Rajasthan High Court - Jodhpur
Damor Savita Bahen vs State Of Rajasthan on 13 January, 2021
Bench: Dinesh Mehta
(1 of 10) [CW-18320/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 18320/2019
Dashi Devi Damor D/o Shri Jesing Bhai W/o Shri Ramlal Damor,
Aged About 32 Years, R/o Village Nengala, Post Jorawar Pura,
Tehsil Simalwara, District Dungarpur (Raj.).
----Petitioner
Versus
State Of Rajasthan, Through The Additional Director
(Administration), Medical And Health Services, Jaipur, Rajasthan.
----Respondent
Connected With
(2) S.B. Civil Writ Petition No. 18136/2019
Damor Savita Bahen D/o Shri Devji Bhai, Aged About 25 Years,
W/o Shri Praveen Kumar Roat, R/o Village And Post Saranpur,
Tehsil Garhi, District Banswara (Raj.).
----Petitioner
Versus
State Of Rajasthan, Through The Additional Director
(Administration), Medical And Health Services, Jaipur, Rajasthan.
----Respondent
(3)S.B. Civil Writ Petition No. 8467/2019
Shilpa Ben Garasiya (Rojad) W/o Shri Rajendra Kumar Garasiya,
Aged About 26 Years, D/o Shri Kanti Lal, Aged About 26 Years,
R/o Village Kharadiwada, Post Aadiwali, Tehsil Khairwada, District
Udaipur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department Of
Medical And Health, Government Of Rajasthan, Jaipur,
Rajasthan.
2. Director, Medical And Health Services, Government Of
Rajasthan, Jaipur, Rajasthan.
3. Additional Director (Administration), Medical And Health
Services, Government Of Rajasthan, Jaipur, Rajasthan.
(2 of 10) [CW-18320/2019]
4. Tehsildar, Tehsil Khairwada, District Udaipur, Rajasthan.
----Respondents
(4) S.B. Civil Writ Petition No. 16951/2019
Urmila Bahen D/o Amara Bhai W/o Mohan Lal Damor, Aged
About 24 Years, Village And Post Punawada, Tehsil Chikhli,
District Dungarpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Additional Director
(Administration), Medical And Health Services, Jaipur,
Rajasthan.
2. The Tehsildar, Chikli, District Dungarpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Pankaj Mehta
Mr. Pawan Singh
For Respondent(s) : Mr. KS Rajpurohit, AAG
Mr. Shreyansh Mehta
Mr. Surendra Singh Godara
JUSTICE DINESH MEHTA
Judgment
Reportable 13/01/2021
1. The petitioners in the present writ petitions have approached
this Court with a common grievance that their candidature has
been considered in TSP-General category though they had applied
under TSP-ST category.
2. The question that has cropped up for consideration of this
Court is: 'whether a female candidate, after marrying a person of
TSP-ST, migrates to the State of Rajasthan, can claim caste based
reservation also, while taking TSP reservation benefits in terms of
the notification dated 21.10.2019 issued by the Governor of
Rajasthan?'
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3. As all the petitions involve common questions of facts, they
are being decided conjointly; however, for the sake of
convenience, facts of Dashi Devi Damor Vs. State of Rajasthan &
Ors (SBCWP No.18320/2019) are being taken into account.
4. State issued a recruitment notification dated 18.06.2018 and
invited applications for 637 posts of Female Health Worker for TSP
Area, out of which 336 posts were reserved for candidates
belonging to Scheduled Tribes. The petitioner applied for the post
of Female Health Worker pursuant to the above recruitment
notification and submitted her online application form on
28.06.2018.
5. While furnishing the application form, petitioner asserted her
candidature as a TSP-ST candidate and relied upon a Domicile
certificate and Caste certificate issued with her husband's name.
6. Petitioner was called for document verification on 02.07.2019
and her name was shown as a candidate of TSP-ST category.
7. Petitioner's name was not shown in the final select list of
TSP-ST candidates. However, her name was shown in the reserve
list of TSP-General candidates.
8. The petitioner has preferred the present writ petition with a
grievance that her candidature ought to have been considered as
TSP-ST candidate. It is the case of the petitioner that if she were
considered under TSP-ST category, she would have secured place
in final select list.
9. Inviting Court's attention towards the certificates dated
16.08.2012 and 14.01.2015 issued by the Tehsildar Seemalwara,
District Dungarpur, so also the certificate dated 29.01.2016,
issued by Taluka Vikas Adhikari, Kadana (State of Gujarat),
learned counsel submitted that the petitioner is having domicle
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certificate, so also caste certificate issued by the competent
authority of State of Rajasthan, which evince that the petitioner is
a resident of TSP area and a Scheduled Tribe in the State of
Rajasthan. He thus, argued that the respondents were required to
consider the petitioner as a TSP-ST candidate.
