Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 1928 (MAD)

M. Malarvizhy v. Union of India

2022-07-06

R.SUBRAMANIAN

body2022
JUDGMENT : R. SUBRAMANIAN, J. Prayer: Writ Petition filed Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records on the file of the 1st respondent relating to the impugned orders on the file of the respondent relating to the impugned order bearing No. 1-4/SS [Rev]/DRDM/PA/2010 dated 07.01.2016 and the 2nd respondent relating to the impugned order bearing Ref. No. 2712/TOB/AI/CERT/2015-16 dated 20.01.2015 and quash the same and consequently direct the 2nd respondent to issue Resident Certificate to the petitioner. 1. Challenge in the writ petition is to the rejection of the claim for Nativity Certificate made by the petitioner. 2. The petitioner who is a native of Puducherry by birth, applied for the post of Primary School Teacher called for by the Government of Puducherry and got selected. Upon selection, the petitioner was required to produce a Nativity Certificate. The Prospectus that was issued calling for applications required that the applicant should be a native of Puducherry either by birth or by continuous residence. 3. Nativity by birth is shown to mean “the applicant should have been born in the Union Territory of Puducherry and should have been ordinarily residing within the Union Territory of Puducherry prior to the date of application.” Nativity by continuous residence is shown to mean “the applicant should have been residing continuously for five years in the Union Territory prior to the date of application.” 4. The petitioner would claim that she having born in Puducherry, is a native of Puducherry and she is residing at Puducherry on the date of the application and therefore, she is entitled to be favoured with a Nativity Certificate. The claim of the petitioner for Nativity Certificate was rejected by the Tahsildar, Bahur, on the premise that the petitioner has married one Mr. Gnana Sakthi Raja, a native of Pazhaniveerapathira Street, Vellore and is working as a Clerk in Andhra Bank, Kattukanalur, Vellore. The petitioner had come to her father's house for delivery, she has given birth to a girl child on 31.07.2015 and she has been temporarily staying at Puducherry for a period of four months. According to the Tahsildar, Bahour, Nativity Certificate could be issued to a person who is shown to be continuously residing in Puducherry for a period of five years prior to the date of application. According to the Tahsildar, Bahour, Nativity Certificate could be issued to a person who is shown to be continuously residing in Puducherry for a period of five years prior to the date of application. Since the petitioner was not residing at Puducherry, continuously, for a period of five years prior to the date of application and she was married to a person from Vellore in the State of Tamil Nadu, according to the Tahsildar, Bahour, the petitioner cannot be treated as a native of Puducherry and cannot be favoured with a Nativity Certificate. 5. Mr. R. Saravanan, learned counsel representing Mr. N. Prasanna, learned counsel for the petitioner would vehemently contend that the entire premise on which the rejection order has been passed is erroneous. He would draw my attention to G.O.Ms. No. 48 dated 12.12.2002 issued by the Revenue Department of the Government of Puducherry wherein the procedure and conditions for issuance of Nativity Certificate has been detailed. According to the learned counsel, the Government Order contemplates two kinds of nativity. One, nativity by birth and the other, nativity by continuous Puducherry by birth. She had got married to a person from the neighbouring State of Tamil Nadu and had shifted her residence to her husband's viiage. The moot question would be whether such marriage and shifting of residence would disentitle her from claiming as a native of Puducherry. 6. Nativity by birth, according to the Government Order, means “the applicant should have been born in the Union Territory of Pondicherry and should have been ordinarily residing within the Union Territory prior to the date of application. In order to satisfy the criterion of “Ordinarily resident” the person should have been staying either by himself or with his family within the Union Territory of Pondicherry continuously with a clear intention of residing there permanently, but for temporary absences from such place of residence for reasons of job or education, etc. As long as the applicant is able to establish satisfactorily his intention to return to his place of residence on the conclusion of such temporary absence, he may be considered to be a person ordinarily residing in the Union Territory.” 7. Nativity by continuous residence means “the applicant should have been residing continuously for five years in the Union Territory prior to the date of the application.” 8. Nativity by continuous residence means “the applicant should have been residing continuously for five years in the Union Territory prior to the date of the application.” 