# Khushnuda Parveen v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-30
- **Case number:** Special Appeal Defective No. 589 of 2018
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khushnuda-parveen-v-state-of-u-p-ors-50599
- **Pages:** 15

## Headnote

C.S.C., Meenakshi Parihar Singh, Prashant
Kumar Singh, Raj Kr Singh Suryavanshi

Appointment-Claim
under
Scheduled
Caste Category-Marriage with SC MaleWhether sufficient to claim SC statusHeld-No.
Appointment of appellant on the post of
Lecturer (Urdu) challenged as obtained on the
basis of Scheduled Caste certificate. Appellant,
originally
belonging
to
General
Category,
obtained SC status through marriage with a
Scheduled Caste male. Held, such voluntary
mobility into a reserved category by marriage is
not permissible under law. Once appointment is
held to be void ab initio, no question of seniority
or consequential relief arises.The appellant
cannot claim Scheduled Caste status solely on
the basis of her marriage. Her appointment as
Lecturer under SC quota is void, having been
secured
through
misrepresentation.
Consequently, her claim to seniority and post of
ad hoc Principal rightly denied.

List of Cases cited:

## Text

_Characters 0–39,778 of 50,422. This is a partial read: ask again with offset=39778 for what follows._

8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
233
scheme of compassionate appointment is
applied in perspective manner and no
retrospective effect can be given for the
purposes of consideration of even pending
claim of a dependent of a deceased."

23. We are also aware that the
reference made to Larger Bench of the
Supreme Court in State Bank of India
Vs. Sheo Shankar Tewari is still
pending before that Court. However, in
view of the discussion made above as to
the law laid down by the Supreme Court,
since the occurrence of that reference
vide order dated 08.02.2012 we do not
find any doubt exists as to the law to be
applied in matters of compassionate
appointments, in the meanwhile. For that
reason as well, since on the date of
occurrence of death of Sri Surendra
Kumar Agrawal, on 06.9.2014, there did
not exist any scheme for grant of
compassionate appointment, the claim
made by the petitioner would fail.

24. The order of the learned single
judge is set aside. Consequentially the
appeal is allowed.

25. Since there is no other dispute
surviving, the writ petition itself shall
stand disposed of with the observation that
the appellant-respondent shall pay out the
amount of Ex-gratia payment to the
respondent-petitioner within 30 days from
today.
----------
(2023) 8 ILRA 233
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J

Special Appeal Defective No. 589 of 2018
with other connected cases

Khushnuda Parveen ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Virendra Singh

Counsel for the Respondents:
C.S.C., Meenakshi Parihar Singh, Prashant
Kumar Singh, Raj Kr Singh Suryavanshi

Appointment-Claim
under
Scheduled
Caste Category-Marriage with SC MaleWhether sufficient to claim SC statusHeld-No.
Appointment of appellant on the post of
Lecturer (Urdu) challenged as obtained on the
basis of Scheduled Caste certificate. Appellant,
originally
belonging
to
General
Category,
obtained SC status through marriage with a
Scheduled Caste male. Held, such voluntary
mobility into a reserved category by marriage is
not permissible under law. Once appointment is
held to be void ab initio, no question of seniority
or consequential relief arises.The appellant
cannot claim Scheduled Caste status solely on
the basis of her marriage. Her appointment as
Lecturer under SC quota is void, having been
secured
through
misrepresentation.
Consequently, her claim to seniority and post of
ad hoc Principal rightly denied.

List of Cases cited:

1. Valsamma Paul Vs Cochin University, (1996)
3 SCC 545

2. Sobha Hymavathi Devi Vs Setti Gangadhara
Swamy, (2005) 2 SCC 244

3. N.E. Horo Vs Jahan Ara Jaipal Singh, AIR
1972 SC 1840

4. Dr. Asha Saxena Vs Smt. S.K. Chaudhary,
(1991) 17 ALR 267

5. M.A. Murthy Vs St. of Karn., (2003) 7 SCC
517
234 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Om Prakash Shukla, J.)

Application for Condonation of
Delay

(1) Heard Ms. Pushpila Bisht, Amicus
Curiae, appearing on behalf of appellant,
Shri V.P. Nag, learned Standing Counsel
representing the State/respondents no. 1, 2,
3 and 5, Shri R.K. Singh Suryavanshi,
learned Counsel representing respondent
no.4/U.P. Secondary Education Service
Selection Board, Shri Prashant Kumar
Singh, learned Counsel representing the
respondent
no.6/Committee
of
Management, Smt. Meenakshi Parihar,
learned
Counsel
representing
the
respondent no.7/writ petitioner,

(2)

Having
gone
through
the
averments made in the affidavit filed in
support
of
the
application
seeking
condonation of delay and in absence of any
objection by the respondents, this Court is
satisfied that delay has sufficiently been
explained.

(3) The application for condonation of
delay filed in the above-captioned appeals
is, accordingly, allowed and delay in filing
the above-captioned special appeals is
hereby condoned.

