Andhra HC (Pre-Telangana)
M.A. Salam vs Principal Secretary To Government Of ... on 27 December, 2002
Equivalent citations: 2003(1)ALD699
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This writ petition is filed challenging the proceedings of the 1st respondent dated 3.8.2002 through which the proceedings of the 2nd respondent dated 20-9-2001 were set aside.
2. The relevant facts may be briefly stated as under.
3. The petitioner appeared in the Common Entrance Examination conducted in the year 2000 for the purpose of selection of candidates for admission into various courses including first year of M.B.B.S. The petitioner secured rank 2626. He claimed social status of BC-C. On that basis, he came to be selected against a payment seat in a private Medical College. The 3rd respondent has also appeared in the entrance examination and secured the rank 3005. He made a claim for admission into first year of M.B.B.S. in the same college under BC-C category. Since the petitioner came to be selected, the 3rd respondent did not stand to a chance.
4. The 3rd respondent filed Writ Petition No. 350/2001 alleging that the petitioner does not belong to BC-C category, he is a Muslim by community and as such was not entitled for the benefit of any reservation at all. No relief as such was granted to the third respondent. He preferred Writ Appeal No. 188/2001. A Division Bench of this Court through order dated 19.2.2001 permitted the petitioner to raise all his objections before the 2nd respondent under the provisions of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and the Rules (hereinafter referred to as 'the Act and the Rules') made thereunder.
5. The petitioner was issued notice by the District Level Scrutiny Committee (hereinafter referred to as 'the Committee') constituted under the Rules. It was alleged therein that the mother of the petitioner was a converted Christian and on her marriage to one Mr. Fazal Mustafa, she got converted to Islam and the petitioner, being their offspring, cannot claim status of B.C.-C. The Caste Certificate issued by the Mandal Revenue Officer certifying that he belongs to B.C.-C category was sought to be cancelled. The petitioner contended that his mother continued to be a Christian and in terms of G.O.Ms. No. 371, dated 13.4.1976 he is entitled to be recognized as belonging to B.C.-C Community. In support of his contention, he placed certain material before the Committee as well as the 2nd respondent. The 3rd respondent, who disputed the social status of the petitioner, raised the contention that the mother of the petitioner was married to a Muslim by name Fazal Mustafa, their marriage was performed in accordance with the customs applicable to Muslim marriage and that she has changed her name from Siromani to Shiraj. The 3rd respondent has also filed various documents such as the Transfer Certificate of the petitioner from the Junior College, Multi-purpose Household data concerning the family of the petitioner, Voters list of the years 1995 etc.
6. The Committee submitted its report to the 2nd respondent taking the view that the petitioner does not belong to B.C.-C category and the Caste Certificate issued to him was liable to be cancelled. The 2nd respondent, however, did not agree with the recommendations of the Committee and took the view that the petitioner was entitled for the benefit under G.O. Ms. No. 371. The 3rd respondent carried the matter in appeal to the 1st respondent. The 1st respondent in turn had reversed the order of the 2nd respondent.
7. It is the case of the petitioner that the mother of the petitioner is a converted Christian and his father is a Muslim. In view of the fact that the mother belongs to B.C.-C Community and continues to be so, the petitioner was entitled to be treated as such. According to him, G.O. Ms. No. 371 applies not only to inter-caste marriages, but to inter-religious marriages also. He further submits that the recommendations of the Committee were without basis, and at any rate were not binding upon the 2nd respondent. Finally it is stated that there was no justification for the 1st respondent to reverse the findings recorded by the 2nd respondent which were based on sufficient material and recorded after elaborate discussion.
8. The 1st respondent filed counter-affidavit narrating the circumstances under which the enquiry under the Act and the Rules came to be initiated against the petitioner. It is his contention that G.O. Ms. No. 371 applies only to inter-caste marriages, and under no circumstance it is applicable to inter-religious marriages. It was further pleaded that even assuming that the G.O. applies, the benefit under it is not available, as a matter of course, unless it was established that entire family has been accepted by the backward community to which one of the spouses belonged to, prior to marriage.
