Orissa High Court Asks Collector To Reconsider Appeal For Issuance Of ST Certificate On Basis Of Mother’s Tribe

The Orissa High Court has ordered an appellate authority to reconsider an appeal against denial of tribe certificate to a boy who was brought up by his tribal mother. The  woman had been deserted by her non-tribal husband.

While giving relief to the petitioner, the Single Judge Bench of Justice Arindam Sinha observed,

“The appellate authority thereafter went on to take view that the Tahsildar had properly followed the procedures as per rules and regulations, while rejecting the application of appellant. Assertion of petitioner on facts regarding bringing up of her son in the tribal community was not even looked at.”

The petitioner, who belongs to a scheduled tribe, married a person from the Socially and Educationally Backward Classes (SEBC). Subsequently, the husband deserted her.  A child from the wedlock was brought up by his mother in the tribe.

Application for caste certificate in respect of the child was rejected by the Tahsildar and was confirmed in appeal by the appellate authority, i.e. the Collector, Sambalpur. Being aggrieved by the orders, the mother approached the High Court by filing the writ petition.

It was submitted for the petitioner that the appellate authority proceeded with hearing of the appeal without affording an opportunity of hearing to the petitioner or to her counsel, though it was recorded in the order-sheet that he heard the advocate for the petitioner.

It was further submitted that without calling for records from the Tahsildar, the appeal was disposed of on the basis of a letter of the Tahsildar, without ascertaining veracity of the statement made by him. It also recorded that the Tahsildar has followed the rule and is justified in rejecting the application.

Challenging the legal propriety of the impugned order, the observations made by the Apex Court in Rameshbhai Dabhai Naika v. State of Gujarat & Ors. were relied upon by the petitioner. Therein, it was inter alia held,

“…the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case… In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father… But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe.”

Having regard for the above position of law, the court acceded to the argument that for granting caste certificate, it is crucial to determine as to whether the child born out of such a wedlock has been accepted by the mother’s community as a member of their tribe and whether he has been brought up in that surrounding and, in that community.

The court noted that the appellate authority went on to take the view that the Tahsildar had properly followed the procedures as per rules and regulations, while rejecting the application of the appellant. However, while doing so, the assertion of petitioner regarding bringing up of her son in the tribal community was not even considered, it said.

Accordingly, the order was set aside and the appeal was restored to the Collector, who was directed to reconsider the appeal expeditiously within six weeks.

Case Title: Jayanti Naik v. State of Odisha & Ors.

Case No.: W.P.(C) No. 37095 of 2022

Date of Judgment: March 28, 2023

Counsel for the Petitioner: Mr. Santosh Kumar Dash, Advocate

Counsel for the Respondents: Mr. A.K. Nanda, Additional Government Advocate

Citation: 2023 LiveLaw (Ori) 43

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