P.B. Majmudar, J.
1. Since a common point is involved in all these writ petitions, the same are being disposed of by this common judgment. Whether a married woman, who belonged to a State other than the State of Rajasthan prior to her marriage and who was getting the benefit of reservation in that State, is entitled to get the benefit of reservation under the Mahila OBC or other reserved category for the purpose of getting employment in the State of Rajasthan, is the question which is raised in all these writ petitions. In all these writ petitions, the respective petitioners originally belonged to a State other than the State of Rajasthan before their marriage and after marriage, they are residing in the State of Rajasthan as husband of each of the petitioner is staying in Rajasthan. It is not in dispute that the husband of each of the petitioners belongs to OBC or other reserved category and by virtue of their marriage, the petitioners have put up their claim for getting reservation for the purpose of getting employment.
2. Since in all these writ petitions, a common question is raised, therefore, it is not necessary to examine facts of each of the case of this bunch of writ petitions. For ready reference, facts of the first writ petition of the bunch, namely S.B. Civil Writ Petition No. 3170/2005 are being taken into consideration. The petitioner of the said writ petition was residing in the State of Haryana before her marriage. After her marriage, she is now residing at Village Chandpur, Tehsil Mundawar, District Alwar. She has passed her B.A. and B.Ed. Examination from the University of Rajasthan. It is the case of the said petitioner that she is now permanently residing in the State of Rajasthan by virtue of her marriage and even competent authority of the State of Rajasthan has issued Residence Certificate and Caste Certificate to her and the Election Commission also has, issued her Voter Identity Card. The petitioner has applied for the post of Teacher Grade-Ill in the category of Mahila OBC candidate in response to the advertisement dated 2.6.2004.
3. So far as other petitioners are concerned, each of them was residing in a State other than the State of Rajasthan prior to her marriage and after her marriage now each of them is residing in the State of Rajasthan and in all such cases caste certificates etc. have been issued to each of the petitioners by the competent authorities of the State.
4. The Rajasthan Public Service Commission (for short 'RPSC') issued the aforesaid advertisement for the purpose of recruitment on the posts of Teacher Grade-Ill. As per Clause (4) of the notes in the said advertisement, the posts reserved for the SC/ST/OBC candidates were to be filled in by the candidates belonging to the respective categories who are permanent residents of the State of Rajasthan and if a candidate is not the permanent resident of the State of Rajasthan, his/her candidature was to be considered in the General category.
5. The petitioner of S.B. Civil Writ Petition No. 3170/2005 applied in response to the said advertisement dated 2.6.2004, but her name has not been recommended for appointment on the ground that she has born in the State of Haryana and thereby she is not a permanent resident of the State of Rajasthan. Similar are the facts of other writ petitions of this bunch, where the petitioners are married ladies, whose cases have not been considered for appointment in the reserved category of Mahila OBC etc. on the ground that each of them was born in a State other than the State of Rajasthan and therefore, they cannot be treated as permanent residents of the State of Rajasthan. By filing these writ petitions, the petitioners have challenged the said action of the RPSC in not considering their candidature in the reserved category and considering their case in General category on the ground that even if a lady has married to a husband belonging to a reserved category, such lady cannot get the benefit of reservation in the said category by virtue of her marriage to a person belonging to a reserved category.
6. In some of the cases, the facts are slightly different. For instance, in one of the writ petition being S.B. Civil Writ Petition No. 6387/2007, the petitioner has been given OBC certificate by the State of Madhya Pradesh. The said candidate belongs to Dhobi community, which is treated to be in the category of OBC in the State of Madhya Pradesh, whereas in State of Rajasthan, the Dhobi community is considered as Scheduled Caste. In the said petition, the petitioner has annexed the certificate issued by the State of Rajasthan showing her to be in Scheduled Caste category. Similarly in S.B. Civil Writ Petition No. 5697/2005, the petitioner was getting the benefit of OBC in the State of Madhya Pradesh as she belongs to Meena community, which is treated as Scheduled Tribe in the State of Rajasthan. It is the contention of the said petitioner that since before marriage she was belonging to Meena community and she has also married in Meena community, she should be considered as a Scheduled Tribe candidate as now she is permanent resident of the State of Rajasthan and now she cannot be considered as a resident of State of Madhya Pradesh in any manner and for the Scheduled Tribe category,, there is no question creamylayer.
