarising their discussion on the questions - (a) What does the expression 'backward class of citizens' in Art.16(4) means? (b) Whether the backward classes can be identified on the basis and with reference to caste alone?, held as follows: "(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Art.16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectivities for the purposes of Art.16(4)(b) Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify, it can adopt such method/ procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken 10 it. Identification of the backward classes can certainly be done with reference to castes among and along with, oilier groups, classes and sections of people". While dealing with the adequacy of representation in the services under the State in the same judgment, the Supreme Court held that the question whether a backward class of citizens is not adequately represented in the services is a matter within the subjective satisfaction of the State, since the requirement is preceded by the words "in the opinion of the State". The said opinion can he formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/ Committee, person or authority. The said opinion can he formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/ Committee, person or authority. Once the State Government has in exercise of their power included a particular community, class or group as a backward class for the purpose of reservation it cannot be enlarged by including persons belonging to other than (hat community. The Supreme Court in Kumari Madhuri Patil & anr. v. addl. Commissioner, Tribal Development & Ors. UT 1994 (5) SC 488) held that Presidential declaration being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible. In the Division Bench judgment of the Madras High Court (1994 Writ L.R.435) the Government's notification declaring that "Karumons" (named Scheduled Tribes throughout the State of Tamil'Nadu) and "Kurumbas" in the Nilgries District only and Karumbas in the other Districts of Tamil Nadu are one and the same community was quashed holding Karumbas in the other Districts cannot be deemed to belong to Scheduled Tribes. The Supreme Court has in the decision referred above held that "the admission wrongly gained or appointment wrongly obtained have the effect of depriving the genuine backward candidates as enjoined in the Constitution of the benefit conferred on them by the Constitution. The reiercnce to customs, rites or other ceremonies have no relevance or bearing on the claim of benefits on the basis of backward classification". 24. In reference to the contention that Canon Law permits marriage between Syrian Catholics and Latin Catholics and therefore a person can become Latin Catholic by marriage, is not relevant for the purpose of claiming the benefits or reservation. The appellant who was born in (he Syrian Catholic community and continued to have the advantage of the society of Syrian Catholics, cannot suddenly become a member of the backward class on marriage. It will not only be defeating the purpose of reservation but also denying the benefits available to a really backward community. By the device of marriage or adoption a person cannot be permitted to change his class from forward to backward and thereby claiming the benefits of reservation. It will not only be defeating the purpose of reservation but also denying the benefits available to a really backward community. By the device of marriage or adoption a person cannot be permitted to change his class from forward to backward and thereby claiming the benefits of reservation. The special provision intended for the advancement of socially and educationally backward classes of citizens who are not adequately represented in the services of the State cannot be defeated by including themselves either by alliance or by any other mode of joining into the community. That will be making a mockery of the constitutional exercise of identification of socially and educationally backward classes of citizens. 25. We are, therefore, of the view that the decisions in 1980 KLT 18 as confirmed by the decision in 1981 KLT 24 are not correctly decided. We, therefore, hold that a Syrian Christian by marriage cannot become a Latin Christian for the purpose of availing the benefits of reservation under Rules 14 to 17 of the Kerala State and Subordinate Services Rules. Consequently the judgment in O.P. Nos. 1629/88 & 9450/91 is confirmed and the appeals are dismissed. However, it is open to the University, considering the merits and qualifications of the appellant, to consider her for appointment without reference to the rule of reservation, if found eligible.