Damor Savita Bahen vs State Of Rajasthan
2022 Latest Caselaw 6358 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                   D.B. Spl. Appl. Writ No. 277/2021

Damor Savita Bahen D/o Shri Devji Bhai W/o Shri Praveen
Kumar Roat, Aged About 27 Years, R/o Village And Post
Saranpur, Tehsil Garhi, District Banswara (Raj.).
                                                                     ----Appellant
                                    Versus
State    Of    Rajasthan,        Through         The       Additional        Director
(Administrative), Medical And Health Services, Jaipur, Rajasthan.
                                                                   ----Respondent
                              Connected With
                   D.B. Spl. Appl. Writ No. 244/2021
Urmila Bahen D/o Amara Bhai W/o Mohan Lal Damor, Aged
About 26 Years, Village And Post Punawada, Tehsil Chikhli,
District Dungarpur (Raj.).
                                                                     ----Appellant
                                    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 Appellant(s)          :     Mr. Pankaj Mehta
For Respondent(s)         :     Mr. K.S. Rajpurohit, AAG assisted by
                                Mr. Rajat Arora,



             HON'BLE MR. JUSTICE SANDEEP MEHTA
        HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                              JUDGMENT

Judgment pronounced on                  :::             29/04/2022

Judgment reserved on                    :::            14/03/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

(2 of 9) [SAW-277/2021]

These two intra-court appeals have been filed by the

appellants-writ petitioners for assailing the order dated

13.01.2021 whereby a batch of writ petitions including the two

writ petitions Nos.18136/2019 & 16951/2019 preferred by the

petitioners involving identical controversy were dismissed by the

learned Single Bench of this Court.

Briefly stated issue which is involved in these appeals can be

summarized as below:-

Can an aspirant belonging to the reserved category for government service, upon migration to a TSP area in Rajasthan by virtue of marriage to a person of same category claim caste based TSP reservation benefit in terms of the notification dated 21.10.2019 issued by Governor of Rajasthan?

The appellants Damor Savita Bahen and Urmila Bahen are

originally residents of Village Santrampur, District Panchmahal and

Village Talwada, Taluka Kadana, District Mahisagar, Gujarat

respectively where they were enjoying the status of Scheduled

Tribes by virtue of certificates issued by the competent authority.

The appellant Savita Bahen married Shri Pravin Kumar, resident of

District Banswara in the year 2016 and upon migration, acquired a

Special Caste Certificate issued by the Tehsildar Garhi District

Banswara where her husband permanently resides. Similarly, the

appellant Urmila Bahen married Shri Mohan Lal Damor, resident of

District Dungarpur in the year 2014 and upon migration, she too

(3 of 9) [SAW-277/2021]

acquired a Special Caste Certificate issued by the Tehsildar,

Chhikhli, District Dungarpur.

The State of Rajasthan issued a notification dated

18.06.2018 inviting applications for recruitment of 637 posts of

Female Health Workers for TSP area, of which 336 posts were

reserved for candidates belonging to Scheduled Tribes. The

appellants submitted online application forms staking a claim as

TSP-ST candidates and relied upon domicile certificates and caste

certificates issued with their respective spouses' names. They

were called for document verification in the TSP-ST category.

However, their names did not reflect in the final select list of TSP-

ST candidates and instead were included in the reserve list of TSP

General candidates.

Both the appellants, stake a claim for appointment in the

reserved category of TSP-ST in the subject recruitment process on

the strength of the caste certificates obtained by them post

migration into Rajasthan. However, their prayer was not accepted

and the respondents, relegated both the appellants into the TSP

General category wherein, they did not stand in merit and

accordingly, their names were not reflected in the final select list.

Being aggrieved by the non-inclusion of their names in the final

select list of TSP-ST candidates, the appellants-writ petitioners,

filed the writ petitions as above, basing their claim on the

Notification dated 21.10.2019 issued by the Hon'ble Governor of

Rajasthan asserting that under this notification, a person of SC/ST

category by virtue of marriage to a bonafide resident of Rajasthan,

would retain the caste status of the State of origin on migration.

(4 of 9) [SAW-277/2021]

The writ petitions came to be rejected by the impugned order

dated 13.01.2021 whereupon, these two intra-court appeals have

been preferred.

Learned counsel Shri Pankaj Mehta, representing the

appellants vehemently and fervently urged that both the

appellants are of Damor caste which is recognized as a Scheduled

Tribe category both in Gujarat as well as in Rajasthan and as such,

by virtue of the Notification of 2019, both the appellants are

entitled to be considered in the ST category upon migration to

Rajathan by virtue of their marriage to spouses of same caste in

Rajasthan. In support of his contention, Shri Mehta relied upon

judgment of Hon'ble Supreme Court in the case of Director

Transport Department Union Territory Administration of

Dadra and Nagar Haveli Silvassa & Ors. vs Mr. Abhinav

Dipakbhai Patel reported in (2019) 6 SCC 434 and urged that

a controversy identical to the one involved in the present appeals

was considered in extenso by Hon'ble the Supreme Court and it

was held that the respondent therein, would have to be given

benefit of reservation for Scheduled Tribe upon migration. He thus,

urged that the view taken by the learned Single Bench, while

dismissing the writ petitions vide order dated 13.01.2021 filed by

the appellants is contrary to the ratio of the above Supreme Court

judgment and hence, the same is liable to be quashed and set

aside and the appellants are entitled to the relief claimed.

Per contra, Shri K.S. Rajpurohit, AAG assisted by Shri Rajat

Arora, Advocate representing the respondents placed reliance on

(5 of 9) [SAW-277/2021]

Hon'ble Supreme Court's judgment in the case of Ranjana

Kumari vs State of Uttarakhand & Ors. (Civil Appeal No(s).

