IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2002/2008 Reserved on:16.4.2009 Decided on:5.5.2009 Ved Vati Negi. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Clerk against the reserved point meant for Scheduled Tribe. She joined as Clerk in Police Headquarters on 13.6.1985. The post of Clerk is in feeder category for promotion to the post of Assistant ‘B’ Grade. The post of Assistant ‘B’ Grade was re- designated as Senior Assistant in the pay scale of Rs. 1800-3200 vide letter dated 23.7.1990. She completed three years of service on 12.6.1988. She was eligible for promotion to the post of Senior Assistant. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 The Departmental Promotion Committee met on 25.9.1991. Her case though was considered, but it was kept in a sealed cover. She made representation vide Annexures A-3, A-4 and A-5. She was informed by the Director General of Police vide Annexure A-6 stating therein that she was not a tribal candidate by birth and that necessary clarification was required to be sought from the Government of Himachal Pradesh. She replied to the same on 21.12.1990 (Annexure A-7). She made representations to the Director General of Police on 23.2.1991. In sequel to the representations made by the petitioner, the Chief Secretary to the Government of Himachal Pradesh sought clarification from the Government of India on 10.11.1994. The Chief Secretary has quoted “AIR 1972 SC 1840” in this letter. The Deputy Secretary, Government of India sought certain clarifications from the Additional Secretary (Personnel) on 17.1.1995. The clarification was sent by the Joint Secretary (Personnel) to the Deputy Secretary to the Government of India on 19.8.1996. Mr. D.P. Gupta, Advocate has strenuously argued that the petitioner has rightly been appointed under the category of Scheduled Tribe on 13.6.1985. He has relied upon N.E. Horo versus Jahan Ara Jaipal Singh, AIR 1972 SC 1840. He further contended that the petitioner has neither misrepresented nor misled the authorities at the time of her appointment as a Clerk against the post reserved for Scheduled Tribe on 13.6.1985. He lastly contended that his client though belongs to general category was married to a person belonging to Scheduled Tribe and is entitled to get the benefits available to the candidates belonging to Scheduled Tribe category. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the petitioner belongs to general category and she 3 could not get the status of Scheduled Tribe after her marriage with a person belonging to Scheduled Tribe. He has relied upon Valsamma Paul (Mrs) versus Cochin University and others, (1996) 3 SCC 545 and Sobha Hymavathi Devi versus Setti Gangadhara Swamy and others, (2005) 2 SCC 244. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was appointed on 13.6.1985. She was appointed against the post reserved for Scheduled Tribe. She had put in three years service and was eligible for being appointed to the post of Senior Assistant. Her case was considered by the Departmental Promotion Committee but the recommendations were kept in the sealed cover as per the reply filed by the respondent-State. In sequel to the representations made by her, she was informed on 6.11.1990 that certain clarifications were required to be sought from the State Government regarding the status of the petitioner. She filed reply thereto on 21.11.1990. The Chief Secretary to the Government of Himachal Pradesh sent a letter to the Government of India seeking clarification about the status of the petitioners. As noticed above, the Union of India sought certain clarifications which were replied to by the State Government on 19.10.1996. Mr. R.K. Sharma has drawn the attention of the Court to Annexure R-1 dated 16.7.1975 issued by the Government of Himachal Pradesh. It reads thus: “I am directed to forward herewith a copy of the Government of India, Ministry of Home Affairs, letter No.33/1/72-RU(SCT.V) dated the 2nd May, 1975 alongwith its enclosures for information and guidance. xxx xxxx xxx Claim through marriage. 4 This guiding principle is that no person who was not a Scheduled Caste or Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe. Similarly a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that Scheduled Caste or Scheduled Tribe, as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or Scheduled Tribe.” The Under Secretary (Personnel) to the Government of Himachal Pradesh has sought clarification from the Government of India on 17.9.2004. It was only on 20.11.2008 that the Under Secretary (Home) has sent the communication to the Principal Secretary (Home) stating therein that the Ministry of Tribal Affairs, Government of India had issued the guidelines under Chapter-3 of their Annual Report for the year 2005- 2006 wherein, inter alia, it has been provided that no person who was not scheduled tribe by birth will be deemed to be a Scheduled Tribe merely because her or she has married a person belonging to Scheduled Tribe. Alongwith this communication, an extract of the report was also attached. A bare perusal of para 3.8.1 (c) demonstrates that no