9. The 3rd respondent has also filed counter affidavit. It is his contention that the petitioner never claimed social status as B.C.-C and only with a view to grab the seat reserved for socially backward classes, he has manipulated the records and secured the Caste Certificate by misleading the authority.
10. Sri D. Sudershana Reddy, learned Counsel for the petitioner submits that the proceedings issued by the 2nd respondent was based on elaborate discussion with reference to the material on record as well as applicable provisions of law and no interference with the same was called for. He submits that the 1st respondent did not consider the various aspects that were dealt with in depth by the 2nd respondent. It is his case that the material on record was sufficient to hold that the mother of the petitioner continued to be a converted Christian and accordingly the petitioner was entitled for the social status of BC.-C.
11. Learned Government Pleader for Social Welfare submits that the Committee has conducted enquiry and submitted a detailed report narrating the circumstances under which the petitioner cannot be conferred with the social status of B.C.-C and that the 2nd respondent has not dealt with any of those aspects. According to him, the benefit under G.O. Ms. No. 371 was not at all applicable to the petitioner.
12. In addition to repeating the contentions of the learned Government Pleader for Social Welfare, Sri J. Sudheer, learned Counsel for the 3rd respondent submits that he has placed ample material before the Committee as well as the 2nd respondent to establish that the mother of the petitioner is also converted into Islam and that being the situation, she ceased to be a converted Christian and accordingly the petitioner was not entitled to be treated as B.C.-C candidate.
13. The Andhra Pradesh State Legislature has enacted the Act to regulate the issuance of Caste Certificates for the purpose of admission into educational institutions, public employment and elections to various Local Bodies. The petitioner was issued Caste Certificate by the Mandal Revenue Officer for the first time on 11.2.2000. The 3rd respondent objected to the same. Section 5 of the Act empowers the District Collector either suo motu or on a complaint made by any person to call for the records relating to Caste Certificates and to cancel the same by issuing a Notification, after giving opportunity to the affected person. Under Rule 8, the District Level Scrutiny Committee is constituted which is to be headed by the Joint Collector. Whenever proceedings are taken up for cancellation of any Caste Certificate, the matter is required to be referred to the Committee. The Committee, shall examine the material before it, in the form of reports, statement of witnesses, documentary evidence etc., and submit a report as contemplated under Rule 8(7).
14. In pursuance of the orders passed by this Court in the writ appeal, the matter came to be taken up for enquiry by the Committee. Before the Committee, voluminous material was placed by the petitioner on the one hand and the 3rd respondent on the other. The material placed by the petitioner was in the form of Service Certificate, Caste Certificate, Transfer Certificate, Nativity Certificate etc., of his mother, Voters list of the year 1995 and photo identity card. The 3rd respondent has placed before the Committee the documents such as Transfer Certificate of the petitioner, multi purpose data of the Municipality wherein the father and mother of the petitioner were shown as Sunny Muslims, copy of the Caste Marriage Certificate, statements of father and mother of the petitioner and their neighbours, voters list etc. The Committee after considering the necessary material before it and after discussing the matter at length, recorded its findings as under:
(1) As seen from the Mandal Revenue Officer's Report, the Mandal Revenue Officer has not properly enquired into the matter in detail because he has not supplied genealogical information of the tree of the individual, birth and death extracts of the family members of the individual, following customs, and social acceptance by the same community people etc., in his report.
(2) The Mandal Revenue Officer, Yeleswaram and Amalapuram issued the Caste Certificates to the mother of the individual and for the candidate issued a simple routine manner mentioning on the certificate for Educational purpose but they did not go into the details at present the family what customs are following and how they lead their social life i.e., called social acceptance of the people.
(3) As seen from the T.C. of the individual issued by Principal, Vikas Junior College, Guntur mentioned in the Nationality and Religion noted as Indian-Muslim and his mother tongue is also Urdu.