7. I have heard learned Counsels for the parties and gone through the material available oh record. The principal question which requires consideration in this bunch of writ petitions is whether the petitioners, who are married women, are entitled to get the benefit of reservation in the State of Rajasthan even though they have born in a State other than the State of Rajasthan and whether they can be denied the benefit of reservation in the State of Rajasthan even though the castes to which they belonged prior to their marriage were considered in reserved category in their parental States and the said castes are considered in reserved category in the State of Rajasthan also.
8. Learned Counsels for the petitioners have argued that the petitioners are entitled to get the benefit of reservation and such benefit cannot be denied to them on the ground that each of them was born and residing in a State other than the State of Rajasthan before her marriage and simply by virtue of their marriage such benefit is not available to them. On behalf of the petitioners it is argued that the action of the respondents in not considering the candidature of the petitioners in the reserved category is arbitrary, discriminatory and violative of Article 14 and 16 of the Constitution of India. Learned Counsel Mr. Rajendra Soni appearing for some of the petitioners vehemently argued that all the petitioners can be said to be permanent residents of the State of Rajasthan by virtue of their marriage as it is a custom in India that a married woman is generally required to stay with her husband at the place of his residence and since all the petitioners are now permanently residing in the State of Rajasthan after their marriage, simply because they have born in a State other than the State of Rajasthan, it cannot be said that they are not the permanent residents of State of Rajasthan. He submitted that in many such cases, even in the Voters' List the names of the petitioners have been registered. He has also placed reliance on ration cards and other such documents in this behalf. It is also submitted that in most of the cases, the petitioners were belonging to reserved categories in their parental State at the time of their birth and they have also married to persons belonging to reserved category in the State of Rajasthan. It is submitted that apart from that aspect, competent authorities of the State Government have already issued caste certificates in favour of the petitioners treating them as persons belonging to reserved category in the State of Rajasthan. Such certificates have been annexed with some of the writ petitions. Relying on the said aspect, it is submitted that the petitioners who were belonging to reserved category before their marriage and even after their marriage, since their respective husbands belong to reserved category, the petitioners cannot be denied the benefit of reservation simply on the ground that before their marriage they were residing with their parents in some other State. Mr. Soni has also submitted that as per the ordinary custom prevailing in India, a married woman is always required to reside at the place where his husband is staying and it can always be presumed that such woman is permanent resident of such State and it cannot be said that since such candidate is born outside the State of Rajasthan, such candidate cannot be treated as a permanent resident of State of Rajasthan. It is submitted that, therefore, the respondent RPSC may be directed to treat the candidature of the petitioners in the reserved category and accordingly, consider their case for appointment on merits in the said category.
9. Learned Counsel Mr. Ashok Gaur, who is appearing for some of the petitioners, has submitted that considering the social, set up of our country, the case of a married lady cannot be equated with the case of a person who migrates to other State for the purpose of getting job. Mr. Gaur submitted that the condition that for getting the benefit of reservation, a candidate should be permanent resident of the State of Rajasthan, is arbitrary and on the basis of the place of birth, no discrimination should be permitted,
10. Mr. S.P. Sharma, who is appearing for some of the petitioners, has submitted that after marriage, only the income of the husband is required to be considered for the purpose of considering the aspect regarding creamylayer. He has further submitted that the RPSC cannot sit in appeal over the certificate granted by the authorities of the State. Mr. Sharma has further submitted that by virtue of marriage, the petitioners can be treated to be permanent resident of the State of Rajasthan and the caste certificate issued by the authorities of the State of Rajasthan should be considered as a conclusive proof.
