Andhra HC (Pre-Telangana)
W.S.V. Satyanarayana vs Director Of Tribal Welfare And Others on 6 December, 1996
Equivalent citations: AIR1997AP137, 1997(1)ALT789, AIR 1997 ANDHRA PRADESH 137, (1997) 1 CIVILCOURTC 376, (1997) 3 LJR 294, (1997) 1 ANDH LT 789, (1997) 1 ANDHLD 735
Author: V. Rajagopal Reddy
Bench: V. Rajagopala Reddy
ORDER V. Rajagopal Reddy, J.
1. This writ appeal is brought by the appellant-petitioner, aggrieved by the order passed by the learned single Judge in his W.P. No.11020 of 1992, who dismissed the writ petition and while dismissing the same declared that the petitioner therein was not entitled to be treated as 'Kondakapu', a Scheduled Tribe and that he was also not entitled for the benefits meant for ST. candidates. The learned single Judge also directed that the appellant-petitioner's M.B.A. certificate should also be withdrawn. The appellant-petitioner filed the writ petition questioning the memo dated 9-6-1992 issued by the Principal, University College, Nagarjuna University (R3), as illegal and without jurisdiction.
2. The question of some importance that arises is how to determine the social status of the appellant-petitioner, who is un off-spring born out of the wedlock between a couple, one of whom is a member of Scheduled Tribe; whether-the off-spring takes automatically the caste of his father.
3. The facts have been stated by the learned single "Judge in extenso. However, the following few facts are required to be stated for disposal of this appeal.
4. The appellant-petitioner's father, a person belonging to Balija community, mar-ried a woman of Kondakapu community, which is recognised as Scheduled Tribe, in 1965. The appellant-petitioner started his school education in Kovvuru and graduated from Ongole and secured admission in M.B.A. course in Nugarjuna University. Guntur, in July, 1990, on the basis of his social status certificate as S.T. The 3rd respondent, basing on the intimation dated 13-5-1992 given by the 1 st respondent, issued the impugned memo seeking explanation of the appellant petitioner as to why the admission granted to him in a seat meant for S.T. candidate, should not be cancelled. The appellant-petitioner approached this Court without submitting any explanation. Pending the writ petition, the appellant-petitioner completed his M.B.A. course .e. The learned single Judge had difficulty in treating the appellant-petitioner as Scheduled Tribe, since his father belongs to Balija community and that his social status would automatically devolve on the child irrespective of whether the mother of the said child is a Scheduled Tribe. He was of the view that the social status, of the off-spring born out of the wedlock between two communities, should be that of the father. Learned single Judge held that G.O.Ms. No. 371, Employment and Social Welfare (E2) Department, dated 13-4-1976, under which the Government directed that for the purpose of admission into educational institutions and professional colleges the lower caste of either parent in the inter-caste marriages should be deemed to be the caste of the child, which was the basis for the caste certificate of the appellant-petitioner, could not be relied upon since it was held to be ultra vires of the powers . of the executive, being contrary to the provisions of the Constitution of India, by this Court in W.P. No. 14875 of 1985, by an order dated 19-2-1986.
5. Learned counsel for the appellant-petitioner reiterated his arguments and sought to rely upon G.O.Ms. No. 371, Employment and Social Welfare (E2) Department, dt. 13-4-1976, under which the social status certificate was issued by the 4th respondent to the appellant-petitioner and on the fact that being off-spring of a Scheduled Tribe mother he should automatically be treated as Scheduled Tribe and that the learned single Judge went wrong in importing the concepts of patriarchy prevailed under old Hindu Law, which denied the rights arising out of motherhood and destroying the concept of equality-between men and women.
6. Learned counsel for the 1st respon-'' dent, however, contended that the impugned certificate was vitiated as it was based on wrong assumptions and issued without holding enquiry into the community of the appellant-petitioner and without following the instructions issued by the Government of India with regard to status of off-spring of the couple, one of the spouses is a Tribal.
7. We agree, to some extent, with the contention of the learned counsel for the appellant-petitioner that the view expressed by the learned single Judge, that, the child, automatically, or as a matter, of course without any enquiry takes the social status of the father, under the prevailing social conditions, is not acceptable. Such an assumption is not sanctioned either on principle or practices in the Hindu community as revealed in Dharmasasthras or by authoritative pronouncements of Courts.
8. During Vedic days inter-caste marriages were prohibited, since the caste system was rigid and also for the reason that all the castes were not treated on equal footing. However, the marriages between members of sub-divisions in a lower caste were being permitted. However, it was not known how the caste of off-spring of such marriages were treated. Slowly by series of enactments and also due to social changes and efforts of great social pioneers and due to technological developments the caste system has become less rigid and inter-caste marriages have become common. However, the caste structure, regrettably, is still prevalent. Caste become the criterion,. due to the social and economic backwardness of its community, granting for reservations. In Hinduism caste was based upon the actions or vocations. In fact, the castes were originally created on the basis of actions and functions. Caste is a combination of persons governed by long and uniform usages or customs with regard to food, ceremonies, marriages and occupation and it has its own rules to manage the members of its community. Caste need not, therefore, have any relation to the birth.
