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Thursday, June 30, 2022

Explained: Nawab Malik said Wankhede, a Muslim, illegally benefitted from SC quota. What rules apply to job reservations for different religions, converts?

In October 2021, Nawab Malik alleged Sameer Wankhede was raised as a Muslim, and he was, therefore, ineligible for the 15% reservation for SCs in government jobs that he claimed in the Civil Services Examination. Wankhede’s family had denied the allegation.

Written by Shyamlal Yadav , Zeeshan Shaikh , Edited by Explained Desk | Mumbai, New Delhi |
Updated: May 28, 2022 2:06:07 pm
Sameer Wankhede at the NCB office in New Delhi. (Express Photo: Praveen Khanna, File)

As the Narcotics Control Bureau (NCB) case against Shah Rukh Khan’s son Aryan Khan collapsed on Friday (May 27), leaders of Maharashtra’s ruling Maha Vikas Aghadi (MVA) rallied behind former NCP Minister Nawab Malik, who had in October last year waged a literally one-man battle against Sameer Wankhede, the chief investigator in the case.

Among the allegations that Malik, who is now in jail after being arrested by the Enforcement Directorate in a separate case earlier this year, made against Wankhede was that the officer had illegally benefited from the government’s affirmative action policy for Dalits.

Malik’s allegation was that Wankhede was raised as a Muslim, and was, therefore, ineligible for the 15 per cent reservation for Scheduled Castes (SCs) in government jobs. Wankhede’s family had denied the allegation.

What did Nawab Malik accuse Sameer Wankhede of having done?

According to Malik, Dnyandev Kachru Wankhede, the father of Sameer Wankhede, was an SC who converted to Islam before marrying Sameer’s mother, Zaheeda Begum.

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Sameer was born in 1979. Malik has released his birth certificate which records his father’s name as Dawood K Wankhede.

Malik has claimed that Sameer was raised as a Muslim, and was a Muslim at the time of his marriage in 2006. Malik had last year released what he had claimed was Sameer’s nikahnama — the document on which two Muslim partners entering into a civil union must sign to legalise their marriage.

The document was dated December 7, 2006, and showed Wankhede’s name as Sameer Dawood Wankhede.

So where does the question of his having availed of quota arise?

Malik alleged that Sameer, a Muslim, was selected in the Civil Services Examination (CSE) under the SC quota, to which he was not entitled.

The list of officers on the website of the Department of Personnel and Training (DoPT), which allots services to those who clear the CSE shows that Wankhede was ranked 561st in CSE 2007.

He was selected as a candidate from the SC category, and became an officer of the 2008 batch of the Indian Revenue Service (Customs and Indirect Taxes).

How does the fact that he may have been Muslim impact his eligibility for reservation?

There is a 15 per cent quota for SCs in government jobs. But Hindu SCs who convert to Islam lose their SC status, and are no longer eligible for the quota.

A brochure on the DoPT site lays down the position on SC status and conversions:

“A person shall be held to be a member of a Scheduled Caste or Scheduled Tribe if he belongs to a caste, or a tribe which has been declared as such…

“No person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of the Scheduled Castes…” (On STs, see below.)

Further, “A person belonging to a Scheduled Caste or Scheduled Tribe will continue to be deemed as such irrespective of his/her marriage to a non-Scheduled Caste/Scheduled Tribe.”

However, “A convert or re-convert to Hinduism and Sikhism shall be accepted as a member of Scheduled Caste if he has been received back and accepted as a member of the concerned Scheduled Caste.”

The Constitution (Scheduled Castes) Order, 1950, which lays down that no person professing a religion different from the Hindu or Sikh or Buddhist religion can be deemed to be a member of an SC, has been amended several times.

The original order under which only Hindus were classified as SCs, was amended to include Sikhs in 1956, and Buddhists in 1990.

No such religion-based bar, however, operates for STs and Other Backward Classes (OBCs). The brochure on the DoPT site says, “The rights of a person belonging to a Scheduled Tribe are independent of his/her religious faith.”

But if Hindus and Sikhs qualify for benefits under the SC quota, is the exclusion of Muslims and Christians discriminatory?

Petitions have been filed in the Supreme Court seeking the inclusion of Muslims and Christians in the SC category.

In 2004, the Centre for Public Interest Litigation challenged the legality of the provision by which people professing and converting to religions other than Hinduism, Sikhism, and Buddhism were deprived of reservation benefits.

In 2008, the National Commission on Minorities concluded that there was a case for inclusion of Dalit Christians and Dalit Muslims in the SC category.

In January 2020, the SC agreed to examine a plea by the National Council of Dalit Christians to make the government’s affirmative action programmes religion-neutral. The plea is pending before the court.

In inter-caste marriages, can the mother’s caste be the caste of the couple’s child?

The child carries the caste of the father, and caste certificates are issued on this basis. However, courts have taken note of the surroundings in which the child was brought up.

In ‘Rameshbhai Dabhai Naika vs State of Gujarat & Ors’ (2012), the Supreme Court ruled: “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. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. 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.”

In 2006, then Minister for Social Justice and Empowerment Meira Kumar had proposed that children born of inter-caste marriages should get SC status if either parent belongs to a Scheduled Caste. A proposal along these lines was to be placed before the Cabinet in April 2008, but was withdrawn at the last minute. There was resistance to the suggestion from many quarters, including the National Commission for Scheduled Castes (NCSC).

Coming back to Wankhede, what can happen if a caste certificate is found to be false?

A DoPT circular of May 19, 1993 says: “Wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc… or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service…

“If he/she has become a permanent Government Servant… if the charges are proved, the Government servant should be removed or dismissed from service.”

Sameer Wankhede may face an inquiry, and may even be dismissed if his SC certificate is found to be false. However, clarity is required on several questions — for example:

* whether his father was a Muslim when Sameer was issued his SC certificate;

* whether his father converted to Islam to marry and then re-converted — and if so, when;

* whether Sameer changed his religion to Hinduism just to receive an SC certificate.

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