(Order on Appeals)

A. INTRODUCTION

(4) The legality and correctness of
common judgment and order dated
19.07.2018 passed by the learned Single
Judge in (i) Writ Petition No. 23409 (S/S)
of 2016 : Ram Ujagar Mishra Vs. State of
U.P. and others,(ii) Writ Petition No. 13
(S/S) of 2014 : Ram Ujagar Mishra Vs.
State of U.P. and others, (iii) Writ
Petition No. 7415 (S/S) of 2014 : Ram
Ujagar Mishra Vs. State of U.P. and
others, (iv) Writ Petition No. 4016 (S/S)
of 2011 : Smt. Khushnuda Parveen Vs.
State of U.P. and others and (v) Writ
Petition No. 3969 (S/S) of 2013 : Smt.
Khushnuda Parveen Vs. State of U.P. and
others, are called in question by the
appellant, Smt. Khushnuda Praveen, in
the above-captioned intra Court appeals
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952.

B. FACTS

(5) Succinctly, the facts of the case
are that Saadat Inter College, Nanpara,
District Bahraich (hereinafter referred to
as 'Institution'), is being run under the
aegis of a society registered under the
provisions of Societies Registration Act,
1860. The said Institution is recognized
under the provisions of U.P. Intermediate
Education, 1921 and is also receiving
grant-in-aid from the State Government.
Therefore, the provisions of U.P. High
School
and
Intermediate
Colleges
(Payment of Salary to the Teachers and
other Employees) Act, 1971 and the
provisions of U.P. Secondary Education
Service Selection Board Act, 1982 and
rules
framed
thereunder
are
also
applicable to the said institution.

(6) The appellant, Smt. Kushnuda
Parveen, was selected by U.P. Secondary
Education
Services
Selection
Board
through
direct
recruitment
and
was
appointed on the post of Lecturer (Urdu) on
07.06.1996 in the Institution. Her selection
was made under reserved quota i.e.
Scheduled Caste on the basis of Caste
Certificate submitted by her.
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
235

(7)

Sri
Ram
Ujagar
Mishra
(respondent no.7 herein) was initially
appointed in the Institution on the post of
Assistant Teacher (L.T. Grade) in the year
1981 on ad hoc basis, however, his services
were regularized w.e.f. 06.04.1991 in the
Institution vide order dated 02.08.1992.

(8) Shri Bismillah Khan, who was the
Lecturer in Mathematics in the Institution,
retired on 30.06.1991 on attaining the age
of superannuation and as such, vide
resolution dated 02.08.1992, the Committee
of
Management
resolved
to
grant
promotion to Shri Ram Ujagar Mishra
(respondent no.7 herein) on the vacant post
of
Lecturer
in
Mathematics
in
the
Institution on ad hoc basis under 50%
promotion quota. The District Inspector of
Schools
(hereinafter
referred
to
as
'D.I.O.S.'), vide order dated 15.12.1992,
had accorded approval to the aforesaid
resolution
of
the
Committee
of
Management to grant ad hoc promotion to
Shri Ram Ujagar Mishra (respondent no.7
herein). Subsequently, vide letter dated
20.04.1998, the U.P. Secondary Education
Service
Selection
Board
(hereinafter
referred to as 'Board') intimated the
decision of the Board to the D.I.O.S. in
regard to the regular promotion of Shri
Ram Ujagar Mishra (respondent no.7
herein) on the post of Lecturer in
Mathematics in the Institute.

(9) Apparently, a dispute in regard to
the seniority arose in the Institution
between the appellant and the respondent
No.7 as apparently the said seniority would
lead to appointment as Principal to the said
Institution. The appellant preferred a
representation dated 13.09.2010 claiming
seniority and sought for handing over the
officiating charge on the post of Principal
to her by reverting Shri Ram Ujagar Mishra
on the post of Assistant Teacher (L.T.
Grade). The Regional Joint Director of
Education, Devipatan Mandal, Faizabad,
vide
order
dated
02.06.2011,
had
considered the aforesaid representation of
the appellant and rejected the same vide
order dated 02.06.2011 (hereinafter referred
to as "First Order").

(10) Subsequently, Shri Shyam Das
Maurya, who was the Principal of the
Institution, retired on attaining the age of
superannuation on 30.06.2011 and before
his
retirement,
the
Committee
of
Management
passed
a
resolution
on
29.06.2011, resolving to appoint Shri Ram
Ujagar Mishra (respondent no.7 herein) as
ad
hoc/officiating
Principal
of
the
Institution. The said resolution dated
29.06.2011 ( hereinafter referred to as
"Second Order" ) was sent to D.I.O.S. for
attestation of the signature of Shri Ram
Ujagar Mishra as Principal and payment of
salary.

