Haryana Public Service Commission Through Secretary v. Shweta Kashyap And Another
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Date of Decision: 14.05.2019 Haryana Public Service Commission .....Appellant versus Shweta Kashyap and another .....Respondents ! " #$ #
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Mr. Kanwal Goyal, Advocate for the appellant . Mr. Anurag Goyal, Advocate, for respondent No.1. **** $ #
% # This intra.court appeal under Clause X of the Letters Patent is directed against the judgment and order dated 12.07.2018 passed by the learned Single Judge.
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The moot question arising for consideration in this appeal is whether the respondent.petitioner who is scheduled caste in the State where she was born will be entitled to the benefit of reservation in the State where she shifts after getting married even if the caste to which she belongs falls in the same reserved category in the State of migration and she has a domicile from that State. The factual matrix in which the aforesaid question arises for our consideration in brief can be summarized as under:. The appellant.Haryana Public Service Commission (hereinafter referred to as 'the Commission') issued an advertisement dated 12/16.02.2016 inviting applications for recruitment of 1647 posts of
2 Assistant Professors (College Cadre) in various subjects in the Department of Higher Education. 50 posts were advertised for the subject History out of which 14 were reserved for scheduled caste category. The respondent. petitioner was an applicant for a post in the subject of History under Scheduled Caste category. She was issued an admit card under Scheduled Caste category and she was successful in the written examination. Vide letter dated 24.11.2017 her candidature was rejected on the ground that she has not submitted the Scheduled Caste Certificate issued by the State of Haryana from parental side. The order was challenged by filing the writ petition. The case set up was that she was issued a Scheduled Caste Certificate dated 25.07.
1994 by Tehsildar, Kaul, Aligarh (UP) certifying that she belongs to Jatav caste which was recognized as a Scheduled Caste category under the provisions of the Constitution (Scheduled Caste) Order, 1950 and amendments made therein from time to time. Further case set up was that she was married to one Rajinder Singh in the year 2010, resident of Dhand, District Kaithal, who belongs to Gujjar community which is also a Scheduled caste and thus she migrated to the State of Haryana where also the Jatav caste to which she belongs is recognized as a Scheduled caste. 3.
Learned Single Judge noticing the fact that she had a certificate from the State of Uttar Pradesh certifying that she belongs to Jatav caste which is a Scheduled Caste and was also recognized as a Scheduled Caste in the State of Haryana and is married to a person who also belongs to a Scheduled caste in the State of Haryana, held that she is entitled to get the benefit of reservation. It may be relevant to reproduce the observations of the learned Single Judge in this regard which formed the basis of allowing the writ petition:.
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In the backdrop of the above factual matrix and the view taken by the learned Single Judge in the order under appeal we now proceed to consider the core issue raised before us. The question posed before us came up for consideration before the Constitution Bench of the Supreme Court in the case of
The petitioner therein was born in the State of Andhra Pradesh and belongs to 'Goudi' community which was recognized as 'Scheduled Tribe' in the Constitution (Scheduled Tribes) Order, 1950 and the father of the petitioner was having a certificate of Scheduled Tribe from Tehsildar on the basis whereof he got employment in the Scheduled Tribes quota in the Government of India Undertaking and was posted in Mumbai, State of Maharashtra. After clearing 12th examination of the Maharashtra State Board of Secondary and Higher Secondary Examination, Bombay Divisional Board, the petitioner therein made an application for admission in a Medical College seeking benefit of reservation in favour of Scheduled Tribes. He was denied admission on the basis of Circular dated 22.02.
1985 issued by the Government of India, Ministry of Home Affairs, to the effect that the Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive the benefits from the State of origin and not from the State to which he has migrated.
4 admission was challenged before the Supreme Court. A Constitution Bench after considering the issue observed as under:. -( / 0
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Noticing the provisions of Articles 341 and 342 of the Constitution of India providing for issuance of a notification by the President with respect to any State [or Union territory], and in case of a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes, which shall for the purposes of this Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to that State or Union territory.
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Analyzing the words 'for the purposes of this Constitution' and 'in relation to that State' used in the above two Articles of the Constitution, it was observed as under:.
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Giving a harmonious interpretation to the expression 'for the purposes of this Constitution' and 'in relation to that State' used in Articles 341 and 342 of the Constitution, the Constitution Bench proceeded to hold as under:.
