Sreshta Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

A very peculiar issue is involved in this case. The question is what would be the status of the off-springs of a Schedule Tribe woman, married to a

forward caste man. The Revenue/Competent Authority did not grant Schedule Tribe status to the off-springs. The writ petition claiming such status

was dismissed by the learned Single Judge, hence, present appeal has been preferred.

(i) Before adverting to the factual position of this case, it would be appropriate to refer to the judgment passed by the Hon’ble Apex Court in

Rameshbhai Dabhai Naika Vs. State of Gujarat and others, (2012) 3 Supreme Court Cases 40,0 relied upon by the learned Single Judge, while

dismissing the writ petition, wherein it was held by Hon’ble Apex Court as under:-

In view of the analysis of the earlier decisions and discussions made above, the legal position that seems to emerge is that in an inter-caste

marriage or a marriage between the tribal and non-tribal the determination of the caste of the offspring is essentially a question of 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/Scheduled tribe. By virtue of being the son of a forward caste father

he did not have any advantageous start in life any other member of the community to which his/her mother belonged. Additionally, that he was always

treated as a member of the community to which her mother belonged not only by that community but by the people outside the community as well.â€

(emphasis supplied)

2 (ii) Hon’ble Supreme Court in K.P. Manu Vs. Chairman, Scrutiny Committee for verification of community certificate, (2015) 4 Supreme Court

Cases 1, held as under:-

 “51. In the instant case, the appellant got married to a Christian lady and that has been held against him. It has also been opined that he could not

produce any evidence to show that he has been accepted by the community for leading the life of a Hindu. As far as the marriage and leading of

Hindu life are concerned, we are of the convinced opinion that, in the instant case, it really cannot be allowed to make any difference. The community

which is a recognized organization by the State Government, has granted the certificate in categorical terms in favour of the appellant. I t is the

community which has the final say as far as acceptance is concerned, for it accepts the person, on reconversion, and takes him within its fold.

Therefore, we are inclined to hold that the appellant after reconversion had come within the fold of the community and thereby became a member of

the Scheduled Caste. Had the community expelled him the matter would have been different. The acceptance is in continuum. Ergo, the reasonings

ascribed by the Scrutiny Committee which have been concurred with by the High Court are wholly unsustainable.â€​ (emphasis supplied)

2(iii) In another judgment of the Hon’ble Supreme Court in Anjan Kumar Vs. Union of India and others, (2006) 3 Supreme Court Cases 25,7 it

was held as under:-

“6. Undisputedly, the marriage of the appellants’ mother (tribal woman) to one Lakshmi Kant Sahay (Kayastha) was a court marriage

performed outside the village. Ordinarily, the court marriage is performed when either of the parents of bride or bridegroom or the community of the

village objects to such marriage. In such a situation, the bride of the bridegroom suffers the wrath of the community of the village and runs the risk of

being ostracized or excommunicated from the village community. Therefore, there is no question of such marriage being accepted by the village

community. The situation will, however, stand on different footing in a case where a tribal man marries a non-tribal woman (Forward Class) then the

offshoots of such wedlock would obviously attain the tribal status. However, the woman (if she belongs to a Forward Class) cannot automatically

attain the status of tribal unless she has been accepted by the community as one of them, observed all rituals, customs and traditions which have been

practised by the tribals from time immemorial and accepted by the community of the village as a member of tribal society for the purpose of social

relations with the village community. Such acceptance must be by the village community by a resolution and such resolution must be entered in the

Village Register kept for the purpose. Often than not, such acceptance is preceded by feast/rituals performed by the parties where the elders of the

village community participated. However, acceptance of the marriage by the community itself would not entitle the woman (Forward Class) to claim

the appointment to the post reserved for the reserved category. It would be incongruous to suggest that the tribal woman, who suffered disabilities,

would be able to compete with the woman (Forward Class) who does not suffer disabilities wherefrom she belongs but by reason of marriage to tribal

husband and such marriage is accepted by the community would entitle her for appointment to the post reserved for the Scheduled Castes and

Scheduled Tribes. It would be a negation of constitutional goal.(emphasis supplied)

The Scheduled Caste and Scheduled tribe certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered

disabilities-socially, economically and educationally cumulatively. The authority concerned, before whom such claim is made, is duty-bound to satisfy

itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. Any authority concerned issuing

such certificates in a routine manner would be committing a dereliction of constitutional duty.â€​

We have gone through the complete record of the writ petition and heard learned counsels for the parties. The factual position in the case remains

undisputed. Such undisputed and relevant facts can be summed up as hereunder:-

3(i) The father of the petitioner, namely Shri Jodh Singh, son of late Shri Jant r/o village & P.O. Ulansa, Tehsil Bharmour, District Chamba, H.P.,

belonged to Gaddi Hali Community Tribe, which has been enumerated as such in the Constitutional Presidential Order 1950- Himachal Chapter. Thus,

Shri Jodh Singh, father of the petitioner was recognized as Scheduled Tribe. He was owner of 05-12-08 bighas of land situated in Mauza Ulansa

Parganah Bharmour, Sub-Tehsil Holi, District Chamba.

