Suman Devi vs State Of Rajasthan
2021 Latest Caselaw 12841 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10802/2021

Suman Devi W/o Shri Jagdish Chandra D/o Shri Jawahar Lal, Aged About 33 Years, By Caste Kumhar, Aged 33 Years, R/o Vpo Deeplana, Tehsil Nohar, District Hanumangarh.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary Department Of Education, Govt. Of Rajasthan, Secretariat, Jaipur.

2. The Director, Secondary Education, Rajasthan, Bikaner.

3. Rajasthan Public Service Commission, Rajasthan, Ajmer Through Its Secretary.

4. Sub Divisional Officer, Nohar, District Hanumangarh.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Sumer Singh
For Respondent(s)        :



                    JUSTICE DINESH MEHTA

                                    Order

17/08/2021

1. Petitioner vied for the post of School Lecturer, subject

Economics pursuant to recruitment notification dated 13.04.2018

issued by the Rajasthan Public Service Commission.

2. The petitioner who is an OBC, born in Haryana, has moved

to Rajasthan after her marriage with Jagdish Chandra - a person

belonging to OBC (Non-Creamy Layer) category in the State of

Rajasthan.

3. The petitioner has claimed her candidature as an OBC

candidate, however the respondents have considered her

candidature under General category.

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4. According to the respondents, petitioner being originally a

resident of Haryana can claim benefit of reservation only in the

State of Haryana and not in Rajasthan.

5. The issue is no more res-integra, as this Court in the case of

Usha Kumari Vs. State of Rajasthan (SBCWP No.6475/2019) and

Sushila Kumari Vs. State of Rajasthan & Ors (SBCWP

NO.824/2020) has categorically held that an out of State resident,

in spite of marrying a person belonging to OBC (NCL) category in

the State of Rajasthan can not claim benefit of OBC (NCL)

category for other State.

6. The operative portion of the judgment rendered in Sushila

Kumari (supra), reads thus:

9. So far as reliance upon notifications dated 21.10.2019 and 10.02.2020 are concerned, in the opinion of this Court, the petitioner cannot claim parity on such basis. The reason is that, by virtue of notification dated 21.10.2019, residents of other State, marrying a resident of TSP area, have been treated as resident of TSP area, but in that event, candidature of such woman is required to be considered as a candidate of unreserved (Open) category of TSP area and not as an SC/ST on the basis of her caste.

10. On appraisal of the facts and law involved in the case of Abhinav Dipak Bhai Patel (supra), this Court finds that it was a case of grant of weightage to a resident of Dadra and Nagar Haveli, whose claim for bonus marks was rejected by the employer as the applicant in such case was not an original resident of Dadra and Nagar Haveli and was a candidate, who migrated to such Union Territory. Dealing with the presidential notification issued by the Union Territory of Dadra & Nagar Haveli, Hon'ble the Apex Court held that such notification extends benefits of reservation on the basis of residence and not on the basis of origin.

11. So far as the arguments advanced by learned counsel for the petitioner is concerned, this Court accepts the position that after marriage the petitioner, for all practical purposes, is a resident/domicile of the State of Rajasthan.

12. The reservation to SC/ST or even to OBC candidate is not solely dependent upon the residence

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of a person but the same is governed by the constitutional provisions; relevant provisions of reservation and law laid down in this regard.

13. According to the advertisement in question, reservation in SC/ST and OBC category is available to a candidate on the basis of his/her paternity i.e. on the basis of caste and residence of his/her father.

14. Considering all the arguments and even the recent judgment cited by Mr. Bishnoi in the case of Abhinav Deepk Bhai Patel (supra), a Division Bench of this Court allowed the appeal filed by the State vide its judgment dated 13.08.2019 [D.B. Special Appeal (Writs) No.1960/2018 : State of Rajasthan Vs. Chitra Devi], holding thus:-

"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 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

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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 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

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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."

15. Keeping the judgment aside, if we go to the roots of the reservation to the Other Backward Classes, it is to be noted that the 21% reservation was provided for the first time to Backward Classes by the State Government vide notification dated 28.09.1993. It was indicated in such notification that 21% posts to be filled through direct recruitment, shall be kept reserved for the castes and classes included in the list of backward classes as notified vide Social Welfare Department notification No.F11(125)R&P/SWD/46631 dated 27.08.1993.

16. Above referred notification No. G.S.R. 35 dated 27.08.1993 issued by the Social Welfare Department was published in Rajasthan Gazette on 01.09.1993. Said notification provides a list of Backward Classes of the State of Rajasthan, based upon report of the Mandal Commission, which contained list of Backward Classes of the State of Rajasthan. It will not be out of place to reproduce the relevant part of the notifications dated 28.09.1993 and 27.08.1993, which reads thus:-

"DEPARTMENT OF PERSONAL (A-V) NOTIFICATION Jaipur, September 28, 1993.

Sub:- Reservation for Backward Classes in posts and service under the Government of Rajasthan Regarding.

G.S.R. 35:- The Governor of Rajasthan is hereby pleased to order that 21% (Twenty one percent) of the Vacancies in posts and services under the State Government to be filled through direct recruitment, shall be reserved for the castes and classes included in the list of Backward Classes as notified vide Social Welfare Department Notification No. F.11 (125) R&P/SWD/46631, dated 27th August, 1993, published in Rajasthan Gazette, Extra-ordinary dated 1st September, 1993."

"SOCIAL WELFARE DEPARTMENT NOTIFICATION Jaipur, August 27, 1993 No.F.11 (125) R&P/SWD/92-93/46631:-

The list of other Backward Classes, as included in the Mandal Commission Report and annexed herewith, is hereby recognised and notified as the list of Backward Classes for the State of Rajasthan for all purposes.

This order will come in force with immediate effect."

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17. A close and conjoint reading of the above notification leaves no room for ambiguity that notification dated 28.09.1993 provides 21% reservation of the vacancies in the posts to be filled through direct recruitment for the castes and classes enlisted in notification dated 27.08.1993. Whereas the notification dated 27.08.1993 contains a list of Backward Classes and Castes of the State of Rajasthan.

18. It is settled position of law that a person derives his caste from his father or a caste of person is to be reckoned according to his/her paternity. The petitioner, was born to a Yadav father, resident of village Dhamna, District Hisar, thus, she is a Yadav of Haryana or an OBC of Haryana.

19. According to the provision of reservation made vide notification dated 28.09.1993, the castes and classes enumerated in the notification dated 27.08.1993 issued by the State of Rajasthan alone are entitled to be appointed against the posts earmarked for Backward Classes.

20. The petitioner - Yadav by caste borne in Haryana is therefore not entitled to be considered as an OBC, as she is a Yadav of Haryana and not from Rajasthan.

21. The writ petition and the stay petition are, thus, dismissed.

7. Following the judgment aforesaid, the present writ petition at

hands is dismissed.

8. Stay application also stands disposed of.

(DINESH MEHTA),J 100-Rahul/-

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