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2015 DIGILAW 970 (GAU)

Junumani Pegu v. State of Assam

2015-08-06

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. H.K. Sarma, the learned counsel appearing for the petitioners. The respondent Nos.1 to 3 are represented by Mr. J. Handique, the learned Govt. advocate. The learned Sr. counsel Mr. M.K. Choudhury appears for the respondent No.4. 2. The petitioners belong to the Schedule Tribe (ST) category and they offered their candidatures for the posts of Junior Assistant in the establishment of the D.C., Sonitpur, by responding to the advertisement dated 20.03.2007 (Annexure-1). After the selection exercise, the respondent No.4 Banti Doley was appointed to one of the posts earmarked for ST(P) category candidates, through the appointment order dated 22.02.2008 (Annexure-4). The petitioners challenge the appointment of respondent No.4 by contending that she was born to Ahom parents, who belong to the OBC category and therefore she cannot claim tribal status through her marriage to an ST(P) category person. 3. According to the petitioners the caste status of a person do not get altered by marriage and a person born to OBC parents will carry the parents category even though, she may have married a person of tribal category. In support of this proposition, the learned counsel Mr. H.K. Sarma relies on Sandhya Thakur Vs. Vimla Devi Kushwah reported in (2005)2 SCC 731 . 4. On the other hand, Mr. M.K. Choudhury, the learned Sr. counsel submits that the respondent No.4 was married to an ST(P) category person at the tender age of 9 years and since then she has assimilated herself with the tribal rites and rituals of her husband’s family. She also uses the tribal surname Doley of her husband since her marriage. Therefore it is argued that the respondent No.4 has transplanted herself into the tribal community and since she was accepted as a tribal by her husband’s family and the community elders, she deserves the benefit of an ST(P) category person on the strength of the certificate granted to her by the authorities. 5. On behalf of the State authorities, Mr. J. Handique, the learned Govt. advocate submits that after the tribal status of the respondent No.4 was questioned by the petitioners, an enquiry was conducted and he refers to the report given by the Addl. 5. On behalf of the State authorities, Mr. J. Handique, the learned Govt. advocate submits that after the tribal status of the respondent No.4 was questioned by the petitioners, an enquiry was conducted and he refers to the report given by the Addl. D.C., Sonitpur, on 31.07.2008 to project that the respondent No.4 having been born to Ahom parents, should not have been issued the ST(P) certificate by virtue of her marriage to her husband Jadu Ram Doley, who belongs to the tribal community. 6. In Valsamma Paul Vs. Cochin University reported in (1996)3 SCC 545 , the Supreme Court was examining the change of caste status of forward community lady after her marriage to a person of reserved community. After analyzing the previous decisions, the Apex Court opined that when a person is transplanted amongst disadvantaged people, she must be subjected to the same sufferings and disadvantages, to avail the facility of reservation and a person born to an advantageous class cannot acquire the status of reserved category by voluntary mobility into those categories, as that would play fraud on the Constitution. Relying on the ratio of Valsamma Paul (supra), the private respondent argues that from the age of 9 she suffered the same disadvantages as suffered by a tribal person and therefore her being born to OBC parents should not deprive her of the benefits of the ST(P) category, as her husband’s community have accepted her as a member of their community. 7. The Supreme Court took note of the decision in Valsamma Paul (supra) in its subsequent decision in Sandhya Thakur (supra) and the Court categorically held that a person born to a backward class, cannot claim the status of a reserved caste or community, on the basis of her marriage to a male of that community. 8. In Rajendra Shrivastava Vs. The State of Maharashtra reported in 2010(112) BOMLR 762, a Division Bench of Bombay High Court culled out the ratio of the judgment in Valsamma Paul (supra) and opined as under:- “…………………. 12. When a woman born in a scheduled caste or scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. 12. When a woman born in a scheduled caste or scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law. ……………………………..” The above view of the Bombay High Court was extracted by the Supreme Court and was fully endorsed in Rameshbhai Dabhai Naika Vs. State of Gujarat reported in (2012)3 SCC 400 . 9. When a non-tribal lady marries a tribal man, the status of the woman cannot automatically change and in my considered opinion, the benign provision of reservation have not been incorporated to address the suffering of a married person during single generation. If this be permitted, the benefits meant for those who have suffered disadvantages for generations will be usurped by individual, whose sufferings (if any) is confined to a few years in her own lifetime. 10. It must also be noted that the area where the respondent No.4 shifted after marriage, is a mixed population area where there is no predominance of tribal customs and rituals. In such circumstances, it is difficult to accept that the respondent No.4 was transplanted amongst disadvantaged surroundings and was suffering the indignities and disadvantages associated with tribal populace. 11. The statement given by the respondent No.4 before the Addl. D.C. clearly indicates that both the parents are Ahom and therefore she was admittedly born to OBC category parents. She was married to an ST community person and on that strength she secured the ST(P) certificate for herself. On this basis she was considered as a reserved category person and was then appointed against a reserved category vacancy on 22.02.2008 (Annexure-4). She was married to an ST community person and on that strength she secured the ST(P) certificate for herself. On this basis she was considered as a reserved category person and was then appointed against a reserved category vacancy on 22.02.2008 (Annexure-4). But I am of the view that this benefit granted to a non-tribal person is undeserved in the context of the legal provision and the law enunciated by the Courts in India. 5. In view of the discussion in the preceding paragraphs and noticing that the respondent No.4 was born to OBC parents and was married to an ST(P) person, I hold that she could not have been considered for a post reserved for ST(P) category person. Therefore her appointment made by the impugned order dated 22.02.2008 (Annexure-4) is held to be legally unsustainable and the same is quashed. With this order the petition stands allowed accordingly without any order on cost.