Rajasthan High Court - Jodhpur
Dashi Devi Damor vs State Of Rajasthan on 13 January, 2021
Equivalent citations: AIRONLINE 2021 RAJ 732
Author: Dinesh Mehta
Bench: Dinesh Mehta
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 18320/2019 Dashi Devi Damor D/o Shri Jesing Bhai W/o Shri Ramlal Damor, Aged About 32 Years, R/o Village Nengala, Post Jorawar Pura, Tehsil Simalwara, District Dungarpur (Raj.).
----Petitioner Versus State Of Rajasthan, Through The Additional Director (Administration), Medical And Health Services, Jaipur, Rajasthan.
----Respondent Connected With (2) S.B. Civil Writ Petition No. 18136/2019 Damor Savita Bahen D/o Shri Devji Bhai, Aged About 25 Years, W/o Shri Praveen Kumar Roat, R/o Village And Post Saranpur, Tehsil Garhi, District Banswara (Raj.).
----Petitioner Versus State Of Rajasthan, Through The Additional Director (Administration), Medical And Health Services, Jaipur, Rajasthan.
----Respondent (3)S.B. Civil Writ Petition No. 8467/2019 Shilpa Ben Garasiya (Rojad) W/o Shri Rajendra Kumar Garasiya, Aged About 26 Years, D/o Shri Kanti Lal, Aged About 26 Years, R/o Village Kharadiwada, Post Aadiwali, Tehsil Khairwada, District Udaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary, Department Of Medical And Health, Government Of Rajasthan, Jaipur, Rajasthan.
2. Director, Medical And Health Services, Government Of Rajasthan, Jaipur, Rajasthan.
3. Additional Director (Administration), Medical And Health Services, Government Of Rajasthan, Jaipur, Rajasthan. (Downloaded on 15/01/2021 at 08:44:02 PM)
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4. Tehsildar, Tehsil Khairwada, District Udaipur, Rajasthan.
----Respondents (4) S.B. Civil Writ Petition No. 16951/2019 Urmila Bahen D/o Amara Bhai W/o Mohan Lal Damor, Aged About 24 Years, Village And Post Punawada, Tehsil Chikhli, District Dungarpur (Raj.).
----Petitioner Versus
1. State Of Rajasthan, Through The Additional Director (Administration), Medical And Health Services, Jaipur, Rajasthan.
2. The Tehsildar, Chikli, District Dungarpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Pankaj Mehta
Mr. Pawan Singh
For Respondent(s) : Mr. KS Rajpurohit, AAG
Mr. Shreyansh Mehta
Mr. Surendra Singh Godara
JUSTICE DINESH MEHTA
Judgment
Reportable 13/01/2021
1. The petitioners in the present writ petitions have approached this Court with a common grievance that their candidature has been considered in TSP-General category though they had applied under TSP-ST category.
2. The question that has cropped up for consideration of this Court is: 'whether a female candidate, after marrying a person of TSP-ST, migrates to the State of Rajasthan, can claim caste based reservation also, while taking TSP reservation benefits in terms of the notification dated 21.10.2019 issued by the Governor of Rajasthan?' (Downloaded on 15/01/2021 at 08:44:02 PM) (3 of 10) [CW-18320/2019]
3. As all the petitions involve common questions of facts, they are being decided conjointly; however, for the sake of convenience, facts of Dashi Devi Damor Vs. State of Rajasthan & Ors (SBCWP No.18320/2019) are being taken into account.
4. State issued a recruitment notification dated 18.06.2018 and invited applications for 637 posts of Female Health Worker for TSP Area, out of which 336 posts were reserved for candidates belonging to Scheduled Tribes. The petitioner applied for the post of Female Health Worker pursuant to the above recruitment notification and submitted her online application form on 28.06.2018.
5. While furnishing the application form, petitioner asserted her candidature as a TSP-ST candidate and relied upon a Domicile certificate and Caste certificate issued with her husband's name.
6. Petitioner was called for document verification on 02.07.2019 and her name was shown as a candidate of TSP-ST category.
7. Petitioner's name was not shown in the final select list of TSP-ST candidates. However, her name was shown in the reserve list of TSP-General candidates.
8. The petitioner has preferred the present writ petition with a grievance that her candidature ought to have been considered as TSP-ST candidate. It is the case of the petitioner that if she were considered under TSP-ST category, she would have secured place in final select list.
9. Inviting Court's attention towards the certificates dated 16.08.2012 and 14.01.2015 issued by the Tehsildar Seemalwara, District Dungarpur, so also the certificate dated 29.01.2016, issued by Taluka Vikas Adhikari, Kadana (State of Gujarat), learned counsel submitted that the petitioner is having domicle (Downloaded on 15/01/2021 at 08:44:02 PM) (4 of 10) [CW-18320/2019] certificate, so also caste certificate issued by the competent authority of State of Rajasthan, which evince that the petitioner is a resident of TSP area and a Scheduled Tribe in the State of Rajasthan. He thus, argued that the respondents were required to consider the petitioner as a TSP-ST candidate.