11. Learned Counsel Mr. S.N. Kumawat, who is appearing for the respondent-RPSC, on the other hand submitted that the petitioners have born in the States other than the State of Rajasthan and by migration to the State of Rajasthan, such married women are not entitled to get the benefit of reservation. Mr. Kumawat further submitted that in a given case, it is possible that the caste to which a candidate belongs is treated to be in the reserved category in the State of Rajasthan and the same caste may not be treated in reserved category in the parental State of such candidate, therefore, such candidate cannot get the benefit of reservation in the State of Rajasthan only by virtue of marriage to a husband belonging to reserved category. It is further submitted by Mr. Kumawat that except in the case of Union Territory, in all other States, such benefit is available to a person only where he or she has born and not in any other State where he or she might have gone by migration. Mr. Kumawat has relied upon Article 16(4) as well as Article 341 of the Constitution of India. Mr. Kumawat has also further submitted that even if authorities of the State of Rajasthan have issued certificates to the petitioners treating them to be in the reserved category in the State of Rajasthan, yet the RPSC may not accept such certificates for the purpose of employment, as such certificates may be valid for any other purpose, but so far as the question about employment is concerned, the RPSC is the competent authority, who is not bound to act upon such certificates even if such certificates are issued by the authorities of the State of Rajasthan. Mr. Kumawat has further submitted that since it is not in dispute that the petitioners have born in the States other than the State of Rajasthan, they are not entitled to get the benefit of reservation and they cannot be treated in the reserved category in the State of Rajasthan simply because by virtue of their marriage, they have settled in the State of Rajasthan. He further submitted that so far as certificate issued by the Tehsildar, at page No. 42 in S.B. Civil Writ Petition No. 3107/2005, is concerned, such certificate cannot be given considering the income of the husband and it is only the income of the father of the candidate which is required to be taken into account while giving such certificate. Mr. Kumawat has also further submitted that so far as OBC category is concerned, the criteria of creamylayer is applicable and therefore, income of the husband cannot be considered in this behalf and therefore, the certificate wherein the name of the husband is shown, cannot be considered in this behalf arid therefore, the certificate wherein the name of the husband is shown, cannot be treated to be valid certificate for the purpose of employment. It is also submitted by Mr. Kumawat that income aspect in different States may differ in a given case.
12. Learned Counsels appearing for the parties have relied upon various judgments in order to substantiate their say.
13. Learned Counsels for the petitioners have relied upon various judgment of the Hon'ble Apex Court and different High Courts to substantiate their say that each of the petitioner should be considered to be a permanent resident of the State of Rajasthan by virtue of the marriage and their candidature should be treated in the OBC or other reserved category in view of the certificates granted to them by the State authorities and accordingly, the respondent-RPSC should be directed to consider the case of the petitioners in such reservation category. Learned Counsels for the petitioners have relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. v. Dudh Nath Prasad reported in : [2000]1SCR1 , wherein the Hon'ble Supreme Court has considered the aspect about 'ordinary residence'. In the aforesaid judgment, in para 29, it is held as under:
29. We have, already explamed the meanings of the words 'ordinary resident' and have found that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the State of Bihar and that they owned some property also there, the had shifted to the State of West Bengal long ago and have been living there since then. For all interests and purposes, therefore, they shall be treated to be 'ordinarily residing' in the State of Bengal. For the State of West Bengal, the President, in exercise of his powers under Article 341(1) read with Article 366(24) had already declared 'Nuniya' Caste as a Scheduled Caste and, therefore, the respondent was rightly treated to be a Scheduled Caste candidate and was rightly appointed against a Reserved vacancy, after being declared successful at the examination held by the USPC for the Indian Administrative & Allied Services in 1966.
In the instant cases, as per the factual aspect stated earlier, the petitioners, after their marriage, have settled in the State of Rajasthan and therefore, for all practical purposes they can be said now to be permanent residents of the State of Rajasthan.