3(ii) Petitioner is the only surviving daughter of late Shri Jodh Singh. She resided in village & P.O. Ulansa, Tehsil Bharmour, Sub Tehsil Holi, District

Chamba, H.P. Petitioner was also recognized as Gaddi Hali and was issued Scheduled Tribe certificates by the Competent Authority. Petitioner

served as a JBT teacher.

3(iii) Smt Sreshta Devi/petitioner, married one Shri Madan Kumar, son of Shri Prem Lal, in October, 1985. Shri Madan Kumar, was resident of village

Mangla, Tehsil & District Chamba. He belonged to Rajput caste (forward caste). The marriage was solemnized at village Ulansa, in accordance with

traditions, customs, rituals, followed by local Gaddi Hali community. Photographs of the marriage of the couple have been annexed with the petition.

Local people belonging to Gaddi Hali Community, participated in the marriage ceremonies with all fervour, gaiety and blessed the couple.

3(iv) Marriage of Shri Madan Kumar with the petitioner who belonged to low caste and Scheduled Tribe-Gaddi Hali community, was not accepted, by

former’s family members. He was completely ostracized, by his upper class community. He was also divested from his ancestral moveable and

immoveable property at his native village Mangla Tehsil and District Chamba, H.P. So much so that none of his ancestral land, in village Mangla, is in

his possession. He has not been allowed to enter in his native village, either in the house of his father or in the houses of his relatives. In fact his name

has been stuck off from the record of rights by his father.

3(v) After marriage, petitioner alongwith her husband, continued to live in her father’s home in Village & P.O. Ulansa, Tehsil Bharmour, Sub

Tehsil Holi, District Chamba, H.P. Petitioner even though, was the only surviving daughter of her father, yet, in view of the bar on females (in the

area) in respect of inheriting their father’s property, couldn’t inherit her father’s property as such. She had no option but to purchase her

own father’s land, in order to retain the family land. As such, the land owned by her father, eventually became hers, though not by inheritance, but

by way of purchase. The couple continued to possess this land and kept on cultivating it. This land is now recorded in the ownership and possession of

the petitioner.

3(vi) The couple was blessed with three children namely i) Monika (daughter born in 1986), ii) Sushila (daughter born in 1988) iii) Mr. Vijender Kumar

(son born in 1991). All the three children resided in village & P.O. Ulansa, Tehsil Bharmour, Sub Tehsil Holi, District Chamba. All of them took their

primary education till 5th standard, in village Ulansa, tribal area. Petitioner and her children were throughout treated, recognized and accepted as

belonging to Gadi Hali by the local community. They are ration card holders of village Ulansa. Their voter cards are also of village Ulansa. Their

names are entered in Parivar Register of village Ulansa.

3(vii) Village Ulansa is situated at a height of about 8000-8500 feet above sea level. From this height people migrate to low altitude areas during

winter. At the relevant time, there were no schools for secondary education in village Ulansa. Petitioner being a JBT teacher, in order to provide,

further education to her children post their primary education in Ulasna, got herself transferred to the nearest town i.e., in Government Primary

School, Chamba. The couple purchased 3 biswas land in Mohalla Obdi, Tehsil and District Chamba. They never acquired the status of permanent

residents of village Obdi. Rather, they remained permanent residents of village Ulansa, had their house & land in village Ulansa, where they lived for

education of children. The children got secondary education in Chamba. It has also come on record that one of the daughter of the petitioner namely

Sushila also did her M.C.A. from Punjab University. Smt. Monika has married a person belonging to Scheduled Caste. It has been asserted by

petitioner that her children could not get benefit of reservations & concessions available to Scheduled Tribes under the Constitution of India and faced

hardship in respect of admissions & recruitments.

Application for issuance of Scheduled Tribe certificate and the inquiry thereupon:-

4(i) The children of the petitioner applied for issuance of Scheduled Tribes certificate, by moving an application dated 01.09.2011, before the learned

Collector, District Chamba.

