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2003 DIGILAW 165 (JK)

Mir Imran Nazir v. State Of J. &K.

2003-05-27

PERMOD KOHLI

body2003
1. Order No. 2-CAEE of 2001, dated 16.1.2001 has been questioned in the present writ petition, whereby the petitioners admission to MBBS course under R.B.A. (Resident of Backward Area) category in Govt. Medical College, Srinagar has been cancelled on the ground that he procured R.B.A. Category certificate on showing himself to be the resident of the village Achagosa Bamnoo, Tehsil and District Pulwama, whereas he is resident of Village Pingllana, Pulwama which is not a backward area. It is further stipulated in this order that on the basis of a complaint received against the petitioner a detailed investigation was made by the State Vigilance Organization and the above mentioned facts have come to light. It is also stated that one Nazir Ahmed Miris residing at village Achagosa Bamnoo and is having two sons, one is labourer another is student of 7th class. It has been concluded that the petitioner is not resident of village Achagosa Bamnoo and thus do not belong to `Backward Area. His admission made under Roll No. 95038 as student of MBBS in Government Medical College, Srinagar under R.B.A. Category has been ordered to be cancelled and the petitioner ousted from the course. 2. Petitioner has come to this Court challenging the aforesaid order on variety of grounds. It is stated that the petitioner secured 182 marks in the competitive examination as per the select list issued by the Competent Authority Entrance Examination for admission to various courses including M.B.B.S. His admission was under R.B.A. category to which he belonged and had produced a certificate issued by the Competent Authority after holding a detailed inquiry in terms of SRO 126 of 1994. Petitioner has further stated that he is victim of some misunderstanding. Name of petitioners father is "Nazir Ahmed Mir" and name of his maternal uncle is also "Nazir Ahmed Mir". Petitioner claimed to have been taken in adoption by his maternal uncle immediately after his birth and since then he has been residing at village Achgosa Bamnoo. This fact according to the petitioner is borne out from the Permanent Resident Certificate issued by the Deputy Commissioner, Pulwama where besides name of his father, the name of the village Achagosa Bamnoo is also mentioned. He has further relied upon `Shajra Nasab of the adopted father. This fact according to the petitioner is borne out from the Permanent Resident Certificate issued by the Deputy Commissioner, Pulwama where besides name of his father, the name of the village Achagosa Bamnoo is also mentioned. He has further relied upon `Shajra Nasab of the adopted father. According to the petitioner in the year 1994 he approached Tehsildar, Pulwama, the Competent Authority for grant of R.B.A. certificate, he being resident of village Achagosa Bamnoo, Tehsil and District Pulwama and being the son of Nazir Ahmed Mir of the said village. The Competent Authority after holding a detailed inquiry, including the recording of evidence and issuing public notice, issued Certificate dated 12.9.1994 in favour of the petitioner certifying that he belongs to backward area i.e. village Achagosa Bamnoo. He has claimed that he is the genuine resident of the said village which is backward area as notified by the Government and on the basis of his belonging to the reserved category and securing 182 marks in the Entrance Examination, he was granted admission to the MBBS Course in the Session 1994-95 under RBA category. At the time of filing of the writ petition he was a student of pre-final. 3. Petitioner has also alleged that some complaint was lodged by a fictitious body known as Students Vigilance Organization somewhere in Feb. 1995. The said complaint seems to have been forwarded by the then Registrar, Competent Authority, Entrance Examinations on 9.2.1995 to the District Development Commission, Pulwama as well as Director, Prosecution Vigilance Department. Right from Feb. 1995 the matter remained pending with the Vigilance Organization and it is after more than five years when the petitioner was about to complete the course that on the basis of some inquiry said to have been made by the Vigilance Organization the impugned order has been passed. Petitioner has further submitted that he was never associated with any kind of inquiry held either by the Vigilance Organization or the Deputy Commissioner, Pulwama. It was only some time back that he was called by the Principal of the College in his office where he was apprised of the order impugned in the petition and even the copy of this order was not served upon him. After acquiring knowledge of the impugned order he procured a copy of the same and has approached the court through the medium of the present writ petition. After acquiring knowledge of the impugned order he procured a copy of the same and has approached the court through the