IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2922 of 2022 Date of decision: 26.03.2025 Reenu. ...Petitioner. Versus State of H.P. &Anr. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioners : Mr. N.K. Verma, Advocate. For the respondents : Mr. L.N. Sharma, Additional Advocate General, for respondent No.1-State. : Ms. Suchitra Sen, Advocate, for respondent No.2. Jyotsna Rewal Dua, Judge Petitioner participated in a selection process for a Scheduled Caste (Unreserved) category post under an advertisement issued by respondent No.2 on 02.03.2020. Her candidature was rejected by the respondents. Feeling aggrieved petitioner has instituted this writ petition. 2. Facts. 2(i). Respondent No.2 issued an advertisement on 02.03.2020 initiating selection process for several categories of posts, including post of Trained Graduate Teacher (Arts). In this category, 62 posts were advertised for candidates 2 belonging to Scheduled Caste (Unreserved) category. Petitioner along with others applied for the post of TGT (Arts) under SC(UR) quota. Her result of written examination was declared in December 2021, wherein she secured 43.50 marks. Petitioner was also called for evaluation of marks. Her total tally of marks came to 47.42. The respondents rejected petitioner’s candidature on the ground that petitioner had not produced the certificate of her belonging to Scheduled Caste category on parental basis. The petitioner produced the caste certificate from her parental side, according to which she belonged to Ramdasia caste, which was recognized as Scheduled Caste in State of Punjab. Petitioner also produced her Bona fide Himachali certificate. The caste certificate produced by the petitioner was not accepted by the respondents and her candidature was rejected. 2(ii). The petitioner feels aggrieved against the rejection of her certificate. Her contention is that she was required to be considered for the posts meant for SC (UR) category. She had scored 47.42 marks in all, which were above 46.95 marks, i.e. the cut-off marks in the said category. With this 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 3 grievance, petitioner has instituted the writ petition. 3. Learned counsel for the petitioner placed reliance upon Pinki Bagga vs. State of H.P. & Ors.1 and on that basis submitted that in view of Scheduled Tribe certificate produced by the petitioner on parental basis as well as Bona fide Himachali certificate, the action of the respondents in cancelling the candidature of the petitioner as SC (UR) category candidate was not in consonance with the law laid down in aforesaid decision. 4. Heard learned counsel for the parties and considered the case file. 4(i). In Pinki Bagga’s1 case, petitioner’s candidature had been converted from SC (UR) to General category. The petitioner (therein) had grievance against conversion of her candidate from SC (UR) to General category. She was issued a caste certificate to the effect that she belonged to Ramdasia caste recognized as Scheduled Caste in the State of Punjab. Petitioner (therein) had solemnized marriage with a resident of Himachal Pradesh. She was issued a Bona fide Himachali certificate. Scheduled Caste certificate was also issued in her favour certifying that she belonged to Ramdasia caste, 1CWP No.8181 of 2021 decided on 20.04.2022. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 4 considered as Scheduled Caste in the State of Himachal Pradesh. The Hon’ble Division Bench allowed the writ petition filed by Pinki Bagga, placing reliance upon decisions rendered in Naveen Kumari vs. State of H.P. & Others2and State of H.P. and Others vs. Smt. Naveen Kumari3. It was observed that in the aforesaid decisions it had been held that ‘when a person is issued a Bona fide Certificate, it means that he/she is a permanent resident of the State for all intents and purposes as he/she has intention to live permanently there and he/she no longer remains a migrant.’ Hon’ble Division Bench further held that ‘a person after her marriage no more remains a migrant and she for all intents and purposes is now settled in the house of her husband.’ Relevant paras from the decision are as under:- “5. Shri Vikas Rathore, learned Additional Advocate General, while placing reliance upon the judgment of Hon’ble Apex Court in Ranjana vs. State of Uttrakhand 2019 SCC(15) 664, vehemently argued that merely because in migrant State some caste is recognized as SC, migrant cannot be recognized as SC of migrant State. However, he was unable to dispute that Executive Magistrate, Nurpur besides issuing caste certificate in favour of petitioner also issued Bonafide Himachali Certificate in her favour certifying therein that she is permanent resident of Himachal Pradesh. 7. In support of his aforesaid contention, Mr.Harish Kumar Verma, learned counsel appearing for the petitioner, invited the attention of this Court to the judgment dated 22.02.2021 passed by a Division Bench of this Court in CWP No.5951 of 2020, titled as Naveen Kumari vs. State of H.P. & Others and judgment dated 04.09.2021, passed by same 2CWP No.2651 of 2020 decided on 04.09.2021. 