4(ii) On this application, inquiry was entrusted to the Naib Tehsildar, Sub Tehsil Holi, District Chamba, (Revenue Officers). During inquiry following

documents were collected by the Inquiry Officers:-

a) Certificate issued on 25.01.2012, by Gram Panchayat, Mangla, to the effect that Smt. Sreshta Devi, and her off-springs were not recorded either in

the Pariwar Register or in the Ration Card Register, of village Mangla.

b) Certificate dated 25.10.2013, issued by Gram Panchayat Mangla, certifying that Shri Madan Kumar, was not permanent resident of Village

Mangla. It was also certified therein that on account of his marrying a tribal lady in October, 1985, he had been ostracized by his family members and

therefore, neither Shri Madan Kumar nor his wife and children reside in Village Mangla.

c) Certificate dated 26.3.2012, issued by Municipal Councillor, Sultanpur Chamba to the effect that the couple resided in village Obdi Post Office

Sultanpur, District Chamba, for the higher education of their children. It is also certified therein that the petitioner and her children are permanent

residents of Village Ulansa, Tehsil Bharmour, District Chamba. By virtue of petitioner being in Government job and on account of her posting in

Chamba, she resided in Mohalla Obdi, Post Office Sultanpur, Chamba, H.P., but she is not permanent resident of Mohalla Obdi. Document is also to

the effect that only Shri Madan Kumar, was recorded as ration card holder of Village Obdi, Post Office Sultanpur, Chamba, H.P., and none else.

d) Jamabandis to the effect that Smt. Sreshta Devi, is owner in possession of 05-12-03 bighas of land in Mauza Ulansa, Pargana Bharmour, Sub

Tehsil Holi, District Chamba are on record.

e) Gram Panchayat Ulansa, vide resolution dated 30.8.2011 had certified that petitioner is permanent resident of village Ulansa, Tehsil Bharmaour and

she & her children are accepted as Scheduled Tribe by the local community.

f) Significantly, not just Gram Panchayat, Ulansa, but the larger body i.e. Gram Sabha, Ulansa, had also passed resolution on 01.04.2012, to the effect

that :-

‘Sreshta Devi w/o Madan Lal, is permanent resident of Gram Panchayat, Ulansa, whose family is entered at Serial No. 84 of the Pariwar Register

with following particulars of the family:-

I) Sreshta Devi, w/o Madan Lal, caste Gaddi Hali.

2) Monika, d/o Madan Lal, caste Gaddi Hali.

3) Sushila, d/o Madan Lal, caste Gaddi Hali.

4) Vijender s/o Madan Lal, caste Gaddi Hali.

It has been resolved by Gram Sabha that the above family belongs to Gaddi Hali. Gaddi Hali Community, accepts this family as such. Families of

Vishu Ram and Kalu Ram, also accept this family as such. The resolution is unanimously passed by Gram Sabha.’

Thus, the Local Gaddi Hali, Tribal Community had accepted the off-springs of Smt. Sreshta Devi, as belonging to their own community.

g) Petitioner had been issued Scheduled Tribe certificate. Her pedigree table was made available to the Inquiry Officer. Documents to the effect that

the names of petitioner and her children were recorded in ‘Pariwar Register’ of village Ulansa, had ration cards only in village Ulansa, had

voting rights only in village Ulansa, were made available to the Inquiry Officer.

Inquiry report and order passed thereupon:-

5(a). The statements of the petitioner, her husband were recorded by the concerned authorities. On the basis of inquiry, so conducted and the

documents placed before him, the Naib Tehsildar submitted his report to the Sub Divisional Officer (Civil), Tehsil Bharmour, District Chamba on

29.10.2014. Relevant portion of this report is reproduced hereinafter:-

“mijksDr fol; ds lUnHkZ esa vkids dk;kZy; ds i=k la[;k 2072 fnukad 18 tqykbZ 2014 dh vuqikyuk esa fuosnu gS] fd eksfudk i=khq enu dqekj] lqlhyk

iq=kh enu dqekj o fotsznz dqekj iq++=k enu dqekj fuoklh xkao mykalk ijxuk o rglhy HkjekSj ftyk pEck dk vuqlwfpr tutkfr dk ykHk iznku djus gsrw

xzkWae lHkk o okMZ lHkk izLrko okjs iVokjh iVokj gYdk xjksyk dks fu;qDr fd;k x;k FkkA Jhefr lfjlBk nsoh iq=kh tks/k flag fulklh xkWo mlkayk

mi&rglhy gksyh ftyk pEck fgekpy iznsl dh LfkkbZ fulklh gS mDr lk;yk dh tkfr xnnh gkyh ls lEcU/k j[krh gS blds rhuks cPps eksfudk lqlhy o fotsUnz

dqekj mDr lk;yk ds lkFk lq: ls gh fjgkbZl djrs gS ukSdjh ds flyflys esa Jhefr lfjlVk nsoh pEck esa jgrh gS o mUgksus viuk edku xkWo vksoMh pEck

esa cuk;k gqvk gSA chp&2 esa ;g lc ;gkW ij vkrs tkrs jgrs gS eqgky myklk esa budk viuk edku gSA ;gkW dk leqnk; o xzke iapk;r mykalk Hkh bUgs

