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1999 DIGILAW 754 (PAT)

Soni v. State Of Bihar

1999-08-12

B.P.SINGH, INDU PRABHA SINGH

body1999
Judgment B.P.Singh and I.P.Singh JJ. 1. This appeals is directed against the judgment and order of a learned single Judge of this court dated March 30, 1999, in C.W.J.C. No. 7301 of 1998. By the impugned judgment, the learned Judge allowed the writ petition filed by respondent no.5 herein and directed her admission to the Post graduate Medical Course according to her placement in the merit list. It was also held that the admission granted to the appellant as a candidate belonging to most backward category was illegal, since the appellant was not eligible for reservation. 2. The admitted facts of the case are that the appellant herein belongs to a caste by birth to which the benefit of reservation is not extended. As submitted by counsel appearing on her behalf, she completed (sic) for admission for the M.B.B.S. course as a general category candidate. Later the appellant married a person who belongs to the most backward category. She took the Post Graduate Medical Admission Test, 1998, and produced a caste certificate showing her as belonging to most backward category. On that basis she was admitted to the course treating her as a candidate belonging to reserve category against the quota meant for most backward category candidates. She had obtained 621 marks in the Post Graduate Medical Admission Test, while respondent no.5, who admittedly belongs to the most backward category, had secured only 570 marks. 3. The sole question which arises for consideration in this appeal is whether the appellant was entitled to the benefit of reservation, treating her as a candidate belonging to most backward category. 4. The learned Judge has allowed the writ petition following the two judgment of the Supreme Court reported in AIR 1996 S.C.1011 (Mrs. Valsamma Paul V/s. Kerala Public Service Commission) and (1998) 9 SCC 217 (State of Tripura and ors V/s. Namita Majumdar). 5. In Vaisamma Pauls case the question which arose for consideration before the Supreme Court was whether the appellant being a Syrian Catholic by birth married with Latin Catholic (backward class), became a member of that class and could claim the status as a backward class by marriage. A Full Bench of the Kerala High Court took the view that the appellant in these facts and circumstances could not claim the benefit of reservation meant for backward class. A Full Bench of the Kerala High Court took the view that the appellant in these facts and circumstances could not claim the benefit of reservation meant for backward class. After considering the various constitutional aspects and large number of decisions on the point, their Lordships upheld the judgement of the Full Bench and observed as follows:- "Further questions is : Whether recognition by the community, as is envisaged by law and expressly recognised by the Court in Mohan Raos case ( AIR 1976 SC 1904 ), would give the benefit of reservation? In that case, parents of Mohan Rao originally belonged to a Scheduled Caste in A.P. Mohan Ram became a Christian but reconverted into Hinduism and claimed the status as a Scheduled Caste. The Constitution Bench had held that by reconversion, he could not become a Hindu but recognition by the community is a pre-condition. In that case, it was found that caste/community had recognised him after reconversion as a member of the Scheduled Caste. In Kailash Sonkars Case ( AIR 1984 SC 600 ) (Supra) this Court, in the context of election law, considered the question of the conversion into Hindu fold, on conversion to the said caste. Whereas person belonging to the Scheduled Caste is converted to Christianity 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 law by which he was originally governed. Where the new religion does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenets of the new order to which he has gone, as a matter of common practice continues to exist from time immemorial. If a person adjures his old religion and converts to a new one, there is no loss of caste. In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenets of the new order to which he has gone, as a matter of common practice continues to exist from time immemorial. If a person adjures his old religion and converts to a new one, there is no loss of caste. However, whether the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he became a member of that caste. However, this Court had held 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." In the case it was held that from his conduct, the respondent established that she by her conduct became the member of the community entitled to contest the election as a Scheduled Caste. In Mohan Raos case ( AIR 1976 SC 1904 ) (Supra), this Court found as a fact that after conversion he was accepted as a member of the Dalits by the community. Similar are the fact in Horo case( AIR 1972 SC 1840 ) (Supra). In C.M.Arumugam v. S.Rajagopal this Court did not accept reconversion, though Rajgopal proclaimed by conduct of his becoming a member of Scheduled Caste and his relations treated him as a member of Dalits. In Horo case ( AIR 1972 SC 1840 ) also the respondent was recognised as a member of the Scheduled Tribe. In C.M.Arumugam v. S.Rajagopal this Court did not accept reconversion, though Rajgopal proclaimed by conduct of his becoming a member of Scheduled Caste and his relations treated him as a member of Dalits. In Horo case ( AIR 1972 SC 1840 ) also the respondent was recognised as a member of the Scheduled Tribe. Further in election law the compulsion of political party nominating a candidate and voters verdict may be looked into. In Soosai v. Union of India, AIR 1986 S.C. 733 , Bhagwati C.J. speaking for a three Judge Bench held that non-recognition of Scheduled Caste Christians as Dalits was not violative of Article 14 as by reason of conversion they were not similarly handicapped as Dalits. In Madhuris case (1994 AIR. SCW 4116) and Laveti Girls case(1995 (3) JT (SC) 684), this Court directed procedure for issuance of social status certificates. As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact, the new faith whether one suffered all the handicaps as a Dalit or Tribe; whether conversion is only a ruse to gain consitutional benefits under Articles. 