Andhra HC (Pre-Telangana)
A. Prathyusha vs Registrar, Ntr University Of Health ... on 1 December, 1999
Equivalent citations: 2000(1)ALD639, 2000(1)ALT543
ORDER
1. The petitioner's father belongs to forward caste. Her mother is said to belong to scheduled caste family. The petitioner appeared for EAMCET-99 with the hope of getting a medical seat. She obtained a rank of 03445 which was latter revised as 03419. She realised that with this rank she will not get seat in the OC category which she claimed earlier as belonging to OC throughout her academic career upto VII Class, upto X Class and upto Intermediate level. At all these crucial stages of her education thus far, she never claimed that she belongs to scheduled caste. However, after appearing from EAMCET-99 and after realising that she will not be able to get medical seat in the OC category, she thought that by procuring a scheduled caste certificate she will be able to get a seat reserved for SC candidates. Therefore, her father appears to have found a clever way. He made her apply for a community certificate claiming as belonging to 'Mala' caste which is a scheduled caste.
2. The Government of India in 1975 issued a Memorandum No.39/37/73-SCT dated 4-3-1975. That memorandum intended to confer certain benefits on the children of couples of inter-caste marriages. If either of the parents belonged to SC/ST/BC, the child can be treated as belonging to SC/ST provided certain conditions are satisfied.
3. The Government of Andhra Pradesh in Employment and Social Welfare Department issued G.O.Ms.No.371 dated 13-4-1976. White making a reference to the instructions/guidelines issued by the Government of India, the said order says that for the purpose of admission to educational institutions and professional colleges, the lower caste of either parent in the inter-caste marriages shall be deemed to be the caste of the child provided the child was treated and brought up as belonging to SC/ST.
4. Relying on the two orders referred to hereinabove, the petitioner appears to have approached the Mandal Revenue Officer, Kurnool on 20-8-1999. There is no dispute that for the first time she approached for such a certificate, four or five months after the declaration of results in EAMCET-99. Earlier she never thought of obtaining such a certificate. The Mandal Revenue Officer, Kurnool issued a certificate on 10-11-1999 saying that Kumari A. Praihyusha, daughter of Mr. A. Sarveswara Reddy belongs to scheduled caste, being off spring of inter-caste marriage couple. After obtaining the certificate on 10-11-1999 which appears to have been preceded by some sort of hasty enquiry, the petitioner filed this writ petition on 15-11-1999. The basis of the writ petition is the apprehension of the petitioner that the respondents may not consider her request for a medical seat among the students belonging to SC category and that they are proceeding to consider her case as belonging to OC category. Apprehending that her case will be considered only for a seat in OC category, she approached this Court praying for a writ of mandamus directing the respondents to consider her case for admission to MBBS/MDS/BAMS/B.Sc., (Ag) under scheduled caste category.
5. The learned Counsel for the petitioner, Mr. Gangarami Reddy, relied on the memo issued by the Central Government as well as the Government Order issued by the Government of Andhra Pradesh and says that as the petitioner is the off spring of the inter-caste marriage couple, she should be treated as belonging to scheduled caste and her case should be considered for admission to a medical seat as a scheduled caste candidate only and not as a OC candidate.
6. The law on the aspects dealt with by the Government Orders has undergone a sea change. Cases where a SC/ST woman marrying a man belonging to other caste and claiming reservation, cases where children of forward caste parents taken in adoption into family of SC/ST/BC claiming reservation have repeatedly come up before the Courts. The cases where off-spring of an inter-caste marriage couple-either of the spouses belonging to SC/ST - claiming reservation are not new. In all the three categories of cases, the claim was for a preferential treatment either under Articles 15(4) or 16(4) of the Constitution of India. In all the cases decided by the Supreme Court falling in one of the first two categories, the test laid down is that whether the person claiming reservation under Articles 15(4) and 16(4) of the Constitution of India had advantageous start in the life of being brought up in forward family. With regard to the woman of a forward caste marrying a man of SC/ST, a Division Bench of this Court in Smt. D. Neelima v. The Dean of P.G. Studies, Andhra Pradesh Agricultural Universities, Hyderabad, AIR 1993 AP 299, held that though all married woman become members of the families of their husbands snapping all ties from parental homes and acquire status as a SC/ST/BC, still they are not entitled, by virtue of marriage, to claim reservation under Article 15(4) and Article 16(4) of the Constitution of India. Simitar view was also taken by the Hon'ble Supreme Court in Mrs. Valasamma Paul v. Cochin University and others, . With regard to the cases where the children who were taken in a forward caste are taken by adoption, this Court has held that if the adoption by the family belonging to SC/ST/BC is while the adopted child is a toddler or still in cradle and brought up among the SC/ST/BC family, such an adopted child is entitled for the rule of reservation. However, if the child born and brought up in the family of forward caste had all advantages of good breeding and good family environment and adopted into a family belonging to SC/ST/BC after attaining considerable age only on Ihe eve of seeking admission into professional course or some other advantageous position, the benefit of Article 15(4) and Article 16(4) of the Constitution of India shall be denied, for in such a case, the test of a child having been brought up with social, economic and cultural disadvantages is not satisfied. (A.S. Sailaja v. Kurnool Medical College, and N.B. Rao v. Principal, Osmania Medical College, Hyderabad, .