8. Relying heavily upon the above meaning as scribed to two different kinds of nativity, the learned counsel for the petitioner contended that once it is shown that the petitioner is born in Puducherry, she automatically acquires nativity by birth and if she is able to show that she has an intention to return to her place of residence on the conclusion of temporary absence, she shall be considered to be a person ordinarily residing within the Union Territory. This was clarified by a Note issued by the Revenue Department on 07.01.2016, explaining the difference between the Nativity Certificate and the Residence Certificate. The said Note very clearly states that if the person is absent from Puducherry and shifts her residence to another house in Tamil Nadu after her marriage, she cannot be treated as a resident of Puducherry. The said Clarificatory letter further states “though Nativity Certificate by birth can be issued, Residence Certificate for having continuous residence of five years may not be possible to be issued to these candidates who have shifted their residence to Tamil Nadu since they are living with her husband there.” 9. It is therefore clear that a native of Puducherry or a person who is born in Puducherry acquires nativity by birth and it is open to him or her to stay away or live away from Puducherry. They will not lose their nativity merely because they are staying away or living away from Puducherry. If they are able to show that their absence is temporary and they have an intention to come back to Puducherry, then they will continue to be the natives of Puducherry. It is this intention which should have been gathered by the Tahsildar, Bahour, when he dealt with the application of the petitioner for Nativity Certificate. Evidently such an exercise has not been carried out. 10. In the counter affidavit filed in W.P. No. 28123/2016, which also relates to an identical issue, the Tahsildar, Mahe, had referred to certain instructions issued to the authorities wherein it has been stated that Native and Residence Certificates are not interchangeable. Evidently such an exercise has not been carried out. 10. In the counter affidavit filed in W.P. No. 28123/2016, which also relates to an identical issue, the Tahsildar, Mahe, had referred to certain instructions issued to the authorities wherein it has been stated that Native and Residence Certificates are not interchangeable. The instructions extracted in the said counter affidavit reads as follows: “Instructions have been issued to the certificate issuing authorities to issue Nativity Certificate as per the norms prescribed in the G.O.Ms. No. 48, dated 12.12.2002. Of late, it has been noticed by this Department that most of the departments while calling for applications for direct recruits, are mentioning that the applications should be submitted by the applicants along with NATIVITY/RESIDENCE certificates. The terms “Nativity” and “Residence” are entirely different and distinct in connotation. Residence Certificate is being issued to the applicant, mentioning the actual and physical period of residence in the Union Territory of Pondicherry, which can be even be less than five years. Whereas Nativity Certificate is being issued, to those, who, inter-alia are residing in the Union Territory of Pondicherry continuously for 5 years preceding the date of application. From the above, it is clear that Nativity and Residence Certificates are not interchangeable. All the Heads of Departments are therefore requested to insist upon production of only Nativity Certificates and not residence certificates while calling for applications from the applicants for job purposes, if the intention is to restrict the selection to the natives of Union Territory of Pondicherry.” 11. A reading of the above instructions would also amplify the fact that the Nativity Certificate and Residence Certificate are different from each other and a person who is born in Puducherry could still claim Nativity Certificate even if he or she is not residing in Puducherry continuously for a period of five years provided they are able to establish their intention to get back to Puducherry. The above makes it clear that the rejection on the ground of absence from Puducherry temporarily or married outside Puducherry cannot by itself form a ground for rejection of a claim for Nativity Certificate. 12. Therefore, the order impugned in the writ petition is liable to be quashed and the same is quashed. The writ petition stands allowed. The above makes it clear that the rejection on the ground of absence from Puducherry temporarily or married outside Puducherry cannot by itself form a ground for rejection of a claim for Nativity Certificate. 12. Therefore, the order impugned in the writ petition is liable to be quashed and the same is quashed. The writ petition stands allowed. The matter is remitted to the Tahsildar, Bahour, to ascertain the intention of the petitioner and pass appropriate orders based on such intention. Such an exercise shall be completed within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.