10. Mr. Pankaj Mehta, learned counsel for the petitioner, invited Court's attention towards notification dated 21.10.2019, issued by the Governor in exercise of powers under Article 244(1) of the Constitution of India and submitted that it categorically provides that any person who migrates to the State of Rajasthan, after marriage, shall be treated to be a person of TSP Area of the State of Rajasthan.
11. Placing reliance upon notification dated 21.10.2019, learned counsel contended that if the State can confer benefits of TSP area to a woman marrying a resident of TSP area of Rajasthan, how can State justifiably deny benefits of reservation to the petitioner and other similarly situated person (who have migrated to Rajasthan after marriage) and refuse to consider them under reserved categories of the State?
12. While maintaining that petitioner's caste has been recognized as Scheduled Tribe in the State of Rajasthan as well as in Gujarat, learned counsel argued that the notification dated 21.10.2019, clearly provides that an ST candidate of TSP area of other State, if migrates to State of Rajasthan after marrying an ST resident of TSP area of Rajasthan, she shall be considered to be an ST candidate of TSP area for the State of Rajasthan.
13. Mr. Pankaj Mehta added that the notification which has been issued for the purpose of grant of employment and with a view to resolve the dispute regarding daughter-in-laws of the State, if (Downloaded on 15/01/2021 at 08:44:02 PM) (5 of 10) [CW-18320/2019] given purposive interpretation, the petitioner and like candidates are required to be treated as TSP-ST candidate. He submitted that petitioner's caste has been notified as Scheduled Tribe not only in the State of Gujarat, but also in the State of Rajasthan.
14. As a corollary fact, Mr. Mehta further submitted that the notification dated 21.10.2019 has been held to be applicable to all pending recruitments by the State of Rajasthan and hence, the respondents were obliged to consider the petitioner as a TSP-ST candidate.
15. Mr. Pankaj Mehta, invited Court's attention towards Para No.1 of the rejoinder and highlighted the case of Smt. Rekha Bahen Kharadi D/o Sh. Suresh Bhai Kharadi, who despite being a resident of State of Gujarat, has been selected as TSP-ST candidate. Learned counsel submitted that the petitioner has been hostilely discriminated against.
16. Mr. Shreyansh Mehta, learned counsel appearing for the respondent-State submitted that the notification dated 21.10.2019, which has been made applicable to the pending recruitment, is applicable only for the purpose of "residence". He invited Court's attention towards the relevant part of the notification dated 21.10.2019, and argued that Hon'ble Governor has laid down that the spouses of the TSP area of Rajasthan, covered by the earlier notification (dated 16.06.2013) shall be deemed to be bona fide residents of TSP area.
17. He argued that the caste is however required to be governed by the notifications declaring a particular caste to be Scheduled Tribe in the State of Rajasthan. He added that since the petitioner hails from Gujarat, she cannot be treated to be a ST candidate of the State of Rajasthan and there is no error in the action of the (Downloaded on 15/01/2021 at 08:44:02 PM) (6 of 10) [CW-18320/2019] respondent in treating her as a General category candidate of TSP area.
18. Heard rival counsel.
19. Before delving further, it would be apt to have a first-hand glance at the relevant clause of the notification, giving rise to the controversy at hands, which reads thus;
"¼x½ mDr [k.M ¼d½ ;k ¼[k½ ds vUrxZr vkus okys fdlh O;fDr ls fookg }kjk lacaf/kr gS vkSj og vius fookg ds ckn ls vuqlwfpr {ks= dk ln~Hkkoh fuoklh gSA "
20. Term 'Scheduled area' and TSP status are relatable to domicile or residence in a particular area. For the purpose of Scheduled area Article 244 of the Constitution of India is relevant and the authority to legislate for Scheduled area and its residents is, the Governor of the State. As against this, Scheduled Tribe/Caste is relatable with the caste, for which Articles 341 and 342 of the Constitution are to be looked at. A caste is declared as Scheduled Caste/Tribe by the order of the President of India.
21. The powers available to Hon'ble Governor under Article 244(1) read with Schedule V of the Constitution of India relate to declaration of rights of "residents" of TSP area and not of particular caste(s) of such area. For the purposes of declaration of caste a Presidential notification alone, issued under the provisions of Constitution (Scheduled Tribes) Order 1950 read with Article 342 is final.
22. Separate list(s) for each of the State and Union Territory including the State of Rajasthan and Gujarat have been issued by the President of India in exercise of powers so vested in him by virtue of Article 342 of the Constitution of India. Article 342 reads thus :
(Downloaded on 15/01/2021 at 08:44:02 PM)
(7 of 10) [CW-18320/2019] "342. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
23. A careful reading of Article 342 particularly opening words "The President may with respect to any State........." clearly suggests that the caste or group of castes notified for a particular State are to be considered/treated as Scheduled Caste/Tribe of that State. As such, even if a particular caste is specified to be a Scheduled Caste/Tribe in two or more States, but when it comes to claiming reservation in a State, the person has to be a Scheduled Caste/Tribe of that particular State.
