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2017 DIGILAW 988 (JHR)

Anita Mahto v. State of Jharkhand

2017-06-22

RAJESH SHANKAR

body2017
JUDGMENT : Heard learned counsel for the parties. 2. By way of the present writ petition, the petitioner has prayed for quashing the order dated 01.06.2006 passed by the respondent No.2 by reasons of which the representation of the petitioner, filed in pursuance of the order passed by this Court in W.P.(C) No. 4605/2005, has been rejected. The petitioner has also prayed for issuance of a direction upon the respondent No.2 not to act in pursuance of the order dated 01.06.2006 whereby the representation of the petitioner for grant of Schedule Tribe certificate has been rejected. The petitioner has further prayed for issuance of a direction upon the respondent No.3 to forthwith grant Scheduled Tribe certificate to the petitioner. 3. The factual matrix of the case, as borne out from the writ petition, is that the father of the petitioner, namely, Gobardhan Mahto was ‘Kurmi’ by caste, who solemnized marriage with Fulmani Tudu, a lady hailing from the Scheduled Tribe community and out of the said wedlock, the petitioner was born. The petitioner applied for issuance of residential as well as caste certificate before the Circle Officer, Nala (under District-Jamtara) for which the Circle Officer requested the District Welfare Officer, Jamtara to inquire into the matter. A copy of the said letter was also communicated to the respondent No.2, who vide letter dated 28.01.2003, directed the Circle Officer to act in accordance with the judgment rendered by the Hon’ble Supreme Court in the case of Anjan Kumar Vs. Union of India & Ors. reported in (2006) 3 SCC 257 . The Block Welfare Officer, Nala made an enquiry in which the villagers of Lakhipara informed in writing that the marriage of the parents of the petitioner was performed as per tribal rituals and the petitioner has been accepted in the Tribal community of her mother. Thereafter, vide letter No.56 dated 05.08.2003, the respondent No.3 requested the respondent No.4 to give a direction for grant of Scheduled Tribe certificate to the petitioner. Subsequently, the respondent No.4 directed the respondent No.3 to grant Scheduled Tribe certificate to the petitioner, but the said certificate was not issued to the petitioner. Thereafter, vide letter No.56 dated 05.08.2003, the respondent No.3 requested the respondent No.4 to give a direction for grant of Scheduled Tribe certificate to the petitioner. Subsequently, the respondent No.4 directed the respondent No.3 to grant Scheduled Tribe certificate to the petitioner, but the said certificate was not issued to the petitioner. As such, the petitioner filed a writ petition being W.P.(C) No. 4605/2005 before this Court and vide order dated 16.11.2005, the matter was remitted back to the respondent No.2 to consider and dispose of the petitioner’s representation for issuance of the Scheduled Tribe certificate within a period of three months. Thereafter, in compliance of the order dated 16.11.2005 of this Court passed in W.P.(C) No. 4605/2005, the respondent No.2 rejected the petitioner’s representation vide impugned order dated 01.06.2006 giving reference to the judgment rendered by the Hon’ble Supreme Court in the case of Anjan Kumar Vs. Union of India & Ors. (Supra) and observing, inter alia, that earlier the petitioner had filed an affidavit before the Circle Officer stating that she belongs to ‘Kurmi’ caste. 4. The petitioner has put challenge to the order dated 01.06.2006 passed by the respondent No.2 in the present writ petition. 5. Learned counsel for the petitioner submits that once the marriage of a non-tribal man with a tribal lady is accepted by the tribal community, the child born out of the said wedlock, should get the tribal status. On perusal of the letter given by the co-villagers of Village-Lakhipara to the Circle Officer and the Block Welfare Officer of Nala, Jamtara, it is evident that the tribal community of the said village have accepted the father of the petitioner as the son-in-law of the tribal community. It would further be evident from the said letter that the petitioner has also been accepted as a tribal girl by the co-villages of Village-Lakhipara and she would continue to be accepted as a tribal girl by the said community. Even accepting the fact that the petitioner was born and brought up at Village-Eklabyapur where the petitioner's father had settled after migrating from Dhanbad and the same may not be a tribal village, yet Village-Eklabyapur is situated in the same Block-Nala under District-Jamtara itself. The petitioner has studied up to Intermediate level from the school/college under Block-Nala. The certificates with regard to the study of the petitioner have been annexed as Annexure-1 to the writ petition. The petitioner has studied up to Intermediate level from the school/college under Block-Nala. The certificates with regard to the study of the petitioner have been annexed as Annexure-1 to the writ petition. The date of birth of the petitioner is 13.08.1987. The report of the Circle Officer does not disclose the fact as to whether Village-Eklabyapur where the father of the petitioner settled and the petitioner was also brought up, is a tribal village and whether being brought up in the said village, the petitioner suffered any social, economic and educational backwardness as a tribal girl. In support of his submission, learned counsel for the petitioner puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat & Ors. reported in (2012) 3 SCC 400 . Learned counsel for the petitioner finally submits that the impugned order dated 01.06.2006, issued by the respondent No.2, may be set aside and the respondent No.3 may be directed to issue the Scheduled Tribe certificate to the petitioner. 