Madhya Pradesh High Court
Apeksha Kumari (Smt. Apeksha Jain) vs The State Of Madhya Pradesh on 14 May, 2018
Equivalent citations: AIRONLINE 2018 MP 385
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Writ Petition No.16642/2016
Apeksha Kumari (Smt. Apeksha Jain)
Vs.
State of Madhya Pradesh.
Present : Hon'ble Ms. Vandana Kasrekar, J.
Mr. Prashant Singh, learned Senior Advocate with Mr.
Anshul Tiwari, Advocate for the petitioner.
Mr. B.D. Singh, learned Government Advocate for the
respondents/State.
O R D E R
(14.05.2018) The petitioner has filed the present petition challenging the order dated 09.09.2016 passed by respondent No.3.
2. The brief facts of the case are that the forefathers of the petitioner are residents of State of Uttar Pradesh. The father of petitioner was born in the State of Uttar Pradesh and belongs to Caste ' Jatav ', which is included in the Schedules Caste Category of State of Madhya Pradesh as well as in the State of Uttar Pradesh. On 27.07.1972, the Caste Certificate was issued 2 W.P. No.16642/2016 by Tahsildar, Gaziabad, Meerut in favour of the petitioner that she belongs to Caste- ' Jatav ', which included in Schedules Caste Category in the State of Uttar Pradesh. The father of the petitioner participate in the selection process conducted by Staff Selection Commission and on his meritorious performance he was appointed on the post of 'Hindi Translator' vide order dated 02.07.1983. After appointment of the father of the petitioner, he was posted in the State of Madhya Pradesh. At the time of selection/appointment of the father of the petitioner, the petitioner was not born. However after selection of the father of the petitioner as 'Hindi Translator' when he was posted in the State of Madhya Pradesh, he has not migrated from the State of Uttar Pradesh to the State of Madhya Pradesh either for living temporarily or for getting employment and therefore, the father of petitioner cannot be treated as migrant. The petitioner was born in the State of Madhya Pradesh at Bhopal on 04.03.1985 and thereafter she completed her education in the State of Madhya Pradesh. However, the Tahsildar, Gaziabad issued Caste Certificate in 3 W.P. No.16642/2016 favour of the petitioner on 10.07.2003 and 15.06.2004 Domicile Certificate was issued in favour of the petitioner. The Madhya Pradesh Poorv Kshetra Vidyut Vitran Co. Ltd., Jabalpur published an advertisement for appointment on the post of Accounts Officer. The Clause-2 of the said advertisement shows that the reservation of post meant for S.C./S.T. and O.B.C. Shall applicable only for the candidates of Madhya Pradesh Domicile and the S.C./S.T. category candidates belonging to other states shall be given relaxation in eligibility criteria of educational qualification and age limit. The petitioner being born, brought up and educated in the State of Madhya Pradesh, has applied for the post of Accounts Officer. The application of the petitioner was entertained and she was allowed to participate in the selection proceedings and vide order dated 29.03.2008, she was appointed on the post of Executive Trainee (Accounts) and thereafter on completion of training period she was appointed as the Executive Trainee (Accounts) vide order dated 08.08.2008. The petitioner thereafter was appointed as Accounts Officer as 4 W.P. No.16642/2016 Schedule Caste candidate being domicile of State of Madhya Pradesh. On 01.04.2013, she was given current charge of the post of Deputy Director and and thereafter, the petitioner has performed inter-caste marriage with Shri Kamlesh Jain on 12.12.2013. In the meanwhile, the employer of the petitioner has issued charge-sheet dated 07.11.2015 on the ground that the petitioner is not bonafide domicile of State of Madhya Pradesh belonging to Schedule Caste Category and she is a migrant. The petitioner has filed a reply to the said charge-sheet. The petitioner thereafter submitted an application on 01.02.2016 in the office of respondent No.3 for issuance of permanent Caste Certificate affirming her status as 'Jatav' in Scheduled Caste category. The application submitted by the petitioner was unlawfully and illegally returned back to the petitioner with an endorsement 'incomplete'. The petitioner therefore, filed a writ petition No.6242/2016 before this Court. The said writ petition was finally heard and decided vide order dated 02.08.2016 with liberty to the petitioner to prefer representation before the 5 W.P. No.16642/2016 respondent No.3. The petitioner accordingly submitted a representation before the respondent No.3 and the respondent No.3 vide order dated 09.09.2016 has rejected an application submitted by the petitioner for issuance of permanent Caste Certificate.Being aggrieved by the aforesaid order, the petitioner has filed the present petition.