medium of the present writ petition. He accordingly seeks quashing of the impugned order dated 16.1.2001 with a further direction in the nature of mandamus commanding the respondents to allow the petitioner to pursue his studies leading to the award of MBBS degree certificate on the successful completion of the course, etc. 4. Relief in the petition is being sought on the following grounds as projected in the writ petition as also during the course of arguments:-- (i) That the impugned order has been passed in violation of the principles of natural justice as the petitioner was never associated either by the Deputy Commissioner, Pulwama who is said to have made some inquiry nor by the Vigilance Organization, which registered a criminal case against the petitioner and stated to have investigated the case and arrived at some conclusion. He has also not been afforded an opportunity of being heard by the competent authority while passing the impugned order. (ii) The petitioner was granted RBA certificate under SRO No. 126 of 1994 by the competent authority after holding a detailed inquiry including recording of evidence and issuing public notice. No person including the complainant objected to the grant of certificate in favour of the petitioner. R.B.A. category certificate granted in favour of the petitioner has attained finality having not been challenged in appeal by any person till date and without cancelling/revoking the same the impugned order has been passed cancelling the admission of the petitioner. Without the R.B.A. Category certificate being cancelled or revoked his admission to M.B.B.S. Course in the said category cannot be cancelled. (iii) Petitioner is resident of the village Achagosa Bamnoo, District Pulwama being adopted son of Nazir Ahmed Mir as is evident from the Permanent Resident Certificate and Sajra Nasab. He has not been afforded any opportunity to rebut the allegations against him and to establish the genuineness of the R.B.A. Category Certificate issued in his favour. (iv) Exercise of jurisdiction under Rule 36 of SRO 126 is in the nature of penalty and cannot be enforced upon the petitioner without affording him opportunity of being heard. He has not been afforded any opportunity to rebut the allegations against him and to establish the genuineness of the R.B.A. Category Certificate issued in his favour. (iv) Exercise of jurisdiction under Rule 36 of SRO 126 is in the nature of penalty and cannot be enforced upon the petitioner without affording him opportunity of being heard. Even material collected during the course of inquiry i.e. statements of Numberdar and chowkidar namely Ghulam Hassan Khanday and Ghulam Mohammad Khanday, Shajra Nasab of his adopted father as also the Deed of Adoption and Permanent Resident Certificate establish that the petitioner is the resident of the village Achagosa Bamnoo, District Pulwama a backward area. Hence there was no cause for cancellation of his admission. (v) That the allegations made in FIR No. 17/98 registered by the Vigilance Organization and the investigation made therein are yet to be established after judicial scrutiny and petitioner cannot be punished unless the allegations are proved against him. Otherwise also the jurisdiction to be exercised in the said F.I.R. is an independent jurisdiction than the one vested with the competent authority under SRO 126. 5. Two sets of reply have been filed, one by respondent No. 2 and the other by Sr. Supdt. of Police, Vigilance Organization. The sum and substance of both these replies is to the effect that on 25.3.1998 a case was registered in Police Station, Vigilance Organization, Kashmir on receipt of a letter from the Inspector General of Police, Vigilance Organization. It has been revealed during investigation that the petitioner has fraudulently obtained PRC and R.B.A. Certificates with criminal conspiracy of revenue authorities of Tehsil Pulwama by showing his residence as Yachgosa Bamnoo, District Pulwama instead of Pingallana. He has succeeded in securing the selection in Session 1994-95 fraudulently. Achagosa Bamnoo, Tehsil Pulwama is backward area whereas Pingallana Tehsil Pulwama is not a backward area as defined under SRO 126. R.B.A. category certificate was obtained by the petitioner on the basis of fictitious address and claiming to be the son of Nazir Ahmed Mir R/O Village Yachgosa Bamnoo, Tehsil and District Pulwama. One Nazir Ahmed Mir is residing at village Achagoz Bamno, District Pulwama, and is having two sons, one is a labourer and another is student of 7th class. Petitioners claim of being resident of Achagosa Bamnoo, District Pulwama and resident of backward area has been disputed. One Nazir Ahmed Mir is residing at village Achagoz Bamno, District Pulwama, and is having two sons, one is a labourer and another is student of 7th class. Petitioners claim of being resident of Achagosa Bamnoo, District Pulwama and resident of backward area has been disputed. Action of respondent No.2 in passing the impugned order has been justified. It is stated that the said action has been initiated in terms of Rule 36 of SRO 126 of 1994. 