S.J.MUKHOPADHAYA, J.
The appellant was granted community certificate as Scheduled Caste. After due enquiry, having found that she does not belong to Scheduled Caste community, but married to a Scheduled Caste person, her community certificate was cancelled. In view of such cancellation, Oriental Insurance Company (hereinafter referred to as 'insurance company') issued notice to the appellant for terminating her service. Having unsuccessfully challenged, the appellant has preferred the writ appeal.
2. The brief facts of the case are as follows :-
The appellant, who belongs to Hindu Vanniyakula Kshtriya community, married one S.B.Palani, a Hindu Adi Dravidar (SC) on 10th Aug., 1977. She applied for community certificate and was granted certificate dated 2nd Dec., 1977 from Fort Tondiarpet Taluk Office declaring that she deemed to have converted to Hindu Adi Dravidar community, a Scheduled Caste, by virtue of her marriage, celebrated on 30th June, 1977 with Thiru S.B.Palani, who belonged to Hindu Adi Dravidar community by birth. Thereafter, she applied for appointment. The Assistant Director, District Employment Office, Chennai, having noticed the fact, by letter dated 12th Dec., 1977, requested the Tahsildar, Fort Tondiarpet Taluk Office, Madras, to forward the relevant Government Order treating those belonging to other community as Scheduled Caste by virtue of marriage. The Tahsildar, by letter dated 30th Nov., 1978, informed that pursuant to Government Letter No.Ms.493/BCI/76 dated 11th June, 1976, the appellant has been classified as belonging to Hindu Adi Dravidar Community (SC). On the basis of the certificate, the insurance company issued letter of appointment in her favour.
The Collector of Madras, subsequently, issued a notice to the appellant as to why the community certificate issued in her favour by the Tahsildar by proceeding dated Nov., 1978 should not be cancelled. This was communicated by the Vigilance Officer of the insurance company, which was communicated to the appellant by letter dated 20th Oct., 1990. A separate show cause notice was also served on the appellant, issued by the Collector of Madras vide show cause notice dated 25th Sept., 1990.
The appellant replied to the Collector on 26th Oct., 1990. While she denied that she belonged to Hindu Vanniyakula Kshtriya community by birth, she took plea that she married S.B.Palani, who belonged to Hindu Adi Dravidar community by birth. The community certificate was issued pursuant to order issued by the Government vide letter No.Ms.493/BCI/76 dated 11th June, 1976.
When the verification of community certificate was pending, the appellant wrote another letter on 21st Jan., 1991 to the Collector, Madras and communicated the extract of the letter dated 11th June, 1976. The Collector of Madras, by proceeding dated 20th Aug., 1991, giving reference to the guidelines issued by the Government of India and other records, cancelled the appellant's community certificate dated Nov., 1978.
The appellant, thereafter, preferred appeal before the Commissioner of Revenue Administration, Madras, by her letter dated 14th Oct., 1991 and requested to restore her status as Scheduled Caste. The Commissioner, after perusing all the records, rejected the appeal on 18th July, 1992, in view of which the insurance company issued notice and charge memo dated 28th Oct., 1992, giving rise to the writ petition.
3. Learned counsel appearing on behalf of the petitioner made the following submissions :-
i) In view of policy decision of the State Government circulated by letter dated 11th June, 1976, after marriage to the appellant, her social status having changed, the community certificate was rightly issued in her favour on 2nd Dec., 1977 and Nov., 1978.
ii) Once her husband's community accepted her and took her in their fold of the Scheduled Caste society, the community certificate showing her as Hindu Adi Dravidar (SC) was rightly issued.
iii) Mere change of policy decision in view of Government of India guidelines will not invalidate the earlier action taken, including the community certificate issued in her favour.
iv) There being no misrepresentation made by the petitioner at the time of appointment, she having appointed on the basis of a valid certificate issued by the competent authority, the proceeding for misconduct is uncalled for.
4. Learned counsel appearing on behalf of the insurance company submitted that the caste of a person cannot be changed on marriage. He also placed reliance on one or other decision of the Supreme Court, but it was accepted that there was no misrepresentation on behalf of the appellant at the time of appointment. In this connection, he produced a letter dated 31st Jan., 2005 addressed from the Personnel Department of the Oriental Insurance Company, Regional Office, Chennai to the Personnel Department of the Oriental Insurance Company, Head Office, New Delhi.
5. We have heard the learned counsel for the parties and perused the records.
6. Learned counsel for the appellant relied on Supreme Court decision in State of Maharashtra Vs Om Raj (2007 (14) SCC 488). That was a case in which the benefit as SC/ST was based on error. The Supreme Court considered what can be done on error being discovered. That was a matter relating to admission in professional college. A person, though not found belonging to Scheduled Tribe was admitted to professional college as per order of the High Court; therefore, in that case, protection was granted in the light of order of Supreme Court in Milind's case (2001 (1) SCC 1). However, the appellant cannot derive the advantage of the same as the Supreme Court passed the said order under
Article 142 of the Constitution of India.
Another case relied on by the appellant is the case of Punjab National Bank Vs Vilas (2008 (14) SCC 545). There was a wrong appointment made, but by Maharashtra Government Resolution dated 15th June, 1995, appointments of non-tribals appointed prior to 15th June, 1995, were saved. In absence of any such provision, the appellant cannot derive advantage of the same.
