K. Vinod Chandran, CJ. – The writ petitions are placed before us on a reference made, doubting a Division Bench decision of this Court in Animesh Sil vs. State of Bihar, 2011 (1) PLJR 1164. The Division Bench in the case of a selection & appointment to the post of Junior Scientist-cum-Assistant Professor in Agriculture Statistics, held that the appellant who is a native of Nagaland included in the Scheduled Caste list for that State, cannot claim the benefit of reservation within the State of Bihar. The reference order expressed a dissent, especially since the decision was not directly relating to elections; the reservations in which was the subject of consideration in the writ petition. The matter was referred for consideration by a Division Bench since, insofar as reservations to elections, especially in the context of a person who has come to Bihar by reason only of a marriage, it was opined, there were wider ramifications. The reference order reckoned Hindu Law by which a woman on being married is uprooted from her original family and replanted in her matrimonial home. It was observed that, on such marriage and taking up residence in the matrimonial home and State, she becomes a permanent and full member of that family. She would be deemed to be part and parcel of not only that family, but also the State of Bihar. In which event, it would be unfair to deny her the rights and privileges which are available to a person who hails and is residing within the State of Bihar.

2. On facts, it has to be noticed that except in CWJC No. 5516 of 2023, all the petitioners belong to the ‘Teli’ caste and were residents of the State of Uttar Pradesh, wherein they are included under the Other Backward Classes (OBC). In the State of Bihar ‘Teli’ is included in the Extremely Backward Classes (EBC). The petitioners contested in the reserved post to the Panchayats and got elected. Insofar as CWJC No. 5516 of 2023 is concerned, the petitioner belonged to a Scheduled Caste (SC), ‘Pashi’, within U.P. and later migrated to the State of Bihar on marriage. The petitioners were disqualified for reason of they being original residents of another State, thus disentitled to reservation within the State of Bihar.

3. We heard learned counsel Shri S.B.K. Mangalam and Shri Radha Mohan Pandey appearing for the petitioners, Shri Suresh Prasad Bhakta, learned counsel for the respondent, learned Advocate General, Shri P.K. Shahi and Dr. Md. Raisul Haque (SC-10) for the State, the learned Standing Counsel appearing for the Election Commission.

4. Fully supporting the reasoning in the reference order, the petitioners contented that it is unfair to deny reservation benefits to women married to Bihar, especially since they have been residing in the State of Bihar for long and they have assimilated themselves into the culture of the State. It is also pertinent that in both States, the caste of the petitioners were included under the Backward Class (BC). It is argued that Marri Chandra Shekhar Rao vs. Seth G.S. Medical College; (1990) 3 SCC 130, specifically spoke of the involuntary migration from one State to another State not dis-entitling the reserved category candidates from claiming reservation in that other State.

5. Specific reference was also made to Union of India vs. Dudh Nath Prasad, (2000) 2 SCC 20, wherein the respondent who was a native of the State of West Bengal, but born and educated in Bihar, was found entitled to the reservation claimed as belonging to ‘Nuniya’ caste, notified as a Scheduled Caste in the State of West Bengal.

6. Learned counsel would also refer to a decision of the High Court of Himachal Pradesh, Shimla, which specifically referred to Marri Chandra Shekhar Rao (supra) and found migration upon marriage, enabling a woman to seek the benefit of reservation, especially noticing Section 20 of the Representation of the People Act, 1950 (for brevity “Act of 1950”) and the definition of the word ‘Ordinarily Resident’. It was argued that the Bih