6. I have heard the learned counsel for the parties and perused the record. 7. Following admitted facts have emerged in the case :- (i) That the petitioners fathers name is Nazir Ahmed Mir and R.B.A. category certificate stands issued in his favour under SRO No.126 of 1994 on 12.9.1994. Permanent Resident Certificate also stands issued in his favour by Deputy Commissioner, Pulwama on 2.9.1994. (ii) Impugned Order No. 2 CAEE of 2001, dated 16.1.2001 has been issued by respondent No. 2 i.e. the Competent Authority, Entrance Examination. (iii) The petitioner was not associated with any inquiry/investigation conducted against him. (iv) Petitioner was not afforded any opportunity of being heard by respondent No. 2 before or at the time of passing of the order impugned in the writ petition. (v) R.B.A. category certificate issued in favour of the petitioner has not been challenged in appeal or otherwise in any other manner till date -- (vi) That the petitioner was admitted to MBBS Course in Session 1994-95 whereas the impugned order came to be passed on 16.1.2001 i.e. after about more than five years. 8. Rule 22 contained in Part IV of SRO 126, dated 28.2.1994 provides reservation in professional institutions in favour of various categories of persons besides constitutionally reserved categories. Reservation to the extent of 20% is permissible for the residents of backward area of the State. Rule 27 in Part V prescribes procedure for issuance of certificate and in respect to the residents of backward area, Revenue Officer not below the rank of Tehsildar is designated as authorized officer to issue such a certificate. Rules 28 and 29 lay down detailed procedure for presentation of the application, its registration and verification of the details of the application and to hold an inquiry in regard to the grant of category certificate. Rules 28 and 29 lay down detailed procedure for presentation of the application, its registration and verification of the details of the application and to hold an inquiry in regard to the grant of category certificate. Rule 29 also indicates the nature of material/documents, which are required to be placed on record during the course of inquiry to be held by the authorized officer before the grant of category certificate. Rule 30 deals with the issuance of certificate by the authorized officer and also prescribed the period within which the said certificate is to be issued. Rule 31 deals with the appeal to be filed by any person aggrieved by order of the authorized officer under Rule 30 and also provides period of limitation for preferring an appeal under this rule. Rule 32 deals with powers of review/revision of the appellate authority, whereas Rule 34 deals with the validity of the certificate and Rule 36 provides penalty for contravening the rules. For the purpose of present petition Rules 30, 31, 32, 34 and 36 are relevant and the same are re-produced hereunder:-- "30. Issuance of certificate -- The authorized officer shall within 15 days from the date of the receipt of the application for reasons to be recorded in writing either accept the application or reject it. On the acceptance of the application, the authority shall immediately issue the requisite certificate to the applicant in Forms VIII, IX, X, XI, XII, XIII, XIV, appended to these rules as the case maybe: Provided that no certificate shall be issued under these rules, unless the Authorized Officer is satisfied that the total income from all sources of the person and upon whom he/she is dependent is less than rupees one lakh per annum: Provided further that nothing in the above proviso shall apply to the applicant belonging to the Scheduled Castes and Scheduled Tribes. 31. Appeals. 31. Appeals. (1) -- Any person aggrieved by an order of the Authorised Officer under Rule 30, may, at any time before the expiry of 90 days from the date of the order, prefer an appeal to- (i) Deputy Commissioner, if the order appealed against is passed by Tehsildar or Sub-Divisional Magistrate in their capacity as Authorised Officers; (ii) Divisional Commissioner, if the order appealed against is passed by Deputy Commissioner or Additional Deputy Commissioner in their capacity as Authorised Officer; (iii) Director General of Police against the order passed by the DIG. (2) The appellate authority referred to in sub-rule (1) shall within 30 days from the date of receipt of the appeal pass such orders on the appeal as it deems fit: Provided that no such order shall be made unless a reasonable opportunity of being heard has been afforded to the appellants. 32. Review/Revision -- : The appellate authority may, suo motu or on an application made, call for the record of the proceedings taken or orders made by an Authorised Officer under these rules for purposes of satisfying itself as to the legality of such proceedings or orders and may pass such orders in reference thereto, as he deems fit: Provided that order, prejudicial to any person shall be passed under this rule without giving him/her a reasonable opportunity of being heard. 