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       NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._487  OF 2018

(Arising from SLP(C) No.7181 of 2016)

Sunita Singh        ..Appellant Versus

State of Uttar Pradesh and others ..Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. Judgment dated 21.12.2015 passed by the High Court of

Judicature at Allahabad  in  Writ-C No. 53689 of 2015, dismissing

the writ petition filed by the appellant and confirming the order of

termination from service passed against the appellant, is called in

question in this appeal.

3. Appellant was born in “Agarwal” family.  She married Dr.

Veer Singh, who happens to belong to “Jatav” Community (said to

be  one  of  the  Scheduled  Castes).   A  caste  certificate  dated

29.11.1991  was  issued  by  District  Magistrate/Collector,

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Bulandshahar  certifying  the  appellant  as  of  Scheduled  Caste

(Jatav).   Based  on  the  academic  qualifications  and  the  caste

certificate, she was appointed initially as a Post Graduate Teacher

(Hindi)  vide  letter  dated 16.12.1993 at  Kendriya Vidyalaya  No.1,

Pathankot, Punjab.  During the course of her service, she completed

her M.Ed and served the institution for about 21 years as teacher.

4. A complaint was lodged against the appellant to the effect

that she was born in “Agarwal” family (general caste category) and

after her marriage with a person of scheduled caste, she obtained a

caste certificate in question.  After making preliminary verification,

the jurisdictional officer directed to conduct an enquiry in respect of

the caste certificate of the appellant.  The Tehsildar vide his order

dated 22/27.6.2013 cancelled the caste certificate of the appellant

and asked the appellant to return the caste certificate issued earlier

to the appellant.

City  Magistrate,  Bulandshahar  vide  letter  dated

18.07.2013 communicated to the Deputy Commissioner, Kendriya

Vidyalaya  Sangathan   that  the  caste  certificate  issued  to  the

appellant treating her as “Jatav” has been cancelled.  Subsequently,

the  appellant  made  a  representation  to  District  Magistrate,

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Bulandshahar on 6.1.2014 requesting him to reconsider the matter

and the said representation came to be dismissed on 3.9.2014 by

District  Magistrate,  Bulandshahar.   The  appeal  filed  by  the

appellant  against  the  order  of  the  Tehsildar  cancelling  her  caste

certificate and the order of the District Magistrate dismissing her

representation was also dismissed by the appellate authority i.e.,

Commissioner, Meerut Division, Meerut on 27.12.2014.  As a result

of cancellation of the caste certificate, an order was passed by the

Kendriya  Vidyalaya  Sangathan  on  18.03.2015  terminating  the

appellant from the services of Kendriya Vidyalaya Sangathan.  The

appeal  filed  by  the  appellant  before  the  State  Level  Committee

against  the  order  of  the  appellate  authority  cancelling  her  caste

certificate  also  came  to  be  dismissed  on  15.05.2015.   The

appellant’s further efforts of approaching the High Court by filing

the writ petition also failed, inasmuch as the High Court dismissed

the writ petition by the impugned judgment.  Hence, this appeal.

5. There cannot be any dispute that the caste is determined

by  birth  and  the  caste  cannot  be  changed  by  marriage  with  a

person of scheduled caste. Undoubtedly, the appellant was born in

“Agarwal”  family,  which  falls  in  general  category  and  not  in

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scheduled caste.   Merely because her husband is belonging to a

scheduled  caste  category,  the  appellant  should  not  have  been

issued with a caste certificate showing her caste as scheduled caste.

In that regard, the orders of the authorities as well as the judgment

of the High Court cannot be faulted.

However, having regard to the fact that the appellant has

already  served  as  a  Teacher  and  Vice-Principal  of  Kendriya

Vidyalaya without any black spot in her service career for about 21

years, and that she is going to retire shortly, we take lenient view by

exercising jurisdiction under Article 142 of the Constitution of India

and  order  to  convert  the  order  of  termination  to  an  order  of

compulsory  retirement.   While  exercising  leniency,  we  have  also

kept  in  mind  that  the  appellant  has  neither  played  fraud  nor

misrepresented before any of the authorities for getting the caste

certificate  and  while  continuing  in  service  based  on  the  caste

certificate. No questions were raised against her till the complaint in

question came to be lodged, even when the authorities had seen the

High  School  Certificate,  Marks  Sheet  etc.  showing  her  caste  as

Agarwal at  the initial  stage.  Having regard to the totality of  the

facts  of  the  case,  the  impugned  judgment  of  the  High  Court  is

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modified.  “The order of termination from service” passed against

the  appellant  shall  be  treated  as  “the  order  of  compulsory

retirement”.   However,  we  make  it  clear  that  this  shall  not  be

treated as a precedent in future.

6. The appeal stands disposed of in the aforesaid terms.  No

order as to costs.

         ………………………………………………..J.   [ARUN MISHRA]

 ......…………………………………………..J.  [MOHAN M. SHANTANAGOUDAR]

NEW DELHI; JANUARY 19, 2018.