IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Nitu Vaswani Vs. State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO.6578/2007. Date of Order :: 2nd January 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. M.S.Godara, for the petitioner. .... BY THE COURT: The petitioner, stating that she is basically from a General Caste but that her husband belongs to a Scheduled Caste, has filed this writ petition, after having appeared in the examination conducted by the Rajasthan Public Service Commission (‘the Commission’) for recruitment to the post of Primary and Upper Primary School teachers, raising grievance about the Commission questioning her entitlement to be considered for appointment on the post reserved for Scheduled Caste category, and for being aggrieved of the communication dated 19.09.2007 (Annex.8) whereby the Commission has asked her to produce the relevant caste 1 certificate in the prescribed format in the name of herself and her father, but not containing the name of her husband; and has prayed for the following reliefs: “A] By an appropriate writ order or direction, the petitioner may kindly be declared eligible in respect of appointment on the post of Teacher Grade-III. B] By an appropriate writ order or direction, the petitioner may kindly be declared a candidate of Scheduled Caste Community by allowing her all benefits and privileges admissible to the members of Scheduled Caste Community. C] By an appropriate writ order or direction, the action of the respondents in asking the petitioner to produce the caste certificate issued in a particular form vide letter 19.9.2007 may kindly be declared unjust, arbitrary and illegal and the same may kindly be quashed and set aside. D] By an appropriate writ order or direction, the petitioner may kindly be allowed to participate in the Counseling as per her turn scheduled to be held in the first week of Oct.2007 as per her turn. E] That cost of litigation may also kindly be awarded to petitioner.” The petitioner has taken the averments in the writ petition to the effect that she comes basically from General Caste belonging to Sindhi Community of Hindu Religion; that after attaining the age of majority on 08.09.1999 she married with Shri Vijay Singh Chouhan belonging to a Scheduled Caste and their marriage was got registered with the 2 competent authority (Registration Certificate Annex.1); that for having got married with the husband belonging to a Scheduled Caste, she applied for issuance of caste certificate and the competent authority issued such certificate on 15.11.1999 (Annex.2) declaring herself being of a Scheduled Caste; that her marriage was performed as per vedic Hindu rites and was attended by her in-laws and other members of their community; that after marriage, she has adopted all the customary and religious rites of her new community, and the community of her husband has also accepted her; and that since after marriage in the year 1999, she is subjected to the social and educational backwardness in her life. The petitioner has further averred that after marriage in a Scheduled Caste, she continued with her studies and after completion of graduation, obtained Bachelor of Education Degree from M.D.S. University, Ajmer in the year 2005-06; and that even while getting admission in the B.Ed. course, she was treated as a candidate of Scheduled Caste category on the basis of the caste certificate issued to her. The petitioner has averred that upon invitation of applications through notification dated 30.10.2006 for filling up the posts of Primary and Upper Primary School Teachers, being eligible, she applied in pursuance thereof against the seat reserved for Scheduled Caste category; that the 3 respondent Commission, treating her eligible in all respect, issued admission card for her appearance in the written examination; that she appeared in the examination and obtained 79.33 marks; that the cut off marks declared by the Commission for the candidates belonging to Scheduled Caste woman category being 65.33, she stood qualified and ought to have been called for counseling. The petitioner has stated her grievance in the manner that instead of a call for counseling, she was issued the impugned letter dated 19.09.2007 (Annex.8) and was asked to produce the caste certificate issued in the name of her father but not including the name of her husband. The petitioner has averred that in response to the said letter dated 19.09.2007, she approached the Commission and produced the copy of the original caste certificate but the respondents refused to consider her candidature on the basis of the caste certificate submitted by her and have, thus, proceeded to cancel her candidature without issuing any written order to this effect. The petitioner has put a challenge to the action of the respondent Commission in canceling her candidature for want of caste certificate as being arbitrary, discriminatory, and illegal. The petitioner has taken the grounds in the writ petition, inter alia, that the genuineness of the caste certificate submitted by her could not have been questioned for the same 4 has been issued by a competent authority; that it was not within the domain of the respondent Commission to ask for the caste certificate issued in a particular manner because only the competent authority is empowered to issue such certificate and, unless the same is cancelled or revoked, she is entitled for all the benefits and privileges on the basis of the certificate issued to her; that even in case of any doubt about the genuineness and correctness of the certificate, the authority issuing the same could have been approached for verification but the action of the respondents in asking the petitioner to submit the caste certificate in a particular format remains illegal and arbitrary; that the competent authority had issued the certificate on being satisfied about her status after verification of the relevant documents and thereafter, only the appointing authority could have taken up for consideration the genuineness of the certificate and not the respondent Commission. The petitioner has further taken the grounds to the effect that the caste certificate issued in her favour is genuine and correct because the same has been issued after following due process of law provided for issuing such certificate and validity of the certificate remains unquestionable; that she is a member of Scheduled Caste because the caste she and her husband belong to has been declared a Scheduled Caste as 5 per the Scheduled Castes Order, 1950 and