34. Validity of the Certificate. (1) The certificate issued under these rules shall remain valid for a period of two years from the date of issuance. (2) After the expiry of the period of validity under sub-rule (1) the Authorised Officer shall, on the request of the certificate holder, renew the same for a further period of two years following the same procedure as laid down for obtaining the certificate. 36. Penalty for contravening the rules. -- (1) Any person who obtains a certificate under these rules by misrepresentation, fraud or concealment of any material fact or impersonation shall in addition to prosecution under the law for the time being in force be liable to, -- (a) forfeiture of benefit; (b) removal or dismissal from service; (c) restication from the institution concerned, if he has secured such benefit, appointment of admission on the basis of such certificate." 9. From the examination of the aforesaid rules it becomes apparent that once a certificate is issued by the authorized officer in terms of Rule 30 of SRO 126 and if any person is aggrieved of the order of the authorized officer issuing such a certificate he has a statutory remedy of preferring an appeal within 90 days from the date of order to the Deputy Commissioner, if the order appealed against is passed by the Tehsildar and to the Divisional Commissioner, if the order appealed against is passed by the Deputy Commissioner, etc. Rule 31 takes within its scope and ambit not only order denying a certificate but also an order granting a certificate, therefore, if any person whosoever is aggrieved of grant of any certificate in favour of any person by the authorized officer, he is entitled to prefer an appeal before the prescribed authority in terms of Rule 31. Sub-rule (2) of Rule 31 empowers the appellate authority to pass such order on appeal as it deems fit within 30 days from the date of receipt of appeal. Proviso to this sub-rule makes it mandatory for the appellate authority to afford an opportunity of being heard to the appellant. In addition to the power of appeal, the appellate authority is also empowered to call for the record of the proceedings taken or orders made by the authorized officer for the purposes of satisfying itself as to the legality of such proceedings or orders or may pass such orders in reference thereto as he deems fit on application made to it or suo motu. Proviso to Rule 32 further makes it obligatory for the appellate authority that no order prejudicial to any person shall be passed without giving him a reasonable opportunity of being heard. Rule 34 prescribes the age of the certificate, which is two years from the date of issue though such a certificate can be renewed for a further period of two years after following the procedure for grant of such a certificate. As regards Rule 36 is concerned it prescribes the penalty for contravention of the rules. Rule 34 prescribes the age of the certificate, which is two years from the date of issue though such a certificate can be renewed for a further period of two years after following the procedure for grant of such a certificate. As regards Rule 36 is concerned it prescribes the penalty for contravention of the rules. In terms of this rule if any person obtains a certificate by misrepresentation, fraud or concealment of any material, fact or impersonation he shall be liable to forfeiture of benefit, removal or dismissal from service, restication from the institution concerned in addition to prosecution under law for the time being in force. 10. Respondents have no where stated in their reply that the R.B.A. category certificate issued in favour of the petitioner was challenged before the appellate authority in terms of Rule 31 or assailed before the said authority through the medium of revision/review in terms of Rule 32 of SRO 126. As a matter of fact RBA category certificate issued in favour of the petitioner has remained unchallenged till date. The only defence of the respondents is that on the complaint received the matter was investigated by the State Vigilance Organization in detail and during investigation it has come to light that the petitioner has obtained certificate by showing his place of residence as village Achagosa Bamnoo, District Pulwama which is a backward area, whereas he is resident of village Pinglana, Pulwama, which is not a backward area. The other defence to the petitioners claim is that one Nazir Ahmed Mir R/O Village Achagosa Bamnoo, Tehsil Pulwama which is a backward area has two sons, one is a labourer and the other is a student of 7th class and it has been concluded on investigation that the petitioner has secured the R.B.A. category certificate by misrepresentation. 11. Respondents have not denied the fact that the petitioner was at no stage associated with any inquiry or investigation nor he was issued any show cause notice or afforded any opportunity of being heard before or at the time of passing of the impugned order. Non-observation of principles of natural justice is an admitted position in the case. 12. 11. Respondents have not denied the fact that the petitioner was at no stage associated with any inquiry or investigation nor he was issued any show cause notice or afforded any opportunity of being heard before or at the time of passing of the impugned order. Non-observation of principles of natural justice is an admitted position in the case. 12. It is established proposition of law that where the law prescribes a particular mode of initiating any action, particularly a penal action, it has to be taken by having recourse to the method prescribed under law and by no other means. R.B.A. category certificate is issued under SRO 126 where detailed procedure for issue of such certificate has been prescribed. It is also admitted position that the petitioner was issued R.B.A. category certificate by the competent authority i.e. the authorized officer after holding an inquiry as provided under the said SRO 126 i.e. Rules 28 and 29. It is only after the authorized officer was satisfied that the petitioner belongs to R.B.A. category, a certificate in terms of Rule 30 has been issued. There is a presumption in favour of the petitioner that he belongs to R.B.A. category after a certificate in his favour is granted. Assuming that the petitioner secured the certificate by misrepresentation or fraudulent means as is alleged in the impugned order and the replies filed by the respondents, the respondents were under statutory obligation to adopt the course as prescribed under Rules i.e. either by preferring an appeal under Rule 31 or a revision/review under Rule 32. It is not disputed by the respondents that no such recourse has been adopted leaving certificate issued in favour of the petitioner unchallenged. Petitioner was admitted to M.B.B.S. Course on the basis of the said certificate, which has attained finality having not been challenged before any competent forum or authority till date. Petitioner has already completed the course after an interim order dated 23.1.2001 was passed staying the operation of the impugned order which came to be made absolute on 17.9.2001. Respondent No. 2 is an authority created by the State to conduct Entrance Examinations and make admission to various professional courses including M.B.B.S. The said authority on the basis of the certificate issued by the competent authority granted such admission to the petitioner. Respondent No. 2 is an authority created by the State to conduct Entrance Examinations and make admission to various professional courses including M.B.B.S. The said authority on the basis of the certificate issued by the competent authority granted such admission to the petitioner. Respondent No. 2 was not competent to cancel the admission of the petitioner unless the certificate, the basis for such admission is cancelled or declared invalid by any competent authority. The investigation made by the vigilance organization relate to alleged criminal conspiracy though concerning the grant of said certificate. Even if FIR has been registered and charge-sheet filed in a competent court of law final adjudication is yet to be made. Out come of the final adjudication can be conviction for commission of criminal offence or acquittal, if such offence is not proved. This purely deals with the conduct of a person in commission of an offence. As far as his civil or statutory rights flowing from grant of certificate are concerned, the same are required to be decided by an authority duly empowered under law. Admittedly no adjudication has been made by any authority competent under law to decide the question of validity or otherwise of the RBA category certificate till date. Thus unless such an adjudication is made and RBA certificate granted in favour of the petitioner is cancelled or revoked, he cannot be denied any of his right emanating from such a certificate. If the mandate of Rule 36 of SRO 126 is examined it leads to two conclusions- (i) a person is liable for punishment as provided under criminal law if he is found to be guilty of some offence; (ii) any benefit accrued to him from grant of a certificate is to be forfeited and he be deprived of the same with all consequences including dismissal from service and restication from the institution. 