(11) Meanwhile, the appellant preferred
Writ Petition No. 4016 (S/S) of 2011 before
this Court, challenging the order dated
02.06.2011 ("First Order") by which her
representation
claiming
seniority
was
rejected. The learned Single Judge, while
entertaining the said writ petition, kept in
abeyance the order dated 02.06.2011 passed
by the Regional Joint Director of Education,
Devipatan Mandal, Faizabad till further order
of the Court vide order dated 14.07.2011.
Thereafter, on the strength of this interim
order dated 14.07.2011, the appellant had
claimed for joining on the post of Principal
on ad hoc/officiating basis, but the same was
not allowed and as such, she preferred
Contempt Petition No. 3144 of 2011, which
was disposed of vide order dated 14.02.2013
with a liberty to the appellant to raise the
issue in her writ petition.
236 INDIAN LAW REPORTS ALLAHABAD SERIES

(12) Pursuant to the aforesaid liberty,
the
appellant
preferred
another
writ
petition, bearing writ petition No. 41 (S/S)
of 2013, before this Court. The learned
Single Judge, vide order dated 27.05.2013,
disposed of the said writ petition finally
with a direction to dispose of the
representation of the appellant.

(13) In compliance of the aforesaid
order dated 27.05.2013, the D.I.O.S.
considered the claim set-up by the
appellant and rejected the same vide order
dated 28.06.2013 (hereinafter referred to as
"Third Order"), stating that since the
matter regarding seniority is pending before
the Hon'ble High Court, thus, there is no
requirement for any action at this stage.
Aggrieved by this order dated 28.06.2013,
the appellant preferred Writ Petition No.
3969 (S/S) of 2013.

(14) It seems that during pendency
of the aforesaid two writ petitions, i.e.,
Writ Petition No. 4016 (S/S) of 2011
against "First order" and Writ Petition
No. 3969 of 2013 preferred by the
appellant against "Third Order", the Joint
Director
of
Education,
Devipatan
Mandal, Faizabad, in compliance of the
order dated 27.05.2013 passed in Writ
Petition No. 41 (S/S) of 2013, had also
considered
the
representation
dated
01.11.2012 preferred by the appellant and
decided the same vide order dated
17.12.2013 ( hereinafter referred to as
"Fourth Order"), stating that appellant
was senior to the respondent no.7 (Ram
Ujagar Mishra) w.e.f. 07.06.1996 and as
such, it would be appropriate to grant
promotion to the appellant on the post of
ad
hoc/officiating
Principal
of
the
Institution. Aggrieved by this order dated
17.12.2013
("Fourth
Order"),
the
respondent no.7 (Ram Ujagar Mishra)
preferred Writ Petition No. 13 (S/S) of
2014.

(15) During pendency of the
aforesaid writ petitions i.e. writ petition
Nos. 4016 (S/S) of 2011, 3969 (S/S) of
2011 and writ petition No. 13 (S/S) of
2014, the respondent no.7 (Ram Ujagar
Mishra) also preferred another writ
petition, bearing Writ Petition No. 7415
(S/S) of 2014, challenging the validity of
the
orders
dated
05.04.1996
and
30.05.1996 (together referred to as "Fifth
Order"), by which appellant was selected
and appointed as Lecturer in Urdu.

(16) Thereafter, the Director of
Education (Secondary), on the basis of the
letter sent by D.I.O.S. dated 17.08.2016,
had passed the order dated 19.09.2016 (
hereinafter referred to as "Sixth Order"),
by which the D.I.O.S. was directed to
ensure the joining of the appellant on the
post of ad hoc/officiating Principal of the
Institution by exercising power under
Section 18 (2) of the U.P. Secondary
Education Services Selection Board Act,
1982. Pursuant to the aforesaid order of the
Director of Education (Secondary) dated
19.09.2016, the D.I.O.S. had passed an
order
dated
20.09.2016
(hereinafter
referred to as "Seventh Order"), whereby
he had directed for handing over the charge
of ad hoc/officiating Principal to the
appellant.

(17) Aggrieved by the aforesaid
orders dated 19.09.2016 and 20.09.2016,
the respondent no.7 herein (Sri Ram Ujagar
Mishra) preferred Writ Petition No. 23409
(S/S) of 2016 before this Court. The
learned Single Judge, vide order dated
28.12.2016, while entertaining the said writ
petition, stayed the operation of aforesaid
orders dated 19.09.2016 and 20.09.2016.
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
237

(18) Ultimately, the learned Single
Judge had clubbed all five writ petitions i.e.
Writ Petition Nos. 23409 (S/S) of 2016, 13
(S/S) of 2014, 7415 (S/S) of 2014, 4016
(S/S) of 2011 and 3969 (S/S) of 2013 and
heard together and the same were disposed
of vide common judgment and order dated
19.07.2018 ( hereinafter referred to as
"Impugned Order"). The learned Single
Judge has decided the aforesaid writ
petitions as under :-

