Rajasthan High Court - Jaipur
Arun Kumar Tyagi vs Union Of India (Uoi) And Ors. on 11 June, 2002
Equivalent citations: RLW2003(1)RAJ695, 2002(4)WLC158
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Rathore, J.
1. This petition is directed against the order dated 11.12.2001 by which the respondent Board has awarded Retail Out Let dealership of HPCL at Jaipur in favour of the respondent No. 4 Smt. Anju Kataria W/o Shri Manoj Kataria.
2. The petitioner is a member of Scheduled Caste community and has passed B.E. (Mechanical) from M.B.M. Engineering College, Jodhpur in the year 1999.
3. An advertisement was issued by HPCL through its Regional Office and same was published in Dainik Bhaskar dated 25.8.2000 through which the applications were invited from Scheduled Castes candidates for Retail Out Let dealership at Jaipur.
4. The petitioner being a member of Scheduled Caste and un- employed Engineer applied for the Retail Out Let dealership at Jaipur in prescribed form and the petitioner appeared before the Dealer Selection Board Jaipur-1 on 23.10.2001.
5. A panel of 3 candidates was prepared by the Board and was affixed on the notice Board on 24.10.2001 and the petitioner's name found place at SI. No. 2 and the name of respondent No. 4 has been placed at SI. No. 1.
6. Petitioner came to know that Smt. Anju Kataria (respondent No. 4) is not a member of Scheduled Caste community, he submitted a representation to the respondent Board that Smt. Anju Kataria has married to a scheduled caste person and as such she is not eligible for allotment of Retail Out Let dealership specifically earmarked for Scheduled Caste candidates. In the representation the petitioner also pointed out that as per the Circular dated 2.5.75/22.3.77 issued by the Ministry of Home Affairs that no person who was not a Scheduled Caste or Scheduled Tribe by birth will be deemed to be a member of Scheduled Caste or Scheduled Tribe merely because he or she married a person belonging to Scheduled Caste or a Scheduled Tribe. The relevant portion of Circular is herewith reproduced as under :
"3. Claims through marriages. The guiding principle is that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she married a person belonging to a Scheduled Caste or Scheduled Tribe.
Similarly a person who is a member of a Scheduled caste or a Scheduled Tribe would continue to be a member of that Scheduled Caste or Scheduled Tribe as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe."
7. Since no order whatsoever has been passed on the representation dated 2.11.2001 submitted by the petitioner, petitioner sent a reminder on 9.11.2001. Vide letter dated 12.11.2001 the petitioner was called upon by the Chairman of the Selection Board to file an affidavit. The petitioner filed an affidavit before the respondent Board on 22.11.2001. It is specifically stated by the petitioner in the affidavit that respondent No.4 is Meena by birth and belongs to Scheduled Tribe. She married Shri Manoj Kataria who belongs to Scheduled Caste (Balai) community. The certificate submitted by Smt. Anju Kataria that she is member of Scheduled Caste cannot be used for conferring benefits of reservation specifically-earmarked for Scheduled Caste candidate. Petitioner also submitted a photo stat copy of judgment of Hon'ble Supreme Court Valsamma Paul v. Cochin University and Ors. (1).
8. The Board provided a copy of the Caste certificate of respondent No. 4 to the petitioner. After receiving the copy of the caste certificate the petitioner again submitted a representation on 6.12.2001 and pointed out the discrepency in caste certificate and concealment of fact.
9. Vide letter dated 11.12.2001 which was received by the petitioner on 13.12.2001 the Board informed that complaint of the petitioner against respondent No. 4 has been rejected.
10. Aggrieving and dissatisfied with the order dated 11.12.2001 (Ex. 13) by which the Retail Out Let of HPCL at Jaipur has been awarded in favour of the respondent No. 4, has been challenged on the ground that respondent No. 4 by birth belongs to Meena Tribe and she has married to a person belonging to Scheduled Caste. On the basis of marriage the respondent No.4 cannot claim to be treated as a person belonging to Scheduled Caste and the, benefit specifically reserved for Scheduled Caste cannot be given to a person who is not a member of the Scheduled Caste Community. This fact whether a person belongs to Scheduled Caste or Scheduled Tribe of a general category or O.B.C. cannot be decided on the basis of marriage and in fact it should be decided by birth.
