WP(C) 9782/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was placed at Serial No.2 in the select list dated 1 6.10.2003 prepared by the Indian Oil Corporation Ltd. for appointment as retail dealer for retail outlet has by the present petition challenged the selection of the respondent No.3, who was placed at Serial No.1 in the said select list, pre pared on the basis of merit, on the ground that since the said outlet was for al lotment to a Schedule Tribe candidate, the selection of the respondent No.3 is c ontrary to the advertisement, she being not a Schedule Tribe candidate. I have heard Mr. A.R. Banerjee, the learned Sr. counsel for the petition er, Mr. M.K. Choudhury, the learned Sr. counsel appearing for the respondent Nos .1, 2 and 4 and Mr. I. Choudhury, the learned counsel appearing for the responde nt No.3. Mr. Banerjee, the learned Sr. counsel referring to the averments made in paragraph 10 of the writ petition as well as the reply submitted by the respond ent No.3 in her affidavit-in-opposition, more particularly in paragraph 3 thereo f and also the averments made in paragraph 2 of the rejoinder affidavit dated 12 .04.2007 to the effect that the caste certificate issued in favour of the respon dent No.3 has been cancelled, has submitted that the respondent No.3 before marr iage being not belonged to Schedule Tribe community and she having claimed to ac quire such status after the marriage with a person belonging to Schedule Tribe c ommunity, she cannot be treated as a person belonging to Schedule Tribe communit y, as the marriage does not confer the caste status. According to Mr. Banerjee, since the retail outlet advertised was meant for a Schedule Tribe candidate, the selection of the respondent No.3 for allotment of such retail outlet is illegal , more so, when such caste certificate has been cancelled by the issuing authori ty. Mr. M.K. Choudhury, the learned Sr. counsel referring to the averments m ade in the affidavit-in-opposition has submitted that the respondent Corporation has no machinery to verify the caste status of a person, which has relied upon the caste certificates produced by different candidates including the respondent No.3. According to the learned Senior counsel, since the respondent No.3 produc ed the caste certificate certifying that she belongs to Schedule Tribe community , she was selected on the basis of merit and against the retail outlet, which wa s reserved for Schedule Tribe candidate. Mr. Choudhury, however, has submitted t hat though letter of intent was issued to the respondent No.3, but because of th e pendency of this proceeding the outlet has not been commissioned. Mr. I. Choudhury, the learned counsel appearing for the respondent No.3 has submitted that though the respondent No.3 was initially before marriage did not belong to the Schedule Tribe community, after marriage she having adopted th e custom and married to a person belonging to Schedule Tribe community, she acqu ired the Schedule Tribe status for which a certificate was issued by the compete nt authority and accordingly she was selected by the respondent Corporation. It has further been submitted that since the caste certificate issued by the compet ent authority has not been challenged, the petitioner is not entitled to any rel ief in the present writ petition. It appears from the materials made available that an advertisement dated 31.03.2001 was issued by the respondent Corporation calling for applications fr om the candidates belonging to Schedule Tribe community for appointment as a dea ler of retail outlet at Sirajuli in the district of Sonitpur, Assam. Pursuant to such advertisement, the petitioner as well as the respondent No.3 along with ot hers applied and the selection process was carried out. A select list was, there after, prepared, in order of merit, by the respondent Corporation on 16.10.2003, wherein the respondent No.3 was placed at Serial No.1 and the petitioner was at Serial No.2 and another person Sri Lakheswar Boro was at Serial No.3. While mak ing the selection, the respondent Corporation had relied upon the certificate as produced by the respondent No.3 before it certifying that she is a Schedule Tri be candidate. After such selection though a letter of intent was issued in favou r of the respondent No.3, such retail outlet, however, has not been commissioned because of the pendency of the writ proceeding. The question which requires determination in the present case is whether the respondent No.3 can be treated as Schedule Tribe candidate. The relevant fa cts are not in dispute. The assertion of the petitioner that the respondent No.3 before marriage did not belong to the Schedule Tribe community and after the ma rriage since she was married to a person belonging to Schedule Tribe community, she was issued with a Schedule Tribe caste certificate, has been admitted by the respondent No.3 in her affidavit. It also appears from the rejoinder affidavit dated 12.04.2007 filed by the petitioner that such caste certificate issued by t he competent authority had been cancelled and about which the Chairman of Sub-Di visional S.T. Development Board, Tezpur, vide communication dated 31.07.2006 (An nexure-9 of the affidavit), informed the respondent No.3. The Apex Court in Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and ot hers reported in (2005)2 SCC 244 has held that a non-tribal person married to a tribal cannot acquire the status of the tribal, meaning thereby, with the marria ge of a person to a tribal his or her status would not be changed. In the instan t case as noticed above, the fact that the respondent No.3 before marriage did n ot belong to Schedule Tribe community being not in dispute, by virtue of her mar riage to a person belonging to Schedule Tribe community, she cannot acquire the status of the Schedule Tribe. The very basis for selection of the respondent No. 3 for appointment as dealer, therefore, is not valid, as she cannot claim the pr ivilege as Schedule Tribe candidate. The contention of the respondent No.3 that the caste certificate issued having not been challenged in this writ proceeding, the petitioner is not entitled to any relief, cannot be accepted as the said ca ste certificate has already been cancelled. Moreover, even in the absence of any prayer in the writ petition to that effect, the petitioner having challenged th e selection of the respondent No.3 on the basis of the claim as Schedule Tribe c andidate, this Court can interfere with such selection, if she cannot claim such benefit. In view of the above, the selection of the respondent No.3 is set aside. The respondent Corporation is directed to follow the select list prepared by it in accordance with the merit position of the candidate and appoint the dealer s ince such select list has been acted upon. The writ petition is accordingly allowed, as indicated above. No costs.