Rajasthan High Court - Jodhpur
Lata vs State Of Rajasthan & Ors on 14 December, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15540 / 2017
Smt. Twarita Gehlot W/o Shri Rajesh Rathore, D/o Shri Sanjay
Gehlot, Aged About 23 Years, By Caste Teli, Resident of Ratlam
Road, Arnod, District- Pratapgarh (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Execution Officer, Zila Parishad, Banswara.
----Respondents
Connected With
S.B. Civil Writ Petition No. 11266 / 2017
Lata W/o Shri Natwar Sharma, Aged About 33 Years, B/c Sharma
Resident Of- Village Hatunia, Tehsil & District- Pratapgarh (Raj.).
----Petitioner
Versus
1. The State of Rajasthan Through the Rural Development and
Panchayati Department (Panchayati Raj), Government of
Rajasthan, Jaipur.
2. Chief Executive Officer, Zila Parishad Pratapgarh, District-
Pratapgarh
3. The District Collector, District- Pratapgarh
4. The Tehsildar, District- Pratapgarh
----Respondents
S.B. Civil Writ Petition No. 15448 / 2017
Smt. Shailbala Joshi W/o Shri Prateek Joshi, D/o Shri Krishna Kant
Joshi, Aged About 27 Years, By Caste Brahaman, Resident of
Sunidhi Sadan, Nai Abadi, Arnod, District- Pratapgarh (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
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Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Executive Officer, Zila Parishad, Banswara.
----Respondents
S.B. Civil Writ Petition No. 15450 / 2017
Smt. Shruti Sharma W/o Shri Vebhav Vyas, D/o Shri Dinesh
Kumar Sharma, Aged About 27 Years, By Caste Brahaman,
Resident of 2- O-6, Housing Board Colony, Tehsil and District-
Banswara (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Executive Officer, Zila Parishad, Banswara.
4. Tehsildar, Banswara.
----Respondents
S.B. Civil Writ Petition No. 15534 / 2017
Smt. Bhawana Kothari W/o Shri Surendra Kumar Kothari, D/o Shri
Gyan Snigh Beash, Aged About 33 Years, By Caste Jain, Resident
of Village & Post - Garhi, District - Banswara (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Execution Officer, Zila Parishad, Banswara.
4. Tehsildar, Garhi, District- Banswara.
----Respondents
(3 of 25)
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S.B. Civil Writ Petition No. 15539 / 2017
Smt. Purva Vohra W/o Shri Chirag Chopara, D/o Shri Dilip Vohra,
Aged About 30 Years, By Caste Jain, Resident of Ward No. 2
Banswara Road, Kushalgarh, Tehsil- Kushalgarh, District-
Banswara, (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Executive Officer, Zila Parishad, Banswara.
----Respondents
S.B. Civil Writ Petition No. 15542 / 2017
Smt. Pooja Sharma W/o Shri Dharamendra Parnami, D/o Shri Hari
Kishan Sharma, Aged About 31 Years, By Caste Brahaman
(Sadhu), Resident of Brahaman Mohalla, Patelwara, Bagidora,
District- Banswara (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Execution Officer, Zila Parishad, Banswara.
4. Tehsildar, Bagidora, District- Banswara.
----Respondents
S.B. Civil Writ Petition No. 15549 / 2017
Smt. Samiksha Jain W/o Shri Chandresh Doshi, D/o Shri Abhay
Kumar Jain, Aged About 30 Years, By Caste Jain, Resident of
Mahatma Gandhi Road, Ward No.10, Kushalgarh, District-
Banswara (Rajasthan)
----Petitioner
Versus
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1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Executive Officer, Zila Parishad, Banswara.