11. Learned counsel for the petitioner also contended that decision passed by the Board is contrary to the Circular dated 2.5.75/22.3.77 wherein it has been specifically provided that no person who was not a Scheduled Caste or Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or Scheduled Tribe merely because he/she married a person belonging to Scheduled Caste or Scheduled Tribe.
12. The respondents have acted contrary to the Circular dated 2.5.77/22.3.77 which has been issued under Article 15(4) of the Constitution of India. The certificate which was submitted by the petitioner clearly indicates that in the caste certificate of the respondent No.4 name of husband has been shown. In certificate Ex. 11 her father's name was mentioned. There are two caste certificates has been furnished by respondent No. 4 without mentioning the correct fact and both the certificates are not issued in the prescribed formate of certificate.
13. Learned counsel for the petitioner Mr. Joshi also referred a Brochure on reservation for Scheduled Castes and Scheduled Tribes in services issued by the Government of India, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi.
14. Particularly Mr. Joshi referred a circular dated 2.5.75 issued by Ministry of Home Affairs to all State Government and Union Territory Administrations with regard to Scheduled Castes and Scheduled Tribes certificates.
15. Where a person claims to be a Scheduled Caste or a Scheduled Tribe by birth it should be observed by the competent authority before issuing the caste certificate;
(i) That the person and his parents actually belong to the community claimed.
16. In the circular dated 2.5.75 it is also mentioned regarding claims through marriages. The guiding principle is that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she married a person belonging to a Scheduled Caste or a Scheduled Tribe.
17. In this Brochure a form of caste certificate is also mentioned. In the format it is specifically mentioned that this is to certify that Shri/Shrimati/Kumari..... Son/daughter of was only be mentioned. Wherein caste certificate furnished by the respondent No. 4 name of husband has been shown, which is obviously contrary to the circulars issued by the Department of Personal and Administrative Reforms, Ministry of Home Affairs.
18. In support of his argument Mr. Joshi placed reliance on the judgment Valsamma Paul (Mrs.) v. Cochin University and Ors. (supra), and specifically placed reliance on para 7, 10, 12 and 13. He also placed reliance on the judgment State of Tripura and Ors. v. Namita Majumdar (2).
19. Mr. Joshi referred an eligibility criteria for award of dealerships/distributorships under 'Scheduled Caste' Category (SC) Part-I issued by the Hindustan Petroleum wherein the opening of this eligibility criteria categorically stipulates that "you should submit the application form only if you conform to the following eligibility criteria in addition to the above. In case, you do not meet the prescribed eligibility criteria or the application is not complete in all respects, it is liable to be rejected without assigning any reasons and no correspondence will be entertained in this regard."
20. There is Appendix-B appended along with the eligibility criteria with regard to the SC/ST Certificate. Aforesaid format is being reproduced as under:
The form of the certificate to be produced by scheduled Castes/Scheduled Tribes candidates :
This is to certify that Shri/Shrimati/Kumari........Son/Daughter of.................of village/town ......in District/Division..........of the State/Union Territory of..............belongs to the ........Caste/Tribe and his/her religion is ................which is recognised as Scheduled Caste/Scheduled Tribe lists (modification) order 1956 read with the Bombay Reorganisation Act 1960 and the Punjab Reorganisation Act, 1956.
21. Mr. Kasliwal who is appearing on behalf of Hindustan Petroleum Corporation Ltd. and Dealer Selection Board Jaipur-1 submits that since the merit list of selected candidates is prepared by the Dealer Selection Board and the same is sent to the concerned oil company to verify the facts by way of field investigation and after receipt of the investigation report verified the facts stated by the respondent No. 4 Smt. Anju Kataria and therefore the Letter of Intent was issued to her which was followed by the Letter of appointment. Consequently, the Retail Outlet has already been commissioned by the respondent No. 4 and since then the Retail Out Let is functioning. As per the provision 4.15 of the Manual for selection of dealers and distributors issued by the Ministry of Petroleum, Government of India, the merit list of selected candidates prepared by DSB ceases to exist as soon as Retail Out Let is commissioned.
