- (1.) Heard learned counsel for the petitioner and Sri. J.N. Maurya, learned counsel appearing for respondent Nos. 2 and 5. Learned Standing Counsel appears for respondent Nos. 1 and 3. Sri. Shailendra Singh has put in appearance on behalf of respondent No. 4 but he is not present even in the revised call. The case of the petitioner is that she applied for appointment on the post of 'Shiksha Mitra' in Ward No. 3, Kasba Jhinjhak, Kanpur Dehat and was selected and sent for training. However, her appointment has been cancelled on the ground that she has submitted caste certificate of Scheduled Caste whereas she is married to a person belonging to OBC category and thereby has committed fraud and the next person, namely, respondent No. 4 was sought to be appointed. At this juncture, the present writ petition was filed and this Court vide its order dated 5.2.2008 while calling for counter-affidavit stayed the operation of the order dated 30.7.2007.
(2.) The claim of the petitioner is that the aforesaid post was reserved for Scheduled Caste category candidate and she being 'Khatik' by caste is a Scheduled Caste candidate and, therefore, eligible for applying for the post but the authority concerned erroneously held that since she is married to a person belonging to OBC category, she was ineligible to apply for the post under the Scheduled Caste category.
(3.) Learned counsel for the petitioner has relied upon certain decisions of this Court as well as Hon'ble Supreme Court wherein it has been held that by marriage, the caste of the female does not change. Learned counsel for the petitioner has relied upon a decision in the case of Sandhya Thakur v. Vimla Devi Kushwah and others, 2005 1 AWC 679 (SC), para 2 whereof is quoted herein below: In the light of the decision in Valsamuna Paul v. Cochin University and others, and our decision rendered today in Civil Appeal Nos. 4413-4414 of 2003, which were heard alongwith this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community. Therefore, it is not possible to accept the argument that the appellant was entitled to contest a seat reserved for a backward community merely because of her marriage to a person belonging to the Namdev community or caste. We also see no reason to differ from the High Court in its view that the Circular dated 12.3.1997 was not restricted in its operation to employment and admission to an educational institution, but was also relevant and applicable in elections to local bodies. It is, thus, found that both the reasons given by the High Court for affirming the decision of the District Judge setting aside the election of the appellant are sustainable. In view of this we have no hesitation in confirming the decision of the High Court and in dismissing this appeal. Hence, we dismiss this appeal with costs. Similar view has also been taken by a Division Bench of this Court in the case of Smt. Sushma Singh v. State of U.P. and others,2005 2 ESC 1537 (All)(DB), as well as in Apex Court's decision in the case of Meera Kanwaria v. Sunita and others, 2006 1 SCC 344. Considering the facts and circumstances of the case and the aforesaid decisions, the order impugned dated 30.7.2007 (Annexure-6 to the writ petition) cannot be sustained and is hereby quashed. The writ petition is accordingly allowed.;