14. Learned Counsels for the petitioners have further relied upon the decision of the Hon'ble Supreme Court in the case of Ganga Ram Moolchandani v. State of Rajasthan and Ors. reported in : [2001]3SCR992 , wherein the Hon'ble Supreme Court has held that rules that provide that only those advocates who are practising in Rajasthan High Court and courts subordinate there to are eligible for the appointment in subordinate judicial services in Rajasthan are ultra vires to the provisions of the Articles 14, 16 of the Constitution of India and such rules are required to be struck down. Though the said judgment may not have direct application so far as the controversy involved in the present writ petitions is concerned.
15. Learned Counsels for the petitioners have also relied upon the judgment of the Hon'ble Supreme Court in the case of M. Selvanathan and Anr. v. The Registrar, Central Administrative Tribunal, Chennai and Ors. reported in : (2005)3SCC15 , wherein the Hon'ble Supreme Court has observed that migrant SC/ST is eligible for appointment against posts reserved for SC/ST candidates and there is no constitutional or other legal violation in such selection and appointment.
16. Learned Counsels for the petitioners have also relied upon the judgment of the Hon'ble Supreme Court in the case of Kailash Chand Sharma v. State of Rajasthan and Ors. reported in : [2002]SUPP1SCR317 , wherein it is held that if any preferential treatment is given on the ground of residence within the State, region, district etc. and if any weightage/bonus marks are given on the ground of place of residence for the alleged purpose of uplifting the rural educated person is reservation on the basis of rural areas and is unconstitutional. However, so far as the controversy involved in the present case is concerned, the said judgment may not be directly applicable.
17. Learned Counsels for the petitioners have further relied upon the Full Bench judgment of the Kerala High Court in the case of M.C. Valsala and Anr. v. State of Kerala and Ors. reported in : AIR2006Ker1 , wherein the Kerala High Court has considered the question about giving the benefit of SC/ST reservation in the case of children born to inter-caste married couple of which either father or mother belongs to non-SC/ST category. In the aforesaid judgment the Kerala High Court has held that for getting the benefit of Articles 15(4), 16(4) and 16(4A), the personal law of the couple as such may not be the criterion, but the question is whether their offspring are subjected to the same disabilities attached to SC/ST being brought up either by the father or the mother of which one belongs to SC/ST. The basis of reservation under Article 15(4) and 16(4) is to provide additional protection to the members of Scheduled Castes and Tribes as a class of persons who have been suffering since considerable length of time due to social and educational backwardness. But the claimant has to prove that he has been brought up as Scheduled Caste/Scheduled Tribe either by the father or by the mother and thereby did not get the advantages in life as a non-Scheduled Caste and is suffering all handicaps, disadvantages having been born as a member of Scheduled Caste/Scheduled Tribe. However, so far as the facts of the present cases are concerned, this judgment may not have direct application to the facts of the present cases as the issue involved in the present cases is in connection with married women and question which is required to be considered is whether a woman who has migrated to another State after her marriage can be said to be ordinary resident of that State, where she has migrated forever.
18. Reference is also made on behalf of petitioners on the decision of this Court in the case of Smt. Asha Devi v. State of Rajasthan and Ors. reported in 1999 (2) RLR 86 : RLW 2000(2) Raj. 941, wherein the learned Single Judge of this Court has held in para 4 as under:
4. In my opinion, the contention of the respondents cannot be sustained and is to be rejected. The writ petition deserve to be allowed. The petitioner who originally belongs to Haryana was married to a domicile resident of Rajasthan. As per Indian culture, it goes without saying that the wife is considered to be the domicile of the area where she is married and stays with her husband. The respondents had not applied their mind to this aspect and have mechanically rejected the application of the petitioner. The certificate residence of a married woman to be a resident of Rajasthan where her husband is staying or residing is to be considered as a domicile certificate of such woman. It would be highly unjust to deprive the woman who marry in Rajasthan of her domicile status. The action of the respondents cannot be justified and is quashed.
