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2017 DIGILAW 226 (ALL)

RAJ KUMARI v. STATE OF U. P.

2017-01-17

B.AMIT STHALEKAR

body2017
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Heard Shri Jeevan Prakash Sharma, learned counsel for the petitioner and Shri Mata Prasad, learned Additional Chief Standing Counsel for the respondents. 2. The petitioner is seeking quashing of the order dated 21.9.2016 whereby her claim for appointment on compassionate ground has been rejected on the ground that the petitioner is a citizen of Nepal as per the documents produced by her and therefore not being an Indian citizen is not entitled for Government job in India. 3. The contention of the petitioner in the writ petition is that she was married with Yogendra Prasad Choudhary, as stated in paragraph 4 of the writ petition. Late Yogendra Prasad Choudhary died on 21.2.2013 while still in service. The petitioner applied for compassionate appointment. Her claim has been rejected by the impugned order on the ground that she is a Nepali by citizenship as per the documents produced by her. Learned counsel for the petitioner does not dispute that she is a Nepali and is a citizen of Nepal but contention is that by marrying an Indian she acquired the Indian citizenship. He further submits that under the Dying in Harness Rules, 1974 the only criteria is that a person must be a member of the family of the deceased Government employee and therefore it is irrelevant that she is a Nepali or otherwise. Reliance has been placed upon a judgement of the learned Single Judge of the Patna High Court in Case No. 8389 of 1994 (Sumitra Devi v. State of Bihar) 1997 (2) PLJR 215 , copy of which has been filed as Annexure-15 to the writ petition. Paragraph 8 of the judgement reads as under: “8. In the instant case the object under Annexure-1 is to grant sustenance to the family of the deceased Government servant and not to give any such benefit only to the citizens of this country. Thus, in my opinion, the dependents of the Government servant dying in harness will be persons similarly situate irrespective of their citizenship the learned Counsel for the State has not brought any law to my notice whereby and whereunder non-citizens have been placed in a separate class for grant of benefit of appointment on compassionate ground under Annexure-1. Thus, in my opinion, the dependents of the Government servant dying in harness will be persons similarly situate irrespective of their citizenship the learned Counsel for the State has not brought any law to my notice whereby and whereunder non-citizens have been placed in a separate class for grant of benefit of appointment on compassionate ground under Annexure-1. There cannot be any dispute that the state can frame law putting the citizens and non-citizens in a separate class on the basis of a reasonable and rational classification. But in absence of any such law the action of the State in treating them differently, in my opinion, violates Article 14 of the constitution of India.” 4. In my opinion the said judgement has no application in the present case nor does it lay down the correct law. In that case the Court has proceeded purely on the basis of the term ‘family member’ as given in the Dying in Harness Rules as applicale in the State of Bihar. In my opinion merely becoming a member of the family of the deceased Government servant does not make a person an Indian citizen. An Indian citizen marrying a foreigner does not confer citizenship upon that foreigner automatically. Article 5 of the Constitution of India defines citizenship as under: “5. Citizenship at the commencement of the Constitution—At the commencement of this Constitution every person who has his domicile in the territory of India and- (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India” 5. Clause (a) of Article 5 of the Constitution requires that a person born within the territory of India or a person either whose parents was born in the territory of India or a person who has ordinarily been a resident in the territory of India for a period not less than 5 years immediately preceding the date of commencement. 6. In this case the date of commencement relates to the commencement of the Constitution and not more than 5 years of residence within India. In such circumstances it is quite irrelevant that the petitioner has been married to late Yogendra Prasad Choudhry since 2001. 6. In this case the date of commencement relates to the commencement of the Constitution and not more than 5 years of residence within India. In such circumstances it is quite irrelevant that the petitioner has been married to late Yogendra Prasad Choudhry since 2001. The marriage does not confer automatic citizenship upon the married person. Under Section 5 of the Indian Citizenship Act, 1955 (hereinafter referred to as the Act, 1955) a person seeking Indian citizenship of India is required to submit an application in the appropriate form before the Central Government for registration. Section 5 of the Act, 1955 reads as under: “5. The marriage does not confer automatic citizenship upon the married person. Under Section 5 of the Indian Citizenship Act, 1955 (hereinafter referred to as the Act, 1955) a person seeking Indian citizenship of India is required to submit an application in the appropriate form before the Central Government for registration. Section 5 of the Act, 1955 reads as under: “5. Citizenship by registration.—(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely : (a) a person of Indian origin who are ordinarily resident in INdia for seven years before making an application for registration; (b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India; (c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration; (d) minor children of persons who are citizens of India; (e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of Section 6; (f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration; (g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for (one year) before making an application for registration Explanation 1.