Himachal Pradesh High Court
State Of Himachal Pradesh vs State Of Himachal Pradesh on 3 September, 2021
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 4th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
REVIEW PETITION No. 47 OF 2021.
Between:-
1. STATE OF HIMACHAL PRADESH
EDUCATION,
r GOVT.
SECRETARIAT, SHIMLA, H.P.
THROUGH SECRETARY DEPARTMENT OF
OF H.P. CIVIL
2. THE DIRECTOR, ELEMENTARY
EDUCATION, GOVT. OF H.P. , SHIMLA,
H.P.
3. THE DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, KANGRA AT
DHARAMSHALA.
....PETITIONERS.
(BY MR. ASHOK SHARMA, ADVOCATE GENERAL
WITH MR. ASHWANI SHARMA, MR. HEMANT
VAID, ADDL. ADVOCATE GENERAL AND MR.
VIKRANT CHANDEL, DY. A.G.
AND
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...2...
.
SMT. NAVEEN KUMARI WIFE OF SH.
AJAY KUMAR, RESIDENT OF VILLAGE
AND POST OFFICE CHANOUR TEHSIL
INDORA, DISTRICT KANGRA, H.P.
....RESPONDENT.
(BY MR.
ADVOCATE.)
HARISH
r to
KUMAR
RESERVED ON: 12TH AUGUST, 2021.
VERMA,
DELIVERED ON : 4TH SEPTEMBER, 2021
This petition coming on for hearing this day,
Hon'ble Mr. Justice Sureshwar Thakur, delivered the
following:-
JUDGMENT
Through, the extant petition, the verdict made by this Court on 22.02.2021, upon, Civil Writ Petition No. 5951 of 2020, titled as Naveen Kumari vs. State of Himachal Pradesh and others, is attempted to be reviewed.
2. The parental caste of the writ petitioner is "Megh".
She was born in the State of Punjab. In the State of Punjab, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...3...
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"Megh" caste is notified to be a Scheduled Caste. The writ petitioner after solemnising marriage in Himachal Pradesh, hence migrated to the State of H.P., from the State of Punjab.
Her husband's caste is also "Megh", and, it is also notified as a scheduled caste, insofar as the State of Himachal Pradesh is concerned. Consequently, since, the imperative necessity, carried in the latter No. EDN-C-B(15) 10/2012, inasmuch as, the writ petitioner, upon her migration, on her marriage, in Himachal Pradesh, rather becoming barred to avail the apposite facility, for all requisite purposes, and, as appertain to "Megh" caste, though also notified, as a scheduled caste in Himachal Pradesh, rather became declared ultra vires, and, also unconstitutional, through, the verdict under review.
However, in view of the verdict made by the Hon'ble Apex Court in Civil Appeal No(s). 4864 of 2021, titled as Pankaj Kumar vs. State of Jharkhand and others, wherein the Hon'ble Apex Court after bearing in mind the verdicts made by the Hon'ble Apex, Court in a case titled as Marri Chandra ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...4...
.
Shekhar Rao vs. Dean, Seth G.S. Medical College and others, reported in 1990(3) SCC 130, and, also upon its placing reliance, upon, a verdict made in case titled as Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. vs. Union of India and others, reported in 1994(5)SCC 244, besides upon its placing reliance, upon, a verdict of the Hon'ble Apex Court, rendered in a case titled, as Bir Singh vs. Delhi Jal Board and others, reported in 2018(1) SCC 312, rather thereins i.e. Pankaj Kumar's case (supra), the Hon'ble Apex Court in relevant para 41 thereof, para whereof stands extracted hereinafter, has made the following expostulations:-
"41. By the judgments of the Constitution Bench of which the reference has been made (supra), it has been settled that the person belonging to Scheduled Castes/ Scheduled Tribes/OBC of the State, on migration to another State voluntarily or involuntarily will not be entitled to claim benefits of reservation including privileges and benefits admissible to the member of the Scheduled Castes/Scheduled Tribes/OBC even though, the caste or tribe of the same nomenclature is notified in the latter State (State where migrated) and if that is being permitted, the very expression as mandated ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...5...
under Articles 341(1) and 342(2) of the Constitution in "relation to the State" would become otiose and this .
issue remain nor more res integra after the pronouncements made by the Constitution Bench of this Court."