Lohdkj djrs gS vkSj bl leqnk; ds lkFk budk esy feyku Hkh gSA vr% izfrfyfi izLrko xzkWe iapk;r mykalk o okMZ lHkk bl i=k ds lkFk lWyEu djds

vkxkeh mfpr dk;Zokgh gsrw egksn; dh lsok esa izsflr gSAâ€​

5(b) On the basis of above Inquiry Report, the Sub Divisional Magistrate, Bharmour, District Chamba, submitted his report to Deputy Commissioner,

vide letter dated 14.11.2014. Relevant part of the report is reproduced hereinafter:-

“pwafd lfj""Vk nsoh ds rhuks cPpks us ikapoha rd dh f'k{kk mykalk esa gh xzg.k dh gS] mudk uke Hkh vHkh rd xzke iapk;r mykalk ds fjdkMZ esa

gh ntZ gS rFkk llqjky okyksa us Hkh mldks rFkk cPpks dks Lohdkj ugha fd;k gS] tcfd ek;ds okyksa o ogka ds iwjs lekt ¼xn~nh leqnk;½ }kjk

bUgsa Lohdkj fd;k x;k gS ¼xzke lHkk izLrko lrUu gS½A blds lkFk gh lfj""Vk nsoh ds uke mykalk esa eyfd;rh Hkwfe Hkh ntZ jktLo fjdkMZ gSA

llqjky okyksa }kjk Lohdkj u djus o vuqlwfpr tutkfr dk ykHk u feyus ds dkj.ko'k mUgsa lkekftd] vkfFkZd o 'kS{kf.kd rkSj ij ijs'kkfu;ksa dk lkeuk djuk

iM+ jgk gSA vkils vuqjks/k gS fd ekxZn'kZu djus o funsZ'k iznku djus dh â€"ik djsa fd D;k vFkksgLrk{kjh ,sls ekeys ftuesa vuqlwfpr tutkfr@vuqlwfpr

tkfr dk ykHk iznku fd;k tkuk gS] ;kfu ftUgsa vuqlwfpr tutkfr@vuqlwfpr tkfr dk ntkZ iznku fd;k tkuk gS] ,sls ekeyksa esa mie.Myn.Mkf/kdkjh

(emphasis supplied)

vius dk;Z {ks= esa Lora= :i ls vafre fu.k;Z ysus@vkns'k iznku djus esa l{ke izkf/kdj.k gSa fd ugha] rkfd fo""k; ij vkxkeh vko';d dk;Zokgh vey esa ykbZ

tk ldsA iwjk izdj.k ewy :i esa vkids dk;kZy; dks mfpr dk;Zokgh ,oa vkxkeh vkns'kkFkZ izsf""kr gSA“

Above letter clearly indicates the finding recorded by the Sub-Division Officer (Civil) to the effect that the children of the petitioner had suffered

socially, economically, educationally. He has also recorded the fact that all the three children of Smt. Sreshta Devi studied in village Ulansa till their

primary classes, their names are recorded in Gram Panchayat, Ulansa, and that they have not been accepted by their paternal family. It has been

noticed by the Collector that their maternal family and the entire tribal society of Gadi Hali has completely accepted them and have passed resolutions

to this effect. However, the Collector expressed his doubts regarding his powers to issue Scheduled Tribes certificates in such like cases and perhaps

for that reason, he did not take the proceedings to the logical conclusion and instead sought guidance from higher authority in this regard.

5(c). The file, thereafter remained in State Revenue Department/Personnel Department. Two relevant notings in the file are apt for reproduction:-

-52“Ns.41-51 Examined. The A.D. has sought clarification in the 03.10.2008 by the State Government which is relating to status of the offsprings

of the couple where one of the spouses is a member of a Scheduled Tribe.

It is clarified that the instructions issued by the Government of India on 03.10.2008 were circulated by State Government vide Department of

Personnel’s letter No. PER(AP)-C-F(10)-4/2005, dated 18.11.2008 to all Deputy Commissioners in Himachal Pradesh for compliance. The A.D.,

therefore, may decide the instant case in accordance with the instructions dated 18.11.2008 and in case further clarification is required, matter may be

referred to the Tribal Development Department which has constituted a Scrutiny Committee for issuance and verification of Scheduled tribe

Certificates vide their notification No. TBD (F)-4-5/ 2002-II dated 13 th January, 2009.â€​

Subsequently, the Tribal Department at noting No. 58-59, refused to go into the question on the ground that that the matter pertains to grant of

Scheduled Tribes certificate to the children, born to a couple, having solemnized an inter caste marriage and further advised the Personnel Department

to take action as per Note No. 52.

