IMPORTANT POINT
Issue of the caste of a child of tribal and non-tribal parents is a question of fact.

Judgment :-

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. Valsammawas 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 reserved for Latin Catholics (Backward Class Fishermen). The full bench of the Kerala High Court held that though Valsamma was married according to the Canon law, being a Syrian Christian by birth, she could not by marriage with a Latin Catholic become a member of that class nor could she claim the status of backward class by marriage. Dealing with the consequences of a woman marrying outside her caste the Court relied upon two old Privy Counci