Advocates:
ANIL KUMAR MISHRA-IVENKATESWARA RAO ANUMOLU

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 654 OF 2012

(Arising out of S.L.P (CIVIL) NO.4282 of 2010)

Rameshbhai Dabhai Naika

… Appellant

versus

State of Gujarat & Others

… Respondents

J U D G M E N T

Aftab Alam,J.

1. Leave granted.

2.

The question that once again arises before this Court is

what would be the status of a person, one of whose parents

belongs to the scheduled castes/scheduled tribes and the other

comes from the upper castes, or more precisely does not come

from scheduled castes/scheduled tribes and what would be the

entitlement of a person from such parents to the benefits of

affirmative action sanctioned by the Constitution. The Gujarat

High Court has proceeded on the basis that the issue is settled

by the decisions of this Court in Valsamma Paul v. Cochin

University and others, (1996) 3 SCC 545 followed by Punit Rai

v. Dinesh Chaudhary, (2003) 8 SCC 204 and Anjan Kumar v.

Union of India and others, (2006) 3 SCC 257. On the strength

of those three decisions the High Court upheld the order

passed by the Scrutiny Committee cancelling the tribal

certificate earlier obtained by the appellant on the sole ground

that his father was a non-tribal, belonging to the Hindu caste

Kshatriya. The High Court did not advert to the fact that the

mother of the appellant was undeniably a Nayak, one of the

scheduled tribes and the appellant himself and his other

siblings were also married to Nayaks. The High Court also did

not refer to the evidences adduced by the appellant on the

question of his upbringing as a member of the Nayak

community and his acceptance in that community (or for that

matter the contra evidence produced by the respondent

questioning his claim to be a member of the scheduled tribe). In

view of the fact that his father was a non-tribal, the High Court

deemed everything else as of no relevance and declined to

record any finding on whether the appellant was, in fact,

brought up as a tribal and, consequently, shared all the

indignities and handicaps and deprivations normally suffered by

the tribal communities.

3.

The appellant, thus, lost his tribal certificate and the Fair

Price shop that was allotted to him on that basis. He has now

brought the matter to this Court making the grievance that the

High Court order does not impact him alone but as a result of

the order of the High Court his children too, though

undisputedly born to a tribal mother, are bound to lose their

tribal identity.

4.

The High Court seems to have read the decisions in

Valsamma Paul, Punit Rai and Anjan Kumar as laying down the

rule that in all cases and regardless of other considerations the

offspring of an inter-caste marriage or a marriage between a

tribal and a non-tribal would take his/her caste from the father.

In the three decisions there are indeed observations (though by

no means forming the ratio of the decisions) that may lend

credence to such a view but the question is whether it can be

said to flow from those decisions, as an inflexible rule of

general application, that in every case of inter-caste marriage or

marriage between a tribal and a non-tribal, the offspring must

take his/her caste from the father. The clear answer, to our

mind, is in the negative. A careful examination of the three

cases together with some other decisions of this Court would

clearly show that what was said in Valsamma in a certain

context has been rather mechanically and inappropriately

extended and applied to different other fact situations as the

law laid down in Valsamma.

5.

Valsamma was a Syrian Catholic woman (forward caste)

who married a Latin Catholic man (backward class) and the

question arose whether by virtue of her marriage she was

entitled to appointment to a post of lecturer that was rese