3Review Petition No.47 of 2021 decided on 04.09.2021. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 5 Division Bench in Review Petition No.47 of 2021, titled as State of H.P. and Others vs. Smt.Naveen Kumari, wherein it has been categorically held that when a person is issued a Bonafide Certificate, it means that he/she is a permanent resident of State, for all intents and purposes as he/she has intention to live permanently there and he/she remains no more a migrant. Division Bench has further held that a person after her marriage no more remains a migrant, and she for all intents and purposes is now settled in the house of her husband. It would be apt to take note of the following paras:- xxx xxx xxx 8. Reliance is also placed upon judgment passed by aforesaid Division Bench in Review Petition No.47 of 2021 supra wherein the Division Bench of this Court has held as under:- xxx xxx xxx 9. In view of aforesaid law laid down by Division Bench of this Court, grounds raised by respondents-State to defeat the claim of the petitioner are not sustainable and as such deserve outright rejection. Reply filed on behalf of respondents No.1 and 2 i.e. State of Himachal Pradesh clearly reveals that the aforesaid judgment passed by Division Bench of this Court has attained finality and in terms of directions contained in the aforesaid judgment, the Deputy Director, Elementary Education, Kangra at Dharamshala, being Cadre Controlling and Appointing Authority in respect of Classical and Vernacular Teachers, declared the result of the petitioner in that case and offered her appointment as Language Teacher under SC category on contract basis in Government High School, Ghandran, District Kangra vide his Office Order dated 28th October, 2021. 11. Consequently, in view of above, this Court finds merit in the instant petition and the same is allowed and the action of respondents in treating the candidature of the petitioner under General unreserved category instead of Scheduled Caste unreserved category is held to be bad and accordingly the same is quashed and set aside and the respondent-No.3 is directed to consider the candidature of the petitioner against the category of Scheduled Caste unreserved and accordingly offer her appointment against the post in question, if she is otherwise eligible. Since petitioner has already suffered for a considerable time, this Court hopes and trusts that the needful shall be done by the competent authority expeditiously, preferably within a period of four weeks from today. Pending applications, if any, are also disposed of.” Learned counsel has placed heavy reliance upon the above decision in support of petitioner’s case. 4(ii). It is pertinent to take note of a subsequent decision rendered by the Hon’ble Division Bench in Subeena 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 6 Sabri vs. State of H.P. & Ors.4. In Subeena Sabri4, petitioner was born in State of Bihar and belonged to Ansari Caste, which had been declared as Other Backward Class (OBC) in State of Bihar. She married a bonafide resident of State of Himachal Pradesh, who belonged to a caste declared as OBC in State of Himachal Pradesh. Petitioner had been issued a Bonafide Himachali Certificate based upon her marriage and residence in the State of Himachal Pradesh. She was not issued Certificate of eligibility for reservation of jobs for OBC. The issue for determination before the Court was whether the petitioner, by virtue of being married to a person belonging to the OBC category in Himachal Pradesh, or by inclusion of the original caste of the petitioner in the list of Other Backward Classes in Himachal Pradesh, was entitled to the issuance of a certificate of eligibility for reservation of job for the OBC category in the State of Himachal Pradesh. While deciding Subeena Sabri4, the Court also considered Ranjana Kumari Versus State of Uttarakhand and others5. In the said case, the appellant belonged to Valmiki Caste (Scheduled Caste) of State of Punjab. She 4CWP No.8043 of 2021 decided on 19.05.2022. 5(2019) 15 SCC 664 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 7 married a person belonging to Valmiki Caste of Uttarakhand and migrated to that State. In State of Uttarakhand, under the Presidential Order ‘Valmiki’ is recognized as notified Scheduled Caste. State of Uttarakhand issued a certificate to the appellant. The High Court rejected appellant’s contention that she was a Scheduled Caste of State of Uttarakhand. Hon’ble Apex Court dismissed the appeal and affirmed the decision of the High Court as under:- “4. Two Constitution Bench judgments of this Court in Marri Chandra Shekhar Rao v. Seth G.S. Medical College and Action Committee on Issue of Caste Certificate to SCs/STs v. Union of India have taken the view that merely beause in the migrant State the same caste is recognised as Scheduled Caste, the migrant cannot be recognised as Scheduled Caste of the migrant State. The issuance of a caste certificate by the State of Uttarakhand, as in the present case, cannot dilute the rigours of the