6. Learned counsel appearing on behalf of the respondent-State while referring to the counter affidavit, submits that the father of the petitioner Govardhan Mahto is ‘Kurmi’ by caste and the petitioner could not produce any documentary evidence i.e. records of right or Parcha in support of the fact that she belongs to a tribal community. It is further submitted that there is no doubt that the mother of the petitioner Fulmani Tudu is a tribal lady, who belongs to tribal community (Santhal), but the petitioner has adopted the surname of her father i.e. Mahto, which refers to backward class and not Scheduled Tribe. It is also submitted that the Hon’ble Apex Court in the case of Anjan Kumar Vs. Union of India & Ors. (Supra) has held that issuance of Scheduled Caste or Scheduled Tribe caste certificate is not a bounty to be distributed. The concerned official issuing the caste certificate is duty bound to satisfy itself that the applicant has suffered social, economic and educational disabilities and issuing such certificate in routine manner, would be dereliction of Constitutional duty. 7. (Supra) has held that issuance of Scheduled Caste or Scheduled Tribe caste certificate is not a bounty to be distributed. The concerned official issuing the caste certificate is duty bound to satisfy itself that the applicant has suffered social, economic and educational disabilities and issuing such certificate in routine manner, would be dereliction of Constitutional duty. 7. Having heard learned counsel for the parties and going through the relevant documents placed on record, it appears that the respondent No.2 has passed the impugned order dated 01.06.2006 refusing to issue the Scheduled Tribe certificate to the petitioner on the ground that earlier the petitioner had given an affidavit before the Circle Officer, Nala stating that she belongs to ‘Kurmi’ caste (backward caste). The respondent No.2 in the impugned order has also referred to the judgment of the Hon’ble Supreme Court rendered in the case of Anjan Kumar Vs. Union of India & Ors. (Supra) and thereby rejected the representation of the petitioner. 8. In the case of Rameshbhai Dabhai Naika Vs. State of Gujarat & Ors. (Supra), the Hon’ble Apex Court while considering the earlier judgments rendered by the Hon’ble Supreme Court on the same issue in Valsamma Paul case reported in (1996) 3 SCC 545 , Punit Rai case reported in (2003) 8 SCC 204 and Anjan Kumar case (Supra), has held as under: “55. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well.” 9. Additionally, that he was always treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well.” 9. On consideration of the judgment rendered by the Hon’ble Apex Court in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat & Ors. (Supra), it can be construed that a child born out of the marriage between a non-tribal father and a tribal mother has liberty to lead evidence before the authority to show that he/she being the child of a non-tribal father did not have any advantageous start in life, rather he/she suffered deprivations, indignities, humilities and handicaps like any other member of the tribal community to which his/her mother belonged. It is also open to the said child to prove that he/she was always treated as a member of the community to which his/her mother belonged. It is also to be seen by the State-authority that the child born out of the wedlock of a non-tribal father and a tribal mother has suffered social, economic and educational deprivations as a member of tribal community, despite the fact that the father of the child is a non-tribal. 10. On perusal of the impugned order dated 01.06.2006 passed by the respondent No.2, it appears that though the same refers to the judgment rendered by the Hon’ble Supreme Court in the case of Anjan Kumar Vs. Union of India & Ors. (Supra), yet there has been no finding with regard to the fact as to whether the petitioner faced any advantageous start in life being a daughter of a non-tribal father. The impugned order also does not contain any factual finding as to whether the petitioner suffered any deprivation, indignity, humility or any other handicap like any other member of the tribal community. 11. In view of the above discussions and on the strength of the judgment rendered by the Hon’ble Apex Court in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat & Ors. (Supra), the impugned order dated 01.06.2006 cannot be said to be legally sustainable and the same is, hereby, quashed and set aside. The respondent No.2 is directed to pass fresh order on the petitioner’s representation after making a thorough enquiry in terms with the observations made herein above. The writ petition is, accordingly, disposed of with aforesaid observations and directions.