----Respondents
S.B. Civil Writ Petition No. 15556 / 2017
Smt. Seema Mal W/o Shri Kamlesh Maida, D/o Shri Shankar Lal
Mal, Aged About 26 Years, By Caste Bheel, Resident of Village
Nagda Khurd, Post Vadli Pura, Tehsil- Kushalgarh, District-
Banswara (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Rural
Development and Panchayati Raj Department, Government of
Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. Chief Execution Officer, Zila Parishad, Banswara.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Bharat Singh
For Respondent(s) : Mr. SS Ladrecha, AAG, assisted by
Mr. Vikas Choudhary
Mr. P.R. Singh, AAG, assisted by
Mr. Dinesh Ojha
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 14/12/2017
1. The controversy in the present case is that the petitioners herein are married to a spouse, who is resident of trible sub plan area (TSP). It is an admitted fact that the (5 of 25) [ CW-15540/2017] petitioners do not belong to TSP area or is resident of different TSP area. The petitioners are otherwise fully qualified and eligible for recruitment process of Teacher Gr.III for Primary and Upper Primary School, 2016, Level-I/II initiated vide advertisement dated 6.7.2016. The petitioners being qualified in the subject concern and having cleared REET as well as B.Ed or STC is competing in the selection process. The petitioner on her own merit is entitled to be considered in the TSP district as applied. The petitioner, however, admittedly has come to the TSP district only on account of her marriage to a person, who is permanent resident of tribal sub plan area and on the basis of the residence of the husband the petitioner has secured bonafide residence certificate and special bonafide residence certificate of the TSP area strictly in accordance with law. Thus, the petitioner ought to have been considered for selection in such TSP area but is being deprived on account of the notification dated 4.7.2016 passed by the respondents, whereby bonafide of TSP area has been extended to those candidates only who were either born in TSP area on or before 01.1.1970 or their parents have been the bonafide residents of the TSP area on or before 01.1.1970. The notification dated 4.7.2016 reads as follows :-
^^ jktLFkku ljdkj dkfeZd ¼d&2½ foHkkx t;iqj] fnuakd % 4-7-2016 vf/klwpuk jktLFkku ds jkT;iky }kjk fn;s x;s fuEufyf[kr funsZ"k losZ lk/kkj.k dh tkudkjh ds fy, izdkf"kr fd;s tkrs gSA (6 of 25) [ CW-15540/2017] funsZ"k Hkkjr ds lafo/kku ds vuqPNsn 244¼1½ ds v/khu iape vuqlwph ds iSjk 5 ds mi iSjk ¼1½ }kjk iznRr "kfDr;ksa dk iz;ksx djrs gq, eSa] dY;k.k flag] jkT;iky] jktLFkku funsZ"k nsrk gwa fd jktLFkku vuqlwfpr tkfr] vuqlwfpr tutkfr] fiNM+k oxZ] fo"ks'k fiNM+k oxZ vkSj vkfFkZd fiNM+k oxZ ¼jkT; dh "kSf{kd laLFkkvksa esa lhVksa vkSj jkT; ds v/khu lsokvksa esa fu;qfDr;ksa vkSj inksa dk vkj{k.k½ vf/kfu;e] 2008 ¼2009 dk vf/kfu;e la[;kad 12½] jktLFkku fo"ks'k fiNM+k oxZ ¼jkT; dh "kSf{kd laLFkkvksa esa lhVksa vkSj jkT; ds v/khu lsokvksa esa fu;qfDr;ksa vkSj inksa dk vkj{k.k½ vf/kfu;e] 2015 ¼2015 dk vf/kfu;e la[;kad 32½ ,oa jktLFkku vkfFkZd fiNM+k oxZ ¼jkT; dh "kSf{kd laLFkkvksa esa lhVks vkSj jkT; ds v/khu lsokvksa esa fu;qfDr;ksa vkSj inksa dk vkj{k.k½ vf/kfu;e] 2015 ¼2015 dk vf/kfu;e la[;kad 33½ ,oa muds v/khu cuk;s x;s fu;eksa vkSj tkjh dh x;h vf/klwpukvksa esa fdlh ckr ds gksrs gq, Hkh] Hkkjr ljdkj dh vf/klwpuk la[;k ,Q-19¼2½80&,y&1 fnukad 12-02-81 }kjk fofufnZ'V vuqlwfpr {ks=ksa esa] jkT; lsokvksa dks NksM+dj vU; lHkh jktdh; lsokvksa ds inksa ij lh/kh HkrhZ }kjk Hkjh tkus okyh fjfDr;ksa dh 45 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;ksa ,oa 5 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;saxhA vuqlwfpr {ks= dh "ks'k 50 izfr"kr fjfDr;ksa ij fdlh Hkh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ojh;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lacaf/kr gksA fjfDr;ksa dk vo/kkj.k rFkk inksa dh HkrhZ fuEufyf[kr izdkj ls dh tk;sxh %& 1- tgka HkrhZ [k.M Lrj dh tkuh gks vkSj fjfDr;ksa dk vo/kkj.k rFkk budh lax.kuk Hkh [k.M Lrj ij dh tkuh gks] ogka ,slh leLr fjfDr;ksa dh 45 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;ksa ,oa 5 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;sxhA vuqlwfpr {ks= dh "ks'k 50 izfr"kr fjfDr;ksa ij fdlh Hkh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dks ;ksX;rk ds vk/kkj ij ojh;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU;
(7 of 25) [ CW-15540/2017] fdlh oxZ ls lacaf/kr gksA 2- tgka HkrhZ ftyk Lrj dh tkuh gks vkSj fjfDr;ksa dk vo/kkj.k rFkk mudh lax.kuk Hkh ftyk Lrj ij dh tkuh gks] ogka vuqlwfpr [k.M ds fy, fjfDr;ka izdfYir :i ls ml vuqikr ds vk/kkj ij vo/kkfjr dh tk;saxh] tks ftyksa ds vuqlwfpr [k.Mksa dh dqy tula[;k dk ftys dh dqy tula[;k ds lkFk gSA bl izdkj izdfYir :i ls vo/kkfjr fjfDr;ksa dh 45 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;kasa ,oa 5 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tkfr;ksa ds vH;fFkZ;ksa ls Hkjh tk;sxhA vuqlwfpr {ks= dh "ks'k 50 izfr"kr fjfDr;ksa ij fdlh Hkh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ojh;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lacaf/kr gksA 3- tgka HkrhZ jkT; Lrj dh tkuh gks vkSj fjfDr;ksa dk vo/kkj.k rFkk mudh lax.kuk Hkh jkT; Lrj ij dh tkuh gks] ogka vuqlwfpr {ks= ds fy, fjfDr;ka izdfYir :i ls ml vuqikr ds vk/kkj ij vo/kkfjr dh tk;sxh] tks jkT; ds vuqlwfpr {ks= ds vuqlwfpr [k.Mksa dh dqy tul[;k dk jkT; dh dqy tula[;k ds lkFk gSA bl izdkj izdfYir :i ls vo/kkfjr fjfDr;ksa dh 45 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuqlwfpr tutkfr;ksa ,oa 5 izfr"kr fjfDr;ka vuqlwfpr {ks= ds vuwlwfpr tkfr;ksa ds vH;fFkZ;ksa ds fy, vkjf{kr dh tk;sxh ,oa "ks'k 50 izfr"kr fjfDr;ksa ij fdlh Hkh tkfr ;k oxZ ds vuqlwfpr {ks= ds vH;FkhZ dk ;ksX;rk ds vk/kkj ij ojh;rk Øe esa fu;ekuqlkj p;u fd;k tk;sxk] pkgs og vuqlwfpr tkfr ;k vuqlwfpr tutkfr ;k vU; fdlh oxZ ls lacaf/kr gksA 4- ;fn vuqlwfpr {ks= ds ,d ftysa esa miyC/k fjfDr;ksa dks Hkjrs le; 45 izfr"kr LFkkuh; vuqlwfpr tutkfr ds O;fDr miyC/k ugha gks rks lEiw.kZ vuqlwfpr {ks= dks ,d bdkbZ ds :i esa ekudj fdlh ftys@mi[k.M@fodkl [k.M Lrj ij dksbZ fjfDr gS vkSj ml ftys@mi[k.M@fodkl [k.M esa vuqlwfpr tutkfr dk ;ksX; vH;FkhZ miyC/k ugha gS rks ,slh fLFkfr esa vuqlwfpr {ks= ds vU; ftyksa@fodkl [k.Mksa esa miyC/k vuqlwfpr tutkfr ds ;ksX; vH;fFkZ;ksa ls ,slh fjfDr;ka Hkjh tk;saxh rkfd 45 izfr"kr fo"ks'k vkj{k.k j[ks tkus ds mís"; dh iwfrZ gks ldsA (8 of 25) [ CW-15540/2017] 5- jkT; Lrj vFkok ftyk Lrj ij vuqlwfpr [k.Mksa dh fjfDr;ksa ls fHkUu jkT;@ftysa dh "ks'k fjfDr;ka fo|eku fu;eksa ds vuqlkj vuqlwfpr tutkfr;ksa ds fy, 12 izfr"kr] vuqlwfpr tkfr;ksa ds fy, 16 izfr"kr] vU; fiNM+k oxZ dh tkfr;ksa ds fy, 21 izfr"kr ,oa fo"ks'k fiNM+k oxZ dh tkfr;ksa ds fy, 5 izfr"kr vFkok le;≤ ij izo`Rr vkj{k.k laca/kh izko/kkuksa ds vuqlkj vkj{k.k dh dkuwuh vis{kkvksa ds v/;/khu jgsaxhA Li'Vhdj.k %& vuqlwfpr {ks= ds vH;fFkZ;ksa ls ,sls O;fDr vfHkizsr gSa tks vuqlwfpr {ks= ds ln~Hkkoh fuoklh gS vkSj tks Lo;a ;k] ;fn mudk tUe 1 tuojh 1970] ds ckn gqvk gS rks] muds ekrk&firk@iwoZt 1 tuojh 1970 ds iwoZ ls vuqlwfpr {ks= ds ln~Hkkoh fuoklh jgs gSA ;s funsZ"k fnukad 16-06-2013 ls izo`Rr gq, le>s tk;saxsA gŒ@& ¼dY;k.k flag½ ¼Ø- ,Q- 13¼20½dkfeZd@d &2@91@ikVZ½ sd/-
