Rajasthan High Court - Jodhpur
Smt. Meena Meena vs The State Of Rajasthan & Ors on 15 December, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11226 / 2013
Smt. Meena Meena W/o Shri Chhotumal Meena, caste-Meena
(ST), aged 23 years, R/o 256K Govt. Quarter Shetra, Jhadol (F),
Tehsil Jhadol, District Udaipur (Rajasthan).
----Petitioner
Versus
1. The State Of Rajasthan through the Dy. Secretary, Rural
Development and Panchayatiraj Department, Government of
Rajasthan, Jaipur (Raj.)
2. The Chief Executive Officer, Zila Parishad, Udaipur, Rajasthan.
3. The Vikas Adhikari, Panchayat Samiti Jhadol (F) District
Udaipur, Rajasthan.
4. The Sarpanch, Gram Panchayat Gorana, Panchayat Samiti
Jhadol (F), District Udaipur.
----Respondent
_____________________________________________________
For Petitioner(s) :Mr. SP Sharma
For Respondent(s) :Mr. Manish Patel, AGC
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 15/12/2017
1. The petitioner has preferred this writ petition under Article 226 of the Constitution of India with the following prayers:
"(i) By an appropriate writ or direction, in the nature thereof, the impugned order dated 13.08.2013 passed by the respondent Vikas Adhikari (Respondent no.3) may kindly be declared illegal and unsustainable and consequently the same may kindly be quashed and set aside and ncecessary directions may kindly be issued to the respondents, to immediately re-instate the petitioner on the post of LDC, with all consequential service benefits, to which she is eligible and entitled under law.
(ii) By an appropriate writ, order or direction, in the nature thereof, the respondent may kindly be directed to consider candidature of petitioner for appointment as LDC, against Recruitment-2013, by declaring her eligible, on the basis of her caste to ST Category and she may kindly be allowed to be given benefit of reservation menat for ST (Female) category and accordingly she may kindly be given appointment on the post of LDC with all consequential benefits, at par with those, who have been given appointment.
(iii). Any other order or direction, which this Hon'ble Court deemed just and proper be passed in favour of the petitioner."
2. Learned counsel for the petitioner states that the petitioner is a female candidate (ST Category), who as per the documents does not belong to TSP are. The claim of the petitioner is that TSP benefits was not given on account of her husband who also is not a resident of TSP area but is doing his services in the TSP area. Learned counsel for the petitioner states that the petitioner is entitled because her husband is discharging his duties in TSP area and has got bonafide certificate of such area.
3. Leaned counsel for the petitioner has further shown that her husband has also the TSP area certificate dated 03.04.2012. Learned counsel for the petitioner states that since the status of the husband of the petitioner is that an employee in the TSP area and also having the bonafide resident certificate should be permitted all the benefits of TSP area.
4. Learned counsel for the petitioner has relied upon the judgment passed by a co-ordinate Bench of this Court in Vandana Ninama Vs. The RPSC, Ajmer & Ors. (S.B. Civil Writ Petition No.6861/2007) decided on 23.10.2008, the judgment reads as under :-
"On qualifying the Primary and Upper Primary School Teachers' Competitive Examination, 2006 the petitioner was provisionally selected for appointment as Teacher Gr.III. The selection aforesaid came to be rejected by the Rajasthan Public Service Commission by alleging that the petitioner though is a member of Scheduled Tribes but is not a resident of triable sub plan area. By this petition for writ a challenge is given to the decision aforesaid.
It is contended by counsel for the petitioner that the petitioner is admittedly a member of Scheduled Tribes and is a resident of village Sagwa, Tehsil Kushalgarh in District Banswara. A domicile certificate in this regard was also issued by the Sub Divisional Magistrate, Kushalgarh District Banswara, hence the respondent Commission erroneously rejected selection of the petitioner for appointment as Teacher Gr.III.
In reply to the writ petition it is stated by the respondents that though the petitioner is residing at village Sagwa in District Banswara but prior to her marriage she was residing at village Kakanwani District Jhabua (Madhya Pradesh) and, therefore, she could not treated as a resident of triable sub plan area and as such her selection was rightly cancelled. The respondents have not said anything in reply regarding domicile certificate placed on record by the petitioner wherein the Sub Divisional Magistrate, Kushalgarh certified that the petitioner is a bonafide resident of village Sagwa, Tehsil Kushalgarh, District Banswara. It is also not disputed by the respondents that the petitioner is a member of Scheduled Tribes and presently she is residing in District Banswara.
Heard counsel for the parties.
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 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 it 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 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."
5. Learned counsel for the respondents has relied upon the judgment of passed by Jaipur Bench of this Hon'ble Court in Smt. Priti Bala Trivedi Vs. RPSC & Ors. (D.B. Special Appeal (Writ) No.1041/2015) decided on 11.05.2016, the judgment reads as under :-
"Instant special appeal is directed against order of the ld.Single Judge 28.10.2015.
At the outset, it may be recorded that for a candidate, who has participated in the selection process against the vacancies reserved for the candidates of TSP Area, such candidates are supposed to furnish a certificate issued by the competent authority that they are resident of TSP Area, which the appellant indisputably, does not possess even as on today.