person who was not a Scheduled Tribe by birth will be deemed to be a member of Scheduled Tribe merely because he or she has married a person belonging to a Scheduled Tribe. The relevant extract of para 3.8.1 (c) reads thus: “Scheduled Tribe claims through marriages. The guiding principle is that no person who was not a Scheduled Tribe by birth will be deemed to be a member of Scheduled Tribe merely because he or she has married a person belonging toi a Scheduled Tribe. Similarly a person who is a member of a Scheduled 5 Tribe would continue to be a member of that Scheduled Tribe even after his or her marriage with a person who does not belong to a Scheduled Tribe.” Mr. D.P. Gupta, Advocate on the basis of N.E. Horo versus Jahan Ara, AIR 1972 SC 1840 has vehemently argued that the petitioner has acquired the status of Scheduled Tribe after her marriage with Scheduled Tribe. Their Lordships have held as under: “23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the 6 larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husband's domicile. Even without invoking the doctrine of domicile the respondent's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.” Their Lordships of the Hon’ble Supreme Court in Valsamma Paul (Mrs) versus Cochin University and others, (1996) 3 SCC 545 have held that a candidate who had the advantageous life but is transplanted in Backward Caste by adoption or marriage is not entitled for the benefits flowing under Article 15 (4) or 16(4) as the case may be. Their Lordships have held as under: “34. In Murlidhar 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 7 opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institution, 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) 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.” The Apex Court in Sobha Hymavathi Devi versus Setti Gangadhara Swamy and others, (2005) 2 SCC 244 have over ruled N.E. Horo versus Jahan Ara Jaipal Singh. This judgment has been pronounced by three Hon’ble Judges. The judgment citied by Mr. D.P. Gupta i.e. N.E. Horo has been pronounced by a Division Bench. Their Lordships of the Hon’ble Supreme Court after referring to Valsamma Paul (Mrs) versus Cochin University and others, (1996) 3 SCC 545 have held that there is 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 reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. Their Lordships have held as under: 8 “10. What then remains is the fact that the appellant though assigned the caste of her father Murahari Rao, namely, the Sistu Karnam community, had married a tribal belonging to the Bhagatha Community. On the basis of this marriage, it is argued that she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community. It is in that context that the decision in Horo (supra) was relied on. It is also contended that the decision in Horo (supra) related to an election dispute and consequently, the ratio of that decision should govern the present case. We have already indicated that there is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha Community or the concerned Panchayat or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul (Mrs.) vs. Cochin University and others (supra), supports this view. Neither the fact that a non-backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a non- backward to claim reservation in terms of Articles 15(4) or 16(4) of the Constitution. Their Lordships after noticing Bhoobun Moyee v. Ram Kishore, (1865) 10 MIA 9 279, and Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, (1879-80) 7 IA 212, held that a woman on marriage becomes a member of the family of her husband and thereby she becomes a member of the caste to which she has moved. The caste rigidity breaks down and would stand as no impediment to her becoming a member of the family to which the husband belongs and to which she gets herself transplanted. Thereafter, this Court noticed that recognition by the community was also important. 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 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 (supra) 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 (supra) 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 10 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. Thus, in our view, the High Court was fully justified in coming to the conclusion that the appellant could not claim the right to contest a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of her marriage to a person belonging to a Scheduled Tribe.” In view of the definitive law laid down by their Lordships in Valsamma Paul (Mrs) versus Cochin University and others, (1996) 3 SCC 545 and Sobha Hymavathi Devi versus Setti Gangadhara Swamy and others, (2005) 2 SCC 244, a person who is not a Scheduled Tribe by birth cannot be deemed to be a member of Scheduled Tribe category merely on the basis that he/she has married a person belonging to Scheduled Tribe. In the present case, the petitioner was not Scheduled Tribe by birth. The petitioner was informed by the Director General of Police on 6.11.1990 that certain clarifications were required from the State Government. The State