Sl.
No.
Writ Petition Number
Decision Challenge
in Special
Appeal
01
23409 (S/S) of 2016 : Ram
Ujagar Mishra Vs. State of
U.P. and others
Writ
Petition
is
allowed.
The
impugne
d orders
dated
19.09.20
16
and
20.09.20
16
are
setaside.
Special
Appeal
Defective
No. 590 of
2018
:
Smt.
Khusnuda
Parveen
Vs.
State
of U.P. and
others
02
13 (S/S) of 2014 : Ram
Ujagar Mishra Vs. State of
U.P. and others
Writ
Petition
is
allowed.
The
impugne
d
order
dated
17.12.20
13 is setaside
Special
Appeal
Defective
No. 592 of
2018
:
Smt.
Khusnuda
Parveen
Vs.
State
of U.P. and
others.
03
Writ Petition No. 7415 (S/S)
of
2014.:
Ram
Ujagar
Mishra Vs. State of U.P. and
others
The writ
petition
is
allowed
and
the
impugne
d orders
dated
05.04.19
96
and
30.05.19
96
Special
Appeal
Defective
No. 589 of
2018
:
Smt.
Khusnuda
Parveen
Vs.
State
of U.P. and
others
04
Writ Petition No. 4016 (S/S)
of 2011 : Smt. Khusnuda
Parveen Vs. State of U.P.
The writ
petition
is
Special
Appeal
Defective
and others
dismisse
d.
No. 591 of
2018: Smt.
Khusnuda
Parveen
Vs.
State
of U.P. and
others
05
Writ Petition No. 3969 (S/S)
of 2013 :Smt. Khusnuda
Parveen Vs. State of U.P.
and others
The writ
petition
is
dismisse
d.
Special
Appeal
Defective
No. 593 of
2018: Smt.
Khusnuda
Parveen
Vs.
State
of U.P. and
others

(19) The learned Single Judge, while
deciding the aforesaid writ petitions vide
impugned order, has also directed the
respondents in the writ petitions to permit
Sri Ram Ujagar Mishra (respondent no.7
herein) to continue on the post of ad hoc
Principal of the Institution till regularly
selected candidates comes and joins and to
pay him regular monthly salary month by
month accordingly, in as much as, the
arrears of salary, if found due, be paid
within three months from the date of
production of a certified copy of the order.

(20) The appellant being aggrieved
have preferred the above-captioned special
appeals before this Court.

(21) Since the above-captioned
special appeals arise out of a common
factual matrix and impugned judgment, we
are disposing them of vide this common
judgment.

C. SUBMISSIONS

(22) Ms. Pushpila Bisht, Amicus
Curiae, appearing on behalf of appellant
has submitted that by means of the
238 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned common judgment/order dated
19.07.2018, the learned Single Judge had
decided different issues agitated by the
appellant and respondent no.7 in their
respective writ petitions. In Writ Petition
No. 4016 (S/S) of 2011 filed by the
appellant herein, she challenged the order
dated 02.06.2011 ("First Order"), whereby
her representation claiming seniority and
prayer for handing over the charge on the
post of Principal to her by reverting Sri
Ram Ujagar Mishra on the post of Assistant
Teacher (L.T. Grade) was rejected and
seniority determined earlier was held to be
valid; in Writ Petition No. 3969 (S/S) of
2013 filed by the appellant, she challenged
the order of the D.I.O.S. dated 28.06.2013
("Third
Order")
by
which
her
representation
claiming
seniority
was
rejected inter alia on the ground that since
the matter regarding seniority is pending
before the Hon'ble High Court, hence there
is no requirement for any action at this
stage; in Writ Petition 13 (S/S) of 2014
filed by the respondent no.7 herein (Ram
Ujagar Mishra), he challenged the order of
Regional Joint Director of Education dated
17.12.2013 ("Fourth Order") by which
seniority was re-determined; in Writ
Petition No. 7415 (S/S) of 2014 filed by the
respondent no.7 herein, he challenged the
validity of the orders dated 05.04.1996 and
30.05.1996 ( "Fifth Order"), whereby the
appellant herein was selected and appointed
as Lecturer in Urdu; and in Writ Petition
No. 23409 of 2016 filed by the respondent
no.7, he challenged the order dated
19.09.2016 ("Sixth Order") by which
D.I.O.S. was directed to ensure the joining
of the appellant on the post of ad
hoc/officiating Principal of the Institution
by exercising power under Section 18 (2)
of the U.P. Secondary Education Service
Selection Board Act, 1982, as well as the
consequential order dated 20.09.2016 (
"Seventh Order") passed by the D.I.O..S.,
by which he had directed for handing over
the charge of ad hoc Principal to the
appellant. Thus, her submission is that in
all the writ petitions, more or less the issue
between
the
appellant
herein
and
respondent no.7 herein was in respect of
their seniority, appointment of respondent
no.7 herein on the post of ad hoc/officiating
Principal and appointment of the appellant.

