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2019 DIGILAW 1439 (RAJ)

Usha Kumari Yadav v. State of Rajasthan

2019-05-10

ARUN BHANSALI

body2019
JUDGMENT : ARUN BHANSALI, J. This writ petition has been filed by the petitioner seeking a direction to the respondents to consider the candidature of the petitioner in OBC category for providing appointment on the post of Teacher Gr. III Level II (Social Studies) and provide appointment to her in OBC category as per her merit with all consequential benefits. 2. It is inter alia indicated in the writ petition that the petitioner was born at village Bhanpura, Post Dival, Tehsil and District Kaithal (Haryana) and completed her B.A. and B.Ed. from Kurukshetra University, Kurukshetra. The petitioner got married on 27/6/2007 with Krishan Kumar, resident of village Bhojasar, Tehsil Bhadra, District Hanumangarh. The marriage was registered on 15/9/2008. The petitioner applied for Domicile. Certificate before the Tehsildar, Bhadra on the basis of her marriage, which was issued on 20/8/2018. The petitioner also applied for getting OBC certificate from SDO, Bhadra, the SDO, Bhadra after considering the income of the petitioner as well as her father, issued the caste certificate on 24/10/2018 (Annex.4). 3. The respondent No. 2 issued an advertisement dated 31/7/2018 inviting applications for appointment on the post of Teacher Grade III Level II (Social Studies). The petitioner could not submit the form online as an OBC candidate and, therefore, preferred SB Civil Writ Petition No. 12349/2018 which was decided on 21/8/2018 in light of the judgment in Smt. Sunita Yadav v. State of Rajasthan, S.B. Civil Writ Petition No. 20814/2017 decided on 6/12/2017, whereby, the respondents were directed to consider the candidature of the petitioner in accordance with law. 4. In terms of the direction, the petitioner submitted her online application form as an OBC candidate, the result was declared and the cutoff for OBC (Female) was indicated as 72.85 marks and a tentative list of selected candidates was issued on 28/2/2019, the name of the petitioner appeared in the list of Barmer and the Chief Executive Officer, Zilla Parishad issued list for counselling to be held on 14/3/19, wherein, name of the petitioner was indicated, the Chief Executive Officer allotted blocks and schools to the incumbents, who were selected. Though the petitioner was allotted Gida block, however in the list of appointed candidates issued or 3/4/19, the name of the petitioner did not appear. 5. Though the petitioner was allotted Gida block, however in the list of appointed candidates issued or 3/4/19, the name of the petitioner did not appear. 5. The petitioner made a representation in this regard, however, it is indicated that despite petitioner continuously approaching the respondent authorities requesting for issuing the appointment order, the CEO has verbally informed the petitioner that as the petitioner is resident of Haryana and migrated due to marriage, she is not entitled to appointment despite the fact that OBC certificate has been issued by the competent authority. 6. Though, no order has been passed by the authority rejecting the candidature of the petitioner, the petitioner based on verbal observation made by the CEO has filed the present writ petition questioning the purported rejection of her candidature on account of not according benefit as an OBC candidate. 7. Learned counsel for the petitioner made submissions that action of the respondents in denying the appointment to the petitioner is not justified as already an OBC Certificate (Annex.4) has been issued by the competent authority. Submissions were made that the petitioner belongs to ‘Ahir’ (Yadav) caste which is recognised as an OBC in the State of Haryana i.e. place of her birth and in State of Rajasthan as well, where she has migrated on account of her marriage, therefore, there apparently is no reason for the respondents to deny the benefit of being OBC to the petitioner. 8. Several other submissions were made based on the fact that RPS (in its instructions pertaining to the benefit of being an OBC candidate has accorded said benefits. 9. Reliance was placed on the latest judgment of Hon'ble Supreme Court in Director Transport Department Union Territory Administration of Dadra & Nagar Haveli, Silvassa v. Abhinav Dipakbhai Patel, Civil Appeal No. 4665/2019 decided on 7/5/2019. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 11. At the cost of repetition it may be noticed that no order rejecting the candidature of the petitioner has been issued by the respondents, however, the petitioner based on the verbal communication made to her regarding non-availability of benefit as an OBC candidate has questioned the action of the respondents in this regard. 12. 11. At the cost of repetition it may be noticed that no order rejecting the candidature of the petitioner has been issued by the respondents, however, the petitioner based on the verbal communication made to her regarding non-availability of benefit as an OBC candidate has questioned the action of the respondents in this regard. 12. The issue as raised in the writ petition is squarely covered by the judgment of Hon'ble Supreme Court in Ranjana Kumari v. State of Uttarakhand, wherein, by order dated 23/9/2013, reported at (2013) 14 SCC 710 the following question was referred to the larger bench: “15. The question arising in this appeal is whether a person like the appellant, who is a Scheduled Caste in the State where she was born will not be entitled to the benefit of reservation after marriage in the State where her husband is living despite the fact that the husband also belongs to Scheduled Caste and the particular caste falls in the same reserved category in the State of migration and that she is a permanent resident of that State.” 