CASE NO.: Appeal (civil) 6445 of 2000 PETITIONER: Anjan Kumar RESPONDENT: Union of India & Ors. DATE OF JUDGMENT: 14/02/2006 BENCH: H.K. SEMA & Dr.A.R. LAKSHMANAN JUDGMENT:
J U D G M E N T
H.K.SEMA,J
The appellant Shri Anjan Kumar is the offshoot of the
wedlock between Shri Lakshmi Kant Sahay, District Gaya in
the State of Bihar and Smt. Angela Tigga who belongs to
Scheduled Tribe community of Oraon Tribe, village Pondi
Potkona, Distt./Division Raigarh, State of Madhya Pradesh.
By an order dated 7th August, 1992 Scheduled Tribe certificate
was issued to the appellant by S.D.M., Gaya on the ground
that the mother of the appellant Smt. Angela Tigga belongs to
Oraon tribe which is recognised as a Scheduled Tribe in the
State of Madhya Pradesh. The appellant appeared before the
Civil Service Examination in 1991 conducted by the Union
Public Service Commission claiming himself to be the
Scheduled Tribe candidate. In the said examination he had
passed the written test but could not qualify in the interview.
He again appeared in the Civil Service Examination conducted
by the Union Public Service Commission in the year 1992 and
passed the written examination. In 1993 he was called for
interview. The result of the successful candidates was
published and he stood at 759th rank in order of merit. He
was also allotted Indian Information Service Grade A.
However, the appellant did not receive any final posting order,
which had resulted in filing many representations to the Union
of India. In one of representations dated 14th September, 1994
the appellant also stated that he belongs to Scheduled Tribe
category and his sub-caste is Oraon.
Having failed to receive any positive response from the
respondents, he filed an Original Application before the
Central Administrative Tribunal, Principal Bench, New Delhi
being O.A. No. 2291 of 1994, inter alia, seeking direction to
the Union of India to allow the appellant to join training. In
response to the notice issued by the Tribunal, the Union of
India, by its letter dated 9th November, 1994, conveyed to the
Tribunal that the appellant has not been brought up in tribal
environment and that his father is a non-tribal and, therefore,
he cannot be treated as a Scheduled Tribe. Further, the Union
of India, as directed by the Tribunal, conducted the enquiry
into the question whether the appellant belongs to Scheduled
Tribe community and the enquiry was conducted by the
Additional District Collector, Jaispurnagar, District Raigarh,
Madhya Pradesh and the report was submitted on 26th June,
1995. The enquiry report obviously was against the
appellant. After examining the enquiry report submitted as
aforestated, the Tribunal ultimately dismissed the Original
Application No. 2291 of1994 by order dated 12th December,
1995. Aggrieved thereby the appellant filed a Writ Petition
being C.W.P No. 647 of 1997 before the High Court of Madhya
Pradesh at Jabalpur, inter alia, challenging the enquiry report
submitted by the enquiry officer on the allegation of violation
of the principles of natural justice inasmuch as no opportunity
of hearing had been accorded to the appellant. The learned
single Judge of the High Court after perusing the records and
the enquiry report, submitted by the enquiry officer, dismissed
the Writ Petition by order dated 22nd January, 1999. The
appellant thereafter carried an unsuccessful appeal before the
Division Bench in L.P.A. No. 138 of 1999, which was
dismissed by the L.P.A. bench on 3rd December, 1999. Hence,
the present appeal by special leave.
We have heard the parties at length.
The sole question calls for determination in this appeal
is, as to whether the offshoot of the tribal woman married to
non-tribal husband could claim status of Scheduled Tribe and
on the basis of which the Scheduled Tribe certificate could be
given.
It is contended by Mr. M.N.Krishnamani, learned senior
counsel that the enquiry officer conducted the enquiry behind
the back of the appellant and therefore, the learned single
Judge as well as the Division Bench erred in law dismissing
the petition/appeal by placing reliance on the enquiry report
and the material collected during the course of the enquiry.