(4) As seen from the MPHS data prepared by the Govt. Agencies at Amalapuram Municipality the names of Mr. Fajal Mustafa is reflected at ECS No. 3954, and his son's name is reflected under his name showing the House No. 11-2-7(1) and showing them as "Sunny". The mother of Mr. Abdul Salaam is reflected at ECS No. 39546 (the same No. ) on the reverse page as "Shirty" at the same House No. 11-2-7(1) as "Sunny" and her original name as per certificate etc., P.S. Siromani. Their caste noted as "Sunny" in the MPH data in Amalapuram Municipality".
and recommended for cancellation of the Caste Certificate of the petitioner.
15. The 2nd respondent however took the view that the petitioner was entitled for the benefit under G.O. Ms. No. 371. It was also found by him that the mother of the petitioner continued to be converted Christian and in that view of the matter, the petitioner was entitled to be extended the social status of his mother. The 2nd respondent did not advert to any of the findings recorded by the Committee. The Committee had referred to various documents in support of its conclusions. It is not in dispute that the mother of the petitioner was a converted Christian and that his father, a Muslim. The whole dispute went round the fact as to whether after the marriage, the mother of the petitioner continued to be as a converted Christian or came into the fold of Islam. Before the Committee, the 3rd respondent has placed the Transfer Certificate issued to the petitioner by the Vikas Junior College where he had studied. In column-4 relating to Nationality or Religion, he was described as "Indian Muslim".
16. The Municipality of the town where the petitioner and his parents were residing had prepared multipurpose household data. In that at Sl. No. 39546, the mother of the petitioner was shown as 'Shiraj', W/o. Fazal Mustafa residing at 11-2-7(1) belonging to 'Sunny'. The name of the father of the petitioner figured at SI. No. 39525. He is also described as 'Sunny'. The Mandal Revenue Officer, Amalapuram has also prepared similar data. The name of the mother of the petitioner is shown at Sl. No. 0454010011784801. Her name is shown as 'Shiraj', wife of Fazal Mustafa belonging to 'Sunny'. In the voters list of the year 1995 of Amalapuram Assembly Constituency for Booth No. 143, the mother of the petitioner was shown at Sl. No. 370 as residing at 11-2-7(1) with name "Shiraj", w/o Fazal Mustafa. The entries in these documents clinchingly establish that the mother of the petitioner ceased to be Christian and became a Muslim. The petitioner was not able to dislodge the authenticity of these documents. The findings of the Committee were based on these documents.
17. It is true that the 2nd respondent is conferred with the power to pass orders and the findings recorded by the Committee are only recommendatory in nature. However, when the Committee constituted under the Rules framed under the Act in exercise of its powers records a finding, the same cannot be ignored whimsically. The 2nd respondent was under obligation to record reasons for not accepting the finding recorded by the Committee. Though the discussion undertaken by the 2nd respondent goes to several pages, it does not touch any of the vital aspects.
18. The main basis for upholding the social status of the petitioner by the 2nd respondent is G.O.Ms. No. 371, dated 13.4.1976. Para-2 of the G.O. which is operative reads as under:
"For the purpose of admissions into educational institutions and professional colleges, however, the Government direct the lower caste of either parent in the inter-caste marriage shall be deemed to be the caste of the child and it shall be eligible for the reservation of the seats made for that caste."
19. This G.O. unequivocally refers to its application. It applies to inter-caste marriages. In the present case, what is involved is not an inter-caste marriage, but an inter-religious marriage. No other provision of law or order of the Government is relied upon by the petitioner to insist that the G.O. is applicable to inter-religious marriages also. It should not be forgotten that reservations themselves are exception to the general rule of equality and Fundamental Rights enshrined under Articles 14 and 16 of the Constitution of India. Any exception, cutting into such Fundamental Right should be on the basis of specific provision of law. It should not be left to the realm of imaginations or surmises.