¼vks-ih- xqIrk½ la;qDr "kklu lfpo**
2. Counsel for the petitioners argued that the petitioners are not seeking change in caste but are simply seeking preference given to candidates of TSP area in the same caste in which the petitioner belongs on account of her husband being a resident of TSP area. Counsel for the petitioners have further submitted that the petitioner is in TSP area concerned only on account of her marriage to a person who is permanent resident of TSP area and, thus, the marriage, which is an association of two individuals, would entitle the petitioner to secure benefits of TSP area which are available to husband and his other family members. Learned counsel for the petitioner further states that the notification dated (9 of 25) [ CW-15540/2017] 4.7.2016 has to be read down by this Court so as to include married women who has come from other areas and got married in this area as they have tied down their knots and are now the permanent family members and cannot be uprooted on account of a previous family before marriage. Learned counsel for the petitioner further stated that the restriction of benefits to TSP area only on the basis of parentage shall be extremely harsh, prejudicial and discriminatory towards married women, who on account of matrimony were forced to cut-off their cords for all practical purposes in future from parental house and have converted herself into a new family with all consequences of life thereafter. Counsel for the petitioners, therefore, said that the women on account of marriage to the husband and having a special bonafide certificate cannot be deprived of the benefits which has been given to them in light of Article 244 of the Constitution of India. Disadvantages of a particular region is adopted by such women as they permanently station their lives in their matrimonial home. Counsel for the petitioners have also stated that a bare reading of circular dated 4.7.2016, the petitioners cannot be deprived on the benefits, as the petitioners becomes a common unit alongwith their husband and since the husband's parents or the husband is residing in TSP area on or before 01.1.1970, therefore, by virtue of the matrimonial relationship the petitioner is also entitled for the same benefits as that of husband as in Indian society husband and wife have been treated as a unit of family and, thus, cannot be bifurcated on (10 of 25) [ CW-15540/2017] region basis, which is specially extendable to a particular region. Counsel for the petitioner pointed out that caste cannot be changed on account of marriage and any benefit accruing out of the caste cannot be switched over only on account of the marriage unless the wife and husband belong to the same caste. Learned counsel for the petitioners have referred to the judgment of Vandana Ninama Vs. RPSC, Ajmer & Anr. (S.B. Civil Writ Petition No.6861/2007, decided on 23.10.2008), the relevant portion of which reads as follows :-
"This Court in Asha Devi (Smt.) v. State of Rajasthan, reported in 2000 DNJ (Raj.) 181, while considering the issue regarding residence of a married woman, observed and held as follows:-
