Chattisgarh High Court
Nimisha Mishra vs State Of Chhattisgarh on 12 August, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 12
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 1905 of 2021
Nimisha Mishra, W/o Shri Ashok Mishra, Aged about 43 years,
R/o H.No. P/45, Kavita Nagar, Shankar Nagar, Raipur (C.G.).
---- Petitioner
Versus
1. State of Chhattisgarh, Through Secretary, Department of School
Education, Mahanadi Bhawan, Atal Nagar, Nava Raipur, Raipur
(C.G.) 492002.
2. Directorate of Public Instructions, Through its Director, First Floor, C
Block, Indravati Bhawan, Nava Raipur, Atal Nagar (C.G.) 492002.
---- Respondents
For Petitioner : Mr. J.D. Bajpai, Advocate and Mr. Kshitij Sharma, Advocate.
For State/Respondent No. 1 : Mr. Amrito Das, Dy. Advocate General.
Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 12.08.2022
1. The petitioner has preferred the instant writ petition under Article 226 & 227 of the Constitution of India against the order dated 19.11.2020 passed by Joint Director, Public Instructions Department, whereby the candidature of the present writ petitioner has been rejected and she has been declared ineligible on the ground that Chhattisgarh State Domicile Certificate was obtained by the petitioner on 07.11.2019 i.e. after expiry of the time-limit, which was fixed as per the advertisement dated 9.3.2019 issued by the State Authority for filling up the post of Lecturer and various other posts.
2. Learned counsel appearing for the petitioner would submit that earlier the petitioner was residing at Bhopal and after her marriage in the State of Chhattisgarh on 11.5.2005, she is residing at Raipur (C.G) and thereafter she had obtained Bachelor of Education Page 2 of 12 (B.Ed.) degree in the year 2009 from Pt. Ravishankar Shukla University, Raipur and also a post-graduate degree of M.A. (English) in the year 2014 from MATS University, Raipur. He would further submit that the State Government has issued advertisement (Annexure P-2) on 9.3.2019, wherein the applications were invited for recruitment for various teaching staffs i.e. gazetted and non- gazetted staff. Clauses 7 & 8 of the advertisement dated 9.3.2019 read as under:-
"7. vH;FkhZ dks vko';d U;wu re 'kS { kf.kd vgZ r k ,oa vU; iz e k.k i= O;kie }kjk ijh{kk-Qy tkjh gksu s dh frfFk vFkok mlds iwo Z iz k Ir djuk vfuok;Z gS A O;kie }kjk ijh{kk-Qy tkjh gksu s dh frfFk ds i'pkr~ iz k Ir vgZ r k iz e k.k i= ekU; ugha gksax s A
8. vH;FkhZ dks l{ke iz k f/kdkjh }kjk tkjh LFkkbZ tkfr iz e k.k i= iz L rq r djuk gksx k vU;Fkk foKkiu ds rgr nf'kZ r NwV ¼vk;q @ vkj{k.k½ dk ykHk iz k Ir ugha gksx k A"
3. The advertisement provides further direction and as per clause 8 sub clause (2), the candidate must be domicile of Chhattisgarh. Clause 8 sub clause 7 further provides that the minimum essential qualification and other certificate should be at the time of issuance of result by the Professional Examination Board or before the date of issuance of result by the Professional Examination Board. The certificate of essential qualification issued after the date of result will not be considered.
4. Learned counsel for the petitioner submits that the respondent authorities have erred in declaring the petitioner to be ineligible for the post of Lecturer stating that the Chhattisgarh State Domicile Certificate was obtained by the petitioner on 07.11.2019 i.e. after expiry of the time-limit, which was fixed as per the advertisement issued by the State Authority dated 9.3.2019. He would further submit that the petitioner is residing in the State of Chhattisgarh ever since the date of her marriage i.e. from 11.05.2005; she has also obtained her B.Ed. Degree & Post-graduate degree from Page 3 of 12 Raipur, therefore, there was no occasion for the respondent authorities to disqualify the petitioner on the ground of non- submitting domicile certificate prior to the date of pronouncement of result, therefore, the impugned order dated 09.011.2020 (Annexure P/1) is liable to be dismissed. He would submit that even otherwise domicile certificate is not essential qualification, as such, the delay in submitting the domicile is not fatal which vitiates her candidature. In support of his submission, he would refer to the judgment of Hon'ble the Supreme Court reported in 20015 (9) SCC 779 in case of Dolly Chandra Vs. Chairman, JEE & others and judgment of Coordinate Bench of this Court in the matter of Mukesh Ahirwar v. State of Chhattisgarh & others1 wherein it has been held that the wife after marriage is entitled to get domicile certificate of the State where her husband is residing.
