Writ Petition No. 3843 of 2002

30th September, 2002

Petitioner Counsel: Mr. ABHAY OKA,Ms. GODSE
Respondent Counsel: Mr. C.R. SONAWANE.

Cases Cited:
Valsamma Paul Vs. Cochin University, AIR 1996 S.C. 1011 [Para 9,10,11,12,14]
Public Service Commission Vs. Dr. Kanjamma Alex, 1981 Ker LT24 [Para 12]
Mohan Rao's case, AIR 1976 SC 1904 [Para 15]
Kailash Sonkar's case, AIR 1984 SC 600 [Para 16]
Horo's case, AIR 1972 SC 1840 [Para 17]
C.M. Arumugam Vs. Rajagopal, AIR 1976 SC 939 [Para 18]
Soosai Vs. Union of India, AIR 1986 SC 733 [Para 19]
Madhuri's case, 1994 AIR SCW 4116 [Para 20]
Laveti Giri's case, 1995(3) JT SC 684 [Para 20]

JUDGMENT

SMT. RANJANA DESAI,J.:- Rule, Respondents waive service. By consent of the parties, the petition is taken up for hearing forthwith.

2. This petition takes exception to the order dated 20.8.2002, passed by the Committee for Scrutiny & Verification of Tribe Claims, Konkan Division, Thane ("the Scrutiny Committee" for short) invalidating the caste certificate dated 31.1.1997, issued to the petitioner, by the Sub Divisional Magistrate, Bhiwandi, certifying that she belongs to Warli, Scheduled Tribe.

3. The petitioner's case is that she is "Agri" by birth. In the year 1987, she got married to one Tukaram Balu Sayre who belongs to Warli Community. Warli Community is recognised as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order 1950 ("the said Order" for short). Agri community is not declared a Scheduled Tribe thereunder. On the basis of her marriage, the Sub-Divisional Magistrate, Bhiwandi, issued the aforementioned certificate stating that the petitioner, her husband and their progeny is eligible for the concessions admissible to Scheduled Tribes.

4. The petitioner got elected as a member of respondent 3, the Thane Zilla Parishad in the election held in 2002 against a seat reserved for Scheduled Tribe. The Collector, Thane, referred the petitioner's case to respondent, 2 Scrutiny Committee for verification of caste claim. The petitioner produced documents in support of her claim. By order dated 21.5.2002, the Scrutiny Committee held that the petitioner did not belong to Scheduled Tribe Community. Being aggrieved by the said order the petitioner preferred the present writ petition taking up various contentions.

5. At the time of admission, the learned counsel for the petitioner contended that no notice of hearing was given to the petitioner and, therefore, the petitioner could not satisfy the Scrutiny Committee about the validity of her caste claim. This ground was not specifically taken in the petition. It was orally urged. The learned AGP could not controvert it. This being an admitted position, on 1.8.2002, we allowed the petitioner to amend the petition and take up this ground, which he did by adding ground 4(aa). The learned AGP made a statement that personal hearing will be given to the petitioner and fresh order will be passed within a week thereafter. This Court recorded the said statement and adjourned the petition.

6. Accordingly the petitioner was given a hearing. The petitioner filed affidavits in support of her claim and submitted documents. The Scrutiny Committee by its order dated 20.8.2002 invalidated the petitioner's caste claim; inter alia, relying on the Supreme Court's judgment in Valsamma Paul v. Cochin University & Ors. A.I.R. 1996 S.C. 1011, and hence the petitioner has amended the petition and challenged the said order.

7. A very short point is involved in this case. By birth the petitioner is Agri. Agri community is not declared a Scheduled Tribe under the said order. She married Tukaram Balu Sayre on 23.5.1987. Tukaram Sayre belongs to Warli Community which is a Scheduled Tribe. The petitioner contested election to the Zilla Parishad and got elected on a reserved seat. The question is can the petitioner, who does not belong to a Scheduled Tribe by birth, claim the benefit of reservation meant for Scheduled Tribes? What is the status of such a woman? Does she by marriage acquire the caste of her husband for the purpose of securing advantages which may be due to that caste, it being covered under the said order?

