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2017 DIGILAW 1301 (GAU)

Banti Doley v. Junumani Pegu

2017-09-16

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. B.D. Konwar, learned Senior Counsel for the appellant as well as Mr. B.D. Das, learned Senior Counsel for respondent Nos. 1 to 6. Also heard Mr. R.K.D. Choudhury, learned Additional Senior Government Advocate, Assam for respondent Nos. 7, 8 and 9. This present appeal is directed against the judgment and order dated 06.08.2015 passed in WP(C) 4813/2008. By the said judgment, the challenge made to the appointment of the appellant to the post of Junior Assistant in the establishment of Deputy Commissioner, Sonitpur was upheld and, accordingly, her appointment order was set aside. 2. Facts not in dispute are that the appellant Smti. Banti Doley was born on 1st February, 1983 to an Ahom family, which belongs to the Other Backward Class (OBC) community. At the tender age of 9 (nine) years she was given in marriage to Sri Jadu Ram Doley in the year 1992, a member of Mishing community and belonging to the reserved category of Scheduled Tribes (Plains). On and from the date of her marriage she lived with her husband and amongst the Mishing community using the surname as Doley. She pursued her school studies at Kabbi Gum High School and passed the High School Leaving Certificate Examination in the year 2005. In the Certificate issued by the Board of Secondary Education, Assam, her date of birth is recorded as February 01, 1983. As regards her caste status, a Certificate dated 29.08.2001 was issued by the Government of Assam in the Department for Welfare of Plains & Backward Classes, duly countersigned by the Sub-Divisional Officer (Civil), Gohpur, certifying that she belongs to ST(P) Mishing Tribe which is recognised as Scheduled Tribes under the Constitution (Scheduled Tribes) Order, 1950, as amended from to time. On 20.3.2007, an Advertisement was issued for filling up temporary posts of Grade-III and Grade-IV in the amalgamated establishment of the Deputy Commissioner, Sonitpur, Tezpur, which included 10 (ten) vacant posts of Junior Assistants. The appellant being eligible, applied for the post of Junior Assistant on 27.03.2007 along with necessary certificates, including the Caste Certificate dated 29.08.2001. Following a selection process, Banti Doley was appointed to one of the posts of Junior Assistant earmarked for ST(P) category candidates vide appointment order dated 22.02.2008. She joined her post on 03.03.2008. Following such appointment, a complaint/representation was made on 31.07.2008 by respondent Nos. Following a selection process, Banti Doley was appointed to one of the posts of Junior Assistant earmarked for ST(P) category candidates vide appointment order dated 22.02.2008. She joined her post on 03.03.2008. Following such appointment, a complaint/representation was made on 31.07.2008 by respondent Nos. 2, 3 and 4 herein/writ petitioner Nos. 2, 3 and 4 before the Chairman, ITDP, Gohpur Sub- Division to initiate an enquiry as regards her ST(E) category status. An enquiry was initiated by the Additional Deputy Commissioner, Sonitpur wherein the statement of Banti Doley was recorded and report thereof was submitted to the Deputy Commissioner, Sonitpur on 31.07.2008. In the said report, observation was made that Caste Certificate of Banti Doley had been issued without verifying the antecedents of her parents and the same was issued in a routine manner. When the matter rested thus, 6 (six) candidates belonging to the ST(P) category, including the complainants, who had participated in the selection process, filed WP(C)4813/2008 challenging the appointment order dated 22.02.2008 as well as the Caste Certificate of Banti Doley. The writ petition was allowed to the extent of interfering with the Appointment Order dated 22.02.2008 by reason that Banti Doley being born to OBC parents and married to a person belonging to ST(P) category, she could not have been considered for a post reserved for ST(P) category candidates. Aggrieved, Banti Doley has preferred the present appeal. 3. The writ petition was answered by taking note of the attendant facts as well as by making reference to the decisions of the Supreme Court in the case of Valsamma Paul v. Cochin University, reported in (1996) 3 SCC 545 ; Sandhya Thakur v. Vimla Devi Kushwah & Ors., reported in (2005) 2 SCC 731 ; Rameshbhai Dabhai Naika v. State of Gujarat, reported in (2012) 3 SCC 400 , as well as the Bombay High Court decision in Rajendra Shrivastava v. The State of Maharashtra, reported in 2010 (112) BOMLR 762. Relying on the ratio laid down by the Supreme Court, the learned Single Judge reached the following findings: "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. Relying on the ratio laid down by the Supreme Court, the learned Single Judge reached the following findings: "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." 4. The decision in Valsamma was referred to and relied upon in the later decision in Sandhya Thakur. Valsamma had also come up for consideration in another subsequent decision in Rameshbhai Dabhai Naika, wherein the Division Bench judgment of this Court in Arabinda Kumar Saha v. State of Assam & Ors, 2001 (3) GLT 45 was also taken note of. The case in Valsamma, in our considered opinion, is the pivot for deciding the present appeal. Valsamma was disallowed the benefits of reservation under Articles 15 and 16 of the Constitution primarily for two reasons. First, she was born in a Forward Class and had an advantageous start in life and had not gone through the same disabilities, disadvantages, indignities or sufferings as other members of the Backward Class. Second, she claimed the benefits of reservation by getting transplanted into the Backward Class by means of marriage through voluntary mobility. On these two grounds, the Supreme Court held that to give benefit of reservation to Valsamma would amount