Mrs Shantha Naik vs Smt Rajeevi on 18 January, 2011

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Karnataka High Court

Mrs Shantha Naik vs Smt Rajeevi on 18 January, 2011

Bench: B.V.Nagarathna

IN THE HIGH COURT 0:? KARNATAKA AT BANGALORE
DATED TI-{IS THE 13TH nay or JANUARY;j2f:if;i;'11:

BEFORE  W_V, _ n

THE HON'BLE MRS.JUSTICZE3,..Bb._${.N£1GAl7L£§;§'fi2%15.:V'V '

WRIT PETITION 1\'0.365$8/2&3?)  

BETWEEN:

IV.{RS.SHANTHA NAIK  _
AGED ABOUT 36  §

13/o LATE NEELA BHOVI, *

R/A KACHALLACHIL  

BADAGULIPPAD'Y.__VIL;'LAGE~  _   - 

MALALIPOST     4'  

      PETITIONER '

 'POQJARY, ADV.)

AND:

1. sMT.R;AJE§:V'1 
;Am§:D ABGDUT 36 YEARS
 "~w_/,0 SUNDARANAIK
" R/A' MOGARU VILLAGE, MALALI POST

'  " »  'I'ALUK,I}.K.

2'; . . %%mE §gvf'6RN1NG OFFICER

GANJIMUTT GRAM PANCHAYAT
QAMJIMUTT POST

 n T M:%.F€GALORE TALUK, D.K.

     TAHASILDHAR

MAN GALORE TALUK
MLANGALORE, D&K..,  RESI'()NII¥ENTS

{By Sri: H.T1i'EARE§'3I)RA PRA.SAﬂ, ECG? FER. R2 8:
R33; SREsJAYA.Nﬁ KO'E"I%L,='LRL Aﬁﬁi FQR R1} f

§"§--,r,.
2  °



village. which is reserved for Scheduled Tribe women, on

23/4/2010, to be elected a member of Ganjim:xtt*.(firam

Panchayat. At the time of ﬁling her nomination; 

attached a Caste Certiﬁcate issued b_:r'"'tiie'_':Tiiahsilda;-,"' 

certifying that she belonged  S_Vci:..e'd1i1ed-.i  'tin

scrutiny, the same was ac»ce.3;rted and shea'vVcc-iltensteelcl fozif

the said election as per ofitihe iiiarnataka
Panchayat Raj (coridizct  iinles, 1993
(hereinafter, referred  jV'v--'--i"Vhe election was
conducted   petitioner was
declared   "Tihe said election was
cha11z;;hgé'ct -- ﬂijy   1 initiaily, seeking

rejectixc-nof the no'ini11.at'ion on the basis that she did not

belong to flee V'Sch]edi:ie"Tribe and thereafter. the election

  pe._'t_i3tio_n. was ﬁleduhefore the Prl. Civil Judge, Mangalore,

 ' in"E1ection~.I§'et_it1on No.1/2010 under Section 19 of the

Karriiatakafahichayat Raj Act, 1993 (hereinafter, referred

'V to asztvhe dict'), by contending that as on the date of

it  tire--election, the returned candidate was not qualiﬁed or

iiiinieither words, was disqualiﬁed. The said ground raised

 "in the Election Petition was under Section 19(1){a) ef the 4

Act}. The Eieetien ?etitien was gested fer triad" ﬁuring

tire eeuree er" trial; the first resgendent examined herself

.

I s F a;/::

as P.W.1 and produced 10 documents, which were marked as Exs.P.1 to R10, while the petitione'r.c:'hei'~e'in examined herself as R.W'.1 and another__--'r#:itrie--ss' examined as R.W.2. On the basis of theV"s'ai:§;.e§'id'ence,uu the trial Court held that ﬁrst'»._re:§poi1deot'~ ~ made out a case under Sectioii 19a._od 20 tj;1..e.,Ac.r£ al"ld._ whiie allowing the election tide-elaredvfigthat the petitioner herein as member of Ward No.2 MoAgV._r;,V_;v-:i1"1..VV Grama }'anchayat, "-also declared that respondezitll and consequently, directvioriVs"Were respondent was to act as:Vv"th'e«. No.2. The said order has been _cI1alle'2aged. petition.

