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2018 DIGILAW 388 (GAU)

Birendra Singh v. State of Assam

2018-03-05

PRASANTA KUMAR DEKA

body2018
JUDGMENT & ORDER : Prasanta Kumar Deka, J. Heard Mr. A Dhar learned counsel, appearing on behalf of the petitioner also heard Mr. SR Bora the learned Government Advocate, Assam appearing for the respondents. 2. Mr. Dhar submits that the mother of the present petitioner got married to his father Kishore Kumar Talukdar on 2.7.1994 and the petitioner was born to them on 7.2.1997. The parents of the present petitioner separated themselves on the strength of a divorce decree dated 05.05.2000 passed by learned District Judge, Nagaon in TS (D) Case No. 5/2000 and the petitioner remained under the custody of the mother. Since 1998 the petitioner is residing with his mother and thereafter he passed his HSLC examination from the place of the maternal grandfather. The parents of the mother of the petitioner are from the Sikh Community and Sub-Caste is Bhangi. The petitioner is well conversed with the Sikh religion and on 7.2.2016 he converted himself into Sikhism from Hinduism to which his father belonged by attending a Sikh religious function organised by the Central Gurudwara Barhola, Nagaon in the presence of his mother, maternal grandparents and other Sikh Religious spirited person. 3. On 15.06.2017 the petitioner applied before the Deputy Commissioner, Nagaon the respondent No. 3 and the prayer for issuance of a Scheduled Caste Certificate was rejected. It is submitted that the petitioner was born in a Hindu family, he was brought up as a Sikh in his maternal grandfather house and after conversion to Sikh religion he christened himself into the Sikh Bhangi community by attending the religious function at the aforesaid Gurudwara and as such he is entitled to get the Scheduled Caste Certificate from the authority. The said application was rejected vide order dated 3.08.2017 by the Additional Deputy Commissioner, Nagaon. 4. Being aggrieved the petitioner has preferred this writ petition for appropriate direction to the respondents more specifically the Respondent No. 3 to issue him the certificate of Scheduled Caste as he belongs to Sikh Bhangi Sub-Caste community, after he adopted Sikhism from Hinduism on 07.02.2016. Mr. Dhar submits that the present petitioner is entitled to the said certificate and in support of his contention relied Arbinder Kumar Saha and Ors v. State of Assam and Ors. reported in 2001 (3) GLT 45 and Rameshbhai Dabhai Naika v. State of Gujarat and Ors. reported in (2012) 3 SCC 400 . 5. Mr. Mr. Dhar submits that the present petitioner is entitled to the said certificate and in support of his contention relied Arbinder Kumar Saha and Ors v. State of Assam and Ors. reported in 2001 (3) GLT 45 and Rameshbhai Dabhai Naika v. State of Gujarat and Ors. reported in (2012) 3 SCC 400 . 5. Mr. Bora obtained necessary instruction from the respondents specifically the respondent no. 1 and as per the said instruction Mr. Bora submits that the off spring of a couple where one of the spouses belongs to Scheduled Caste (SC) does not automatically belong to SC unless the off spring is brought up in the same social customs and environment of the SC community and has been accepted as such by the community. Mr. Bora submits that until and unless the said requisite criteria are established the present petitioner is not entitled to the relief sought for in this writ petition. 6. Considered the submissions of the learned counsels. In 2001 (3) GLT 45 (supra) a Division Bench of this Court while deciding a similar issue as that of the present petitioner held as follows, "7. From the aforementioned authorities it is evident that primarily to determine as to whether a person belongs to particular class or community it is to be seen whether he is accepted by that community as a part of it. In the present case, as observed above, the appellant-petitioner has not only the office holder of Annusuchit Jati Karmachari Parishad but the Scheduled Caste community treated the appellant as belonging to scheduled Caste and even the non-Scheduled caste people treated the appellant-petitioner as Scheduled Caste inasmuch as in his college career and his service career he was treated as member belonging to the scheduled Caste". In (2012) 3 SCC 400 (supra) the learned Apex Court while discussing the similar issue held as follows that the determination of caste of a person from an inter-caste marriage cannot be determined in complete disregard of attending facts of a case as follows:- "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. 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 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, humiliates 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". 7. Keeping in view the aforesaid principles, it is found that the present petitioner has submitted the certificate issued by the President, Central Gurudwara Borkhola, Nagaon where from it is apparent that the petitioner has converted himself to the Sikh religion and produced a certificate issued by the President Purana Gurudwara Borkhola, Nagaon certifying that the petitioner hails from a Sikh family of Bhangi (sub-caste) of maternal grandfather and he has been accepted by the said society. The maternal grandfather, Pritam Singh belongs to the said community of 'bhangi' which is Scheduled Caste under the Constitution of Scheduled Caste and Schedule Tribes Order 1950 as amended by the Scheduled Caste and Scheduled Tribes List (Notification Order) 1976. The said fact is supported by certificate issued by the competent authority. Similar caste certificate is also put on record by the petitioner in support of the fact that the mother of the petitioner belonged to the said sub-caste. 8. In view of the materials so placed before this Court including the divorce order dated 5.5.2000 between the parents of the present petitioner, this Court is of the view that the petitioner is entitled to the certificate of Scheduled Caste which he applied before the Deputy Commissioner, Nagaon. 8. In view of the materials so placed before this Court including the divorce order dated 5.5.2000 between the parents of the present petitioner, this Court is of the view that the petitioner is entitled to the certificate of Scheduled Caste which he applied before the Deputy Commissioner, Nagaon. Considering the same and as the criteria placed before this Court by the learned Counsel appearing on behalf of the respondent are satisfied, this writ petition is disposed of with a direction to the Deputy Commissioner, Nagaon to issue the appropriate Scheduled Caste certificate to the present petitioner, on submission of a copy of this writ petition along with the annexures and the certified copy of the order passed today within a period of one month from the submission of the copy of the writ petition along with the order. 9. This writ petition is accordingly disposed of.