PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition under Article 226 of the Constitution of India with the following prayers: "(i) The record of the case may kindly called for; (ii) The respondents may kindly be directed to consider the candidature of the petitioner in the OBC (Female) category to which she belongs. (iii) The respondents may also be directed to accord the petitioner appointment on the post of Rajasthan Rural Ayurvedic Chikitsak in pursuance of the recruitment examination initiated by the respondents vide advertisement No.1/2012 dated 30.04.2012. (iv) Any other appropriate order or direction, which the facts and circumstances of the case demands be issued and; (v) Costs of the litigation be allowed in favour of the petitioner."
(2.) The same petitioner in an earlier writ petition bearing S.B.Civil Writ Petition No.6608/2015 decided on 19.01.2016 got the same relief of being considered in the category of OBC Female but the same was for recruitment arising out of advertisement dated 01.06.2013.
(3.) Learned counsel for the petitioner states that the relief already granted in the aforementioned writ petition is being made applicable by the respondents for the advertisement No.01/2012 dated 30.04.2012. The order passed by the Court on the earlier occasion in the writ petition of the same petitioner reads as follows: "1. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India seeking appointment on the post of Ayurvedic Medical Officer as per her merit. 2. The petitioner possessed the qualification of Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery) from Maharshi Dayanand University, Ajmer and working against the post of Ayurvedic Medical Officer on contract basis since 28.2.2002. The Ayurved Department, Government of Rajasthan issued an advertisement on 1.6.2013 inviting applications from the eligible candidates for appointment on 1545 vacant posts of Ayurvedic Medical Officer. Out of 1545 posts advertised, 319 posts were kept reserved for the candidates belonging to OBC category. Being eligible for appointment on the advertised post and possessing the requisite qualification and experience as mentioned in the advertisement, the petitioner submitted her application form in the OBC category. One of the clauses in the advertisement mentioned that the candidates seeking reservation against the posts of SC, ST, OBC and SBC was that the married female candidate should submit the Caste Certificate issued in the name of father by a competent authority of the State of Rajasthan. The petitioner, with the application form submitted all necessary documents showing her educational experience, caste and bona-fide residence certificate to the respondents. The petitioner having got married to Mr. Laxman Kumar Vernma on 8.3.1995, could submit Caste Certificate issued in favour of her father, who was resident of Village Hansi, District Hisar in the State of Haryana. The petitioner faced the process of selection and secured 69.43% of marks. On 15.6.2015, the respondents issued a provisional merit list in which the cut-off marks for the candidates of various categories. The last cut off marks for OBC Female candidate was 58.18 marks. However, in the provisional list prepared of selected candidates, the name of the petitioner was included. She approached the officials of the respondent-Department for non-inclusion of her name in the provisional selected list. The petitioner was informed that her name was included for the the reason that the duration of the OBC NC Certificate produced by the petitioner had expired which was issued on 2.6.1995 and that in the Marriage Registration Certificate, name and address of the petitioner's father was given as resident of Hansi, District Hissar of State Haryana. 3. Aggrieved against the non-inclusion of her name in the provisional selected list, the present writ petition has been filed. 4. Mr. Kuldeep Mathur counsel appearing on behalf of the petitioner contends that the petitioner has been a resident of Tehsil Rajgarh, District Churu for the past twenty years and was in a position to submit Caste Certificate and Bona-fide Resident Certificate of her father with the application form, as her father was resident of Tehsil Hansi, District Hissar of State of Haryana. It is argues that after having married, she became a bona-ride resident of Rajasthan and would also adopt the caste of her husband. Her husband belonging to 'Darji' community which is included in the list of Other Backward Class by the Government of Rajasthan and, thus, denial of any appointment under the reserved category was wholly unjustified. 5. In the alternative, it is contended that candidature of the petitioner should have been considered in the General Category also as she secured the same marks as the last candidate in the General Category. Attention has been drawn to clause 3(v) of the advertisement wherein it is mentioned that the posts reserved for candidates belonging to SC/ST/OBC/SBC category shall be filled in only from the bona fide resident of Rajasthan, if such candidates belong to these category and if they are bona-fide resident of Rajasthan, they shall be treated as General Category. 6. Mr Rajesh Pawar counsel for the State has submitted that the petitioner having participated in the selection process and being unsuccessful, is entitled to challenge the process of selection by placing reliance on the judgments reported in Dhananjay Malik and ors. v. State of Uttranchal and ors. (2008) 4 SCC 171 and Siraj v. High court of Kerala, (2006) 6 SCC 395 . Moreover, since the selection process has been completed, non-joinder of necessary party will cause grave injustice to the selected candidates. Again reliance has been placed in this regard on the judgments reported in Prabodh Verma 's. v. State of U.P. and ors., AIR 1985 SC 167 and Ishwar Singh and ors. v. Kuldip Singh and ors., 1995(supp) 1 SCC 179 . 