5(d). Tribal Development Department, having refused to deal with the question of issuance of such Scheduled Tribes certificates, the matter therefore,

again went to the Personnel Department. The Personnel Department, vide letter dated 05.07.2014, directed the Sub-Divisional Magistrate, Bharmaour,

to decide the case in accordance with the instructions issued by Government of India on 03.10.2008, circulated by the State Government vide

Department of Personnel letter dated 18.11.2008.

5(e) Pursuant to such direction, the Sub Divisional Officer (Civil) Bharmour, got the inquiries conducted again and passed an order on 22.08.2015,

rejecting the prayer for grant of Scheduled Tribes certificates in favour of children of the petitioner. A review of this order was sought by the

petitioner & her children, vide application dated 13.11.2015. This was also turned down on 04.02.2016. Petitioner preferred CWP No. 294 of 2016,

which also came to be dismissed vide impugned judgment dated 06.12.2016. Hence, present appeal.

Order refusing the Scheduled Tribe certificate:-

6(a). In our considered view, learned Collector, in rejecting the prayer for grant of Scheduled Tribes certificate has traveled beyond the power and

jurisdiction vested in him. What has primarily weighed with him and also with the learned Single Judge is the fact that children had their education post

5th class outside village Ulansa, therefore, they cannot be said to have suffered socially, economically and educationally. The collector has even gone

beyond the domain of the instructions, issued in this regard by the Government, from time to time. The instructions dated 03.10.2008, circulated vide

letter dated 18.11.2008, relied upon by the collector, are to the following effect:-

“I am directed to say that a set of legal views on the caste status of such offsprings where one spouse is a not scheduled tribe was already brought

out, vide the Ministry of Home Affairs letter No. 39/37/73 SCTI, dated 4 th March, 1975 ad 1 st May, 1977 (Copy enclosed for ready reference) .

The matter has, however been further examined in view of a recent judgment of Supreme Court involving the offspring of a couple where the mother

belonged to a Scheduled Tribe and the father was Non-Scheduled Tribe (belonging to forward community) in the case of titled Anjan Kumar versus

Union of India reported in (2006) 3 SCC 25 wherein the Supreme Court has, been discussing earlier decisions of the court on this issue said that in

view of the catena of decisions of the Supreme Court, the questions raised are not more res-integra. The court has further stated that in condition

precedent for granting tribe certificate being that one must suffer disabilities, wherefrom one belong. The offshoots of the wedlock of a tribal woman

married to a non-tribal husband. Forward class Kayashta in the present case claim Scheduled Tribe Status. The reason being such offshoot was

brought in the atmosphere of Forward Class and he is not subjected to any disability.(emphasis supplied).

Furthermore, the Supreme Court has stated that the Scheduled Caste and Scheduled Tribe certificate is not a bounty to be disturbed. To, sustain the

claim one must show that he/she suffered disabilities-socially, economically and educationally cumulatively. The authority concerned, before whom

such claim is made,is duly bound satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is

issued, (para-15)

It is significant to note that Supreme Court in the said case has also remarked that woman (if she belongs to a Forward Class) cannot claim the status

of tribal unless she has been accepted by the community as one of them….. (Para-6) and that by no stretch of imagination, a casual visit to the

relative in other village would provide the status of a permanent resident of the village or acceptance by the village community as a member of the

tribal community. (para-7)

In view of the above, the caste certificate issuing authority may ensure that each individual case is examined in the light of existing fact and

circumstance of such cases, keeping in mind the instructions of MHA cited above and the Supreme Court’s observation in the case referred

above. A copy of the Supreme Court decision in the said case of Sh. Anajan Kumar versus Union of India and others is enclosed for ready reference.

It is requested that these instructions may be circulated among all the authorities empowered to issues Scheduled Tribe Certificates.â€​

6(b) Instructions dated 1975 & 1977 referred in 2008 instructions, have not been appreciated by Collector, in the letter and spirit. These being relevant,

are reproduced hereinafter:-

“Annexure 20.49

Copy of H.P. Govt. Deptt., of Personnel letter No. PER. (AP-II)- f(4)-7/75, dated 6.7.1977 addressed to all the Secretaries/Joint Secretaries/Deputy

Secretaries/Under Secretaries to the Government of Himachal Pradesh and all Heads of Deptts., and copy endorsed to all Deputy Commissioners

etc.etc.