Iﬂhave heard the learned counsel Sri.'I'aranath fﬂpetitioner, learned counsel Ms.Jayana I{othari.__v'1"orf' respondent No.1 and the learned G.P. for ii"4"-._VV"'respo1ide:i1ts 2 and 3. i it 4. According to the petitioneri the trial Court was 4 " "riot right in holding' that as on the date of the election; the yetitiorzer was disqualiﬁed to eentesi: the election for the post of member of Gran: Paneiiayat and thereby, ax allowing the election petition. He has drawn my attentien to various judgments of the Apex Courts»-and also of the Division Bench of this Court to co_1_§_te'nd_' a lady acquires the caste of her husband and "

that the said proposition was squ\are}.ypi5g.p'p3pieab1e' facts of the present case and it is on that pvrtunvise that the Tahsildar had issued a oerti:fie'ate1§ to the petitioner herein statirir'g"':.tha'ti.s;11:e': 'b_eiio'1~:ged toiisieheduled Tribe and sincepthe reserved for Scheduled entitled to contest for snbrnitted that although the beionging to Scheduled Caste but byiviimarriagepi the caste of her husband and this p'roposiff..ioi:__ has been supported by' various "ii"~v.Adeeis:ior:s of Apex Court and under the c'ire'urnstances,'*.the trial Court has not appreciated the deeisionsef_ the Apex Court in their proper perspective. The decisions which have been relied upon by the A f_' lea:-ned counsel for the petitioner shall be adverted to.

5. Per contra, learned eounsei for respondent No.1 supporting the erder ef the triai Seer: submitted that what has ta be seen for the purpese pf reeerratien under the Censtitutien is as re what is the caste ef 3 person at 5 ;§»:c~r; > f X/' petitioner was not a Scheduled Tribe and therefore, was not entitled to contest the same. It was also subn:iit_ted by the counsel for respondents that the caste A' which had been obtained by the petitioners--ststiiigithat"

she belonged to Scheduled Tribe §g1i4Ti£§'r-- purpose but not for the purposeof séeiiing r¢g--égtretioﬁ; or benefits under the Constitiitio'11 'tit. tiietefore submitted that the orddefof d§'e;§ot call for any interfererice and the\,.i§}i§ﬁ};:v'i;$_etition has to be dismissed. ' ' '?,.. ciounsel on both sides, the only ooint' ti1Vaut.':'a:x*isesiV_:fer 'my consideration! isﬁ as to whetherfthe first re-spotidettt was entitled to contest for Graniev Panchaiyati V Election in question. In other words, iwheitizesr: s§ie«.._Vwas disqualiﬁed on the date of Grama it"Patie§iayt%i't,,V_Eiee'Eion and therefore. her election has to be set"'asid'e. -. «-

S. From the material on record, what is seen is ....t;11at the petitioner by birth belongs to Scheduled Caste and thereafter; an her marriage on '?f§/" ESQS, she might have been recognised as belonging ts the 2<msbsz1d"s family and therefore. seiengs to $si1edsled '}"ribe 3} ;'§/''__.. I. 1 community. But What has to be seen in the instant case is as to whether the petitioner was entit1ed...Vto_'iVbe certified as belonging to Scheduled Tribe _ was entitled to contest for the post. In erd'er::jto"ainewe#-i' the said question. which is neceAssar:yA.§;sA1':§ nndersttanfi.' the position of law from t»he___vario;is' decisions hofigthe Apex Court and also refer to ot'the}l)ivision Bench of this Court, 'relied by the counsel for thé P'EtitiO1?.e.,7:, V; it ' 8A. In" Paul (MRS) -vs.~ Cochin @996) 3 sec 545], the facts lecturers in Law Departrnent .:iIniversity were notiﬁed for recniitnienti, "one"; of 'Which was reserved for Latin {.Backnrai'd«'C1ass Fishermen}. The appellant, a (a Forward Class), having married a Latin applied for selection as a reserved eandidatier The University selected her on that basis and A aeoerdingly appointed her against the reserved post. Pier' appointment was questioned by one Rani George by Vhﬂfiling a writ petition? V212,, OP 1510,9459 of 1991 graying , fer a direetien in the Efnieersity to eppeint her in giaee ef the appellant ts the said pest" The Apex Cetgrt stated '~»:» that the question is one of constitutional importance to harmenize the personal law of the citizens ariiziltltie constitutional goal, viz., to accord equal _ the disadvantaged social segments, envisagcdin }irti.c1es' 16(4) and 15(4) of the Constituticin. :Ix1_t1ie»said. ease-,'i_'£2;:e.' Apex Court reiterated the ;}ro_positiori"