(23) So far as issue of seniority
between the appellant and respondent no.7,
learned Amicus Curiae has argued that
appellant was appointed on the post of
Lecturer (Urdu) through direct recruitment
on 07.06.1996 by the U.P. Secondary
Education
Services
Board,
whereas
respondent no.7 was appointed as Assistant
Teacher (L.T. Grade) in ad hoc/temporary
basis by the Manager of the Institution on
20.10.1981 on short term vacancy and
thereafter his services on the post of
Assistant Teacher (L.T. Grade) were
regularized w.e.f. 06.04.1991 vide order
dated
02.08.1992.
Subsequently,
respondent
no.7
was
granted
ad
hoc/temporary promotion on the post of
Lecturer (Mathematics) on 16.12.1992
under 50% quota and his services on the
post of Lecturer (Mathematics) were
regularized
on
20.04.1997
on
the
recommendation
of
Uttar
Pradesh
Secondary Education Services Selection
Board. Thus, in any view of the matter, the
appellant is senior to the respondent no.7 as
also evident from the final seniority list
dated 05.08.2007 issued by the Committee
of Management of the Institution contained
in Annexure No.1 to the affidavit filed in
support of application for disposal of
interim relief application in Special Appeal
Defective No. 589 of 2018, wherein the
name of the appellant was shown at serial
No. 3, whereas the name of the respondent
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
239
no.7 was shown at serial No. 5, meaning
thereby i.e. on 05.08.2007, the Committee
of Management of the Institution had
declared the appellant senior to the
respondent no.7. However, the learned
Single Judge, while adjudicating the issue
of re-determination of seniority, has lost
sight of not considering the aforesaid
aspect of the matter and has erred in
recording the finding that the respondent
no.7 is continuing to be senior in the
Institution since 1996, which has not been
challenged by the teachers working in the
Institution
including
Smt.
Khusnuda
Parveen (appellant herein), therefore, the
ratio of the judgment of the Full Bench in
the case of Dr. Asha Saxena Vs. Smt. S.K.
Chaudhary : (1991) 17 ALR 267 relied
upon by the learned Counsel for the writ
petitioner (respondent no.7 herein) is fully
applicable to the facts and circumstances of
the case and as such respondent no.6
(appellant herein) cannot be allowed to
challenge the seniority of the writ petitioner
(respondent no.7 herein) after lapse of
almost 15 years.

(24) So far as the issue of
appointment of the appellant on the basis of
the alleged forged caste certificate is
concerned,
learned
Amicus
Curiae
representing appellant has argued that the
appellant, who did not belong to a
Scheduled Caste community by birth but
belong to General Category by birth, got
married
with
Sri
Harish
Chandra
Sundaram, who belonged to the Scheduled
Caste community and as such, the appellant
was entitled to caste certificate on the basis
of the law prevailing at the relevant point
of time. Learned Amicus Curiae has placed
reliance upon the judgment of the Apex
Court in N.E. Horo Vs. Smt. Jahan Ara
Jaipal Singh : AIR 1972 SC 1840 and
argued that in view of N.E. Horo (supra),
the appellant belonged to the Scheduled
Caste community. On that basis, she was
appointed as a Lecturer (Urdu) in the
Institution through direct recruitment by the
U.P. Secondary Education Selection Board
on 07.06.1996. Her submission, thus, is that
this is not a case where appellant, on the
basis of false averments or by playing
fraud, had sought and was granted a false
Caste Certificate. However, the learned
Single Judge, while adjudicating the issue,
has lost sight of not considering the
aforesaid aspect of the matter and erred in
declaring
that
the
appellant
got
appointment on the post in question by
playing fraud.

(25)

Learned
Amicus
Curiae
representing the appellant has further
submitted that the respondent no.7-Ram
Ujagar Mishra had no reason to file writ
petition No. 7415 (S/S) of 2014 against the
appellant that too in the year 2014 i.e.
approx ten years prior to the retirement of
the appellant. She submits that the
respondent no.7 is working as a Lecturer
(Mathematics)
in
the
Institution
and
apparently he is junior to the appellant,
therefore, the respondent no.7 had no locus
standi to file such a petition against the
appellant herein. On this count also, the
impugned judgment/order passed by the
learned Single Judge is liable to be
quashed.

(26) Per contra, learned Counsel for
the
respondents
supported
the
judgment/order of the learned Single Judge
and submitted that the appellant belonged
to General Category and did not belong to
Scheduled Cast community by birth.
Therefore, she could not have obtained a
Caste Certificate to the effect that she
belonged
to
the
Scheduled
Caste
community. They submits that the appellant
240 INDIAN LAW REPORTS ALLAHABAD SERIES
was appointed on the post of Lecturer
(Urdu) by the U.P. Secondary Education
Service Board under Scheduled Caste
category, whereas she actually belongs to
General Category. In the service book of
the appellant also, the caste of the appellant
was shown 'Chamar', which comes under
the category of Scheduled Caste. They
pointed out that at the time of selection of
appellant, the U.P. Secondary Education
Selection Board had prepared the merit list
category-wise like General, O.B.C. and
SC/ST, in which the name of the appellant
finds place in the category of Scheduled
Caste and the appellant scored only 19
marks and got selected on the post of
Lecturer (Urdu) in Varg-I, while the last
candidate of General Category, namely,
Zeenat Zahara Rizwi, obtained 58 marks,
but could not be selected, meaning thereby
the appellant was selected under the
Scheduled Caste Certificate not in the
General Category.

(27) Learned Counsel for the
respondents has further argued that as the
appellant obtained appointment of Lecturer
(Urdu) by showing her belonging to
Scheduled Caste community, even knowing
the fact that she belong to General
Category by birth, therefore, the learned
Single Judge has rightly observed that the
appointment was obtained by the appellant
by playing fraud. Thus, the finding
recorded by the learned Single Judge in this
regard is just and proper and there is no
illegality of infirmity in the impugned
order.

(28) Learned Counsel for the
respondents has further argued that as the
appointment of the appellant was itself
void, hence issue of seniority or other
service benefit agitated by the appellant
cannot be looked into at this stage. Moreso,
the declaration of law by the Hon'ble
Supreme Court of India under Article 141
of the Constitution of India is always
retrospective
unless
made
specifically
prospective and that as there is nothing
indicated to that effect in the subsequent
ruling, it would necessarily follow that the
appellant cannot claim any benefit to
continue in employment on the basis of the
overruled decision.

D. ANALYSIS & FINDINGS

(29) Having heard learned Counsel
representing the parties and going through
the record available before this Court, it is
required to be noted that learned Counsel
for the appellant has assailed the impugned
judgment/order passed by the learned
Single Judge on various grounds, however,
we deem it apt to first deal with the issue of
appointment of the appellant on the post of
Lecturer (Urdu) obtained by her on the
basis of Scheduled Caste Community
Certificate. This issue gains significance as
in case the appellant is not able to cross the
bridge
of
her
appointment,
the
consequential benefits of seniority, would
obviously not accrue in her favour.

(30) Apparently, it has been argued by
the learned Amicus Curiae that there has
not been any misrepresentation on the part
of the appellant in obtaining the Scheduled
Caste Community certificate, as she has
obtained the said certificate after disclosing
the specific fact that she claimed Scheduled
Caste status only on the basis of her
marriage
with
Shri
Harish
Chandra
Sundaram, who belongs to 'Chamar'
community, which has been notified as
Scheduled Caste Community.

(31) In order to buttress the claim that
though the appellant did not belong to
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
241
Scheduled Caste Community by birth, she
was entitled to be treated as Scheduled
Caste Community on her marriage with a
Scheduled Caste person, the learned
Counsel for the appellant cited the decision
of the Hon'ble Supreme Court in N.E.
Horo (supra), in which it has been held as
follows :-

"23. We may also refer to Article
330 of the Constitution according to which
the seats reserved for the Scheduled Tribes
are to be reserved in the House of the
People, inter alia, for members of these
Tribes. Under S.33(2) of the Act a
candidate for a reserved seat has to file a
declaration specifying a particular caste or
tribe of which he is a member. Article
342(1) empowers the President to specify
'the tribes or tribal communities or parts of
or
groups
within
tribes
or
tribal
communities which shall, for the purposes
of the Constitution, be deemed to be
Scheduled Tribes in relation to the State or
Union territory as the case may be. In
Parts 1 to 12 of the Schedule to the
Constitution (Scheduled Tribes) Order
1952 are specified the tribes or tribal
communities or parts of or groups within
the tribes or tribal communities who are to
be deemed to be Scheduled tribes. Munda
is one of such specified tribes or tribal
communities. It can well be said that the
term "tribal community" has a wider
connotation than the expression "tribe". A
person who, according to the strict custom
of a tribe cannot be regarded as a member
of that tribe may well be regarded as a
member of that tribal community. Where a
non-Munda woman is married to a Munda
male and the marriage is approved and
sanctioned by the Parha Panchayat of that
tribe and the marriage is valid she may not,
on the assumption that the rule of
endogamy prevails, become a member of
the Munda tribe in the strict sense as not
having been born in the tribe. She cannot,
however, be excluded from the larger
group, namely, the tribal community. The
High Court has taken the view that the use
of the term "tribal communities" in addition
to the term "tribes" in Article 342 shows
that a wide import and meaning should be
given to these words and even if the
respondent is not a member of the Munda
tribe by virtue of birth she having been
married to a Munda after due observance
of all formalities and after obtaining the
approval of the elders of the tribes would
belong to the tribal community to which her
husband belongs on the anology of the wife
taking
the
husband's
domicile.
Even
without invoking the doctrine of domicile
the respondent's marriage with late Shri
Jaipal Singh who was a Munda having
been approved and sanctioned by the
Parha Panchayat of the Munda tribe it can
be said that she became a member of the
Munda tribal community. We have not been
shown any infirmity in the reasoning of the
High Court on this point. When a person,
in the course of time, has been assimilated
in the community it is somewhat difficult to
comprehend how that person can be denied
the rights and privileges which may be
conferred on that community even though
tribal by constitutional provisions."

