Himachal Pradesh High Court
Murari Lal vs State Of Himachal Pradesh & Ors on 22 November, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. 4360 of 2014
Reserved:15.11.2019
Decided on: 22.11.2019
Murari Lal ....Petitioner
Versus
State of Himachal Pradesh & Ors. ....Respondents
__________________________________________________________
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
__________________________________________________________
For the petitioner : Mr. Digvijay Singh, Advocate.
For the respondents Ms. :
Rameeta Rahi, Additional
Advocate General.
__________________________________________________________
Jyotsna Rewal Dua, J.
Rejection by respondents to issue Scheduled Caste Certificate in favour of the petitioner has led him to institute the present petition.
2. Facts may be noticed hereinafter:-
2(i) The pedigree table of the petitioner is graphically drawn hereinafter:-1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 2
Maghu .
Arjun
Matha Ram
Saran Dass Shankar Dass
Amar Nath Murari Lal Tilak Raj
(petitioner)
2(ii) As per petitioner:-
(a)
r Sh. Matha Ram, the grand-father of the
petitioner originally belonged to the Rajput caste- upward caste/community. In the revenue record also, Sh. Matha Ram was recorded as belonging to Rajput caste.
(b) Around 70 years ago, the grand-father of the petitioner-Sh. Matha Ram, married Smt. Mahajanu, who belonged to Lohar caste which is recognized as Scheduled Caste under the Constitution of India.
Lohar caste is recognized as Scheduled Caste in State of Himachal Pradesh as well vide entry 36 of list provided in Part-VI of the Schedule appended to the Constitution (Scheduled Castes) Order, 1950. On account of Sh. Matha Ram marrying into scheduled caste community, he was ousted from his family and boycotted by the Rajput community. He, therefore, started living in the village of his wife amongst the members of Lohar community.
::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 3(c) The Lohar community to which Smt. .
Mahajanu belonged, recognized Sh. Matha Ram as one of the member of their own community.
(d) Sh. Matha Ram had two sons from Smt. Mahajanu namely Sh. Shankar Dass and Sh. Saran Dass. Both the sons were also brought up as members of Lohar community. They were married to the ladies who were also belonging to Lohar community. In fact, the petitioner is son of Sh. Saran Dass who was married to Smt. Damodari Devi. Mother of the petitioner Smt. Damodari Devi also belonged to Lohar community by birth.
(e) All sons and daughters of the uncle and father of the petitioner are stated to have married in Lohar community. The brothers of the petitioner namely Sh. Tilak Raj and Sh. Amar Nath have married Smt. Rama Devi and Smt. Bhawna Kumari, respectively, belonging to Lohar caste by birth.
2(iii) Petitioner has brought on record the extract from Parivar Registrar (Annexure P-1) whereunder Sh. Matha Ram has been shown as belonging to Rajput caste, but all other members of his family right from his wife Smt. Mahajanu (grand-mother of the petitioner) down to the petitioner are reflected as belonging to Lohar caste.
2(iv) Pointing out above facts, the petitioner applied for issuance of Scheduled Caste Certificate in his favour to the Deputy ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 4 Commissioner, District Mandi vide his representation (Annexure P-
.
3) dated 29.01.2013. The Additional District Magistrate, District Mandi, vide his communication dated 27.01.2013 (Annexure P-4) declined to issue Scheduled Caste Certificate on the following grounds:-
(a) In accordance with the instructions issued by Government of Himachal Pradesh dated 16.07.1974, the Scheduled Caste/Scheduled Tribes Certificates can be issued to a person only on the basis of his birth.
(b) r The revenue record reflects the ancestral caste of the petitioner as Rajput.
(c) The Scheduled Caste Certificate cannot be issued to the petitioner on the ground that his grand-
mother belonged to scheduled caste.
3(i) Aggrieved against the decision of the respondents in not issuing him Scheduled Caste Certificate, the petitioner has preferred the instant petition.
3(ii) I have heard Mr. Digvijay Singh, learned counsel for the petitioner and Ms. Rameeta Rahi, learned Additional Advocate General, for the respondents and with their assistance, gone through the record.
3(iii)(a) The legal position in respect of status of children of persons belonging to Inter caste-community wherein either the father ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 5 or the mother belongs to Scheduled Caste/Scheduled Tribe is no .
longer res integra. Reference can in this regard can be profitably made to Rameshbhai Dabhai Naika Vs. State of Gujarat and others, (2012) 3 Supreme Court Cases 400, wherein, it was held by Hon'ble Apex Court as under:-
54. 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.
