Rama Jois, J.
1. In this Writ Petition presented by a lady Teacher on the establishment of the High School under the management of the Hubli-Dharwar Municipal Corporation ('Corporation' for short) seeking for the issue of a direction to the Corporation to consider her case for promotion as Head-Mistress of the High School, the following question of law arises for consideration :
'Whether a woman not belonging to Scheduled Caste by birth can be regarded as belonging to Scheduled Caste for purposes of reservation of posts made by the State in exercise of its power under Clause (4) of Article 16 of the Constitution ?
2. The facts of the case in brief are as follows :
i) The petitioner, by birth was a Christian by religion. She joined service as an Assistant Teacher on the establishment of the Lamington High School(Hubli)on 2-8-1976. Prior to that she had worked for a period of one month from 17-1-1973 to 15-2-1973 as Teacher in St. Joseph's School, Karwar and for a period of 8 months commencing from 12-8-1974 to 10-4-1975 in St. Michael's Convent High School, Karwar.
ii) While continuing on the establishment of the Lamington High School, in the services of the Corporation, she got married to Sri Ravindra H. Kankanawadi, who belongs to Scheduled Caste by birth. The marriage was registered under Section 13 of the Special Marriage Act, 1954, as evidenced by Annexure-A. At the time of marriage, the Petitioner was aged 30 years and her name was K.B. Pinto. After her marriage, she got her name changed to Roopa. Subsequently, she also got converted to Hinduism under the auspices of Arya Samaj on 25 9-1979, as evidenced by the Certificate issued by the Secretary of Arya Samaj, Hubli (Annexure-D). In that Certificate not only it is stated that she got herself converted to Hinduism but also she became a Madar by caste, Madar caste is one of the Scheduled Castes, as specified under the Constitution (Scheduled Castes) Order, 1950. The Petitioner also secured a Certificate dated 28 9-1979 from the Tahsildar, Hubli, to the effect that she belonged to Madar caste, vide Annexure-C. The District Social Welfare Officer, Dharwar, also issued a Certificate dated 26-5-1980 (Annexure-F) to the same effect.
iii) By his Order dated 2-11-1979, the Commissioner of the Corporation also accorded permission to the Petitioner to change her name as Smt. Roopa Ravindra Kankanawadi and caste as Madar caste, vide Annexure-G. Consequently, necessary changes were also made in the entries in the Service Register regarding name and caste of the Petitioner.
iv) When the vacancy of Head Mistress (Principal) of Lamington High School became vacant, the petitioner claimed, on the basis of the Certificates referred to earlier, that she was entitled to be considered for promotion in accordance with the Government Orders relating to reservation of posts, in force which was also applicable to the services of the Corporation. A representation made by the petitioner to the Commissioner of the Corporation dated 9-1-1981 in this behalf is produced as Annexure-L. A further representation was made on 23-3-1981 (Annexure-M).
v) By Order dated 9-4-1981 (Annexure-Q) made by the Corporation, respondents 2 and 3 were promoted as Head Master and Head Mistress of the Lamington High School for Boys and Lamington High School for Girls, respectively. In that order, the claim of the petitioner to be promoted as against a vacancy reserved for Scheduled Caste, was rejected for the reasons set out in paragraphs 7, 8 and 9 of the order. They read :
'(7) In regard to the second aspect relating to the claim Of promotion by virtue of being a member of Scheduled Caste as contemplated in the G.O. dated 27-4-1978, a point of doubt arose as to whether an official who is not a member of S.C. by birth can claim the facilities extended by the Government to the genuine members of the Scheduled Caste (i.e., who belong to S.C. by birth). Clarification was, therefore, sought from the District Social Welfare Officer, Dharwad, on this point.
(8) The District Social Welfare Officer, Dharwad, has in his letter No. DWS/EST/APT/P (KBP) 81, dated 24-2-1981, clarified that an official who is a Christian by birth but who gets converted into Scheduled Caste by virtue of her marriage with a person belonging to Scheduled Caste is not entitled, as per Hindu Law, to claim the various facilities extended to genuine Scheduled Castes. This clarification nullifies the claim of Smt. R.R. Kankanawadi for promotion on the basis of G. O. dated 27-4-1978.
(9) The Hon'ble High Court of Karnataka has, in its various judgments pronounced time and again that in the case of persons who ingeniously convert themselves into Scheduled Caste or any other backward caste by adoption or such other means (e.g., marriage), the facilities.meant for the genuine S.Cs./B.Cs. should not be extended because genuine S.C./B.C. candidates are brought up under great hardship and suffering throughout their career and converted S.Cs. should not usurp these facilities meant for genuine sufferers.'
Aggrieved by the said order, the petitioner has presented this Writ Petition.
3. Statement of Objections has been filed on behalf of the Corporation. The gist of the statement of objections is as follows : The averment that the petitioner, who was a Christian by birth got married to Ravindra Kankanawadi, who belongs to Madar Caste which is a Scheduled Caste, is true. The District Social Welfare Officer to whom the claim of the petitioner was referred, informed by his letter dated 24-2-1981 that the petitioner, who did not belong to Scheduled Caste by birth could rot be treated as belonging to Scheduled Caste and that therefore on re-consideration of the matter the Caste Certificate issued in her favour earlier had been withdrawn. Consequently, the entries made in the Service Register to the effect that the petitioner belonged to Scheduled Caste is rendered invalid. Therefore, the petitioner has no right to claim promotion against the reserved post and that the Corporation has not contravened the orders relating to reservation of posts.
4. Sri G.B. Raikar, Learned Counsel for the Petitioner, contended that the petitioner had become a member of the Scheduled Caste on her marriage with a person who admittedly belonged to Scheduled Caste and therefore she was entitled to claim promotion against a post reserved for members of the Scheduled Caste. In support of the contention the Learned Counsel relied on the Judgment of the Supreme Court in N.E.Horo v. Jahan Ara, : 3SCR361 and submitted that the Supreme Court held in that case that a woman not belonging to 'Tribal Community' on her marriage with a member of 'Tribal Community' became a member of the 'Tribal Community, and consequently she was entitled to contest in an election as against a seat reserved in favour of Scheduled Tribes and on the same principle the Petitioner should be held to have become a member of Scheduled Caste and entitled to the benefit of reservation.
5. The contention of the petitioner was refuted by Sri H.K. Vasudeva Reddy, Learned Counsel for the Corporation, who argued that the ratio of that decision did not support an absolute proposition, that a woman acquires the caste of her husband. Sri R. N. Narasimha Murthy, Learned Advocate General, Sri Mukunda Menon and Sri Ravi varma Kumar, Learned Counsel, on being requested to assist the Court, submitted Learned arguments and I express my thanks to them. The submission made by the Learned Advocate General was as follows : A person becomes a member of the Scheduled Caste only by birth. A person who was originally a member of the Scheduled Caste by birth, who had got himself converted into any other religion even after conversion might or might not continue to be a member of Scheduled Caste. This depends upon facts and circumstances of a case. Even if he did not and if he were to get himself reconverted to Hinduism, he would not automatically become a member of the Scheduled Caste. He could be treated as belonging to Scheduled Caste if only there is evidence to the effect that the members of the caste had re-admitted him to the caste. This position is clear from the decision of the Supreme Court in Armugam v. Rajagopal, : 3SCR82 . In the present case the petitioner was not a Scheduled Caste by birth. She was admittedly a Christian by birth, which religion had no castes. On and after her marriage with a Hindu belonging to Scheduled Caste on 27-3-1978 also, she continued to be a Christian by religion. It is only on 25-9-1979 on her own volition the petitioner got herself converted into Hinduism, as evidenced by the Certificate issued by Arya Samaj. Therefore, all (2) : 3SCR82 that can be said is that the petitioner had become a Hindu. The ratio of the Judgment of the Supreme Court in Horo's case, : 3SCR361 is clearly inapplicable. That was not a case relating to Scheduled Caste at all in the first instance. It was a case of a person not belonging to tribal community becoming a member of that tribal community on marriage with a member of that community which concept is entirely different from the concept of caste. Moreover, in the said case on evidence it was held that the tribal community had accepted Srimathi Jahan Ara Jai Pal Singh as a member of the Tribal Community. Therefore, the claim of the petitioner that she became a member of the Scheduled Caste because of her marriage with a person, who admittedly belonged to Scheduled Caste by birth is untenable. There was also no evidence to the effect that the members of the Madar caste had admitted the petitioner to Madar caste.
6. Sri Menon, Learned Counsel, submitted that the concept of caste was peculiar to Hinduism and it could be acquired only by birth and even the Judgment of the Supreme Court in Rajagopal's case, : 3SCR82 only indicate that a person who originally belonged to Scheduled Caste by birth and who had changed his religion, on re-conversion to Hinduism would revert to his caste provided the members of the caste also accepted him and does not lay down that a person who did not belong to a particular caste by birth would become a member of that caste by his volition and acceptance, by the caste.
7. Sri Ravi varma Kumar, Learned Counsel, submitted that upholding of the claim like the one made by the petitioner might result in deprivation of the benefits to persons who really belong to Scheduled Caste for whose benefit the reservations are provided for. He submitted that the Central Government had clarified that a person does not become a member of the Scheduled Caste on her or bis marriage with a member belonging to Scheduled Caste by birth. He produced a Book entitled 'Preferential Treatment in public Employment and Equality of Opportunity' by Shamsundar Gupta, in which at Appendix 16, the clarification issued by the Government of India has been printed.
8. In the light of enlightening arguments addressed by the Learned Counsel, I shall now proceed to consider the validity of the claim of the petitioner.
i) In Rajagopal's case, : 3SCR82 he was by birth a Adi Dravida, a scheduled caste. He got himself converted into Christianity and later again reconverted to Hinduism red contested the election for a seat reserved for Scheduled Castes and Scheduled Tribes. Armugam questioned the right of Rajagopal to contest for a reserved seat on the ground that on his conversion to Christianity, Rajagopal lost his status as a member of Scheduled Caste and he did not secure that status on his reconversion to Hinduism. Rajagopal's claim was that on his reconversion to Hinduism, he again came back to the fold of Adi Dravida Caste and he was treated as such by the Caste. After referring to the preponderance of the view on the topic expressed in treatises on Hindu law and decisions of the High Courts, claim of Rajagopal was upheld.
ii) The propositions laid down in that case may be summarised thus :
(1) Normally a person belong to a caste by birth.
(2) A Caste, however, has the authority to admit a person not belonging to a Caste, into its fold.
(3) A Hindu belonging to a particular caste on bis conversion into another religion might continue to be a member of bis original caste.
(4) A Hindu belonging to a particular caste, who got himself converted into another religion and got himself reconverted to Hinduism could be regarded as having become a member of his original caste if the caste re-admits him into its fold.
From the propositions it follows, that except in a case where a person belongs to a particular caste by birth, in other cases namely where a person claims to belong to any particular caste under circumstances set out at 2, 3 and 4 aforesaid, it is a matter to be proved by adducing evidence.
9. The Learned Counsel for the petitioner, however, strenuously contends that when a non-Scheduled Caste woman gets herself married to a man belonging to Scheduled Caste, it should be presumed that she was admitted to the membership of the Scheduled Caste and that the fact of such marriage is itself conclusive proof as to the caste of the wife. The Learned Counsel argued that it was unthinkable that the members of the Scheduled Caste would not welcome to their fold a woman belonging to a forward caste or any other religion, who is ready and willing to have a Scheduled Caste man as her husband. Therefore, he argued that the question of acceptance of a woman not belonging to Scheduled Caste as a member of the Scheduled Caste, by the Scheduled Caste does not arise at all and therefore it should be held that the petitioner on her marriage with a person belonging to Scheduled Caste had been accepted as a member of the Scheduled Caste by the Caste and therefore she should be regarded as belonging to Scheduled Caste and entitled to the reservation made for the benefit of the members of the Scheduled Caste.
10. In my opinion, the rival contentions urged give rise to two questions for consideration :
(1) Whether a woman not belonging to Scheduled Caste can be deemed to have become a member of Scheduled Caste on her marriage with a man belonging to Scheduled Caste ?
(2) Even if the answer to the first question is in the affirmative, whether the expression 'Scheduled Caste' used in the reservation order includes such a person ?
11. The answer to the second question depends upon the true scope and effect of Clause (4) of Article 16 and the reservation order made thereunder. Clause (2) of Article 16 prohibits discrimination in the matter of employment under the State, inter alia on grounds only of caste and religion. Clause (4) of Article 16 engrafts an exception to Clause 1 and 2 of Article 16. The said Clause enables the State to reserve posts in the Services under the State, in favour of persons belonging to backward classes, who in the opinion of the State are inadequately represented in the services of the State. Therefore, two conditions precedent for effecting reservation of posts under Clause (4) of Article 16 are :
i) There should be a class of citizens who are identified as backward class, and (ii) Such backward class of citizens must be found to have been inadequately represented in the services of the State. (See Trilokinath v. State of J & K)3. It is significant to note that Clause (4) of Article 16 does not speak of reservation in favour of Scheduled Castes or Scheduled Tribes or any other Castes, but speaks of reservation in favour of 'Backward Classes.' It follows that unless a caste is adjudged by the State as backward class on rational basis and it is also found that such class is inadequately represented in the Services of the State, no reservation can be made in favour of that Caste. Relevant provisions of the Constitution undoubtedly indicates that as Scheduled Castes and Scheduled Tribes were found to be the most backward educationally and socially and were also inadequately represented in the State Services, by the Constituent Assembly, special provisions were considered necessary in the matter of Selection and Election to Public Offices and Legislatures, respectively, in order to ensure equality and do justice, to them. The Constituent Assembly took note of the fact that there were also other classes of citizens who were backward educationally and socially, but required to be identified. It is in this background Clause (4) of Article 16 was introduced. Later the Parliament considered that special provisions in other spheres were also necessary for the upliftment of educationally and socially backward classes of citizens and therefore Clause (4) was added to Article 15, by the first amendment.
12. In the case of Rangachari v. General Manager, S.Rly, : AIR1961Mad35 an argument was advanced to the effect that reservation of posts in favour of Scheduled Caste and Scheduled Tribes were not at all authorised by Clause (4) of Article 16, as it did not expressly provide for reservation in their favour, in contrast with Clause (4) of Article 15, which expressly refers to Scheduled Castes and Scheduled Tribes. The contention was repelled by the Madras High Court. The relevant portion of the Judgment reads :
'No doubt the express reference in Article 16(4) is only to backward classes, with the further requirement, that in the opinion of the State that class for which reservation is made is not adequately represented in the services under the State. That members of the Scheduled Castes and Tribes satisfy that requirement could never really be in issue.