she cannot be deprived of her right of getting benefits and privileges admissible to the members of the Scheduled Caste category. The petitioner has referred to the observations of the Hon'ble Apex Court in the case of N.E.Horo Vs. J.J.Singh: (1972) 1 SCC 771 and has emphasized that after marriage her having adopted all the social and religious customs of the community of her husband, having undergone various ceremonies, and having been accepted by the community as their member, there is no reason why she would not be considered a member of Scheduled Caste community while stating,- “F] That the petitioner after her marriage with her husband, who belongs to Scheduled Caste category (Bhangi Community) has adopted all the social and religious customs of the Bhangi Community and she has also undergone through various examination and ceremonies like Pindipass in Bhangi Community. That she has already been accepted by the Bhangi Community as a member of their community and after her marriage she is also subjected to the social status and backwardness of the Bhangi Community. Thus, it is relevant to mention here that the issue of determination of membership of an individual will not be only on the basis of purity of blood but also depends upon his or her conduct in following the customs and way of living life of a particular community. Since, the petitioner has been treated as member of Bhangi Community by the said community. Therefore, there is no reason to disbelieve that she does not belong to SC community.’’ 6 The petitioner has also suggested the grounds that she was permitted by the Commission to take the examination after being satisfied about her eligibility; and that she was treated as a Scheduled Caste candidate for the purpose of pursuing the B.Ed. course too and cannot, at this stage, be denied to be considered a person belonging to the Scheduled Caste category. Learned counsel while stressing on the grounds taken in the writ petition, has contended that it is for over 8 years that the petitioner has been adopted in the community of her husband and there is no reason why she would not be considered a person belonging to the Scheduled Caste. Learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of V.V. Giri Vs. D. Suri Dora and others: AIR 1959 SC 1318 and in N.E.Horo (supra) to submit that upon her marriage in the Scheduled Caste community and having been accepted by the said community, the petitioner is entitled to be treated as a member of the said community and is entitled to avail of the benefits and privileges admissible to the said community and thus, according to the learned counsel, action of the respondent in declining to treat her as a member of Scheduled Caste category remains illegal and is unsustainable. Learned counsel further contended that there was no occasion to question the certificate issued in her favour 7 by the competent authority and the action of the respondent Commission in seeking to question such certificate remains illegal. On being questioned about the principles otherwise enunciated and the propositions otherwise declared by the Hon'ble Supreme Court in relation to such claim of entitlement of reservation with reference to marriage into a Backward Class though the person is born and brought up in a Forward Class, learned counsel submitted that a case of cancellation of the caste certificate like that in Meera Kanwaria Vs. Sunita & Ors. : (2006) 1 SCC 344 stands at a different footing. Having examined the matter in its totality, this Court is clearly of opinion that the claim of the petitioner being essentially of allowing her the benefit of reservation in the matter of public employment on the basis of marriage to a person belonging to a Scheduled Caste remains unsustainable and cannot be countenanced. Such claim of being allowed the privileges available to the persons of Backward Class particularly in the matters of public employment by voluntary mobility of a Forward Class person into such Backward Class came to be pronounced against by the Hon’ble Apex Court in the case of Valsamma Paul (Mrs) Vs. Cochin University & Ors. : (1996) 3 SCC 545 thus: “A candidate who had the advantageous start in life being born in Forward Caste and had march of 8 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.” In the case of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors.: (2005) 2 SCC 244, though while dealing with the claim of eligibility to election from seat reserved for Scheduled Tribes by the woman of Forward Caste who married to a man from Scheduled Tribes in terms of Articles 332 of the Constitution of India, a three-Judges Bench of the Hon'ble Supreme Court, while referring with approval the abovementioned ratio of Valsamma Paul and while not approving the part of the decision in N.E.Horo, has held,- “Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the constitution for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court should not be extended to the constitutional 9 reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the really underprivileged and not those who come to the class by way of marriage. To the extent the decision in Horo can be said to run counter to the above view, it cannot be accepted as correct. Even otherwise, in the absence of evidence on the relevant aspects regarding marriage in tribal form and acceptance by the community, the decision in Horo cannot come to the rescue of the appellant. On a consideration of the relevant aspects, we are of the view that whether it be a reservation under Articles 15(4) or 16(4) or 330 and 332, the said reservation would benefit only those who belong to a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage like the appellant in this case.” (underlining supplied for emphasis) In view of the law declared by the Hon’ble Supreme Court in no uncertain terms, the petitioner is not entitled to be considered as a candidate belonging to Scheduled Caste category merely for her marriage to a person belonging to a Scheduled Caste. Mere assertion of the petitioner having been taken in the fold of the community of her husband is of no relevance nor is sufficient to show that she has suffered the social, economic, and educational disabilities of the community so as to be entitled to reservation in the matters of public employment. The observations of the Hon’ble Supreme Court in Giri (supra) that the caste status of a person would have to be determined in the light of the recognition received from the members of the 10 caste into which he seeks entry; or the observations in