and wife are one under law on rri-ar_i'ia:gé tithe Wife becomes an integral part ._I;ia'ritaI horne entitled to equal status of husband as riV1ezr:i3.ei5V_'ef.'--=the family and thereby becoitiei§gjT.ra' mef;11ber"ief'tiietcastei of the husband. " it:iv5was§tie1§eﬁer with regard to claim for reseriration; of voluntary mobility to - reserved ~.cIassV A'thfe";ugh 1nter---caste/ inter-religion pr adep.t1.en by a lady belonging to a non- ' 1::eserve_d'icia:se--._marrying a SC. ST or 0136 citizen or a iperseni' Yb-_;,aV1:cri1gir1g to non-reserved ciass being tratispianted by adoption or any other voluntary act to a it iarnily ibelonging to such reserved class, would not ipso entitle the iady/adept to claim reservation under it iviifsxtiele 15%} car 1604} of the Constitution as the case i may be in View cf the advarstageeus start in life aveiied. 2-';

3' ?.:\";$?_ by her/him.

10. In the said decision, it was held that caste became the result of birth and not of volition.' ' result of birth and has become a bane ' drive. thrive and improver.een.'t""' of' excVe1ie1zce,. Ftmdamentai Duty under Article it 'teats that the practice untouchabﬂiétgr, which 5for centuries, denuded social an--d_°<economic'statixs and cultural life of the Daiitst iiirirogrammes evolved » under Articles" aimed to bring Dalits ism by garoviding equalitariau V " iiioigitiortiunities. 'They are designated ' Caste" by deﬁnition under Article 366124} and"".':Schecduled Tribes" under Article 366 (25)._§:&iread vIithi_Vi}i&rti'u:ies 341 and 342 respectively.

:A}=¢;e'rcforAe,.:th.e Apex Court held that the recognition of the said case as a member of the Latin Catho1i,es-ufiould not be relevant for the purpose of her entitlement meant for backward caste, as she had an advantageous start in iife as she was born as a Syrian = .v.i:hristian and after eompietion of her education and beeeming major, she is not entitied te the faeiiity cf reservation giver: tn the Latin ilatfneiies, a Backward /,'.

for that seat. Having secured more votes than' the votes secured by the appellant therein, the respondent declared elected. In an election petition filed A' party, a ﬁnding was given that the Sch.cdt1ied certificate obtained by the respondent..xarfa;s"'ioneorrect T observing that Scheduled Caste sitattts cori1ci..V'Vnot':':t3.e~ V acquired merely by marriageV'Vi'd'*rrithV a ipvereenr the District Judge set aside_""t.t1e iresjnxondent. However, the :r_espondent was accepted by V. '"biradari", the judgment was not sustainable.

Before a reference was made to a decisiorrin the Hymavathi Devi's case and it was held that f.th'c=_: High Court's decision was not "VV"--v.5us't_din;;rble~r.Aand'"irr--~---that context, the Apex Court held 1 i ads" * -- .

