MADHU ARYA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) The petitioner was born into a family of Other Backward Class (from hereinafter referred to as OBC), in the State of Uttarakhand and is a permanent resident of the State of Uttarakhand. She was subsequently married to one Rajendra Kumar, who is a permanent resident of Bulandshahr (which is in Uttar Pradesh). In order to get an appointment in government service in Uttarakhand the petitioner applied for a caste certificate from the authorities in the State of Uttarakhand, namely, from Tehsildar Roorkee, District-Hardwar. At this stage it must be stated that though she already had a Caste Certificate in her favour as back as of 1995 certifying that she belongs to "Saini" which is an O.B.C. in Uttar Pradesh, as it was then yet the new Caste Certificate was insisted upon by the authorities after the creation of the new State of Uttarakhand. Be that as it may, since the Caste Certificate was not given to her earlier, she was constrained to file a writ petition before this Court which was disposed of by an order of a Division Bench 2 dated 26th November, 2010, directing the respondent to dispose of the application made by the petitioner as quickly as possible preferably within a month from the date of service of a copy of this order. The order dated 26th November, 2010 passed in Civil Writ Petition No. 271 of 2010(S/B) is reproduced hereunder:-

(2.) Consequent upon the above order of the Division Bench, petitioner applied for a certificate of OBC from Sub Divisional Magistrate, Roorkee, District Hardwar, which was rejected by the Sub Divisional Magistrate, Roorkee vide order dated 17th January, 2011 for the reasons that though the petitioner was earlier a resident of the State of Uttarakhand but since she has married to one Rajendra Kumar son of Sohan Lal, resident of District Bulandshahar (which is now in the State of Uttar Pradesh) on 27th April, 2011, therefore, as per the provisions of Sections 15 & 16 of the Indian Succession Act, 1925, her domicile will belong as that of her husband and therefore authorities in U.P. can only grant her the Caste Certificate.

(3.) This order of Sub Divisional Magistrate, Roorkee is absolutely illegal, inasmuch as, the provisions relied upon by the Sub Divisional Magistrate, Roorkee, namely, Sections 15 & 16 of the Indian Succession Act, 1925 form a part of Part II of the said Act and Section 4 of the said Act specifically states that this Part (Part II) shall not apply, if the deceased was a "Hindu, Muhammadan, Budhist, Sikh or Jaina". In other words Sections 15 and 16 of the Indian Succession Act, 1925 are not applicable in case of the petitioner, who is admittedly a Hindu. Since, petitioner is, admittedly, a Hindu, the provisions relied upon by the Sub Divisional Magistrate, Roorkee, while rejecting the claim of the petitioner cannot be sustained.