Horo (supra) that non-tribal female marrying a tribal male could gain recognition as a member of that community, have no bearing on the question at hands. The question of membership of the adoptive community is different from the question as to whether acquisition of such membership by way of voluntary mobility into the community would entitle the person so moving of all privileges and benefits available to the community. In the case of Valsamma Paul (supra), on a similar claim for reservation in public employment meant for Latin Catholics (Backward Class Fishermen) by the appellant belonging to a Forward Class of Syrian Catholics, made on the basis that the appellant had married a Latin Catholic, the fact of her recognition as a member by the adoptive community was held irrelevant; and while rejecting the claim of the appellant, the Hon’ble Apex Court said,- “The recognition of the appellant as a member of the Latin Catholics 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 an 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 Latin Catholics, a Backward Class” In the case of Meera Kanwaria (supra), while dealing with the claim of eligibility to election to Municipal Corporation 11 Delhi from a seat reserved for Scheduled Caste woman, by the woman of Forward Caste who married to a man from Scheduled Caste, though the caste certificate obtained by the candidate misrepresenting herself as daughter of father-in-law of elder brother of her husband had been cancelled on complaint, the Hon’ble Supreme Court has observed on the principles of law that a person who is a high-caste Hindu and not subjected to any social or educational backwardness in his life, by reason of marriage alone cannot ipso facto become a member of the Scheduled Caste or the Scheduled Tribe. The petitioner has attempted to build up her case on the grounds that the certificate (Annex.2) issued to her by the respondent No. 3 is conclusive on the fact that she belongs to a Scheduled Caste and, at any rate, such certificate cannot be called in question by the Commission. The submission is not well founded. The certificate sought to relied upon by the petitioner cannot by itself be the proof of her belonging to a Scheduled Caste and cannot override her specific admission that she was born and brought up in a Forward Caste; and cannot take away the fact that the petitioner claims to be a member of Scheduled Caste only on the basis of her marriage. The marriage certificate (Annex.1) shows the date of her marriage as 06.09.1999 and then, the caste certificate 12 (Annex.2) came to be issued about two months thereafter, on 15.11.1999. There is nothing on record to show that the authority concerned made any enquiry on the question if the petitioner has suffered disabilities socially, economically and educationally before issuance of such certificate. Such a certificate, in the context of the fact situation of this case, could not have been relied upon by the Commission so as to allow the petitioner the benefit of reservation meant for genuine Scheduled Caste candidates. In the case of Sobha Hymavathi Devi (supra), the Hon’ble Supreme Court has pronounced against similar kind of certificate issued by the authority and found that the High Court has rightly discarded such a certificate. Further, in the case of Anjan Kumar Vs. Union of India & Ors.: (2006) 3 SCC 257, the Hon'ble Supreme Court has pronounced heavily against such certificates issued in routine manner and said,- “The Scheduled Caste and Scheduled Tribe certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities – socially, economically and educationally cumulatively. The authority concerned, before whom such claim is made, is duty-bound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. Any authority concerned issuing such certificates in a routine manner would be committing a dereliction of constitutional duty.” 13 The certificate in question cannot be taken decisive and conclusive of the matter and the Commission has committed no illegality in asking for requisite certificate in the prescribed format with reference to the name of the father of the petitioner to find her actual status. However, this part of the matter needs no further dilatation for the reason that in the admitted fact situation of this case, the ratio of Valsamma Paul and Sobha Hymavathi Devi, as noticed hereinbefore, apply on all fours; and the claim of the petitioner is required to be rejected. Other submissions of the petitioner of her having been allowed by the respondent-Commission to take examination and of her having been treated as a Scheduled Caste candidate in her B.Ed. Course have only been noted to be rejected. Mere permission by the Commission to the petitioner to take written examination has no bearing on the rights of the Commission to verify the eligibility/entitlement of a candidate before making recommendation. Then, while admitting the petitioner to B.Ed. Course, if the concerned University has chosen to treat her as a Scheduled Caste candidate for any reason, that does not by itself provide the petitioner with any indefeasible right to be considered as a member of Scheduled Caste in the matter of public employment too. The petitioner otherwise does not stand in merit of general category candidates, and the respondent Commission 14 has not committed any error in rejecting her claim to be considered a Scheduled Caste candidate. The petition fails and is, therefore, rejected. A note of caution appears apposite. In view of the law declared by the Hon’ble Apex Court in Anjan Kumar and other cases as referred hereinabove, it is required of the appropriate Government to strictly regulate the issuance of such caste certificates, particularly when they provide a basis of making the claim by any person as belonging to any Scheduled Caste, Scheduled Tribe, Backward Class et al.; and it is required to be ensured that such certificates are not issued in a routine manner without proper scrutiny of the claim. It need no emphasis that if for any reason an unscrupulous claim of any person as being a member of any of such caste/tribe/class gets countenanced at the hands of any authority/functionary on the basis of such certificate, the same would directly be at the cost of bona fide members of such caste/tribe/class for whose benefit and upliftment such provisions of reservations/concessions are aimed at. A copy of this order, thus, be delivered to the learned Government Counsel appearing in this Court for appropriate advice to the concerned. (DINESH MAHESHWARI),J. S.Soni 15 16