Government has sought certain clarifications from the Government of India on 19.8.1996 and 17.9.2004. It was only on 20.11.2008 that the Union of India has brought to the notice of the State Government the guidelines issued under Chapter-3 of the report published by the Ministry of Tribal Affairs in the year 2005-2006 that the person who was not a Scheduled Tribe by birth will not become member of Scheduled Tribe after marriage to a person belonging to Scheduled Tribe. The combined reading of the correspondences exchanges between the State and the Central Government also suggests that the matter remained in limbo. The State Government was not sure whether the petitioner was to be given the benefit of Scheduled Tribe or not. It is in these 11 circumstances that the petitioner’s case for promotion though considered but was kept in a sealed cover. Now the Court has to advert to another important issue: Whether the petitioner’s appointment made under the Scheduled Tribe category on 13.6.1985 requires to be disturbed or not? The Court is of the firm opinion that the petitioner has neither misrepresented nor played any fraud on the respondent-State at the time of seeking employment. She has given her status of Scheduled Tribe presuming that she belongs to Scheduled Tribe category after her marriage to a person belonging to Scheduled Tribe. The State was also not certain about the status of the petitioner as is evident from the documents annexed with the petition referred to hereinabove. In State of Maharashtra versus Milind and others, (2001) 1 SCC 4, a similar question had arisen before the Hon’ble Apex Court. In this case the petitioner had sought admission to MBBS degree course on the basis of certificate as belonging to Halba/Halbi. The certificate was rejected by the higher authorities. The dispute had reached the Supreme Court after 15 years. Their Lordships found the certificate to be invalid but had spared the degree as well as the appointment of the petitioner in that case with a stipulation that he would not take advantage of Scheduled Tribe order. This judgment has been rendered by a Constitution Bench. Their Lordships have held as under: “38. Respondent No. 1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as doctor. In this view and at this length of time it is for nobody's benefit to annul his Admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course 12 by the admission given to respondent No. 1. If any action is taken against respondent No. 1, it may lead depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practising as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372/85 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment.” Similarly, their Lordships of the Hon’ble Supreme Court in R. Vishwanatha Pillai versus State of Kerala and others, (2004) 2 SCC 105 in a case where the candidate had obtained admission illegally against the post reserved for Scheduled Caste, awarded him the degree subject to condition that in future he will be treated general category and not Scheduled Caste category candidate. Their Lordships have held as under: “28. In this case we find that the appellant had joined Regional Engineering College in the year 1992. He completed the course in his studies in the year 1996 under the interim orders of (sic the High) Court which were subject to the final orders to be passed in the writ petition. No purpose would be served in withholding the declaration of the result on the basis of the examination already taken by him or depriving him of the degree in case he passes the examination. In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra v. Milind we direct that his result be declared and he be allowed to take his degree with the 13 condition that he will not be treated as Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes.” In a latest pronouncement in Raju Ramsingh Vasave versus Mahesh Deorao Bhivapurkar and others, (2008) 9 SCC 54, the Apex Court has saved the wrong appointment. In this case the candidate was appointed as Scheduled Tribe candidate but in view of the subsequent event his Scheduled Tribe status was declared invalid. In these circumstances his initial appointment was saved but with a rider that in future he shall not be treated Scheduled Tribe. Their Lordships have held as under: “48. In Union of India v. Dattatray this Court held: (SCC pp. 613-13, para 5) “5. Milind related to a medical college admission. The question that arose for consideration in that case was whether it was open to the State Government or courts or other authorities to modify, amend or alter the list of Scheduled Tribes and in particular whether ‘Halba- Koshti’ was a sub-division of ‘Halba’ Tribe. This Court held that it was not permissible to amend or alter the list of Scheduled Tribes by including any sub- divisions or otherwise. On facts, this Court found that the respondent therein had been admitted in medical course in ST category, more than 15 years back; that though his admission deprived a Scheduled Tribe student of a medical seat, the benefit of that seat could not be offered to Scheduled Tribe student at