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2007 DIGILAW 849 (RAJ)

Chandra Nayak v. State of Rajasthan

2007-04-24

PANWAR

body2007
Honble PANWAR, J.–By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annx.R.2/1 dated 12-12-1984 issued by the respondent No.1 and providing her the benefit by treating her to be a lady of Scheduled Caste. (2). The facts of the case, in a succinct, are that the petitioner is holding the qualifications of B.Sc., Post Graduation in History and B.Ed. Originally she belonged to the category Other Backward Class but on 21-6-1993, she contacted marriage with Devi Singh Nayak, who is a member of Scheduled Caste and placed on record a marriage certificate Annx.2 issued by Arya Samaj, Jodhpur. She has also produced a Certificate dated 24.9.1994 (Annx.2-A) issued by the Tehsildar, Jodhpur declaring her to be lady of Scheduled Caste. In pursuance to the advertisement issued by the respondent No.2, the petitioner applied for the post of School Lecturer in History and the Admission Card (Annx.3) was issued by the respondent No.2 showing her to be a candidate of "SC, WE". She took the said examination and declared successful. The respondent No.2, vide Annx.8 dated 6-2-2003, while calling the petitioner for interview, asked her to bring all the original certificates including the Certificate of Higher Secondary and Surname Affidavit. She has come with the case that as her father died 23 years ago, she is not in a position to furnish the Caste Certificate and Death Certificate, however as she is "Mali" by caste, she is certainly a candidate belonging to Other Bacward Caste" and after contacting marriage with Devi Singh, a member of Scheduled Caste, her candidature may be directed to be considered as a candidate belonging to Scheduled Caste apart from being a Woman Candidate. Hence this writ petition. (3). Separate reply to the writ petition have been filed by the respondents No.1 and the respondents No.2 and 3 stressing therein that simply because the petitioner got married with a scheduled caste person, she is not entitled for consideration of her candidature as a Scheduled Caste candidate. In support of this stand, the respondents have placed reliance on the letter dated 12-12-1984 (Annx.R/2/1) issued by the Commissioner for Scheduled Caste & Scheduled Tribes, Ministry of Home Affairs, Government of India, making a clarification regarding the caste status. (4). I have heard learned counsel for the parties and carefully perused the record of the case. (5). In support of this stand, the respondents have placed reliance on the letter dated 12-12-1984 (Annx.R/2/1) issued by the Commissioner for Scheduled Caste & Scheduled Tribes, Ministry of Home Affairs, Government of India, making a clarification regarding the caste status. (4). I have heard learned counsel for the parties and carefully perused the record of the case. (5). It is contended by the learned counsel for the petitioner that after marriage with Devi Singh Nayak, who is a member of Scheduled Caste, the petitioner acquired the status of Scheduled Caste. His further contention is that the competent authority has issued the Caste Certificate Annx.2-A declaring the petitioner to be a Scheduled Caste lady and as such, she should be provided the benefit of a Scheduled Caste candidate apart from being a Woman candidate. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of the Honble Supreme Court in N.E. Horo vs. Smt. Jahanara Jaipal Singh, (1972) 1 SCC 771 ; and Valsamma Paul (Mrs.) vs. Cochin University & ors. etc. , (1996) 3 SCC 545 . (6). Learned Deputy Government Advocate and the learned counsel for the respondents No.2 and 3 contended that in pursance of the letter Annx.R/2/1, the petitioner is not entitled to be declared as a Scheduled Caste candidate. Their further contention is that if the status of being a Scheduled Caste is conferred merely on the basis of marriage of a person with a person of Scheduled Caste, the whole purpose behind granting such benefits shall be frustrated. In support of their contention, learned counsel for the respondents have placed reliance on the decisions of the Honble Supreme Court in State of Tripura & ors. vs. Namita Majumdar (Barman) (Smt.), (1998) 9 SCC 217 ; Valsamma Paul (Mrs.) vs. Cochin University & ors. (supra); Sobha Hymavathi Devi vs. Setti Gangadhara Swamy & ors., (2005) 2 SCC 244 ; Sandhya Thakur vs. Vimla Devi Kushwah & ors., (2005) 2 SCC 731 ; and Meera Kanwaria vs. Sunita & ors., (2006) 1 SCC 344 . (7). There is no dispute that originally the petitioner is a lady belonging to "Mali" community, which has been recognized as Other Backward Class in the State of Rajasthan. She contacted marriage with Devi Singh Nayak, who is a member of Scheduled Caste. (7). There is no dispute that originally the petitioner is a lady belonging to "Mali" community, which has been recognized as Other Backward Class in the State of Rajasthan. She contacted marriage with Devi Singh Nayak, who is a member of Scheduled Caste. From the marriage certificate Annx.2 and the Caste Certificate Annx.2- A, it is clear that Devi Singh, with whom the petitioner contacted marriage, is a member of scheduled caste. But the pertinant question arises for consideration is: whether on account of the marriage with a scheduled caste person, the petitioner is entitled for consideration of her candidature as a Scheduled Caste candidate. (8). From a bare perusal of the letter Annx.R/2/1 dated 12.12.1984 issued by the Office of the Commissioner for Scheduled Caste & Scheduled Tribes to the respondent No.2, it is clear that a non-scheduled caste lady who has married a Scheduled Caste person cannot be treated as belonging to a Scheduled Caste community and thus cannot avail of the benefits, to which scheduled caste persons are entitled. The petitioner has assailed the validity of this letter Annx.R/2/1 dated 12-12-1984 without laying down any foundation for quashing the same. (9). Now taking up the decisions relied upon by the learned counsel for the petitioner, in N.E. Horo vs. Smt. Jahanara Jaipal Singh (supra), the Honble Supreme Court held that when a person, in the course of time, has been assimilated in a community, it is difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal, by Constitutional provisions and further held that even without invoking the doctrine of domicile 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. In Valsamma Paul (Mrs.) vs. Cochin University & ors.