TaxTMI 
TaxTMI 
TaxTMI 
1996 (1) TMI 484
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....erved post. Her appointment was questioned by one Rani George by filing a Writ Petition, viz., O.P. No. 9450/91 praying for a direction to the University to appoint her in place of the appellant to the said post. The learned single Judge allowed the writ petition of Rani George and held that the appointment should be made strictly in accordance with Rules 14 to 17 of the Kerala State Subordinate Service Rules. When appeals were filed, the appellant cited the judgment a single Judge in Dr. Kaniamma Alex v. Public Service Commission (1980) KLT 18 which later stood upheld in Public Service Commission v. Dr. Kanjama Alex (1980) KLT 24. As stated earlier, doubting the correctness of the decision of the Division Bench in Dr. Kanjamma Alex's case, the reference to the Full Bench had come to be made. 3. The Full Bench in the impugned judgment held that though the appellant was married according to the Canon Law, the appellant, being a Syrian Catholic by birth, by marriage with a Latin Catholic (Backward Class), is not a member of that class nor can she claim the status as a backward class by marriage. The special provisions under Articles 15(4) and 16(4) of the Constitution intended f....
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....hat Articles 15(4) and 16(4) are intended to remove handicaps and disadvantages suffered by backward class citizens due to social and educational backwardness like the members of Scheduled Castes and Scheduled Tribes. Therefore, persons who by birth belong to Scheduled Castes, Scheduled Tribes or Backward Classes alone are entitled to the benefit of Articles 15(4) and 16(4). By marriage, adoption or any other device, viz., by procuring false social status certificates, they are not eligible to avail of protective discrimination for appointment to any office or to a post under the State or admission in educational institution. What is relevant is inadequacy of representation of that class into an office or service under the State. The members belonging to that particular group which is not adequately represented alone are entitled to avail of the protective discrimination. The appellant, having had the advantage of starting life as Syrian Catholic being born in forward class, though she voluntarily married to a backward class citizen, cannot claim the status as a backward class to avail of protective discrimination unless she further pleads and establishes that candidates like her s....
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.... "what we must do is not to be attained with mere political democracy; we must make, our political democracy a social democracy as well, Political democracy cannot last unless there lies on the base of it a social democracy". Social democracy means "a way of life which recognises liberty, equality and fraternity as principles of life". They are not separate items in a trinity but they form union of trinity. To diversify one from the other is to defeat the very purpose of democracy. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. Articles 15(4) and 16(4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic justice is a right enshrined for the protection of society. The right to social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular, Articles 14 15 16 21 38 39 and 46 of the Constitution, is to make the quality of the ....
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....nequalities between different sections amongst Hindus. Caste became the result of birth and not of volition. No one wishes to be born in a particular caste or religion. It is the result of biological act of the parents. However, in Hindu social structure also, caste is the result of birth and has become a bane for individual drive, thrive and improvement of excellence, a fundamental duty under Article 51A(j). The practice of untouchability, which had grown for centuries, denuded social and economic status and cultural life of the Dalits and the programmes evolved under Articles 14 15(2) 15(4) and 16(4) aimed to bring Dalits into national mainstream by providing equalitarian facilities and opportunities. They are designated as "Scheduled Castes" by definition under Article 366(24) and "Scheduled Tribes" under Article 366(25) read with Articles 341 and 342 respectively. The constitutional philosophy, policy and goal are to remove handicaps, disabilities, suffering restrictions or disadvantages to which Dalits/ Tribes are subjected, to bring them into the national mainstream by providing facilities and opportunities for them. As to OBCs, their identification was de....
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....tution under Article 15(4)? In Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. [1994] SCC 241, the appellants were daughters of one Laxman Patil who was a Hindu Koly (forward class). They obtained social status certificates as Mahadeo Koli, Scheduled Tribe and were admitted into Medical college. When it was found that they belonged to forward class, their admissions were cancelled and writ petitions were dismissed culminating in the aforesaid judgment. This Court had held that for the purpose of entitlement to admission under Article 15(4), the identification by the President as a Scheduled Tribe under Article 342(1) subject to the law under Article 342(2) as amended by the Scheduled Caste and Scheduled Tribes (Amendment) Act 1976, is conclusive. In other words, this Court had not accorded to a member of forward class, by obtaining a false certificate the status of a Scheduled Tribe. Admission given on the basis of false certificate was declared unconstitutional. 11. Director of Tribunal Welfare, Government of Andhra Pradesh v. Laveti Giri and Anr. [1995]3SCR430 , is equally instructive. Therein, the father of the respondent who was a Government se....
