IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 5744 of 2010 Reserved on : 2.8.2011. Decided on: August 9, 2011. Meena Devi. Versus Himachal Pradesh State Subordinate Services Selection Board. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. T.S.Chauhan, Advocate. For the Respondent: Mr. R.K.Bawa, AG, with Mr. Ankush Dass Sood, Addl. AG. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. Caste by birth and lost by death is a well settled principle. Caste is a socially homogenous class. It has sometimes an occupational grouping. Its membership is hereditary. There is no involuntary acquisition of the status. Conversely, there can be no loss of the status either by ceasing to be in the hereditary occupation. Characteristically, it is endogamic. The financial position of a person born in a particular caste or the positional advantages gained by one such person born in the caste will not erase his birth mark, his identity as a member of that caste. However, the birthmark of the family can be obliterated gradually by intergenerational transplantation into other castes or communities. But, as far as the individual born in a class, till his death, he would remain to be a member in that caste only though disadvantages attached to the caste may 2 have been otherwise removed owing to intervening developments in his own life history, unless lost statutorily or by perception of any constitutional provision. Whether a person born in a particular caste will be entitled to continue to have the protective discrimination on account of such developments is an altogether different question and that has been answered by the Apex Court by introducing the concept of creamy layer within the class. But, even after being labelled as member in the creamy layer within the class also, the person born in that class/caste will remain to be a member of that class or caste. 2. At paragraph 779 of the celebrated decision of the Apex Court in Indra Sawhney and others versus Union of India & others, reported in 1992 Supp. (3) SCC 217, this concept has been succinctly dealt with as follows: “779. The above materials makes it amply clear that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In 3 rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return- they do, barring a few exceptions- they go into the same fold again. It doesn’t matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class- the caste- that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind - though not exclusively - while enacting Article 16(4). Urbanisation has to some extent broken this caste-occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an overwhelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is simply not 4 done. There, one is supposed to follow his caste-occupation, ordained for him by his birth. There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste- occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centres, there may be some dilution. But since rural India and rural population is still the overwhelmingly predominant fact of life in India, the reality remains. All the decisions since Balaji speak of this ‘caste- occupation-poverty’ nexus. The language and emphasis may vary but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be. It must be eradicated. That is the ideal - the goal. But any programme towards betterment of these sections/classes of society and any programme designed to eradicate this evil must recognize this ground reality and attune its programme accordingly. Merely burying our heads in the sand-ostrich like- wouldn’t help. One cannot fight his enemy without recognizing him. The U.S. Supreme Court has said repeatedly, if race be the basis of discrimination - past and present- race must also form the basis of redressal programmes though in our constitutional scheme, it is not necessary to go that far. Without a doubt an extensive restructuring of the socio-economic system is the answer. That is indeed the goal, as would be evident 5 from the Preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasized in Article 16(4)- equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.” 3. Having thus analyzed the basic principles, we may refer to the facts of this case. Dispute arising for consideration in this case is whether a person born in a backward class and later married to a Scheduled Caste would acquire the status of Scheduled Caste. 4. The petitioner was born in District Hamirpur in ‘Tarkhan’ caste which is a community belonging to Other Backward Classes in the State of Himachal Pradesh. She was married to one Sh. Rakesh Dhiman, who is a resident of village Mehan in District Bilaspur. Sh. Rakesh Dhiman belongs to ‘Luhar’ caste, which is a Scheduled Caste in the State of Himachal Pradesh. The petitioner belongs to below the poverty line family. She graduated from Himachal Pradesh University and has also obtained diploma and degree in Bachelor of Library Sciences. She has also obtained M. Phil. Degree in Library Sciences. Applications were invited by the H.P. Subordinate Services Selection Board, Hamirpur for appointment to the post of Assistant Librarian in the State of Himachal Pradesh. She had been issued a certificate by the Executive Magistrate, Sadar, District Bilaspur, showing that she belongs to Scheduled Caste community 6 and therefore, she applied for the post against the quota reserved for scheduled caste. That Certificate is dated 29.10.2002 which is marked as Annexure ‘X’ in the writ petition. However, at the time of interview, she was directed to produce a contemporaneous certificate and when applied for, the Tehsildar Sadar, District Bilaspur, issued Annexure P-2, Certificate, dated 27.8.2010, which showed that the petitioner, wife of Rakesh Kumar, resident of Village Mehan, District Bilaspur, belongs to OBC in Himachal Pradesh and that she does not belong to creamy layer. Since Annexure P-2, Certificate shows only the marital status, the petitioner was asked to produce Certificate on parental basis. The Certificate on parental basis is Annexure P-1, which certifies that the petitioner daughter of Gian Chand and resident of Hamirpur District belongs to ‘Tarkhan’ community, which is an OBC. In view of the apparent confusions, as above, the petitioner was not selected and hence the writ petition. 5. In short, on the basis of one Certificate issued by the competent authority showing that the petitioner belongs to SC community, having been married to Sh. Rakesh Kumar (Rakesh Dhiman) belonging to SC community, she applied for the post of Assistant Librarian against the quota reserved for Scheduled Caste. But the respondent-Board insisted for a Certificate on parental basis. The Certificate on parental basis would show that the petitioner belongs to OBC. The petitioner now rests her claim for a seat 7 reserved for OBC only, she being an OBC by birth. Based on the interim order dated 15.9.2010, passed by this Court, the petitioner was provisionally interviewed. Subsequently, by the interim order dated 15.10.2010, it was directed to take further steps in the matter of appointment, subject to the result of the writ petition. 6. The stand taken by the respondent-H.P. Subordinate Services Selection Board, in the reply is that the petitioner cannot be considered for appointment against the OBC seat since she had applied under SC category. 7. We find it difficult to appreciate the stand taken by the respondent-Board. True, the petitioner applied only against the post reserved for Scheduled Caste. But, it has to be seen that at the time of that application, the Certificate that was issued to the petitioner and available with the petitioner showed that she belongs to SC category. The mistake is on the part of the authority, who issued the Certificate. That authority should have noticed that one cannot acquire the status of a caste by being transplanted into that caste by marriage. A person born in a caste, having had the advantage or dis- advantage of belonging to that caste in life, and thereafter moving to another caste by transplantation by either adoption or marriage or conversion cannot claim the advantage or dis-advantage, as the case may be, of transplanted caste. That position is well settled by the decision of the Supreme Court in 8 Valssamma Paul versus Cochin University, reported in 1996 (3) SCC 545. It has been held at paragraph 34 of the said decision as follows: “34. 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 Article 15(4) and 16(4) of the Constitution.” 8. The petitioner is born in ‘Tarkhan’ caste, which is OBC in Himachal Pradesh. By marriage only she was transplanted into ‘Luhar’ community which is a Scheduled Caste. By that marriage, the petitioner does not undergo any change in her original caste. Unto death, she is a member of ‘Tarkhan’ caste which is OBC. In the above circumstances, there will be a direction to the respondent-Board to treat the petitioner as OBC candidate for all purposes and regularize her appointment accordingly. 9. It appears, the Executive Magistrates in the State of Himachal Pradesh are not clear about the legal position as explained by us above. Therefore, there will be a direction to the Registry to forward a copy of this judgment to the Chief Secretary, Government of Himachal Pradesh, who shall take steps to issue clear guidelines to the Executive 9 Magistrates/competent authority in the matter of issuance of caste/OBC certificates. 10. The Writ Petition is disposed of, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice. August 9, 2011. ( Justice Sanjay Karol), (karan) Judge.