Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 146 OF 2009 (MS) Neha Saini ……Petitioner. Versus State of Uttarakhand and another. ……….Respondents. Mr. Parikshit Saini, Advocate for petitioner. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for State of Uttarakhand. 30th October, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Parikshit Saini, Advocate for petitioner and Mr. K.P. Upadhyay, Additional Chief Standing Counsel for State of Uttarakhand. 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 2 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.” The State in its counter affidavit has admitted all the factual details averred by the petitioner, such as her 3 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 petitioner being of caste “Saini”, which is notified as an 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 her husband.” 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 certificate to the 4 petitioner, is the State of Bihar. This in a nutshell is the argument of the State counsel. This court has already been apprised by the counsel for the petitioner that “Saini” caste is not notified as an OBC in Bihar, and therefore, the petitioner cannot be granted an OBC certificate by the authorities in Bihar. The State also relies upon a Division Bench judgment of this Court, which is Jyotibala Vs. State of Uttarakhand reported in 2009 (1) U.D.1, where the petitioner though hailed from Moradabad (U.P.), married a man in the State of Uttarakhand, was given the benefit of Sections 15 and 16 of the Succession Act and it was directed by this Court that since the domicile of the petitioner changes with the marriage, her caste certificate is liable to be given by the State Authorities in State of Uttarakhand. By the same logic, the respondents state that in the present case it is not the State of Uttarakhand, but State of Bihar, which is only authorised to issue such a certificate in case of the petitioner and the authorities in Uttarakhand cannot issue such a certificate to the petitioner. What goes to the root of the present dispute is the concept of “domicile” and the misconception prevalent in the State and particularly with those, who are authorised to deal with the issues related to domicile. Therefore, first and foremost this concept has to be defined and its legal position clearly stated. However, before we come to the core issue, which is ‘domicile’, it must be clearly understood first that the merely because the petitioner is married into a higher caste, she will not seize to be a member of an OBC. She has married into a “family”, and not into a ‘community’, and therefore she will not loose her claim on ‘reservations, which are available to a 5 member of an OBC community. Learned counsel for the petitioner Sri Parikshit Saini has placed before this Court a ruling of the Apex Court in Valsamma Paul Vs. Cochin University & others AIR 1996 SC 1011, where the Hon’ble Apex Court has held that once a high caste woman marries a Schedule Caste she will not be entitled for the benefits of “reservation” which exists for such a Scheduled Caste. As according to the Apex Court, the disadvantages of the Caste would mean being born into that caste and since the petitioner was not born into a Scheduled Caste she will not be entitled to the benefit of reservation. This ratio was arrived at by the Apex Court after discussing the entire law on the subject its previous decisions. Now logically the converse must also be true! Meaning thereby that the benefits, which are legally admissible to a Schedule Caste or an Other Back Ward Class are not washed out merely because such an OBC or SC (or the case might be) has now married into a higher caste! Since the determining factor is the birth in a socially disadvantageous community, a person born into a socially disadvantageous community, such as the petitioner, must carry with her the benefit of reservation. It also goes without saying that this caste certificate can only be claimed by her in the State of Uttarakhand, where she originally resides and where her parents still reside and where the status of her caste is that of an OBC. The Caste Certificate has to be given by the authorities in the State where the person claiming such certificate is born. Reference was made here by the learned counsel for the petitioner of a Kerala High Court judgment in N. Pushpa Devi Vs. The Kerala Public Service Commission and Others reported in 1996 LAB. I.C. 874. 6 However, what actually goes against her, says the State authorities, is that her ‘domicile’ has now changed? Therefore no certificate from Uttarakhand! Now to the core issue of domicile. What is domicile? Domicile as a concept is of immense importance, both in municipal law as well as in Private International Law or the conflicts of laws, as it is called. The concept denotes “the place of living”, or more precisely a permanent residence. Domicile as pointed in Halsbury’s Laws of England (Fourth Edition) Volume 8, Paragraph 421 “is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law.” Although the notion which lies behind the concept of domicile is of “permanent residence” or a “permanent home”, yet domicile is primarily a legal concept for the purposes of determining what is the “personal law” applicable to an individual and therefore, even if an individual has no permanent residence or permanent home, even then he is invested with a “domicile” albeit by law or implication of law. There are three main categories or classes of domicile, A) Domicile of Origin, B) Domicile of Choice, and C) Domicile by law. “Domicile of origin” is the domicile which each person has at birth i.e. the domicile of his father or his mother. “Domicile of choice” is