Smt. Sunita Singh vs State Of U.P. And 5 Others
2015 Latest Caselaw 5605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 

 
Case :- WRIT - C No. - 53689 of 2015
 
Petitioner :- Smt. Sunita Singh
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Rakesh Kumar Singh,Shashi Nandan
 
Counsel for Respondent :- C.S.C.,N.P. Singh
 

 
Hon'ble Suneet Kumar,J.

The petitioner claims to have been born in 1961 in Agarwal family, she contracted marriage with Dr. Veer Singh who belongs to the Jatav community (Scheduled Caste)1. The marriage was contracted against the will of her parents, as such, the parents severed all relations with the petitioner. Out of their wedlock two sons were begotten in 1980 and 1982, respectively. It is contended that the petitioner on being assimilated and naturalized in Jatav community applied for caste certificate which was accordingly issued by the District Collector, Bulandshahar on 29 November 1991 certifying that the applicant belongs to Scheduled Caste (Jatav) community. The petitioner, thereafter, was appointed Post-Graduate Teacher (Hindi) in Kendriya Vidyalaya Sangathan on 16 December 1993 under the category reserved for Scheduled Caste, during service the petitioner obtained M.A. Degree. Upon putting 19 years of service as teacher in Kendriya Vidyalaya Sangathan, upon complaint, the Deputy Commissioner, Kendriya Vidyalaya Sangathan requested the District Magistrate to get the caste certificate verified. On the direction of the District Magistrate, the Tehsildar, Tehsil Sadar, Bulandshahar vide order dated 22/27 June 2013 cancelled the caste certificate and directed the petitioner to return the caste certificate.

It appears that the petitioner made a request to the District Magistrate to recall the order of cancellation, upon no heed being paid, the petitioner approached this Court in a petition being Writ-A No. 15682 of 2014 which was disposed of on 7 April 2014 directing the District Magistrate to decide the representation of the petitioner. The District Magistrate rejected the representation by order dated 3 September 2014 with the reasoning that the caste of a person is determined by birth not by marriage to a person belonging to the reserved category. Aggrieved, petitioner again approached this Court in a petition being Writ Petition No. 52295 of 2014 which was also disposed of on 24 September 2014 with the observation that the petitioner may approach the Commissioner of the Division in appeal. In appeal, the Commissioner, Meerut Division, Meerut/Regional Level Committee dismissed the appeal by order dated 27 December 2014 upholding the order of the District Magistrate. Aggrieved, the petitioner approached the State Government/State Level Committee, which by order dated 15 May 2015 affirmed the orders passed by the Regional Level Committee and the District Level Committee. As a result of the cancellation of the caste certificate, the petitioner has since been removed from service of the Kendriya Vidyalaya Sangthan vide order dated 18 March 2015 passed by the Additional Commissioner (Administration) & Disciplinary Authority, Kendriya Vidyalaya Sangathan.

The petitioner is assailing the orders passed by the State Level Committee arising from the order passed by the District and Regional Level Committee, a further direction has been sought to restore the caste certificate issued to the petitioner in 1991.

On the request of the parties, the petition is being decided at the admission stage without calling for counter affidavit as per the Rules of the Court.

The facts, inter se, parties are not in dispute. It is admitted on behalf of the petitioner that she belongs to upper caste family which does not fall under any of the class/caste included in the category of SC as notified from time to time. It is admitted that the petitioner was married to a person belonging to the SC category. It is, however, contended that the marriage was against the wishes of the family and upon marriage the Jatav community have accepted her as a member of the community.

After a lapse of 23 years and upon putting in more than 19 years of service, the petitioner was accepted and assimilated into the Jatav community, therefore, it is sought to be urged that the authorities committed illegality and irregularity in cancelling the caste certificate. Further, the procedure as laid down in Madhuri Patel and another Versus Additional Commissioner Tribal Development and others2, was not followed. It is further sought to be urged that if the community of a particular caste as per their prevailing customs and usages approves and accepts the marriage of a lady of other caste with a male of a particular community, the lady would become a member of the particular community and her caste for all practical purposes will be caste of the community. In support of his submission, reliance has been placed on N.E. Horo Versus Jahan Ara Jaipal Singh3. Finally, it is urged that there being no fraud and misrepresentation practised on the part of the petitioner, as such, she cannot be deprived of the benefits already provided to the petitioner, reliance has been placed on Shalini Versus New English High School and others4 and Kavita Solanke Versus State of Maharashtra5.

In rebuttal, learned Standing Counsel would submit that the provisions for reservation if granted to a person upon marrying a person belonging to the reserved category would defeat the very purpose of reservation, persons who have not undergone the social stigma attached to a community cannot be conferred such benefit merely upon marriage to a person belonging to SC. In support of his submission, reliance has been placed on a Division Bench judgment rendered in Smt. Sushma Singh Versus State of U.P. and others6.

The question for determination is as to whether a person belonging to an unreserved category upon marriage would be entitled to claim reservation under Article 15(4)/16(4) of the Constitution of India.

When a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo and have had some of the handicaps, and must have been subjected to the same disabilities, advantages, indignities or suffering so as to entitle the candidate to avail the facility of reservation. The candidate who had advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in scheduled caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Articles 15(4) and 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. (Vide Murlidhar Dayandeo Kesekar Versus Vishwanath Pandu7 and R. Chandevarappa Versus State of Karnataka8)

In Valsamma Paul Versus Kochin University and others9, the appellant claimed reservation under Article 16(4) which was refused being a member of the forward class, who had an advantageous start in life and after completing education and upon becoming major married Yesudas a Latin Catholic, she was therefore not entitled to the facility of reservation given the Latin Catholic (backward class).

In Sobha Hymavathi Devi Versus Setti Gangadhara Swamy and others10, the Supreme Court reconsidered the judgment of N.E. Horo (supra) and partly overruled it holding that non-tribal person under the cover of marriage cannot be permitted to contest a seat reserved for tribes as it would disturb the very object of such a reservation. The status is varied by birth alone and not by adoption, conversion or marriage.

In Sandhya Thakur Versus Vimla Devi Kushwaha11, it was held that the claim of woman born to a high caste married to a man of Backward Class cannot be accepted as she was not born in a disadvantageous position which the community faces, therefore, would not be entitled to contest a seat reserved for Backward Class merely on the basis of her marriage to a person belonging to the Backward Class.

(Reference may also be made to a judgment rendered in Smt. Sushma Singh Versus State of U.P. Through Secretary Harijan and Samaj Kalyan and others12)

Having considered the facts and circumstances of the case, it is not in dispute that the petitioner belongs to the forward class of a prosperous hindu community, she married upon attaining the age of majority a person belonging to the Scheduled Caste, as such, it cannot be said that she acquired the status of that community, therefore, it cannot be said that she would be entitled to the constitutional protection and benefit conferred in terms of Article 15(4) and 16(4) of the Constitution.

The writ petition being devoid of merit is accordingly dismissed.

No costs.

Order Date :- 21.12.2015

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