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CASE NO.: Appeal (civil)  6445 of 2000

PETITIONER: Anjan Kumar

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 14/02/2006

BENCH: H.K. SEMA & Dr.A.R. LAKSHMANAN

JUDGMENT: J U D G M E N T

H.K.SEMA,J                  The appellant Shri Anjan Kumar is the offshoot of the  wedlock between Shri Lakshmi Kant Sahay, District Gaya in  the State of Bihar and Smt. Angela Tigga who belongs to  Scheduled Tribe community of Oraon Tribe, village Pondi  Potkona, Distt./Division Raigarh, State of Madhya Pradesh.   By an order dated 7th August, 1992 Scheduled Tribe certificate  was issued to the appellant by S.D.M., Gaya on the ground  that the mother of the appellant Smt. Angela Tigga belongs to  Oraon tribe which is recognised as a Scheduled Tribe in the  State of Madhya Pradesh.  The appellant appeared before the  Civil Service Examination in 1991 conducted by the Union  Public Service Commission claiming himself to be the  Scheduled Tribe candidate. In the said examination he had  passed the written test but could not qualify in the interview.   He again appeared in the Civil Service Examination conducted  by the Union Public Service Commission in the year 1992 and  passed the written examination.  In 1993 he was called for  interview. The result of the successful candidates was  published and he stood at 759th rank in order of merit.  He  was also allotted Indian Information Service Grade A.   However, the appellant did not receive any final posting order,  which had resulted in filing many representations to the Union  of India.  In one of representations dated 14th September, 1994  the appellant also stated that he belongs to Scheduled Tribe  category and his sub-caste is Oraon. Having failed to receive any positive response from the  respondents, he filed an Original Application before the  Central Administrative Tribunal, Principal Bench, New Delhi  being O.A. No. 2291 of 1994, inter alia, seeking direction to  the Union of India to allow the appellant to join training.  In  response to the notice issued by the Tribunal, the Union of  India, by its letter dated 9th November, 1994, conveyed to the  Tribunal that the appellant has not been brought up in tribal  environment and that his father is a non-tribal and, therefore,  he cannot be treated as a Scheduled Tribe.  Further, the Union  of India, as directed by the Tribunal, conducted the enquiry  into the question whether the appellant belongs to Scheduled  Tribe community and the enquiry was conducted by the  Additional District Collector, Jaispurnagar, District Raigarh,  Madhya Pradesh and the report was submitted on 26th June,  1995.   The enquiry report obviously was against the  appellant.  After examining the enquiry report submitted as  aforestated, the Tribunal ultimately dismissed the Original

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Application No. 2291 of1994 by order dated 12th December,  1995.  Aggrieved thereby the appellant filed a Writ Petition  being C.W.P No. 647 of 1997 before the High Court of Madhya  Pradesh at Jabalpur, inter alia, challenging the enquiry report  submitted by the enquiry officer on the allegation of violation  of the principles of natural justice inasmuch as no opportunity  of hearing had been accorded to the appellant.  The learned  single Judge of the High Court after perusing the records and  the enquiry report, submitted by the enquiry officer, dismissed  the Writ Petition by order dated 22nd January, 1999.  The  appellant thereafter carried an unsuccessful appeal before the  Division Bench in L.P.A. No. 138 of 1999, which was  dismissed by the L.P.A. bench on 3rd December, 1999.  Hence,  the present appeal by special leave. We have heard the parties at length.          The sole question calls for determination in this appeal  is, as to whether the offshoot of the tribal woman married to  non-tribal husband could claim status of Scheduled Tribe and  on the basis of which the Scheduled Tribe certificate could be  given.         It is contended by Mr. M.N.Krishnamani, learned senior  counsel that the enquiry officer conducted the enquiry behind  the back of the appellant and therefore, the learned single  Judge as well as the Division Bench erred in law dismissing  the petition/appeal by placing reliance on the enquiry report  and the material collected during the course of the enquiry.   He further contended that the marriage of mother of the  appellant (Scheduled Tribe) and the father of the appellant  (Kayastha) has been approved and accepted by the community  of the village and the appellant has been transplanted into the  Tribal community and therefore, he was entitled to the  Scheduled Tribe certificate which was correctly granted.  In  this connection, he has referred to a Circular dated 4th March,  1975 issued by the Government of India, Ministry of Home  Affairs on the subject ’Status of children belonging to the  couple one of whom belongs to Scheduled Castes/Scheduled  Tribes’.  He particularly referred to the portion when a  Scheduled Tribe woman marries a non-Scheduled Tribe man,  the children from such marriage may be treated as members  of the Scheduled Tribe community, if the marriage is accepted  by the community and the children are treated as members of  their own community.  Such Circulars issued from time to  time, being not law within the meaning of Article 13 of the  Constitution of India, it would be of no assistance to the  appellant on the face of the Constitutional provisions.   Further, the facts of this case are however different with the  facts in which the circular was sought to be clarified. Undisputedly, the marriage of the appellant’s 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 or the  bridegroom suffers the wrath of the community of the village  and runs the risk of being ostracised or ex-communicated  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  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 practiced by the tribals from time immemorial and

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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  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.  It is not disputed that the couple performed court  marriage outside the village; settled down in Gaya and their  son, the appellant also born and brought up in the  environment of forward community did not suffer any  disability from the society to which he belonged.  Mr.  Krishnamani, learned senior counsel contended that the  appellant used to visit the village during recess/holidays and  there was cordial relationship between the appellant and the  village community, which would amount the acceptance of the  appellant by the village community.  By no stretch of  imagination, a casual visit to the relative in other village would  provide the status of permanent resident of the village or  acceptance by the village community as a member of the tribal  community. The ’tribe’ has been characterized by Dr. Gupta, Jai  Prakash in The Customary Laws of the Munda & the Oraon  quoted by this Court in State of Kerala vs.  Chandramohanan (2004) 3 SCC 429 at 432 as under: "Tribe has been defined as a social group of a  simple kind, the members of which speak common  dialect, have a single government and act together  for such common purposes as warfare.  Other  typical characteristics include a common name, a  contiguous territory, a relatively uniform culture or  way of life and a tradition of common descent.   Tribes are usually composed of a number of local  communities e.g. bands, villages or neighbourhoods  and are often aggregated in clusters of a higher  order called nations.  The term is seldom applied to  societies that have achieved a strictly territorial  organization in large States but is usually confined  to groups whose unity is based primarily upon a  sense of extended kinship ties though it is no longer  used for kin groups in the strict sense, such as  clans."

Bhowmik, K.L. in Tribal India: a profile in  India Ethnology observed:

"Tribe in the Dictionary of Anthropology is  defined as ’a social group, usually with a definite  area, dialect, cultural homogeneity and unifying  social organization.  It may include several  subgroups, such as sibs or villages.  A tribe  ordinarily has a leader and may have a common  ancestor, as well as patron deity.  The families or  small communities making up the tribe are linked

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through economic, social, religious, family or blood  ties’."

The object of Articles 341, 342, 15(4), 16(4) and 16(4A) is  to provide preferential treatment for the Scheduled Castes and  Scheduled Tribes having regard to the economic and  educational backwardness and other disabilities wherefrom  they suffer.  So also considering the typical characteristic of  the tribal including a common name, a contiguous Territory, a  relatively uniform culture, simplistic way of life and a tradition  of common descent,  the transplantation of the outsiders as   members of the tribe or community may dilute their way of life  apart from such persons do not suffer any disabilities.   Therefore, the condition precedent for a person to be brought  within the purview of the Constitution (Scheduled Tribes)  Order, 1950, one must belong to a tribe and suffer disabilities  wherefrom they belong. In Kumari Madhuri Patil v. Addl.Commnr. Tribal  Development (1994) 6 SCC 241 this Court denounced the  practice of persons claiming benefits conferred on STs by  producing fake, false and fraudulent certificates: "13.    The admission wrongly gained or  appointment wrongly obtained on the basis of false  social status certificate necessarily has the effect of  depriving the genuine Scheduled Castes or  Scheduled Tribes or OBC candidates as enjoined in  the Constitution of the benefits conferred on them  by the Constitution.  The genuine candidates are  also denied admission to educational institutions or  appointments to office or posts under a State for  want of social status certificate.  The ineligible or  spurious persons who falsely gained entry resort to  dilatory tactics and create hurdles in completion of  the inquiries by the Scrutiny Committee.  It is true  that the applications for admission to educational  institutions are generally made by a parent, since  on that date many a time the student may be a  minor.  It is the parent or the guardian who may  play fraud claiming false status certificate."

Similar view was reiterated in Director of Tribal  Welfare, Govt. of A.P. vs. Laveti Giri (1995) 4 SCC 32.  In  the case of  Punit Rai vs. Dinesh Chaudhary (2003) 8 SCC  204 this Court at page 221 in para 39 observed as under:- "39. A person in fact not belonging to the  Scheduled Caste, if claims himself to be a member  thereof by procuring a bogus caste certificate, would  be committing fraud on the Constitution.  No court  of law can encourage commission of such fraud"

Further in Punit Rai’s case (supra) in paragraph 27, this  Court observed that: "27. The caste system in India is ingrained in  the Indian mind.  A person, in the absence of any  statutory law, would inherit his caste from his  father and not his mother even in a case of  intercaste marriage."

In the case of Valsamma Paul (Mrs.) vs. Cochin  University and others (1996) 3 SCC 545 this Court again  examined the entire gamut and came to the conclusion that  the condition precedent for acquiring Scheduled Tribes  Certificate one must suffer the disabilities - Socially,  Economically and Educationally.  The facts of that case are  important and may be recited in a nutshell.  Two posts of

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Lecturers in Law Department of Cochin University were  notified for recruitment, one of which was reserved for Latin  Catholics (Backward Class Fishermen).  The appellant was a  Syrian Catholic (a Forward Class).  She married to Latin  Catholic (Backward Class Fishermen) and had applied for  selection as a reserved candidate.  The University selected her  on that basis and accordingly appointed her against the  reserved post.  Her appointment was questioned by another  candidate by filing a writ petition praying for a direction to the  University to appoint the petitioner in place of the appellant.   The learned single Judge allowed the Writ Petition. On appeal  being filed before the Division Bench concerning the important  question of law a reference was made to the Full Bench.  The  Full Bench held that though the appellant was married  according to the Canon Law, the appellant being a Syrian  Catholic by birth (Forward Class), by marriage with the Latin  Catholic (Backward Class Fishermen) is not member of that  Class nor can she claim the status as a Backward Class by  marriage.  On an appeal being preferred before this Court  against the decision of the Full Bench this Court after  referring to various decisions of this Court upheld the  Judgment of the Full Bench.  This Court held  in paragraphs  33 and 34  as under: "33.  However, the question is: Whether a lady  marrying a Scheduled Caste, Scheduled Tribe or  OBC citizen, or one transplanted by adoption or an  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 recognized  by Articles 17 and 15(2).  Consequently, they  became socially, culturally and educationally  backward; the OBCs 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 and was sought to bring them in the  mainstream of the nations’s life by providing them  opportunities and facilities.

34. In Murlidhar Dayandeo Kesekar v.  Vishwanath Pandu Barde 1995 Supp (2) SCC 549   and R.Chandevarappa v. State of Karnataka  (1995) 6 SCC 309 this Court had held that  economic empowerment is a fundamental right to  the poor and the State is enjoined under Articles  15(3), 46 and 39 to provide them opportunities.   Thus, education, employment and economic  empowerment are some of the programmes the  State has evolved and also provided reservation in  admission into educational institutions, or in case  of other economic benefits under Articles 15(4) and  46, or in appointment to an office or a post under  the State under Article 16(4).  Therefore, when a  member is transplanted into the Dalits, Tribes and  OBCs, he/she must of necessity also have had  undergone the same handicaps, and must have  been subjected 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

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conversion, does not become eligible to the benefit  of reservation either under Article 15(4) or 16(4), 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."

In view of the catena of decisions of this Court, the  questions raised before us are no more res integra.  The  condition precedent for granting tribe certificate being that one  must suffer disabilities wherefrom one  belongs.  The offshoots  of the wedlock of a tribal woman married to a non-tribal  husband - Forward Class (Kayastha in the present case)   cannot claim Scheduled Tribe status.  The reason being such  offshoot was brought up in the atmosphere of Forward Class  and he is not subjected to any disability.  A person not  belonging to the Scheduled Castes or Scheduled Tribes  claiming himself to be a member of such caste by procuring a  bogus caste certificate is a fraud under the Constitution of  India.  The impact of procuring fake/bogus caste certificate  and obtaining appointment/admission from the reserved  quota will have far-reaching grave consequences.  The  meritorious reserved candidate may be deprived of reserved  category for whom the post is reserved.  The reserved post  will  go into the hands of non-deserving candidate and in such  cases it would be violative of the mandate of Articles 14 and 21  of the Constitution of India. 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 concerned authority,  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 concerned  authority issuing such certificates in a  routine manner would be committing the dereliction of  Constitutional duty.  In the result, there is no merit in this appeal and it  deserves to be dismissed with costs.  The tribal certificate  dated 7th August, 1992 procured by the appellant by  misrepresentation of the facts is quashed and set aside.         The appeal is dismissed with costs.