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2008 Supreme(Kar) 762
IN THE HIGH COURT OF KARNATAKA
K. BHAKTHAVATSALA
Kalavathi S. Nergi - Appellant
Versus
District Commissioner District Caste Verification - Respondents
Writ Petition No.43046 of 2004 (GM-CC)
Decided On : 11/14/2008
Headnote:CONSTITUTION OF INDIA - Article 226: [Dr. K. Bhakthavatsala, J] Petitioner by birth belongs to "Balija’ caste married to a person belonging to "Adidravida" community - Whether she is entitled to claim that she belongs to ’Adi Dravida (SC) - Held, The Notification issued by the Government of India bearing No 35/1/72/RU (SCT.V) dated 2-5-1975 relied upon by the Authorities says that no person who was not a SC or ST by birth, will be deemed to be a member of a SC or ST, merely because he or she has married to a person belonging to SC or ST. Therefore, the petitioner is not entitled to claim that she belongs to ’Adi Dravida’ community by virtue of her marriage with a person belonging to Adi Dravida. There is no illegality in the impugned orders made by the respondents. Further, The petitioner had a bona fide belief that she was entitled to claim that she belongs to the caste of her husband by virtue of her marriage. The petitioner’s SSLC cumulative record, which was produced before the respondent-No.3 at the time her appointment shows her caste as ’Balija’. Hence, it cannot be said that she had made any misrepresentation before the authorities or suppressed the fact from the concerned. Under such circumstances, it cannot be said that the petitioner has committed any misconduct of such nature. Merely because the petitioner was continued in service for more than 25 years, it is not a good ground to permit the petitioner to continue in service, when she does not belong to the caste as against which she was appointed. The undertaking given by the petitioner that she would not claim any further advantage, as a Scheduled Caste cannot be accepted. At the best it would meet the ends of justice to permit her to resign voluntarily.
A short question that arises for consideration in this Writ Petition is:
Whether the Petitioner who, by birth, belongs to Balija caste, is entitled to claim that she belongs to `Adi Dravida (SC) by virtue of her marriage with a person belonging to `Adi Dravida community?
Answer to the above question is in the negative for the following reasons:
2. Both the learned Senior Counsel Sri K Kasturi and Sri Ramdas, appearing for the petitioner, respondent No.3/Insurance Company, respectively relied upon the following decisions;
VALSAMMA PAUL (MRS.) vs COCHIN UNIVERSITY AND OTHERS (1996) 3 SCC 545);
STATE OF MAHARASHTRA vs MILIND AND OTHERS (2001) 1 SCC 4) ; and
R VISHWANATHA PILLAI vs STATE OF KERALA AND OTHERS (2004) 2 SCC 105)
3. Sri K Kasturi submitted that on 6.1977, the petitioner married to one Shankar Nergi, who belongs to Adi Dravida community (Scheduled Caste) and therefore she belongs to Adi Dravida community and on that basis, the Tahsildar of Udupi also issued a caste certificate. On 28.1979 the respondent No.3/Insurance Company appointed the petitioner as Assistant, as against the post reserved for Scheduled Caste. The petitioner is going to attain the age of superannuation on 28.2015 and this juncture cancelling the caste certificate by District Caste Verification Committee (in short "the DCVC") granted in 1977, on the basis of report dated 21.2001 submitted by the CRE Cell, is bad in law. Furthermore, the respondent No.2/Appellate Authority also erred in confirming the order of DCVC. He relied upon the decision rendered in N.E. HORO vs SMT. JAHANARA JAIPAL SINGH (AIR 1972 SC 1840), and other decisions.
4. Sri Ramdas submitted that an enquiry was held against the petitioner as she had produced a false caste certificate and secured a job, which was reserved for Scheduled Caste and the charge levelled against the petitioner was proved. Subsequently, after complying with the formalities, the petitioner was ordered to be dismissed from service with immediate effect by an order dated 110.2004 (Annexure-R5). But the petitioner evaded the service of the order of dismissal sent to her by Respondent No3. The order sent to the petitioner by RPAD/ courier was returned un-served with an endorsement "Absent/shifted". On the other hand, the petitioner filed this Writ Petition and taken an ex-parte interim order on 210.2004 directing the respondent No.3/ Insurance Company not to dismiss the petitioner her from service until further orders. He submitted that in view of the ratio laid down by the Apex Court in Valsamma Paul case reported in (1996) 3 SCC 545 and various other decisions, there is no merit in the writ petition.
5. Learned Counsel appearing for respondents Nos. 1 and 2 argued in support of the order cancelling the caste certificate dated 3 0.7.1977 issued by the Tahsildar of Udupi and confirming the same by the respondent No.2/Appellate Authority.
6. No doubt, in N. E. HORO vs SMT. JOHANARA JAIPAL SINGH (supra), the Apex Court held that even if a female is not a member of a tribe, by virtue of birth, she having been married to a tribal, after due observance of all formalities and after obtaining the approval of the elders of the bride would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. But, in VALSAMMA PAUL vs COCHIN UNIVERSITY AND OTHERS (2005) 2 SCC 244), the Apex Court has held that a lady belonging to a non-reserved class marrying a SC, ST or OBC citizen would not ipso facto entitle to claim reservation under Articles 15(4) or 16(4) or 330 or 332 of the Constitution of India. The decision rendered in Horo case was overruled in SOBHA HYMAVATHI DEVI vs SETTI GANGADHARA SWAMY AND OTHERS 2005 (2) SCC 244 following the decision rendered in VALSAMMA PAUL (MRS.) vs COCHIN UNIVERSITY AND OTHERS.
In R. VISHWANATHA PILLAI vs STATE OF KERALA AND OTHERS (2004) 2 SCC 105), Pillai was appointed as Deputy Superintendent of Police on the basis of a false c
