Disposed

Savita Rawat v. State of Raj and Anr.

Rajasthan HC25 Apr 2017CW/5226/2016

Case brief

AI extract

What is this about?

The High Court directed the State of Rajasthan to consider the petitioner's candidature for appointment as Statistical Officer in the Scheduled Caste Category. The court ruled that her status as a reserved category person in her parental state entitles her to reservation despite migration by marriage, pending a review of a coordinate bench judgment.

What did the court decide?

Direction to respondents to consider petitioner in the Scheduled Caste/OBC Category and issue appointment if in merit list, pending division bench decision in Mukesh Kumari.

Savita Rawat Vs State of Raj and Anr. — Service and Employment | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 5226 / 2016

Savita Rawat

----Petitioner

Versus

State of Rajasthan & another

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----Respondents

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_____________________________________________________ For Petitioner(s) : Mr. Hukam Chand Saini For Respondent(s) : Mr. B.L. Avasthi, Addl. Govt. Counsel, & Mr. Shantnu Kumawat

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HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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/ Order

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25/04/2017

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Instant petition has been preferred under Article 226 of the Constitution of India praying therein that the respondents be directed to consider the petitioner in the Other Backward Class Category for appointment on the post of Statistical Officer, in pursuance of the advertisement dated 20.01.2012 issued by the Rajasthan Public Service Commission (herein after to be called as the ‘Commission’).

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Mr. Hukam Chand Saini, learned counsel appearing for the petitioner, has submitted that the petitioner, in pursuance of the advertisement issued, applied for the post of Statistical Officer in the category of Other Backward Class. Counsel has further submitted that the petitioner belong to the Gurjar Community. It is contended by learned counsel that the father of the petitioner is also Gurjar and the Gurjar Community is recognized, as Other Backward Class in the State of Haryana. It is further contended by learned counsel that the petitioner was married with the resident of the State of Rajasthan, who also belonged to the Gurjar Community. Gurjar Community is also

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(2 of 6)

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[CW-5226/2016]

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treated Other Backward Class in the State of Rajasthan. Counsel has submitted that the petitioner appeared in a competitive examination and secured 57 marks, whereas the last cut-off marks in the Other Backward Class Women Category are 53 marks. Counsel has further submitted that the Commission, vide its impugned order dated 13.03.2016 (Annexure-7), has held that the petitioner cannot be considered as Other Backward Class Category candidate, as she was born out of the State of Rajasthan.

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Recently regarding the similar controversy pertaining to the post of Auxiliary Nursing Midwifery (A.N.M.), a Co-ordinate Bench of this Court in the case of Smt. Ramesh Bai Vs. The State of Rajasthan & Others, (S.B. Civil Writ Petition No.300/2016), decided on 23.02.2017, has observed as under :-

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“Mr. Hanuman Choudhary, learned counsel appearing for the petitioner, reiterating the pleaded facts and grounds of the writ application, asserted that the controversy raised, in the instant writ application, stands resolved in view of the adjudication on the identical issue by a Coordinate Bench of this Court, at Principal Seat, Jodhpur, in the case of Mukesh Kumari Vs. The State of Rajasthan & Ors: 2016 (1) WLC (Raj.) UC 611 .

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It is further contended that the petitioner was born and brought up in the State of Haryana and she is in possession of a certificate reflecting her Caste status as Scheduled Caste for she belongs to 'Dhanak' Community. A certificate, to this effect has also been issued, by the competent Authority i.e. Sub Divisional Officer (C) Narnanl, Haryana.

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For the petitioner settled in Rajasthan after her marriage with Shri Pratap Singh of District Jhunjhunu, and a certificate as to her status of Scheduled Caste Category, has also been issued by the Additional Tehsildar, Buhana (Jhunjhunu), Rajasthan. Thus, the status of the petitioner belonging to Scheduled Caste with Community 'Dhanak' in both the States i.e. Rajasthan and Haryana, is apparent on the face of record, yet her candidature has been declined for consideration for appointment to the post of ANM, owing to the stipulation in the advertisement that the petitioner was required to submit a Caste Certificate reflecting her status of Scheduled Caste, issued by the competent Authority with name of her father in the State of Haryana.

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Referring to the opinion of the Coordinate Bench of this Court in the case of Mukesh Kumari (Supra), learned counsel submitted that the State-respondents, in the case of Mukesh

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(3 of 6)

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[CW-5226/2016]

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Kumari (Supra), have complied with the order, as would be evident from appointment of the order issued in favour of Mukesh Kumari (Supra) on 19th December, 2016. A copy of the appointment order was produced for perusal of this Court during the course of arguments.

