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2008 DIGILAW 299 (JK)

Neelam Digra v. State Of J. &K.

2008-07-18

Y.P.NARGOTRA

body2008
1. J&K Public Service Commission vide its notification No. 7-PSC of 2005 dated 1.6.2005 invited applications for 47 posts of Assistant Engineer (Electrical). The posts advertised were in the following categories: - Open Category 27 RBA 9 SC 4 ST 5 ALC 2 2. The petitioner and respondent No. 4 offered their candidature under S.C category. After the conclusion of selection process, respondent No.4 was selected, while the petitioner did not find berth in the select list. Pursuant to the selection, the name of respondent No.4 came to be recommended for appointment, resulting into her appointment. 3. Through the instant petition, the petitioner seeks to question the validity of selection and appointment of respondent No. 4 on the ground that she being a non-category person could not have legally acquired the status of a scheduled caste candidate by marrying a scheduled caste person, so as to avail the benefit of selection against the post reserved for scheduled caste category. 4. The stand of the Commission is that since respondent No.4 was having a S.C. Category Certificate which she had submitted with her application form, so she was considered and selected under the said category as per her merit. 5. Respondent No. 4 in her reply has not disputed the fact that before marriage she was not a scheduled caste. It is also not in dispute that she has married to a scheduled caste person, whereafter category certificate in her favour was issued by the competent authority. 6. Mr. Bhardwaj, learned senior counsel appearing for petitioner contends that by marriage respondent No. 4 legally could not have acquired the status of a scheduled caste, so as to become entitled to compete for the post reserved for scheduled caste candidates. 7. Mr. Salaria learned counsel for respondent No. 4, however, contends that the petitioner without seeking cancellation of the category certificate before the competent authority cannot be permitted to urge that she was not a scheduled caste candidate. According to him as respondent No. 4 possessed the category certificate validly issued in her favour by the competent authority, she was legally entitled to compete as a scheduled caste candidate. 8. According to him as respondent No. 4 possessed the category certificate validly issued in her favour by the competent authority, she was legally entitled to compete as a scheduled caste candidate. 8. Thus the question arising for consideration is: Whether a non category woman in the event of her marriage with a scheduled caste person acquires the status of a scheduled caste so as to become entitled to compete as a scheduled caste candidate for the post reserved for scheduled caste candidates? 9. The issue is no longer res integra. The Apex Court in its various judgments has authoritatively settled the controversy holding that a candidate who had the advantageous start in life being born in forward caste 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) of Constitution of India. 10. In Valsamma Paul vs. Cochin University and ors AIR 1996 SC 1011, the Honble Supreme Court held: - "However, the question is: 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) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognized by Articles 17 and 15(2). Cons4equently, they became socially, culturally and educationally backward, the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nations life by providing them opportunities and facilities. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, (1995) 3 JT (SC) 563: (1995 AIR SCW 2224); and R.Chandevarappa v. State of Karnataka, (1995) 7 JT (SC) 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutes, 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). Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutes, 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 undergo same handicaps, be subject 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 life 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 constitution policy under Articles 15(4) and 16(4) of the Constitution. The recognition of the appellant by the member of Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had advantageous start in life and after her completion education becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class." 11. Thus respondent No.4 being born in a caste which was not a backward class within the meaning of Article 15(4) and 16(4) of the Constitution of India would not have become eligible for the benefit of reservation merely on account of her marriage with a scheduled caste person. The category certificate issued in her favour only gives recognition to her status of scheduled caste acquired by her through marriage but does not by itself confer eligibility for claiming the benefit of reservation. 12. The Commission, therefore, was not right in considering respondent No. 4s candidature under scheduled caste category. She was entitled to be considered in open merit category. Therefore, selection of respondent No. 4 under scheduled caste category and her consequent appointment against the seat reserved for scheduled caste candidate cannot be legally sustained. 13. 12. The Commission, therefore, was not right in considering respondent No. 4s candidature under scheduled caste category. She was entitled to be considered in open merit category. Therefore, selection of respondent No. 4 under scheduled caste category and her consequent appointment against the seat reserved for scheduled caste candidate cannot be legally sustained. 13. For the aforesaid reasons, this writ petition is allowed and selection and appointment of respondent No. 4 is quashed with a direction to the Public Service Commission to consider the candidature of respondent No 4 in open merit category and to pass appropriate orders, if need be, depending upon her merit obtained in that category. As regards the seat becoming available in schedule caste category by the ouster of respondent No. 4, the Commission shall re-consider the merit of the petitioner and other schedule caste candidates not selected under the said category and select the candidate next in merit for appointment. Needful shall be done within a period of four weeks.