Subject:-Caste status of the offsprings of inter-caste married couples.

I am directed to forward herewith a copy of the Government of India, Ministry of Home Affairs letter No. 39/-37/73- SCT. I dated the 21st May,

1977 alongwith its enclosures for information and guidance.

…

Enclosure to Annexure 20.49 Copy of Govt. of India, Ministry of Home Affairs letter No. 39/37/73-SCT. I dated 21st May, 1977 addressed to all the

Chief Secretaries of all State Governments & Union Territory Administrations and copy endorsed to others.

...

Subject:- Caste status of the offsprings of inter-caste married couples.

I am directed to say that enquiries about the caste status of the offsprings of the inter caste married couples, have been sought from this Ministry by

various State Governments/Union Territory Administrations, from time to time. Accordingly, this question has been receiving the attention of this

Ministry for quite some time. A set of legal views on the caste status of such offsprings was already brought out vide this Ministry’s letter of even

number dated the 4th March 1975. The matter has, however, been further examined and the comprehensive legal position about the status of the

offsprings born to couples where one or both of the spouses is/are member(s) of Scheduled Castes and/or Scheduled Tribes, is given in the enclosed

Annexure (A to D).

It is requested that these instructions may be circulated among all the authorities empowered to issue Scheduled Caste and Scheduled Tribes

certificates.

Hindi version will follow.

Annexure “Aâ€​

LEGAL VIEWS ON THE STATUS OF THE OFFSPRINGS OF A COUPLE WHERE ONE OF THE SPOUSES IS A MEMBER OF A

SCHEDULED CASTE.

-----------------------------------------------

Annexure “Bâ€​

LEGAL VIEWS ON THE STATUS OF THE OFFSPRINGS OF A COUPLE WHERE ONE OF THE SPOUSES IS A MEMBER OF A

SCHEDULED TRIBE.

The question has arisen whether the offspring born out of wedlock between a couple one of whom is a member of Scheduled Tribe and other is not,

should be treated as a Scheduled Tribe or not.

It may be stated at the outset the unlike members of Scheduled Castes the members of Scheduled Tribes continue as such even after their

conversion to other religion. This is because while Constitution (Scheduled Castes) Order, 1950 provides in Clause 3 that only a member of Hindu or

Sikh religion shall be deemed to be a member of Scheduled Castes, the Constitution (Scheduled Tribes) Order, 1950 does not provide any such

condition. This view has been upheld by the Supreme Court in the case reported in AIR 1964 S.C. at p.201.

It may be stated that unlike members of Scheduled Castes members of Scheduled Tribe remain in homogeneous groups and quite distinct from any

other group of Scheduled Tribes. Each tribe lives in a compact group under the care and supervision of the elders of the Society whose word is

obeyed in all social matters. A member committing breach of any prescribed conduct is liable to be excommunicated. The social custom has a greater

binding force in their day to day life.

In the case of marriage between a tribal with a non-tribal the main factor for consideration is whether the couple were accepted by the triable

society to which the tribal spouse belongs. If he or she as the case may be accepted by the society then their children shall be deemed to be

Scheduled Tribes. But this situation can normally happen when the husband is a member of the Scheduled Tribes. However, a circumstance may be

there when a Scheduled Tribe woman may have children from marriage with a non- Scheduled Tribe man. In that event the children may be treated

as Scheduled Tribes only if the members of the Scheduled Tribe community accept them and treat them as members of their own community. This

view has been held by the Assam High Court in Wilsom Read V.C.S. Booth, reported in AIR 1958 at p.128 where it has been held.

“The test which will determine the membership of the individual will not be the purity of blood, but his own conduct in following the customs and

the way of life of the tribe, the way in which he has been treated by the community and the practice amongst the tribal people in the matter of dealing

with persons whose mother was a khasi and father was a Europeanâ€​.

Similarly, in the case of Muthuswamy Mudaliar v.s Masilaman Mudaliar, reported in ILR 33, Madras 342, the court held:

“It is not uncommon process for a class of tribe outside the pale of caste to another pale and if other communities recognized their claim, they are

treated as of that class of caste.â€​

Similary, in V.V. Giri V.D. Dora, reported in AIR 1959 S.C. 1318 (1327) the Court held:

“The case-status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the

members of the caste into which he seeks an entry.

5.As mentioned above, it is the recognition and acceptance by the society of the children born out of a marriage between a member of Scheduled

Tribes with an outsider, which is the main determining factor irrespective of whether the Tribe is matriarchal or patriarchal. The final result will

always depend on whether the child was accepted as a member of the Scheduled Tribes or not.

