NEHA SAINI vs STATE OF UTTARAKHAND - 2009 Supreme(UK) 541

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(UK) 541

2010 (1) UAD 336
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
Writ Petition No. 146 of 2009 (MS)
NEHA SAINI – Petitioner
Versus
STATE OF UTTARAKHAND & ANR. – Respondents
Decided on : 30.10.2009

Advocates:
For the Petitioner:Mr. Parikshit Saini, Advocate
For the Respondents: Mr. K.P. Upadhyay, Additional Chief Standing Counsel

Headnote:(A) Constitution of India, 1950, Arts. 15(4) & 16(4) — Benefits of reservation under SC or an O.B.C. — Entitlement to — Benefit of reservation after marriage — The determining factor is the birth in a socially disadvantageous community, a person born into a socially disadvantageous community must carry, the benefit of reservation.
        (Para 6)
       (B) Constitution of India, 1950, Arts. 5, 14 to 16 — Domicile has to be only one "domicile" in India, which is the "Domicile of India" — The concept of regional or provincial domicile is alien to Indian legal system — On certain justifiable grounds, special treatment can be given by the State authorities on grounds of residence and even institutional preference may be granted — Accordingly, authorities in Uttarakhand, directed to grant the said certificate, if so applied, and if the petitioner did not come under the 'Creamy Layer'.
        (Paras 24, 32, 33)
       (C) Indian Succession Act, 1925, Secs. 15 & 16 and Constitution of India, 1950, Arts. 5, 14 to 16 — Application of Part — Fact that Hindus, Muslims, etc. have been put outside the purview of the Chapter, which is on 'domicile' and of which Sections 15 and 16 are a part — It shows that inter alia in the case of Hindus and Muslims, it is not the "domicile" of a person, which would be determining factor in a matter relating to succession of property of the deceased — But the determining factor would be the personal laws applicable to Hindus and Muslims. (Paras 28 to 31)
       ¼v½ Hkkjrh; lafo/kku] 1950] vuqPNsn 15¼4½ ,oa 16¼4½ & SC vFkok OBC tkfr ds vUrxZr vkj{k.k dk ykHk ikus dk vf/kdkjh gksuk & fookg ds ckn vkj{k.k dk ykHk ysuk & bl dks lqfuf'pr djus dk vk/kkj lkekftd :i ls vykHkdkjh fiNM+h tkfr esa tUe ysuk gS & dksbZ O;fDr tks lkekftd :i ls fiNM+h gqbZ tkfr esa iSnk gqvk gks vkj{k.k dk ykHk ikus dk vf/kdkjh gSA ¼izLrj 6½
       ¼c½ Hkkjrh; lafo/kku] 1950] vuqPNsn 5] 14 ls 16 & vf/kokl dsoy ek= Hkkjr esa ,d gh gksrk gS tks ßHkkjrh; vf/koklÞ dgykrk gS & {ks=h; vFkok izkUrh; vf/kokl dh voèkkj.kk Hkkjrh; dkuwuh ifjos'k esa iqjkuh gS & dqN U;k;ksfpr vk/kkjksa ij jkT; vfèkdkfj;ksa }kjk fo'ks"k mipkj fd;k tk ldrk gS tks fd fuokl LFkku ds vk/kkj ij vkSj laLFkkxr rjthg nh tk ldrh gS & rnuqlkj mRrjk[k.M 'kklu }kjk mDr izek.k i= Lohdr fd;s tkus dk funsZ'k fn;k x;k ;fn bl ds fy, izkFkZuk i= fn;k tk, vkSj ;kph mPp Js.kh dh tkfr esa u vkrk gksA ¼izLrj 24] 32] 33½
       ¼l½ Hkkjrh; mRrjkf/kdkj vf/kfu;e] 1925] /kkjk 15 vkSj 16 vkSj Hkkjrh; lafo/kku] 1950] vuqPNsn 5] 14 ls 16 & dk Hkkx ykxw gksuk & ;g rF; fd fgUnqvksa] eqfLyeksa vkfn dks bl v/;k; ds {ks= ls ckgj j[kk x;k gS tks fd ^vf/kokl* ls lEcfU/kr gS vkSj /kkjk 15 vkSj 16 ftl dk Hkkx gS & blls tkfgj gS fd fgUnqvksa vkSj eqfLyeksa ds dsl esa O;fDrxr ^vf/kokl* lqfuf'pr djus dk dksbZ QSDVj ugha gS tks fd e`rd dh lEifRr ds mRrjkf/kdkj ds ekeys ls lEcfU/kr gks & ijUrq fgUnqvksa vkSj eqfLyeksa ij ykxw gksus okys muds O;fDrxr dkuwu fu.kkZ;d QSDVj gksaxsA ¼izLrj 28 ls 31½

JUDGMENT

Heard Mr. Parikshit Saini, Advocate for petitioner and Mr. K.P. Upadhyay, Additional Chief Standing Counsel for State of Uttarakhand.