8. Mr. Oka, the learned counsel appearing for the petitioner urged that the Scrutiny Committee has misread and misconstrued the judgment of the Supreme Court in Valsamma's case (supra). He relied on paragraph 35 of the said judgment where the Supreme Court has refered to the procedure for issuance of social status certificates and observed that as a part of it, the officer concerned should also verify, whether a convert has totally abjured his old faith and adopted as a fact, the new faith; whether he suffered all the handicaps as a Dalit or Tribe; whether conversion is only a ruse to gain constitutional benefits under Articles 15(4) or 16(4); and whether the Community has in fact recognised his conversion and treated him as a member of the Community. Mr. Oka contended that no such enquiry was conducted in this case. The Scrutiny Committee overlooked the petitioner's affidavit wherein she has stated that the Agri community to which she earlier belonged treated her as an outcaste; that she has voluntarily accepted her husband's caste and has been scrupulously following its traditions. The Scrutiny Committee has also ignored the affidavits of two other persons of the Warli Community who have stated that the petitioner has been subjected to the disadvantages of Warli Community as a consequence of her marriage. These affidavits, contended the learned counsel, ought to have been appreciated against the background of the above observations of the Supreme Court.

9. Mr. Oka also submitted that Valsamma's case, is not an authority for the proposition that a woman born in a forward caste, married to a person belonging to backward class cannot claim that she belongs to the caste of her husband. It only states that such a person is not eligible for the benefits of reservations under Article 15(4) or 16(4) of the Constitution of India. He, therefore, submitted that the impugned order deserves to be set aside.

10. Mr. Sonawane, the learned AGP supported the impugned order. He contended that the petitioner's case is clearly covered by the Supreme Court's judgment is Valsamma's case, and the Scrutiny Committee has rightly relied on it. He submitted that this Court should not interfere with the impugned order which is based on the said judgment.

11. We find it difficult to overturn the Scrutiny Committee's order, despite the strenuous efforts of Mr. Oka. In our opinion, observations of the Supreme court in Valsamma case are tailormade for the present case

12. In Valsamma's case, similar question fell for consideration before the Supreme Court. The appellant therein was a Syrian Catholic (forward class). She married a Latin Catholic (backward class). She applied to Kochin University for selection as a reserved candidate. The university selected her and appointed her against the reserved post. Her appointment was questioned. The matter travelled upto the Full Bench of the Kerala High Court. The Full Bench held that by marriage with a Latin Catholic, the appellant could not become a member of backward class nor can she claim that status. The Full Bench doubted the correctness of the Kerala High Court's judgment taking a contrary view in Public Service Commission v.Dr. Kanjamma Alex (1981) Ker. LT 24. The appellant approached the Supreme Court. The Supreme Court, considered the appellant's case as well as correctness of Kanjamma's case (Supra).

13. The Supreme Court extensively referred to the relevant provisions of the Constitution which aim at securing equality before law and equal protection of the laws and observed that equal protection requires affirmative action for unequals, handicapped due to untouchability or other social and educational backwardness. The Constitution has, therefore, made provision for reservation for these people. The Supreme Court then moved on to consider whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4) as the case may be. The Supreme Court observed that when a member is transplanted into the Dalits, Tribes and OBC's he/she must of necessity also undergo some handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. But the Supreme Court added a rider to it, that 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 Article 16(4) as the case may be. A note of caution was voiced that 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 of reservation. Therefore, the argument that because a forward caste woman marrying a backward caste person suffers disadvantages of the backward caste of her husband, she is entitled to the benefits of reservation meant for the backward caste must fail.

14. In our opinion reliance placed by Mr. Oke on paragrah 35 of Valsamma's judgment in support of his submission that, if the backward caste in which a person enters by reason of marriage accepts him, he becomes its member, is also misplaced. We will briefly refer to the cases to which the Supreme Court has made reference in this paragraph to show how utterly inapplicable they are to the case on hand.

15. In Mohan Rao's case (A.I.R. 1976 S.C. 1904), parents of Mohan Rao originally belonged to a Scheduled Caste. Mohan Rao became a Christian but reconverted to Hinduism and claimed the status as a Scheduled Caste. The Constitution Bench held that after conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion, automatically, but he would become such a member, if the members of the caste accept him as a member. It was found that caste/community had recognised him after reconversion as a member of the Scheduled Caste.

