ANNAMMA JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant joined service of the Government as a Lower Division Clerk in the District of Palghat, she having secured selection for the Palghat District. According to her, she married Mr. Mathew, son of Scaria, on 30-8-1987. The appellant's husband is a Roman Catholic Syrian Christian whereas the appellant is a C.S.I. Christian. It is her case that she belongs to Mala Araya community, which is a scheduled tribe, from which community she has been converted into C.S.I. Christian, Thus the marriage admittedly is between the appellant, a C.S.I. Christian and Mathew, a Roman Catholic Syrian Christian. She made an application for transfer from Palghat District to Idukki District on the ground that her husband is employed there. As no particulars about the appellant's husband's job at Idukki were available, she was called upon to furnish them. Though the appellant says that she has furnished that information, a copy of the same has not been furnished before us. It is her case that her husband is privately employed in Idukki. Transfer is claimed on the basis of the executive order of the State Government, Ext. P2 dated 1st April, 1976, which has prescribed certain guidelines giving certain facilities in the matter of transfers in favour of those who undergo inter caste marriages. The appellant's case is that the said order requires the appellant to be transferred to Idukki where her husband is working as an employee, as her marriage is an inter caste marriage. In support of her case the only materials relied on are the averments made in her application for transfer and the certificate issued by the Tahsildar dated 3-12-1987, wherein the Tahsildar says that the marriage of the appellant with Mathew is an inter caste marriage, that Mathew is Roman Catholic Syrian Christian and that the appellant is C.S.I. Christian, after conversion from Mala Araya community, which is a scheduled tribe. The learned single Judge has declined to interfere on the ground that the appellant having applied for appointment as Lower Division Clerk in Palghat District and having secured appointment in that district is ineligible for seeking transfer for a period of five years. The learned single Judge took the view that the Government order Ext. P2 cannot be understood as having an over riding effect over the relevant order which precludes transfer of those appointed on district wise basis for a period of five years to another district. We are inclined to agree with this view of the learned single Judge. The rule that those who have been appointed on district wise basis should not be permitted to be transferred to another district for a period of five years has a salutary object to serve for the purpose of ensuring equity in the matter of appointment of persons hailing from different districts. Appointments are made on district wise basis where selection is confined to those who apply for appointment in that particular district. It is a matter of common knowledge that there are better prospects for securing selection in certain districts, and for this reason persons belonging to another district claim that they belong to that district and secure appointment and after securing appointment they make every effort to get transfer to the district from which they hail. With a view to avoid, such unhealthy practice and exploitation the Government has imposed restrictions that for a period of five years such persons should not ordinarily be transferred. Ext. P2 order which grants certain facilities in the matter of transfer of those who undergo inter caste marriages, provides that the employees will invariably be accommodated in the same station or near by station transferring out other personnel, if necessary, and only where for reasons to be recorded such arrangements are impracticable the concession will not be applicable. In other words, if there are other compelling reasons the facility provided in Ext. P2 need not be extended. If, as in this case, applications were called for and selection and appointments were made on district wise basis with the further stipulation that they will not ordinarily be transferred for a period of five years, the transfer of such persons before the expiry of five years must be regarded as impracticable or impermissible as the non transferability of such appointees for a period of five years is one of the conditions of appointment. We have therefore no hesitation in agreeing with the view taken by the learned single Judge that as in the case in question, the appointment of the appellant was made on a district wise basis with the stipulation that the appointee should not normally be transferred for a period of five years the question of claiming the benefit of Ext. P2 as a matter of right does not arise. The learned single Judge was therefore justified in declining to interfere.

(2.) Even on facts we find it difficult, to find any. substance in the appellant's case. The appellant's husband is admittedly a Roman Catholic Syrian Christian whereas the appellant is a C. S. I. Christian, she having been converted from Mala Araya Community. The marriage has taken place after the conversion of the appellant as a Christian. The marriage is thus between two Christians and not between two persons one of whom is a Christian and the other a member belonging to Scheduled Tribe. Though the appellant belonged to Scheduled Tribe before her conversion, after conversion she became a C. S. I. Christian. A C.S.I. Christian is not a member of the Scheduled Tribe. The Order Ext. P2 relied upon by the appellant explains the expression 'inter caste marriage' as marriage between persons belonging to different castes and by way of explanation it is stated that a Namboodiri's marriage in a Nair family, being allowed by custom, such a marriage cannot be treated as inter caste marriage. Therefore the question as to whether the marriage between appellant and Mathew who belong to the different denominations of the Christian religion was permitted by custom or not is relevant. If it is permitted by custom, it is not inter caste marriage. If it is not permitted by custom it is inter caste marriage. If the marriage is brought about contrary to custom alone, it will earn the benefit of inter caste marriage flowing from Ext. P2. The appellant has not stated in her application or in the writ petition that the marriage between her and Mathew belonging to two religious denominations of Christian is permitted or opposed by any custom. Hence the appellant has not laid any foundation for claiming the relief on the basis of Ext. P2. Therefore even on merits, the appellant has not made out any case for grant of relief on the basis of Ext. P2. We therefore see no good grounds to interfere.