Caste system since became hereditary, caste is taken by birth. The caste of a person is generally decided by his birth. But there are instances where, by the option of a person, he could acquire a caste/Tribe, provided the members of the caste/Tribe took him intor fold. A assumed by the learned single Judge it is true that the patriarchal form of society is still prevalent and the caste of a person is known by knowing the caste of his father and his mother's caste/Tribe would be irrelevant. The wife, after marriage, goes and lives with the husband at his place, with his people. In inter-caste marriages she acquires the caste/Tribe of her husband, snapping all her ties with her parents and family and acquires her husband's gotra, as held recently by this Court in Smt. D. Neelima v. The Dean of P. G. Studies, A. P. Agricultural University, . But, with regard to their off-spring the parameters for determining the caste/ Tribe, appears to be quite different and would not always follow that of the father. The limited question in the present case is to determine whether the off-spring of a Scheduled Tribe woman in a wedlock with a man who is not a Tribe, would automatically be treated as Scheduled Tribe. The answer seems to be to ascertain whether the members of the Scheduled Tribe community accepted" the offspring as belonging to their community. It is apposite to advert, at this stage, to some decided cases on similar issues.
9. In Muthusami Mudaliar v. Masila-mani alias Subramania Mudaliar, (1910) ILR 33 Mad 342, the question which' arose was whether a marriage, which according to the strict orthodox Hindu religion was not recognised, was valid. It was held that :
"According to them Vivaha, Homam and Sapthapathi are essential. But his notorious that marriages are performed in many castes without them and it is' now settled that if by caste, usage any other form is considered as constituting a marriage then the adoption of that form under those conditions prescribed by the caste with the intention of thereby .completing the marriage union is sufficient. No other conclusion is possible if due regard is had to conditions in India. They, show that in all questions regarding marriage including restraints upon marriages between persons of different castes, each sect is governed by its' own usage, which often vary from the accepted authorities on Hindu law. For instance it was and is an ordinary process for a class or tribe outside the pale of castes to enter the pale_and also for the lower castes to claim recognition as belonging to a higher class.' If the other communities recognise the claim they are treated as that class or caste.
. This process of adop tion into the Hindu hierarchy through castes is common both in Northern and Southern India. If their claim is refused then they form a new sect."
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"Where, therefore, a caste accept a marriage as valid and treat the parties as members of the caste it would be, it appears to me, an unjustifiable interference for the Courts to declare those marriages null and void."
A similar question was decided in Wilson Read v. C. S. Booth, AIR 1958 Assam 128. The question was whether a person, born out of the wedlock between a father who .was a English man and the mother belonging to Khasi community, a Scheduled Tribe community, belongs to S.T. community. The Court, having found that the person practically lived among the Khasi community people, held that the off-spring belongs to Khasi community, observing :
"The question whether an individual who is seeking election for the reserved seat is or is not a member of the Khasi Tribe will have to be determined by the Courts when they are required to adjudicate upon the question and in the absence of any definition of the word 'Khasi Tribe' in the Constitution or in the law, the test which will determine the membership of that individual will not be only 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 was treated by the community and the practice amongst the Tribe people in the matter of dealing with persons whose mother was a Khasi and father was an ,European.
The whole object of reserving a scat for the Khasi Tribe is to afford the community as a whole a right of representation and to give the community as a whole a protection. The question, therefore, of the membership of a particular individual of that community cannot be considered divorced from the very object of the legislation.
The conduct of the community which has been given a right of special representation, the manner and how the community regarded the particular individual and whether the community as a whole intended to take the individual within its fold are all matters which will be relevant for consideration of the .question as to whether within the meaning of the Constitution, the appellant could or could not be regarded as a member of the Khasi clan."
The Apex Court in V. V, Giri v. D. Suri Dora, , considering the question whether the 1st respondent herein, was a member of Scheduled Tribe to uphold his election, held that :
"The caste-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. There is no evidence on this point at all. Besides the evidence produced by the appellant merely shows some acts by respondent 1 which no doubt were intended to assert a higher status, but unilateral acts of this character cannot be easily taken to prove that the claim for the higher status which the said acts purport to make is established.
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In Hinduism caste had its origin in vocation and was no! dependent upon birth. Birth as the sole criterion of caste is a much later development and caste became rigid and hereditary when vocations became hereditary. Caste was nothing but division of labour. There is a high authority to support the view that in Hinduism caste was dependent upon actions and not on birth. In Bhagwat Gita in the Fourth Discourse it is stated :
"The four castes were created by me in accordance with their aptitude and actions: know me the author of these castes, though 1 am actionless and inexhaustible."