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....The mind of children brought up in culturally, educationally and economically advanced atmosphere, is accounted highly as 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 amongst backward classes would not start the race of life with the same quality of life. It would, therefore, be necessary to identify the competing interests between diverse sections of the 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 the appropriate authority or the commission, as a part of that class, fulfilling the traits of socially and educationally backwardness among that group, would alone be eligible for admission as a 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. r\ But any person who would attempt, by process of law and seeks....
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....d Ors. AIR1993AP229 , the appellant, a Reddy by birth (Reddy caste is a forward caste in A.P.) married to Erukala boy (basket weaving community, Scheduled Tribe in A.P.) was living in her marital home since her marriage. She sought admission into M. Sc. (Home Science) in Agricultural University as a Scheduled Tribe. She filed writ petition for direction for admission. The learned single Judge dismissed the writ petition holding that by "anuloma" marriage she was not entitled to the same status as that of the tribe. In another writ petition No. 1313 of 1992, the petitioner lady born in a Vysya community (Business community) was married to a Bestha (fishermen community - a backward class - A category). She applied for admission into Post-Graduate Medical Course (D.C.H.) under the quota reserved for Backward Class - A Group. Her writ petition was allowed by a learned single Judge holding that a marriage was not an agreement. It is a sacrament. After marriage she was no more a member of her parents' family but became a member of her husband's family. Therefore, she was entitled to be a member of the backward class. The diverse views were challenged before the Division....
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....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 interpretive 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 re-adjusting 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 p....
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....s as a preferable description, yet the marriage of a man with a woman of a lower class or tribe than himself A appears not to be an invalid marriage, rendering the issue illegitimate. 20. Dr. Paras Diwan in his 2nd Edition of "Law of Marriage and Divorce" stated at page 75 that in inter-caste and 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 v....
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....e may evolve, as early as possible, a strong and consolidated nation" (Vide : Constituent Assembly Debates, Vol. VII 356-8). 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 identities 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, castes, sections, sub-sections and regions t....
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....ter-religion marriages from inter-region. The purposive interpretation would, therefore, pave way to establish secularism and a secular State. 25. At the cost of repetition, it is stated that pluralism is the keynote of Indian culture and religious tolerance is the bedrock of Indian secularism. It is based on the belief that all religions are equally good and efficacious G pathways to perfection or God-realisation. It stands for a complex interpretive process in which there is a transcendence of religion and yet there is a unification of multiple religions. It is a bridge between religions in a multi-religious society to cross over the barriers of their diversity. Secularism is the basic feature of the Constitution as a guiding principle of State policy and action. Secularism in the positive sense is the cornerstone of an egalitarian and forward - looking society which our Constitution endeavours to establish. It is the only possible basis of a uniform and durable national identity in a multi - religious and socially disintegrated society. It is a fruitful means for conflict-resolution and harmonious and peaceful living. It provides a sense of security to the followers of all reli....
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....y, elimination of discrimination against women by adopting "appropriate legislative and other measures including sanctions where appropriate prohibiting all discriminations against women; to take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause C enjoins upon the State to ensure legal protection of the rights of women on equal basis with men, through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women,. Article 3 enjoins upon the State parties that it shall take, in all fields, in particular, in the political social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that "the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a ba....
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....enance Act, she is entitled to maintenance from father-in-law. Similar gender equality is available to other citizens consistent with Human Rights and under Article 15(3) of the constitution. The march of law lays emphasis on the rights of the individual for equality. The form of marriages is relegated to backdoor as unessential. These are matters of belief and practice and not core content. Tying Tali is a must and without it marriage is not complete in South India among all Hindus and in some parts among Harijan Christians, while exchange of rings would do in North India. Ritualistic celebration of marriage would be considered by some as valid, while most people in other sections think that factum of marriage is enough. When in Tamil Nadu such marriage is statutorily, valid would it become invalid in other parts of the country? The answer would, obviously and emphatically be, "NO". Inter-caste marriages and adoption are two important social institutions through which secularism would find its fruitful and solid base for an egalitarian social order under the Constitution. Therefore, due recognition should be accorded for social mobility and integration and accordingly it....
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.... recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities. 34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu [1995]2SCR260 and R. Chandevarappa v. State of Karnataka (1995)6SCC309 , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3) 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have ....
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....havior his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that "in our opinion the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste." In that case it was held from his conduct, the respo....