Jammu & Kashmir High Court
Suriya Bano vs Anita Devi And Others on 3 August, 2021
Sr. No. 261
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: LPASW No. 41 of 2017
Suriya Bano ...Petitioner(s)/Appellant(s)
Through: Sh. Sunil Sethi, Sr. Advocate with
Ms. Sonica Parihar, Advocate
v/s
Anita Devi and others .... Respondent(s)
Through: Sh. L.K. Sharma, Sr. Advocate
with M/s Rahul Sharma & M K
Sharma, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
1. Heard Sh. Sunil Sethi, senior counsel with Ms. Sonica Parihar for the
appellant and Sh. L. K. Sharma, senior counsel with M/s Rahul Sharma and
M K Sharma, Advocate for the respondents.
2. The judgment and order of the learned Single Judge dated
13.02.2017 deciding SWP No. 1057/2006 'Anita Devi v. State and others' is
under challenge by means of Letters Patent Appeal.
3. The dispute in the writ petition which gave rise to this appeal was
regarding promotion from the post of Anganwadi Worker as Supervisor. The
petitioner Anita Devi in filing the writ petition contended that the promotion of
respondent No.4 Suriya Bano is illegal as she does not belong to the category
of Scheduled Tribe and that in her place she should be appointed.
4. The writ petition was allowed by the impugned judgment and order
by simply considering the legal plea that marriage of a person would not
change her caste relying upon the Supreme Court decision in the case of
Valsamma Paul v. Cochin University and others, 1996 AIR (SC) 1011.
5. Sh. Sunil Sethi senior counsel argued that the post of Supervisor on
which Suriya Bano has been promoted was not a post to be filled up by
promotion of Scheduled Tribe, at least there is no such material to indicate it.
Secondly, Suriya Bano was not promoted by giving the benefit of reservation
under the category of Scheduled Tribe, therefore, learned Single Judge
committed a manifest error of law in applying the above Supreme Court
decision which has no application to the facts and circumstances of the present
case.
6. Sh. Sharma, on the other hand, contends that Suriya Bano belongs to
a general category, therefore, she is ineligible for promotion on a post reserved
for Scheduled Tribe. She was married to a Scheduled Tribe person but later
after divorce she has remarried to a non-scheduled tribe category person.
7. Smt. Anita Devi in challenging the order of promotion of Suriya
Bano has not enclosed the promotion order along with writ petition. She has
simply brought on record the consequential order by which after promotion she
was posted at a particular place. In the absence of the order which is sought to
be challenged, the court could not have granted any relief to her.
8. Smt. Suriya Bano in her reply to the writ petition has brought on
record the promotion order dated 04.01.2006 wherein her name figures at
Serial no. 12. A perusal of the said order reveals that it is a general order of
promotion and it nowhere indicates that any of the candidates so promoted had
been promoted under any general or special category. It is thus not established
from the said order of promotion that Suriya Bano was promoted as Supervisor
on a post reserved for Scheduled Tribe candidate. The consequential order of
posting dated 16.01.2006 as filed by Anita Devi along with writ petition also
does not reveal that the post on which Suriya Bano has been promoted and
posted was a post reserved for Scheduled Tribe candidate.
9. Smt. Anita Devi in her writ petition has also not categorically
pleaded that any post much less the post on which Suriya Bano has been
promoted was reserved and meant to be filled up by promotion of a Scheduled
Tribe candidate. She has simply attacked the caste and the caste certificate of
Suriya Bano and had pleaded that she is not eligible. However, in the reply
filed by Suriya Bano to the writ petition, she has categorically accepted that she
is a member of Scheduled Tribe having married Sh. Mohd. Saleem Gujjar who
belongs to the Scheduled Tribe category. She has been validly promoted to the
post of Supervisor against the post reserved for Scheduled Tribe category.
10. In view of the aforesaid assertion of Suriya Bano in the pleadings, it
appears that she has been promoted on a post of Supervisor reserved for
Scheduled Tribe but this aspect has lost consideration by the learned Single
Judge. He has not considered any material on record nor has even waited for
the response of the State to record a finding if the post on which Suriya Bano
was promoted was actually a reserved post for the Scheduled Tribe candidate
and whether her promotion was in the reserved category or was of a general
nature.
11. There is no quarrel on the legal proposition that has been laid down
by the Supreme Court in Valsamma Paul supra that 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 but the fact remains whether
despite treating Suriya Bano as a general category candidate, has she been
promoted as Supervisor on the post reserved for Scheduled Tribe category or
not?
12. In order to ascertain the above aspect of the matter and on the facts
as narrated above, we set aside the impugned judgment and order dated
13.02.2017 and remand the matter to the writ court for decision afresh after due
consideration of the factual aspect as mentioned by us above.
13. The appeal stands allowed with no order as to costs.
(PUNEET GUPTA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Jammu
03.08.2021
Raj Kumar
RAJ KUMAR
2021.08.04 17:35