10. Mr. Pankaj Mehta, learned counsel for the petitioner, invited
Court's attention towards notification dated 21.10.2019, issued by
the Governor in exercise of powers under Article 244(1) of the
Constitution of India and submitted that it categorically provides
that any person who migrates to the State of Rajasthan, after
marriage, shall be treated to be a person of TSP Area of the State
of Rajasthan.
11. Placing reliance upon notification dated 21.10.2019, learned
counsel contended that if the State can confer benefits of TSP area
to a woman marrying a resident of TSP area of Rajasthan, how
can State justifiably deny benefits of reservation to the petitioner
and other similarly situated person (who have migrated to
Rajasthan after marriage) and refuse to consider them under
reserved categories of the State?
12. While maintaining that petitioner's caste has been recognized
as Scheduled Tribe in the State of Rajasthan as well as in Gujarat,
learned counsel argued that the notification dated 21.10.2019,
clearly provides that an ST candidate of TSP area of other State, if
migrates to State of Rajasthan after marrying an ST resident of
TSP area of Rajasthan, she shall be considered to be an ST
candidate of TSP area for the State of Rajasthan.
13. Mr. Pankaj Mehta added that the notification which has been
issued for the purpose of grant of employment and with a view to
resolve the dispute regarding daughter-in-laws of the State, if
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given purposive interpretation, the petitioner and like candidates
are required to be treated as TSP-ST candidate. He submitted that
petitioner's caste has been notified as Scheduled Tribe not only in
the State of Gujarat, but also in the State of Rajasthan.
14. As a corollary fact, Mr. Mehta further submitted that the
notification dated 21.10.2019 has been held to be applicable to all
pending recruitments by the State of Rajasthan and hence, the
respondents were obliged to consider the petitioner as a TSP-ST
candidate.
15. Mr. Pankaj Mehta, invited Court's attention towards Para No.1
of the rejoinder and highlighted the case of Smt. Rekha Bahen
Kharadi D/o Sh. Suresh Bhai Kharadi, who despite being a
resident of State of Gujarat, has been selected as TSP-ST
candidate. Learned counsel submitted that the petitioner has been
hostilely discriminated against.
16. Mr. Shreyansh Mehta, learned counsel appearing for the
respondent-State submitted that the notification dated
21.10.2019, which has been made applicable to the pending
recruitment, is applicable only for the purpose of "residence". He
invited Court's attention towards the relevant part of the
notification dated 21.10.2019, and argued that Hon'ble Governor
has laid down that the spouses of the TSP area of Rajasthan,
covered by the earlier notification (dated 16.06.2013) shall be
deemed to be bona fide residents of TSP area.
17. He argued that the caste is however required to be governed
by the notifications declaring a particular caste to be Scheduled
Tribe in the State of Rajasthan. He added that since the petitioner
hails from Gujarat, she cannot be treated to be a ST candidate of
the State of Rajasthan and there is no error in the action of the
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respondent in treating her as a General category candidate of TSP
area.
18. Heard rival counsel.
19. Before delving further, it would be apt to have a first-hand
glance at the relevant clause of the notification, giving rise to the
controversy at hands, which reads thus;
"¼x½ mDr [k.M ¼d½ ;k ¼[k½ ds vUrxZr vkus okys fdlh O;fDr ls fookg }kjk
lacaf/kr gS vkSj og vius fookg ds ckn ls vuqlwfpr {ks= dk ln~Hkkoh fuoklh gSA "
20. Term 'Scheduled area' and TSP status are relatable to
domicile or residence in a particular area. For the purpose of
Scheduled area Article 244 of the Constitution of India is relevant
and the authority to legislate for Scheduled area and its residents
is, the Governor of the State. As against this, Scheduled
Tribe/Caste is relatable with the caste, for which Articles 341 and
342 of the Constitution are to be looked at. A caste is declared as
Scheduled Caste/Tribe by the order of the President of India.
21. The powers available to Hon'ble Governor under Article
244(1) read with Schedule V of the Constitution of India relate to
declaration of rights of "residents" of TSP area and not of
particular caste(s) of such area. For the purposes of declaration of
caste a Presidential notification alone, issued under the provisions
of Constitution (Scheduled Tribes) Order 1950 read with Article
342 is final.
22. Separate list(s) for each of the State and Union Territory
including the State of Rajasthan and Gujarat have been issued by
the President of India in exercise of powers so vested in him by
virtue of Article 342 of the Constitution of India. Article 342 reads
thus :
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"342. (1) The President may with respect to any
State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public
notification, specify the tribes or tribal communities
or parts of or groups within tribes or tribal
communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in
relation to that State or Union territory, as the case
may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community
or part of or group within any tribe or tribal
community, but save as aforesaid a notification
issued under the said clause shall not be varied by
any subsequent notification."