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The same issue came up for consideration before another Constitution Bench of the Hon'ble Supreme Court in case of
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The issue again came up for consideration before the Hon'ble Apex Court in the case of *!+ ! ! ('
,,where the facts of the case were that the Directorate of Education, Government of Pondicherry had issued an advertisement for making recruitment of 350 General Central Service Group "C" posts of secondary grade of which 56 posts were reserved for Scheduled Castes. In response to the advertisement, the employment exchange sponsored the names of candidates of various categories including Scheduled Caste. The employment exchange also sponsored some names of Scheduled Caste candidates from neighbouring employment exchanges as sufficient number of Scheduled Caste candidates were not available in Yanam and Mahe region of the Union Territory of Pondicherry.
Out of 55 selected candidates of Scheduled Castes, 29 produced community certificates from the Governments of Tamil Nadu, Andhra Pradesh and Kerala, based on which the Revenue Authority of Pondicherry had issued community certificates to them. The remaining 26 candidates produced community certificates from the Revenue Authority of Pondicherry.
9 candidate of the Union Territory of Pondicherry. The Central Administrative Tribunal relied upon the judgments in
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The dispute was taken to the Hon'ble Apex Court and a three Judges Bench referring to Constitution Bench judgments in the case of
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The ratio of decision in the case of *!+
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The specific question arising before us for adjudication as to whether a person who is a Scheduled Caste in the State of her origin will be entitled to the benefit of reservation on shifting to another State on being married where her husband is living and her husband also belongs to the Scheduled Caste and the particular caste to which she belongs falls in the same reserved category in the State of migration, came up for consideration before the two Judges Bench of the Supreme Court in the case of 6 5! " % ( & 0 and finding that other related matters had already been referred to for adjudication by a larger Bench in the case of " %
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13 referred this specific question as well for consideration by a Larger Bench by making the following observations:.
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The issue came to be answered by a three Judges Bench in
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The question before us for adjudication thus stands answered by the aforesaid authoritative pronouncements of the Hon'ble Supreme Court. Now we proceed to test the impugned judgment on the touchstone of the parameters laid down by the Hon'ble Apex Court. 15.
Learned Single Judge proceeded to allow the writ petition on the ground that since as per the caste certificate, the petitioner.respondent belongs to community which was approved as a Scheduled Caste category in Uttar Pradesh, the proposal of rejection dated 24.11.2017 is patently illegal. We are afraid the learned Single Judge has failed to even address the issue arising in the case. The issue was whether the respondent. petitioner who was a Scheduled Caste in the State of her origin will be entitled to the benefit of reservation after shifting to the State of Haryana on account of her marriage even though the particular caste which she belongs fell in the same category in the State of Haryana where she migrated and was also issued a Domicile Certificate. The view taken by the learned Single Judge in respect of the issue arising for consideration is directly in contrast and in teeth of the pronouncements of the Hon'ble Apex Court. 16.
Learned Single Judge while holding that the respondent. petitioner would be entitled for the benefit of reservation in the migrant State of Haryana has relied upon the pronouncement of the Hon'ble Supreme Court in ! "%* ,Civil Appeal No. 487 of 2018 decided on 19.01.2018 and two judgments of the Rajasthan High Court rendered in the cases of 3 * ,(4& #(((and !
Civil Writ Petition No. 8385 of 2007 decided on 01.12.2010.
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Reliance placed by the learned Single Judge on the aforesaid three pronouncements is totally misfounded and the facts of the judgments upon which reliance has been placed are clearly distinguishable from the facts of the case at hand.
18.
In the case of ! ) !+ , the issue was whether the caste is determined by birth and if a person of a general category marries with a scheduled caste whether he/she would be entitled to be extended the benefit meant for the Scheduled Caste category. The facts were that the lady born in '!"#' family which falls in general category married with a person of a Scheduled caste and was issued a certificate certifying her to be belonging to a Scheduled Caste. In the circumstances, Hon'ble Apex Court held as under:.
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The ratio of the aforesaid judgment of the Supreme Court is on the entirely different issue and cannot said to stand attracted in the facts of the present case.
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The two judgments referred to above rendered by Rajasthan High Court in our considered opinion are directly in the teeth of the two Constitution Bench judgments of the Hon'ble Apex Court in
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16 the latest three Judges judgment in the case of 65! " %!+ and thus cannot be treated to be laying down a good law. 21.
In the wake of the above facts and discussion as also the law settled by the pronouncements of the Hon'ble Apex, impugned judgment rendered by the learned Single Judge is not liable to be sustained and is hereby set aside. As a consequence, the appeal stands allowed. However, in the facts and circumstances, we do not make any order as to costs.
!"# Whether speaking/reasoned √Yes/No Whether reportable √Yes/No