Sc status

G Murali (Querist) 20 October 2011 This query is : Resolved
I am writing on behalf of my collegue.
1. His parents are intercaste father being a BC and mother a SC , he got a community certificate as SC is this vaild and can he apply for jobs in Govt based on this certificate.

2. He got married to a BC girl , now is the girl eligible for a SC community certificate ?

3. He has a sin and daughter , Can they be certified for SC Community.

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Shonee Kapoor (Expert) 20 October 2011
He can use all benefits of SC
Wife can not use benefits of SC but BC alone
Kids can use all benefits of SC.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

G Murali (Querist) 20 October 2011
Dear Shonee Kapoor

thanks for the clarity .

prabhakar singh (Expert) 20 October 2011
take care of this judgement also:

A. Prathyusha vs Registrar, Ntr University Of ... on 1 December, 1999
Equivalent citations: 2000 (1) ALD 639, 2000 (1) ALT 543
Bench: V Rao
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.

prabhakar singh (Expert) 20 October 2011
And one more subsequent judgement::

The Tahsildar vs Arivudai Senthil on 1 February, 2010
DATED: 01.02.2010

Coram

The Hon'ble Ms. Justice R.BANUMATHI

and

The Hon'ble Mr. Justice M.M.SUNDRESH

W.A.No.2182 of 2000

1.The Tahsildar,

Taluk Office,

Thanjavur.

2.The Sub-Collector (incharge),

Office of the Sub-Collector,

Thanjavur.

3. The Director of Social Welfare

Department, Chepauk,

Chennai.5.

4.The Director of Backward Classes,

Chepauk, Madras.5.

5.The Director of Most Backward Classes,

Chepauk, Madras.5.

6.The Secretary to Government,

Department of Scocial Welfare,

Fort.St.George, Madras.9.

7. The Secretary to Government Department

of Backward Classes Fort.St.George,

Madras.9.

8.The Director,

Director of Technical Education,

Madras.5. .. Appellants

Vs

1.Arivudai Senthil

2.Minor Angayarkanni

3.Minor Farkulghali .. Respondents

Writ Appeal against the order dated 28.01.1999 made in W.P.No.14788 of 1991.

For Appellant : Mr.M.Dhandapani,

Special Government Pleader

For Respondents : No appearance

JUDGMENT

(Judgment was delivered by M.M.SUNDRESH, J.)

This writ appeal has been filed by the appellants being aggrieved against the order passed by the learned single Judge in allowing the writ petition filed by the respondents.

2. The brief facts of the case in a nutshell are as follows:-

The respondents are the children of one B.Eraiyarasan and Kamalam. Eraiyarasan belongs to Sozhiya Vellala Community and his wife Kamalam belonged to Vanniya Kula Kshatriya Community. Hence, the marriage between the parents of the respondents was an inter caste marriage. At the time of marriage, both the community of the parents of the respondents were Backward Class community. However, the community of the mother of the respondents was subsequently classified as Most Backward Class Community.

3. The sixth appellant herein has passed the Government Order in G.O.Ms.No.477, Social Welfare Department, dated 27.6.1975, whereby the children born out of inter-caste marriages have been considered to belong to either the community of the father or the mother, according to the way of life, in which they are brought up. The parents of the children are also directed to file a declaration to that effect that they have been brought up as belonging to either the community of the father or the mother as the case may be. The said Government Order is extracted hereunder:- GOVERNMENT OF TAMIL NADU

ABSTRACT

Children born to inter-caste married couple Determination of Community Orders issued.

----------------------------------------------------------------------------

SOCIAL WELFARE DEPARTMENT

G.O.Ms.No.477 Dated: 27.6.1975

ORDER

The Government haven been extending certain concessions to the members of Scheduled Castes, Scheduled Tribes and Backward Classes from time to time. A question has arisen about the determination of the community of the children born of inter-caste marriage.

2. The Government after carefully examining the question direct that the children born of inter caste marriages, that is marriages--

"i) between a person of Scheduled Tribe and another of a Scheduled Caste or Backward Class or Forward Class;

ii)between a person of a Scheduled Caste and another of a Backward Class or Forward Class; and

iii) between a person of a Backward Class and of a Forward Class".