13. The three Judge Bench by its order dated 1/11/18 reported at (2018) 14 SCALE 755 inter alia laid down as under: “2. The appellant who belongs to Valmiki caste (Scheduled caste) of the state of Punjab married a person belonging to the Valmiki caste of Uttarakhand and migrated to that State. In the State of Uttarakhand under the Presidential order ‘Valmiki’ is also recognized as a notified Scheduled Caste. The State of Uttarakhand issued a certificate to the appellant. 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 v. Dean, Seth G.S. Medical college, and Action committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra v. Union of India, 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 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.” 14. The issue referred to the larger bench and answer given by the larger bench squarely applies to the facts of the present case, wherein, the Hon'ble Supreme Court has navigated the contentions raised by the appellant therein that she was entitled for benefit of her caste because of migration on account of marriage, as the caste to which she belongs is also entitled to benefit of reservation in other State. 15. The above aspect has been thoroughly considered by the Constitutional bench in Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312 : AIR 2018 SC 4077 , wherein, it has been observed as under: “34. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision enactment but also by an Executive Order issued under Art. 166 of the Constitution, will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriated parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by the States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.” (emphasis supplied). 16. So far as the judgment in the case of Abhinav Dipakbhai Patel, (supra) relied on by learned counsel for the petitioner is concerned, the said judgment has no application to the facts of the present case as the same pertained to Union Territory of Dadar & Nagar Haveli, wherein, by the Presidential notification the benefit of reservation was extended to the Scheduled Tribes mentioned therein on the basis of residence and not on the basis of origin. 17. The said aspect was also considered in the case of Bir Singh, (supra), wherein, for National Capital Territory of Delhi the following observations were made: “61. Accordingly, we answer the question referred in terms of the views expressed in para 34 of this opinion. We further hold that so far as the National Capital Territory of Delhi is concerned the pan India Reservation Rule in force is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories.” 18. In view of the above legal position, the submissions made by learned counsel for the petitioner apparently has no substance. 19. Insofar as the reliance placed on the certificate (Annex.4) issued by the competent authority is concerned, the issuance of OBC certificate by itself cannot confer any right on the petitioner to seek benefit of reservation. 20. The Division Bench in State of Rajasthan v. Smt. Manju Yadav, DB Special Appeal Writ No. 1116/2018 decided on 18/9/2018 considered the issue of issuance of OBC certificate based on migration on account of marriage and made the following observations, which takes care of the certificate issued in favour of the petitioner as well as the issue raised in the present writ petition. The relevant portion reads as under: “2. The issue of benefit of reservation is distinct from the entitlement of a person to apply for grant of an OBC/ST/SC certificate. 3. In view of the Constitution Bench judgment delivered by the Supreme Court on 30/08/2018 in CA No. 1085/2013: Bir Singh v. Delhi Jal Board, and connected appeals, the issue of public employment has attained finality. A member of a Scheduled Caste or Schedule Tribe or OBC in a particular State cannot avail benefit of reservation in another State. Issue of benefit in Union Territories decided by the Constitution Bench is irrelevant for public employment in the State of Rajasthan. 4. Females outside the State of Rajasthan on migrating to Rajasthan, post marriage may not be entitled to the benefit of reservation in public employment in the State of Rajasthan on account of being a member of a SC or ST or OBC in another State. 5. But these ladies would certainly be entitled to be issued a SC or ST or OBC certificate. For the reason, apart from reservation in public employment these certificates may be relevant for grant of some benefit. For example, it may be a housing scheme. A migrant lady may claim benefit on the strength of the certificate if the scheme envisages domicile or residence as the entitlement for a house or a flat with reservation provided. 6. Under the circumstances, we find no infirmity in the directions issued by the learned Single Judge as to what procedure needs to be followed for grant of an OBC certificate applied for by a female who has migrated, post marriage, to the State of Rajasthan. We make it clear once again. Issue of public employment and benefit of reservation has been decided by the Supreme Court and thus our present order would not be misconstrued as enabling anybody to the benefit of reservation. The present order concerns only to the issuance of a certificate applied for.” (emphasis supplied) In view of the above discussion, there is no substance in the contentions raised in the writ petition and the same is, therefore, dismissed.