The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15155 of 2012 Sunil Kumar Bhue Petitioner Mr. G.P. Dutta, Advocate …. -Versus- State of Odisha & Others …. Opposite Parties
Legal Reasoning
Mr. Ishwar Mohanty, ASC CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 29.01.2024 Order No. 09. 1. Heard Mr. Dutta, learned counsel for the petitioner and Mr. Mohanty, learned ASC for the State. 2. Instant writ petition is filed by the petitioner challenging the impugned order under Annexure-5 passed by the opposite party No.2. 3. Mr. Dutta, learned counsel for the petitioner submits that matter should be remitted back to opposite party No.2 to consider the effect of the circular of the Ministry of Home Affairs, Government of India which is with regard to issuance of SC and ST certificate in cases of adoption. It is fairly admitted by Mr. Dutta, learned counsel for the petitioner that though para-5 of the said circular of the month of April, 1975 of Government of India, Ministry of Home Affairs stipulates relates to cases of adoption to be considered with respect to issuance of scheduled caste certificates and there is no mention as regards Scheduled Tribes but at the same time, he requests for a remand. Page 1 of 4 4. Mr. Mohanty, learned ASC for the State, however, submits that the law is well settled in view of the decision of the Apex Court in Mrs. Valsamma Paul Vrs. Cochin University and others AIR 1996 SC 1011, where it has been held and observed that a candidate, who had the advantageous start in life being born in forward caste but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation. It is further submitted that the circular which has been referred to cannot override and run contrary to the constitutional provisions. At the same time, Mr. Mohanty, learned ASC refers to the following decisions, such as, Anjan Kumar Vrs. Union of India and others (2006) 3 SCC 257 and Madhusudan Vrs. State of Jharkhand and others 2022 SCC Online Jhar 400, which are matters concerning adoption. By placing reliance on the above decisions, it is finally submitted by Mr. Mohanty, learned ASC for the State that the petitioner originally belonged to OBC category but subsequently, claimed Scheduled Tribe status after an adoption and therefore, in view of the decisions (supra) and in particular, in Mrs. Valsamma Paul (supra), he could not have been allowed to claim reservation, the fact which was duly taken cognizance of by opposite party No.2 and hence, the impugned order under Annexure-5 is perfectly in accordance with law and therefore, it calls for no interference. 5. In fact, in Anjan Kumar (supra), the Apex Court considered the effect of a circular of the Government as against the constitutional provisions and held that any such circular to the contrary is ultra vires. Admittedly, the circular of the Government of India in Ministry of Home Affairs dated April, 1975 has not been dealt with and referred to by the Apex Court in the decision of Mrs. Page 2 of 4 Valsamma Paul (supra). However, the Court in view of the ratio laid down by the Apex Court in Anjan Kumar (supra) which is with reference to the circular in contrast to the constitutional provisions, is of the considered view that the petitioner cannot take advantage of it and more particularly, when the law is well settled as enunciated in Mrs. Valsamma Paul (supra). For proper and better appreciation, the relevant extracts of the decision in Mrs. Valsamma Paul (supra) is reproduced herein below: “33. However the question is: whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facts, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? XXX XXX XXX to the 34. XXX XXX XXX Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject same disabilities, disadvantages, indignities or suffering 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) status of scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution and would the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.” frustrate 6. In the aforesaid decision, the Apex Court clearly observed that the underlying constitutional policy under Article 15(4) and 16(4) Constitution of India would be defeated, if a person is allowed to take advantage of a caste certificate not being originally Page 3 of 4 belong to the family of Scheduled Caste and Scheduled Tribe and has had a advantageous life initially but later on transplanted in the family of a backward caste either by adoption or marriage or conversion as the case may be. 7. In such view of the matter and having regard to the other two decisions, the Court reaches at a conclusion that the petitioner being an OBC and later on adopted by a Scheduled Tribe having had an advantageous life in the beginning could not have been considered as a Scheduled Tribe and rightly, therefore, opposite party No.2 considering the materials on record and on a subjective satisfaction him being born in the family of OBC community having all advantages of the life with no disadvantageous after adoption rejected the caste status and passed the impugned order under Annexure-5 which, hence, deserves no interference. In other words, the Court having considered the submissions of learned counsel for the respective parties and being alive to the settled legal position is of the humble view that opposite party No.2 did not commit any error by passing the impugned order under Annexure-5 with reference to caste status of the petitioner. 8. 9. Hence, it is ordered. In the result, the writ petition stands dismissed. 10 Interim order passed by this Court earlier stands vacated as a result. (R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 31-Jan-2024 11:09:17 Page 4 of 4