He further contended that the marriage of mother of the
appellant (Scheduled Tribe) and the father of the appellant
(Kayastha) has been approved and accepted by the community
of the village and the appellant has been transplanted into the
Tribal community and therefore, he was entitled to the
Scheduled Tribe certificate which was correctly granted. In
this connection, he has referred to a Circular dated 4th March,
1975 issued by the Government of India, Ministry of Home
Affairs on the subject ‘Status of children belonging to the
couple one of whom belongs to Scheduled Castes/Scheduled
Tribes’. He particularly referred to the portion when a
Scheduled Tribe woman marries a non-Scheduled Tribe man,
the children from such marriage may be treated as members
of the Scheduled Tribe community, if the marriage is accepted
by the community and the children are treated as members of
their own community. Such Circulars issued from time to
time, being not law within the meaning of Article 13 of the
Constitution of India, it would be of no assistance to the
appellant on the face of the Constitutional provisions.
Further, the facts of this case are however different with the
facts in which the circular was sought to be clarified.
Undisputedly, the marriage of the appellant’s mother
(tribal woman) to one Lakshmi Kant Sahay (Kayastha) was a
court marriage performed outside the village. Ordinarily, the
court marriage is performed when either of the parents of
bride or bridegroom or the community of the village objects to
such marriage. In such a situation, the bride or the
bridegroom suffers the wrath of the community of the village
and runs the risk of being ostracised or ex-communicated
from the village community. Therefore, there is no question of
such marriage being accepted by the village community. The
situation will, however, stand on different footing in a case
where a tribal man marries a non-tribal woman (Forward
Class) then the offshoots of such wedlock would obviously
attain the tribal status. However, the woman (if she belongs to
forward class) cannot automatically attain the status of tribal
unless she has been accepted by the community as one of
them, observed all rituals, customs and traditions which have
been practiced by the tribals from time immemorial and
accepted by the community of the village as a member of
tribal society for the purpose of social relations with the village
community. Such acceptance must be by the village
community by a resolution and such resolution must be
entered in the Village Register kept for the purpose. Often
than not, such acceptance is preceded by feast/rituals
performed by the parties where the elders of the village
community participated. However, acceptance of the marriage
by the community itself would not entitle the woman (Forward
class) to claim the appointment to the post reserved for the
reserved category. It would be incongruous to suggest that the
tribal woman, who suffered disabilities, would be able to
compete with the woman (Forward class) who does not suffer
disabilities wherefrom she belongs but by reason of marriage
to tribal husband and such marriage is accepted by the
community would entitle her for appointment to the post
reserved for the Scheduled Castes and Scheduled Tribes. It
would be a negation of Constitutional goal.
It is not disputed that the couple performed court
marriage outside the village; settled down in Gaya and their
son, the appellant also born and brought up in the
environment of forward community did not suffer any
disability from the society to which he belonged. Mr.
Krishnamani, learned senior counsel contended that the
appellant used to visit the village during recess/holidays and
there was cordial relationship between the appellant and the
village community, which would amount the acceptance of the
appellant by the village community. By no stretch of
imagination, a casual visit to the relative in other village would
provide the status of permanent resident of the village or
acceptance by the village community as a member of the tribal
community.
The ‘tribe’ has been characterized by Dr. Gupta, Jai
Prakash in The Customary Laws of the Munda & the Oraon
quoted by this Court in State of Kerala vs.
Chandramohanan (2004) 3 SCC 429 at 432 as under:
“Tribe has been defined as a social group of a
simple kind, the members of which speak common
dialect, have a single government and act together
for such common purposes as warfare. Other
typical characteristics include a common name, a
contiguous territory, a relatively uniform culture or
way of life and a tradition of common descent.
Tribes are usually composed of a number of local
communities e.g. bands, villages or neighbourhoods
and are often aggregated in clusters of a higher
order called nations. The term is seldom applied to
societies that have achieved a strictly territorial
organization in large States but is usually confined
to groups whose unity is based primarily upon a
sense of extended kinship ties though it is no longer
used for kin groups in the strict sense, such as
clans.”