22, Mr. Kasliwal also referred the provision 4.15 which is herewith reproduced as under :
Validity of Merit Panel (MOP's Letter No. P. 19011/10/82- IOC dated 7.11.85) "The validity of panel ceases to exist once the concerned dealership/distributorship is commissioned. In other words, the panel should be valid only upto the point a dealership/distributorship has not been commissioned."
23. The arguments raised by the petitioner is further challenged on the ground that selection of respondent No. 4 Smt. Anju Kataria for allotment of Retail Outlet Dealership at Jaipur under SC category cannot be challenged because the petitioner by way of this petition is challenging the selection process in respect of selection of respondent No.4 but the petitioner is seeking his own selection on the basis of same selection process.
24. Mr. Kasliwal denied that fact that the oil company has provided any proforma for Caste certificate for SC/ST candidates and further submits that certificate issued in this regard by any of the Competent Authority is valid for the selection purposes.
25. It is also denied that the selection process as carried out by the Board is not valid and legal. The bonafide of respondents and DSB are apparent from the very fact that the petitioner and the respondent No. 4 were dealt fairly and impartially. The petitioner was placed at SI. No. 2 in the merit panel according to his eligibility and suitability.
26. The respondent No. 3 has filed a separate reply to the writ petition. So far as the caste certificate is concerned respondent No. 3 adopted the same reply as given by the respondent No. 2.
27. In addition to the reply submitted by the respondent No. 2, respondent No. 3 has submitted that after proper consideration of the complaint and reply to the complaint and rival contentions made by the parties, the Board found that the respondent No. 4 was rightly selected and has not made any false statement and therefore, the complaint of petitioner was rightly rejected being devoid of merit by the respondent No.3 vide its order dated 11.12.2001.
28. He further submits with regard to caste certificate that respondents No.3 only make sure about its prima facie genuine ness and check whether it has been issued by the Competent Authority and nothing beyond that.
29. So far as the judgment submitted by the petitioner is concerned, Mr. Kasliwal submits that the judgment of Hon'ble Supreme Court and different High Courts are distinguishable in as much as the spouse in those cases originally belongs to upper caste and did not suffer with social and economic disabilities and also not suffered any disadvantages since birth, while in the present case it is not so. Therefore, the Selection Board has rightly distinguished the judgment submitted by the petitioner and righty rejected the representation of the petitioner.
30. A detailed reply also submitted on behalf of respondent No. 4 by Mr. R.K. Agarwal. Learned counsel for respondent No. 4 submits that the present petition is not maintainable because by bare perusal of the prayer clause it is crystal clear that the petitioner has sought mandamus from this Court seeking the decision of the respondent No. 2 and 3 regarding allotment of Retail Out Let to the respondent No. 4 pertaining to dealership of HPCL situated at Jaipur, vide order dated 11.12.2001.
31. It is further contended by Mr. Agarwal that the petition is not maintainable because Dealer Selection Board on the basis of field investigation report as well as facts verified by respondent No. 2 and 3, they came to the conclusion that letter of intent be issued in favour of respondent No. 4 and thereupon a letter of appointment was issued in favour of the respondent No. 4 and as a consequence of which the respondent No. 4 has already commissioned the Retail Outlet at Road No. 1-C, Viswakarma Industrial Area, Vidhyadhar Nagar, Jaipur.
32. Since the Retail Outlet has started functioning and as on date nothing survive so far as the present petition is concerned. Therefore, the present petition is not maintainable and deserves to be dismissed.
33. Mr. Agarwal so far as caste is concerned, submits that the husband of respondent No. 4 Shri Manoj Kataria is Balai by caste and belonging to the Scheduled Caste by birth. Respondent No. 4 by birth belong to Meena Tribe and was a member of Scheduled Tribe. On her marriage with Shri Manoj Kataria she became a member of Balai community to which her husband belongs on the analogy of wives taking the husband domicile.