19. Learned Counsels for the petitioners have also relied upon the decision of the Division Bench of the Gujarat High Court in the case of State of Gujarat and Anr. v. R.L. Patel reported in : AIR1992Guj42 , wherein it has been held that in view of Circular issued by Ministry of Home Affairs if a person is a Scheduled Tribe in the State of his origin, he will not lose that status in the State where he has migrated. Therefore cancellation of admission of a candidate belonging to the Scheduled Tribe, i.e. Dhodia caste in a Union Territory of Dadra and Nagar Haveli by the Gujarat Public Service Commission on the basis that he is not entitled to the benefit of reservation in the category of Scheduled Tribe since he is not of Gujarat origin, is improper as there was no dispute with regard to Dhodia caste belonging to Scheduled Tribe as they are treated as Scheduled Tribe both at Dadra and Nagar Naveli and also in Gujarat State. However, so far as the question about a candidate belonging to Union Territory is concerned, that stands on different footing and therefore, the said facts cannot be said to be directly applicable to the controversy raised in these writ petitions.
20. On the other hand, on behalf of the respondent - RPSC Mr. S.N. Kumawat has relied upon the decision of the Hon'ble Supreme Court in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors. reported in : [1990]2SCR843 , wherein the Constitutional Bench of the Supreme Court of India has held that a candidate, who is recognized as a member of ST/SC in his original State, on his migration to another State, is not entitled to get the benefit of reservation of seats. It is also held that a person who is recognized as a member of ST/ST in his original State will be entitled to all the benefits under the Constitution in that State alone and not in all parts of the country wherever he migrates. It is also held that member of a disadvantaged group who has overcome his disadvantage cannot on voluntary migration avail of benefits or privileges intended for the disadvantaged groups in the new place. In para 23 and 24 of the said judgment, the Hon'ble Supreme Court has observed as under:
23. Having construed the provisions of Article 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the State of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some short of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration.
24. Having so held, now the question is, as to what is to happen to the petitioner in this case. As we have held, the petitioner is not entitled to be admitted to the Medical College on the basis that he belongs to Scheduled Tribe in his original State. The petitioner has, however, been admitted. He has progressed in his studies. But he had given an undertaking that he will not insist on the basis of the admission. If we allow him to continue with his studies in Maharashtra's college where he has been admitted on the undertaking given after he has not succeeded in this application, it would be a bad precedent. We must, however, do justice. The boy's education prospects should not be jeopardised since he has progressed to a certain extent and disqualifying him at this stage or this year on the ground that he is not entitled to the protection of Scheduled Caste or Scheduled Tribe, would not confer any commensurate benefit to Scheduled Castes or Scheduled Tribes in Maharashtra or for that matter on anybody else. It is, therefore, desirable that the question whether he is genuinely belonging to Gouda community and whether this community is a Scheduled Caste or Scheduled Tribe, should be first properly and appropriately determined. As mentioned hereinbefore, we have not examined this question. After determining that whether after making provisions for the Scheduled Castes and Scheduled Tribes of Maharashtra, if any facility of admission or continuance of study can be given in the Medical College in Maharashtra to the petitioner herein, the authorities in charge of the institution should consider the same and if on that considering they find it justified in allowing the petitioner to continue in his studies, they may do so. The authorities should consider the same and take action accordingly, as expeditiously as possible. In considering the question of the petitioner continuing his medical educational, the appropriate authorities should bear in mind the justice of the situation. We, therefore, leave it to the authorities to take appropriate action about the continuance or discontinuance of the petitioner in his studies on the basis of the aforesaid consideration. We order accordingly. We do so only in the background of the peculiar facts and circumstances of this case, and the aforesaid observations should not be treated as a precedent for other situations.
However, as discussed earlier, so far as the facts of the present cases are concerned, it is required to be noted that the caste to which the petitioners belonged prior to their marriage in other State is considered in the reserved category even in the State of Rajasthan, where they are now permanently residing after their marriage and certificates to that effect have also been granted to them by the State Authorities empowered in this behalf. However, so far as the present case is concerned, it is not a case where by virtue of migration or by virtue of change of residence, a person is claiming any new right in the State of Rajasthan as even prior to marriage in parental State and even after the marriage in the State of Rajasthan, at both the places, the petitioners have been considered to be in reserved category (SC/ST/OBC) and the authorities of the State have granted certificates to them to this effect.