55. 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 ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 6 belonged not only by that community but by the .
people outside the community as well." (emphasis supplied) 3(iii)(b) 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. It 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." (emphasis supplied) ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 7 3(iii)(c) In another judgment of the Hon'ble Supreme Court in .
Anjan Kumar Vs. Union of India and others, (2006) 3 Supreme Court Cases 257, 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 ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 8 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)
15. 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."
3(iv) Instructions issued in the year 1977 by respondent/State, relevant for the purpose of adjudication of the instant case 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 ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 9 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 21 st 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).::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 10
2. It is requested that these instructions .
may be circulated among all the authorities empowered to issue Scheduled Caste and Scheduled Tribes certificates.
3. Hindi version will follow.
Annexure "A"
LEGAL VIEWS ON THE STATUS OF THE OFFSPRINGS OF A COUPLE WHERE ONE OF THE SPOUSES IS A MEMBER OF A SCHEDULED CASTE.
The general position of law as to the effect of marriage between parties who are Hindus and one of whom belongs to the Scheduled Castes is that under the ancient Hindu law, generally, inter-caste marriage was looked down upon by the propounders and commentators. Some of the authorities, however, reluctantly permitted marriage between a male caste Hindu with a Shudra female and included it in the list of anuloma marriages although it was stated that in the wedding with a Shudra wife, the ceremony should be performed without Mantras. The children born out of a marriage by a caste Hindu with a woman of an interior caste had neither the caste of the her nor the Hindu wife. They were termed as Anulomaja and belonged to an intermediate caste higher than that of their mother and lower that of their father. Yajnavaliya omits the son of Brahmin by a Shudra wife from the list of sons mentioned by Manu. Pratiloma marriages, i.e. marriages between woman of a superior caste with a man of an inferior prescribed for them in Grihya Sutra and persons entering into such marriages were degraded from the caste.
2. After the passing of the various statutory enactments relating to the Hindu law, such as, the Hindu Marriages Act, 1955, the Hindu Succession ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 11 Act, 1956 and the Hindu Minority & Guardianship .
Act, 1956, customary ban on intercaste marriages in either way, has been lifted by the statutory enactments. Under the Hindu Marriage Act, any two Hindu of different sex, irrespective of their caste may enter into a valid marriage unless such marriage is prohibited by the Statute itself. According to the above three Statues, all children either legitimate, or illegitimate, one of whose parents s a Hindu, Buddhist, Jain or a Sikh by religion and who are brought up as members of the tribe community, group or family to which their parents belong or belonged, are to be treated as Hindus. In view of the above, the offsprings of marriage between the caste Hindu and a member of the Scheduled Caste community, are Hindus and like the offsprings of marriage in the same caste, are entitled to succeed to the properties of their parents regardless of the status of his or her parent belonging to the higher caste or lower caste. But the question arises as to whether such a child will acquire the status of the parent belonging to the Scheduled Caste.
On this point, we have not come across any direct case law. But we feel that the rationale of the decision in Wilson Read V.C. S. Booth reported in AIR 1958 Assam, 128 would apply to such cases. It is stated at page 182.
"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 was treated by the community and the practice amongst the tribal people in the matter of dealing with the tribal in the matter of dealing with persons whose mother was a khasi and father was a European."::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 12
Similarly, in the case of Muthswamy Mudaliar .
V. Masilman Mudaliar, reported in ILR 33, Madras 342, the Court held:
"It is not uncommon process for a class or tribe outside the pale of caste or another pale and if other communities recognized their claim, they are treated as of that class or caste. The process of adoption into the Hindu hierarchy through caste is common both in the North and in the South India. As we have already pointed out, in the past there have been cases where people whom judge from the purity of blood could not be khasi, were taken into their fold or the orthodoxy did not stand in the way of their r assimilation into the khasi community."
3. The Supreme Court in V.V. Giri v/s D. Suri Dora, reported in AIR 1959 S.C. 1318 (1327) held:
"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 No.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. That is the view which the High Court has taken and in our opinion the High Court is absolutely right."
In view of the above observations by superior Courts, it can safely be concluded that the test to determine is whether a child born of such a wedlock has been accepted by the Scheduled Caste community ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 13 as a member of their community and has been brought .
up in that surrounding and in that community or not.