"3.In reply to the legal notice in Annexure R.1 the respondents had taken a categorical stand that the petitioner after marrying with a resident of Rajasthan was staying with her husband, but the factum of marriage of the petitioner ipso facto cannot be considered to be a certificate of domicile. It is further submitted that all seats have been filled-up and even though the petition is allowed, the petitioner will not get benefit at this stage.
4.In my opinion, the contention of the respondents cannot be sustained and is to be rejected. The writ petition deserves to be allowed. The petitioner who originally belongs to Haryana was married to a domicile resident of Rajasthan. As per Indian culture, it goes without saying that the wife is (11 of 25) [ CW-15540/2017] considered to be the domicile of the area where she is married and stays with her husband. The respondents had not applied their mind to this aspect and have mechanically rejected the application of the petitioner. The certificate of residence of a married woman to be a resident of Rajasthan where her husband is staying or residing is to be considered as a domicile certificate of such woman. It would be highly unjust to deprive the woman who marry in Rajasthan of her domicile status. The action of the respondents cannot be justified and is quashed."
In the instant matter too the petitioner though born in District Jhabua (Madhya Pradesh) but married to a resident of District Banswara and presently residing at village Sagwa in Banswara, therefore, she is to be treated as domicile of Rajasthan. Suffice to mention that the Sub Divisional Magistrate, Kushalgarh also issued a domicile certificate looking to present place of residence of the petitioner and location of her marital home.
For the reasons stated above and in view of the judgment of this Court in the case of Asha Devi (Smt.) (supra), the petitioner is required to be treated as a resident of triable sub plan area. Accordingly, this petition for writ is allowed. The decision of the respondent Commission not to treat the petitioner a resident of triable sub plan area is (12 of 25) [ CW-15540/2017] declared illegal. The respondents are directed to consider candidature of the petitioner for the purpose of appointment to the post of Teacher Gr.III and in the event she stands in merit relating to triable sub plan area and is otherwise eligible, appointment be accorded to her within a period of three months from today. "
Learned counsel for the petitioners have further relied upon the judgment of Rekha Soni Vs. State of Rajasthan & Anr. (S.B. Civil Writ Petition No.6862/2007, decided on 17.4.2008), the relevant portion of which reads as follows :-
"However, the application of any of the petitioner should not be thrown out only on the ground that she cannot be said to be permanent resident of the State of Rajasthan and not fulfilling the condition given in the advertisement in this behalf. It is also clarified that in a given case, if a petitioner before her marriage was getting the benefit of reservation in a particular reserved category in her parental State and after her marriage her case is treated to be different reserved category in the State of Rajasthan, in such cases, the certificates issued by the authorities of the State of Rajasthan shall have binding effect as now the petitioners can be said to be a permanent residents of the State of Rajasthan by virtue of their marriage."
(13 of 25) [ CW-15540/2017] The judgment of Rekha Soni has been affirmed by Division Bench of this Court in D.B. Civil Special Appeal (W) No.142/2009, decided on 01.2.2010 in the matter of Rajasthan Public Service Commission, Ajmer Vs. Rekha Soni & Anr., and the relevant portion of Division Bench judgment reads as follows :-
"The learned counsel for the appellants could not show that a person not born in the State of Rajasthan could not at all be granted the status of OBC. The fact remains that the petitioner's status of OBC in the State of Rajasthan was considered and thereafter, the State machinery issued respective certificates to the effect that she belongs to OBC class. This one appears to be the reason that the State has not appealed against the judgment of the learned Single Judge. The appellant, who is a recruiting agency, has to be guided by the State for the recruitment purposes. Once a certificate of OBC has been granted by the State, it has to be 3 taken to be correct by the appellant. The appellant cannot challenge the status conferred upon the writ-petitioner by the State in the manner it has been done by filing these appeals."
(14 of 25) [ CW-15540/2017] The judgment of Vandana Ninama too has been affirmed by Division Bench of this Court in D.B. Civil Special Appeal (W) No.1317/2011 decided on 14.12.2011.
Learned counsel for the petitioners have also referred to the case of Mrs. Sahendra Bai & Ors. Vs. RPSC & Anr., reported in 2008(4) WLC (Raj.) page 252, in which, this Court has laid down that the status of women after their marriage has to be the same as that of her husband. This proposition was upheld by Division Bench (Jaipur Bench) of this Court in D.B. Civil Special Appeal (W) No.1090/2008 - RPSC, Ajmer Vs. Smt. Sunita Yadav & Anr., decided on 18.3.2010.
Learned counsel for the petitioners have also relied upon the judgment of Pushpa & Ors. Vs. State of Rajasthan & Ors., (S.B. Civil Writ Petition No.12198/2015, decided on 01.3.2016), wherein this Court held "15. Therefore, this Court is of the opinion that once the documents have been furnished by a candidate was issued by a State reflecting the name of her father which would have been prior to her marriage, supported by a certificate issued by the State of Rajasthan where the petitioner resided after marriage, these certificates should have been taken into account and there was no occasion for treating the candidatures of the petitioners in the General (15 of 25) [ CW-15540/2017] Category. In case the respondents have doubts and are not so inclined, they would get the certificates verified themselves as has been held in the case of Mrs. Sahendra Bai & Ors. (supra)"
and the same was upheld by Division Bench of this Court in D.B. Civil Special Appeal No.93/2017 (State of Rajasthan & Ors. Vs. Mukesh Kumari, decided on 30.3.2017). The Hon`ble Division Bench held as follows :-
"From perusal of the facts averred in the
application we do not find any reason for
consuming a period of about five months even after having opinion by Additional Advocate General to take a decision to file appeals. It is well settled that the delay in filing appeal is required to be satisfied with sufficient explanation on day to day basis. In the instant matters what to talk of explanation on day to day basis, no explanation is given for causing the delay of months together. It is also relevant to notice that the respondent petitioners are admittedly members of Scheduled Caste or any of the reserved category from the incoming State as well as in the State of Rajasthan. The only lacunae, even as per the appellants, was that the caste certificates submitted by them were (16 of 25) [ CW-15540/2017] only pertaining to their husband's place of residence. We are of the opinion that there is no dispute that the respondent petitioners were members of reserved category even in both incoming and outgoing States, then they are entitled to claim reservation as prescribed by law."
In the judgment passed by this Court in the matter of Sapna Audichya Vs. State of Rajasthan & Ors., (S.B. Civil Writ Petition No.698/2015, decided on 19.1.2015), this Court has directed the respondents to consider applications of the petitioners by issuing said certificates of TSP area.