Bhowmik, K.L. in Tribal India: a profile in
India Ethnology observed:
“Tribe in the Dictionary of Anthropology is
defined as ‘a social group, usually with a definite
area, dialect, cultural homogeneity and unifying
social organization. It may include several
subgroups, such as sibs or villages. A tribe
ordinarily has a leader and may have a common
ancestor, as well as patron deity. The families or
small communities making up the tribe are linked
through economic, social, religious, family or blood
ties’.”
The object of Articles 341, 342, 15(4), 16(4) and 16(4A) is
to provide preferential treatment for the Scheduled Castes and
Scheduled Tribes having regard to the economic and
educational backwardness and other disabilities wherefrom
they suffer. So also considering the typical characteristic of
the tribal including a common name, a contiguous Territory, a
relatively uniform culture, simplistic way of life and a tradition
of common descent, the transplantation of the outsiders as
members of the tribe or community may dilute their way of life
apart from such persons do not suffer any disabilities.
Therefore, the condition precedent for a person to be brought
within the purview of the Constitution (Scheduled Tribes)
Order, 1950, one must belong to a tribe and suffer disabilities
wherefrom they belong.
In Kumari Madhuri Patil v. Addl.Commnr. Tribal
Development (1994) 6 SCC 241 this Court denounced the
practice of persons claiming benefits conferred on STs by
producing fake, false and fraudulent certificates:
“13. The admission wrongly gained or
appointment wrongly obtained on the basis of false
social status certificate necessarily has the effect of
depriving the genuine Scheduled Castes or
Scheduled Tribes or OBC candidates as enjoined in
the Constitution of the benefits conferred on them
by the Constitution. The genuine candidates are
also denied admission to educational institutions or
appointments to office or posts under a State for
want of social status certificate. The ineligible or
spurious persons who falsely gained entry resort to
dilatory tactics and create hurdles in completion of
the inquiries by the Scrutiny Committee. It is true
that the applications for admission to educational
institutions are generally made by a parent, since
on that date many a time the student may be a
minor. It is the parent or the guardian who may
play fraud claiming false status certificate.”
Similar view was reiterated in Director of Tribal
Welfare, Govt. of A.P. vs. Laveti Giri (1995) 4 SCC 32. In
the case of Punit Rai vs. Dinesh Chaudhary (2003) 8 SCC
204 this Court at page 221 in para 39 observed as under:-
“39. A person in fact not belonging to the
Scheduled Caste, if claims himself to be a member
thereof by procuring a bogus caste certificate, would
be committing fraud on the Constitution. No court
of law can encourage commission of such fraud”
Further in Punit Rai’s case (supra) in paragraph 27, this
Court observed that:
“27. The caste system in India is ingrained in
the Indian mind. A person, in the absence of any
statutory law, would inherit his caste from his
father and not his mother even in a case of
intercaste marriage.”
In the case of Valsamma Paul (Mrs.) vs. Cochin
University and others (1996) 3 SCC 545 this Court again
examined the entire gamut and came to the conclusion that
the condition precedent for acquiring Scheduled Tribes
Certificate one must suffer the disabilities – Socially,
Economically and Educationally. The facts of that case are
important and may be recited in a nutshell. Two posts of
Lecturers in Law Department of Cochin University were
notified for recruitment, one of which was reserved for Latin
Catholics (Backward Class Fishermen). The appellant was a
Syrian Catholic (a Forward Class). She married to Latin
Catholic (Backward Class Fishermen) and had applied for
selection as a reserved candidate. The University selected her
on that basis and accordingly appointed her against the
reserved post. Her appointment was questioned by another
candidate by filing a writ petition praying for a direction to the
University to appoint the petitioner in place of the appellant.
