JUDGMENT

M. Karpaga Vinayagam, C.J.

Page 2392

1. In both these petitions, following common questions have arisen for consideration:

(1) Whether a Tribal lady, who got married with non-tribal husband, may continue to get reservation under Articles 15 & 16 of the Constitution ?

(2) Whether the admission of Sneha Salila, respondent No. 6, in the medical college in M.B.B.S course, whose father was not a member of Scheduled Tribe community, is liable to be cancelled and the petitioner, who is a daughter of the Tribal couple, is entitled to the said seat in M.B.B.S course ?

2. The short facts leading to filing of this writ petition are as follows:

Savita Bala Tuti, the petitioner, was born in Ranchi on 12.2.1986. She studied in Loreto Convent, Ranchi, a very reputed school, and passed the School Final with high first class in I.C.S.E. in 2002. The petitioner's father, Jagpati Tuti, belongs to a very interior village of Khunti, Ranchi District. He belongs to Munda community, Scheduled Tribe. Similarly, petitioner's mother, Sashi Bala Tuti, Munda, also belongs to the same Munda community. The petitioner is born and brought up in Patra Toli, Namkom, Khijri. Since the petitioner belongs to Khunti originally due to her father's native place, she sought the Caste Certificate and Residence Certificate from the Welfare Department. Accordingly, S.D.O, Khunti, issued a Residence Certificate as well as Caste Certificate showing the petitioner as a Member of Munda, Scheduled Tribe Community. The petitioner, after passing the Intermediate Course from St. Xavier's School, Ranchi, appeared in the Jharkhand Combined Entrance Competitive Examination, 2006. She passed preliminary Examination and thereafter she was allowed to appear in the Main Examination. In that Main Examination also, she passed. Then she was asked to appear before the Counseling Board. Accordingly she appeared and showed the certificates. Though she could not compete on the basis of her marks obtained Page 2393 as a General Candidate for admission in M.B.B.S Course, she became eligible for admission in the M.B.B.S Course as a candidate of reserved/privileged Scheduled Tribe community. From Serial No. 1 to 44, admissions had been given to M.B.B.S Course. Petitioner's name appeared after 44^th candidate, i.e. at serial No.

45.

At that point of time, she came to know that 6^th respondent, Sneh Salila, obtained a Caste Certificate from Gumla to the effect that she belongs to Scheduled Tribe community and on that basis she was given admission in 1^st Year M.B.B.S Course in R.I.M.S, Ranchi, by entering her name within serial No. 1 to 44. Admission was given only on the basis of the said certificate, but the said certificate was a fake certificate since her father and mother are belonging to different communities. The mother of the 6^th respondent alone belongs to Scheduled Tribe and admittedly her father belongs to Scheduled Caste. The fake certificate of that kind was issued only on the basis of the fact that the mother belongs to Scheduled Tribe. Therefore, she gave the protest petition to S.D.O., Gumla, for cancellation of the Caste Certificate of the 6^th respondent. The members of the Scheduled Tribe have been given 26% reservation in Jharkhand in the matter of admission in the educational institutions. 19 seats have been allotted to the Scheduled Tribes Community in R.I.M.S and 6^th respondent was treated as the 19^th candidate. Since the petitioner had fallen at serial No. 45, she was not given M.B.B.S course. On the other hand, she was sent to the Dental Medical College, Patna.

It was claimed in the protest petition that the caste shall be determined on the basis of the father's caste and not on the basis of the caste of the mother. Since father of the respondent No. 6 belongs to another State and he does not belong to Scheduled Tribe, respondent No. 6 cannot be given admission on the basis of fake certificate and on the other hand, the petitioner is entitled for admission as she belongs to this State and she is the daughter of a tribal couple. However, the protest petition was rejected. Under those circumstances, she was constrained to file this writ petition seeking for the direction to cancel the admission of respondent No. 6 on the basis of fake certificate and in her place she may be allowed to be admitted in M.B.B.S course.