3. Learned Senior Advocate for the petitioner submits that the impugned order dated 09.09.2016 is illegal, arbitrary and contrary to the judgment passed by the Division Bench in the case of Vandana Dhakad Vs. State of Madhya Pradesh and another and Alka Singh (Dr.) Vs. State of Madhya Pradesh and another. It is submitted that while rejecting the application submitted by the petitioner, the respondents have relied on the circular dated 11.07.2005 issued by the State Government. It is submitted that the said circular does not deal with contingency where the person is born, brought up and educated in the State and therefore, not covered within the definition of 'Migrant'. It is further submitted that the said circular 6 W.P. No.16642/2016 is not applicable to the petitioner. The father of the petitioner is not a migrant because he was selected in All India Services conducted by Staff Selection Commission as 'Hindi Translator' on 02.07.1983. Therefore, the circular is not applicable in the case of the petitioner. It is further submitted that the circular dated 11.07.2005, it relates to only those persons or families who migrated from one place to the another. It is submitted that from Collins Cobuild English Dictionary, Oxford popular English Dictionary, Block's Law Dictionary and Chembur's English-Hindi Dictionary has given the definition of term migrate and as per the definition of migrate is that "would be movement of a person or family from one place to another to find out some work or to live somewhere for short time." The father of petitioner was appointed as 'Hindi Translator' on 02.07.1983 and he was posted in the State of Madhya Pradesh at Bhopal and therefore, he joined the duties at Bhopal. The father of the petitioner has not moved from State of Uttar Pradesh to State of Madhya Pradesh either in search of employment or work.
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4. The respondents have filed the reply and in the reply, the respondents have stated that the petitioner is already having Caste Certificate in her favour, which is available at Page No.68 (Annexure P/13), which shows that in favour of petitioner the Tahsildar Gaziabad has already issued a certificate and granting her belonging to 'Jatav' community as Scheduled Caste. That the Caste Certificate issued in favour of the petitioner, therefore, the petitioner has no cause of action to file the writ petition. It is further submitted that the case of the petitioner is squarely covered by Clause 8.11 of circular (Annexure R/2). In such circumstances, learned Government Advocate submits that the petition deserves to be dismissed. Learned counsel for the respondents has relied on the judgment passed by this Court in the case of Hansraj Singh and others Vs. State of Madhya Pradesh and Others , 2013 (3) M.P.H.T. 357 and the decision passed by the Apex Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the 8 W.P. No.16642/2016 State of Maharashtra and Another Vs. Union of India and another , (1994) 5 SCC 244.
5. I have heard learned counsel for the parties and perused the record. In the present case, the petitioner belongs to Caste 'Jatav', which is Scheduled Caste in the State of Madhya Pradesh. The father of the petitioner has participated in selection process conducted by Staff Selection Commission. The father of the petitioner was born in the State of Uttar Pradesh and he was appointed on the post of Hindi Translator on 02.07.1983 in the State of Madhya Pradesh. At the time of his appointment, the petitioner was not born. The father of petitioner has not migrated from the State of Uttar Pradesh to the State of Madhya Pradesh either for living temporarily or getting employment. On account of his selection by the Staff Selection Commission, he was appointed in the State of Madhya Pradesh. The petitioner was born in the State of Madhya Pradesh at Bhopal on 04.03.1985 and thereafter, she has completed her entire education in the State of Madhya Pradesh. On 10.07.2013, the Tahsildar Gaziabad issued Caste 9 W.P. No.16642/2016 Certificate in favour of the petitioner and on 15.06.2004 Domicile Certificate was issued in favour of petitioner. The petitioner thereafter was appointed on the posts of Accounts Officer as Scheduled Castes candidates and she was also given current charge of post of Deputy Director. The petitioner thereafter performed inter-caste marriage with Shri Kamlesh Jain. That on 07.11.2015, a charge-sheet was issued to the petitioner stating that the petitioner is not a bonafide domicile of State of Madhya Pradesh belonging to Scheduled Castes and she is a migrant. The petitioner therefore submitted an application dated 01.02.2016 before the respondent No.3 for issuance of permanent Castes Certificate affirming her status as Jatav in Scheduled Caste Category. The application was returned back to the petitioner with an endorsement that it is incomplete. The petitioner therefore, filed the writ petition No.6242/2016 before this Court. The said writ petition was heard and decided on 02.08.2016 with a direction to the respondent No.3 to decide the representation. Accordingly, the respondent No.3 has passed the impugned order thereby rejected 10 W.P. No.16642/2016 the said representation. This Court while passing the order in W.P. No.6242/2016 has directed the respondents to passed the order in light of the judgment passed by Division Bench in the case of Vandna Dhakad (supra). From perusal of the said order, it is revealed that the said order has been passed relying on the Clause 8.11 of the Circular dated 13.01.2014. It is also pointed out that the Central Government has issued a circular dated 22.02.1985 in which, it has been stated that the employee, who belongs to the Scheduled Castes and Scheduled Tribes, if they migrate from one State to other State for employment or education then, they will be said to belong to original State and they will be entitled to the benefit of Scheduled Castes and Scheduled Tribes from the State from which they have been migrated. In the present case, the father of the petitioner has not come for employment in the State of Madhya Pradesh but was appointed by Staff Selection Commission and he was given post in Madhya Pradesh and therefore, she will not come under the definition of 'migrant'. It is also to be noted that the petitioner has born in the 11 W.P. No.16642/2016 State of Madhya Pradesh and she has completed her education in the State of Madhya Pradesh. The Domicile Certificate has been issued in her favour by Tahsildar. The similar controversy was raised by one Vandna Dhakad in W.P. No.1179/2006 at Gwalior Bench. The said writ petition was allowed by the Division Bench vide order dated 02.04.2014. While allowing the said writ petition, this Court in paragraph No.4 to 9 has held as under :
"4. After taking into consideration the arguments advanced by the learned counsel on behalf of the respondents and on perusal of the impugned order dated 29.06.2005 Annexure P/1, it seems that the impugned order has not been passed in accordance with law. In para 3 of the impugned order it was opined by the Committee that father of the petitioner was permanent resident of State of Rajasthan. He belongs to "Dhanuk" caste which comes under 12 W.P. No.16642/2016 Scheduled Caste category in the State of Madhya Pradesh also, but even then certificate for Scheduled Caste cannot be issued in favour of the petitioner because it is a case of migration. The circular issued by the Government of M.P. No.B.C.-
16014/1/82-S.C. & B.C.D-1 dated 06.08.1984 in which in para 2 there is clear direction which reads thus :
"Clarified that the Scheduled Caste/Scheduled Tribe person on
migration from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribe but he will be entitled to the concessions/benefits admissible to the Scheduled Castes/ Scheduled Tribes from the State of his origin and not from the State where he has migrated."13
W.P. No.16642/2016
5. It was also held by the Committee that in view of the circular issued by the General Administration Department vide letter No./ F-
1/Sa.Pra.Vi./Aa. Pra. Dated 01.08.1996 the directions have been given and in para 16 it is clearly mentioned that when a person migrated from one State to another, the caste certificate should be taken from the State from where he came.
6. We are of the considered view that because of admitted fact that the petitioner has born and brought up this State she has completed his entire education in this State. She has not migrated. Her father came from State of Rajasthan, therefore, the circulars mentioned in the impugned order are not applicable in this case. It is also an admitted fact that "Dhanuk" caste comes under the 14 W.P. No.16642/2016 Scheduled Caste Category in both the States i.e. State of Madhya Pradesh and State of Rajasthan.
7 In view of the aforementioned facts and circumstances of the case and in view of the principles laid down by this Court in the case of Neetu Singh (supra) and also in the case of Dr. Yamini Khapre Vs. State of Madhya Pradesh and others, (W.P. No.5143/2005 decided on 15.11.2006, Bench Gwalior), this petition deserves to be allowed.
8. Petitioner is born in the State of Madhya Pradesh. She had her entire education and career in the State of Madhya Pradesh. Her father migrated in Madhya Pradesh before her birth i.e. more than 20-25 years back. The caste "Dhanuk" is declared as Scheduled Caste in both the States 15 W.P. No.16642/2016 and the competent authority had issued caste certificate in her favour in the year 1989 and on 17.05.2002 by SDO Gwalior. Thus, the petitioner in the present case is a bonafide resident of Madhya Pradesh and as has been held by this Court in the case of Neetu Singh (supra), she has acquired the status of permanent domicile in the State of Madhya Pradesh as she fulfills the following conditions viz-
(i) she has born in the State of Madhya Pradesh and had her entire education right from the beginning to M.B.B.S. in the State of Madhya Pradesh : and
(ii) her parents are continuously residing in the State of Madhya Pradesh for more than 25 years.
