‘Only Appellate Authority can exercise powers of revision’
*Quashes order of Addl DC, Crime Branch verification
Mohinder Verma
JAMMU, Nov 28: Resolving disputed questions, High Court of Jammu & Kashmir and Ladakh has held that norms prescribed under J&K Reservation Act, 2004 and Reservation Rules, 2005 cannot be ignored or twisted for grant or cancellation of Social Castes Certificates. Moreover, only the Appellate Authority can exercise the powers of revision and not any officer of the district administration as the same amounts to the violation of the legislation.
The bench of Justice Wasim Sadiq Nargal was dealing with two petitions—one questioning the order issued by Additional Deputy Commissioner, Kulgam, whereby the Social Caste Certificate of the petitioner has been cancelled and the second challenging the preliminary verification of the Crime Branch based on the complaint lodged by the private respondent.
The petitioner was declared to fall under the weak and underprivileged class (Social Caste – Hajam) in the year 2006. Accordingly, a certificate was issued by the competent authority after verifying all the facts. The certificate was issued on 18.08.2006 and was valid for a period of five years and thereafter it was renewed by the competent authority. However, on 02.11.2018, the Additional Deputy Commissioner, Kulgam, cancelled the Social Caste Certificate of the petitioner on the ground that it was issued in contravention of Rule 22 (i) of SRO-294 dated 21.10.2005 also known as Reservation Rules 2005.
After hearing Advocate Arif Sikander Mir for the petitioner and Additional Advocate General Alla Ud Din Ganai along with Deputy AG Mubashir Majid Malik for the respondents, High Court observed, “Section 2(o)(iii) of the Jammu & Kashmir Reservation Act 2004 read with Reservation Rules, 2005 provide that the Government servant whose income from all sources is Rs 4.50 lakh and above cannot claim the benefit of belonging to the category of socially and educationally backward class. However, the second proviso to Section 2 (o) specifies the persons who shall be excluded from the category of socially and educationally backward classes”.
In the context of the present case, Section 2 (o) (iii) read with sub clause (ix) of second proviso says that any person whose annual income from all sources does not exceed Rs 4.50 lakh is entitled to be declared as socially and educationally backward class. However, the proviso to Sub-Clause (ix) says that the income sealing shall not apply to a person who has lived and completed entire school education from an area identified as backward or Actual Line of Control or International Border, as the case may be, High Court observed.
The High Court further said, “on the plain reading of the Rule 22 (i), it is crystal clear that two conditions have to be satisfied before the rule could have been invoked by the Additional Deputy Commissioner, Kulgam. First condition is petitioner should be living with his parents. And, second condition is petitioner should be dependent upon his parents. Both the conditions have to be fulfilled/satisfied for invocation of the rule. In the present case, admittedly the petitioner is not dependent upon his parents as such the rule is not applicable”.
“It is an admitted position that petitioner is a Government employee, as such not dependent upon his parents. In view of this, the petitioner’s case does not fulfill the condition number second of Rule 22 (i) and it is his income alone which is to be taken into count”, Justice Nargal said, adding “the Additional Deputy Commissioner Kulgam has wrongly applied Rule 22(i) of the Reservation Rules 2005 by calculating the income of petitioner’s father also”.
Pointing towards Section 17 of the Reservation Act, which provides that if any person is aggrieved of the issuance of Social Caste Certificate by the competent authority under Section 16, then he may within a period of 90 days prefer an appeal to Deputy Commissioner or Divisional Commissioner as the case may be, High Court said, “Additional Deputy Commissioner could not have exercised the power under Section 17 or Section 18 by cancelling the Social Caste Certificate granted to the petitioner as the Appellate Authority is the Deputy Commissioner in the district”.
Accordingly, High Court quashed the impugned order passed by Additional Deputy Commissioner, Kulgam whereby the Social Caste Certificate of the petitioner has been cancelled. “As a necessary corollary, the inquiry/investigation and the action taken in pursuance of the complaint filed by the private respondent in pursuance of which case file PV No.01/2018 has been registered by the Crime Branch, Srinagar, shall also stand quashed”, read the order.
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