P.Vijayalakshmi v. Special Commissioner and Commissioner for Revenue Administration, Ezhilagam Chepauk, Madras 600 005 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.08.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE RAJA ELANGOW.A. NO. 873 OF 2000P.Vijayalakshmi.. Appellant- Vs -1. Special Commissioner and Commissioner for Revenue Administration, Ezhilagam Chepauk, Madras 600 005.2. The Collector Office of the Collectorate Ezhilagam, Chepauk Madras 600 005.3. The Tahsildar Fort Tondiarpet Taluk Madras 600 001.4. The Oriental Insurance Company rep. by its Asst. General Manager U.I.L. Buildings Esplanade, Madras 600 001... Respondents Writ Appeal filed against the order dated 28th April, 2000,passed by learned single Judge in W.P. No.19469 of 1992. Presentedto this Court under Article 226 of the Constitution of India, toissue a Writ of Certiorari to call for the records of the 2ndrespondent bearing Proc.No.R.C.5/75796/88 dated 20.8.91 and confirmedby the Ist Respondent in his Proc.K.No.02/107672/91 dated 18.7.91.For Appellant : Mr. N.G.R.PrasadFor Respondents: Mr. D.Sreenivasan, AGP, for RR1 to 3 Mr. P.Sukumar for R-4 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTS.J.MUKHOPADHAYA, J.The appellant was granted community certificate as ScheduledCaste. After due enquiry, having found that she does not belong toScheduled Caste community, but married to a Scheduled Caste person,her community certificate was cancelled. In view of suchcancellation, Oriental Insurance Company (hereinafter referred to as'insurance company') issued notice to the appellant for terminatingher service. Having unsuccessfully challenged, the appellant haspreferred the writ appeal.2. The brief facts of the case are as follows :-The appellant, who belongs to Hindu Vanniyakula Kshtriyacommunity, married one S.B.Palani, a Hindu Adi Dravidar (SC) on 10thAug., 1977. She applied for community certificate and was grantedcertificate dated 2nd Dec., 1977 from Fort Tondiarpet Taluk Officedeclaring that “she deemed to have converted to Hindu Adi Dravidarcommunity, a Scheduled Caste, by virtue of her marriage, celebratedon 30th June, 1977 with Thiru S.B.Palani, who belonged to Hindu AdiDravidar community by birth”. Thereafter, she applied forappointment. The Assistant Director, District Employment Office,Chennai, having noticed the fact, by letter dated 12th Dec., 1977,requested the Tahsildar, Fort Tondiarpet Taluk Office, Madras, toforward the relevant Government Order treating those belonging toother community as Scheduled Caste by virtue of marriage. TheTahsildar, by letter dated 30th Nov., 1978, informed that pursuant toGovernment Letter No.Ms.493/BCI/76 dated 11th June, 1976, theappellant has been classified as belonging to Hindu Adi DravidarCommunity (SC). On the basis of the certificate, the insurancecompany issued letter of appointment in her favour.The Collector of Madras, subsequently, issued a notice to theappellant as to why the community certificate issued in her favour bythe Tahsildar by proceeding dated Nov., 1978 should not be cancelled.This was communicated by the Vigilance Officer of the insurancecompany, which was communicated to the appellant by letter dated 20thOct., 1990. A separate show cause notice was also served on theappellant, issued by the Collector of Madras vide show cause noticedated 25th Sept., 1990.The appellant replied to the Collector on 26th Oct., 1990. Whileshe denied that she belonged to Hindu Vanniyakula Kshtriya communityby birth, she took plea that she married S.B.Palani, who belonged toHindu Adi Dravidar community by birth. The community certificate wasissued pursuant to order issued by the Government vide letterNo.Ms.493/BCI/76 dated 11th June, 1976. https://hcservices.ecourts.gov.in/hcservices/ When the verification of community certificate was pending, theappellant wrote another letter on 21st Jan., 1991 to the Collector,Madras and communicated the extract of the letter dated 11th June,1976. The Collector of Madras, by proceeding dated 20th Aug., 1991,giving reference to the guidelines issued by the Government of Indiaand other records, cancelled the appellant's community certificatedated Nov., 1978.The appellant, thereafter, preferred appeal before theCommissioner of Revenue Administration, Madras, by her letter dated14th Oct., 1991 and requested to restore her status as ScheduledCaste. The Commissioner, after perusing all the records, rejectedthe appeal on 18th July, 1992, in view of which the insurance companyissued notice and charge memo dated 28th Oct., 1992, giving rise tothe writ petition.3. Learned counsel appearing on behalf of the petitioner made thefollowing submissions :-i) In view of policy decision of the State Government circulatedby letter dated 11th June, 1976, after marriage to the appellant, hersocial status having changed, the community certificate was rightlyissued in her favour on 2nd Dec., 1977 and Nov., 1978. ii) Once her husband's community accepted her and took her intheir fold of the Scheduled Caste society, the community certificateshowing her as Hindu Adi Dravidar (SC) was rightly issued.iii) Mere change of policy decision in view of Government ofIndia guidelines will not invalidate the earlier action taken,including the