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Per contra: Mr. Sanjay Kumar Sharma, Govt. Counsel, while supporting the stand of the State-respondents, in declining the (4 of 9) [CW-300/2016] candidature of the petitioner and reiterating the contents of the counter affidavit, asserted that the opinion, as referred to and relied upon, in the case o f Mukesh Kumari (Supra), is under challenge before a Division Bench of this Court, at Principal Seat, Jodhpur, in an intracourt appeal. Learned counsel would further submit that the order of appointment dated 19th December, 2016, was made in favour of Mukesh Kuma ri (Supra), in view of the contempt proceedings instituted, wherein the State-respondents were directed, by the Court, to ensure compliance of the judgment in the case of Mukesh Kumari (Supra) before 20th December, 2016, while the matter is still pending consideration before the Division Bench.

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Referring to the stipulation of the advertisement dated 26th February, 2013, learned counsel would submit that the petitioner, participated in the recruitment process, well aware of the terms and conditions stipulated in the advertisement wherein it was specifically required for a candidate to furnish a certificate with reference to Caste status, while claiming reservation issued by the competent authority of the State of Rajasthan with the name of father of the candidate. For the petitioner is a migrated person from Haryana to Rajasthan owing to her marriage, her candidature could be considered only under the General Category.

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Learned counsel has also made a reference, to certain guidelines issued by the State Government, to the effect that as contemplated under the advertisement in the cases of migrated candidates seeking consideration of their candidatures in the reserved category. Reliance is also made to the opinion of the (5 of 9) [CW-300/2016] Supreme Court in the case of Ranjana Kumari Vs. State of Uttaranchal and ors: Civil Appeal No.8425 of 2013 (Arising out of SLP (C) No.33724 of 2011), stating that the controversy is also pending consideration before the Larger Bench of the Supreme Court, and therefore, the matter needs to be deferred until adjudication either by the Division Bench of this Court wherein opinion of Mukesh Kumari (Supra), is under challenge and/or the adjudication by the Apex Court of the land in the case of Ranjana Kumari (Supra).

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I have heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

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The Coordinate Bench of this Court in the case of Mukesh Kumari (Supra), taking note of earlier opinions in the case of Smt. Archna Ruhela Vs. The State of Rajasthan & Ors. so also the opinion of the Division Bench in the case of R.P.S.C. Ajmer V. Rekha Soni & Anr. as well as Mrs. Sahendra Bai & Ors. Vs. R.P.S.C. & Anr., observed thus:

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(4 of 6)

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[CW-5226/2016]

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“6. Admittedly, the petitioner applied for the post of ANM pursuant to the advertisement dated 26.2.2013. She at the time of applying, filled in the category of Schedule Caste. The petitioner had submitted a Caste Certificate, which had been issued by the Tehsildar Bhadara on 21.8.2012, wherein it was mentioned that the petitioner Mukesh Kumari w/o Balveer Singh resident of Beedbhadra, District Hanumangarh, whose caste is Bawari and this certificate had been issued after due verification from the Tehsildar at Rewadi (Haryana). A perusal of the said document shows that the authority concerned had issued this Schedule Caste Certificate after getting the fact verified from Tehsildar Rewadi. Once the said certificate came to be issued which shows that the petitioner who was resident of Rewadi prior to her marriage, was of a Schedule Caste, as recognised in the State of Rajasthan, there was no occasion for treating the candidatures of the petitioner in the General Category. In the case reported as Smt. Archna Ruhela vs. The State of Rajasthan & ors., S.B. Civil Special Appeal (Writ) No.123/2006 decided on 11.12.2006, it was held as under:-

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"If the petitioner is eligible as a candidate from the OBC Category whether on the basis of her caste as per birth or by marriage within the State of Rajasthan, she falls within the category of OBC and could not have been denied consideration being not in merit amongst the general category of candidates. There is no disputes that amongst the OBC candidates she having been found in order of merit, her name has been recommended by RPSC to state for appointment as Medical Officer. It is now for the State of Rajasthan to consider offering the appointment to her and it is for the State of Rajasthan to act on that recommendation. It cannot refuse to act on that recommendation in 4 the absence of any cogent reasons having nexus to denial of such appointment."

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The insistence of the respondents that the Certificate produced cannot be taken into consideration, since clause 4(iv) specifies that only those married women would be given the benefit of reservation in case their father's name/residence was reflected in the Certificate and had been issued by the Government of Rajasthan, cannot be sustained specially when a woman who has migrated from another State resides with her husband in Rajasthan and for all purposes, Rajashan becomes her domicile.

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Clause 4(iv) of the Advertisement dated 26.2.2013 reads as under:--

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“vuqlwfpr tkfr ]vuqlwfpr tutkfr dh fookfgr efgyk vH;fFkZ;ksa dks muds firk ds uke @fuokl LFkku ds vk/kkj ij jktLFkku jkT; ds l{ke vf/kdkfj;ksa }kjk tkjh izek.k i= izLrqr djuk gksxkA ifr ds uke @fuokl ls tkjh izek.k i= ekU; ughsa gksxkA.”