The learned single Judge allowed the Writ Petition. On appeal
being filed before the Division Bench concerning the important
question of law a reference was made to the Full Bench. The
Full Bench held that though the appellant was married
according to the Canon Law, the appellant being a Syrian
Catholic by birth (Forward Class), by marriage with the Latin
Catholic (Backward Class Fishermen) is not member of that
Class nor can she claim the status as a Backward Class by
marriage. On an appeal being preferred before this Court
against the decision of the Full Bench this Court after
referring to various decisions of this Court upheld the
Judgment of the Full Bench. This Court held in paragraphs
33 and 34 as under:
“33. However, the question is: Whether a lady
marrying a Scheduled Caste, Scheduled Tribe or
OBC citizen, or one transplanted by adoption or an
other voluntary act, ipso facto, becomes entitled to
claim reservation under Article 15(4) or 16(4), as the
case may be? It is seen that Dalits and Tribes
suffered social and economic disabilities recognized
by Articles 17 and 15(2). Consequently, they
became socially, culturally and educationally
backward; the OBCs also suffered social and
educational backwardness. The object of
reservation is to remove these handicaps,
disadvantages, sufferings and restrictions to which
the members of the Dalits or Tribes or OBCs were
subjected and was sought to bring them in the
mainstream of the nations’s life by providing them
opportunities and facilities.
34. In Murlidhar Dayandeo Kesekar v.
Vishwanath Pandu Barde 1995 Supp (2) SCC 549
and R.Chandevarappa v. State of Karnataka
(1995) 6 SCC 309 this Court had held that
economic empowerment is a fundamental right to
the poor and the State is enjoined under Articles
15(3), 46 and 39 to provide them opportunities.
Thus, education, employment and economic
empowerment are some of the programmes the
State has evolved and also provided reservation in
admission into educational institutions, or in case
of other economic benefits under Articles 15(4) and
46, or in appointment to an office or a post under
the State under Article 16(4). Therefore, when a
member is transplanted into the Dalits, Tribes and
OBCs, he/she must of necessity also have had
undergone the same handicaps, and must have
been subjected to the same disabilities,
disadvantages, indignities or sufferings so as to
entitle the candidate to avail the facility of
reservation. A candidate who had the advantageous
start in life being born in Forward Caste and had
march of advantageous life but is transplanted in
Backward Caste by adoption or marriage or
conversion, does not become eligible to the benefit
of reservation either under Article 15(4) or 16(4), as
the case may be. Acquisition of the status of
Scheduled Caste etc. by voluntary mobility into
these categories would play fraud on the
Constitution, and would frustrate the benign
constitutional policy under Articles 15(4) and 16(4)
of the Constitution.”
In view of the catena of decisions of this Court, the
questions raised before us are no more res integra. The
condition precedent for granting tribe certificate being that one
must suffer disabilities wherefrom one belongs. The offshoots
of the wedlock of a tribal woman married to a non-tribal
husband – Forward Class (Kayastha in the present case)
cannot claim Scheduled Tribe status. The reason being such
offshoot was brought up in the atmosphere of Forward Class
and he is not subjected to any disability. A person not
belonging to the Scheduled Castes or Scheduled Tribes
claiming himself to be a member of such caste by procuring a
bogus caste certificate is a fraud under the Constitution of
India. The impact of procuring fake/bogus caste certificate
and obtaining appointment/admission from the reserved
quota will have far-reaching grave consequences. The
meritorious reserved candidate may be deprived of reserved
category for whom the post is reserved. The reserved post will
go into the hands of non-deserving candidate and in such
cases it would be violative of the mandate of Articles 14 and 21
of the Constitution of India.
The Scheduled Caste and Scheduled Tribe Certificate is
not a bounty to be distributed. To sustain the claim, one must
show that he/she suffered disabilities – socially, economically
and educationally cumulatively. The concerned authority,
before whom such claim is made, is duty bound to satisfy
itself that the applicant suffered disabilities socially,
economically and educationally before such certificate is
issued. Any concerned authority issuing such certificates in a
routine manner would be committing the dereliction of
Constitutional duty.
In the result, there is no merit in this appeal and it
deserves to be dismissed with costs. The tribal certificate
dated 7th August, 1992 procured by the appellant by
misrepresentation of the facts is quashed and set aside.
The appeal is dismissed with costs.