Counsel for the petitioners have also relied upon the judgment of Smt. Lata Bai Vs. Mohan Lal Sukhadia University & Anr., reported in WLR 1993 Raj. 752, the relevant para-7 of which reads as follows :-
" In D.B. Civil Writ Petition No.2552/87 Gayatri Singhal Vs. State of Rajasthan and others and other writ petition decided on 23rd Nov., 1987 in a similar matter, it has been held that after marriage, a woman acquires the domicile of the place of her husband."
Learned Additional Advocate General S/Shri S.S. Ladrecha and Shri P.R. Singh have addressed this Court at length and have (17 of 25) [ CW-15540/2017] vehemently opposed the pleadings on account of the fact that the circular dated 4.7.2016 is amply clear and gives benefit only on account of parentage and, therefore, the circular itself is clear that the petitioner shall be entitled for the TSP benefits only on account of her having born in the same area on or before 01.1.1970 and her parents lived in the same area since 01.1.1970. Counsel for the respondents have also pointed out that the circular is complete in its own sense and there cannot be inclusion in the circular at this stage of recruitment and the same has to be strictly abided by the respondents while carrying forward exercise of selection. Learned counsel for the respondents have also stated that if matrimony will result into the benefits of Article 244 to be transferred to the wife, then it would not be in the interest of the local population. Counsel for the respondents have harped upon the issue that extreme living condition and social conditions of the area, which is a backward tribal area attract benefit and the same cannot be extended to any person out of the area, who has no connection with the same. Learned Additional Advocate General have also pointed out that if such benefits are given to the persons coming from outside on account of matrimony, then that would jeopardize the interest of the local population in whose interest TSP laws have been promulgated in consonance with the spirit of Article 244 of the Constitution of India. As per learned AAG, the very purpose of TSP shall stand defeated if the circular dated 4.7.2016 is not strictly abided during the recruitment process. It has also been stated by learned Additional Advocate (18 of 25) [ CW-15540/2017] General that the notification has not been challenged by the petitioners and till the notification is holding field, it is not open for the petitioners to claim benefit. Learned Additional Advocate General stated that there is a purpose behind such notification and such four-walls and four-corners shall benefit as preference cannot be demolished on account of flood of candidates coming from outside and securing job, which need to be given to the local tribal population, who are strictly entitled for the same. Learned Additional Advocate General has also referred to the precedent law laid down in the case of Mrs. Valsamma Paul Vs. Cochin University & Ors., reported in AIR 1996 SC 1011, relevant paras of which reads as follows :-
"34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu and R. Chandevarappa v. State of Karnataka , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the (19 of 25) [ CW-15540/2017] handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.
35. Further question is : Whether recognition by the community, as is envisaged by law and expressly recognised by this Court in Mohan Rao's case would give the benefit of reservation? In that case, parents of Mohan Rao originally belonged to a Scheduled Caste in A.P. Mohan Rao became a Christian but reconverted into Hinduism and claimed the status as a Scheduled Caste. The Constitution Bench had held that by reconversion, he could not become a Hindu but recognition by the community is a precondition. In that case, it was found that caste/community had recognised him after reconversion as a member of the (20 of 25) [ CW-15540/2017] Scheduled Caste. In Kailash Son/car's case (supra), this Court, in the context of election law, considered the question of reconversion into Hindu fold. On conversion to a Christianity or any other religion, the convertee would lose the said caste. Where a person belonging to the Scheduled Caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family law by which he was originally governed. Where the new religion does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenants of the new order to which he has gone, as a matter of common practice continues to exist from times immemorial. If a person abjures his old religion and converts to a new one, there is no loss of caste. However, where the convertee exhibits by his actions and behavior his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary (21 of 25) [ CW-15540/2017] intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that "in our opinion the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste." In that case it was held from his conduct, the respondent established that she by her conduct became a member of the community entitled to contest the elections as a Scheduled Caste. In Mohan Rao's case (supra), this Court found as a fact that after conversion he was accepted as a member of the Dalits by the community. Similar are the facts in Hero case (supra). In CM. Arumugam v. S. Rajagopal and Ors. , this Court did not accept reconversion, though Rajagopal proclaimed by conduct of his becoming a member of Scheduled Caste (22 of 25) [ CW-15540/2017] and his relations treated him as a member of Dalits. In Hero case also the respondent was recognised as a member of the Scheduled Tribe. Further in election law the compulsion of political party nominating a candidate and voters' verdict may be looked into. In Soosai v. Union of India , Bhagwati, C.J. speaking for a three Judge Bench held that non-recognition of Scheduled Caste Christians as Dalits was not violative of Article 14 as by reason of p conversion they were not similarly handicapped as Dalits. In Madhuri's case and Laveti Giri's case, this Court directed procedure for issuance of social status certificates. As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact, the new faith; whether he suffered all the handicaps as a Dalit or tribe; whether conversion is only a ruse to gain constitutional benefits under Article 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and then issue such a certificate.