A reading of the afore extracted paragraph No.41, as, carried in Pankaj Kumar's case (supra), discloses, that therein occur candid echoings, that persons belonging to the Scheduled Castes/Scheduled Tribes/OBC of the State, in their respective States of origin, on migrating to another State, voluntarily or involuntarily, will not be entitled to claim benefits of reservation including privileges, and, benefits admissible to the members of the Scheduled Castes/Scheduled Tribes/OBC, even though, the caste or tribe, of the same monemclature, is notified in the latter State i.e. migratee State. The afore conclusion has emerged, for ensuring that the expression "in relation to the State" as occurring in Articles 341(1) and 342(2) of the Constitution, is made meaningful, and, also it being not rendered otiose. Therefore, upon, meteing the completest deference to the afore expostulation of law carried, in the above extracted paragraph, as, borne in the verdict rendered ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...6...
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by the Hon'ble Apex Court, in Pankaj Kumar's case (supra), hence prima facie the annulling by this Court, and, in its also declaring ultra vires, the apposite restrictions carried in law (supra) qua availment(s) of benefit(s). for all requisite purpose by the petitioner, upon, her migrating into Himachal Pradesh, on hers becoming married to a person, also having a notified in Himachal Pradesh hence "Megh" caste, rather has to be prima facie invalidated.
3. Though, upon, marriage the spouse concerned, rather involuntarily migrated to the State where her husband resides, and, does hence for hers involuntarily through compulsion of marriage, migrating to the State of her husband, tentatively becomes entitled to the benefits of reservation. However, in Pankaj Kumar's case (supra), the Hon'ble Apex Court, did not, examine the issue of voluntarily or involuntarily migration of the members of Scheduled Castes/Scheduled Tribes/OBC, from one State to another, and theirs claiming privileges and benefits admissible to the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...7...
.
members of Scheduled Castes/Scheduled Tribes/OBC, even though in the migratee State, there is a caste or tribe of the same nomenclature, as in the State of origin of the persons concerned.
4. Though, as stated supra, the Hon'ble Apex Court in Pankaj Kumar's case (supra), did not examine, the issue appertaining to involuntarily migration of members of Scheduled Castes/Scheduled Tribes/OBC from State A to State B, and, theirs claiming thereins, the benefits and privileges, as admissible to the members of the members of Scheduled Castes/Scheduled Tribes/OBC, even though there is a caste or tribe of the same nomenclature in the migratee State.
Nonetheless, the Hon'ble Apex Court in case titled as Ranjana Kumari vs. State of Uttarakhand & Ors, Civil Appeal No. 8425 of 2013, upon considering the verdict, made by the Hon'ble Apex Court in a case titled as Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College and others (1990)3 SCC 130, and, also also upon, relying upon a verdict made in ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...8...
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case titled as Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. vs. Union of India and Anr, (1994)5 SCC 244, did hold an occasion, to make interpretation(s) of paragraph No. 13 and 19, as occurred in the 22 nd Report, as, made by the Commissioner for Scheduled Castes and Scheduled Tribes to the Government of India, paragraphs 13 and 19, as become borne in the afore report, stand extracted hereinafter:-
"13. Caste Certificates should be issued only to those who have ordinary residence of the place within the jurisdiction of the competent authority. Ordinary residence means residence which is not for the purpose of service, employment, education, confinement in jail, etc. In short, it means permanent residence and not a temporary residence.
19. Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State from which he has migrated. The competent authority should not, therefore, issue a caste certificate to a person from other State, whether he is ordinary (sic) residing in this State or not."::: Downloaded on - 31/01/2022 23:00:31 :::CIS
...9...
.
