The Calcutta High Court on Thursday dismissed a petition challenging the cancellation of the Scheduled Caste certificate of a Panchayat election winner from a seat reserved for Scheduled Caste candidates.
The facts of the case are that the petitioner was issued a Scheduled Caste certificate by Sub-Divisional Officer, Chanchal on April 10, 2018. On the basis of such certificate, the petitioner contested in the last Panchayat Election of West Bengal held on May 14, 2018. The winning certificate for such election was issued in favour of the petitioner on May 17, 2018. The said election was contested by the petitioner from a seat reserved for Scheduled Caste candidates. Later the proceeding for cancellation of the Scheduled Caste certificate of the petitioner was initiated by the Sub-Divisional officer(S.D.O), Chanchal-II, Malda.
The hearing of the cancellation proceeding was fixed on August 21, 2018 to the knowledge of the petitioner in the Court of S.D.O . However, the petitioner allegedly had to be admitted to a nursing home due to her cardiac problem on August 20, 2018. An adjournment was sought on behalf of the petitioner by her son on August 21, 2018 by submitting relevant medical documents. However, the Sub-Divisional Officer, Chanchal, passed the impugned order dated August 21, 2018, without granting any adjournment to the petitioner, thereby revoking and cancelling the SC certificate issued in favour of the petitioner. Being thus aggrieved, the Petitioner approached the High Court.
Kamalesh Bhattacharya, Counsel for the Petitioner, submitted that the Sub Divisional Officer acted de hors the law in considering only the paternal genealogy of the petitioner and ignoring the genealogy of her spouse, who belongs to a Scheduled Caste. It is argued that the petitioner belongs to the Scheduled Caste, both by virtue of her marriage to a Scheduled Caste family as well as through the lineage of her mother.
Counsel for the petitioner further submitted that as per Rule 3(3) of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Rules, 1995, the Certificate Issuing Authority shall, upon deposit of the certificate which has been challenged, issue a notice to the holder of the certificate to show cause within 15 days or within a period of shorter duration as it may think fit, as to why the certificate issued in his favour shall not be cancelled, impounded or revoked on the grounds stated in the notice. In the present case, however, such notice was issued only on August 16, 2018 and the date of hearing was fixed shortly thereafter, on August 21, 2018, thereby giving the petitioner far less than 15 days to prepare for such hearing. Apart, it is argued that the petitioner’s prayer for adjournment, made on a single occasion due to her hospitalisation, was refused arbitrarily by the Sub-Divisional Officer and the cancellation order was passed in hot haste.
Reliance was made in the case of Rampal Vs. State of Haryana and others, reported at (2009) 9 SCC 187. In which , no opportunity of hearing was granted to the certificate holder before cancelling the Scheduled Caste certificate. In the absence of such opportunity of hearing, the Supreme Court held, such cancellation was to be set aside. In the present case, no opportunity as per the rules was given to the petitioner, claimed the Counsel.
Counsel contends that no inquiry was undertaken by the Sub-Divisional Officer as contemplated under Section 8A of the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994. The said provision stipulates that the State Government may, by order, constitute a Committee to be called the State Scrutiny Committee for verification of social status of a person in whose favour a certificate is issued under Section 5 of the Act.
Pantu Deb Roy, Counsel for the State, argued that the adjournment petition was made on behalf of the petitioner almost two hours after the commencement of the hearing, before the Receiving Section of the Office of the Sub Divisional Officer, Chanchal, by which time the proceedings had already been concluded. As such, there was no question of deciding on the adjournment petition, which was itself filed after conclusion of the hearing.
It is further submitted, by placing reliance on the various orders of the Sub-Divisional Officer, that only upon a detailed preliminary enquiry entrusted to the B.D.O. and upon taking full-fledged evidence, the Sub-Divisional Officer came to the finding that the petitioner did not belong to a Scheduled Caste.
Counsel further argues that the petitioner, by birth belongs to the ‘OBC’ category and only claimed to fall under the Scheduled Caste category by virtue of her marriage. It is argued, that such marriage could not have conferred the benefits attributable to Scheduled Castes by birth. In this context, learned counsel places reliance on Sunita Singh Vs. State of Uttar Pradesh and others, reported at (2018) 2 SCC 493.
A Single-Judge Bench of Justice Sabyasachi Bhattacharyya while considering the arguments from both the side, observed that in general terms, without addressing time lapse between the conclusion of the hearing and the filing of the petition the petitioner’s son attended before the S.D.O. at the time of hearing on August 21, 2018 and submitted an application to consider the medical condition of his mother and prayed for an adjournment. There is no specific denial in the reply of the petitioner to the clear allegation that the adjournment petition was filed at about 1.15 p.m., that too before the Receiving 9Section of the Office of the Sub-Divisional Officer, after conclusion of the proceeding. Thus, there was no scope for the authority to consider such adjournment petition. Moreover, it was within the discretion of the S.D.O. to refuse such adjournment, even if made during hearing.The order sheet of the case reveals that the procedure laid down in Section 9(1) of the 1994 Act, read with Rule 3 of the 1995 Rules, was exhaustively followed in the case before cancelling the certificate.
The Bench held that as far as the alleged acquisition of Scheduled Caste-hood by the petitioner by marriage or through her mother’s hereditary lineage is concerned, such proposition is patently contrary to settled law. The Supreme Court in Valsamma Paul (Mrs.) Vs. Cochin University and others, reported at (1996) 3 SCC 545, while observing that a lady could adopt the caste of her spouse upon marriage, categorically laid down that the movement from a forward into a backward caste by adoption, marriage or conversion does not confer eligibility to the benefits of reservation under Article 15(4) or Article 16(4) of the Constitution of India. The said proposition was reiterated in several judgments, including State of Tripura and others Vs. Namita Majumdar (Barman), reported at (1998) 9 SCC 217, Sandhya Thakur Vs. Vimala Devi Kushwah and others, reported at (2005) 2 SCC 731, Meera Kanwaria Vs. Sunita and others [(2006) 1 SCC 334] and lastly in Sunita Singh Vs. State of Uttar Pradesh and others [ (2018) 2 SCC 493]. In the last of the above, the Supreme Court categorically laid down that caste is determined by birth and cannot be changed by marriage with a person of scheduled caste. In the said case, the certificate was cancelled, which was upheld by the Supreme Court on such ground.”
Even if the caste of the petitioner’s mother was to be considered, the petitioner’s caste could not have been determined by the maiden caste of her mother, since the petitioner was born into the family of her father and acquired her caste by virtue of such birth. The maiden caste of her mother became irrelevant prior to her birth, said the Court.
”Hence, in any event, there was sufficient justification in the cancellation of the petitioner’s caste certificate on the premise that she did not belong to the scheduled caste communities but to the OBC category by birth. The orders dated July 11, 2018 and August 16, 2018 passed by the BDO in the matter, exhibited that the SDO followed due procedure and elaborately considered the question of the petitioner’s caste not only on the basis of the report given by the BDO, Chanchal-II but also on the basis of detailed oral and documentary evidence. Thus, the finding arrived at by the SDO could not be faulted from any perspective,” the order reads.