"It thing to say that a may belonging tdV.oj'orward caste has been accepted by the cerrtmunity to which her husband belongs; but is another thing to say that her marriage has been accepted only by her hu.sba:nd's family. The question as regards change of {taste in view ef her' marriage although may he reieverzt in reiatiferg ta Hindus, biz: when the question of change of Z"

caste is referable to the category belonging to a special class of citizens who require protective discrimination and a~[f'irmative"»..""<-- action, a different rule will apply. burden of proof therefor indisputably__ie'auul«ii.'~. be on the person who afﬁrms 't'he.sar'ne._ff' It was further held that:

"A person who isa high§céL$:te--,Iiindu.. not subjected to .. social :.ori"~.educaVtional backwardness in __e'b-_yf..reason of marriagepalone :c'¢i::mg~ ipso factoﬁaecome a memberf, __tr'ie:K Scheduled Caste or the Sched_ule_d_.~ .Cl'r'il3e"."--f} absence of any allowed to defeat the "xgery_pr'ep*isions""r1;1ade by the State for reseraving x'certain"*--.cseats for disadvantaged 'peoplé-" . "

' The opined as follows:

A "iW"'efseeV'no reason why the principle relating to iresemation under Articles 15(4) and 16(4) p a laid down by this Court should not be extended to the constitutional reservation of a seat for C: Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are aise eenstittatienal reservations intending te beneﬁt the really 2 3::

2/ /_ K z/ -

underprivileged and not those who come to the class by way of marriage."

12. Therefore, the Supreme Court ' High Court in the said case has VcommittiedVie"'E§naiiifest'i'._V it error in coming to the conc1usioni'1'thetiiforxthe of reservation under Constitution, on the one [gird 332, on the other, are differe-oi1.;;. said decision a reference is .vzr:.:::a;de tog: case, it will be adverted__

--. is necessary to refer to an earlier &e_ci:-jioii case of Kailash Sonkar ---vs.--

_. _ Mayo Devi SCC 1991. The facts in the said case .were t'hat.4respondent therein was born of converted " €3hé.'_isti'a.1i<.,_ p£;'1*e'nts and. was baptised according to Christi-girl -rites and educated in various schools or inss_titut*i.ons where she was known as a Christian. There i §_éra.3A'"ihowever no evidence to show that her parents had is Jbeexx tiihristians from generation to generation. The , respondent was recomrerted to Hinduism and married to a member of e seheduied easte {Katie} arm also oerformed the Shuﬁhikaran ceremony'. it appears from 5%' fail.' ' we _., /7 the evidence that she was accepted and also Welcomed by the important members, including the Presidentriaizd Vice~President, of the community. About 34 it her reconversion to Hinduism she ﬁled h_er----.n_:onrination"' as a candidate for election of constituency and was declared elected. 'i'hé§.--Aaj{);$e1l:;ant therein questioned her elections' ground she ireing a Christian by birth as aviirnenrber of the scheduled caste and a.§;C¢;l§_¢.:ion from the reserved constit{§;eiicy::--was V. V Supreme Court dismissed €tl1e;:.44"a15';v.>'ea1 the present case fulfils ,the _ire,tiuiredV'Vfor being reconverted to I Hinduism 'fro1n"{'};i:ristiani1Ey in order to revive the original "~.--'/iiitherefore, she fulfils the 'V"'v..Constitntiona1 'requirements under the Constitution Order 1950 and therefore, she was deciared.'el'eri:ted. In the said case, it was stated that whena person is converted to Christianity or some other religion, the original caste remains under eclipse and as soon as during hisfher lifetime the person is reeonverted ' to the originai religion the eclipse disappears and the 4:';

M caste antomatiscaiiy revivess "The principle relating to reservation under Arts. 15(4) and 16(4) laid down by Supreme Court should be extended to the"'i."' ii constitutional reservation of a seat fair 1- Scheduled Tribe in the House of .4 or under Art. 332 in Assembly. The said reseriiations clreiialso constitutional reservat'ions it 'i.ntendi.ng to beneﬁt the really undergorivileged 'arid not"

those who come~._to the by iiway.-Vof marriage. Whether it be :reserofat,ion under Arts. 15(4) or j_.t-he said reserva£:ioﬁ;;. Lwould g bie9ne'ﬁafi ifonlyiif' those who belong' lie.' ?:::¢h¢e1giz.ed or scheduled Tl_'fii)_§? to acquire the s:tc1tu_s" lilceiithe appellant' in this case. could not claim the righifto contestfa seat reserved for a ._%gScheduleeqllfribe in terms of Art. 332 of the Co*nsiti.tutiorixoji' India merely by virtue of her to a person belonging to a ' sctigaiiiéd Tribe."