community certificate issued in her favour.iv) There being no misrepresentation made by the petitioner atthe time of appointment, she having appointed on the basis of a validcertificate issued by the competent authority, the proceeding formisconduct is uncalled for.4. Learned counsel appearing on behalf of the insurance companysubmitted that the caste of a person cannot be changed on marriage.He also placed reliance on one or other decision of the SupremeCourt, but it was accepted that there was no misrepresentation onbehalf of the appellant at the time of appointment. In thisconnection, he produced a letter dated 31st Jan., 2005 addressed fromthe Personnel Department of the Oriental Insurance Company, RegionalOffice, Chennai to the Personnel Department of the Oriental InsuranceCompany, Head Office, New Delhi.5. We have heard the learned counsel for the parties and perusedthe records.6. Learned counsel for the appellant relied on Supreme Court https://hcservices.ecourts.gov.in/hcservices/ decision in State of Maharashtra – Vs – Om Raj (2007 (14) SCC 488).That was a case in which the benefit as SC/ST was based on error.The Supreme Court considered what can be done on error beingdiscovered. That was a matter relating to admission in professionalcollege. A person, though not found belonging to Scheduled Tribe wasadmitted to professional college as per order of the High Court;therefore, in that case, protection was granted in the light of orderof Supreme Court in Milind's case (2001 (1) SCC 1). However, theappellant cannot derive the advantage of the same as the SupremeCourt passed the said order under Article 142 of the Constitution ofIndia.Another case relied on by the appellant is the case of PunjabNational Bank – Vs – Vilas (2008 (14) SCC 545). There was a wrongappointment made, but by Maharashtra Government Resolution dated 15thJune, 1995, appointments of non-tribals appointed prior to 15th June,1995, were saved. In absence of any such provision, the appellantcannot derive advantage of the same.7. Learned counsel for the appellant placed much reliance on so-called policy decision of the State Government communicated videletter No.Ms.493/BCI/76 dated 11th June, 1976. Therein, the followingdirection was issued :-“Sub : Welfare of Backward Classes – Social Statusof a male member or female member of a forwardcommunity who has married a person from a Backwardclasses community – consequent on his/her marriage –Clarification – Orders – issued.Ref : Your letter No.2296/Tutor/73 dt. 25.3.76----------I am directed to invite a reference to your lettercited enquiring whether one Thirumathi K.S.Meenakshi amember of forward community (now Thirumathi K.S.AmeenaShapir) can be considered to belong to LabbaiCommunity which is included in the list of BackwardClasses by virtue of her conversion to Islam andmarriage to a Member belonging to Labbai Community.The Commissioner has requested for orders on thequestion whether social status of a male member orfemale member of a forward community who has married aperson from a Backward Class or Scheduled Caste willchange consequent on his/her marriage and if so,whether he/she can be treated as a member of BackwardClass or Scheduled Caste, as the case may be for thepurpose of granting concession in the matter ofappointment in the Public Service.2. The Government have examined the mattercarefully. The social status of a male/female member https://hcservices.ecourts.gov.in/hcservices/ of a forward community will not change merely becausehe/she has married a person from a Backward Class orScheduled Class Community. The crucial test iswhether the marriage couple were accepted by themembers of that caste to which they claim to belongand that it can be proved by showing inter-marriage,inter-dining community of worship and dress, residencein a particular place and the like.3. In the specific case cited by the commission inthe letter cited, it is seen that Tmt.K.S.Meenakshi(now Tmt.K.S.Ameena Shapi) has converted herself intoIslam and that she resides with her husband and thatthe community of her husband (Labbai) has accepted heras one among themselves. In view of the above, shecan be treated as belonging to Labbai Community whichis included in the list of Backward Classes. Sd/- for Secretary to Govt.”However, Government of India having come to know of the saidletter, by letter No.34726/A 85-1 dated 18th March, 1985, informed asfollows :-“No person who was not an S.C. or S.T. by birth willbe deemed to be a member of a S.C. or S.T. merelybecause he or she had married a person belonging toS.C. or an S.T.”8. Article 341 of the Constitution empowers the President tospecify the caste, race or tribes or part of groups within the caste,race or tribes, which shall, for the purpose of the Constitution bedeemed to be Scheduled Caste in relation to that State or UnionTerritory as the case may be. Parliament may, by law, include in orexclude from the list of Scheduled Caste specified in a notificationissued under clause (1) of Article 341 any caste, race or tribe orpart of a group within any caste, race or tribe. Similar power isvested with the President under Article 342 with regard to ScheduledTribe.9. Similar matter fell for consideration before the Supreme Courtin