to a fraud on the Constitution. Sandhya Thakur was decided in the light of the decision in Valsamma and the Supreme Court held that the appellant therein who was a Maharashtrian Brahmin woman and who apparently did not belong to a Backward Class or community at birth, 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. In Rameshbhai Dabhai Naika various Supreme Court decisions were taken note of, including Valsamma On an analysis thereof, the Supreme Court held that the legal position emerging is that in an inter-caste marriage or a marriage between a tribal and a non-tribal, the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The Supreme Court further observed that it was open to the child, begotten of an inter-caste marriage or a marriage between a tribal and non-tribal, to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe and did not have any advantageous start in life but on the contrary suffered the deprivations, indignities and handicaps like any other member of the community to which his/her mother belonged. No doubt, the said observations were made in respect of an offspring. It would now be essential whether in the peculiars facts of this case a determination can be made that the appellant is entitled to the benefit of reservation, as one belonging to the ST(P) category. 5. Applying the ratio laid down in Valsamma and Rameshbhai Dabhai Naika, a decision has to be arrived at on the facts of the present case and also to ascertain whether the appellant born through OBC parents and married to a person of reserved category had an advantageous start in life or suffered the disabilities, disadvantages, indignities as in the case of members of the reserved category. It would also be essential to determine whether the appellant who got transplanted into a community belonging to the reserved category by means of marriage was through voluntary mobility. 6. The facts in the present appeal quintessentially and undeniably depicts that by reason of her birth she originally belonged to OBC community. She was given in marriage to a person belonging to ST(P) category at a very young age of nine, that is, before she reached her teens. Being so transplanted into another community at such a tender age, it cannot be held that her movement into the other community by means of marriage was a voluntary mobility. She was given in marriage to a person belonging to ST(P) category at a very young age of nine, that is, before she reached her teens. Being so transplanted into another community at such a tender age, it cannot be held that her movement into the other community by means of marriage was a voluntary mobility. Categorical stand taken in paragraph 7 of the affidavit-in-opposition filed by Banti Doley in the writ proceedings is that since the year of her marriage to Jadu Ram Doley in the year 1992, she has been living in her husband's community where she has also been accepted as part of the community. Statement is also made that as part of the Mishing community she has gone through disadvantages and sufferings to which the people of Mishing community are exposed to. It is also stated that she completed her education by staying amongst the Mishing community and had also faced similar disadvantages that confronts people of the said Mishing community. The statement made at paragraph 7 have remained uncontroverted. In Arabinda Kumar Saha, which is referred to in paragraph 53 of Rameshbhai Dabhai Naika, it has been held that to determine as to whether a person belonged to a particular class or community it is to be seen whether he is accepted by that community as part of it. Even at the cost of repetition, it is observed that the ST(P) community treated Banti Doley as belonging to the community. Also, while prosecuting studies, she was treated as a member belonging to ST(P). Important to note she was issued with the Caste Certificate and in that regard there is no allegation from any quarters that the same was obtained fraudulently. 7. The reasons for disallowing Valsamma to get the benefits of reservation are the same grounds which now operate in favour of the appellant, in that, although being born in OBC community, she did not have an advantageous start in life as she was given in marriage at a tender age when she was just a child. Her marriage at such a young age, when cognitive faculties cannot be held to have developed, such marriage cannot amount to voluntary mobility from OBC to ST(P) community. Her marriage at such a young age, when cognitive faculties cannot be held to have developed, such marriage cannot amount to voluntary mobility from OBC to ST(P) community. From the uncontroverted statements made in paragraph 7 of the affidavit-in-opposition, she has been living amongst the ST(P) community from the time she got married and she was also accepted as part of that community. She had also undergone the disabilities, disadvantages and sufferings as the other people of the said community, which also pervaded during her education period. In this respect, the observation made by the learned Single Judge in paragraph 10 of the impugned judgment, cannot receive our agreement. For all the findings and discussions above, we find that the appellant, in the facts of the case, has successfully established that she is entitled to all benefits of reservation as one belonging to ST(P) category. We, accordingly, set aside the judgment and order dated 06.08.2015 in WP(C) 4813/2008 and order restoration of her Appointment Order dated 22.02.2008. The present appeal stands- allowed by imposing cost of Rs. 1,000/- each on each of the private respondents/writ petitioners for subjecting the appellant to unnecessary litigation. Cost so imposed be paid to the appellant through the Registry of this Court within 1 (one) month from today, failing which, the private respondents/writ petitioners will be open to proceedings for recovery of the amount as arrears of land revenue. Appeal Allowed.