(supra), the Honble Apex Court held that be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of her husbands marital home entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. Therefore, the lady, 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. (10). Taking up the decisions of the Honble Supreme Court relied on by the learned counsel for the respondents, in State of Tripura & ors. vs. Namita Majumdar (Barman) (Smt.) (supra), the Honble Supreme Court, while considering an identical question of law involved in the instant writ petition, reconsidered its decision in Valsamma Paul vs. Cochin University & ors. (supra) and held that the respondent therein cannot be declared to be entitled to the benefits of a Schedule Caste on the basis of her marriage to a person belonging to a Scheduled Caste. (11). In Sobha Hymavathi Devi vs. Setti Gangadhara Swamy & ors. (supra), the Honble Supreme Court held that whether it be reservation under Articles 15 (4) or 16 (4) or 330 or 332 of the Constitution of India, the said reservation would benefit only those who belong to a Scheduled Caste or Scheduled Tribes and not to those who claim to acquire the status by marriage. (12). In Sandhya Thakur vs. Vimla Devi Kushwah & ors. (supra), the Honble Supreme Court held that the appellant therein, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community. The Apex Court further held that we see no reason to differ from the High Court in its view that the circular dated 12-3-1997 was not restricted in its operation to employment and admission to an educational institution, but was also relevant and applicable in elections to local bodies. (13). In Meera Kanwaria vs. Sunita & ors. (supra), the respondent, who was Rajput by caste, married a member of a Scheduled Caste as per the Vedic Hindu rites and obtained the certificate of Scheduled Caste from the Sub-Divisional Officer. The respondent therein contested the election for a seat of Municipal Councillor which was reserved for a Scheduled Caste Woman. The appellant therein, who was also a contesting candidate. The respondent therein contested the election for a seat of Municipal Councillor which was reserved for a Scheduled Caste Woman. The appellant therein, who was also a contesting candidate. Having secured more votes than the appellant therein, the respondent therein was declared elected. The election of the respondent therein was challenged by way of filing an election petition by a third party on the grounds that the Scheduled Caste Certificate obtained by the respondent therein was incorrect and also on the ground that the Scheduled Caste status cannot be acquired merely by marriage of the respondent therein with a Scheduled Caste person. The District Judge set aside the election of the respondent. On an appeal, the High Court held that the respondent therein was accepted by her husbands family and biradari, the judgment of the District Judge was not sustainable. On an appeal by the appellant therein, the Honble Supreme Court held that a person who is a high-caste Hindu and not subjected to any social or educational backwardness in his life, by reason of marriage alone cannot ipso facto become a member of the Schedule Caste or the Schedule Tribe. It was further held by the Honble Supreme Court that in absence of any strict proof he cannot be allowed to defeat the very provisions made by the State for reserving certain seats for disadvantaged people. (14). In this view of the matter, the decisions relied on by the learned counsel for the petitioner turn on their own facts and are of no help to the petitioner. There cannot be any doubt that after marriage with Devi Singh Nayak, the petitioner becomes the member of her husbands family who belongs to scheduled caste, but in view of the decisions of the Honble Supreme Court relied on by the learned counsel for the respondents as also in view of the letter Annx.R/2/1, the petitioner is not entitled for the benefits which are available to the members of Scheduled Caste candidates as even after marriage of the petitioner with a person who is a member of scheduled caste, she is not entitled to be conferred with the status of scheduled caste in view of the decisions of the Honble Supreme Court in Meera Kanwaria vs. Sunita & ors. (supra), Sobha Hymavathi Devi vs. Setti Gangadhara Swamy & ors. (supra) and in Sandhya Thakur vs. Vimala Devi Kushwaha & ors. (supra). (supra), Sobha Hymavathi Devi vs. Setti Gangadhara Swamy & ors. (supra) and in Sandhya Thakur vs. Vimala Devi Kushwaha & ors. (supra). If such rights are being allowed to be conferred on a person by way of marriage with a person of Schedule Caste then the whole purpose for conferring the benefit to the members of Scheduled Caste and Scheduled Tribes candidates would be frustrated. Thus, neither the marriage certificate Annx.2, nor the Caste Certificate Annx.2-A issued by the Tehsildar, Jodhpur would confer any right of reservation upon the petitioner on being married a person of scheduled caste. So far as the certificate of caste Annx.2-A issued by the Tehsildar, Jodhpur in favour of the petitioner showing her to be a member of scheduled caste is concerned, in order to avoid misuse thereof, the same deserves cancellation and the respondent No.1 is directed to pass necessary orders for cancelling the caste certificate Annx.2-A issued in favour of the petitioner declaring her to be a member of scheduled caste. (15). In the result, the writ petition lacks merit and it is hereby dismissed. There shall be no order as to costs.