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2014 DIGILAW 457 (UTT)

STATE OF UTTARAKHAND v. NEETU SINGH

2014-10-13

SUDHANSHU DHULIA, U.C.DHYANI

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. 1. This is a special appeal filed by the State challenging the order dated 18.03.2013 passed by the learned Single Judge of this Court in WPSS No. 566 of 2012 whereby the writ petition of the petitioner (herein respondent) stands allowed. 2. The case of the petitioner in the writ petition was that she was born in the erstwhile State of Uttar Pradesh (i.e. undivided State of Uttar Pradesh prior to 09.11.2000) and belongs to O.B.C. Community “Koeri”. The new State of Uttarakhand was formed by an Act of Parliament “The Uttar Pradesh Reorganization Act 2000” and came into existence on 09.11.2000 by which the new State of Uttarakhand was carved out. Thereafter, the petitioner, in the year 2004, married a person who is a permanent resident of Uttarakhand and who also belongs to O.B.C. Caste known as “Koeri” Community, like the petitioner. After her marriage, the petitioner acquired additional qualification of graduation and B.Ed., and thereafter, she appeared in a competition, which was for the selection of Assistant Teacher L.T. Grade (Home Science), and she was declared successful in the said examination. She was, however, not being given appointment on the ground that the petitioner is a permanent resident of Uttar Pradesh and her claim in service as a member of O.B.C. community and the benefits of such community can only be given to her in Uttar Pradesh and not in Uttarakhand. Aggrieved the petitioner filed writ petition before this Court. The said writ petition was allowed by the learned Single Judge of this Court while relying upon a judgment of Division Bench of this Court in Jyoti Bala Vs State of Uttarakhand and another reported in 2009(1) U.D.1 directing the respondents, as under:- “It is hereby directed that if this is only ground on which the appointment has been refused to the petitioner, respondent shall safely give the appointment to the petitioner, if she is otherwise would be given only if the post pursuant to the said advertisement, is lying vacant. The writ petition is allowed accordingly.” 3. This order, the State Government has challenged in the present special appeal. The writ petition is allowed accordingly.” 3. This order, the State Government has challenged in the present special appeal. One of the main grounds for challenging is that the petitioner was born and brought up in Uttar Pradesh, and she is not a permanent resident of Uttarakhand, and merely because she has married to a person, who is a permanent resident of Uttarakhand, she will not be given benefits, much less any benefit of reservation, as such benefit she can only claim in the State of Uttar Pradesh and not in Uttarakhand. It is further being argued that the learned Single Judge while allowing the writ petition had relied upon a Division Bench decision in Jyoti Bala Vs State of Uttarakhand and another reported in 2009(1) U.D.1 and the said decision of Division Bench was itself based on wrong appreciation of law, inasmuch as, a Hindu woman does not acquire the domicile of her husband on marriage. It has further been argued that in Jyoti Bala (supra) the provision of law, which has been relied upon are applicable only to Christians and Persians and not to any other community in India. 4. Be that as it may, though we are in agreement with the counsel for the appellant on this aspect that reliance of Jyoti Bala (supra) may be wrong, but for reasons which shall hereinafter be stated we are not going to interfere in the matter, as we are totally in agreement with the conclusion of the learned Single Judge of this Court, inasmuch as, benefit of reservation ought to have been granted to the petitioner. 5. Learned counsel for the respondent has relied upon a Government Order dated 02.04.2013, which is now a part of the record as Annexure (A) wherein it has been said that a benefit of “permanent resident” of Uttarakhand shall also be given to such women, who have married a person who is a permanent resident in Uttarakhand. On the strength of this Government Order alone she was entitled for the benefit. Moreover in Sudhakar Vithal Kumbhare Vs State of Maharashtra & others reported in 2004 (9) SCC 481 it has held by the Hon’ble Apex Court that different approach should be made in the matters of reservation where the States have been reorganized as is the present case where U.P was reorganized into U.P. & Uttarakhand 6. Moreover in Sudhakar Vithal Kumbhare Vs State of Maharashtra & others reported in 2004 (9) SCC 481 it has held by the Hon’ble Apex Court that different approach should be made in the matters of reservation where the States have been reorganized as is the present case where U.P was reorganized into U.P. & Uttarakhand 6. The learned counsel for the appellant Mr. P.C. Bisht admits that such a Government Order (G.O dated 02.04.2013) does exist and wherein such a benefit can be given to the petitioner. However, he nevertheless strongly contends that merely because the petitioner is to be granted the status of a “permanent resident”, it would not mean that she would also be given the benefit of the reservation on this aspect again in the State of Uttarakhand as well. We do not agree with this submission for the following factors which are in favour of the petitioner. (a) She was born in an OBC family and is of a caste called “Koeri”. (b) Koeri is a notified as OBC in U.P. as well as in Uttarakhand. (c) When the above caste was notified as OBC it was for the whole of U.P. i.e. the undivided U.P. as it existed prior to the reorganization. (d) She has married to an OBC belonging to Koeri caste. (e) Government Order dated 02.04.2013 grants her status of permanent residence. 7. Further we are not inclined to interfere in the present matter for another reason which is that the O.B.C. caste certificate has already been issued in favour of the petitioner (present respondent) by the appropriate authority in Uttarakhand. It is a valid caste certificate, which has not been cancelled as yet. Moreover, since the petitioner has already been given the status of “permanent resident” in the State of Uttarakhand, which is not denied by the appellant/State, we fail to understand as to why the benefit of reservation will not be given to her. 8. In view of the admitted fact that the petitioner was born in an O.B.C. community in the erstwhile State of Uttar Pradesh, when the State of Uttar Pradesh was the undivided State and the declaration that “Koeri” is an O.B.C. caste was for the entire State and not just for the present State of Uttar Pradesh only, at the given time in the year 1994 U.P. Public Service (S.C. S.T., O.B.C.) was in existence. Moreover, “Koeri” is also declared as an O.B.C. community in the State of Uttarakhand as well. Moreover, this is again an admitted fact that petitioner married to a person who also belongs to “Koeri” community, who is a permanent resident of Uttarakhand. On the basis of these admitted facts, as above, we are of the considered view that in this given situation, the denial of caste certificate to the petitioner and the denial of reservation benefit to the petitioner would be unjustified. 9. In view of the above observation, the special appeal has no merit and is hereby dismissed. No order as to costs.