The brief facts as culled out from the record are that the advertisement dt.02.08.2013 came to be issued by the Rajasthan Public Service Commission holding selections for the post of Teacher Gr.II for various subjects (including Science) and the last date of submission of application form was 10.10.2013.
In furtherance thereto, the candidates who intended to participate in the selection process appeared in the written examination held on 22.02.2014 and the result was declared on 09.01.2015 and the revised result was declared on 26.05.2015.
Indisputably, as per the case set up by the petitioner, she does not fall within the order of merit in General- Female (Divorcee). However, she converted her application to be treated in General-Female (TSP Area) but there is no certificate, of she being a resident of TSP Area, in her possession and that is the reason for which the Commission did not consider her candidature against the vacancies reserved for TSP Area.
It is a fact which came on record that when the application was filed by the appellant for obtaining a certificate of she being a resident of TSP Area, the competent authority rejected her application.
The ld.Single Judge after taking into consideration the material on record observed that the candidate who wants to get himself/herself to be considered for TSP Area is under an obligation to furnish a certificate that he/she is a resident of TSP Area and the appellant, who failed to furnish the relevant documentary evidence in support thereof either on the date of submission of application or on the date of declaration of result of written examination, obviously, could not be considered against the vacancy reserved for TSP Area.
Even when the question was put by us to counsel for appellant as to whether today she possesses the certificate of being a resident of TSP Area. Counsel, on instructions, submits that after her rejection of the application, which according to him has been arbitrarily rejected, she still does not holding the certificate of being a resident of TSP Area, which could enable her to be considered against the vacancies reserved for TSP Area.
In totality of the matter, the ld.Single Judge observed that if the petitioner fails to furnish the relevant documentary evidence in support thereof, there appears no error being committed by the recruiting authority in its decision making process in not taking into consideration the candidature of the appellant for appointment to the post of Teacher Gr.II against the vacancies reserved for TSP Area.
As regards the submission made in respect of rejecting application of the appellant for grant of certificate, prayed for, neither the ld.Single Judge has observed or recorded any finding in the order impugned before us. At the same time, we make it clear that the appellant is at liberty to avail remedy which the law permits to her for obtaining a certificate of she being a resident of TSP Area from the competent authority independently in accordance with law.
After we have heard counsel for the parties and taking into consideration the material on record, we do not find any error being committed in the order impugned, which may call for our interference.
Consequently, the instant special appeal is devoid of merits, accordingly stands dismissed."
6. Learned counsel for the respondents has also relied upon the judgment passed by a coordinate Bench of this Court in Sapna Audichya Vs. State & Ors. (S.B. Civil Writ Petition No.698/2015), decided on 19.01.2015, the judgment reads as under :-
"The petitioner got married to one Shri Amit Kumar Sharma resident of Bikarni, Tehsil Kotda, district Udaipur which has been declared as Tribal Sub Plan (TSP) Region. The husband of the petitioner has already been issued Special Domicile Certificate (TSP).
The petitioner applied for issuance of the said certificate on account after her marriage with a person who is a domicile of TSP Region. Instead of issuing her the said Certificate, the Tehsildar, Kotda vide his letter dated 17/20.10.2014 has sought guidance from the Commissioner, Tribal Region Development Department, Udaipur regarding issuance of Special Domicile Certificate to the petitioner. Meanwhile, the petitioner has been selected for the post of Teacher Grade II (English) by the Rajasthan Public Service Commission, Ajmer in pursuance to the advertisement dated 21.10.2014. The petitioner is accordingly required to submit her Certificates including the Certificate of resident of Tribal Sub Plan (TSP) Region on 20.01.2015, but till date the said Certificate has not been issued to her and nor has the Commissioner, Tribal Region Development Department taken a decision on the letter dated 17/20.10.2014 of the Tehsildar, Kotda.
Reliance is placed on the judgments of this Court in the cases of Asha Devi (Smt.) vs. State of Rajasthan reported in 2000 DNJ [Raj.] 181 and Vandana Ninama vs. The RPSC, Ajmer & Anr. (SB Civil Writ Petition No. 6861/2007) decided on 23rd October, 2008 holding that the petitioner in the said petition having got married to a person who is resident of an area belonging to Tribal Sub Plan Region, she too has to be treated as domicile of the same district as her husband on account of her marriage.
In these circumstances, the present petition is disposed of with a direction to the respondents to consider the application of the petitioner submitted by her for issuance of the said Certificate within ten days from today. The judgments and orders passed by this Court in the cases of Asha Devi (Smt.) and Vandana Ninama (supra) be taken into consideration while considering the grant of the said Certificate.
Meanwhile, the respondent No.4 - Rajasthan Public Service Commission shall keep one post reserved for the petitioner in order to enable her to produce the Certificate of the TSP Region.
The present writ petition is accordingly disposed of in the above terms.
A copy of the order be issued to the learned counsel for the petitioner under the signature of the Court Master."
7. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the expansion of the benefits to the TSP area cannot be made for the Government employees and if such analogy is accepted then thousands of employees of State of Rajasthan or its authorities who are functioning and discharging their duties in the TSP area but they were belonging to non-TSP area will be come entitled to claim the benefit of TSP area and it shall amount to deprivation of the local population which has been given the special benefit under Article 244 of the Constitution of India.
8. In light of the aforesaid submissions, no interference is called for in the writ petition and the same is dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer