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2024 Supreme(Online)(Pat) 1785
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.869 of 2017 ======================================================
Bindu Devi Wife of Sri Shravan Sah, Resident of Village- Bangari, P.O. Basant, P.S. Garkha, District- Saran at Chapra, Presently Mukhiya of Gram Panchayat Raj, Jalal Basant, Block- Garkha, District- Saran at Chapra.
... ... Petitioner/s Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Principal Secretary, Social Welfare Department, Government of Bihar, Patna.
3. The District Magistrate, Saran at Chapra, District- Saran at Chapra.
4. The Additional Collector, Saran at Chapra, District- Saran at Chapra.
5. The District Panchayat Raj Officer, Saran at Chapra, District- Saran at Chapra.
6. The Circle Officer, Garkha, District Saran at Chapra.
7. Smt. Misha Gupta, Wife of Sri Ravitosh Gupta, Resident of Village- Jalal Basant, P.O. Basant, P.S. Garkha, District- Saran at Chapra.
8. Smt. Munni Devi, W/o Sri Sheo Shankar Sah Resident of Village- Bangari, P.O. Basant, P.S. Garkha, District- Saran (Chapra).
9. Smt. Noorjahan, W/o Sri Rojid Ansari Resident of Village- Bangari, P.O.
Basant, P.S. Garkha, District- Saran (Chapra).
... ... Respondent/s ======================================================
with Civil Writ Jurisdiction Case No. 10775 of 2022 ======================================================
Kavita Devi Wife of Vijendra Gupta, Resident of village- Mathauli, P.O.- Rudalpur, P.S.- Bhore, District- Gopalganj, Presently Mukhiya of Gram Panchayat Raj, Gopalpur, Block- Bhore, District- Gopalganj.
... ... Petitioner/s Versus
1. The State Election Commission (Panchayat) Sone Bhawan, Birchand Patel Path, Patna through the Secretary.
2. The State Election Commissioner, The State Elcetion Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
3. The Officer on Special Duty, The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
4. Th State of Bihar, through the Principal Secretary, General Administration Department, Government of Bihar, Patna.
5. The Principal Secretary, Welfare Department, Government of Bihar, Patna.
6. The District Magistrate, Gopalganj, District Gopalganj, 7. The District Welfare Officer, Gopalganj, District Gopalganj, 8. The District Panchayat Raj Officer, Gopalganj, District Gopalganj, 9. The Circle Officer, Bhore, District Gopalganj, 10. Sanju Parajapatti Wife of Santosh Kumar Pandit Alias Santosh Prajapatti, Resident of Village- Rudalpur, Tola- Hirapakar, P.O. Rudalpur, P.S. Bhore, District Gopalganj, ... ... Respondent/s ======================================================
with Civil Writ Jurisdiction Case No. 5516 of 2023 ======================================================
Smt. Kumari Vandana W/o Devi Lal Choudhary R/o- Vill- Chehariya, P.O and P.S.- Durgawati, Dist- Kaimur, Bhabua.
... ... Petitioner/s Versus
1. The State of Bihar through Principal Secretary, Department of General Administration, Government of Bihar.
2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna.
3. The Principal Secretary, Department of General Administration, Government of Bihar, Patna.
4. The Deputy Secretary, Department of General Administration, Government of Bihar, Patna.
5. The State Election Commission , through State Election Commissioner, Patna, Bihar.
6. The District Election Officer (Panchayat) cum District Magistrate, Kaimur Bhabua.
7. The Senior Deputy Collector, Kaimur, Bhabua.
8. The Circle Officer, Durgawati, Dist.- Kaimur, Bhabua.
9. Sarvesh Singh Yadav S/o- Rajnath Singh R/o- Vill- Udhapura, P.O.-
Kasthari, P.S.- Durgawati, Dist.- Kaimur, Bhabua.
10. Thakur Mallah, S/o Late Gurfekan Mallah R/o- Vill.-Chehariya,Tola Bahera, P.O. and P.S.- Durgawati, Dist.- Kaimur, Bhabua.