Shall be considered to belong to either the community of the father of the community of the father of the community of the mother according to the declaration of the parents regarding the way of life in which the children are brought up and that the declaration in respect of one child will apply to all children. (BY ORDER OF THE GOVERNOR)

4. Claiming the status of the mother, who was parent in a Most Backward Class community, the first respondent made an application. The first appellant has rejected the request of the first respondent for issuance of the community certificate as the one belonging to that of the mother on the ground that the Government Order passed in G.O.Ms.No.477, Social Welfare Department, dated 27.6.1975 does not apply to a case of inter-caste marriage between Backward Class community person and Most Backward Class community person. In other words, the first appellant has rejected the request of the first respondent by holding that the Government Order in G.O.Ms.No.477 dated 27.6.1975 does not apply to the case of the first respondent, since it does not cover an inter-caste marriage between Backward Class community and Most Backward Class community parents. Secondly, the first appellant has also rejected the case of the first respondent on the ground that the declaration from the parents especially from the mother of the first respondent having not obtained the request for issuance of the certificate as the one belonging to the Most Backward Class community cannot be considered. Challenging the said order passed by the first appellant dated 9.7.91, the first respondent preferred an appeal to the second appellant, who also rejected the same in proceeding dated 24.7.91. Being aggrieved against the above said order, the respondents preferred a writ petition seeking a writ of certiorarified mandamus to quash the proceedings of the respondents 1 and 2 with a further direction to the first appellant to issue the community certificate to the respondents as belonging to Most Backward Community.

5. The learned single Judge upon hearing the respondents and the appellants, has allowed the writ petition. Being aggrieved against the said order, the appellants have preferred the writ appeal.

6. We have heard the Government Pleader Mr.K.Dhandapani for the appellants and none appeared for the respondents.

7. The question to be decided in the appeal is as to whether the Government Order passed by the sixth respondent in G.O.Ms.No.477, Social Welfare Department, dated 27.6.1975 is applicable to the case of the respondents or not. A reading of the Government Order referred above would clearly show that the said order deals with inter caste marriages between the following categories of classes. "i) between a person of Scheduled Tribe and another of a Scheduled Caste or Backward Class or Forward Class;

ii) between a person of a Scheduled Caste and another of a Backward Class or Forward Class; and

iii) between a person of a Backward Class and of a Forward Class".

Therefore, the said Government Order does not deal with a marriage between a person belonging to Backward Class community and Most Backward Class community. Admittedly, at the time of the marriage, both parents of the respondents belonged to Backward Class community. Subsequently, the community of the mother has been declared as Most Backward Class community. The learned Special Government Pleader Mr.K.Dhandapani on instructions submitted that there is no Government Order governing the inter-caste marriage between Backward Class community and Most Backward Class community. Even among the Backward Class inter-caste marriages, there is no Government Order indicating the community which should be adopted by the children. The mother of the respondents is said to have died at the time of making the application. The affidavit filed in support of this writ petition does not make any mention about the date of the death. Since, the respondents have not appeared before this Court, no particulars about the said fact could be obtained.

8. The Government Order passed by the sixth appellant governing the children born out of the inter-caste marriages is only a concession granted by the State Government. Such a concession cannot be extended by the Court of law in favour of a party. Further, it is seen that in view of the death of the mother of the respondents, the declaration could not be furnished to the first appellant. In our considered view, such declaration is required to be considered provided the respondents are eligible to get a community certificate as that of their mother as stipulated under the Government Order. Therefore, in the absence of the same, the respondents cannot seek as a matter of right that they are entitled to get community certificate as if they belong to the same community as that of their mother.

9. The Constitution of India strives for a classless society. Such a classless society is the ideal society which is the ultimate object of the Constitution. The Constitution by its Preamble, Fundamental Rights and Directive Principles has created a secular state and the duty of such state is to establish an egalitarian social order. Therefore, the sixth appellant herein with a laudable object has passed the Government Order providing certain concession to the children born out of the inter-cast marriages by encouraging inter-caste marriages. If the goal of secularism is to be achieved, inter-caste marriages would ultimately go a long way in creating a classless society. The caste is identified as a form of class. Therefore, the object of the sixth appellant in issuing the Government Order is laudable and in accordance with the Constitution. It is also to be noted that the Government order passed by the sixth appellant has also been upheld by the Full Bench of this Hon'ble Court reported in (2003) 1 MLJ 1, M.Arthi (Minor) represented by mother Vs. Sate of Tamilnadu and others.