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Meaning thereby a married woman belonging to Scheduled Caste/Scheduled Tribe category would be given the benefit of reservation on production of a Certificate issued by the Government of Rajasthan which should reflect the name of her father/residence. In the instance case, the petitioner is a married woman who initially lived in a different State and after marriage had settled in Rajasthan . Therefore, this

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(5 of 6)

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[CW-5226/2016]

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stipulation cannot be made strictly applicable in the case of a married woman who after marriage and migration becomes a domicile of the State of Rajasthan. It is not feasible for the Tehsildar of the area concerned, (i.e. in the State of Rajasthan) to issue a certificate pertaining to woman's caste reflecting name of her father since it would then necessarily be prior to her marriage. Caste is by birth and in case she is born to a particular caste, after migration she would retain her caste even after her marriage. The circulars relied upon do not pertain to a situation of where a reserved category person marries and settles in Rajasthan. Thus the reliance of circulars is of no relevance to the case in hand.

¶41

In D.B. Civil Special Appeal (W) No.142/2009Rajasthan Public Service Commission, Ajmer v. Rekha Soni & anr. , decided on 1.2.2010, the Division Bench upheld the order passed by learned Single Judge in S.B. Civil Writ Petition No. 6862/2007-Rekha Soni vs.State of Rajasthan & Anr. holding that the candidates who were originally, before marriage, born in the OBC category and that the same OBC category was available in the State of Rajasthan as well and if the State of Rajasthan had issued certificate to this effect, the candidature could not be rejected merely on account of the fact that the candidate was not born in the State of Rajasthan and it would not effect her status of OBC in the State.

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In Mrs. Sahendra Bai & ors. V. R.P.S.C. & anr., 2008 (4) WLC (Raj.) 252 , the question came up for consideration, as to whether a married woman who belongs to a State other than the State of Rajasthan prior to her marriage and who was getting the reservation in her State , is entitled to get benefit of reservation for the purpose of getting employment in the State of Rajasthan. The learned Single Judge, after considering several judgments, held that in case of a married lady, if she is treated in a particular reserved category before her marriage and her caste is treated to be in the reserved category, even in the State where she has migrated by virtue of her marriage, there is no reason to deny her the benefit of reservation. Bunch of the writ petitions laid by Mrs. Sahendra Bai & Ors . came to be disposed of by issuance of a direction to the State authorities to process the application of the petitioners about genuineness of the Certificate issued and also held that in case before her marriage, she was getting the benefit of reservation in a particular reserved category in her parental State , after her marriage, in case her caste is treated to be in different reserved category in the State of Rajasthan, in such case, the certificate issued by the authorities of the State of Rajasthan shall have binding effect, as now the petitioner can be said to be permanent residence of the State of Rajasthan by virtue of marriage.”

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From the factual matrix and materials available on record in the instant case at hand, it is not in dispute that the petitioner belongs to 'Dhanak' Community, which is a Scheduled Caste in the State of Haryana as well as State of Rajasthan. Further, the certificate issued in her favour by the competent authority of State of Rajasthan owing to her migration in view of her marriage in no uncertain terms indicates her, with Caste status of Scheduled Caste (SC). Hence, in the considered opinion of this Court, the petitioner's candidature ought to have been considered in the Scheduled Caste Category.

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(6 of 6)

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[CW-5226/2016]

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Be that as it may, since the opinion in the case of Mukesh Kumari (Supra), is under scrutiny before the Division Bench in an intra-court appeal pending. However, there is no interim order staying the operation of the judgment in the case of Mukesh Kumari (Supra), rather a direction was made by the Court to ensure compliance of the directions in the case of Mukesh Kumari (Supra). Accordingly, order of appointment in favour of Mukesh Kumari , has been issued by the Staterespondents on 19th December, 2016. In view of the factual matrix as aforesaid in the singular facts of the case this Court finds no good reason to take a view different than the one arrived by the Coordinate Bench in the case of Mukesh Kumari (Supra).”

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The view formulated by the Co-ordinate Bench in the case of Smt. Ramesh Bai (supra) could not be dislodged by the learned counsel appearing for the respondents.

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Consequently, instant petition stands disposed of with the direction that the respondents, till Division Bench in an Intra-Court appeal pending, decides ratio of law laid down in the case of Mukesh Kumari (supra), the candidature of the petitioner shall be considered valid in the Other Backward Class Category and the appointment letter shall be issued in her favour, if she is in the merit list and there is no impediment, qua her suitability and eligibility.

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Needless to observe that the rights of the parties would be governed according to the final adjudication by the Division Bench of this Court wherein the judgment in the case of Mukesh Kumari (Supra) is pending consideration and/or adjudication by the Apex Court of the land in the case of Ranjana Kumari (Supra).

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Stay application also stands disposed of.

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(KANWALJIT SINGH AHLUWALIA)J.

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Ashok

Savita Rawat v. State of Raj and Anr.

Case brief

What is this about?

What did the court decide?

Savita Rawat v. State of Raj and Anr.

Case brief

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