7. Learned counsel for the appellant placed much reliance on so-called policy decision of the State Government communicated vide letter No.Ms.493/BCI/76 dated 11th June, 1976. Therein, the following direction was issued :-
Sub : Welfare of Backward Classes Social Status of a male member or female member of a forward community who has married a person from a Backward classes community consequent on his/her marriage Clarification Orders issued.
Ref : Your letter No.2296/Tutor/73 dt. 25.3.76
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I am directed to invite a reference to your letter cited enquiring whether one Thirumathi K.S.Meenakshi a member of forward community (now Thirumathi K.S.Ameena Shapir) can be considered to belong to Labbai Community which is included in the list of Backward Classes by virtue of her conversion to Islam and marriage to a Member belonging to Labbai Community. The Commissioner has requested for orders on the question whether social status of a male member or female member of a forward community who has married a person from a Backward Class or Scheduled Caste will change consequent on his/her marriage and if so, whether he/she can be treated as a member of Backward Class or Scheduled Caste, as the case may be for the purpose of granting concession in the matter of appointment in the Public Service.
2. The Government have examined the matter carefully. The social status of a male/female member of a forward community will not change merely because he/she has married a person from a Backward Class or Scheduled Class Community. The crucial test is whether the marriage couple were accepted by the members of that caste to which they claim to belong and that it can be proved by showing inter-marriage, inter-dining community of worship and dress, residence in a particular place and the like.
3. In the specific case cited by the commission in the letter cited, it is seen that Tmt.K.S.Meenakshi (now Tmt.K.S.Ameena Shapi) has converted herself into Islam and that she resides with her husband and that the community of her husband (Labbai) has accepted her as one among themselves. In view of the above, she can be treated as belonging to Labbai Community which is included in the list of Backward Classes.
Sd/-
for Secretary to Govt. However, Government of India having come to know of the said letter, by letter No.34726/A 85-1 dated 18th March, 1985, informed as follows :-
No person who was not an S.C. or S.T. by birth will be deemed to be a member of a S.C. or S.T. merely because he or she had married a person belonging to S.C. or an S.T.
8.
Article 341 of the Constitution empowers the President to specify the caste, race or tribes or part of groups within the caste, race or tribes, which shall, for the purpose of the Constitution be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be. Parliament may, by law, include in or exclude from the list of Scheduled Caste specified in a notification issued under clause (1) of
Article 341 any caste, race or tribe or part of a group within any caste, race or tribe. Similar power is vested with the President under
Article 342 with regard to Scheduled Tribe.
9. Similar matter fell for consideration before the Supreme Court in Valsamma Paul Vs Cochin University (AIR 1996 SC 1011 :: 1996 (3) SCC 545). In the said case, Supreme Court while noticed the Full Bench decision of Kerala High Court, wherein it was observed that the special provisions under Articles 15 (4) and 16 (4) of the Constitution intended for advancement of social and educationally backward class of citizens cannot be defeated by including candidates by alliance or by any other mode of joining the community. It would tantamount to making a mockery of the constitutional exercise of identification of social and educationally backward class of citizen, the Supreme Court observed and held as follows :-
34. In Muralidhar 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 institutions, 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 constitutional policy under Articles 15 (4) and 16 (4) of the Constitution.
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36. 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 completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Lation Catholic, a backward class.
10. In Sobha Hymavathi Devi Vs Setti Gangadhara Swamy & Ors. (2005 (2) SCC 244), Supreme Court observed that reservation under Articles 15 (4) or 16 (4) or 330 or 332 would benefit only those who belong to Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by virtue of marriage.
Similar was the view of Supreme Court in Meera Kanwaria Vs Sunita & Ors. (2006 (1) SCC 344).
11. In view of the provisions of Articles 341 and 342 of the Constitution of India and the decision of Supreme Court, we hold that the State Government had no jurisdiction to declare that non SC/ST, on marriage with SC/ST will deem to be a SC/ST after such marriage. The Government of India, by letter dated 18th March, 1985, rightly pointed out such mistake made by the State Government. We further hold that a non Scheduled Caste/Scheduled Tribe cannot claim to acquire status of Scheduled Caste/Scheduled Tribe by marriage and, thereby, the appellant cannot derive the advantage of circular dated 11th June, 1976.
12. So far as the question of misconduct is concerned, we are not deliberating on the issue as a proceeding has merely been initiated against the appellant. The appellant has stated that she never misrepresented and in view of the letter dated 11th June, 1976, she was granted community certificate as Scheduled Caste. She applied along with others and the insurance company, having noticed the full facts, appointed her against the post. Therefore, she has not committed any fraud nor misrepresented for appointment in the insurance company. The letter written by the Personnel Department from its Regional Office, Chennai dated 31st Jan., 2005, also speaks in the same manner. In these circumstances, we are of the view that the appellant may bring the aforesaid fact to the notice of the enquiry officer and the competent authority, who may decide whether in the background aforesaid it can be alleged that the petitioner made any misrepresentation and whether proceeding should be dropped.
The writ appeal stands disposed of with the aforesaid observations. But there shall be no order as to costs.
GLN To
1. Special Commissioner and Commissioner for Revenue Administration, Ezhilagam Chepauk, Madras 600 005.
2. The Collector Office of the Collectorate Ezhilagam, Chepauk Madras 600 005.
3. The Tahsildar Fort Tondiarpet Taluk Madras 600 001