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2008 DIGILAW 565 (UTT)

Jyoti Bala v. State of Uttarakhand

2008-12-16

V.K.BIST, V.K.GUPTA

body2008
Judgment V.K. Gupta, C.J. With the consent of learned counsel for the parties this writ petition is being disposed of finally today itself at the motion hearing stage without it being formally admitted to hearing. 2. The controversy involved in this writ petition is very short as well as simple. 3. The facts, in brief, may first be noticed. The petitioner applied for selection in the Uttarakhand Judicial Service in the examination as well as the selection process held and conducted by the Uttarakhand Public Service Commission in the year 2008 for the post of Civil Judge (Jr. Div.). The petitioner's candidature was considered alongwith other eligible candidates. She had appeared and qualified in preliminary examination and accordingly was allowed to sit in the main written examination which she also qualified. Because of the merit obtained by her in the main written examination, the petitioner was called for viva-voce/interview. It was at that stage that a dispute arose about her eligibility linked with her domicile which ultimately led to the cancellation of her candidature. 4. Feeling aggrieved, the petitioner has challenged this action of the respondents in the present petition filed under Article 226 of Constitution of India. 5. The undisputed facts of the case are that the petitioner, even though originally belonged to Moradabad district, married Mahavir Singh in the year 1998 and settled in the State of Uttarakhand. It is also the undisputed case of the parties that Mahavir Singh, the husband of the petitioner whom she married in 1998 belongs to and is residing in Kashipur, which even though in 1998 was a part of the State of U. P. after the reorganization of the State, became a part of State of Uttarakhand. The petitioner before her marriage belonged to a Scheduled Caste and Mahavir Singh, her husband also belongs to a Scheduled Caste. It is also the undisputed case of the parties that the petitioner after her marriage to Mahavir Singh in 1998 has been continuously living in and residing at Kashipur, which is a part of State of Uttarakhand. For enabling her to apply and participate in the selection process in the reserved category of a woman candidate belonging to a Scheduled Caste, she submitted a certificate issued by the Competent Authority of her husband Mahavir Singh, but at the time of the interview it was insisted that she produce the certificate of her father. For enabling her to apply and participate in the selection process in the reserved category of a woman candidate belonging to a Scheduled Caste, she submitted a certificate issued by the Competent Authority of her husband Mahavir Singh, but at the time of the interview it was insisted that she produce the certificate of her father. Since her father lives in Moradabad in the State of U.P., the certificate issued in 1998 undoubtedly suggested that the petitioner was a resident of State of U.P. 6. The issue which arises for consideration is whether the petitioner should be considered a dom icile of the State of Uttarakhand as well as being a woman candidate belonging to the Scheduled Caste category, should she be considered in the said category. 7. Reliance has been placed by both the sides upon communication no. 2588/1-4/ lk-iz-/2001 Dehradun dated 20th November 2001, copy whereof has been filed as annexureA-11 with the writ petition. This is a communication emanating from Secretary, General Administration Department, Govt. of Uttarakhand addressed to all the District Magistrates of the State of Uttarakhand. It deals with the subject of the issuance of Permanent Residence Certificate. In para-2 of the said communication it has been clearly mentioned and laid down that Permanent Residence Certificate shall be issued to only such persons who are the citizens of India and bonafide residents of Uttarakhand. It has been clarified that a person shall be considered as a bonafide resident of Uttarakhand whose permanent home is in the State. Para-2 further goes on to lay down and stipulate that Permanent Residence Certificate can be issued to such bonafide residents also who have been residing in Uttarakhand for at least 15 years in the past. 8. Mr. B.D. Kandpal, leamed counsel appearing for respondent no.2 by strongly relying upon para-2 of the aforesaid communication dated 20th November 2001 has contended that residence in the State of Uttarakhand for a minimum period of 15 years is sine a qua non and a condition precedent to the issuance of Permanent Residence Certificate. We do not agree with him. Residence for a minimum period of 15 years is an added as will an second stipulation. Basic stipulation is that such certificate shall be issued to such persons who are citizens of India and who are bonafide residents of Uttarakhand. We do not agree with him. Residence for a minimum period of 15 years is an added as will an second stipulation. Basic stipulation is that such certificate shall be issued to such persons who are citizens of India and who are bonafide residents of Uttarakhand. The expression "bonafide resident" has been explained to mean and include such persons who have permanent homes in Uttarakhand State. It stops at that. In other words what it means is that any such person who is a citizen of India and who has his permanent home in Uttarakhand would be considered a bonafide resident of Uttarakhand State and would be entitled to be issued a Permanent Residence Certificate. In addition to this, anyone else who has been residing in Uttarakhand for a minimum period of 15 years would also be entitled to the issuance of the said certificate. 9. The petitioner after her marriage to Mahavir Singh, undisputably a permanent resident of the State of Uttarakhand acquired husband's domicile and from the date of her marriage became a bonafide resident of the State of Uttarakhand because, she started having a permanent home in Uttarakhand in the sense, residing with her husband, her husband's home became her permanent home. Section 15 of the Indian Succession Act, 1925 clearly lays down that by marriage a woman acquires the domicile of her husband, if she had not the same domicile before. Section 16 of the said Act lays down that a wife's domicile during her marriage follows the domicile of her husband. A combined reading of these two Sections as well as the common law practice leads us to hold that by her marriage to Mahavir Singh in the year 1998, the petitioner acquired the domicile of Mahavir Singh which, undisputedly was in the State of Uttarakhand. Since she continues to remain married to Mahavir Singh till date, she is to be considered and treated as a domicile of Uttarakhand State as well as belonging to the same caste as her husband. The respondents have wrongly rejected the candidature of the petitioner by not agreeing with or accepting the domicile certificate issued in favour of her husband. 10. For the foregoing reasons this petition is allowed. By issuance of a writ of certiorari the action of the respondents in canceling / revoking the candidature of the petitioner is quashed and set aside. The respondents have wrongly rejected the candidature of the petitioner by not agreeing with or accepting the domicile certificate issued in favour of her husband. 10. For the foregoing reasons this petition is allowed. By issuance of a writ of certiorari the action of the respondents in canceling / revoking the candidature of the petitioner is quashed and set aside. Because we are told that vacancies are still available, by issuance of a writ of mandamus we hereby direct respondent no.2 to recommend the name of the petitioner for appointment to respondent no. 1. The said recommendation shall be made within one week from today. 11. On such recommendation being received, we direct respondent no.1 to issue appointment letter in favour of the petitioner within one week of the receipt of recommendation. We are saying so because it is an undisputed case of the parties that in the combined merit list prepared by respondent no.1 the petitioner obtained 503 marks whereas the last selected candidate having 21st position in order of merit had obtained 483 marks. While recommending the petitioner's name for appointment the respondent no.2 shall ensure that the petitioner's name is recommended in a category to which she belongs and against which a vacancy is available. 12. The petition is allowed. No order as to costs.