Decided on May 20,1993

STATE OF J AND K Respondents


R.P.SETHI, J. - (1.)HOW does the marriage of a Hindu female outside her caste affects her rights of benefits arising out of the Jammu and Kashmir Scheduled Castes and Backward Classes Rules, 1970 (hereinafter referred to as the 1970 Rules)? is the important question of law referred to this Bench vide order passed by the learned Single Judge on 16.11.1990. It is submitted that as after her marriage the female acquires the status and Gotra of her husband, her rights in terms of the 1970 Rules should be determined by reference to the caste of her husband notwithstanding his own caste in which she was born.
(2.)SOME of the facts giving rise to the filing of the present petition are : that the petitioner herein who is a member of a scheduled caste claims promotion under the rules by quashing order No. DSW/286 of 1989 dated 20 -10 -1989 with a prayer of restraining the respondents from reverting her to the most from which she was promoted. Tt is submitted that as respondent No. 3 who was originally a member of the scheduled caste, had married to a Rajput she has become disentitled to claim the benefit under the 1970 Rules. Respondent No. 3 is alleged to have made a representation against the promotion of the petitioner as Asstt. Child Development and Project Officer (ACDPO. for Short) on the ground that she was senior than the petitioner and could not be ignored while making promotion vide order No. DSW/229 of 1989 dated 2 -9 -1989. Said representation was accepted vide the order impugned herein wherein was held :
'Whereas Smt. Suman Bala Supervisor represented against this order on the ground that she is senior to Sunita Devi and figures at Sr. No. 13 of seniority list circulated vide this office endorsement No. DSW/Estt. -Sup/3839 -396/86 dated 5 -9 -1986 and belongs to a Sch. Caste community. . Whereas the representation of Smt. Suman Bala has been examined and her claims of being senior to that of Sunita Devi accepted. XX XX XXNow, therefore, it is hereby ordered that Smt. Sunita Devi appearing at Sr. No. (6) of Part II Jammu Dev. in order No. DSW -229 of 1989 dated 2 -9 -1989 shall revert to her original place of posting as Supervisor and Smt. Suman Bala shall be deemed to have been promoted for a period of six months and placed in the grade of 1550 -2350 against the original grade of Rs. 1550 -2250 as Asstt. C.D.P.O. and posted in ICDS Project Bishnah.'

In the counter affidavit filed on behalf of respondents 1 and 2 it is submitted that the petitioner came to be appointed as Supervisor in the ICDS Project on probation for a period of two years vide Government order No. DSW 6718 -52 dated 10.11.1983 alongwith respondent No. 3. The name of the petitioner figured at S. No. 24 whereas name of respondent No. 3 figured at No. 11 of the said order. A tentative seniority list of supervisors in the ICDS Project was circulated by the Directorate of Social Welfare on 5.9.1986 wherein respondent No. 3 was shown to be at S. No. 13 and the petitioner at S. No. 25 vide order No. DSW -229 of 1989 dated 2.8.1989 six supervisors of Kashmir as well as Jammu divisions were promoted as ACDPO for a period of six months pending clearance by the Deptt. Promotion Committee and according to that order the petitioner who figured at S. No. 6 of the Jammu division was promoted and adjusted as ACDPO in ICDS project Bishnah against the vacant post. Respondent No. 3 made a representation which was thoroughly examined and considered. It was found that the grievance projected by her were genuine as a result whereof respondent No. 3 was ordered to have been promoted vide the order impugned in the writ petition. The petitioner was reverted back to her post on the ground that she had been erroneously shown in the promotion order whereas she being quite junior to respondent No. 3 had been wrongly promoted. The petitioner was relieved by the Child Development Officer on 23.10.1989 afternoon and respondent No. 3 was allowed to join as ACDPO, Bishnah on the same day by submitting joining report (Annexure R7). ICDS Project is a centerally sponsored scheme based on 20 point economic programme given to the nation by late Smt. Indira Gandhi, the then Prime Minister of India and only administrative control was vested in the administrative department of the social welfare of the Government of Jammu and Kashmir whose service rules have not been framed so far. The applicability of then 1970 Rules is not denied but it is submitted that seniority is the only criteria for making, promotions in so far as the Supervisors are concerned. The plea of the petitioner in so far as it pertains to the averment that respondent No. 3 after marrying a non scheduled caste has lost the status of being a scheduled caste member, has vehemently been denied. It is submitted that the contention is contrary to the brochure on Reservation for Scheduled Castes and Scheduled Tribes in services, as issued by the General Department in the year 1986 wherein it has been categorically mentioned that a person belonging to a scheduled caste will continue to be so irrespective of the fact that he or she has married to a non -scheduled caste person.

(3.)IN the counter affidavit filed on behalf of respondent No. 3 it is submitted that despite her marriage with a Rajput she continues to be a member of the scheduled caste for the purposes of the rules. It is submitted that in brochure issued by the General Department it has been specifically mentioned in Chapter I that a person belonging to scheduled caste will continue to be and deemed to be a member of the scheduled caste irrespective of the fact that he or she has married to a non -scheduled caste member, she has further submitted that her representation has been accepted on the admitted fact of her being senior than the petitioner.

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