24. The interplay between the residential status and caste is required to be noticed carefully.
25. Thus, the notification dated 21.10.2019 issued by the Governor has its effect and applicability only for residential purposes. The Governor of Rajasthan in exercise of his constitutional powers had issued a notification dated 21.10.2019, holding that a person marrying a TSP resident of the State of Rajasthan shall be treated to be a TSP resident, it has to be (Downloaded on 15/01/2021 at 08:44:02 PM) (8 of 10) [CW-18320/2019] understood to have effect only on domicility or residential status. Such notification cannot and does not have its implications over caste.
26. As a matter of fact, Governor of a State has power to legislate in the field of Scheduled area only. The notification issued by the Governor cannot have any bearing on caste. For the purpose of declaring a caste to be a Scheduled Caste/Tribe, Presidential Order issued under Article 341/342 is the final word.
27. Indisputably, after marrying a TSP resident of Rajasthan, the petitioner, for all practical purposes, is a resident/domicile of the TSP area of State of Rajasthan. But then, the reservation to SC/ST or even to OBC candidate is not solely dependent upon the caste. Caste based reservation is a complex amalgam of caste and residence, governed by the constitutional provisions; relevant provisions of reservation and judicial pronouncements in this regard.
28. The petitioner is by caste 'Damor', which is a caste notified as Scheduled Tribe under the relevant Presidential Order issued for the State of Rajasthan. May be, such caste namely Damor has also been notified to be a Scheduled Tribe by way of separate Presidential notification issued for State of Gujarat. However, for the purpose of considering a person's right to claim reservation in the State as a Scheduled Tribe, the relevant notification issued for the purpose of State of Rajasthan alone has to be taken into account. Since, people of caste Damor of State of Rajasthan alone have been notified to be Scheduled Tribe for the purposes of benefits of reservation in the State of Rajasthan, persons of Damor caste of the State of Gujarat cannot claim to be a (Downloaded on 15/01/2021 at 08:44:02 PM) (9 of 10) [CW-18320/2019] Scheduled Tribe of the State of Rajasthan, so as to stake their claim against the post reserved for Scheduled Tribe.
29. According to the Article 342 of the Constitution and Presidential Order, the castes and classes enumerated in the Order issued for the State of Rajasthan alone are entitled to be appointed against the posts earmarked for Scheduled Tribe.
30. Judgments of Hon'ble The Supreme Court of India in case of Ranjana Kumari Vs. State of Uttarakhand; 2018 (14) SCALE 755; Division Bench Judgment dated 13.08.2019 State of Raj. Vs. Chitra Devi (D.B. Special Appeal (Writs) No.1960/2018); and judgment of this Court in Sushila Kumari Vs. State of Rajasthan & Ors., SB CWP No.824/2020 dated 20.02.2020; are clear on the caste based reservation.
31. It is a settled position of law that a person derives his/her caste from his/her father or a caste of person is to be reckoned according to his/her paternity.
32. Based on the above analysis, it can solely be concluded that petitioner, born to a Damor father, resident of village Kadana, in the State of Gujarat, is a Damor of Gujarat or a Scheduled Tribe of Gujarat. Therefore, she is, obviously, not entitled to be considered as a Scheduled Tribe of the State of Rajasthan.
33. Having examined from all possible angles, this Court does not find any substance/merit in petitioner's contention.
34. The writ petition, therefore, fails.
35. So far as Mr. Mehta's contention based on Para No.1 of the rejoinder in connection with selection of Rekha Bahen Kharadi under TSP-ST category is concerned, suffice it to observe that no counter has been filed by the State and moreso, in absence of such candidate, this Court would not like to pronounce upon her (Downloaded on 15/01/2021 at 08:44:02 PM) (10 of 10) [CW-18320/2019] rights. But even if the assertion made by the petitioner is found to be correct, the petitioner cannot compel the State to commit or perpetuate an illegality by flagging one wrong. The respondent - State is however, directed to examine the veracity of the stand so taken by the petitioner and in case, what has been alleged by the petitioner has substance, appropriate action be taken against said Rekha Bahen Kharadi in accordance with law, of course after observing principles of natural justice.
36. All the captioned cases are identical except a small difference in facts of SB Civil Writ Petition No.18136/2019 - petitioner therein had applied for the post of Nurse Grade II pursuant to advertisement dated 30.05.2018. But such difference in facts is inconsequential. All the writ petitions are, thus, dismissed.
37. Stay application(s) also stands disposed of.
(DINESH MEHTA),J 3-6-Rahul/-
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