2. The petitioner is a member of an Other Backward Class, community, (from hereinafter referred to as OBC), namely “Saini”. This community is notified as an OBC in the State of Uttarakhand, and there is no dispute regarding this fact. However, petitioner has now married a person outside her Caste, who is of a high caste who is also a permanent resident of a different State i.e. of Purnia, which is in the State of Bihar. The two, presently resides in Delhi. Petitioner has a diploma in Russian Language from Jawahar Lal Nehru University, Delhi and in pursuance to an advertisement issued by the Union Public Service Commission has applied for a job, which requires proficiency in Russian Language. Some of the posts on which the appointment has to be made are reserved for OBC candidates. Now, the husband of the petitioner is not an OBC, moreover, the State in which the husband of the petitioner claims a “permanent residence” has also not notified “Saini” as an OBC caste. The petitioner, therefore applied for this OBC certificate in the State of Uttarakhand, where she was born, brought up and had done most of her education. This was denied to the petitioner as the Tehsildar Roorkee (district Haridwar, Uttarakhand) has given a “noting” in the application of the petitioner that the petitioner has now married and resides in a different State and therefore, he (i.e. Tehsildar Roorkee) cannot give such a certificate to the petitioner. Aggrieved, the petitioner has filed present writ petition with the following prayer:

“I. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 & 2 to issue caste certificate to the petitioner treating the petitioner as other backward class person as prescribed under Govt. of India, Ministry of Welfare resolution No. 12011/44/96-BCC dated 6th December 1996 published in Gazette of India extra ordinary-Part I Section I no. 210 dated 11.12.1996 which such time which this Hon’ble Court deem fit.

II. Issue any other writ, order or direction which this Hon’ble Court deem fit and proper under the facts and circumstances of the case in favour of the petitioner.

III. Award the cost of the present writ petition to the petitioner.”

3. The State in its counsel affidavit has admitted all the factual details averred by the petitioner, such as her being born and brought up in Uttarakhand, as well as her being educated in the State of Uttarakhand and her parents being permanent resident of State of Uttarakhand having their permanent address at Village Mehwar Kalan, Pargana and Tehsil Roorkee, District Haridwar, Uttarakhand, and also most importantly the fact that the parents of the petition being of caste “Saini”, which is notified as on OBC in the State of Uttarakhand. The primary objection of the State, however, is that now the petitioner has not only married outside her caste i.e. to a person, who is of higher caste, who is not an OBC, but also since the petitioner’s husband belongs to another State i.e. the State of Bihar, the OBC certificate cannot be now granted to the petitioner from Roorkee in the State of Uttarakhand. The respondents rely upon Sections 15 and 16 of [the Indian] Succession Act, 1925 (From hereinafter referred to as the Succession Act), which read as follows:

“15. Domicile acquired by woman on marriage. – By marriage a woman acquires the domicile of her husband if she had not the same domicile before.

16. Wife’s domicile during marriage. – A wife’s domicile during her marriage follows the domicile of her husband.”

4. The State counsel submits that “domicile” is the main issue in the present controversy and since the petitioner has acquired the domicile of her husband by law, the present domicile of petitioner is not in the State of Uttarakhand, but in the State of Bihar and therefore, the only State, which can grant OBC certi

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2009 Supreme(UK) 541

2010 (1) UAD 336UTTARAKHAND HIGH COURTHon’ble Mr. Justice Sudhanshu DhuliaWrit Petition No. 146 of 2009 (MS)NEHA SAINI – PetitionerVersusSTATE OF UTTARAKHAND & ANR. – Respondents Decided on : 30.10.2009

Cases Referred (6)

2010 (1) UAD 336
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
Writ Petition No. 146 of 2009 (MS)
NEHA SAINI – Petitioner
Versus
STATE OF UTTARAKHAND & ANR. – Respondents
Decided on : 30.10.2009