34. Respondent No. 4 after her marriage assimilated herself in Balai community and could not be denied the right and privilege conferred on that community. It cannot be lost sight that the caste is the social combination of persons and the respondent No. 4 on her marriage became a member of that combination to which her husband belong. It cannot be said in abstract that the membership of the caste is determined by birth only and not by any thing else. The petitioner after having been accomplished in Balai community on her marriage, suffered all sort of social and economic disabilities of that community. The case laws relied upon by the petitioner are distinguishable and not at all applicable to the'facts of the present case. The respondent No. 4 did not belong to high caste by birth but to a Scheduled Tribe, otherwise also, entitled for benefit of reservation. The respondent No. 4 after her marriage with Shri Manoj Kataria became the member of the Scheduled Caste and is known and recognised as such with all sufferance, social, economic, political of the social combination, she accomplished on her marriage, The respondent No. 4 after having topped the select list has rightly been allotted the retail outlet dealership and the petitioner cannot have any grievance much less legal or constitutional grievance to agitate the same. The writ petition is devoid of any substance and is liable to be dismissed.
35. Learned counsel Mr. Agarwal submits that the case laws referred by the petitioner in the writ petition have been wholly misconstrued and misread by the petitioner. The reference of Constitutional Bench judgment and other judgment of Hon'ble Supreme Court referred to in the said case law, if properly and purposefully construed, would lead to only one conclusion that the respondent No. 4 rightly claimed for allotment of retail outlet dealership as a member of the Scheduled Caste and no fault could be found with the decision of the respondent Board.
36. Learned counsel Mr. Agarwal further submits that the respondent No.4 has rightly been identified as wife of Majoj Kataria in the certificate dated 2.3.96 issued by the Tehsildar, Jaipur. It is in vogue and practice to identify the wife with her husband's name and not with the father's name after her marriage. The averments made by the petitioner is thus misconceived.
37. Mr. Agarwal further emphatically denied that caste certificates from any inaccuracy or was not in the prescribed form. Therefore, the Dealer Selection Board has rightly rejected the complaint of the petitioner as the representation was found devoid of any substance by the respondent Board and the petitioner has no vested right to claim dealership.
38. In support of his argument Mr. Agarwal placed reliance on the judgments rendered in the cases of Haryana Financial Corporation andAnr. v. Jagdamba Oil Mills and Anr. (3), N.E. Horo v. Smt. Jahanara Jaipal Singh (4), V.V. Giri v. D. Suri Dora and Ors., (5) and Kaiiash Sonkarvs. Smt. Maya Devi (6).
39. To resolve the present controversy it is necessary to examine the issue who can be a member of Scheduled Caste community whether it is to be considered by birth or by marrying with a person who is a member of Scheduled Caste can acquire the status of the Scheduled Caste.
40. In the Mitra's Legal & Commercial Dictionary the Class is defined as Class is a group having common features, traits or characteristics.
41. The word 'class' in Article 15(4) of the Constitution of India means a homogeneous section of the people grouped together because of certain likeness or common traits and who are identifiable by some common attributes, such as, status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular Section forms a class, caste cannot be excluded altogether, but the determination solely based upon the case or community cannot be accepted;
42. The Article 15(4) special provision for backward classes. The object of this clause, added in 1951, is to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutional for the State to reserve seats for backward classes of citizens, Scheduled Castes and Tribes, in the public educational institutions, as well as to make other special provisions as may be necessary for their advancement.
43. It is to be noted that while Article 16(4) simply mentions "any backward class of citizens', Article 15(4) qualifies the expression by the words 'socially and educationally'. In order to satisfy the requirement of Article 15(4), the class must be both socially and educationally backward. Thus, mere educational backwardness is not enough if the class is not socially backward, and vice versa.
44. Caste is, of course, one of the relevant circumstances in determining backwardness, but if a group has been classified as backward on other relevant considerations, that classification cannot be challenged as invalid on the ground of omission to take caste into consideration, or, on the other hand, because the class is described by caste.
45. However, the criterion adopted for determining their backwardness is fictitious; so that the preference given to them virtually amounts to a preference on the ground of caste alone, it would not be protected by Clause (4) and would be hit by Clause (1).