Valsamma Paul – Vs – Cochin University (AIR 1996 SC 1011 :: 1996(3) SCC 545). In the said case, Supreme Court while noticed the FullBench decision of Kerala High Court, wherein it was observed that thespecial provisions under Articles 15 (4) and 16 (4) of theConstitution intended for advancement of social and educationallybackward class of citizens cannot be defeated by including candidatesby alliance or by any other mode of joining the community. It wouldtantamount to making a mockery of the constitutional exercise ofidentification of social and educationally backward class of citizen, https://hcservices.ecourts.gov.in/hcservices/ the Supreme Court observed and held as follows :-“34. In Muralidhar Dayandeo Kesekar v. VishwanathPandu, (1995 (3) JT (SC) 563 :: (1995 AIR SCW 2224);and R.Chandevarappa v. State of Karnataka, (1995) 7 JT(SC) 93, this Court had held that economic empowermentis a fundamental right to the poor and the State isenjoined under Articles 15 (3), 46 and 39 to providethem opportunities. Thus, education, employment andeconomic empowerment are some of the programmes, theState has evolved and also provided reservation inadmission into educational institutions, or in case ofother economic benefits under Articles 15 (4) and 46,or in appointment to an office or a post under theState under Article 16 (4). Therefore, when a memberis transplanted into the Dalits, Tribes and OBCs,he/she must of necessity also undergo same handicaps,be subject to the same disabilities, disadvantages,indignities or sufferings so as to entitle thecandidate to avail the facility of reservation. Acandidate who had the advantageous start in life beingborn in forward caste and had march of advantageouslife but is transplanted in backward caste by adoptionor marriage or conversion, does not become eligible tothe benefit of reservation either under Article 15 (4)or 16 (4), as the case may be. Acquisition of thestatus of Scheduled Caste, etc., by voluntary mobilityinto these categories would play fraud on theConstitution, and would frustrate the benignconstitutional policy under Articles 15 (4) and 16 (4)of the Constitution.36. The recognition of the appellant by the memberof Latin Catholic would not, therefore, be relevantfor the purpose of her entitlement to the reservationunder Article 16 (4), for the reason that she, as amember of the forward caste, had advantageous start inlife and after her completing education and becomingmajor married Yesudas; and so, she is not entitled tothe facility of reservation given to the LationCatholic, a backward class.”10. In Sobha Hymavathi Devi – Vs – Setti Gangadhara Swamy & Ors.(2005 (2) SCC 244), Supreme Court observed that reservation underArticles 15 (4) or 16 (4) or 330 or 332 would benefit only those whobelong to Scheduled Caste or Scheduled Tribe and not those who claimto acquire the status by virtue of marriage.Similar was the view of Supreme Court in Meera Kanwaria – Vs –Sunita & Ors. (2006 (1) SCC 344). https://hcservices.ecourts.gov.in/hcservices/

11. In view of the provisions of Articles 341 and 342 of theConstitution of India and the decision of Supreme Court, we hold thatthe State Government had no jurisdiction to declare that non SC/ST,on marriage with SC/ST will deem to be a SC/ST after such marriage.The Government of India, by letter dated 18th March, 1985, rightlypointed out such mistake made by the State Government. We furtherhold that a non Scheduled Caste/Scheduled Tribe cannot claim toacquire status of Scheduled Caste/Scheduled Tribe by marriage and,thereby, the appellant cannot derive the advantage of circular dated11th June, 1976.12. So far as the question of misconduct is concerned, we are notdeliberating on the issue as a proceeding has merely been initiatedagainst the appellant. The appellant has stated that she nevermisrepresented and in view of the letter dated 11th June, 1976, shewas granted community certificate as Scheduled Caste. She appliedalong with others and the insurance company, having noticed the fullfacts, appointed her against the post. Therefore, she has notcommitted any fraud nor misrepresented for appointment in theinsurance company. The letter written by the Personnel Departmentfrom its Regional Office, Chennai dated 31st Jan., 2005, also speaksin the same manner. In these circumstances, we are of the view thatthe appellant may bring the aforesaid fact to the notice of theenquiry officer and the competent authority, who may decide whetherin the background aforesaid it can be alleged that the petitionermade any misrepresentation and whether proceeding should be dropped. The writ appeal stands disposed of with the aforesaidobservations. But there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarGLNTo1. Special Commissioner and Commissioner for Revenue Administration, Ezhilagam Chepauk, Madras 600 005.2. The Collector Office of the Collectorate Ezhilagam, Chepauk Madras 600 005. https://hcservices.ecourts.gov.in/hcservices/

3. The Tahsildar Fort Tondiarpet Taluk Madras 600 001.4.The Asst.General Manager,the JOriental Insuance CompanyMadras-11 cc To The Government Pleader, SR.370691 cc To Mr. P.Sukumar, Advocate, SR.365231 cc To Mr.Row & Reddy, Advocate, SR.36657 W.A. NO. 873 OF 2000rsy(co)pmk12.8.2009.