5. The respondents have filed their return stating inter alia that the impugned letter dated 19.11.2020 has been issued to the petitioner strictly as per the mandate of the advertisement and that the said conditions are being applied in equal manner upon all the applicants, who have participated in the examination process. He would also submit that as per clause 8(2) of the advertisement an applicant has to be a resident of State of Chhattisgarh where Clause 8(7) provides that the applicant has to obtain all necessary educational qualifications and other certificates before the declaration of result by VYAPAM and the said conditions are mandatory. It is specifically stated in the Clause 8 (7) of the said advertisement that any certificate or qualification obtained after the date of declaration of result shall not be valid, therefore, the impugned letter dated 19.11.2020 declaring the petitioner as ineligible for the post of Lecturer does not call for any interference.
6. I have heard learned counsel appearing for the parties and perused the documents annexed with record.
1 Writ Petition (S) No. 3775 of 2012, decided on 15.9.2021 Page 4 of 12
7. The issue required to be examined by this Court in the instant petition is whether the domicile certificate falls within the ambit of essential qualification and delayed submission of domicile certificate vitiates the selection of the petitioner.
8. The controversy arising in this petition is the domicile certificate. The 'domicile' is to identify the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietory rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. "Domicile" as pointed C/SCA/2053/2020 judgment out in Halsbury's Laws of England (Fourth Edition) vol. 8, paragraph 421 is the legal relationship between an individual and a territory with a distinct legal system, which invokes that system as his personal law. It is well settled that the domicile of a person in that country in which he either has or is deemed by law to have his permanent home and in Wicker v. Homes, (1858) 7 HL Cases 124, domicile has been defined by Lord Cranworth that "We mean home, the permanent home".
9. Domicile is basically a legal concept for the purpose of determining what is the personal law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full age is free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely. Now the area of domicile, whether it be domicile of origin or domicile of choice, is the country which has the distinctive legal system and not merely Page 5 of 12 the particular place in the country where the individual resides.
10. Whether there can be anything like a domicile in a State forming part of the Union of India ? The Constitution recognizes only one domicile, namely, domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, "domicile in the territory of India. "The legal system which prevails throughout the territory of India is one single indivisible system. It would be absurd to suggest that the Legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws. The concept of 'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile.
11. Thus, in view of the above interpretation of word 'domicile' now it has to be examined whether domicile certificate is a mandatory requirement for getting employment as per advertisement published on 09.03.2019 for appointment of Teacher and Lecturer. From perusal of clause 8 sub clause 1 to 11 which provides important note for candidate, it is clear that according to clause 8 sub clause 2, the candidate must be domicile of State of Chhattisgarh and as per clause 8 sub clause 7, the candidate should have minimum essential qualification for appointment which should be at the time of declaration of result by VYAPAM or before the date of publication of the result.
Page 6 of 1212. The Hon'ble Supreme Court in the case of Dr. Pradeep Jain Vs. Union of India [1984 (3) SCC 654] has dealt with the question of national importance affecting the medical education both at the under graduate and post graduate courses and with regard to constitutional value the admission to the medical college or any other institution of higher learning institution situated in a State can be confined to those who have their domicile with the State or who are resident with the State for a specified number of year or can any reservation in admission can be made for them so as to give them precedent over those who do not possessed domicile or residential qualification of the State irrespective of the merits. In the aforesaid case Hon'ble the Supreme Court has held in para 2 and 3 as under.
"2. The history of India over the past centuries bears witness to the fact that India was at no time a single political unit. Even during the reign of the Maurya dynasty, though a large part of the country was under the sovereignty of the Mauryan kings, there were considerable portions of the territory which were under the rule of independent kingdoms. So also during the Moghul rule which extended over large parts of the territory of India, there were independent rulers who enjoyed political sovereignty over the territories of their respective kingdoms. It is an interesting fact of history that India was forged into a nation neither on account of a common language nor on account of the continued existence of a single political regime over its territories but on account of a common culture evolved over the centuries. It is cultural unity something more fundamental and enduring that any other bond which may unite the people of a country together-which has welded this country into a nation. But, until the advent of the British rule, it was not constituted into a single political unit. There were throughout the period of history for which we have fairly authenticated account, various kingdoms and principalities which were Page 7 of 12 occasionally engaged in conflict with one another. During the British rule, India became a compact political unit having one single political regime over its entire territories and this led to the evolution of the concept of a nation. This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father of the Nation because it was he who awakened in the people of this country a sense of national consciousness and instilled in them a high sense of patriotism without which it is not possible to build a country into nationhood. By the time the Constitution of India came to be enacted, insurgent India, breaking a new path of nonviolent revolution and fighting to free itself from the shackles of foreign domination, had emerged into nationhood and "the people of India" were inspired by a new enthusiasm, a high noble spirit of sacrifice and above all, a strong sense of nationalism and in the Constitution which they framed, they set about the task of a strong nation based on certain cherished values for which they had fought.