With regard to the test laid down by the Supreme Court in applying the rule of reservation to the persons not originally and fully belonging to SC/ST/BC, the following elucidation of the Hon'ble Supreme Court in Valasamma Paul's case (supra) is useful:
".....when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4) of the Constitution as the case may be. Acquisition of the status of scheduled Caste etc., by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution."
7. In view of the subsequent law, the orders of the Central and State Governments have to be applied having regard to the tests laid down by the Supreme Court. Indeed, even the order of the State Government passed relying on the order of the Central Government, takes note of this when it indicates that where a child of inter-caste marriage couple can be treated as belonging to SC/ST/BC and after examining each case, then only the benefits under Article 15(4) or 16(4) of the Constitution can be considered. An off-spring of an inter-caste marriage couple cannot be straightaway conferred with the benefit of reservation.
8. In the instant case, admittedly the petitioner never claimed herself to belong to scheduled caste. She never claimed any scholarship or preferential treatment at crucial stages of her education, namely, I VII Class, X Class and at the stage of 10+2, Nor she claimed that she should be considered for an MBBS seat earmarked for scheduled caste candidate. In fact, as submitted by the learned Counsel, while applying for MBBS pursuant to the Notification issued by the University of Health Sciences, she never claimed reservation as belonging to scheduled caste. In fact, the affidavit is silent on this aspect. Be that as it may, the petitioner's father conceived the idea when things came clear that with her revised rank of 03419 she would not get a medical seat in OC category. He approached the Mandal Revenue Officer, Kurnool who issued proceedings on 10-11-1999 stating that the mother of the applicant has been residing in the scheduled caste locality along with other children and that she was brought up in the same locality. Based on these proceedings, a certificate is issued as per G.O.Ms.No.371 dated 13-4-1976. The Mandal Revenue Officer, Kumool is not a party to this proceeding. The certificate and the proceedings of the Mandal Revenue Officer dated 10-11-1999 do not appear to be credible. In fact, the inquiry alleged to have been conducted by MRI-1, Kurnool, based on which the proceedings of the Mandal Revenue Officer were issued, is not in accordance with the procedure of inquiry mandated by the Hon'ble Supreme Court in Kum. Madhuri Patil v. Additional Commissioner, Tribal Development and others, (1996) 4 SCC 241, and Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri and another, . In Madhuri Patil's case (supra), the Apex Court indicated the streamlined procedure for the issuance of a social status certificate, its scrutiny aud approval. Fifteen (15) guidelines deal with the method of issuance of community certificate. After receiving the application for community certificate, the Revenue Divisional Officer, shall have to initiate an enquiry for the purpose of verification. All the State Governments were directed by the Supreme Court to Constitute a committee of three officers, namely, (1) Additional/Joint Secretary of the Department concerned, (2) Director of Social Welfare/Tribal Welfare/Backward class welfare as the case may be, and (3) in the case of scheduled caste, another officer who has intimate knowledge in the verification and issuance of social status certificate. Each Directorate of Social Welfare/Tribal Welfare/Backward class welfare was directed to constitute a Vigilance Cell and on receipt of such application for caste certificate, in the words of the Supreme Court, the enquiry has to be as follows:
"Each directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police in overall 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 the 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."