10. The said concession has been granted by the State Government by virtue of the Government Order in order to give social upliftment to the children born out of the inter-caste marriages. The children born out of the said wedlock form an independent and distinct group of their own. Therefore, unless and until, the said newly emerging group is encouraged the ultimate object of the Constitution and the state cannot be achieved.

11. Further, in the present case on hand as observed earlier, the respondents were born out of the marriage between Backward Class community and Most Backward Class community parents. The children born out of the such marriages have not been considered in the said Government Order and there is no other Government Order governing such children. In Hindu law, a husband and wife are considered as one. After the marriage, a wife is considered as half of the husband and she is a sapinda. Therefore, when the wife becomes part of the husband and husband being the head of the family, the children born between them would partake the community of the husband in the normal circumstances. However, the said children can claim the status of their mother provided that the relevant Government order allows such a claim on the satisfaction of the condition mentioned therein that they have been following the community of the mother. Of course, the question as to whether the children are following the community of the mother or father depends upon the facts of each case to be enquired and decided by the competent authority. It is also to be seen that in the present case, there is no averment in the affidavit filed in support of this writ petition by the respondents that they have been following the community of the mother while she was aliving and even thereafter. Further, as observed above, the Government Order relied on by the respondents does not provide for such a contingency as in the case of the respondents. In the judgment reported in (1996) 3 SCC 545 in the case of VALSAMMA PAUL (MRS) Vs. COCHIN UNIVERSITY AND OTHERS, the Hon'ble Supreme Court has observed as follows:- "16.The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and an opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat. The emphapsis, therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R.Bommai v. Union of India) and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult. In state of Karnataka v. Appa balu Ingale this Court has held in para 34 that judiciary acts as a bastion of the freedom and of the rights of the people. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamless web of life. A Judge must be a juris endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adapt purposive interpretation of the dynamic concepts under the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. Social legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law. In that case, the need for protection of right to take water, under the Civil Rights Protection Act, and the necessity to uphold the constitutional mandate of abolishing untouchability and its practice in any form was emphasised.

17. Usha M.Apte in her The Sacrament of Marriage in Hindu Society from Vedic period to Dharmasastras (1978 Ed.) stated at p.13 that inter-caste marriages were prevalent in the period of Rig Veda. She quoted thus: "Savasva, Kaksivat and Vimada all belonged to Brahmin families but they married daughters of the kings i.e. Ksatriya girls. Even Cyavana married a Ksatriya girl. On the other hand Sasvati i.e. daughter of the saga Angirasa, was married to king Asanga. The king Svanaya Bhavayavya i.e. brother-in-law of Kaksivat was married to Brahmani wife of Angirasa (cf VIII 1.34). Even marriage of Yayati and Devayani (X.63.1) is of the same type i.e. Ksatriya male marrying a Brahmani." From the Brahmanas and the Upanishads, she also quoted at p.41 thus:

"Mahidasa Aitareya was the seer of the Aitareya Brahmana. He was the son of Itara i.e. a mother who was other than a Brahmani. The word can be interpreted also as 'son of Itara'. In this case he would be a child born of extramarital connections."

18. At p.189 she stated that although the Sastrakaras accept the inter-caste marriage of anuloma type, certainly they did not approve of it. To them such marriages led to intermixture of Varnas which could lead to social chaos. She pleaded for simplification of the marriage rights and avoidance of waste of money and material.

19. In Hindu Law of Marriage and Stridhana by G.Banerjee, 2nd Edn., 1896, it has been stated at pp.68-69 that by inter-caste marriages amongh Brahmanas, Kshatriyas, Vaisyas and Sudras, which were allowed in Vedic period, there arose a number of mixed classes, which have been treated in the 10th Chapter of Manu; and further, by a division of the Sudras according to their occupations, there arose a number of sub-castes; such being the nature and origin of caste, the prohibition of inter-marriage applies only with reference to the foru primary castes, and was inapplicable to sub-division of the Sudra caste. Quoting from Pandaiya Telaver v. Puli Telaveri from the judgment of Scotland, C.J., it was concluded that the general law applicable to all classes or tribes does not seem opposed to marriage between individuals of different sects or divisions of the same clas or tribe, and even as regards the marriage between individuals of a different class or tribe, the law appears to be no more than directory. Although it recommends and inculates a marriage with a woman of equal class as a preferable description, yet the marriage of a man with a woman of a lower class or tribe than himself appears not to be an invalid marriage, rendering the issue illegitimate.