36. The recognition of the appellant as a member of the Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous (23 of 25) [ CW-15540/2017] start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class."
After hearing learned counsel for the parties and perusing precedent laws, this Court is of the opinion that time and again the precedent law has settled the issue that after marriage a woman acquires the domicile of the place of her husband and, therefore, she has to be treated for all practical purposes a citizen of that particular region. The petitioners who are married ladies and apparently from the same caste as that of their husband have come to the TSP area concern on account of their marriage and, therefore, they have to be treated as a part of the family and they too need to be extended all benefits that are available to the residents of those TSP area. The factum of marriage as well as the facum of petitioners having bonafide residence certificate and special bonafide residence certificate is not denied by the respondents. The said certificates are on account of husband's place of residence, rather then, that of parents. In an institution of marriage any certificate of a woman, may that be, election voter ID card, passport, ration card, aadhar card, bank details or any other educational certificates or employment certificate etc., includes address of husband for all practical purposes. Law itself permits such address as the permanent address for all future legal and financial transactions, therefore, in view of the above, this (24 of 25) [ CW-15540/2017] Court after looking into the complete precedent laws as well as arguments made by learned counsel for the parties finds that the petitioners deprivation on account of technicality of circular dated 4.7.2016 is not appropriate as the circular dated 4.7.2017 does not at all deal with the conditions post-matrimony. The validity of circular has not been gone into as the circular is not under challenge. The condition of matrimony is not dealt with in the circular dated 4.7.2016. Ours is one country and one constitution. Citizenship as per the Constitution is one and, therefore, matrimony cannot be a detrimental factor to a lady only on account that she has changed area and has shifted from her parental family to her matrimonial home. The purpose of single citizenship of the country ....is same and cannot be taken away by the respondents on mere technicality. Precedent law is almost one sided as the Hon`ble Court has time and again held that the matrimony shall entitle the petitioner to all the benefits arising from the region. Averments made by counsel for the respondents cannot be accepted in the present situation as if the technicality of the circular dated 4.7.2016 is allowed, then that shall cause serious prejudice to a lady depriving her of the benefit being extended to a particular region. The lady has also shifted to such permanent home on account of marriage and would be having the same handicap which all other residents of the area shall be suffering. Such previlage based on region cannot be discriminated on any count or any legal proposition whatsoever.
(25 of 25) [ CW-15540/2017] In light of the aforesaid observations, the writ petition is allowed. The respondents are directed to treat the petitioners as the residents of TSP area and accord them benefit of bonafide residence certificate and special bonafide residence certificate, which they had attained on account of her husband being a resident of the same TSP area. The respondents shall consider candidature of the petitioners for appointment as if she stands in merit relating to TSP in her own category and if she is otherwise eligible for appointment she shall be accorded the same within a period of two months from today.
(DR. PUSHPENDRA SINGH BHATI)J. Sanjay