The impugned Circular's conformity with Article 342 of the Constitution was the central legal point established in the judgment.

V. K. GUPTA, C. J.

( 1 ) WHAT is challenged in this petition is a Notification /circular dated 3/03/1979 issued by the Government of Bihar addressed to various functionaries of the State.

( 2 ) EVEN though the text of this Notification is in Hindi, the English transalation, as far as text generally suggests to us is that it deals with a situation where a tribal woman marries an upper caste Hindu (SAVARAN HINDU) and in such an eventuality the offsprings born out of this wedlock would be accorded the status of belonging to the Scheduled tribe to which the woman belongs, but only if, and after the Community of such Scheduled Tribe accepts the factum and the reality of this marriage. In other words, the Community of this Tribe accepts the couple into its fold. Based on this, this Communication accordingly directs and instructs all the State functionaries to hold enquiries with respect to the aforesaid aspect as to whether the Community of such a Scheduled tribe has accepted the marriage, thus recognising the existence of the arrangement between the tribal woman and the upper caste Hindu and depending upon the result of such enquiry, the grant of facilities due to the Scheduled tribes may be made available to the offsprings born out of such a wedlock. In the said Circular, a reference has been made to the judgment of the Supreme Court in the case of V. V. Giri v. D. S. Dora reported in AIR 1959 SC 1318.

( 3 ) AN affidavit has been filed on behalf of the Government of Jharkhand by the Joint Secretary in the Personnel and Administrative Reforms Department. Affidavit has also been filed on behalf of the Union of India by the Joint Director in the Ministry of Tribal Affairs, Govt. of India. Both these affidavits clearly suggest that the aforesaid Circular /notification dated 3-3-1979 was issued by the Government of Bihar on the basis of the communication dated 21/05/1977 issued from the Government of India, Ministry of Home Affairs addressed to the Chief Secretaries of all States. The text of the aforesaid Communication is reproduced hereunder for ready reference. It reads thus :"subject - Caste status of the offsprings of inter-caste married couples. Sir, i am directed to say that enquiries about the caste status of the offsprings of the inter-caste married couples have been sought from this Ministry by various State Governments/union TerritoryAdministrations from time to time. Accordingly this question has been receiving the attention of this Ministry for quite some time. A set of legal views on the caste status of such offsprings was already brought out vide this Ministrys letter of even number, dated the 4/03/1975. The matter has, however, been further examined and the comprehensive legal position about the status of the offsprings born of couple where one or both of the spouses is /are member (s) of Scheduled Castes and /or Scheduled tribes, is given in the enclosed Annexure (A to D ). 2. It is requested that these instructions may be circulated among all the authorities empowered to issue Scheduled Caste and Scheduled tribe certificates. "

( 4 ) SINCE, Annexure-B to the aforesaid Notification is relevant for our purposes, the relevant extract from the said Annexure-B, so as to properly appreciate and understand the perspective and the background in which the controversy forming the subject matter of this petition has arisen and the manner in which it can properly be dealt with is reprocuced as under :"4. In the case of marriage between a tribal with a non-tribal the main factor of consideration is whether the couple were accepted by the tribal society to which the tribal spouse belongs. If he or she, as the case may be, is accepted by the society then their children shall be deemed to be Scheduled tribes. But this situation can normally happen when the husband is a member of the Scheduled tribe. However, circumstances may be thereof when a Scheduled tribe woman may have children from marriage with a non-scheduled tribe