23. A careful reading of Article 342 particularly opening words
"The President may with respect to any State........." clearly
suggests that the caste or group of castes notified for a particular
State are to be considered/treated as Scheduled Caste/Tribe of
that State. As such, even if a particular caste is specified to be a
Scheduled Caste/Tribe in two or more States, but when it comes
to claiming reservation in a State, the person has to be a
Scheduled Caste/Tribe of that particular State.
24. The interplay between the residential status and caste is
required to be noticed carefully.
25. Thus, the notification dated 21.10.2019 issued by the
Governor has its effect and applicability only for residential
purposes. The Governor of Rajasthan in exercise of his
constitutional powers had issued a notification dated 21.10.2019,
holding that a person marrying a TSP resident of the State of
Rajasthan shall be treated to be a TSP resident, it has to be
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understood to have effect only on domicility or residential status.
Such notification cannot and does not have its implications over
caste.
26. As a matter of fact, Governor of a State has power to
legislate in the field of Scheduled area only. The notification issued
by the Governor cannot have any bearing on caste. For the
purpose of declaring a caste to be a Scheduled Caste/Tribe,
Presidential Order issued under Article 341/342 is the final word.
27. Indisputably, after marrying a TSP resident of Rajasthan,
the petitioner, for all practical purposes, is a resident/domicile of
the TSP area of State of Rajasthan. But then, the reservation to
SC/ST or even to OBC candidate is not solely dependent upon the
caste. Caste based reservation is a complex amalgam of caste and
residence, governed by the constitutional provisions; relevant
provisions of reservation and judicial pronouncements in this
regard.
28. The petitioner is by caste 'Damor', which is a caste notified
as Scheduled Tribe under the relevant Presidential Order issued for
the State of Rajasthan. May be, such caste namely Damor has
also been notified to be a Scheduled Tribe by way of separate
Presidential notification issued for State of Gujarat. However, for
the purpose of considering a person's right to claim reservation in
the State as a Scheduled Tribe, the relevant notification issued for
the purpose of State of Rajasthan alone has to be taken into
account. Since, people of caste Damor of State of Rajasthan alone
have been notified to be Scheduled Tribe for the purposes of
benefits of reservation in the State of Rajasthan, persons of
Damor caste of the State of Gujarat cannot claim to be a
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Scheduled Tribe of the State of Rajasthan, so as to stake their
claim against the post reserved for Scheduled Tribe.
29. According to the Article 342 of the Constitution and
Presidential Order, the castes and classes enumerated in the Order
issued for the State of Rajasthan alone are entitled to be
appointed against the posts earmarked for Scheduled Tribe.
30. Judgments of Hon'ble The Supreme Court of India in case of
Ranjana Kumari Vs. State of Uttarakhand; 2018 (14) SCALE
755; Division Bench Judgment dated 13.08.2019 State of Raj.
Vs. Chitra Devi (D.B. Special Appeal (Writs)
No.1960/2018); and judgment of this Court in Sushila Kumari
Vs. State of Rajasthan & Ors., SB CWP No.824/2020 dated
20.02.2020; are clear on the caste based reservation.
31. It is a settled position of law that a person derives his/her
caste from his/her father or a caste of person is to be reckoned
according to his/her paternity.
32. Based on the above analysis, it can solely be concluded that
petitioner, born to a Damor father, resident of village Kadana, in
the State of Gujarat, is a Damor of Gujarat or a Scheduled Tribe of
Gujarat. Therefore, she is, obviously, not entitled to be considered
as a Scheduled Tribe of the State of Rajasthan.
33. Having examined from all possible angles, this Court does
not find any substance/merit in petitioner's contention.
34. The writ petition, therefore, fails.
35. So far as Mr. Mehta's contention based on Para No.1 of the
rejoinder in connection with selection of Rekha Bahen Kharadi
under TSP-ST category is concerned, suffice it to observe that no
counter has been filed by the State and moreso, in absence of
such candidate, this Court would not like to pronounce upon her
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rights. But even if the assertion made by the petitioner is found to
be correct, the petitioner cannot compel the State to commit or
perpetuate an illegality by flagging one wrong. The respondent -
State is however, directed to examine the veracity of the stand so
taken by the petitioner and in case, what has been alleged by the
petitioner has substance, appropriate action be taken against said
Rekha Bahen Kharadi in accordance with law, of course after
observing principles of natural justice.
36. All the captioned cases are identical except a small difference
in facts of SB Civil Writ Petition No.18136/2019 - petitioner
therein had applied for the post of Nurse Grade II pursuant to
advertisement dated 30.05.2018. But such difference in facts is
inconsequential. All the writ petitions are, thus, dismissed.
37. Stay application(s) also stands disposed of.
(DINESH MEHTA),J
3-6-Rahul/-
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