the domicile which a person of full age is free to acquire in substitution for that which he presently possesses. In other words, the “domicile of origin” is what is attached to person by birth whereas the domicile of choice is what is acquired by residence in a territory subject to a distinctive legal system with the intention to reside there permanently or indefinitely. What should be always remembered is that a domicile denotes an area with a 7 separate and distinctive legal system and not just a particular place in a country. This aspect is elaborated in paragraph 442 of Halsbury’s Laws of England (Fourth Edition) Volume 8, which states as under: “Even person who has, or whom the law deems to have, his permanent home within the territorial limit of a single system of law is domiciled in the country over, which is the whole of that country even though his home may be fixed at a particular spot within it.” Halsbury’s Law of England further states as under: “In federal States some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole: other branches of law are within the competence of the State or provinces of the federation and the individual will be domiciled in one State or province only.” The third category of domicile would be “Domicile by operation of law”. All the same, the concept of domicile, as discussed above, acquires importance only when within a country there are different laws or more precisely, different systems of laws are operating. Let us for the sake of argument imagine that in India there is one matrimonial law operating in Tamilnadu and quite another in U.P., or one law of inheritance in State of Maharashtra and quite 8 another in West Bengal. In such a situation the “domicile” of a person would matter: for he would then be punished or rewarded in law, depending upon his domicile! But then this is not the case in India! Right from Kashmir to Kanyakumari and from Ran of Kutch in the west, to the east in Arunachal Pradesh, there is one system of law, which is being followed. Therefore, there has to be only one “domicile” in India. Each citizen of this country carries with him or her, one single domicile which is the “Domicile of India”. The concept of regional or provincial domicile is alien to Indian legal system. The difference in personal laws in India is not regional based but religion or community based and a “muslim” or a “Hindu” will be governed by a single system of personal laws whether he resides in Tamilnadu or in Uttar Pradesh. The seminal decision on this is the judgment of Supreme Court passed in the case of Pradeep Jain Vs. Union of India reported in AIR 1984 SC 1420. In fact in the present case the above judgment is being heavily relied upon not only because it is seminal but because in the understanding of this Court, it states the undiminished and settled position of law. The aspect of domicile is defined and elaborated in the said judgment and needs to be referred here. Paragraph 8 of the said judgment would firstly be relevant, which reads as follows: “Now it is clear on a reading of the Constitution that it recognises only one domicile, namely, domicile in India. Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the 9 territory of India.” Moreover, it must be remembered that India is not a federal State in the traditional sense of that term. It is not a compact of sovereign States which have come together to form a federation by ceding a part of their sovereignty to the federal State. It has undoubtedly certain federal features but it is still not a federal State and it has only one citizenship, namely, the citizenship of India. It has also one single unified legal system which extends througout the country. It is not possible to say that a distinct and separate system of law prevails in each State forming part of the Union of India. The legal system which prevails throughout the territory of India is one single indivisible system with a single unified justicing system having the Supreme Court of India at the apex of the hierarchy, which lays down the law for the entire country. It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system. It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to 10 the subjects within their legislative competence, the State have power to make laws. The concept of ‘domicile’ has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change : he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile. We think it highly detrimental to the concept of unity or integrity of India to think in terms of State domicile. The Apex Court also took note of the common misconception of the various State Governments with the term domicile and observed that it is not uncommon for the State Governments to use the term ‘domicile’ when what they actually intend to state is ‘permanent residence’. However, the Apex Court also cautioned the State Governments to desist from using the term domicile in any other manner except what the word actually conveys or means. In the above case, the argument that domiciliary requirement for admission to medical colleges and other colleges situated within the State territory is actually used not in its technical legal sense but in a popular sense denoting residence or an intention to reside 11 permanently was also discussed in this judgment and this practice of wrongly using the nomenclature ‘domicile’ was severely depreciated. This is what the Apex Court had to say on this: “We think it is dangerous to use a legal concept for conveying a sense different from that which is ordinarily associated with it as a result of legal usage over the years. When we use a word which has come to represent a concept or idea for conveying a different concept or idea, it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity or meaning. The concept of domicile if used for a purpose other than its legitimate purpose may give rise to lethal radiations which may in the long run tend to break up the unity and integrity of the country. We would, therefore, strongly urge upon the State Governments to exercise this wrong use of the expression ‘domicile’ from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.” The judgment at another place speaks as under: “….Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, 12 irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamilnadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or speaking Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognize the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states. 4. But, unfortunately, we find that in the last few years, owing to the emergence of narrow parochial loyalties fostered by interested parties with a view to gaining advantage for themselves, a serious threat has developed to the unity and integrity of the nation and the very concept of India as a nation is in peril. The treat is obtrusive at some places while at others it is still silent and is masquerading under the guise of 13 apparently innocuous and rather attractive clap-trap. The reason is that when the Constitution came into operation, we took the spirit of nationhood for granted and paid little attention to nourish it, unmindful of the fact that it was a hardwon concept. We allowed ‘sons of the soil’ demands to develop claiming special treatment on the basis of residence in the concerned State, because recognizing and conceding such demands had a populist appeal. The result is that ‘sons of the soil’ claims, though not altogether illegitimate if confined within reasonable bounds, are breaking as under the unity and integrityof the nation by fostering and strengthening narrow parochial loyalties based on language and residence within a State. Today unfortunately, a citizen who has his permanent residence in a State entertains the feeling that he must have a preferential claim to be appointed to an office or post in the State or to be admitted to an educational institution within the State vis-à-vis a citizen who has his permanent residence in another State, because the latter is an outsider and must yield place to a citizen who is a permanent resident of the State, irrespective of merit. This, in our opinion, is a dangerous feeling which, if allowed to grow, indiscriminately, might one day break up the country into fragments.” 14 Much before the Pradeep Jain’s case (supra), a full bench of Bombay High Court had an occasion to examine the concept of domicile. In this judgment, delivered by Chief Justice M.C. Chagla in The State Vs. Narayandas Mangilal Dayame reported in AIR 1958 Bombay 68 (V 45. C 23) FB the Full Bench stated as under: “Now in our opinion, it is a total misapprehension of the position in law in our country to talk of a person being domiciled in a province or in a State. A person can only be domiciled in India as a whole. That is the only country that can be considered in the context of the expression “domicile” and the only system of law by which a person is governed in India is the system of law which prevails in the whole country and not any system of law which prevails in any province or State. It is hardly necessary to emphasize that unlike the United States of America, India has a single citizenship. It has a single system of Courts of law and a single judiciary and we do not have in India the problem of duality that often arises in the American Law, the problem which arises because of a federal citizenship and a State citizenship. Therefore, in India we have one citizenship, the citizenship of India. We have one domicile—the domicile in India and we have one legal system – the system that prevails in the whole country. The most that one can say about a person in a State is that he is permanently resident in a particular State. But as Halsbury points out, to 15 which we have just made reference, the mere fact that a man’s home maybe fixed at a particular spot within the country does not make him domiciled in that spot but makes him domiciled in the whole country, and therefore, whether a man permanently resides in Bombay or Madras or Bengal or anywhere does not make him domiciled in Bombay, Madreas or Bengal but makes him domiciled in India; Bombay, Madras and Bengal being particular spots in India as a country. It was further clarified that merely because a provincial legislature makes laws on certain subject matters will not ipso fact mean that a person domiciled in that State has a provincial domicile: “The competence of the Legislature is not limited to passing of laws which would only apply to persons domiciled within the State. Any law passed by a State Legislature can be applied to any person within the State, and therefore the expression ‘domicile’ has no relevancy whatever in constructing the competency of the State Legislature. If the State Legislature is legislating on a topic within its competence, that law can be made applicable to anyone in the State of Bombay whether he is a resident or not or even if he is a foreigner passing through the State of Bombay. Therefore, it is fallacious to suggest that the doctrine of domicile is introduced in our law by person of the fact that the State or the Provincial Legislature has been given the power to legislate with regard to certain subject-matters within its territorial 16 ambit. It, therefore, seems to us that the expression ‘domicile’ used in any State or Provincial law is a misnomer and it does not carry with the implications which that expression has when used in the context of international