5. Though a reading of paragraph No. 19, does create a complete bar against the competent authorities, for theirs issuing caste certificate to persons from another State, irrespective of his/her ordinarily residing in the migratee State or not. However, the word "ordinarily residing" as occurs in paragraph No.19 of the 22nd report of the Commissioner for Scheduled Castes, and, Scheduled Tribes to the Government of India, became interpreted in Action Committee's case (supra), and, the meaningful interpretation thereof, occurs in paragraph No.7 of the verdict made, in, Action Committee's case (supra), paragraph whereof stand extracted hereinfater:-
"7. Subsequent to the issuance of the said communication by the Government of India, the Commissioner for Scheduled Castes and Scheduled Tribes submitted his 22nd Report wherein he pointed out that instances had come to his notice where false certificates were produced by non-Scheduled Caste/Scheduled Tribe persons to secure government service or admission to educational institutions. The report disclosed that such certificates were being issued without the authority issuing the same being even aware of basic requirements necessary for such certificates. On the basis of the recommendations made by the Commissioner and having ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...10...
regard to the procedure adopted by the State of West Bengal .
which was commended for acceptance by the Commissioner, the Government of Maharashtra, in modification of the existing orders directed that caste certificates issued by the Special Executive Magistrates should be treated as ` preliminary certificates' and final certificates should be issued only by the Executive Magistrate authorised by the District Magistrate in that behalf. It was also directed that Special Executive Magistrates should certify only the castes to which they themselves belonged. The Government states that if despite these instructions incorrect caste certificates are issued, a serious view will be taken. In the instructions appended to the said Government Order it was, inter alia, stated in paragraphs 13 and 19 as under :
"13. Caste Certificates should be issued only to those who have ordinary residence of the place within the jurisdiction of the competent authority. Ordinary residence means residence which is not for the purpose of service, employment, education, confinement in jail, etc. In short, it means permanent residence and not a temporary residence.
19. Where a person migrates from one State to another, he can claim to belong to a Scheduled Caste or a Scheduled Tribe only in relation to the State from which he has migrated. The competent authority should not, therefore, issue a caste certificate to a person from other State, whether he is ordinary (sic) residing in this State or not."
By the subsequent letter of 12-2-1981, it was further clarified that in order to become eligible for being treated to be a member of Scheduled Caste/Tribe in relation to the State of Maharashtra a person should be a permanent resident of the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...11...
State of Maharashtra before 10-8-1950, and 6-9-1950, .
respectively, the dates of the notifications of the respective Presidential Orders of 1950 scheduling the castes/tribes in relation to the State of Maharashtra. Since there was no State of Maharashtra in 1950 it would be reasonable to understand it to mean the geographical area now forming part of the State of Maharashtra. At the foot of the pro form a of the certificate the following note was appended:
"Note : The term 'ordinarily reside(s)' used here will have same meaning as in Section 20 of the Representation of the People Act, 1950." Section 20 of the Representation of the People Act, 1950, reads as under:
"20. Meaning of 'ordinarily resident'.- (1) A person shall not be deemed to be ordinary resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.
(1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(1B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.
(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...12...
is detained in prison or other legal custody at any place, shall .
not by reason thereof be deemed to be ordinarily resident therein.
(3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.
(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply, shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date. (5) The statement of any such person as is referred to in sub-section (3) or sub-section (4) made in the prescribed form and verified in the prescribed manner, that but for his having the service qualifications or but for his holding any such office as is referred to in sub-section (4) he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.
(6) The wife of any such person as is referred to in sub- section (3) or sub-section (4) shall, if she be ordinarily residing with such person be deemed to be ordinarily resident in the constituency specified by such person under sub- section (5).
(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...13...
such rules as may be made in this behalf by the Central .
Government in consultation with the Election Commission.
(8) In sub-sections (3) and (5) 'service qualification' means-
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modifications; or
(c) being a member of an armed police force of a State, who is serving outside that State; or
(d) being a person who is employed under the Government of India, in a post outside India."
6. The legal conundrum which besets with this Court, appertains to whether within the ambit of the meaning ascribed by the Hon'ble Apex Court in judgment supra, to the word "ordinarily resident(s)" and which factum ipso facto, does not confer any benefit to the migratee, to claim for issuance of a Scheduled Castes certificate, even if the caste concerned, is notified, both in the migratee State, and, in the State of origin, yet, whether if the writ petitioner if holds a valid service qualification, can be deemed to be ordinarily resident, on any date, in the constituency in which, but for ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...14...