All the special provisions made in the Constitution for promoting the welfare of the members of the Scheduled Castes and Tribes are based on the recognition of the factual position, that they are the most backward among the citizens of India, more backward than other members of what is comprehensively called the backward classes. Article 418 of the Constitution provides for safeguarding the rights guaranteed by the Constitution to the members of the Scheduled Castes and Tribes. The scope of Article 440, however, is permissive, and it obviously applied to backward classes other than Scheduled Castes and Tribes. Article 438(3) directs,
'Under this Article, reference to Scheduled Castes and Scheduled Tribes shall be construed as including reference to such other backward classes as the President may on receipt of the report of a Commission appointed under Clause (1) of Article 440 by an order specify, and also to the Anglo-Indian community.'The reference there is to other backward classes, that is, other classes that are backward besides the Scheduled Castes and Tribes and the Anglo-Indians There is really no basis for any argument, that the members of the Scheduled Castes and Tribes did not belong to backward classes.
(20) The Learned Counsel for the petitioner pointed out that the Constitution itself marked the distinction between backward classes and Scheduled Castes and Tribes. He pointed out that Article 15(4) expressly referred both to the backward classes and Scheduled Castes and Tribes, while Article 16(4) expressly referred only to backward classes. I am unable to accept the argument, that any deliberate exclusion of the members of the Scheduled Castes and Tribes from the scope of Article 16(4) was designed or achieved by the Constitution makers. It should be remembered that Article 435 runs :
'The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. That direction can have no meaning, if the Constitution intended to exclude members of the Scheduled Caste and Tribes from the protection for which Article 16(4) provided. What underlies Article 420(4) is that the special protection which Article 435 was designed to achieve was linked up with Article 16(4), and that the latter provided the Constitutional means to give effect to the direction in Article 435 of the Constitution.'(21) Taking the scheme of the Constitution as a whole, I am clearly of opinion that the expression 'Backward Classes' in Article 16(4) includes members of the Scheduled Castes and Scheduled Tribes.
(22) What Article 16(4) authorises is a reservation of appointments and posts in favour of members of the backward classes, which includes as 1 have pointed out above, Scheduled Castes and Scheduled Tribes.'
(Underlined by me)
13. Indeed there can be no doubt that the words 'Backward Classes' in Article 16(4) and the words educationally and socially Backward Classes and Scheduled Castes and Scheduled Tribes used in Article 15(4) mean one and the same.
14. In the case of Devadasan v. Union of India, : (1965)IILLJ560SC repelling the contention that reservation of posts in favour of Scheduled Castes and Scheduled Tribes would be violative of Articles 14 and 16(1), the Supreme Court said thus :
'(12) It is an accepted fact that members of the Scheduled Castes and Tribes are by and large backward in comparison with other communities in the country. This is the result of historical causes with which it is not necessary for us to deal here. The fact, however, remains that they are backward and the purpose of Article 16(4) is to ensure that such people, because of their backwardness should not be unduly handicapped in the matter of securing employment in the various services of the State. This provision, therefore, contemplates reservation of appointments or posts in favour of backward classes who are not adequately represented in the services under the State. Where, therefore, the State makes a rule providing for the reservation of appointments and posts for such backward classes it cannot be said to have violated Article 14, merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or even more meritorious than the members of the backward classes, or merely because such reservation is not made in every kind of service under the State. Where the object of a rule is to make reasonable allowance for the backwardness of members of a class by reserving certain proportion of appointments for them in the public services of the State what the State would in fact be doing would be to provide the members of backward classes with an opportunity equal to that of the members of the more advanced classes in the matter of appointments to public services.'
15. Thus, it may be seen that Scheduled Castes and Scheduled Tribes fall within the meaning of the words 'Backward Classes' used in Article 16(4) because of their backwardness educationally and socially and reservation in their favour is not solely on the ground of Caste. The position would be the same in respect of other Castes if they are regarded as backward classes.
16. The State Government has made the Order dated 4th March 1977 in exercise of its powers under Clause (4) of Article 16. The relevant portion of that Order reads :
'In the Government Order dated 9th July 1975, orders were issued in supersession of all the earlier orders for making reservations in appointments and posts in the State Civil Services for Scheduled Castes, Scheduled Tribes and other backward classes of citizens not adequately represented in the State Civil Services. In the Government Order dated 22nd February 1977 Government, after considering the recommendations of the Backward Classes Commission, have determined under Article 16(4) of the Constitution of India the backward classes of citizens who are not adequately represented in the State Civil Services and have directed that reservations in appointments and posts shall be made for these classes to the extent indicated in that order. These reservations will be in addition to the reservations of 15 per cent for Scheduled Castes and 3 per cent for Scheduled Tribes.'