eieei.' that a person acquires his caste status by belonging ta haekwaré oi nevertheless. the golden three& that runs through i' Therefore, from this decision also it becomes V hot by marriage and though these decisions are in the context of a forward caste member marrying a person . /WV ' /' .» birth and ass same. seeking reservatimi, these decisions is that as far as e hindu is concerned, caste is determined by birth ané not by marriage marriage, the husband's caste may be recog_x;ise¢1o'_~ customary social or other purposes, reservation under the Constitution»_4jai:d:_ Constitutional benefits, the caste iatithe ':of"bi'n:t'i;r it has to be taken into consideratiorii.»

17. In Meera Kanwqritt*s:'ea_s.e;szijéra, there is a reference mag1e"'to'-- the ease 'oAf'viiSartd}"'tya Takur -~vs.--' Vimla Devi? [(2005) 2 SCC 731], whereiriv » folioiaiisz I «the-- _of _:t'Ir:e 'decision in Valsamma PauliV'v..,ViiCoo'hiri;_IJinii)ersity and our decision __§«ren.dered' tobioy Sobha Hymavathi Devi U. 'Se-tti "Ggngaidtidra Swamy which was heard this appeal. It must be held that rippeilont, who by birth did not belong to a ..__bac3é1oard class or community would not beentitled to contest a seat reserved for a A «backward class or community merely ori 'the of her marriage to a, male of that community. "

18. Learned emineei for yetitioner has however also reiieﬁ apex: a decision of the §ivisioti Benet; of this :ra;_'. -

, = 'r Court in case of B.A.Kagati and Another --vs.-- The Secretary, Department of Social Weifare, Bangalorjewatxti = Others reported in 2005 (3) KCCR 2005 (DB) w1;;,s'rei:;_;"

respondent married a person from Coorg. to"

Kuruba Community to which caste s}}.eolheli7selfl and later she became a per'm,aner:'t_ rcside1nt.Aof "c¢:;a~'g thereafter having family of and e1airried:';to have acquired status of a Sc_§ieduied:_ the said case the respondents caste had cancelled by 1 the caste hearing the respondent. was quashed by the Learned circumstances, the Division .»she was entitled to claim reservationheasv a_S=3eh.gdu'led Tribe on the premise that ' '~-.upon° :gnAar'riagellt}1e~'Vwife acquires the caste of her ' Inisba 11¢ " ' '-

I9,' Itiis necessary to note that before the Division . Benchﬁnone of the judgments of the Apex Colurt which been elucidated above have been brought to its 'V -riotiee. The fact remains that the respondent in the said decision beienged ts Kuruba caste by birth. After her marriage she settieci dewa in eeerg, where Eitiruba Cemmtmitgr is reeegnised as a Seheﬁuied Tribe. ﬂnéer J. another depressed Class, that by itself would not give her the benefit of reservation as a scheduled tribe her marriage since reservation of post has to followed in terms of the particular caste is!"

made and the said caste is Therefore, the trial Court was right i'nxho1ding"V'ithat«.aslgonl the date of the election, the petitioner did jnet belong to Scheduled Tribe category t._t_h'ie'refore,HiH she was disqualiﬁed to contest 'AAthveIsaid'reserved category. First heen successful in making i19(1](a) of the Act.

The accordance with law and thexsamei any interference in this Writ _pVetiti'or1,V' .VV'VTheV"v1rrit petition is accordingly, V' dismissed. ~t.Parties"'*tot "bear their own costs. safe EEEEGE "*"mvs.t.

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