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hers having such service qualification, she would have been ordinarily resident on that day.
7. For setting at rest the afore conundrum, a reading of Section 20 of the Representation of the People Act, 1950, is, imperative, as the term supra as defined therein, has been interpreted by the Hon'ble Apex Court.
r Sub-section (8) of Section 20 of the Representation of the People Act, assigns meaning(s) to word "service qualification", inasmuch as, (a) person being the member of the armed forces of the Union;
or (b) being a member of a force to which the provisions of the Army Act have been made applicable whether with or without modifications; or (c) being a member of an armed police force of a State, who is serving outside that State; or (d) being a person who is employed under the Government of India, in a post outside India. For deriving the benefit of the afore meaning, as, given to the afore word "service qualification", the writ petitioner, would be deemed to be ordinarily residing with the person concerned, only upon her ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...15...
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husband, evidently, holding the afore defined service qualification, hence, in the constituency or in the area specified. The legal effect thereof would prima facie and tentatively, be that, upon, marriage of a lady with a spouse holding a caste alike hers, and, in a State other than the State of origin, may hence enable her to seek the benefit of the afore meaning, as ascribed to the word "ordinarily resident: as occurs in Section 20 of the Representation of the People Act, 1950, and, which has been extracted hereinabove, only upon hers adducing cogent material in substantiation thereof.
However, the writ petitioner, cannot derive any benefit, from the afore ascribed meaning to word "Ordinarily resident" as occurs in paragraph No.19, of the 22 nd report of the Commissioner for Scheduled Castes and Scheduled Tribes, to the Government of India, as there is no material suggestive, that her husband is a member of the Armed Forces of the Union, and/or, is member of a force, to which the provisions of Army Act are applicable, and/or, or is member of armed ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...16...
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police force of a State, and, is serving outside that State, or a person employed under the Government of India in a post outside India.
8. Be that as it may, both in Marri Chandra Shekhar Rao's case (supra), and, in Action Committee's case (supra) the issue of voluntarily and involuntarily migration, of, a person to a migratee State, and, as becomes occasioned upon her marriage, were never encompassed within the realm of the factual foundation(s) cast thereins, nor obviously any pointed, and, stark declaration qua the afore hence emerged. Moreover, in Ranjana Kumari's case (supra), the Hon'ble Apex Court, though had declined to validate the caste certificate of a lady from Punjab, married to a groom in Uttrakhand, despite in both States, an alike notified Scheduled Caste(s), rather existing, inasmuch as Valmiki caste apparently existing. However, the afore invalidation, is on the basis of judgments (supra), as, made by the Hon'ble Apex Court.
Nonetheless, as aforestated, rather in none of the afore ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...17...
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verdicts, of the Hon'ble Apex Court, the latter became seized with foundational facts hence appertaining to the legality of Schedule Castes certificate(s), as, held by any married spouse in both the State(s) of her origin, and, in the migratee State, conspicuously, when even in a migratee State a similar nomenclatured caste became validly notified. Therefore, the invalidation by the Hon'ble Apex Court of the caste certificate of the aspirant concerned, in its verdict, drawn in Ranjana Kumari's case (supra), does appear, to be beyond the ambit of the ratio decidendi, as propounded in the verdicts (surpa), whereons reliance has been placed by the Hon'ble Apex Court, inasmuch, as, in both the verdicts (supra) as became relied by the Hon'ble Apex Court, there were neither any foundational facts, vis-a-vis, the fact as repelled by the Hon'ble Apex Court, in the verdict rendered, in Ranjana Kumari's case (supra), nor any firm ratio decidendi qua therewith became expostulated, in the, verdicts (supra), as became relied upon.
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9. Moreover, even in Pankaj Kumar's case (supra), the Hon'ble Apex Court neither came to be seized with the legality of a caste certificate, of a spouse, as arose from her marriage, in the migratee State, where also her husband belonged to a similar validly notified caste, nor hence any clinching verdict became pronounced thereons hence by the Hon'ble Apex Court.
