Rajasthan High Court - Jodhpur
State Of Rajasthan vs Chitra Devi on 13 August, 2019
Bench: S. Ravindra Bhat, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Special Appeal (Writ) No. 1960/2018
State Of Rajasthan
----Appellant
Versus
Chitra Devi
----Respondent
Connected With
D.B. Special Appeal (Writ) No. 317/2019
State Of Rajasthan
----Appellant
Versus
Jyoti Devi
----Respondent
D.B. Special Appeal (Writ) No. 471/2019
State Of Rajasthan
----Appellant
Versus
Marshalinee
----Respondent
For Appellant(s) : Mr. Rajat Arora, AAAG.
For Respondent(s) : Mr. Parvej Khan Moyal.
Mr. R.R. Ankiya.
Ms. Anjali Gopa.
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE DINESH MEHTA
Order 13/08/2019 Since common question of law is involved in these appeals, they are decided by this common judgment. The facts are taken from S.A.W. No. 1960/2018.
The State's grievance is that the learned Single Judge directed consideration and eventual appointments of the (Downloaded on 30/08/2019 at 02:05:38 AM) (2 of 6) [SAW-1960/2018] respondent-writ petitioner to the post of Nurse Grade-II, on the basis of Scheduled Caste certificate produced by her.
The facts are that the writ petitioner applied for selection to the post of Nurse Grade-II and relied upon a certificate disclosing that she belongs to the Jatav community, which was recognized as Scheduled Caste in relation to the State of Rajasthan and in accordance with the Presidential Notification dated 06.08.1984. However, her father had migrated to Rajasthan about two decades ago. She based her claim for being treated as member of SC community on the certificates issued by the Tehsildar, Jodhpur in 2002. Clause 4(viii) of the advertisement stated that reserved posts meant for SC/ST and OBC category applicants are to be filled by candidates who are permanent residents of Rajasthan. The writ petitioner had secured 58.095 marks in the competitive examination and the cut off marks for SC category was fixed at 55.444%. The State's position was that since the writ petitioner's caste certificate was issued from U.P. on 19.09.1980, she did not fall within the description of SC belonging to Rajasthan. The Court relying upon Ms.Sahendra Bai & Ors. vs. Rajasthan Public Service Commission and Anr. (S.B. Civil Writ Petition No.3107/2005 decided on 19.03.2008) held that the protection of reservation cannot be lost after the marriage in those cases where such status could be claimed even before marriage.
The State relied upon the Constitution Bench Judgment in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & others [(1990) 3 SCC 130], Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in The State of Maharashtra & Anr. vs. Union of India & Arn.[(1994) 5 SCC (Downloaded on 30/08/2019 at 02:05:38 AM) (3 of 6) [SAW-1960/2018] 244] and the judgment in Ranjana Kumari vs. State of Uttaranchal & Ors. [2013(14)SCC710].
Learned counsel for the respondent/writ petitioner contends that there are observations even in Marri Chandra Shekhar Rao (supra) to the effect that appropriate action by way of accommodation is to be given to the people who migrated from one State to another and belong to Scheduled Caste community in both places, according to the State Government or Union Territory Policy, as the case may be.
He also relied upon a recent decision of the Supreme Court in the Director Transpost Department Union Territory Administration of Dadra and Nagar Haveli Silvassa & Ors. vs. Abhinav Deepakbhai Patel (Civil Appeal No.4665/2019 decided on 07.05.2019).
The decision in Marri Chandra Shekhar Rao (supra) held that individuals who migrate or relocate themselves from one State to another and belong to any reserved category would not be entitled to claim the same status in the host State, even if the same nomenclature of the Caste is listed as Scheduled Caste/Scheduled Tribe there. The relevant observations are as follows:
"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the State of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, (Downloaded on 30/08/2019 at 02:05:38 AM) (4 of 6) [SAW-1960/2018] in such cases if students or persons apply in the migrated State where without affecting prejudially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislation bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Article 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriate, take into consideration.