3. The gist of the submissions made by the counsel for the petitioners in the writ petitions is as follows

Sneh Salila, 6^th respondent, has been issued the certificate by the S.D.O stating that she belongs to Scheduled Tribe community. It is a fake certificate issued to her. It has been clearly established that the father of 6^th respondent belongs to another State and does not belong to Jharkhand State. Similarly, it is not disputed that the 6^th respondent's father did not belong to Scheduled Tribe, but the certificate is issued to the 6^th respondent on the basis of the certificate issued to the effect that her mother belonged to Oraon community. The fake community certificate was issued in favour of the 6^th respondent that she belongs to Scheduled Tribe. The members of the community have been classified as Scheduled Tribe, Scheduled Caste and backward. The members of the Scheduled Tribe have been given 26% reservation in Jharkhand in the matter of admission in the educational institutions. The members of the Scheduled Caste have been given 10% reservation. The basis of the determination of minority community or a caste is the State only and not the Page 2394 entire nation. The father of the 6^th respondent is admittedly not a member of the Scheduled Tribe, nor does he belong to Jharkhand State. On the other hand, admittedly petitioner's father and mother both belonged to Scheduled Tribe and both belonged to Jharkhand State. As per the reservation, which is 26% for Scheduled Tribe, the petitioner is entitled to get the seat. On the other hand, 6^th respondent obtained a seat in 26% reserved seat on the basis of fake certificate that she belonged to Scheduled Tribe. Therefore, the admission given to 6^th respondent is to be cancelled and in that place, the petitioner, who was born to the tribal couple, is to be admitted.

4. The entire argument made by the counsel for the petitioner is on the strength of the recent judgment of the Supreme Court in Anjan Kumar v. Union of India and Ors. 2006 AIR SCW 888.

5. Arguing contra, counsel for the 6^th respondent would make the following submissions:

6^th respondent is admittedly a daughter of non-tribal scheduled caste father and Tribal mother and allotment of seat in RIMS has been made as per the caste certificate issued by the S.D.O in proper format. When objection was made by the petitioner through her protest petition, the matter was enquired by the S.D.O and after enquiry, S.D.O, certified that the certificate is true and genuine. As per the latest enquiry made by the S.D.O, Gumla, it is revealed in enquiry that the mother of the respondent No. 6 is a tribal and the father is a Scheduled Caste and, however, the marriage of the father and mother was performed under the rituals and customs of the tribal communities and in presence of the elders of tribal community and the marriage was accepted by the tribal community and the marriage was also registered in village marriage register kept in the Church. The aforesaid enquiry has been made in terms of the judgment in V.V. Giri v. D.S. Dora AIR 1958 SC 1318. As per the circular issued by the Government, when a person, who is non-tribal, married to Tribal lady, then their children's caste will be tribal, if the community accepts the same. Hence, the relief sought by the petitioner is liable to be rejected

6. On behalf of the Government also, submission was made in support of the contention of the respondent No. 6.

We have heard and carefully considered the same.

7. In our view, the question raised in this case is no more res integra. A careful perusal of the judgment (Anjan Kumar case) reported in 2006 AIR SCW 888 (supra) would clearly indicate that the same issue has already been decided. As a matter of fact, a specific issue similar to it raised in this petition has been raised in the above judgment by framing the following question:

The sole question calls for determination in this appeal is, as to whether the offshoot of the tribal woman married to non-tribal husband could claim status of Scheduled Tribe and on the basis of which the Scheduled Tribe certificate could be given.

8. The matter was argued before the Supreme Court at length. The main argument made before the Supreme Court was that since the marriage of the mother of the appellant, scheduled tribe, and the father of the appellant, Kayastha, (non-tribal) has been approved and accepted by the tribal community of the village and the Page 2395 father has been transmitted into the Tribal community, the appellant was entitled to Scheduled Tribe certificate which was correctly granted and therefore, the children of the husband, non-scheduled tribe, and mother, scheduled tribe, are entitled to the benefits of Scheduled Tribe on the basis of the circulars issued by the respective Governments. This argument has been rejected by the Supreme Court holding that the condition precedent for a person to be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, both the husband and wife must belong to a tribe and both must have suffered disabilities wherefrom they belong.

9. However, the counsel for the respondent tried to distinguish the said judgment on the ground that in Anjan Kumar's case, it was a marriage between Tribal lady and Forward Class husband, but here it is a marriage between Scheduled Caste father and Scheduled Tribe mother and the said marriage has been accepted by the tribal community in compliance with the requirement as contemplated in the circulars issued by the Governments.

10. This argument does not deserve acceptance in view of the fact that the specific ratio decided by the Supreme Court by answering the question to the effect that the off-shoots of the Tribal woman married to a non-tribal husband cannot claim the status of Scheduled Tribe. Of course, the husband may belong to Scheduled Caste but admittedly he is a non-tribal husband and woman is a tribal woman. Therefore, Anjan Kumar case squarely applies to this case. We cannot also accept the submission made on behalf of the respondents with reference to the circulars for the reason that the Supreme Court itself has rejected the above submission. The relevant observations are as follows:

5. It is contended by Mr. M.N. Krishnamani, learned senior counsel that the enquiry officer conducted the enquiry behind the back of the appellant and, therefore, the learned single Judge as well as the Division Bench erred in law dismissing the petition/appeal by placing reliance on the enquiry report and the material collected during the course of the enquiry. He further contended that the marriage of mother of the appellant (Scheduled Tribe) and the father of the appellant (Kayastha) has been approved and accepted by the community of the village and the appellant has been transplanted into the Tribal community and, therefore, he was entitled to the Scheduled Tribe certificate which was correctly granted. In this connection, he has referred to a Circular dated 4^th March, 1975 issued by the Government of India, Ministry of Home Affairs on the subject 'Status of children belonging to the couple one of whom belongs to Scheduled Castes/Scheduled Tribes'. He particularly referred to the portion when a Scheduled Tribe woman marries a non-Scheduled Tribe man, the children from such marriage may be treated as members of the Scheduled Tribe community, if the marriage is accepted by the community and the children are treated as members of their own community. Such Circulars issued from time to time, being not law within the meaning of Article 13 of the Constitution of India, it would be of no assistance to the appellant on the face of the Constitutional provisions. Further, the facts of this case are, however, different with the facts in which the circular was sought to be clarified.

8. The 'tribe' has been characterized by Dr. Gupta, Jai Prakash in The Customary Laws of the Munda & the Oraon quoted by this Court in State of Kerala v. Chandramohanan at 432 as under:

Page 2396

Tribe has been defined as a social group of a simple kind, the members of which speak common dialect, have a single government and act together for such common purposes as warfare. Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common descent. Tribes are usually composed of a number of local communities e.g. bands, villages or neighbourhoods and are often aggregated in clusters of a higher order called nations. The term is seldom applied to societies that have achieved a strictly territorial organization in large States but is usually confined to groups whose unity is based primarily upon a sense of extended kinship ties though it is no longer used for kin groups in the strict sense, such as clans

10. In Kumari Madhuri Patil v. Addl. Commnr., Tribunal Development , this Court denounced the practice of persons

claiming benefits conferred on STs by producing fake, false and fraudulent certificates:

13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate.

11. Similar view was reiterated in Director of Tribal Welfare, Govt. of A.P. v. Leveti Giri . In the case of Punit Rai v. Dinesh Chaudhary , this Court at page 221 in

para 39 observed as under:

39. A person in fact not belonging to the Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on the Constitution. No court of law can encourage commission of such fraud.

11. The Supreme Court in various decisions would elaborately deal with the back ground of the tribal people who suffered various disabilities in the various areas. Some of the observations are given below. In (State of Kerala v. Chandramohanan), the Supreme Court observes:

Tribe has been defined as a social group of a simple kind, the members of which speak common dialect, have a single government and act together for such common purposes as warfare. Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and tradition of common descent. Tribes are usually composed of a number of local communities, e.g. bands, villages or neighbourhoods and are often aggregated in clusters of higher order called nations. The term is seldom applied to societies that have achieved a strictly territorial organization in large States but is usually confined to groups whose unity is based primarily upon a sense Page 2397 of extended kinship ties though it is no longer used for kin groups in the strict sense, such as clans.

Tribe in the Dictionary of Anthropology is defined as 'a social group, usually with a definite area, dialect, cultural homogeneity and unifying social organization. It may include several sub-groups, such as sibs or villages. A tribe ordinarily has a leader and may have a common ancestor, as well as patron deity. The families or small communities making up the tribe are linked through economic, social religious, family or blood ties.

12. In Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development , the Supreme Court observed as follows:

This Court denounced the practice of persons claiming benefits conferred on STs by producing fake, false and fraudulent certificates. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions. On the other hand, the ineligible or spurious persons who falsely gained entry, resort to dilatory tactics and create hurdles to legible candidates to get the seats.

13. It is also held by the Supreme Court in Punit Rai v. Dinesh Choudhary that as follows:

A person in fact not belonging to the Scheduled Caste, if claims himself to be a member thereof by procuring a bogus caste certificate, would be committing fraud on the Constitution. No court of law can encourage commission of such fraud.

It is also held in the above decision as follows

The caste system in India is ingrained in the Indian mind. A person, in the absence of any statutory law, would inherit his caste from his father and not his mother even in a case of inter-caste marriage.

14. These decisions would clearly indicate that the conditions precedent for getting a tribe certificate being that one must suffer the disabilities wherefrom one belongs and the off-suits of the wedlock between the trial women and non-tribal husbands cannot claim Scheduled Tribe status. The impact of procuring fake caste certificate and obtaining admission from reserved quota will have far-reaching grave consequences. The meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hands of non-deserving candidate and in such a case, it would be violative of the mandate of Articles 14 and 21 of the Constitution of India. Mere enquiry relating to the acceptance of the community would not suffice as the concerned authority before whom the said claim is made is duty bound to satisfy itself that the applicant being a tribe suffered the disabilities socially, economically and educationally from the group to which he or she belongs before the said certificate is issued. Any concerned authority issuing such a certificate in routine manner would be committing dereliction of the constitutional duty.