(32) However, the learned Amicus
Curiae appearing on behalf of the appellant
missed the point that although the appellant
was
appointed
on
07.06.1996,
the
Judgment, which held the field, was not in
fact N.E. Horo (supra), but another
Judgment passed by the Hon'ble Supreme
Court subsequently on 04.01.1996. The
dates are of great significance as the
argument that the Judgment of N.E Horo
(Supra) would apply falls flat on its own
weight as by the time the appointment of
242 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant was being made, the judgment
in Valasamma Paul v. Cochin University
and others : [(1996) 3 SCC 545] had been
governing the field. It is important to note
that the Hon'ble Supreme court, after
considering the aforesaid decision in N.E.
Hora's
case
and
other
subsequent
judgments, had held in Valasamma (Supra)
as follows:-

"34. ... ... ... when a member is
transplanted into the Dalits, Tribes and
OBCs. he/she must of necessity also
undergo have had same the handicaps, and
must have been subject to the same
disabilities, disadvantages, indignities or
sufferings so as to entitle the candidate to
avail the facility of reservation. A candidate
who had the advantageous start in life
being born in forward caste and had march
of advantageous life but is transplanted in
backward caste by adoption or marriage or
conversion, does not become eligible to the
benefit of reservation either under Article
15(4) or 16(4), as the case may be.
Acquisition of the Status of Scheduled
Caste etc. by voluntary mobility into these
categories would play fraud on the
Constitution, and would frustrate the
benign constitutional policy under Articles
15(4) and 16(4) of the Constitution."

(33) Submission of the learned
Amicus Curiae representing the appellant is
that as the Scheduled Caste Community
Certificate of the appellant had been issued
on the basis of a ruling of the Apex Court
in N.E. Hora's Case which was then
holding the field and had enabled the
appellant to secure an employment on
07.06.1996 is not correct and as such the
argument of the learned Amicus Curiae that
the appointment of the appellant would not
be equitable to deprive her of that
Scheduled Caste Community status on the
basis of the subsequent ruling of the Apex
Court of the year 1996 is also not correct.

(34) It would be apt to mention here
that a Bench of Three-Judges of the
Hon'ble
Supreme
Court
in
Sobha
Hymavathi Devi v. Setti Gangadhara
Swamy and others : (2005) 2 SCC 244, on
noticing the contradictions in the decisions
of the two Division Benches of the Hon'ble
Supreme Court in N.E.Hora v. Smt.Jahan
Ara Jaipal Singh (supra) and Valasamma
Paul v. Cochin University and others
(supra),
held
that
the
constitutional
reservations intend to benefit the really
underprivileged and not those who come to
the caste by way of a marriage, and to that
extent, the decision in N.E. Horo's case,
which runs counter to that view, cannot be
accepted as correct, and categorically laid
out that the recognition of a lady as a
member of a Backward Class Community
in view of her marriage would not be
relevant for the purpose of entitlement to
reservation under Article 16(4) of the
Constitution of India for the reason that she
as a member of the forward caste, had an
advantageous start in life and a marriage
with a male belonging to a backward class,
would not entitle her to the facility of the
reservation given to a Backward Class
Community. There is nothing indicated in
that binding ruling that it would be only
prospective in operation. The relevant part
of Sobha Hymavathi Devi (supra) is
reproduced as under :-