2. Accordingly, Government are pleased to direct that reservations in appointments and posts in the State Civil Services shall be made for the following classes of citizens to the extent indicated against them :
I. (1) Scheduled Castes, as defined in the Constitution ofIndia. 15 %
(2) Scheduled Tribes, as defined in the Constitution ofIndia. 3 % '
(Underlined by me)
17. Article 441 and 342 of the Constitution reads :
'341. Scheduled Castes: (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
342. Scheduled Tribes : (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.'
18. It is in exercise of the powers under these Articles, the President promulgated the Constitution (Scheduled Cases) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, which are, subject to the amendments made to it by the Act of Parliament, are continuing in force. There is no dispute that Madar Caste to which the husband of the petitioner belongs is one of the Scheduled Castes. Similarly, there is no dispute that the petitioner did not belong to Scheduled Caste, but claims that she must be regarded as having become a member of Scheduled Caste as a result of her marriage with a man belonging to Scheduled Caste. It follows, that admittedly till 30 years at which age the petitioner married a man belonging to Scheduled Caste, she did not belong to backward class. Can she be regarded as belonging to backward class from the date of her marriage with a man belonging to Scheduled Caste, even assuming that she is deemed to have got into the caste of her husband, is the crucial question for consideration.
19. If we bear in mind, the intention, the reason and purpose of according reservation of posts in favour of Scheduled Castes, answer to the question arising becomes obvious. How can a person who was not a member of a Scheduled Caste by birth until marriage and therefore did not belong to backward class at all, can all of a sudden be regarded as backward class just because her husband belongs to Scheduled Caste. When a woman belonging to any other caste or to any other religion marries a person belonging to Scheduled Caste, all that can be said is there is an inter-caste or inter-religion marriage. By that process, a person who belonged to forward class does not become a member of the backward class. Such person does not answer both the tests prescribed under Article 16(4). First, she does not belong to backward class and secondly she does not also belong to a class of person who are inadequately represented in the services of the State. Similarly, take a converse case. Suppose a woman belonging to Scheduled Caste by birth marries a man of another Caste which is not one of the Scheduled Castes. If the argument of the petitioner's Counsel is correct, she would enter the caste of her husband, and would be deprived of the benefit of reservation. I do not agree that a person who is by birth a Scheduled Caste and therefore belong to backward class stands deprived of the benefit of reservation just because she marries a man belonging to another Caste which is not one of the Scheduled Castes.
20. The ratio of the decision of this Court in K. Shantha Kumar v. State of Mysore, 1971 (1) Mys. L.J. 21 in which the claim of a person who did not by birth belong to a backward class family. who claimed that he belonged to backward class, on his adoption to a family belonging to backward class is apposite. Relevant part of the judgment reads :
'The rationale of the reservation for socially and educationally backward classes, under Article 15(4) of the Constitution, is that the environmental conditions of persons belonging to such Backward Classes, are not conducive to social and educational progress, but contribute for social and educational backwardness.
The petitioner whose natural father is a Supervisor in the Office of the National Extension Service, did not suffer from any environmental disadvantage till he was given in adoption at about the age of 16 years. But the environmental conditions of his upbringing for 3 years by his adoptive father who may belong to socially and educationally backward Backward Classes, cannot be said to destroy or nullify the advantage of the environmental conditions of his upbringing for about 16 years by his natural parents before he was given in adoption. Whatever may be the position in regard to a boy who has been given in adoption at a comparatively early age like 4 or 5 years, in the case of the petitioner who is stated to have been given in adoption when be was about 16 years of age, and had all the while imbibed the better environmental advantage of his natural father's income and occupation it is not reasonable to hold that the income and occupation of his adoptive father and not those of his natural father that should determine whether he (the petitioner) belongs to socially and educationally Backward Classes. Any other view will lead to defeating the very purpose of reservation for such Backward Classes, by the device of adoption just before the time of applying for admission to technical and professional colleges and institutions, and thereby the benefit and protection to the classes of persons who really suffer from environmental disadvantages, will be whittled down.'
21. The above view was reiterated in the case of N.M. Nataraja v. Selection Committee,1972(1) Mys. L.J. 226 and in the case of Tarakeshwari v. State of Karnataka, W.P. 15375 of 1980 DD. 22-9-1980. Again the question was raised in the case of Srinivas v. Chairman, Selection Committee, 1981(1) Kar. L.J. 114 and was rejected. Relevant part of that Judgment reads :
'6. 'Sub-rule (3) of Rule 5 only provides that in cases where adoption of a member from one caste or tribe or community shall not be recognised. The rule is silent on the question as to whether a person, who all along belonged to the forward class, applying the very criteria prescribed in the order of the State Government made under Clause (4) of Article 15 of the Constitution, could claim to have become a person belonging to educationally and socially backward class by the device of adoption. In that view, a person, who all along did not belong to socially and educationally backward class cannot by going in adoption to a family whose income is less than Rs. 10,000 claim to have become backward. Therefore, the petitioner cannot compare his case with that of the 2nd Respondent, who really belonged to backward class on the basis of the Government Order.
XX XX XX XX 8. As stated earlier, the question is concluded by the earlier two decisions. But the Learned Counsel for the petitioner, however, relied on the decision of the Supreme Court in Principal, Guntur Medical College v. Mohan Rao : 3SCR1046 . In my opinion, the ratio of the said decision is not apposite to the facts of this case. In the said case, the question for consideration was whether a person, who originally belonged to scheduled caste and who had got himself converted to Christianity, could again come back to Hindu-fold and claim that he belongs to scheduled caste. The Supreme Court observed that a person in such a position could get himself converted into Hinduism and he could claim to belong to scheduled caste on the relevant date provided the members of the caste had accepted and admitted him to the caste. It is in that context, the Supreme Court observed that the status of a person has to be determined on the date relevant for consideration. The facts of this case are entirely different. The petitioner did not belong to a family which was identified by the State as belonging to the backward class. He had all the environmental advantages of a socially forward family for a substantial portion of his educational career and if the date of registration of adoption deed is taken into account, he was in the family belonging to forward class till the year 1979. Therefore, on account of adoption, the petitioner, who belonged to socially and educationally forward class, cannot be held to have been converted into that of a socially and educationally backward class. Therefore, even on the date when he applied for M.B.B.S., Course, taking into account the advantages he had in the family of his birth during the period when he was studying in the schools and the college, he could not be considered as belonging to educationally and socially backward class and, therefore, he had no right to claim selection and admission against the seats reserved in favour of the backward communities.
(9) Learned Counsel for the petitioner next relied on the decision of the Supreme Court in Sita Bai v. Rama Chandra : 2SCR1 . The ratio of the said decision is that adoption of a person from one family to another, brings about severance of membership in the family of his birth and he becomes a member of the adoptive father. The said ratio is also not applicable to the facts of the case. Here the question for consideration is not the right to inheritance of an adopted son but the question is as to whether the petitioner, who did not belong to backward class became backward because of the adoption. By the device of adoption he no doubt ceases to be a member of the family of his birth and becomes a member of the family of adoptive father, but the fact remains that throughout his educational career prior to the date of his application before the selection committee, he did not belong to the educationally and socially backward class and by adoption his educational and social status did not get reduced and he did not become a person belonging to educationally and socially backward class. In the circumstances, I do not find any substance in the contention urged for the petitioner.'
22. For these reasons, the correct view to take is the word 'Scheduled Castes' used in the reservation order only covers persons who are Scheduled Caste by birth, and who are found to be the most backward classes of citizens and does not include a woman of forward class, who becomes the wife of a man belonging to Scheduled Caste by birth.
23. The said interpretation also receives support from the Circular issued by the Home Ministry of the Central Government, vide Circular dated 2-5-1975 printed at page 206 of the compilation of Shamsundar Gupta referred to earlier. The relevant portion reads :
'(3) Claims through marriage : The guiding principle is that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe.'
By the above Circular, the Central Government charged with the responsibility of implementing the policy of reservation of posts under Clause (4) of Article 16 has taken the view that a person who does not belong to Scheduled Caste by birth cannot claim to belong to Scheduled Caste only on account of his or her marriage with a person belonging to Scheduled Caste. It is well settled that an interpretation by the Department or Agency charged with the responsibility of implementing a statutory provision is also a good guide for interpretation. On this aspect, the Supreme Court in K.P. Verghese v. I. T. Officer, : 131ITR597(SC) said thus :
'The rule of construction by reference to contemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly and felicitously expressed in Crawford on Statutory Construction (1940 ed) where it is stated in para 219 that 'administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned ; such a construction, commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight ; it is highly persuasive.' The validity of this rule was also recognised in Baleshwar Bagarti v. Bhagirathi Dass, (1908 ILR 35 Cal. 701 where Mookerjee, J. stated the rule in these terms :
'It is a well-settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe execute and apply it.' and this statement of the rule was quoted with approval of this Court in Deshbandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd, : 3SCR373 . It is clear from these two Circulars the Central Board of Direct Taxes, which is the highest authority entrusted with the execution of the provisions of the Act, understood Sub-section (2) as limited to cases where the consideration for the transfer has been understated by the assesses and this must be regarded as a strong circumstance supporting the construction which we are placing on that sub-section'
(Underlined by me)
The Delhi High Court in the case of Urmila Ginda v. Union of India, : AIR1975Delhi115 has taken a similar view with which I respectfully agree. The Learned Counsel for the petitioner, however, placed reliance on the Judgment of the Delhi High Court in Khajan Singh v. Union of India, AIR 1980 Delhi 60 That was a claim based on adoption. The Delhi High Court held that on the adoption of a person not belonging to Scheduled Caste by a person belonging to the Scheduled Caste, the adoptee became a member of the Scheduled Caste and entitled to the benefit of reservation. The above decision is contrary to the ratio in the four decisions of this Court referred to above. Therefore, that decision is of no assistance to the petitioner. In the result, I hold that the expression Scheduled Caste used in the reservation order, does not include the wife of a man belonging to Scheduled Caste, who did not belong to Scheduled Caste by birth and she cannot be regarded as belonging to backward class, and therefore the petitioner is not entitled to be promoted against a post reserved for backward class which in the present case is Scheduled Caste.
24. In view of my decision on the second question as above, opinion on the first question, namely, as to whether a woman not belonging to scheduled caste, on her marriage with a man belonging to scheduled caste and/or if the scheduled caste were to admit her to the scheduled caste, she becomes a member of the scheduled caste becomes immaterial. However, as the question has been seriously argued for considerable length of time, I would like to express my opinion on this question also.
25. It is well known, that the concepts of religion and caste are different. As far as religion is concerned, it is a matter of one's faith. Though normally a person can be regarded as belonging to the religion of his/her parents, it is open to him/her to change his/her religion. Which religion one should profess or whether one should profess any religion at all, is purely left to one's volition. A person belonging to one religion at any time can choose to get himself/herself converted into another religion, whatever be his/her motive, just as a person belonging to a political party professing a particular political faith is at liberty to change his political faith or party at any time, according to his volition. But caste or 'jati' is a peculiar classification which came into existence in the Hindu society at some point of time in its long meandering course. Neither the innumerable castes and sub castes nor even the four varnas were existence in the most ancient period. Some time later, the society came to be divided into four varnas on functional basis. Still later the society got divided into innumerable castes and sub castes. (See History of Dharmasastra, Vol. II, Part I by Padmashri P. V. Kane - (1941) pp 19 104 at pp 25-48). Regarding the characterstics of castes, the Learned author says -
'In most of the works on the castes in India a few features are pointed out as the characteristics of the caste system and as common to all castes and sub castes. They are ; (1) heredity i.e. in theory a man is assigned to a particular caste by birth in that caste ; (2) endogamy and exogamy i. e., restriction as to marrying in the same caste and not marrying certain relatives or other persons, though of the same caste ; (3) restrictions as to food (i.e. what food and water may be taken or not taken and from whom) ; (4) occupation (i e. members of most castes follow certain occupations and no others) ; (5) gradation of castes, some being at the top in the social scale and others being deemed to be so low that they are untouchable. Some authors like Smart add another characteristic viz., the caste council with its chief having in meeting assembled among other matters the power to regulate the conduct of its members, to impose the penalties of fine or excommunication for lapses. It may be said at once that this last is a feature that is not found among most of the brahmana and ksatriya castes even in modern times and is not dealt with by dharmasastra works. Endogamy is now the most prominent characteristic of caste and so is the theory that it is by birth. The other three are more or less fluctuating from province to province and age to age.
xx xx xx xx In the twentieth century caste in India is a matter of marriage and to a much lesser extent of food and drink.
xx xx xx xx The old barriers that separated one caste or subcaste from another have been greatly shaken by the influx of modern, ideas and the exigencies of the times and one may hope that in a few decades more caste will remain as a purely social institution regulating marriages and to a lesser extent commensality (and not a religious one).'
Thus the basis of recognising a person as belonging to a caste was heredity. But it appears that a custom or usage came into force according to which a caste could admit a person not belonging to it by birth to its fold, as pointed out by the Supreme Court in Rajagopal's case, : 3SCR82 . This means admission by the caste is a condition precedent for a person not belonging to that caste, to be treated as a member of that caste. It follows that a caste could admit or refuse to admit a person into its fold. But all this, in my opinion, is past history, as it is a matter of common knowledge, that caste panchayats have become extinct or at any rate ineffective in villages and are not in existence in towns and cities, therefore, has no relevance to the Hindu society as it exists to-day and more so after the commencement of the Constitution.
26. The Constitution, as the Preamble indicates, is a Secular Democratic Constitution. It is given by the people of India to themselves. The word 'PEOPLE' used in the Preamble to the Constitution includes all citizens of this country and they constitute the Nation or PEOPLE of this country. Equality to all citizens of this country is guaranteed by Articles 14, 15 and 16 of the Constitution and in particular Articles 15(1) and 16(2) expressly prohibit discrimination on the basis of caste, religion, sex etc. Article 17 has abolished the vice of untouchability, which was a slur on the Hindu Society. Thus, the aim of the Constitution is to recognise and treat the people of this Country as one indivisible whole. This, however, is subject to the freedom and right of every citizen, to practice any religion of his choice as he has the liberty of thought, belief, faith and worship as indicated in the Preamble and as guaranteed by Article 25. Subject to this right, citizens of this Country constitute one unit.
27. As stated earlier, it is no doubt true that the Hindu Society though constituted one unit in view of Dharmic and Cultural bondage, it was divided into innumerable castes and sub-castes some of them claiming to be superior to others. While in the earlier period there was strict observance of castes and sub castes regarding marriage, food and avocation, of late and even prior to the commencement of the Constitution, it was in practice only in the matter of marriage and adoption and all the other aspects of it, namely, common avocation, not taking of food from persons belonging to another caste had been given up by majority of the people with the exception of a few orthodox individuals. The Freedom movement in which the people as a whole participated also brought the feeling of oneness in the society. It was realised that castes and sub-castes amongst Hindus were a divisive force and gradation of castes was abhorrent to the concept of equality before law which was made the corner stone of the Constitution. Consistent with the spirit of the Constitution, shortly after its commencement, revolutionary steps were undertaken to purge casteism from the Hindu Society by legislation. The Hindu Marriage Act 1955, The Hindu Succession Act, 1956 and The Hindu Adoption and Maintenance Act, 1957 are the most important of these.