20. Dr Paras Diwan in his 2nd Edn. Of Law of Marriage and Divorce stated at p.75 that in inter-sect marriages in anuloma form, a male of superior caste marries a female of inferior caste; and in pratiloma marriage a male of inferior caste marries a female of superior caste. During British Raj, pratiloma marriage came to be considered as invalid and obsolete but anuloma marriage was held valid. Customary inter-caste marriages were held valid. They were performed under Special Marriages Act, 1872. The Arya Marriages Validation Act, 1937 permitted performance of both anuloma and pratiloma marriages under the auspices of the Arya Samaj. Inter-sub-caste marriages were validated under the Hindu Marriage (Removal of disabilities) Act, 1946. The Hindu Marriage Validity Act, 1949 permitted performance of both forms of inter-caste marriages. Under the Hindu Marriage Act, 1955 inter-caste marriages among all castes are valid as under the Act marriage between any two Hindus is a valid one. At p.76 he stated that under muslim law intersect marriages between Muslims belonging to different sects or schools are vlaid. The Christian Marriage Act permitted marriage between Roman Catholics and Protestants. Among Parsis there are no sects or denominations. It would thus be clear that in Hindu social order, the prohibition of inter-caste couple resulted in shunning the inter-caste marriages as a social mobility and resulted in rigidity in social structure. The Hindu Marriage Act has done away with that rigidity and made valid the inter-caste marriages. Section 7-A of the Hindu Marriage Act introduced an amendment in the State of Tamil Nadu providing that marriages made between any two Hindus in any form solemnised in the presence of relatives, friends or other persons in a simplified form are a valid marriage; and by statutory operation of sub-section (2), such marriages held earlier to the commencement of Hindu Marriages (Madras Amendment) Act, 1957 are to be regarded as good and valid in law, doing away with any customary practice or usages to be mandatory. The Tamil Nadu Act 21 of 1957 cam into force with effect from 20.1.1968.

21.The Constitution through its Preamble, Fundamental Rights and Directive Principles created a secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order. Dr K.M. Munshi contended on the floor of the Constituent Assemble that "We want to divorce religion from personal law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole filed of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation"

22. In the onward march of establishing an egalitarian secular social order based on equality and dignity of person, Article 15(1) prohibits discrimination on grounds of religion or caste identitties so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. Indian culture is a product or blend of several strains or elements derived from various sources, in spite of inconsequential variety of forms and types. There is unity of spirit informing Indian culture throughout the ages. It is this underlying unity which is one of the most remarkable everlasting and enduring feature of Indian culture that fosters unity in diversity among different populace. This generates and fosters cordial spirit and toleration that make possible the unity and continuity of Indian traditions. Therefore, it would be the endeavour of everyone to develop several identities which constantly interact and overlap, and prove a meeting point for all members of different religious communities, caste, sections, sub-sections and regions to promote rational approach to life and society and would establish a national composite and cosmopolitan culture and way of life."