The nexus between the child and the community or class or caste is a real test irrespective of the fact whether the accommodating class or caste or community is a Scheduled Caste Community or a Caste community. Even if the mother of the child is a member of the Scheduled Caste Community, it is possible that the child is accepted by the community of his father and brought up in the surroundings of his father's relations. In that case, such a child cannot be treated as member of the Scheduled Caste community and cannot get any benefit as such. Similarly, when the mother belongs to a higher caste and the father is a Scheduled Caste, the father may remain away from the Scheduled Caste community and the child maybe brought up in a different surrounding under the influence of his mother's relations and her community members. In such cases also, the child cannot be said to be a member of the Scheduled Caste community. In the alternative, where the child irrespective of the fact whether the father or the mother is a member of Scheduled Caste community, is brought up on the Scheduled Caste community as a member of such community, then he has to be treated as a member of the Scheduled Caste community and would be entitled to receive benefits as such.
6. It can be derived from this that the illegitimate children are generally brought up by the mother and in her own surroundings. Therefore, if the mother belongs to the Scheduled Caste and brings up the child within a Schedule Caste community, the child can be taken as a member of the Scheduled Caste Community. But in this case also the major factor for consideration is whether the child has been accepted by the Scheduled Caste community as a member of their community and he has been brought up as such.
::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 14.
7. The above are the general observations, however, each case has to be examined in the light of the circumstances prevalent in that case and final decision has to be taken thereof."
The above instructions make it clear that main factor for grant of Scheduled Caste Certificate to the off-springs, of a couple, where one of the spouse is member of the Scheduled Caste, is the acceptance of such off-springs by the Scheduled Caste community as belonging to their community. In case, the children are brought up as members of Scheduled Caste community and are accepted by the society as such, then they shall be treated as members of Scheduled Caste community.
4(i) In the light of the above law, facts of the instant case may again be reverted to:-
4(ii) Respondents No. 1 to 3-State in its reply has categorically admitted that petitioner's grand-father, father and petitioner himself have been residing in Village Sandoa with other families of Schedule Caste community and further that their social relations are also with the families belonging to Scheduled Caste ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 15 community residing in the area. Relevant portions from the reply .
filed by the State is extracted hereinafter:-
"3..........the father of petitioner Sh. Saran Dass has solemnized marriage with Smt. Damodari Devi daughter of Sh. Prem Dass son of Sh. Chimna resident of village Sakroha/294 Tehsil Balh, District Mandi, H.P. and as per revenue record Sh. Prem Dass, father of Smt. Damodari Devi belongs to Scheduled Caste Dumana.
Sh. Saran Dass son of Sh. Matha Ram, father and grand-father of petitioner are residing in village Sandoa with other families of Scheduled Caste and their social relations are with the Scheduled Caste (Dumana) families residing in that area...."
4(iii) Along with the rejoinder, the petitioner has appended (Annexure P-6 colly), report submitted by Tehsildar on 01.08.2014.
The jist of this report is that the grand-mother of the petitioner- Smt. Mahajanu belonged to Lohar community. Her son, father of the petitioner, has been residing at village Sandoa with the members of Scheduled Caste community. His social relations, marriage, interactions, everything is with the members of Dumna, which is recognized as a Scheduled Caste Community. This report was prepared by the concerned Tehsildar on the basis of reports of Patwari, documents as well as on the basis of statements of the persons belonging to Scheduled Caste community to the effect that ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 16 they consider petitioner's family as one belonging to their own .
community.
Statements of various persons to the effect that the petitioner, his father, his grand-mother and their families are having relations, marriages, social interactions and the relationships only with the members of Scheduled Caste community have also been brought on record as part of the aforesaid report.
5. In the light of the law laid down by the Hon'ble Apex Court as well as in view of the facts of the case, the reason given by the Additional District Magistrate, District Mandi vide impugned communication at Annexure P-4, dated 27.02.2013 for not issuing the Scheduled Caste Certificate on the ground that the Scheduled Caste Certificate can be issued only on the basis of birth, is not correct. Similarly, the second reason for declining the issuance of this Certificate on the ground that in the revenue record, the caste of the petitioner's grand-father is recorded as Rajput and, therefore, he cannot be issued the Scheduled Caste Certificate, cannot be considered to be a valid reason.
::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 17All the legal aspects have been gone into by a Division .
Bench of this Court in LPA No. 39 of 2017 titled as Shreshta Devi vs. State of H.P. & others, decided on 28.06.2019.
In view of the above, this writ petition is allowed. The impugned communication dated 27.02.2013 (Annexure P-4) is quashed and set aside. The respondents are directed to consider the matter of issuance of Scheduled Caste Certificate to the petitioner afresh in light of observations made above within a period of six weeks from today.
All pending application(s), if any, also stand disposed off.
(Jyotsna Rewal Dua) Judge 22nd November, 2019 (reena) ::: Downloaded on - 25/11/2019 20:25:36 :::HCHP 18 .
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