28. According to Section 5 of the Hindu Marriage Act, a marriage between two Hindus (irrespective of the caste to which they belonged according to the earlier social set up) is valid. This is subject only to the other restrictions namely, prohibited degree of relationship for marriage which has nothing to do with the caste as such. Similarly, the Hindu Succession Act has superseded the ancient Hindu Law regarding intestate succession. The caste consideration in the matter of right to succession, which existed under the old law is no longer in force. Similarly the old law which did not create any right in favour of daughters in respect of their father's estate and in favour of a wife in respect of the property of her husband is also superseded. Under that Act, both married and unmarried daughters and the widow are entitled to equal share along with the sons in the properties of a deceased Hindu in case of intestate succession. To this extent the Hindu Law on joint family property has been amended. The resultant position is that even if a Hindu (belonging to a particular caste, according to earlier social set up) marries a person belonging to another caste albeit a caste which was regarded as lower or the lowest earlier, he or she would not lose the right of inheritance to the estate of his or her father, as the case may be. The Hindu Adoption and Maintenance Act has also wiped out the earlier law on adoption and has provided for adoption of any Hindu child belonging to any caste, by a Hindu, male or female, subject only to other qualifications prescribed under the provisions incorporated in Chapter II of the Act.
29. In the face of these revolutionary changes brought about which is consistent with the spirit of the Constitution and which regards the Hindu Society as a homogeneous group, the question whether a woman belonging to a particular caste would acquire the caste of her husband after marriage or not, does not arise at all. Both being Hindus before marriage, they would continue to be Hindus after marriage.
Thus consideration of caste, in the matter of marriage, inheritance and adoption, which had evolved into law, through custom and usages and incorporated in the Sastras, have been superseded by the Constitution and the laws, and that is the Dharma in force which every one should obey in letter and spirit. Therefore not to think in terms of caste or sub-caste in all matters, affecting National life, is a must in national interest.
30. One of the submissions of the Learned Counsel for the petitioner was that the upholding of the claim of the petitioner would be helpful to encourage inter caste marriages and particularly as between members of non-scheduled caste with scheduled caste and thereby ensure to achieve a casteless society. I fail to see why a lady belonging to a forward caste, who marries a person belonging to a scheduled caste, should also be regarded as having become a member of scheduled caste and how it would help integration In fact such approach really defeats the object and purpose of integration, but would perpetuate casteism. One might pertinently ask, why such a son-in-law who belonged to scheduled caste should not be regarded as having been admitted to the caste of his father-in-law Is it not more conducive to integration of the society ?
31. Secondly, in the face of the provisions of the Constitution and the laws, can it still be said that a caste has the right to refuse to recognise an inter-caste marriage or to excommunicate a person on the ground that he or she married a woman or man, as the case may be, belonging to another caste which it considers lower, or that he or she took food from a person belonging to lower caste? Certainly not. Even if a caste does it, what is its effect Nothing. Further take a case where a man or woman who was not a Hindu earlier gets converted to Hinduism, what would be his caste? He would be a casteless Hindu. In fact the object, purpose and the effect of the three laws are to treat the Hindu Society as one unit i.e., casteless. In the present case also, the petitioner who was a Christian got converted to Hinduism. Therefore she became a casteless Hindu. The certificate of conversion given by 'Arya Samaj' no doubt says that the petitioner not only got converted into Hinduism, but also to Madar caste. I fail to appreciate the propriety of that part of the certificate and the authority of Arya Samaj to say so. It has no validity.
32. It is true that in declaring who are educationally and socially backward classes, the caste or sub caste to which a person or his parents belonged may be one of the relevant considerations. This is because of historical reasons, namely, the pre-existing social set up which had brought about social inequalities on account of caste gradation or hierarchy. Beyond this caste has no place at all.
33. For these reasons, it appears to me the question of change of caste, on marriage of two persons professing Hindu faith, who might have belonged to two separate castes according to the earlier social set up does not arise. Similarly, even in the case of marriage of two persons belonging to two different religions, it is not correct to say that the wife has acquired the religion of the husband or vice versa. To say, wife acquires the religion of her husband would amount to the denial of the fundamental right to profess and practise any religion guaranteed under Article 25 of the Constitution to a woman. Therefore in the absence of any voluntary conversion prior to or after marriage, each person is entitled to continue to remain in the same religion to which he or she belonged. A question as to the religion of their children might arise. But that would depend upon how they are brought up and ultimately it would depend upon the volition of the children themselves after they attain the age of majority. In the circumstances, I am unable to agree that a woman on marriage must be regarded as belonging to the caste of her husband. Hence I answer the first question also against the petitioner.
For the aforesaid reasons, I answer the question set out first in the negative. In the result, I make the following order :
(i) Rule discharged.
(ii) Writ Petition dismissed.
(iii) No costs.