The observations of the Supreme Court, in the cases relied on by the respondents, in the opinion of this Court, are not determinative. Significantly, the Supreme Court noted that it is left to the Parliament to consider the appropriate legislation with regard to the treatment to be given to members of Scheduled Caste or other reserved category who migrate from one State to another. The rationale for this is simple; it is only Parliament which has the authority to amend SC/ST Orders in relation to any State or States or Union Territory, as the case may be. The structure of the SC/ST orders and the scheme, as existing, entitle only members of a community who belong to the State or the concerned Union Territory to claim the benefit of reservation. This means that if an individual who belongs to State 'A' and is therefore entitled to claim the benefit of reservation of that State, by choice leaves that State and goes to State 'B', then she/he is divested of the right to claim the reservation as member of that caste or community even if it is listed in State 'B'.
The conditions contained in the recruitment advertisement i.e. clause 4(viii) of the advertisement clearly states that the candidates claiming the benefit of reservation should be able to (Downloaded on 30/08/2019 at 02:05:38 AM) (5 of 6) [SAW-1960/2018] produce a certificate evidencing that it was issued in the name of his /her father. Thus, the domiciliary requirement - in consonance with the Presidential Order, are State policies. In this context, the reliance placed by the respondent - writ petitioner on the decision in Abhinav Deepak Bhai Patel (supra), needs to be examined. The Supreme Court in this judgment did not examine the specific stipulation with respect to the residential/domiciliary requirements but merely went by the fact that the concerned candidate was a resident of the place in question. In other words, whether the conditions which governed the recruitment spelt out a domiciliary or a residential requirement became the issue. The Court clearly held that what the Union Territory had emphasised upon was residential status, and not domicile. In the present case, however, the notification - particularly clause 4(iv) and 4(viii) highlights the necessity of the candidates possessing proof of domicile i.e. that his/her father should have certificate evidencing status as ST/SC.
The decision in Ranjana Kumari(supra) has dealt with much the same aspect; the Court specifically noticed the reference to Ranjana Kumari- which is the judgment cited on behalf of the State, merely referred the issue to a Larger Bench. The reference order clearly stated that the candidate had claimed SC/ST benefit on the basis of marriage. The larger bench by its order dated 1.11.2018 [Ranjana Kumari vs. State of Uttarakhand & Ors. (CA No.8425 of 2013)] stated as follows:
"2. The appellant who belongs to Valmiki caste (Scheduled Caste) of the State of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State. In the State of Uttarakhand under the Presidential Order 'Valmiki' is also recognized as a notified Scheduled Caste. The (Downloaded on 30/08/2019 at 02:05:38 AM) (6 of 6) [SAW-1960/2018] State of Uttarakhand issued a certificate to the appellant.
3. The appellant contended before the High Court that she was a Scheduled Caste of the State of Uttarakhand. The High Court having rejected the claim, the appellant is in appeal before us.
4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College & Ors. And Action Committee on Issue of Caste Certificate to Scheduled Castes & Tribes in the State of Maharashtra & Anr. vs. Union of India & Anr. have taken the vies that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench Judgments in Marri Chandra Shekhar Rao (supra) and Action Committee (supra).
5. We, therefore, find no error in the order of the High Court to justify any interference. The appeal is accordingly dismissed."
In the light of the above discussion, this Court is of the opinion that the respondents could not have claimed the benefit of SC/ST status merely on the basis that they were issued Rajasthan certificates, and that they were residing in Rajasthan. Their claim to that status did not satisfy clause 4(iv) and 4(viii). Accordingly, the Single Judge fell into an error in granting the direction having regard to the circumstances of the case.
For the foregoing reasons, the appeals have to be allowed. The impugned judgments are hereby set aside. The State's appeals are allowed. All pending applications are disposed of.
(DINESH MEHTA),J (S. RAVINDRA BHAT),CJ
33-Ashutosh/-
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