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2017 Supreme(HP) 1174
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sanjay Karol, Acting Chief Justice, Ajay Mohan Goel, J.
Vijaylakshmi - Appellant
Versus
State Of H.p. - Respondent
CWP No. 3310 of 2016
Decided On : 13-11-2017
Neeraj Maniktala, Advocate, for the Appellant; M.A. Khan and Mr. Anup Rattan, Additional Advocate Generals, with J.K. Verma, Deputy Advocate General, for the Respondent No.1 and 2.; Ashok Sharma, ASGI, with Ms Sukarma Sharma, Advocates, for the Respondent No. 3.
Headnote:
Scheduled Tribe - Marriage and Status - Articles 341, 342, 15(4), 16(4) - The court discussed the legal provisions of Articles 341, 342, 15(4), and 16(4) of the Constitution of India and their interpretation in the context of a lady marrying a person belonging to a Scheduled Tribe category and acquiring the status of her husband for claiming benefits under Article 16(4). The court emphasized that a person who does not belong to a Scheduled Tribe or a Scheduled Caste category by birth cannot gain the status of that particular caste or tribe simply by virtue of marrying a person belonging thereto. The court also highlighted the necessity for reservation to transcend castes and not perpetuate them, and the need for reservation to be based on objective factors and measured on the basis of factual existence of backwardness and inadequacy of representation for public employment.
Fact of the Case:
The petitioner, a Brahmin by birth, obtained a Scheduled Tribe certificate solely on the basis of her marriage to a person belonging to a Scheduled Tribe category. She joined as a Primary Teacher under the Kendriya Vidyalaya Sangathan using the certificate. However, the certificate was later cancelled, and she was dismissed from service on the ground that she did not belong to a Scheduled Tribe category by birth.
Finding of the Court:
The court found that the petitioner, by birth, did not belong to a Scheduled Tribe category and could not gain the status thereof by simply marrying a person belonging to such category. The court upheld the cancellation of the Scheduled Tribe certificate and the termination of her employment obtained on its strength.
Issues: The main issue was whether a lady, who does not belong to a Scheduled Tribe by birth, acquires the status of her husband, i.e., Scheduled Tribe, for claiming benefits under Article 16(4) of the Constitution of India by marrying a person belonging to a Scheduled Tribe category.
Ratio Decidendi: The court held that a person who does not belong to a Scheduled Tribe or a Scheduled Caste category by birth cannot gain the status of that particular caste or tribe simply by virtue of marrying a person belonging thereto. The court emphasized the necessity for reservation to transcend castes and not perpetuate them, and the need for reservation to be based on objective factors and measured on the basis of factual existence of backwardness and inadequacy of representation for public employment.
Final Decision: The petition was dismissed, and the cancellation of the Scheduled Tribe certificate and the termination of the petitioner's employment were upheld.
JUDGMENT
Sanjay Karol, ACJ. —It is not in dispute that either by birth or upbringing, petitioner does not belong to a Schedule Tribe category. She is a Brahmin, born in the State of Uttar Pradesh. Also, her upbringing is not in a socially or culturally backward set up. It is also not in dispute that Scheduled Tribe certificate was obtained by her solely on the strength of her having married a person who belonged to a Scheduled Tribe category.
2. In the present petition, the sole question, which arises for consideration, is as to whether a lady, who otherwise does not belong to a Scheduled Tribe, on account of her marriage to a person belonging to a Scheduled Tribe, so notified within the State of Himachal Pradesh, acquires the status of that of her husband, i.e. Scheduled Tribe, for the purpose of claiming benefits as envisaged under Article 16(4) of the Constitution of India or not.
3. While the issue is no longer res-integra, for it stands settled by Hon''ble Supreme Court of India in its several decisions, but however, since repeatedly it keeps on cropping, not only with regard to ladies who otherwise do not belong to a Scheduled Tribe but marry a person belonging to a Scheduled Tribe, but also with regard to ladies, who do not belong to a Scheduled Caste but marry a person belong to a Scheduled Caste, we endeavour to reiterate the law, as stands laid down by the Hon''ble Supreme Court of India.
4. By way of this writ petition, the petitioner has prayed for the following reliefs:
"(a) That the order Annexure P-8 passed by the Naib Tehsildar Holi may kindly be declared illegal and quashed and set aside as the Caste/Tribe Certificate was issued to the petitioner after all the due verification by the authorities and on the basis of the law holding the field as laid down by the Hon''ble Apex Court.
(b) That the enquiry by Respondent No. 3 that the caste/tribe certificate submitted by the petitioner was false, may kindly be declared as arbitrary and against the law as laid down.
(c) Record of the case may be called for the kind perusal of this Hon''ble Court."
5. Case of the petitioner is that she was married to one Shri Prem Chand, resident of Village Gusal, Panchayat Holi, District Chamba in the year 1972, belonging to Gaddi Rajput Tribe. By virtue of her being married to a person belonging to a Scheduled Tribe category, she applied to the authorities for the issuance of a Scheduled Tribe certificate, which was issued to her on 20.03.1985 by the Executive Magistrate, Sub Tehsil Holi, District Chamba. On the strength of the said certificate, petitioner joined as a Primary Teacher under the Kendriya Vidyalaya Sangathan in the year 1986. In the year 2011, i.e. after putting in more than 25 years of service, she was chargesheeted vide memorandum dated 28.02.2011 to the effect that she had gained appointment by submitting a false caste certificate against the post reserved for a Scheduled Tribe category. Petitioner denied the allegations by maintaining that the Scheduled Tribe certificate was rightly issued in her favour by the authorities concerned. In the meanwhile, on 23.12.2014, petitioner received a communication from the office of Naib Tehsildar, Sub Tehsil Holi, calling her for verification/cancellation of the said Scheduled Tribe certificate issued to her. She responded to the same explaining that the certificate stands rightly issued in her favour by the authorities after carrying out all necessary verifications. Despite this, vide order dated 01.01.2015, her Scheduled Tribe certificate was cancelled by the authorities on the ground that by birth she did not belong to a Scheduled Tribe category, for she hailed from an upper caste family in Roorkee (U.P.), therefore, issuance of Scheduled Tribe certificate in her favour was illegal. In view of the tribal certificate issued to the petitioner being declared as illegal in the eyes of law, she was dismissed from service on 18.2.2015. Statutory appeal filed by her also stands rej