46. Though Scheduled Castes and Tribes are not separately mentioned in Article 16(4), as in Article 15(4), it has been held that they are entitled to be treated as a 'backward class."
47. Preferential treatment of backward classes and Scheduled Castes and Tribes is a rational classification and is indeed necessary to make effective the equality of opportunity for all citizens, which is provided by Article 16(1).
48. It is not disputed that the Retail Outlet dealership of HPCL at Jaipur is reserved for Scheduled Caste community and the respondent No. 4 applied for Retail Outlet dealership as being a member of Scheduled Caste community.
49. The circular issued by the Ministry of Home Affairs on 2.5.75 stipulated that where a person claims to belong to a Scheduled Caste or a Scheduled Tribe by birth it could be verified, that the person and his parents actually belong to the community claimed and claims through marriage the guiding principles are laid down in the circular dated 2.5.75 that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe.
50. Not only this the circular further clarified that a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that Scheduled Caste or Scheduled Tribe as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe.
51. In the instant case it is not disputed that the respondent No. 4 is by caste Meena and member of the Scheduled Tribe and she married with a person who belongs to Scheduled Caste community.
52. In view of circular dated 2.5.75 issued by Ministry of Home Affairs respondent No. 4 does not acquire rights of Scheduled Caste Community by virtue of marriage and she still continued to be a member of the Scheduled Tribe even after her marriage.
53. I also closely scrutinised the two caste certificates produced by respondent No. 4 before the Board and after careful examination of these two certificates reveals this fact that certificates which are given in favour of the respondent No. 4 are contrary to the format as prescribed by the Ministry of Home Affairs.
54. Certificate as Ex. 11 which is placed by the petitioner along with the writ petition only certificate that Smt. Anju Kataria daughter of Rameshwar Dayal R/o C-21, Ambabadi, Jaipur is by caste Balai and belongs to Hindu religion.
55. Another certificate which is produced before me for my perusal was issued by the Tehsildar in which it is certified that Smt. Anju Kataria W/o Manoj Kataria R/o C-21, Ambabadi, District Jaipur, Rajasthan is a member of Balai community.
56. After careful examination of both these caste certificates it reveals this fact that respondent No. 4 is not a member of Scheduled Caste by birth. As already stated hereinabove in view of the circular issued by the Ministry of Home Affairs respondent No. 4 cannot claim to be a Scheduled Caste person through marriage.
57. Even after marriage she continued to be a member of Scheduled Tribe and cannot be considered as a member of Scheduled Caste community.
58. I also carefully examined the judgments referred by the respective parties. The ratio decided in the judgment referred by the petitioner in the case of Valsamma Paul v. Cochin University and Ors. (Supra) is fully applicable to the instant case whereas the other cases referred by the respondents are not applicable to the instant case.
59. It is not disputed that respondent No. 4 is a member of Scheduled Tribe by birth and in view of the circular issued by the Ministry of Home Affairs she cannot claim this right through marriage with the Scheduled Caste member.
60. The Chairman of Dealer Selection Board has wrongly rejected the representation submitted by the petitioner and also arrived at wrong conclusion and contrary to the provisions of law as well as the law laid down by Hon'ble Supreme Court and wrongly held that respondent No. 4 is a member of Scheduled Castes and awarded Retail Outlet dealership of HPCL at Jaipur in favour of respondent No. 4 Smt. Anju Kataria W/o Manoj Kataria.
61. In view of the aforesaid discussions I deem it proper to cancel the selection and set aside the order dated 11.12.2001 by which the Board has awarded Retail Outlet dealership of HPCL at Jaipur in favour of respondent No. 4.
62. Board is further directed to proceed in accordance with the provisions of law afresh regarding allotment of Retail Outlet dealership of HPCL in favour of the persons who belongs to Scheduled Caste community, ,
63. If the petitioner whose name find place at SI, No. 2 is otherwise found eligible, may be given the Retail Outlet Dealership of HPCL.
64. With these observations writ petition stands allowed. The order dated 11.12.2001 is herewith quashed and set aside. Dealer Selection Board is directed to proceed further in view of the observations made hereinabove regarding allotment of Retail Outlet dealership of HPCL strictly in accordance with the provisions of law.