Constitution Bench judgments in Marri Chandra Shekhar Rao and Action Committee. Subeena Sabri4 noticed Bhadar Ram vs. Jassa Ram & others6, wherein above judgment was followed. The Court declined to grant relief to the petitioner and observed that the fact that petitioner (Subeena Sabri) is married in State of Himachal Pradesh to a person belonging to OBC and even the caste to which the petitioner belongs in the State of her origin, has been declared as OBC in State of Himachal Pradesh, cannot be held sufficient to carve out an exception of law as declared by Hon’ble Apex Court. After 62022 (4) SCC 259 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 8 exhaustively deliberating over the issue and taking note of several precedents in timeline from the High Courts and from the Hon’ble Apex Court, the Division Bench held that the view taken in State of H.P. and Others vs. Smt. Naveen Kumari3 (relied upon in case of Pinki Bagga1), was per incuriam. Relevant portion of the judgment reads as under:- “14. Thus, the Coordinate Bench of this Court, while partly allowing the Review Petition No. 47 of 2021 held paragraphs 6 to 8 thereof, per incuriam. However, it was held that since none of the judgments referred before it had dealt with a situation where a person having migrated from one State to another had married in the migratee State and had been granted a bonafide resident certificate in that State, therefore, a person under such category could not be denied the benefit of having a certificate of SC/ST/OBC, as the case may be, in the migratee State. 15. With due deference to the judgment passed by the Coordinate Bench of this Court in Naveen Kumari’s case (supra), we are not inclined to scribe to the view taken by the said bench, for the reasons that in Ranjana Kumari vs. State of Uttaranchal & others (Civil Appeal No. 8425 of 2013), a two Judges Bench of Hon’ble Supreme Court had referred to larger bench,the question as noticed above, which already was germane with the issue as noticed in Naveen Kumari (supra). 19. In our considered view, in none of the judgments noticed by the Coordinate Bench of this court while deciding Review Petition No. 47 of 2021, scope for any exception was left. It cannot be overlooked that in all the cases the purpose was to protect the salutary principle enshrined in Articles 341 & 342 of the Constitution of India. To achieve such purpose, Hon’ble Apex Court repeatedly has held that migration for whatsoever reason, from one State to another, cannot be a sufficient ground for claiming benefit of being SC/ST/OBC in the migratee state. The objective criteria for declaration of a particular Caste or Tribe as SC/ST/OBC in one State is the specific level of backwardness, social disparage and economic disadvantages prevalent in such state. Though, one 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 9 Caste notified as Scheduled Caste/ tribe/ OBC in one State may also find place in the list of notified Scheduled Caste/ Tribe/OBC in the other, but the same has not been held to be sufficient for claiming the benefit in other State by a person after migration for the reason that the degree of disadvantages of various elements which constitute the data for specification may be entirely different. The migrations be it voluntary or involuntary have been taken care of in the judgments passed by the Hon’ble Supreme Court, as noticed above. Thus, in our considered view, mere grant of a certificate of bona fide resident to a person by the migratee State after her marriage in such State cannot be an exception. The view taken by a Coordinate Bench in Review Petition No. 47 of 2021, titled State of H.P. & others Vs Navin Kumari to that effect, in our understanding, is per incuriam. 20. In the instant case, the facts that petitioner is married in the State of Himachal Pradesh to a person belonging to OBC and even the Caste to which the petitioner belonged in the State of her origin has been declared as a OBC in the State of Himachal Pradesh, cannot be held sufficient to carve out an exception to the mandate of law, as declared by Hon’ble Supreme Court in Marri Chandra Shekhar Rao vs. Deen, Seth G.S. Medical College and others 1990 (3) SCC, 130, Action Committee on issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and others, 1994 (5) SCC, 244 and Subhash Chandra and another vs. Delhi Subordinate Services Selection Board and others 2009 (15) SCC, 458, Pankaj Kumar vs. State of Jharkhand & others, 2021 SCC (online) SC 616 and Ranjana Kumari Vs State of Uttaranchal 2019 (15) SCC 664.” In view of decision in case of Subeena Sabri4, wherein the judgment relied upon and which formed the basis of decision in case of Pinki Bagga1, was held as per incuriam, the relief as prayed for by the petitioner cannot be 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 10 granted to her. Accordingly, the petition is dismissed. Pending miscellaneous application(s), if any, to also stand disposed of. Jyotsna Rewal Dua 26th March, 2025 Judge (Pardeep) 1Whether reporters of Local Papers may be allowed to see the judgment? Yes