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and the issue such a certificate." It may be worth noticing that the earlier judgments of the Supreme Court, including the judgments in Mohan Raos ( AIR 1976 SC 1904 ) and in Horos case ( AIR 1972 SC 1840 ) were also noticed and distinguished. It is not disputed before us that if this judgment correctly lays down the law, the judgment of the learned Judge under appeal cannot be assailed. 6 In Namita Majumdars case the correctness of the decision of the Supreme Court in Valsamma Paul was assailed, and it was submitted that the said decision needed reconsideration. The court, rejecting the submission urged on behalf of the respondent in the appeal, allowed the appeal and found no reason to take a view different from that taken in Valsamma Pauls case. The position in law was reiterated that the respondent could not be declared to be entitled to the benefits of Scheduled Caste on the basis of her marriage with a person belonging to a Scheduled Caste. 7. The position in law was reiterated that the respondent could not be declared to be entitled to the benefits of Scheduled Caste on the basis of her marriage with a person belonging to a Scheduled Caste. 7. It would thus appear that the principles laid down in the aforesaid two decisions clearly apply to the facts of this case. 8. Mr. Banwari Sharma appearing on behalf of the appellant submitted, relying on decisions reported in 1993(3) SCC 259 , 1991 (4) SCC 139 , 1995 (4) SCC 196, 1985(5) SCC 369, that the judgment of the Supreme Court in the aforesaid two decisions did not correctly lay down the law, since these decisions have been rendered in ignorance of the principles laid down in Mohan Raos and Horos case. According to him those decisions were binding upon both the Benches, and even if it was felt that the judgements in Mohan Raos and Horos required reconsideration, the matter should have been referred to a larger Bench. That was not done and therefore, this court is still bound by the decisions in Horo and Mohan Rao. 9. We are afraid, we cannot accept the submission urged on behalf of the appellant. The law declared by the Supreme Court is the law of the land and binds the High Court. What operates as a binding precedent is the ratio of the judgment. The ratio is what is decided, and not what even logically follows from the said decision. No doubt in the judgments relied upon by Shri Banwari Sharma there are observations made regarding persons who may claim the benefit of reservation, but in the case of Valsamma Paul and Namita Majumdar the precise question which fell for consideration was whether a person belonging to a general category after marrying a person belonging to reserved category can claim benefit of reservation. The answer to the question was given in the negative in both the judgements, and therefore, the ratio of these two judgments is that a person belonging to an unreserved category, after marrying a person belonging to reserved category, will not be entitled to the benefit of reservation. This precise question did not fall for consideration in Horo and Mohan Rao. 10. This precise question did not fall for consideration in Horo and Mohan Rao. 10. It is also well settled that if the Supreme Court in its subsequent decision has considered its earlier decisions and understood and interpreted them in a particular manner, this Court is bound by such understanding and interpretation of the earlier judgments. It will not be open to the High Court to give the earlier judgments a meaning which is inconsistent with the meaning given to it by a later Bench of the Supreme Court. In Valsamma Pauls case the judgments in Mohan Rao and Horo have been distinguished, and therefore, it is not open to this court to ignore the distinction made by the Supreme Court and give to those judgments a meaning different than one given by the learned Judges in Valsammas case. We are bound to follow the ratio in Valsamma and Namrta Majumdar. The Supreme Court itself in Namita Majumdar found no reason to reconsider its earlier decision of Valsama Paul, much less can we have any reason to doubt the correctness of the decision in Valsamma Paul, which operates as a binding precedent. 11. We, therefore, find no error on the judgment of the learned Judge, and this letters patent appeal is therefore, dismissed. 12. Learned counsel for the appellant, relying upon the decisions reported in AIR 1981 SC 2045 and AIR 1983 SC 580 , submitted that after all the appellant had secured more marks than respondent no.5, and a caste certificate was issued in her favour. Acting bonafide the authority had granted her admission to a Post Graduate Medical Course in Obstetrics and Gynaecology. The appellant is pursuing her course and for no fault of hers she is likely to be discontinued in view of the finding recorded against her that she was not entitled to the benefit of reservation. The learned Judge who disposed of the writ petition was not unaware of this fact, and therefore gave appropriate directions in the last paragraph of the judgment. Obviously if the appellant is entitled to admission to any course by virtue of placement in the merit list as general category candidate, her case certainly has to be considered, and if candidates securing less marks than her in general category have been admitted, she may also be granted admission to a course in accordance with her position in merit list. No doubt this may create some difficulties for the appellant but having regard to the law we cannot help the situation. It is not that the parties were not at fault at all because they clearly disregarded, or in any case acted in ignorance of the judgment of the Supreme Court reported much earlier in AIR 1996 SC 1011 . However, we have no doubt that the authorities will act with prudence so that least inconvenience is caused to the appellant and at the same time the right of respondent no.5 is enforced. There will be no order as to costs.