VAISHALI V. AMBEKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE two petitions are directed against the promotion of Mrs. Mhaprolkar, the respondent No. 4 in both the cases, to the post of the head clerk in the office of the Chief Mechanical Engineer, Western Railway, Bombay, under the order dated October 15, 1975. The petitioners in both the cases are working in the said office as senior clerks; so was the respondent No. 4 till her promotion. A vacancy arose in the post of the head clerk before the said date. According to the Roster in force at the relevant time, the post was liable to be filled in by a member of a Scheduled Caste, in terms of the Rules providing for reservations to the Scheduled Caste employees, in compliance with the constitutional mandate. The respondent No. 4 till her marriage was a caste Hindu and admittedly not a member of any Scheduled Castes. Her husband is a 'Chamar', a caste notified as such Scheduled Caste under Article 341 of the Constitution. Respondent No. 4 was so promoted on the assumption that she belonged to the Scheduled Caste since her marriage. All the petitioners in Special Civil Application No. 1502 of 1976 are senior to her in the cadre of senior clerks but do not belong to any Scheduled Caste, while the petitioners in Special Civil Application No. 1848 of 1976 are junior to her but admittedly belong to Scheduled Caste. Thus respondent No. 4's promotion is challenged on the ground that she, not being a member of any Scheduled Caste, was not entitled to the post reserved for the Scheduled Caste.

(2.) IN an affidavit sworn by one Mr. Nagpal, on behalf of respondents Nos. 1 to 3, the post being reserved for the Scheduled Caste is admitted. The respondent No. 4 however is claimed to have become a member of the Scheduled Caste because of her marriage with Mr. Mhaprolkar, belonging to the said caste.

(3.) NOW , ordinarily a person becomes a member of any caste because of his or her birth therein. The Article 341 only provides for notifying certain castes as Scheduled Castes. It does not deal with their origin, constitution, admission or expulsion of the membership therein. The said Article or the Presidential Order or the enactment thereunder does not indicate if any person can or cannot be a member otherwise than by birth. The matter is to be regulated by the ordinary law applicable thereto. This branch of Hindu law is not codified presumably because of the expected decreasing importance of caste in the present economic set up and social life. The codified Hindu law does recognise the entry in all such castes of other persons, not born therein. In the case of C.M. Arumugam v. Section Rajgopal : [1976]3SCR82 , the Supreme Court had occasion to deal with the origin, and membership of such castes while considering the effect of reconversion of any Hindu on his membership in his caste. According to the Supreme Court: (1) A caste is a voluntary association of persons for certain purposes. (2) It is a fluctuating group of persons governed by their own rules and regulations and (3) Castes are based not only on community of religion, but also on community of functions. (4) A change in the occupation sometimes creates a new caste.