13. As far as the punishment for commission of offence is concerned, the matter needs to be decided by a competent Court of law, empowered to try and punish a person if the offence is proved. As regards the forfeiture of benefits and other deprivation of privileges is concerned the same also needs to be adjudicated upon by a forum prescribed under law for such an adjudication. As regards the forfeiture of benefits and other deprivation of privileges is concerned the same also needs to be adjudicated upon by a forum prescribed under law for such an adjudication. In the present case under Rules 31 and 32 such forums are provided, which alone are competent to adjudicate upon the question of validity of a certificate and the question of forfeiture of benefit and deprivation of the privileges. In absence of there being an adjudication in respect to the rights of the petitioner emanating from the grant of R.B.A. category certificate which remained intact till date, he cannot be deprived of the benefit accruing from such a certificate. The impugned order is thus not sustainable in law. 14. Notwithstanding the general principles of natural justice, which also apply to the present case, proviso to sub-rule (1) of Rule 31 and proviso to Rule 32 specifically confer a right of being heard upon the person against whom the order is to be passed by the appellate/Revisional authority. Petitioner has not been afforded any such opportunity of being heard and the doctrine of audi alteram partem has been completely given a go-bye by the respondents, which has rendered the impugned order invalid. In a similar case before the Apex Court in case Gulzar Singh v. Sub-Divisional Magistrate & Anr., (1999) 3 SCC 107, issue of cancellation of caste certificate issued in favour of a person was considered, in which the Apex Court held as under:-- "............ It is clear from the facts on record that prior to the cancellation of the Scheduled Castes certificate by the impugned order dated 3.6.1997, no show cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Castes Certificate, certain rights accrued to the appellant. If this certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Castes certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken. In view of the fact that the principles of natural justice were violated in the present case, we allow this appeal, set aside the judgement of the High Court and quash the impugned order passed on 3.6.1997, leaving it open to the respondent to take action in accordance with law. There will be no order as to costs." 15. In another case reported in (1999) 8 SCC 378, Gajananl. Pernekar v. State of Goa & Another, the Apex Court held as under:-- ".....The manner in which the order dated 21.1.1999/22.1.1999 came to be made was, to say the least, not proper. The appellant was denuded of the benefits of the order dated 16.2.1994 unheard. There has been a breach of the principles of natural justice and a violation of fair play in action. The earlier order made in favour of the appellant as early as on 16.2.1994 was rescinded without giving any opportunity to the appellant to show cause against it. Absorption of the appellant as Headmaster of Government High School by the order dated 16.2.1994 had not been put in issue through any proceedings by any party at any point of time. That benefit could not have been taken away from the appellant without affording him any opportunity of hearing, even where the absorption as Headmaster of the High School had been put in issue. The principles of natural justice have been respected in their breach. The order dated 21.9.1999/22.1.1999 was made by the respondents influenced by the observations contained in para 2 of the order of the High Court (supra), which observations, we have already found, were not at all called for. In the facts and circumstances of the case, the order dated 21.1.1999/22.1.1999 cannot be sustained and we accordingly set it aside...." 16. In the instant case, even without cancelling the RBA category certificate, petitioners admission to MBBS course has been cancelled after a period of five years. In the facts and circumstances of the case, the order dated 21.1.1999/22.1.1999 cannot be sustained and we accordingly set it aside...." 16. In the instant case, even without cancelling the RBA category certificate, petitioners admission to MBBS course has been cancelled after a period of five years. The petitioner was not associated with the investigation nor statements recorded during investigation or material said to be collected therein was put to the petitioner or he asked to explain the circumstances appearing against him. There has been total breach of principles of natural justice. 17. In view of the above discussion the inescapable result is to quash the impugned order dated 16.1.2001 with a further direction to the respondents to allow the petitioner to complete his M.B.B.S course where he was admitted consequent upon his selection by respondent No. 2. Needless to say that the petitioner is entitled to be allowed to appear in all examinations if he has not already appeared and his result declared. In the event the petitioner succeeds in his examination, a degree of having passed M.B.B.S Course shall be issued in his favour and he be allowed to seek any further benefit accruing from such a degree. This petition is accordingly allowed. No order as to costs.