8425/2013) and the Division Bench judgment of this Court in

the case of State of Rajasthan & Ors. vs. Taviyad Parvati

Bahen & Anr. (D.B. Special Appeal (Writ) No.58/2021,

decided on 06.01.2022 and urged that the controversy which

has been raised in these appeals is no longer res integra in view of

the above judgments wherein, it has clearly been held that a

person who belongs to the Scheduled Tribe and hails from other

State cannot carry such status upon migration to another State by

virtue of marriage.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

The only ground of challenge advanced by Shri Mehta to

espouse the cause of the appellants and for assailing the

judgment of learned Single Bench was based on the Apex Court

judgment in the case of Abhinav Dipakbhai Patel (supra)

wherein a Two Judges Bench of Hon'ble the Supreme Court held as

below:

"12. There is no dispute that the Respondent was a resident in the Union Territory of Dadra and Nagar Haveli for six years prior to the date of advertisement. He stated in the Writ Petition that he owns an apartment in which he was residing and he married a woman from "Dhodia" tribe in the Union Territory. He further stated that his name is in the Voter's

(6 of 9) [SAW-277/2021]

List in the Union Territory. These facts have not been disputed by the Appellants. The central issue raised by the Appellants before the High Court was that a person should be a local in the Union Territory which meant that migrant Scheduled Tribes cannot be given the benefit of reservation. The Presidential Notification issued for the Union Territory of Dadra and Nagar Haveli extends the benefit of reservation to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. We find no force in the point canvassed by the learned counsel for the Appellants that the reservation for Scheduled Tribes in the Union Territory of Dadra and Nagar Haveli is not available to migrant Scheduled Tribes. A feeble attempt was made by the learned counsel for the Appellant that the requirement of residence is for a period of 10 years for a person to claim the benefit of reservation. There is no material which was placed on record in the High Court in support of the said submission and there was no such averment in the counter affidavit filed in the Writ Petition. This point was not raised before the High Court and no such ground is taken in the Special Leave Petition for which reason the said contention does not merit any consideration. Other points canvassed by the learned Senior Counsel for the Respondent need not be adverted to in view of the order we propose to pass. Gross injustice is caused to the Respondent by the action of the Appellants in not appointing him in spite of the advice of the Union of India and the direction issued by the National Commission for Scheduled Tribes. The appointment of Respondent as Assistant Motor Vehicle Inspector does not brook any further delay."

Manifestly the above observations in the case of Abhinav

Dipakbhhai Patel (supra), were made by Hon'ble the Supreme

Court in the peculiar facts of the case taking note of the fact that

the respondent was a resident in the Union Territory of Dadra and

(7 of 9) [SAW-277/2021]

Nagar Haveli for six years prior to the date of advertisement. He

owned an apartment there and had married a woman from

"Dhodia" tribe in the Union Territory and his name was entered in

the voters list. The argument raised by the appellants that the

aspirant was required to be residing in the Union Territory for ten

years to claim benefit of reservation was repelled by Hon'ble the

Supreme Court because neither any such material was placed on

the record nor was such point argued before the High Court. Thus,

these observations have to be considered as governing the

peculiar facts of the said case.

We are of the firm view that the issue at hand is squarely

covered by the judgment rendered by Three Judges Bench of

Hon'ble Supreme Court in the case of Ranjana Kumari vs State

of Uttarakhand & Ors. : 2018 (14) SCALE 755 wherein it was

held as below:

"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 & Scheduled Tribes in the State of Maharshtra & Anr. vs. Union of India & Anr. have taken the view 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

(8 of 9) [SAW-277/2021]

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. "

The said judgment was followed by Division Bench of this

Court in an analogous controversy pertaining to the very same

recruitment process in the case of State of Rajasthan & Ors. vs.

Taviyad Parvati Bahen & Anr. (D.B. Special Appeal (Writ)

No.58/2021). In the said appeal, the notification dated

21.10.2019 was considered and it was held as below:-

"Learned counsel for the respondents-original petitioners, however, vehemently contended that the State of Rajasthan itself has amended its policy by issuing a notification dated 21.10.2019. Our attention was drawn to the said notification as well as decision of the Division Bench of this Court dated 04.01.2020 in case of State of Rajasthan & Ors. Vs. Smt. Twarita Gehlot (D.B. Special Appeal (Writ) No. 576/2018), in which relying on the said notification of the State of Rajasthan, the appeal was dismissed.

We, however, find that the said notification does not concern the present issue at hand. The notification of the State Government is in relation to the benefits to be granted to the residents of Tribal Sub Plan area ('TSP' for short). It is in this context, the State Government has made certain clarifications and modifications, which include that a person residing in the said area after marriage would also get the benefits. This notification would throw no light on the present controversy. The question, as narrated in the outset, is whether a person who belongs to the Scheduled Tribe and hails from other State, can carry status upon her migration

(9 of 9) [SAW-277/2021]

through marriage to the State of Rajasthan. The answer has been rendered by the Supreme Court specifically in case of Ranjana Kumari (supra) and the State appeal is, therefore, allowed. The judgment of the learned Single Judge is reversed."

As a consequence of the above discussion, we find that the

learned Single Bench was absolutely justified while repelling the

claim of the appellants-writ petitioners in the featured recruitment

process and dismissing their writ petitions for being considered as

scheduled tribe candidates post migration into Rajasthan by virtue

of their marriage. The impugned order dated 13.01.2021 does not

suffer from any infirmity whatsoever warranting interference.

Consequently, both the appeals fail and are dismissed as being

devoid of merit.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J Sudhir Asopa/-

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