Reading of the said judgment would clearly indicate that the community other than that of a father is not a matter of right. The Hon'ble Apex Court has also observed in para 13 of the judgment as follows; "13. In A.S. Sailaja v. Principal, Kurnool Medical College the petitioner, daughter of A.S.Radhakrishna, an advocate of Cuddapah in Andhra Pradesh, had initially appeared for Common Entrance Examination for 1984-85 for admission into Medical College but failed. For the Common Entract Examination for 1985-86 she described herself to be daughter of the natural father Radhakrishna but in the application for admission made on 13.7.1985, she claimed that she was adopted by one B.Sivaramaiah, (Shephered), a Backward Class in Andhra Pradesh and sought admission on that basis. She secured 417 marks out of 600 and when she claimed to be an OBC, but was not given admission, she filed a writ petition in the A.P.High Court for direction to the College to admit her as a Backward Class Group-D. The High Court considered the interplay of adoption under the Hindu Adoption and Maintenance Act, 1956 and the protective discrimination under Article 15(4). It held that the negative endowments of men are by no means equal. The mind of children brought up in culturally, educationally and economically advanced atmosphere is accounted highly they are bound to start the race of life with advantages. It would apparently have its inevitable profound effect on the quality of the child born in that atmosphere. The children born amongs Backward Classes would not start the race of life with the same quality of life. It would, therefore, be necessary to identify the competing interest between diverse sections of society and it is the duty of the Court to strike a balance between competing claims of different interests. Citizens belonging to a group of Backward Classes identified by a appropriate authority or the commission, as a part of that class, fulfilling the traits of socially and educationally backward among that group, would alone be eligible for admission as Backward Class citizens under Article 15(4). In that event, the Court declined to go into the question whether such person is socially or educationally backward which is an exclusive function of the commission/authority appointed under Article 340 of the Constitution. But any person who would attempt, by process of law, and seek to acquire the status of such a Backward Class, should satisfy that he/she suffered the same handicaps or disadvantages due to social educational and cultural backwardness". The said observation would make it clear that a duty is cast upon the person who claims the concession of the status of the parent who was born in Backward Class community by satisfying the authorities that he was born and brought up in a social environment which was educationally, culturally and economically placed in a disadvantageous position. Therefore, in the absence of the same, a certificate from the first respondent is not automatic. That is the reason why a declaration has been insisted by the first respondent and also made as a condition precedent in the Government Order.

12. Hence, on a consideration, the above said legal position and also on the facts of the present case on hand, we are constrained to hold that in as much as the Government Order is not applicable to the respondents, they are not entitled to get a relief sought for in the writ petition. The learned single Judge has merely proceeded that the Government Order is applicable to the respondents which as observed earlier does not apply to the respondents. Therefore, we are constrained to allow the writ appeal filed by the appellants. Accordingly the same is allowed and the order of the learned single Judge is hereby set aside.

13. While allowing the writ appeal, we also note that at the time of passing the Government Order, the division between the Backward Class community and Most Backward Class community was not available. We were also informed on our enquiry by the Special Government Pleader that there is no specific Government Order covering the children born out of the inter-cast marriage between a person belonging to the Backward class community and Most Backward Class community. When the present Government Order covers an inter-caste marriage between a person of Backward Class and Forward Class, then there cannot be any reason for not providing a Government order covering children born out of a person of Backward community and Most backward community. We hope that the Government would consider the said anomaly, objectively and take appropriate steps. We also direct the Registry to mark a copy of the order passed in the writ appeal to the learned Advocate General to forward the same to Government for appropriate action in this regard.

14. The writ appeal is allowed. No costs.

(R.B.I.J.) (M.M.S.J.)

Index: yes/No 01.02.2010

Internet: Yes/No

rkm

R.BANUMATHI, J.

and

M.M.SUNDRESH, J.

rkm

To

1.The Advocate General,

High Court, Madras.

1a. The Tahsildar,

Taluk Office,

Thanjavur.

2.The Sub-Collector (incharge),

Office of the Sub-Collector,

Thanjavur.

3. The Director of Social Welfare

Department, Chepauk,

Chennai.5.

4. The Director of Backward Classes,

Chepauk, Madras.5.

5.The Director of Most Backward Classes,

Chepauk, Madras.5.

6.The Secretary to Government,

Department of Scocial Welfare,

Fort.St.George, Madras.9.

7. The Secretary to Government Department

of Backward Classes Fort.St.George,

Madras.9.

8. The Director,

Director of Technical Education,

Madras.5.

Pre-Delivery Order in

W.A.No.2182 of

G Murali (Querist) 21 October 2011
Dear Sir Many thanks for providing a detailed account of two different and relevant cases , the first one appears to be an attempt to use SC status at a very late stage of MBBS application and the second one is based on the applicability of a GO , which was not explictly mentioning intercaste marriage between BC and MBC . in my query my collegue's case i believe is quite clear and he and his family are still well within ambit of law enjoying benefits for SC esp reservations in education and job . Am i right or what else are the risk he may face . His family is struggling a lot to meet ends and he is now pursuing to write various qualification exams for both state and central govt positions , would be grateful if my doubts are clarified.

Note : I also appreciate this forum and its honourable members for giving valuable feedback to public .I appreciate the sincearity .