21. Learned Counsel Mr. Kumawat. has also relied upon the decision of the Hon'ble Supreme Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Anr. v. Union of India and Anr. reported in : (1994)5SCC244 , wherein it is held that a person belonging to SC/ST in relation to his original State of which he is permanent or ordinary resident cannot be deemed to be in relation to any other State on his migration to that State for the purpose of employment, education etc. In para 3 of the said judgment, it is held as under:
3. On a plain reading of Clause (1) of Articles 341 and 342 it is manifest that the power of President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under Clause (1) of Articles 341 and 342 of the Constitution, Parliament can be law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under Clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.
However, so far as the present cases are concerned, if the petitioners belonged to a caste considered in the reserved category prior to their marriage and the said caste is in reserved category in the State of Rajasthan also, such benefit cannot be said to be not available to the petitioners.
22. Learned Counsel for the respondent Mr. Kumawat has also relied upon the judgment of the Hon'ble Supreme Court in the case of M.C.D. v. Veena and Ors. reported in : AIR2001SC2749 , wherein it has been held that specification of a particular caste as OBC in one State does not necessarily mean that members of another group with the same nomenclature in another Slate would be entitled to rights, privileges and benefits admissible to the members of that caste. In the aforesaid case, the Hon'ble Supreme Court has considered the question whether the certificates of candidates belonging to OBC in the State other than Delhi, can be said to be in order for appointment to the post of Primary and Nursery Teachers in the Municipal Corporation, Delhi and whether the candidates belonging to OBC of the State other than Delhi can be treated as OBC in Delhi and can be extended the benefit related to them in Delhi. In para 6 of the said judgment, it is held as under:
6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The. matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs.
Relying on the aforesaid judgment, learned Counsel Mr. Kumawat submitted that the petitioners in the present cases can only be considered in general category and not in the reserved category.
23. Learned Counsel for the respondent Mr. Kumawat has further relied upon judgment of the Supreme Court in the case of U.P. Public Service Commission, Allahabad v. Sanjay Kumar Singh reported in : AIR2003SC3626 , wherein it is held that if a person certified as SC/ST in relation to one State, migrates to another State, he would not be entitled to benefits available to Scs/STs in the State in which he migrated unless he belongs to SC/ST in that State also. The factual aspects of the aforesaid case which are that the Naga Tribe is not specified as one of the Scheduled Tribes in the State of U.P. In the aforesaid case the respondent belonged to Naga tribe which is a notified Scheduled Tribe in the State of Nagaland. The question in the aforesaid case was whether the respondent can get the benefit of reservation in the category of ST in the State of U.P., where the Naga Tribe is not notified as Scheduled Tribe. In the aforesaid case, the Supreme Court has held that since the aforesaid Tribe was not considered as Scheduled Tribe in the State of U.P., the respondent of the said case was not held to be entitled get the benefit of reservation on the basis of the certificate issued to him in other State. However, in my view, the said judgment cannot be said to be applicable in the present writ petitions as the facts of the aforesaid case are different than the present cases.
24. Learned Counsel for the respondent has also relied upon the decision of the Hon'ble Apex Court in the case of S. Pushpa and Ors. v. Sivachanmugavelu and Ors. reported in : AIR2005SC1038 , wherein it is held than in para 16 and 17 as under:
16. These documents show that Government of Pondicherry has throughout been proceeding on the basis that being a Union Territory, all orders regarding reservation for SC/ST in respect of posts/services under the Central Government as applicable to posts/services under the Pondicherry administration as well. Since all SC/ST candidates which have been recognized as such under the orders issued by the President from time to time irrespective of the State/Union Territory, in relation to which particular castes or tribes have been recognized as SCs/STs are eligible for reserved posts/services under the Central Government, they are also eligible for reserved posts/services under the Pondicherry administration. Consequently, all SC/ST candidates from outside the U.T. of Pondicherry would also be eligible for posts reserved for SC/ST candidates in Pondicherry administration. Therefore, right from the inception, this policy is being consistently followed by the Pondicherry administration whereunder migrant SC/ST candidates are held to be eligible for reserved posts in Pondicherry administration.