The Preamble of the Constitution was therefore, framed with the great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers. The Preamble declares in highly emotive words pregnant with meaning and significance:
"We, The People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;Page 8 of 12
In Our Constituent Assembly this twenty-sixth day of November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution."
These words embody the hopes and aspirations of the people and capture and reproduce the social, economic and political philosophy underlying the Constitution and running through the warp and woof of its entire fabric. It is significant to note that the Preamble emphasises that the people who have given to themselves this glorious document are the people of India, the people of this great nation called India and it gives expression to the resolve of the people of India to constitute India into a sovereign socialist secular democratic republic and to promote among all its citizens fraternity assuring the dignity of the individual and the unity and integrity of the nation. The Constitution makers were aware of the past history of the country and they were also conscious that the divisive forces of regionalism, linguism and communalism may one day raise their ugly head and threaten the unity and integrity of the nation, particularly in the context of the partition of India and the ever present danger of the imperialist forces adopting new stratagems, apparently innocuous, but calculated to destabilize India and re-establish their hegemony and, therefore, they laid great emphasis on the unity and integrity of the nation in the very Preamble of the Constitution. Article 1 of the Constitution then proceeds to declare that India shall be a Union of States but emphasizes that though a Union of States, it is still one nation with one citizenship. Part II dealing with citizenship recognizes only Indian citizenship: it does not recognize citizenship of any State forming part of the Union. Then follow Articles 14 and 15 which are intended to strike against discrimination and arbitrariness in state action, whether legislatives or administrative. They Page 9 of 12 read as follows:
"Article 14: The State shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India." "Article 15: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth of any of them. (2) No citizen shall on grounds only of religion, race, caste. sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places so public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."
Article 19 (1) again recognises the essential unity and integrity of the nation and reinforces the concept of one nation by providing in clauses (d) and (e) that every citizen shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. Article 301 declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Then there are situations envisaged in certain Articles of the Constitution such as Articles 353 and 356 where the executive power of a State forming part of the Union is exercisable by the Central Government or subject to the directions of the Central Government. Thus, the entire country is taken as one nation with one citizenship and every effort of the Constitution makers is Page 10 of 12 directed towards emphasizing, maintaining and preserving the unity and integrity of the nation. Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is entitled to equality before the law and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or/speaking Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states."
13. Even Article 5 of the Constitution of India provides that at the commencement of the constitution, every person who has his domicile in the territory of India and who was born in the territory of India or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India. Thus, every person who has his domicile in the territory of India at the commencement of constitution or is born in territory of India is a citizen of this country. Applying the proper expression domicile, it means a person must be having permanent home or being there for years with intention to live permanently or indefinitely. As such, there is only one domicile Page 11 of 12 i.e. domicile of the country and there is no separate domicile for the State as per decision of Pradeep Jain (Supra). In that view of the matter also no discrimination is permissible nor the petitioner be denied the right to be considered merely because they could obtain the domicile certificate at the time of making online application. It is pertinent to mention here that even Article 16 (2) does not permit the discrimination in the employment under the State on the ground of place of birth, caste, race, religion, therefore, the impugned order dated 19.11.2020 (Annexure P/1) deserves to be quashed by this Court.
14. Even otherwise, the advertisement is governed and regulated by Chhattisgarh School Education Services (Education and Administrative Cadre) Recruitment and Promotion Rules, 2019 (for short "Rules of 2019"). Rule 8 categorically defines the eligibility in terms of 'age', 'educational qualification & experience' and 'fees'. The domicile certificate is not the educational qualification as prescribed under the Rule, therefore, it is not necessary for the petitioner to obtain the domicile certificate on or before the date of declaration of result by the VYAPAM.
15. Hon'ble Supreme Court in the case of Dolly Chhanda v. Chairman, JEE and others2 has held as under :-
"9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second 2 (2005) 9 SCC 779 Page 12 of 12 counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.
10. The appellant had qualified in the JEE- 2003 but the said academic year is already over. But for this situation the fault lied with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year."
16. In view of what has been discussed above and considering the law laid down by the Supreme Court in the case of Dolly Chhanda (Supra) and in case of Dr. Pradeep Jain (Supra), the domicile certificate is not essential qualification for consideration for appointment, the petitioner cannot be dis-allowed for appointment on the count of late submission of domicile certificate. Thus, this court is of the opinion that impugned communication/letter dated 19.11.2020, is against the law and deserves to be set aside.
17. Accordingly, the writ petition is allowed. The impugned letter dated 19.11.20202 is set aside. The respondent authorities are directed to issue appointment order in favour of the petitioner on the post of Lecturer within six weeks from the date of receipt of copy of this order.
Sd/-
(Narendra Kumar Vyas) Judge Amita