"What then remains is the fact
that the appellant though assigned the
caste of her father Murahari Rao, namely,
the Sistu Karnam community, had married
a tribal belonging to the Bhagatha
Community. On the basis of this marriage,
it is argued that she must be taken to have
acquired membership in the community of
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
243
her husband and consequently treated as a
member of that community. It is in that
context that the decision in Horo (supra)
was relied on. It is also contended that the
decision in Horo (supra) related to an
election dispute and consequently, the ratio
of that decision should govern the present
case. We have already indicated that there
is nothing to show that the marriage of the
appellant with Appala Raju was sanctioned
or approved by the elders of the Bhagatha
Community or the concerned Panchayat or
was in tribal form or that the formalities
attending such a tribal marriage were
observed and the marriage was performed
after obtaining the approval of the elders of
the tribe. Even otherwise, we have difficulty
in accepting the position that a non-tribal
who marries a tribal could claim to contest
a seat reserved for tribals. Article 332 of
the Constitution speaks of reservation of
seats for Scheduled Tribes in Legislative
Assemblies. The object is clearly to give
representation
in
the
legislature
to
Scheduled Tribe candidates, considered to
be deserving of such special protection. To
permit a non-tribal under cover of a
marriage to contest such a seat would tend
to defeat the very object of such a
reservation. The decision of this Court in
Valsamma
Paul
(Mrs.)
vs.
Cochin
University and others (supra), supports
this view. Neither the fact that a nonbackward female married a backward male
nor the fact that she was recognized by the
community thereafter as a member of the
backward community, was held to enable a
non- backward to claim reservation in
terms of Articles 15(4) or 16(4) of the
Constitution. Their Lordships after noticing
Bhoobun Moyee v. Ram Kishore, (1865) 10
MIA 279, and Lulloobhoy Bappoobhoy
Cassidass Moolchund v. Cassibai, (187980) 7 IA 212, held that a woman on
marriage becomes a member of the family
of her husband and thereby she becomes a
member of the caste to which she has
moved. The caste rigidity breaks down and
would stand as no impediment to her
becoming a member of the family to which
the husband belongs and to which she gets
herself transplanted. Thereafter, this Court
noticed that recognition by the community
was also important. Even then, this Court
categorically laid down that the recognition
of a lady as a member of a backward
community in view of her marriage would
not be relevant for the purpose of
entitlement to reservation under Article
16(4) of the Constitution for the reason that
she as a member of the forward caste, had
an advantageous start in life and a
marriage with a male belonging to a
backward class would not entitle her to the
facility of reservation given to a backward
community. The High Court has applied
this decision to a seat reserved in an
election in terms of Article 332 of the
Constitution. We see no reason why the
principle relating to reservation under
Articles 15(4) and 16(4) laid down by this
Court should not be extended to the
constitutional reservation of a seat for a
Scheduled Tribe in the House of the People
or under Article 332 in the Legislative
Assembly. The said reservations are also
constitutional reservations intending to
benefit the really underprivileged and not
those who come to the class by way of
marriage. To the extent the decision in
Horo (supra) can be said to run counter to
the above view, it cannot be accepted as
correct. Even otherwise, in the absence of
evidence on the relevant aspects regarding
marriage in tribal form and acceptance by
the community, the decision in Horo
(supra) cannot come to the rescue of the
appellant. On a consideration of the
relevant aspects, we are of the view that
whether it be a reservation under Articles
244 INDIAN LAW REPORTS ALLAHABAD SERIES
15(4) or 16(4) or 330 and 332, the said
reservation would benefit only those who
belong to a Scheduled Caste or Scheduled
Tribe and not those who claim to acquire
the status by marriage, like the appellant in
this case. Thus, in our view, the High Court
was fully justified in coming to the
conclusion that the appellant could not
claim the right to contest a seat reserved
for a Scheduled Tribe in terms of Article
332 of the Constitution of India merely by
virtue of her marriage to a person
belonging to a Scheduled Tribe."
(emphasis supplied)

(35) To the aforesaid context, it would
be
necessary
to
recapitulate
the
unassailable
legal
position
regarding
retrospectively of declaration of law by a
binding ruling of the Hon'ble Supreme
Court under Article 141 of the Constitution
of India as held in M.A.Murthy v. State of
Karnataka : (2003) 7 SCC 517, which
reads as under :-

"8. ... the law declared by this
Court is presumed to be the law at all
times. Normally, the decision of this Court
enunciating a principle of law is applicable
to all cases irrespective of its stage of
pendency because it is assumed that what is
enunciated by the Supreme Court is, in fact,
the law from inception. The doctrine of
prospective overruling which is a feature of
American jurisprudence is an exception to
the normal principle of law, was imported
and applied for the first time in L.C. Golak
Nath v. State of Punjab [AIR 1967 SC
1643]. In Managing Director, ECIL v. B.
Karunakar [(1993) 4 SCC 727 : 1993 SCC
(L&S) 1184 : (1993) 25 ATC 704] the view
was adopted. Prospective overruling is a
part of the principles of constitutional
canon of interpretation and can be resorted
to by this Court while superseding the law
declared by it earlier. It is a device
innovated to avoid reopening of settled
issues,
to
prevent
multiplicity
of
proceedings, and to avoid uncertainty and
avoidable litigation. In other words,
actions taken contrary to the law declared
prior to the date of declaration are
validated in larger public interest. The law
as declared applies to future cases. (See
Ashok Kumar Gupta v. State of U.P.
[(1997) 5 SCC 201 : 1997 SCC (L&S)
1299] and Baburam v. C.C. Jacob [(1999)
3 SCC 362 : 1999 SCC (L&S) 682 : 1999
SCC (Cri) 433] .) It is for this Court to
indicate as to whether the decision in
question will operate prospectively. In
other words, there shall be no prospective
overruling, unless it is so indicated in the
particular decision. It is not open to be held
that the decision in a particular case will
be prospective in its application by
application of the doctrine of prospective
overruling.
The
doctrine
of
binding
precedent helps in promoting certainty and
consistency in judicial decisions and
enables an organic development of the law
besides
providing
assurance
to
the
individual as to the consequences of
transactions forming part of the daily
affairs. ..."
(emphasis supplied)