... ... Respondent/s ======================================================
with Civil Writ Jurisdiction Case No. 7443 of 2023 ======================================================
Manju Devi W/o Sri Bachau Sah Resident of Village- Babhaniyav, P.O. and P.S. and Block- Chand, Dist.- Kaimur, Bhabua (legally elected Mukhiya of Gram Panchayat, Padhi, P.S.- Chand, Dist.- Kaimur, Bhabua).
... ... Petitioner/s Versus
1. The State of Bihar through the Chief Secretary, Department of General Administration, Government of Bihar, Patna.
2. The Additional Chief Secretay, Department of General Administration, Government of Bihar, Patna.
3. The Additional Chief Secretary, Panchayat Raj Department, Government of Bihar, Patna.
4. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
5. The Secretary, State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
6. The District Magistrate-cum-Returning Officer, Kaimur at Bhabua.
7. The Block Development Officer, Chand Block, District- Kaimur at Bhabua.
8. The Circle Officer, Chand Block, Dist.- Kaimur, Bhabua.
9. Priti Kumari Chaurasiya, W/o Sri Chandan Chaurasiya R/o Vill.- Karvandia, P.O. and P.S. and Block- Chand, Dist.- Kaimur, Bhabua.
... ... Respondent/s ======================================================
with Civil Writ Jurisdiction Case No. 9393 of 2023 ======================================================
Manju Devi Wife of Sri Bachau Sah Resident of Villlage- Babhaniyav, P.O. and P.S. Chand, District- Kaimur at Bhabhua, Presently Mukhiya of Gram Panchayat Raj, Padhi, Block- Chand, District- Kaimur at Bhabhua.
... ... Petitioner/s Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Additional Chief Secretary, General Administration Department, Government of Bihar, Patna.
3. The General Committee of the General Administration Department, through its Chairman-cum-Additional Chief Secretary, General Administration Department, Government of Bihar, Patna.
4. The Criminal Investigation Department, Government of Bihar, Patna through the Additional Director General of Police, Weaker Section, Criminal Investigation Department, Bihar, Patna.
5. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner.
6. The Secretary, The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna.
7. Preeti Kumari Chaurasiya Wife of Chandan Chaurasiya Resident of Village-
Karwandiya, P.O. and P.S. Chand, District- Kaimur at Bhabhua.
8. Shamsher Bahadur Singh Son of Sri Sukhdeo Singh Resident of Village-
Babhaniyav, P.O. and P.S. Chand, District- Kaimur at Bhabhua.
... ... Respondent/s ======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 869 of 2017)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate Mr. Awnish Kumar, Advocate For the State : Dr. Md. Raisul Haque, SC-10 Mr. Binay Kumar, Advocate (In Civil Writ Jurisdiction Case No. 10775 of 2022)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate Mr. Awnish Kumar, Advocate For the State : Mr. P.K. Shahi, AG Mr. Kameshwar Prasad Gupta, GP-10 Mr. Satya Vrat, AC to GP-10 For S.E.C. : Mr. Ravi Ranjan, Advocate Mr. Girish Pandey, Advocate For Respondent No. 10 : Mr. Suresh Prasad Bhakta, Advocate (In Civil Writ Jurisdiction Case No. 5516 of 2023)
For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate Mr. Chandra Shekhar Verma, Advocate For the State : Mr. Sheo Shankar Prasad, SC-8 Mr. Sanjay Kumar, AC to SC-8 For SEC : Mr. Ravi Ranjan, Advocate (In Civil Writ Jurisdiction Case No. 7443 of 2023)
For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate For the State : Mr. Kumar Alok, SC-7 Mr. Satyeshwar Prasad, AC to SC-7 (In Civil Writ Jurisdiction Case No. 9393 of 2023)
For the Petitioner/s : Mr.Awnish Kumar, Advocate For the Respondent/s : Mr.P.K. Verma (AAG-3)
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 15 -01 -2024 The writ petitions are placed before us on a reference made, doubting a Division Bench decision of this Court in Animesh Sil v. 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 dis-
entitled 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 v. 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 v. 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 ‘Ordinar