17. We do not find anything inherently wrong or any infraction of any constitutional provision in such a policy. The principle enunciated in Marri Chandra Shekhar Rao (supra) cannot have application here as U.T. of Pondicherry is not a State. As shown above, a Union Territory is administered by the President through an Administrator appointed by him. In the context of Article 246, Union Territoris are excluded from the ambit of expression 'State' occurring therein. This was clearly explained by a Constitution Bench in T.M. Kanniyan v. Income Tax Officer : [1968]68ITR244(SC) . In New Delhi Municipal Council v. State of Punjab : AIR1997SC2847 , the majority has approved the ratio of T.M. Kanniyan and has held that the Union Territories are not States for the purpose of Part XI of the Constitution (para 145). The Tribunal has, therefore, clearly erred in applying the ratio of Marri Chandra Shekhar Rao in setting aside the selection and appointment of migrant SC candidates.
However, since the aforesaid case was in connection with the Union Territory, the same cannot be said to be applicable so far as the facts of the present cases are concerned.
25. So far as the controversy involved in the present bunch of writ petitions is concerned, following points are as such not in dispute:
(i) That the petitioners, before their marriage, were residing in the State other than the State of Rajasthan.
(ii) That each of the petitioner has married in the State of Rajasthan and after their marriage they have migrated to the State of Rajasthan and are residing with their respective husbands and other family members in the State of Rajasthan and in each of the case, the husband of the petitioners is belonging to reserved category, i.e. SC/ST/OBC in the State of Rajasthan.
(iii) That the authorities of the State of Rajasthan have issued caste certificates in favour of the petitioners treating them to be in reservation category in the State of Rajasthan and in such certificates, names of the husbands of the petitioners have been mentioned.
(iv) That in most of the present writ petitions, the petitioners before their marriage also belonged to reserved category in their parental State and even after their marriage, they have been continued to be treated in reserved category as their husbands also belong to reservation category. However, in some writ petitions the petitioners are belonging to a caste, which is not treated in the reserved category in their parental State.
26. The question, therefore, which requires consideration is whether the petitioners who belonged to reserved category in their parental States prior to their marriage can still be considered in the reserved category in the State of Rajasthan by virtue of their marriage if their respective husbands belong to reserved category in the State of Rajasthan, even though such petitioners have not born in the State of Rajasthan.
27. So far as the facts of the present cases are concerned, it is required to be noted that most of the petitioners belonged to reserved category in their respective parental States before their marriage. Under normal circumstances, if a lady is not getting the benefit of reservation in her parental State, then simply because husband of such lady belongs to reserved category, she is not entitled to get the benefit of reservation in other State, where her husband is residing. However, so far as the present cases are concerned, except some cases, in most of the cases, the petitioners were treated in the reserved category in their parental State and even after marriage, the caste to which they belong is treated to be in reserved category in the State of Rajasthan and even competent authorities of the State have granted caste certificates to the petitioners treating them in reserved category in the State of Rajasthan and in my view, for the purpose of employment, no exception can be made as suggested by learned Counsel Mr. Kumawat. If the argument of Mr. Kumawat is to be accepted, the result would be that even if a particular lady candidate is belonging to reserved category both in her parental State before her marriage and after her marriage in the State where she has migrated by virtue of her marriage, such lady will automatically lose the protection of reservation only by virtue of her marriage in other State. It may be different thing that a married lady who was not getting the benefit of reservation in her parental State before her marriage, cannot get the benefit of reservation in other State only by virtue of her marriage, but in most of the present cases, the petitioners were being treated to be in reserved category in their parental State and even after their marriage, they have been issued caste certificates by the State Authorities by examining income and other criteria, treating them to be belonging to reserved category in the State of Rajasthan. Considering the aforesaid aspect, in my view, the RPSC cannot sit in appeal over such certificates and in that view of the matter, those petitioners, who were belonging to reserved category in their parental State before their marriage and whose caste after their marriage is also falling in the reserved category even in the State of Rajasthan, are entitled to get the benefit of reservation and their candidature is required to be considered in the reserved category, especially when certificates to that effect have been issued by the State authorities. It is, however, clarified that in the cases where the petitioners were not getting the benefit of reservation in their parental State before their marriage, cannot get the benefit of reservation in the State of Rajasthan simply by virtue of marriage to a husband belonging to reserved category in the State of Rajasthan.
