Miss Musfira vs The Andaman and Nicobar Administration and Others

Harish Tandon, J.—The short point which arises for consideration in this writ petition is whether the benefit as pre-42 settlers can be given to a candidate whose father is a post-42 settlers but the mother is a pre-42 settlers. Before proceeding to deal with the aforesaid point evolved in this writ petition, certain admitted facts are required to be narrated.

The petitioner admittedly belongs to pre-42 settlers'' category as her parental grandfather settled in the islands prior to 1942. The competent authority issued the certificate in this regard as well.

Because of the absence of any college imparting professional/technical courses including MBBS and BDS, Ministry of Home Affairs, Government of India decided to reserve certain seats in the various institutions located at the mainland.

Under the said scheme of the Ministry of Home Affairs, Government of India, though seats were earmarked for various categories viz. tribals, deputationist, the Central Government Employees with transfer liability to serve outside the Union Territory where the candidates have studied the last two years in the islands, settlers who settled prior to 1942 and the other settlers, other locals who are neither the pre-42 or post-42 settlers provided they have incurred 10 years education in the islands and lastly to all the residents of the island irrespective of any classification, it has been the practice, since the aforesaid decision, that the Andaman and Nicobar Administration shall publish a provisional merit list concerning the respective categories for inviting any objections from any corner. If no objection is filed or if any objection is filed, a final list is published upon disposing of the said objection.

It is pertinent to record that this writ petition is restricted to a category of pre-42 settlers being category (iii) to the said order of the Ministry of Home Affairs, Government of India.

The private respondents were considered under the pre-42 settlers category and have been placed above the position of the petitioner.

The provisional list was published by the Administration inviting the objections on or before 18th July, 2012 and the petitioner raised objection on 20th July, 2012. Though the said application was filed belatedly, the authority considered the said objection and found that the candidature of the private respondent was rightly considered under the category of pre-42 settlers and subsequently published the final list on 28th August, 2012.

From perusal of the provisional list, it appears that the private respondents are placed in serial nos. 3, 5 and 7 whereas the petitioner is placed in 8th position. The final list is the replica of the provisional list.

The bone of the contention of Mr. Tabraiz, learned advocate appearing for the petitioner is that the private respondents should not be considered under the category of pre-42 settlers as admittedly the father of those private respondents is post-42 settler, even if the mother belongs to the category of pre-42 settlers. He placed reliance upon the judgment of the Supreme Court in the case of Parents Association vs. Union of India reported in AIR 2000 SC 845 in support of his contention that, although the quota which has been fixed by an order dated 30th May, 1996 issued by the Ministry of Home Affairs, Government of India but such reservation was made on the basis of the difficulties which the settlers faced because of backwardness, undevelopment, and inhospitable conditions. However, for the proposition that the caste should be determined on the basis of the caste of the father, he placed reliance upon the judgment of the Guwahati High Court reported in Subungcha Mwshahary and Others Vs. Assam Public Service Commission and Others,

The aforesaid contention of Mr. Tabraiz is not tenable, for one simple reason, that the determination of the caste and the privileges given to a person as a pre-42 settlers stands on a different footing.

The Supreme Court in case of Parents Association (supra) held that the reservation of quotas in favour of pre-42 and post-42 settlers cannot be said to be irrational and does not offends Article 14 and 15(4) of the Constitution of India. It is further noticed from the said judgment that the pre-42 settlers and the settlers brought thereafter under the various colonization, rehabilitation scheme stands on a different footing. The migrators who came to the islands of their own volition have not share the same past which the pre-42 faced.

After the judgment of the Apex Court in case of Parents Association (supra), there is no scope of interference with the government''s decision for keeping the reservation of quota for pre-42 settlers and the other settlers.

The main thrust of the argument of Mr. Tabraiz is that the process of the determination, whether the candidates who come within the pre-42 category or not, should be done on the basis of the status of the father. In other words, if the father is a post-42 settler and have married a woman having settled prior to 1942, the status of offspring/children should be considered under the category of the post-42 settlers.

The analogy, that the caste is determined on the basis of the caste of the father, cannot be imported in determining the status of the candidate as pre or post-42 settlers, the caste is determined on the basis of the birth. Guwahati High Court in case of Sabungcha Mwshahary -vs- Assam Public Service Commission has held as such. The said judgment was passed by placing reliance upon the judgment of the Apex Court in case of Mrs. Valsamma Paul Vs. Cochin University and others, and Anjan Kumar Vs. Union of India (UOI) and Others,

In most recent judgment rendered in case of Rameshbhai Dabhai Naika Vs. State of Gujarat and Others, the Supreme Court had an occasion to consider the aforesaid judgments and held that the condition precedent of granting the tribal certificate does not emanate from the caste of the father but should be determined on the basis of a particular case having based upon the disadvantages, disabilities and indignities suffered by the person in the following:

In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of a fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/schedule tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any another member of the community to which his/her mother belonged. Additionally he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.

The another limb of argument advanced by Mr. Tabraiz was that, by a circular dated 14th February, 1984, the Andaman and Nicobar Administration defined the word ''local'' for the purpose of an employment to Group ''C'' and Group ''D'' posts which cannot be a basis of determining the category of pre-42 and post-42 settlers.

It is an admitted position that, by an order dated 30th May, 1996, the Ministry of Home Affairs, Government of India, did not define the pre and post-42 settlers.

None of the parties before me have contended that the said circular dated 14th February, 1984 has lost its force because of the subsequent order dated 30th May, 1996.

A bare perusal of the said notification dated 14th February 1994 envisages that the same was issued not only for the purpose of Group ''C'' and Group ''D" posts but also for the purpose of allotment of seats in the professional courses and in the matter of award of scholarship and other educational facilities.

The one of the criteria enshrined therein is that the inhabitant who has been living in the islands prior to 1942 whose children born in the islands can be termed as local. It is a specific case of the Administration that a child, who''s either of the parents of pre-42 settlers, has been given benefit under such category upon being verified by the competent authority. The practice, which is being prevalent for a considerable period of time, in absence of any express bar, should not be upset unless such practice is unreasonable, irrational and leads to an absurdity.

The certificate appended to the writ petition also expressly provides that the children of the person who have been living in the islands prior to 1942 are brought within the category of pre-42 settlers.

Therefore, I do not find any infirmity in the decision of the authorities in treating the private respondents in the category of pre-42 settlers on the basis of the category of the mother.

Furthermore, the objection raised by the petitioner to the provisional merit list was considered on the basis of the report submitted by the competent authority who issued the category certificate and such objection has been turned down.

Thus, I do not find any infirmity and/or illegality in the decision of the Administration in treating the private respondents under the category of pre-42 settlers.

The writ petition, therefore, fails. However, there shall be no order as to costs.