10. For, wants of any firm declaration (supra) becoming carried, in the verdicts supra of the Hon'ble Apex Court, hence with respect to invalidation of a caste certificate, as purportedly arises, from the writ petitioner involuntarily shifting or migrating, on her marriage, to the State of Himachal Pradesh, and, her husband also carrying a caste alike her caste of origin, inasmuch, as "Megh" caste, besides in both the States, the afore caste being a validly notified scheduled caste. Therefore, this Court even upon leaving aside, the afore attribution of meaning, to the word "service qualification" as occurs in the Representation of the People ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...19...
.
Act, and its being borrowed, by the Apex Court, does proceed, to hence bring the petitioner also within the ambit of the meaning ascribed to "ordinary resident" (supra) by the Hon'ble Apex Court, inasmuch, as, within the ambit, and, clout thereof, that, upon hers migrating to Himachal Pradesh, upon hers marrying a groom, who alike her belongs to a Megh caste, and, when the said caste is also notified as a Scheduled Caste, in Himachal Pradesh, she rather making only temporary or fleeting movements to her matrimonial home, hence has not, ipso facto, rather ceased to be an ordinary resident within Himachal Pradesh, rather after marriage she becomes permanently domiciled in Himachal Pradesh.
11. Moreover, she establishes that upon her marriage in Himachal Pradesh, she has provenly established the requisite animus deserdendi, from the State of her origin i.e. Punjab.
Therefore, she becomes an ordinary resident of Himachal Pradesh, as she has not migrated to Himachal Pradesh rather solitarily for the purpose of service, employment, and, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...20...
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education, rather has migrated on account of her marriage in Himachal Pradesh with her husband.
12. Emphasisingly, the settling of the conundrum with regard to "ordinary resident and bonafide resident" is/are of utmost importance. The meaning of the term "bonafide resident" as defined under various pronouncements made by different Courts, is, that of residence with a permanent intention to reside, in the State concerned.
13. Now the intention to reside permanently, is to be inferred from the circumstance of a particular caste. Since various states including the State of Himachal Pradesh, have framed rules for issuance of a bonafide certificate. The Himachal Pradesh Rules, for issuance of a bonafide certificate, prescribe that a person, who continuously resides in Himachal Pradesh for 15 years, becomes entitled for issuance of a bonafide certificate. If, a person continuously for 15 years holds his residence at Himachal Pradesh, it means that he has a permanent intention to reside in Himachal Pradesh, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...21...
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and, hence evinces his animus deserendi from the State of his origin. Consequently, a person, who becomes a bonafide resident of Himachal Pradesh, has definitely suffered and has become socially disadvantaged, disadvantages whereof, arise from his caste, given his for a minimum period of 15 years, rather being permanently domiciled in H.P. Therefore, he cannot be considered to be a migratee after 15 years, as, after the afore period he becomes entitled, for the issuance of a bonafide certificate, as per the rules. Consequently, if the caste of his origin is by birth in the State of his origin, and, is notified in the State where he is a bonafide resident, or is permanently domiciled. Therefore, he becomes entitled to receive an apposite caste certificate.
14. Consequently, as discussed above, when a person is issued a bonafide certificate, it means that he is a permanent resident of the State, for all intents and purposes as he has intention to live permanently there, and, he remains no more a migrant. Similarly, the petitioner after her ::: Downloaded on - 31/01/2022 23:00:31 :::CIS ...22...
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marriage no more remains a migrant, and, she for all intents and purposes, is, now settled in the house of her husband.
15. However, subject to supra, paragraphs No. 4, 5 and 6 of the judgement under review are beyond the ambit of Article 340, and, are hence declared to be per incuriam.
16. In summa, the review petition is partly allowed to the extent (supra). The respondents concerned are, however, directed to forthwith declare the result of the writ petitioner, and, if she has successfully qualified the test, she be forthwith offered an appointment letter in accordance with law. All pending applications also stand disposed of.
(Sureshwar Thakur) Judge.
(Chander Bhusan Barowalia) Judge.
4th September, 2021.
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