15. As laid down by the Supreme Court, by marriage, adoption or any other device, namely, by procuring a false social status certificate, they cannot be allowed to Page 2398 become eligible to avail of the protective discrimination for admission in the educational institutions. The members belonging to that particular group, which is not adequately represented alone, are entitled to avail of the said protective discrimination. Mere recognition of and acceptance by the community after a marriage is not relevant for the purpose of availing of the benefit of Articles 15(4) and 16(4). Acceptance by the community may be only for recognition as legally wedded husband of Scheduled Tribe wife and nothing more.

16. In this case, father of 6^th respondent belongs to outside Jharkhand. Admittedly, he does not belong to Scheduled Tribe community. Hence, the benefit of reservation of 26%, to which the Scheduled Tribes would be entitled, cannot be given to the respondent No. 6. As a matter of fact, it is contended by the counsel for the petitioner that the father of 6^th respondent, namely, Dr. K.H. Raghavendra, has shown the date of marriage as 2.1.1990 at R.C. Church, Sisai Road, Gumla and he has further shown himself in Christian community on 27.5.1995 and hence in such a situation, the children of such a person should not get the benefit of reservation against the quota of Scheduled Tribe. Further, in pursuance of the judgment of the Supreme Court in Anjan Kumar (supra) case, the Secretary, Department of Personnel & Administrative Reforms, by the decision dated 26.9.2006, sent a circular and letter to the Jharkhand Combined Entrance Competitive Examination Board not to give the benefit to those tribals who are married with non-tribals and as such, all benefits of reservation will be given to only children of tribal couple.

17. When the father of the 6^th respondent is Scheduled Caste, who is admittedly a resident of Bihar, can claim the benefit of Scheduled Caste, for which separate reservation has been made, he cannot be allowed to claim the reservation right of Scheduled Tribe, which is granted under the Constitution of India.

18. Further as laid down by the Supreme Court in Sobha Hymavathi Devi v. Setty Gangadhara Swami and Ors. the stand taken by the respondent No. 6 has not been established as there is nothing to show that the marriage of the parents of respondent No. 6 took place in the customary mode followed by the Oraon community, i.e. tribal community. In the present case, admittedly the marriage has taken place in the Christian form and therefore, it cannot be said that the 6^th respondent has followed the way of life of the Oraon community.

19. Learned Counsel for the respondent would refer to the decision rendered in the case of V.V. Giri v. D.S. Dora . In that, the ratio which has been decided in Anjan Kumar (supra) case has not been raised and decided. On the other hand, the specific issue which has been raised in Anjan Kumar (supra) case is whether the off-suits of the Tribal women married to non-Tribal could claim the status of Scheduled Tribe and on the basis of which Scheduled Tribe certificate could be issued. Answer for the point is that no such certificate could be given as the community to be decided is on the basis of the community which father belongs. As a matter of fact, 26% of the seats is reserved for the members of the Scheduled Tribe and only 10% is reserved of the members of the Scheduled Caste as per population and state of backwardness in the State of Jharkhand. Therefore, the 6^th respondent, on the one hand, cannot claim to be Scheduled Tribe as her father is a member of Scheduled Caste and on the other hand, father of the 6^th respondent admittedly does not belong to State of Jharkhand. From both Page 2399 the angles, either on the basis of the caste or of residence, 6^th respondent cannot be treated to be a member of Scheduled Tribe of the State of Jharkhand.

20. As indicated above, it is noticed that Sate of Jharkhand on 3.1.2007 already issued circulars on the basis of Anjan Kumar case and directed all the Departments that the judgment of Anjan Kumar case shall apply and the circulars of the State of Bihar issued in 1974 and 1985 shall not apply and those persons should not be given admission merely because husband, non-tribal, has been accepted by the wife's community.

21. As indicated above, in view of the fact that the case of the petitioner is squarely covered by the decision of the Supreme Court reported in Anjan Kumar v. Union of India 2006 AIR SCW 888 and also in the case of Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development , we are of the considered opinion that the petitioner is entitled to the relief sought for. Accordingly, the admission given to the respondent No. 6 on the basis of fake certificate is cancelled and the petitioner is entitled to get admission in that seat.

22. It is contended by the counsel for the Examination Board that even if the admission given to 6^th respondent is cancelled, the petitioner would not be entitled to get seat as three other persons are waiting. On the other hand, it is submitted by the counsel for the petitioner, that those persons have already obtained seats and they are pursuing the medical studies in this College and as such, the petitioner alone would be entitled to that seat.

22. If that is the fact situation, we are to hold that the petitioner shall be considered for admission in the said reserved seat. Consequently both the writ petitions are allowed.

Narendra Nath Tiwari, J.

23. I agree.