28. Considering the aforesaid case laws on the subject and considering the facts of the present matters, in my view, the RPSC cannot say that even though certificates issued by the State Authorities may be good for contesting elections or for any other purpose, but the same cannot be said to be applicable for getting public employment. It cannot be said that simply because the petitioners are married, they lose the protection of reservation altogether even though they were belonging to a particular reserved category before their marriage and even after their marriage their caste falls under reserved category in the State of Rajasthan. In any case, when the authorities of the State of Rajasthan have already granted certificates treating such candidates to be in reserved category, unless such certificates are set aside in appropriate manner, they are binding and are required to be acted upon. The RPSC cannot sit in appeal over such certificates and if they do so, they would be acting in the excess of their powers. It is not the constitutional mandate that a person belonging to a particular reserved category in one State can never get the benefit of reservation in other State. This Court is dealing with the question about married woman who have now permanently settled in the State of Rajasthan for all times to come and they can be said to be permanent residents of the State of Rajasthan for all practical purposes. It is as such not in dispute that the petitioners are now permanently residing in the State of Rajasthan as certain documentary evidence is also placed on record in this behalf and in many cases even their names have also been enrolled in the Voters' List, therefore, it cannot be said that simply because they have settled in the State of Rajasthan by virtue of their marriage, they cannot be said to be. permanent residents of the State of Rajasthan. However, it is no doubt true that simply by way of migration or transfer from one State to other, a person cannot get the benefit of reservation, which he might be getting in his/her parental State. However, in the case of a married lady, if she was treated in a particular reserved category before her marriage and her caste or tribe 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. Considering the said aspect, it can be said that the petitioners are qualified to be considered in their respective reserved category (SC/ST/OBC) on the basis of the certificates issued by the authorities of the State in this behalf by treating them to be permanent residents of the State of Rajasthan.
29. Considering the aforesaid aspect, all these writ petitions are partly allowed and the respondent RPSC is directed to process the application of each of the petitioners on its own merits and decide the case of each of the petitioner as per the evidence and material on record treating them to be permanent residents of the State of Rajasthan and in the light of the observations made in this judgment hereinabove. It is clarified that it is for the RPSC to consider whether the certificate submitted by a candidate is genuine or concocted one and in a given case, if the RPSC has any doubt about the genuineness of such certificate, it can certainly call for additional material in this behalf from a particular candidate. However, the application of any of the petitioner should not be thrown out only on the ground that she cannot be said to be permanent resident of the State of Rajasthan and not fulfilling the condition given in the advertisement in this behalf. It is also clarified that in a given case, if a petitioner before her marriage was getting the benefit of reservation in a particular reserved category in her parental State and after her marriage her caste is treated to be in different reserved category in the State of Rajasthan, in such cases, the certificates issued by the authorities of the State of Rajasthan shall have binding effect as now the petitioners can be said to be permanent residents of the State of Rajasthan by virtue of their marriage.
30. It is also clarified that this Court has not examined the facts of each and every case and it is for the RPSC to consider the case of each of the petitioner keeping in view the observations made in this order. As stated earlier, in case of any doubt about the genuineness of a certificate produced by a candidate, it is always open for the RPSC to call for additional proof. However, In a case where such certificate is found to be genuine, the RPSC has to proceed with application of such applicant on its own merits because since the petitioners can now be said to be permanent residents of the State of Rajasthan, the certificates issue by the authorities of the State of Rajasthan shall have binding effect for all purpose including for getting employment and application forms of such applicants are to be processed accordingly. All these writ petitions are partly allowed to the aforesaid extent. No order as to costs.