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9. As the petitioner has complied with the conditions for acquiring the status of a permanent domicile and, the caste to which she belongs is declared as Scheduled Caste in the State of Madhya Pradesh, there is no reason to deny her the benefits of castes certificate."
6. Against the said order of the Division Bench, the State has preferred a S.L.P. before the Supreme Court and the said S.L.P. was dismissed vide order dated 13.04.2015. The Division Bench of this Court in the case of Alka Singh (Dr.) Vs. State of Madhya Pradesh , 2012 (III) MPWN 84 in paragraph No.7 to 9 has held as under :
"7. In view of the foregoing, the meaning of word 'migration' is clear by which the movement of a person or a family from one place to another to find out some work or to live somewhere for a short time. It may 17 W.P. No.16642/2016 further be gathered that if a person or family has moved from one country or region to another would be treated as migrated. In our considered opinion, in a case where the marriage of a lady has been solemnized from one State to another and she has started to reside in another State, it would not fall within the meaning of migration and will not fall within clause 3, 3.1 to 3.4 of the said circular. Thus, the circular so referred by the competent authority and learned Single Judge is not applicable to the case of marriage of a lady from one State to another and on the basis of the same refusal to grant permanent caste certificate is not permissible.
8. In the facts of the present case, it is clear that the community 'Jaat' to whom the petitioner or her husband 18 W.P. No.16642/2016 belongs falls in both the States in OBC category as per notifications issued by the State Governments in this regard. Indisputably, the notifications were issued after solemnization of marriage of the petitioner i.e. in the year 1986.
On the date of inclusion of the 'Jaat' community in OBC category, the
petitioner was residing in the State of Madhya Pradesh along with her husband who also belongs to the same community. She has applied to get employment in the State of Madhya Pradesh in 2009-2010. Thus, while granting permanent caste certificate the competent authorities were required to see the aforesaid factual background in place of relying upon the aforesaid circular which is not applicable. It is also seen that the judgment of Valsamma Paul (supra), deals the contingency wherein the wife 19 W.P. No.16642/2016 prior to marriage was belonging to a forward class and after marriage she has become member of backward class, however, in such circumstances the apex Court observed that the candidate who had the advantageous start in life being born in Forward Caste and later on transplanted in Backward Caste by adoption or marriage of conversion, does not become eligible to the benefit of reservation. Similarly in the case of Anjan Kumar (supra), the Court declined to grant the benefit because the wife belonging to Scheduled Tribe was married with a husband belong to forward class while in the facts of present case the aforesaid judgments of Hon'ble the apex Court have no application, because the husband and wife both belong to OBC category as per the notification issued by the 20 W.P. No.16642/2016 Government after solemnization of marriage. In the said circumstances, the competent authority of the State of Madhya Pradesh where the petitioner is residing, is empowered to issue caste certificate of OBC category to petitioner being of 'Jaat' caste and it cannot be denied in reference to the Circular dated 11.07.2005. It can safely be held that the denial so made by the authorities is not in conformity to law in view of the observations made herein above, however, learned Single Judge has committed error to dismiss the petition by passing the order impugned.
9. Accordingly, the appeal filed by the appellant is hereby allowed, the order impugned passed by learned Single Judge is set aside. It is directed that the permanent caste certificate in OBC category shall be 21 W.P. No.16642/2016 issued by the respondents in favour of the petitioner at the earliest. In the facts and circumstances of the case, parties to bear their own costs."
In the present case also the father of the petitioner is not migrated from the State of Uttar Pradesh to the State of Madhya Pradesh but on account of his selection, he was posted in the State of Madhya Pradesh and the petitioner was born in the State of Madhya Pradesh and also completed her education in the State of Madhya Pradesh, therefore, is entitled to get permanent castes certificate. Accordingly, the writ petition is allowed. The order dated 09.09.2016 (Annexure P/1) is hereby set aside and the respondents are directed to issue permanent Castes Certificate in favour of the petitioner within a period of 3 months from the date of receipt of certified copy of the order passed today.
(Ms.Vandana Kasrekar) Judge RC Digitally signed by RASHMI CHIKANE Date: 2018.05.14 16:44:41 +05'30' HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.16642/2016 Apeksha Kumari (Smt. Apeksha Jain) Vs. State of Madhya Pradesh.
ORDER Post it for : 14.05.2018 (Ms. Justice Vandana Kasrekar) JUDGE 10.05.2018