—For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if- (i) he has resided in India throughout the period of twelve months immediately before making an application for registration; and (ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years. Explanation 2.—For the purposes of this sub-section, a person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India or in such other territory which became part of India after the 15th day of August, 1947. (2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in the second Schedule. (3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government. (4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India. (5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause (b) (ii) of article 6 or article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later. (6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.” 7. Sub clause (c) of sub-section (1) of Section 5 of Act, 1955 provides that the Central Government may on an application made in this behalf registers as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the constitution or of any other provision of this Act if.....such a person is married to a citizen of India and is ordinarily resident in India for 7 years before making an application for registration. 8. Sub-section (5) of Section 5 of the Act, 1955 further lays down that a person registered under this section shall be a citizen of India by registration from the date on which he is so registered. 9. 8. Sub-section (5) of Section 5 of the Act, 1955 further lays down that a person registered under this section shall be a citizen of India by registration from the date on which he is so registered. 9. There is nothing on record to show that the petitioner had applied for Indian citizenship at any point of time during the life time of her husband or thereafter. 10. It will also be relevant to refer to the provisions of Article 16 of the Constitution of India. Clause (1) of Article 16 reads as under: “16. Equality of opportunity in matters of public employment—(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” 11. Similar matter came up for consideration before the Bombay High Court in W.P. No. 1648 of 2010 Stelmakh Leonid Iuliia v. Secretary to the Ministry of External Affairs, Government of India and another decided on 25.11.2010 and in paragraph 8 of the said judgement the Bombay HIgh Court relying upon the judgement in the case of Chairman, Railway Board and others v. Mrs. Chandrima Das and others, AIR 2000 SC 988 , has observed as under: “8. The Supreme Court in the case of Chairman, Railway Board and others v. Mrs. Chandrima Das and others, AIR 2000 SC 988 , has considered the said aspect. In the aforesaid case, a Bangladeshi woman was subjected to rape by an accused in India. A writ petition was filed by a Practicing Advocate under Article 226 of the Constitution of India, for paying compensation to the victim. The Supreme Court has considered the applicability of Articles 21 and 14 of the Constitution of India in such a cases. It is observed that : 29.The Fundamental Rights are available to all the “Citizens” of the country but a few of them are also available to “persons”.While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would s 7 WP 1648 of 2010 also include the “citizen” of the country and “non-citizen” both. Article 15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race,caste,sex,place of birth or any of them nor shall any citizen be subjected to any disability, liability,restriction or condition with regard to access to shops, public restaurants,hostel and places of public entertainment, or the use of wells,tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Article 15 is,therefore, restricted to “citizen”. So also, Article 16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens”. The Fundamental Rights contained in Article 19, which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on an occupation,trade or business, are available only to “citizens” of the country. “30. The word “citizen”in Article 19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”(See State trading Corporation of India Ltd. v. Commercial Tax Officer, AIR 1963 SC 1811 : 1964(4) SC R 99). It has also been held in this case that the words “all citizens” have been deliberately used to keep out all “non-citizens” which would include “aliens”. It was laid down in Hans Muller of Nurenburg v. Superintendent, Presidency Jail Calcutta, AIR 1955 SC 367 (374) : 1955 (1)SCR 1284, that this Article applies only to “citizens”. In another decision in Anwar v. State of J.& K., AIR 1971 SC 337 : 1971(1)SCR 637 : (1971) 3 SCC 104 , it was held that non-citizen could not claim Fundamental Rights under Article 19. In Naziranbai v. State, AIR 1957 Madh Bha 1 and Lakshim Prasad v. Shiv Pal, AIR 1974 All 313 , it was held that Article 19 does not apply to a “foreigner”. TheCalcutta High Court in Sk. Mohamed’s 8 WP 1648 of 2010 Soleman v. State of West Bengal, AIR 1965 Cal. 313, held that Article 19 does not apply to a Commonwealth citizen. “32. TheCalcutta High Court in Sk. Mohamed’s 8 WP 1648 of 2010 Soleman v. State of West Bengal, AIR 1965 Cal. 313, held that Article 19 does not apply to a Commonwealth citizen. “32. Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3 Article 7 and Article 9 of the Universal Declaration of Human Rights, 1948.” 12. Thus Government service is strictly restricted to the persons who are natural citizens of India or have acquired Indian citizenship. A person who is not an Indian citizen cannot take a regular or permanent job with the Government, either Central or State. Nothing has been shown by the petitioner which entitles her to claim appointment under any department of the State Government inspite of her being a foreigner merely by marrying an Indian citizen. 13. In this view of the matter I do not find any illegality or infirmity in the impugned order. The writ petition lacks merit and is accordingly dismissed.