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In the Chandogya Upanishad there is the interesting incident of Satyakama who was raised to the position of a Brahmana because he had spoken the truth. Thus it was his character and not his birth which determined his caste. Amongst the Hindus many have raised themselves to the position of Brahmans by their good qualities and one such instance is of Sage Matanga who was a Chandala. Vishva Mitra was a Kshatriya and became a Brahman. Hinduism might have become static at one stage but its modern history shows that this is not so now and it would not be wrong to say that caste in Hinduism is not dependent upon birth but on actions. The whole theory of Karma is destructive of the claim of caste being dependent upon birth."
The same principle has been adopted by the Apex Court in S. Rajagopal v. C. M. Armugam, , in determining the caste of a person after re-conversion from Christian religion into Hinduism. It has been held that the re-conversion does not entitle him to be automatically treated as belonging to his original caste, before conversion. In C. M. Arumugan v. S. Rajagopal, , the same principle has been reiterated, in these words (at p. 949 of AIR) :
"17. These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anand-achari, (1886) ILR 9 Mad 466' (supra) was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the_caste are prepared to re-admit_ him ._as_a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided _of course the community is willing to take him within the fold."
10. In Guntur Medical College v. Mohan Rao, , the question arose whether a person born of Christian converts, would become a member of the caste to which his parents belongs prior to conversion into Christianity. The Constitution Bench of the Supreme Court held (para 7) :
on conversion to Hinduism, a person bom of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member if the other members of thc_caste accept him as_a member and admit him within the fold."
11. The principle that emerges from the above decisions is that the status or caste of a person would have to be determined upon the recognition received from the members of the community of either of the parents and the acceptance of the caste people. There is no enquiry in the present case whether the appellant-petitioner has got such acceptance from the members of the caste/ Tribe. We are, therefore, of the firm opinion that the view taken by the learned single Judge is opposed to the well settled principle enunciated in the above decisions.
12. In fact, in G.O.Ms. No. 371, Employment and Social Welfare (E2) Department, dated 13-4-1976, on which much reliance was placed by both the sides, it was required to be considered "where either parent belongs to Scheduled Castes. Scheduled Tribes or Backward Classes and if the' child can be declarers belonging to the caste of either parent they will be eligible for the concessions allowed to the persons of that caste. The guidelines for determining the caste of the child of inter-caste married.couples are laid down by the Government of India in their Letter No, 39/387/73-SCT. Ministry of Home Affairs, dt. 4-3- 1975, a copy of which is appended. It is necessary to examine each case with reference to these guidelines, and where a child of inter-caste marriage can be treated as belonging to Scheduled Caste. Scheduled Tribe or Backward Class in_ac-cordance with_ those guidelines, the child is eligible for reservations in services etc.. allowed for that caste. The Mandal Revenue Officer (R4) has completely ignored these requirements in giving the caste certificate to the petitioner-appellant. This G.O. has been issued where statutory concessions like reservations in services and educational institutions should be extended to the children of inter-caste marriage couples. From a personal of the Appendix to the above G.O., it is clear that instructions have been issued to all the State Governments. In Annexure-II of the Appendix, the status of the off-spring, born out of wedlock between couple, one of whom is a member of S.T. community, has been dealt with. Relying upon the ratio in some of the decisions dealt with by us above, it has been staled in para-5 as follows :
"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 Tribe 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 member of the Scheduled Tribe or not."
Without following the instructions contained in the above G.O., which have been given by the Government of India to all the State Governments and which is in accordance with the view taken by us, the caste certificate has been issued by the Mandal Revenue Officer, Ongole, dated 23-1-1990, declaring the appellant-petitioner as Kondakapu. The action of the M.R.O.(R4) is contrary to para-1 of the above G.O., which requires the authority to hold an enquiry as per the guidelines issued in the Appendix. However, learned counsel for the appellant-petitioner contends that under para-2 of the above G.O, the appellant-petitioner could be treated as Scheduled Tribe and the certificate could not be faulted. It is stated by the learned counsel for the respondents that a single Judge of this Court in W.P. No. 14875 of 1985, by an order dated 19-2-1986, has already held this portion of the G.O. as ultra vires of the powers of the Executive, as contrary to the Constitution of India. Hence, the appellant-petitioner, as rightly held by the learned single Judge, is not entitled to get the benefit under it.
13. It is, therefore, incumbent upon the respondents to cause an enquiry to ascertain whether the appellant has been accepted by the Kondakapu community as its member.
14. We, therefore, direct the 2nd respondent in this matter, to conduct an enquiry as to whether the appellant-petitioner has been accepted by the Kondakapu community, aS a member of its Tribe. If it is ultimately found that the appellant-petitioner has been accepted as a member of Kondakapu community, he shall be treated as belonging to Scheduled Tribe. If it is found that he was not accepted by such Scheduled Tribe, the appellant's caste certificate, issued by the 4th respondent, shall stand cancelled. The enquiry shall be completed by the 1st respondent within a period of two months. It is further directed that the caste certificate issued by the 4th respondent, to the appellant-petitioner, shall be kept in abeyance till such an enquiry is completed. The judgment of the learned single Judge is set aside. The writ appeal is accordingly disposed of. In the circumstances, no order as to costs.
15. Order accordingly.