The general position of law has been stated above. However, each individual case will have to be examined in the light of existing facts and

circumstances in such cases.

6(c). Thus, the above instructions, which are still in force amply make it clear that main factor for grant of Scheduled Tribes certificate to the off-

springs, of a couple, where one of the spouses is member of the Scheduled Tribe, is the acceptance of such offsprings by the tribal society, as

belonging to their community. In case the children are accepted by the society then they shall be deemed to be Scheduled Tribes. Para-5 categorically

says that final result will always depend on whether the child was accepted as member of the Scheduled Tribes or not. The other factors being

whether the children had advantageous start in life or suffered socially, economically and educationally.

6(d) Looking into the order passed by Sub-Divisional Officer (Civil) Bharmour, dated 22.8.2015, one cannot help, but notice that the Scheduled Tribe

certificate to the off-springs of the petitioner has been denied, on the basis of mere conjectures, assumptions and presumptions. The Collector has not

accorded due credence to the undisputed facts that petitioner and her children do not reside at native village of Sh. Madan Kumar (husband of

petitioner). They are permanent residents of village Ulansa, have their names recorded in Pariwar Register of village Ulansa, have voter cards in

village Ulansa, ration cards in village Ulansa. Petitioner and her children do not have any such certificate with respect to village Obdi, Post Office

Sultanpur, where only the name of their father Sh. Madan Kumar, is entered. Learned Collector has not appropriately considered the fact that Gram

Sabha Ulansa, had passed resolutions, to the effect that the local community has always accepted & regarded their children as belonging to the Gaddi

Hali community. The community of their father did not accept them as their own.

6(e) Learned Collector has not at all effectively dealt with the instructions, while rejecting the claim of the children, for the issuance of Scheduled

Tribes certificate. He has not disputed the factual position or the certificates, which were collected, during the inquiry, conducted by the Revenue

Officer. His view in the impugned order is contrary to his own view as reflected in his communication dated 14.11.2014. He has refused to issue

Scheduled Tribe certificate to the children of petitioner, primarily on the ground that they had resided at Mohalla Obdi, Chamba town, Tehsil and

District Chamba and took higher education there and one of the daughters of the petitioner did M.C.A. from Punjab University, therefore, they cannot

be said to be permanent resident of village Ulansa and therefore cannot be said to have suffered in any manner. There reasons have also weighed

with the learned Single Judge, in dismissing the CWP No. 294 of 2016, decided on 06.12.2016.

In our considered opinion, in view of law laid down by the Hon’ble Apex Court, coupled with the factual position of the instant case, which has

not been disputed, considering that Gram Sabha Ulansa, passed resolutions, wherein the petitioner and her children were acknowledged and accepted

as belonging to Gadi Hali Tribal Community, in view of the fact that the off-springs were certified as permanent residents of village Ulasna, in view of

fact that children were raised as Gaddi Hali and were not accepted by their father’s community, the impugned order cannot be allowed to sustain.

If a tribal person for some reason, be it on account of work or on account of education, etc. leaves his permanent residence, for some other place, it

cannot be said that he will loose his status of being permanent resident of his original village. It is profitable to reproduce the instructions issued by the

Government of Himachal Pradesh, Department of Personnel hereinafter as under:-

“Enclosure to Annexure 20.47, Copy of Govt. of India, Ministry of Home Affairs letter No. B.C. 12025/2/76 -SCT I dated 22.3.1977. Subject:-

Issue of Scheduled Caste and Scheduled Tribe Certificates-Clarification regarding.

I am directed to say that many instances have come to the notice of this Ministry wherein certificates of belonging to a particular Scheduled

Caste/Scheduled Tribe have not been issued strictly in accordance with the principles governing the issue of such certificates. This is presumably due

to inadquate appreciation of the legal position regarding the concept of the term “residence’ on the part of the authorities empowered to issue

such certificates.

As required under articles 341 and 342 of the Constitution, the President has, with respect to every State and Union Territory and where it is State

after consultation with the Governor of the concerned State, issued orders notifying various castes and tribes as Scheduled Castes and Scheduled

Tribes in relation to that State or Union territory from time to time. The inter-State area restrictions have been deliberately imposed so that the people

belonging to the specific Community residing in a specific area, which has been assessed to qualify for the Scheduled Caste or Scheduled Tribe status,

only benefit from the facilities provided for them. Since the people belonging to the same caste but living in different States/Union territories may not

necessarily suffer from the same disabilities, it is possible that two person belonging to the same caste but residing in different States/Union territories

may not both be treated to belong to Scheduled Castes/Tribes or vice-versa. Thus, the residence of particular person in a particular locality assumes a

special significance. This residence has not to be understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent

residence of a person on the date of the notification of the Presidential Order Scheduling his caste/tribe in relation to that locality. Thus, a person who

is temporarily away from his permanent place of abode at the time of the notification of the Presidential order applicable in his case, say for example,

to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribes, as the case may be, if his caste/tribe has

been specified in that order in relation to his State/U.T. But he cannot be treated as such in relation to the place of his temporary residence

notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order.

