Suhas Chandra Sen, J.
1. This is a writ petition by 141 employees of Durgapur Steel Plant, alleging that the respondent No. 8 Smt. Mina Das has wrongfully been promoted to the post of Head Assistant superseding the petitioners by promotion order dated 25th July, 1978. The case of the petitioners is that Smt. Mina Das originally did not belong to schedule caste and joined service as such. While in service Mina Das married a person belonging to the scheduled caste. The petitioner had no access to the personal file of Mina Das and had no means of knowledge at the time when Mina Das was promoted. The case of the petitioners is that the caste of a person is determined by birth and cannot be changed by marriage.
2. The petitioners have also relied strongly on a circular issued by the Ministry of Home Affairs No. 35/1/72 RU (SCTV) dated the 2nd May, 1975. In that circular it was stated:
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.
3. Similarly a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that Scheduled Caste or Scheduled Tribe as the case may be, even after his or her marriage with a person who does not belong to a scheduled caste or a Scheduled Tribe.
This circular has been included in the Brochure on Reservation for scheduled castes and scheduled Tribes in services (sixth Edition) published by Government of India, at page 226.
4. The petitioners' case is that Durgapur Steel Plant was not at liberty to depart from this guide line set down by the Government of India.
5. Moreover, it appears that the Circular appears to be in consonance with the principles of Hindu Law. When a man marries a girl of lower caste or when a man marries a girl of higher caste, the wife does not acquire the husband's caste and children do not acquire the caste of the father. In Mulla's Hindu Law (14th Edition) at page 514, the incidence of mixed marriage has been stated. There it has been categorically stated that when intermarriages were permitted by ancient Hindu Law, children born of mixed marriages were termed Anulomajah. Their caste was neither that of their father nor that of their mother. They belong to an intermediate caste higher than that of their mother and lower than that of their father.
6. This being the position in law, it is difficult to accept the contention made on behalf of the respondents that Smt. Mina Das (respondent No. 8) even though she joined service as a person belonging to a different caste acquired her husband's caste by marriage.
7. Strong reliance was placed on a judgment of Madras High Court in the case of K.S. Ammena Shapir v. State of Tamil Nadu and Ors. 1983 Lab. and IC 1674. There the petitioner had applied for appointment as Tutor in which she annexed certificate to the effect that she had embraced Islam, although she was originally a Hindu. She had married a Muslim and had been accepted by the members of husband's community and she had become a Labbai by marriage. It was argued that the Government had issued order that by marriage alone a person could not be considered as belonging to backward caste and by changing religion the petitioner in this had not become a Labbai Muslim (backward class Muslim) and therefore she was not entitled to get the benefits given to the backward classes. The learned Judge, following the judgment of the Supreme Court in the case of N.E. Horo v. Smt. Jenan Ara Jaipal Singh : 3SCR361 held that the Government order was bad.
8. The point that arises in this case is not exactly similar to the point that had arisen in that case. Although there are same observations in that judgment about the problem, the question is, quite different before us. The short point is, can a member of a higher caste claim to be a scheduled caste by marrying a scheduled caste or a person belonging to the scheduled caste loses her caste by marrying a person of higher caste.
9. In my opinion, in either of the two cases, marriage will not make any difference. The general principles of Hindu Law as well as the circular issued by the Home Ministry really have settled the law. In Jaipal Singh's case (supra) it was decided by the Supreme Court that the question was whether a person who had married a tribal and was accepted by the tribal community, belonging to that community or not. The question of change of caste was not really in issue. What was in issue was whether the person concerned had become a member of the tribe of her husband.
10. In this case it has not been stated whether the marriage between Mina Das and her husband took place according to Hindu rites or otherwise.
11. In my opinion, the petitioners in this case, are entitled to succeed. But there has been inordinate delay in presenting this petition. The petitioner's case is that they are not aware that Mina Das did not really belong to scheduled caste at the time Mina Das was promoted. The only order that can be passed in this case is to direct the respondents not to treat Mina Das as belonging to scheduled caste in making appointment or granting promotions in future. She must not be regarded on higher in grade or rank than the petitioners. Since she has been occupying the present position for a long period, she should not be reverted from this post.
12. Gradation list that will be prepared in future must be prepared in accordance with the directions given above.
13. The writ petition is accordingly disposed of without any order as to costs.
14. Prayer for stay of operation of this order is made. In the facts of the case I do not find any reason to stay operation of the order as prayed for.