20. Learned Counsel for the petitioner relies upon the judgment of the Supreme Court in Valasamma Paul v. Cochin University and Ors., .
21. The question relating to the social status of the off-spring of spouses with different social status was considered therein. It needs to be observed that the case before the Supreme Court related to a marriage within different sects of Christian religion. Secondly, it was held that a person who had the advantageous start in the society, cannot be extended the benefit of a lower of the castes, of an inter-caste marriage. The relevant paragraphs read as under:
"However the question is: whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBC also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities (para 33).
The recognition of the appellant by the member of Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had advantageous start in life and after her completing education and becoming major married Yesudas, and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class, (para 36)"
22. Apart from not being of any help to the petitioner, the proposition laid down therein negates his contention.
23. A Division Bench of this Court in W.S,V. Satyanarayana v. Director of Tribal Welfare and Ors., (DB), took the view that caste is a phenomenon of Hindu religion and that it is not prevailing in any other religions. After referring to the various judgments rendered by this Court, the Division Bench observed as under:
"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." (Para-10)
24. The petitioner failed to establish that his entire family was accepted by the Christian Community. The evidence on record suggests and establishes the opposite.
25. It should be said to the credit of the District Level Committee that it has noticed the legal position in its proper perspective when it observed at para-13 of its report as under:
"The purpose of issuing G.O. Ms. No. 371 was in case of inter-caste marriage, if the off-spring suffered the same social stigma or status of either of the parents who comes from a lower caste then the off-spring is also entitled for the benefit of reservation. In other words as an example-if a Brahmin (OC) man marries a Scheduled Tribe lady, but the couple and the propency are accepted into Brahmin community and the boy is raised in the surroundings of Brahmins and live like a Brahmin, he never had the stigma of being called as Scheduled Tribe and hence he cannot claim the reservation as Scheduled Tribe. The reservations are provided only for those who are suppressed and had social stigma. Had it been a case that upon marriage the Brahmin man was also accepted into Scheduled Tribe and the family lived with and in the surroundings of the Scheduled Tribes and the boy being brought up as Scheduled Tribe, then he can claim as Scheduled Tribe. In this background and legal position what has to be seen now is whether Sri Mohd. Abdul Salaam had a Muslim life with Muslim surroundings or Christian life with Christian surroundings."
26. The view taken by the District Level Committee is in total conformity with the judgments of this Court as well as the Honourable Supreme Court.
27. The 2nd respondent did not even care to refer to these aspects and had passed the order on the basis of certain irrelevant considerations. For example, to the counter claim of the 3rd respondent, the petitioner got an affidavit from one Mr. Jacob John stating that he belongs to B.C.-C and that his daughter Sowmya got rank No. 2095 in the entrance examination. This affidavit, given by a person belonging to B.C.-C community was taken in favour of the claim of the petitioner with the following observation:
"As contended by the Advocate for M.A. Salaam, this kind of affidavit should not have (been) filed by a person belonging to B.C.-C community, that is Mr. Penumudi Johnson Billy, son of Jacob John, a resident of Amalapuram town unless Mr. M.A. Salaam is not accepted as a Adi-Andhra Christian by the Christian community of Amalapuram."
28. It was rather, a lopsided logic.
29. In the circumstances, the appellate authority, i.e., the 1st respondent has only corrected the error committed by the 2nd respondent. The District Level Committee had recorded a categorical finding that the Mandal Revenue Officer had acted hand in glove with the petitioner in issuing the Caste Certificate and thereby denied benefit to a genuine candidate. It, in fact, had recommended disciplinary action against the persons responsible for the same. The effect of the order of the 2nd respondent was only putting the premium on the fraud played by the Mandal Revenue Officer on the system of reservations. The 1st respondent, if at all anything, had only ensured due compliance of the provisions of the Act and the Rules and prevented the perpetration of fraud on reservations and on Constitution.
30. I do not find any merits in this Writ Petition. The writ petition is accordingly dismissed. No costs.