9. After receipt of the report from the Vigilance Officer pursuant to the enquiry as indicated above, if the Director feels that the claim is not genuine or doubtful or spurious or falsely/wrongly claimed, a show cause notice has to be issued to the candidate along with a copy of the Vigilance Report. After affording an opportunity of hearing, the meeting of the committee has to be convened by the Director and again after giving opportunity to the candidate/ parent/guardian to adduce such evidence in support of the claim, appropriate order has to be passed with reasons. The guidelines laid down by the Supreme Court also contain the procedure for cancellation of a certificate of social status which is found to have been obtained by falsehood and fraud.
10. As observed by me, the proceedings of the Mandal Revenue Officer and the certificate issued by him were presumably brought into existence in great haste without following the procedure as indicated by the Supreme Court and without following the procedure enumerated in Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and the Rules framed thereunder. In fact, the learned Counsel for the petitioner has only made a very feeble attempt in this direction to support the petitioner's claim. Therefore, this writ petition is devoid of merits and the same is liable to be dismissed in limine.
11. There is another aspect of the matter. Admittedly, the petitioner's father belongs to a forward caste. Mother belongs to scheduled caste. For the last more than four decades young men and women entering into matrimony on their own without regard to caste is on the rise. These inter-caste marriages are welcome by everybody. These inter-caste marriages in their own way bring down social and cultural disparities in the society to a minimum. The underlying object of inter-caste marriage is to attempt help to ushering a casteless society because caste is bane to Hindu religion.
12. Therefore, it is rather ununderstandable that an inter-caste marriage couple still claim reservation to their off-spring which is again based, to some extent, on the caste. It may be one reason why the petitioner's father did not claim the benefits of reservation in the education of the petitioner till she attained the age of 19 years. The purpose of the Government Order viewed in the background of this is to encourage inter-caste marriage and not encourage the off-springs of the inter-caste marriage couple to claim reservation under Articles 15(4) and 16(4) of the Constitution. This is the only way to interpret the Government Order relied on by the learned Counsel for the petitioner and it is in accordance with the principles laid down by the Supreme Court in cases arising out of inter-caste/inter-religious marriages and adoption of the child from one family to another family.
13. Before parting with the case, it is not out of place to take judicial notice of the distressing and disturbing trends becoming more and more rampant wherein citizens who were born, brought up in forward caste families with all social, economic and cultural advantages are staking claims for garnering the benefits conferred by the State under Articles 15(4) and 16(4) of the Constitution. There are cases of persons claiming such a benefit on the basis of false and fabricated community certificates and there are cases where the children after reaching the stage of adolescence claiming reservation by engineering adoptions into down-trodden families and there are cases where the off-springs of inter-caste marriage couples though brought up in the family of the parent belonging to forward caste, still claiming reservation at crucial stage of education, for admission to professional courses. If the persons are not allowed to enjoy the benefits of reservation either in education or in public employment and the same are snatched away by persons not legally entitled to, the same amounts to playing fraud on the Constitution. A person takes a convenient advantageous position in the society to which he/she is not entitled to by a process of novel impersonation that he, in fact, belongs to reserved class. More often than not, the authorities who are competent to issue community certificates unwittingly or intentionally become part of the fraud. The Courts, especially the Constitutional Courts, alone can abat such a situation. As otherwise, the philosophy of Articles 15(4) and 16(4) of the Constitution aimed at Indian Constitution's preamblular goal of social justice would be an illusion. Therefore, this Court is under a duty to prevent such ill-advised adventures like the petitioner in the present case.
14. Further, I have observed that the proceedings of the Mandal Revenue Officer, Kurnool and the Community Certificate issued pursuant to the alleged enquiry by the MRI-I do not inspire confidence of any reasonable man that proper procedure is followed. There is a lurking suspicion with this Court that all is not well with the way the enquiry is conducted by the MRl-I as welt as the Mandal Revenue Officer, Kurnool. These matters shall be looked into by the District Magistrate and the Collector, Kurnool and appropriate action, including disciplinary enquiry and launch of prosecution, be ordered by the District Collector against the erring persons including the Mandal Revenue Officer, Kurnool and the MRI-I, Kurnool, and others responsible, under Sections 10, 13 and 14 of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993, after duly following the principles of natural justice.
15. In the result, for the above reasons, the writ petition is dismissed. No costs.