Competence to issue certificate and procedure.

8(a) A very relevant aspect also needs to be addressed to, in respect of competence to issue Scheduled Tribe certificate & the procedure required to

be followed, in this regard. Chapter-28, of H.P. Land Records Manual, which deals in this regard:-

“28.1. The Sub-Divisional Officer (C) and Tehsildar Mohal shall be the competent authorities to issue SC/ST, Backward class and Bonafide

Himachali certificates within their respective jurisdictions.

28.4. The applicant shall submit the application in Form-A. The Revenue Officer who receives an application for issuing SC/ST certificate shall enter

the application in the register to be maintained by him in Form-R-I. He shall forward the application to the patwari Mohal or Consolidation or

Settlement if the estate is under consolidation/settlement operations, for inquiry and report.

28.5. The patwari shall report on the application form regarding his caste/tribe from the revenue records like Shajra Nasab, Mutation register,

jamabandi etc. If the applicant is a tenure holder in the estate. He shall also append a copy of the relevant revenue record in support of the caste/tribe

with the application. If the applicant does not own or possess any land in the estate, he shall make an inquiry into the matter from the reliable and

respectable residents of the estate in which the applicant resides regarding his caste/tribe as the case may be. He will submit his inquiry report

alongwith application to the competent Revenue Officer for further necessary action within a week.

28.6. The Competent Revenue Officer to issue certificate shall satisfy himself about the correctness of the inquiry and report of the patwari. He may

make further inquiry as he deems necessary in the matter before issuing the certificate.

-----------------------

After satisfying himself he will issue the certificate to the applicant in Form-B in pursuance of the Act referred to above. He shall obtain the signature

of the applicant after issuing the certificate in relevant column of the Register.â€​ (emphasis supplied)

8(b) In respect of procedure to be followed in such inquiry, detailed guidelines have been issued by Hon’ble Apex Court in case Kumari Madhuri

Patil and another Vs. Addl. Commissioner, Tribal Development and others, (1994) 6 Supreme Court Cases 241, held as under:-

The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving

the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the

Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of

social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the

inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on

that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore,

necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to

streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy

Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-

gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which

he originally hails from and other particulars as may be prescribed by the Directorate concerned.

Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission

into educational institution or an appointment to a post.

All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank

of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III)

in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the

case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of

tribes or tribal communities.

Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of

Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the

candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer

should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should

also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or

such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars

as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals,

customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be ""not genuine"" or 'doubtful' or

spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer

to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is

studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt

of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an

opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the

committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all

evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any

person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or

through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis -a-vis the objections raised by the candidate

or opponent and pass an appropriate order with brief reasons in support thereof.

In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the

particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be

followed.

Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all

evidence in his or their support of the claim for the social status certificates.

The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If

after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and

confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the

parent/guardian and the applicant.

In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to

an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis

of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non- official

and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

No suit or other proceedings before any other authority should lie.

The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ

petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but

subject to special leave under Article 136.

In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making

false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude,

disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation

simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with

acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for

making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the

candidate from further study or continue in office in a post.

Thus, SC/ST certificates are to be issued by Sub Divisional Magistrate, on the basis of reports submitted by the Revenue Officer. It is thereafter, for

the Scrutiny Committee, to examine the veracity, legality and validity of such certificates.

This procedure has admittedly not been followed in the instant case. Certificate has been denied by learned Collector on the basis of hypothesis,

assumptions, presumptions & conjectures. Resultantly, matter was never examined by the Scrutiny Committee.

In view of the aforesaid discussions, the present appeal is allowed. The orders dated 22.8.2015 and 04.02.2016, passed by the Sub-Divisional

Officer (Civil) Bharmour, District Chamba, H.P., are quashed & set aside. The judgment of learned Single Judge, dated 06.12.2016, passed in CWP

No. 294 of 2016, is also set aside. Matter is remitted back to the Sub Divisional Officer (Civil), Tehsil Bharmour, District Chamba, with a direction to

decide the matter of issuance of Scheduled Tribe certificates, to the children of petitioner afresh, keeping in view the observations made in the

judgment within 8 weeks, from today. Appeal stands disposed of, so also, pending application(s), if any.