7. It is further contended that the petitioner has filled in her application form under OBC category after availing fee relaxation in the application form and, thus, her candidature could be considered in the General Category. 8. I have heard leaned counsel for the parties and perused the record of the case. 9. Admittedly, the petitioner got married to Mr. Laxman Kumar Verma on 8.3.1995, who belongs to 'Darji' caste, which caste is included in the list of Other Backward Class by the Government of Rajasthan. 10. The question arises for determination before this Court is whether the respondents were justified in ignoring the claim of the petitioner on the ground that she had furnished Caste Certificate of her father to claim the benefit of OBC category. In the advertisement itself it is mentioned that to claim the benefit of OBC category, a person had to be bonafide resident of Rajasthan, otherwise such candidature would be considered in the General Category. The petitioner having got married as far back as in the year 1995 became a bona-fide resident of District Churu in the State of Rajasthan. 11. In Mrs. Sahendra Bai v. Rajasthan Public Service Commission and another 2008(2) ILR Raj 544 it was held by the Court in para 28 thereof, as under:- "This Court is dealing with the question about married woman who have now permanently settled in the State of Rajasthan for all times to come and they can be said to be permanent residents of the State of Rajasthan for all practical purposes. It is as such in dispute that the petitioners are now permanently residing in the State of Rajasthan as certain documentary evidence is also placed on record in this behalf and in many cases even their names have also been enrolled in the Voters' List, therefore, it cannot be said that simply because they have settled in the State of Rajasthan by virtue of their marriage, they cannot be said to be permanent residents of the State of Rajasthan. However, it is no doubt true that simply by way of migration or transfer from one State to other, a person cannot get the benefit of reservation, which he might be getting in his/her parental State. However, in the case of a married lady, if she was treated in a particular reserved category before her marriage and her caste or tribe is treated to be in the reserved category even in the State where she has migrated by virtue of her marriage, there is no reason to deny her the benefit of reservation. Considering the said aspect, it can be said that the petitioners are qualified to be considered in their respective reserved category (SC/ST/OBC) on the basis of the certificates issued by the authorities of the State in this behalf by treating them to be permanent residents of the State of Rajasthan". 12. The issue regarding domicile of a o married woman came to be considered in a judgment reported as Asha Devi v. State of Rajasthan, 2000 DNJ (Raj.) 181 and it came to be held that in Indian culture, it goes without saying that wife is considered to be domicile of the area where she is married and stays with her husband. 13. In the present case, the domicile of the petitioner is to be considered of that of her husband and to insist that the petitioner, who originally belonging to Haryana, should produce the certificate of her father who is resident of Haryana, is sustainable. The petitioner being of reserved category prior to her marriage and subsequent thereto by virtue of having married to a person who belonged to the OBC category, has to be considered for appointment belonging to reserved category, having domicile in the State of Rajasthan. Noninclusion of the name of the petitioner solely on the ground that her father being resident of State of Haryana, is sustainable. The respondents have illegally ignored the candidatures of the petitioner ignoring the fact that after marriage in the year 1995, her domicile would be that of her husband. 14. The argument raised by the respondents that the writ petition ought to be dismissed on account of non-joinder of necessary parties, namely, being candidates selected, is sustainable in view of the fact that one post was declared to be kept vacant at the time when the notice of motion was issued. The other argument that the petitioner is estopped from challenging the selection is sustainable and the judgment relied upon are relevant to the case in hand wherein the petitioner is challenging the rejection of her candidature on the ground OBC NC Certificate produced by the petitioner had expired and that in the Marriage Registration Certificate, name and address of the petitioner's father was given as resident of Hansi, District Hissar of State Haryana. 15. The other argument raised by the learned counsel for the respondents that the petitioner cannot claim benefits for being considered under the General Category because she had applied under the OBC category and availed relaxation of fee, is kept open and being decided in the present writ petition since, this Court is of the opinion that the petitioner is entitled to be considered in the OBC category for appointment being more meritorious than the last selected candidate. The appointment be offered to the petitioner within a period of two months. 16. In view of the above, the writ petition stands allowed, with no orders as to costs.";