16. In Kailash Sonkar's case (A.I.R. 1984 S.C. 600), the Supreme Court was considering reconversion into Hindu fold, in the context of election law. In that case the respondent was born of Christian parents, she converted to Hinduism. She married one Shalwar who belonged to Katia caste which was a scheduled Caste. She contested elections to the Vidhan Sabha, describing herself as a person belonging to Scheduled Caste. She was declared elected. Her election was challenged on the ground that even if the respondent married a person belonging to Katia caste, her caste would not revive, because caste is determined not by marriage but by birth. By birth the respondent was a Christian. Against the backdrop of these facts it was observed by the Supreme Court, that the main test to decide whether the old caste of a person who belonged to Scheduled Caste but had left Hinduism and embraced Christianity or Islam would revive on his reconversion to Hinduism, should be genuine intention of reconvert to abjure his new religion and disassociate himself from it. It was further observed that there should be no exception or protest from the community members and in that case the caste would revive on the reconversion of the person to his old religion.

17. In Horo's case (AIR 72 SC 1840) the respondent was a Christian. She married a person belonging to Munda Scheduled Tribe. Her nomination papers were rejected. In the election petition filed by her she contended that though she was a Christian by religion, after her marriage the Munda Tribe had accepted her and hence she had acquired its membership. The Supreme Court, in these facts, held that since marriage of the respondent was accepted by Munda community she became member of the community.

18. In C.M. Arumugam V. S. Rajagopal (A.I.R. 1976 SC 939) somewhat similar facts were involved. The Supreme Court held that, if a person who has embraced another religion is reconverted to Hinduism and, if members of the caste are prepared to readmit him as a member, there is no reason why he should not be able to come back to the fold to which he belonged

19. In Soosai V. Union of India A.I.R. 1986 SC 733 the supreme Court was considering whether paragraph 3 of the said order discriminates against Christian members of the enumerated castes. Negativing the challenge, the Supreme Court held that in order to show that the same caste continues after conversion it must be established that the disabilities suffered from such caste membership continue after conversion.

20. It is after referring to these cases that the Supreme Court has adverted to Madhuri's case (1994 A.I.R. SCW 4116) and Laveti Girl's case (1995(3) JT (SC) 684) where procedure for issuance of social status certificate is set out. It is in this context that the Supreme Court has observed that "As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact the new faith; whether he suffered all the hardships as a Dalit or Tribe; whether conversion is only a ruse to gain constitutional benefits under Article 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and then issue such a certificate". These observations do not cover the case on hand, because they deal with cases of conversion/reconversion. This is evident from the fact that after referring to the cases of conversion, the Supreme Court reverted to the facts of the case before it and held that the appellant therein "had advantageous start in life and after her completing education and becoming major she married Yesudas; and so she is not entitled to the facility of reservation given to the Latin Catholic, a backward class". In our opinion these observations are very material and cover the present case.

21. The whole purpose behind reservations is to give concessions to those who do not have advantageous start in life by reason of their birth in a backward caste family. This issue was tackled by the Supreme Court in Valsamma's case. The Supreme Court focussed its attention on the misuse of reservation policy by person having an advantageous start in life by trying to get an entry into a backward class by marriage, adoption etc.and described such an attempt as fraud on Constitution. It is pertinent to note that in all those cases to which the Supreme Court has made reference in paragraph 35 of Valsamma's case, the person concerned did not have an advantageous start in life as in the present case. The Supreme Court separately dealt with appellant Valsamma's case and referred to her advantageous start in life and held that she is not entitled to the facility of reservation on account of her marriage with a person belonging to backward class. In our opinion, it is not necessary to dwell on this issue further because of the authoritative and clear pronouncement of the Supreme court in Valsamma's case which covers the present case.

22. We are more than certain that the petitioner by claiming to belong to a Scheduled Tribe, is trying to get benefit of reservation policy to which she is otherwise not entitled to. In the circumstances of the case, therefore, it is not necessary to deal with the second submission of Mr. Oka that Valsamma's judgment only says that a person who originally does not belong to a Scheduled Tribe will not get benefit of concessions under Article 16(4) of the Constitution of India after marrying a person belonging to a Scheduled Tribe but it does not lay down the law that such a person does not become member of a Scheduled Tribe

23. In our opinion, there is no substance in the petition. The petition is dismissed.

24. At the request made by the learned Counsel appearing for the petitioners, operation of the order is stayed for a period of four weeks.

Petition dismissed