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2016 DIGILAW 410 (JK)

Syed Musaib v. State of J&K

2016-08-03

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. These Public interest litigation petitions have been filed by the petitioners, who are practicing Advocates of this Court, seeking quashing of Govt. Order No. 35-F of 2016 [2016 (27) JK Statutes JK-390 [Aadhaar Based Biometric System--Compulsory Enrolment thereof]], dated 10.02.2016 and directing the respondents that Aadhaar Card should not be made mandatory for any benefits otherwise due to a citizen. In PIL No. 02/2016, apart from seeking quashing of Government order referred to above, direction is also sought for to all Administrative Secretaries and heads of the departments throughout the State not to insist for enrolment of Aadhaar Based Biometric System and to release the salaries/wages/honorarium of the employees/daily wagers/contractual and also the pensions/scholarships/stipends and other benefits arising out of various schemes in favour of the persons entitled for the same without insisting for their Aadhaar Numbers or enrolment for Aadhaar Based Biometric System. It is the contention of the petitioners that Unique Identification Authority of India, (UIDAI), a central government agency was established on 28.01.2009 after the Planning Commission of India issued a notification with an object to collect the biometric and demographic data of residents, store them in a centralized database and issue a 12 digit unique identity number called Aadhaar. A public interest litigation was filed before the Hon'ble Supreme Court contending that the government was implementing the project without any legislation, in WP (Civil) No. 494/2012 and an interim order was passed on 23.09.2013, stating that no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued circular making it mandatory. The Government of India prayed for vacating the order and the said request was not adhered to and on 11.08.2015 the Hon'ble Supreme Court held that till the matter is finally decided by a larger Bench, the Union of India or the UIDAI shall proceed in the following manner :- "1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar Card; 2. The production of an Aadhaar Card will not be condition for obtaining any benefits otherwise due to a citizen. 3. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar Card; 2. The production of an Aadhaar Card will not be condition for obtaining any benefits otherwise due to a citizen. 3. The Unique Identification Number or the Aadhaar Card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme. 4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation." 2. In the State of Jammu and Kashmir, as per the petitioners, as on 31.01.2016 about 46.9% of the total population were issued the Aadhaar Cards. Inspite of the said fact on 10.02.2016 the Govt. Order No. 35-F of 2016, was issued to the following effect :- "It has been decided to switch over to the Aadhaar Based Biometric System on or before 31st March, 2016. Accordingly directions are issued for strict compliance by all concerned, making it mandatory to : 2. (A) For all Government employees/persons drawing wages, honorarium etc. (a) No salary or wages would be drawn in favour of the Government employees of any category for the month of March, 2016 onwards unless they have enrolled themselves in the Aadhaar Based Biometric System. (b) The above applies also to the PSU employees, Contractual/consolidated/casual workers or any other type of persons drawing wages in any form from the public exchequer. (c) It will be the duty of the concerned DDOs to ensure enrolment in the system before 31st March, 2016 and furnish a certificate for the same along the Salary Wage Bill presented in the Treasury, without which the Treasury Officers are directed not to entertain any Salary/Wage bill. (d) From 1st April, 2016 onwards, the marking of attendance in the system would be compulsory for all categories of employees and wage earners. (d) From 1st April, 2016 onwards, the marking of attendance in the system would be compulsory for all categories of employees and wage earners. Only after the scrutiny of monthly attendance, the DDOs would prepare Salary/Wage bill and a certificate in this regard would accordingly be furnished alongwith the bill to the Treasuries concerned. (B) For Pensioners All the pensioners are also required to enroll themselves by obtaining Aadhaar Number by 31st March, 2016 as this would help them to digitally identify themselves in future at the nearest Common Service Centre I Khidmat Centre or any other place having the system installed. They would not be required to physically present themselves before the prescribed authorities to prove that they are alive. This initiative is being undertaken as a part of "Jeevan Parnam" Scheme. (C) For persons drawing various benefits including pensions/scholarships/stipend etc. (a) It has been decided that all persons drawing benefits like Old Aged pension, widow pension, student scholarship, stipend, honorarium, wages under MGNREGA or any other similar cash benefits from the Government would need to enroll themselves in Aadhaar Based Biometric System initially and mark their continued eligibility periodically as decided by the concerned department by presenting and marking before the concerned authority. (b) The concerned departmental officers will be responsible for getting enrolled all such beneficiaries in the System for their identification, without which they would not draw any benefit after 1st April, 2016. (c) The concerned departments would be responsible for making necessary arrangements for enrolment of such beneficiaries in the system." 3. The said Government Order issued being contrary to the order of the Hon'ble Supreme Court, the same is challenged in these writ petitions, contending that when the Hon'ble Supreme Court itself passed an order, not to compel any one to give the Aadhaar Card to get the benefits other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene and it can also be used for the purposes of LPG distribution. The said order was passed by Hon'ble the Supreme Court on 11.08.2015. 4. Considering the said orders passed by Hon'ble the Supreme Court, this Court granted interim order on 24.02.2016. It is not in dispute that the order passed by the Hon'ble Supreme Court is still in force and the respondents herein are also bound by the said order. 5. The said order was passed by Hon'ble the Supreme Court on 11.08.2015. 4. Considering the said orders passed by Hon'ble the Supreme Court, this Court granted interim order on 24.02.2016. It is not in dispute that the order passed by the Hon'ble Supreme Court is still in force and the respondents herein are also bound by the said order. 5. The learned Advocate General, during the course of arguments was not in a position to dispute the fact that Govt. Order No. 35-F of 2016, dated 10.02.2016 is in conflict with the orders of the Hon'ble Supreme Court and in particular order dated 15.10.2015. On perusal of the order dated 15.10.2015, it is evident that matter was referred to a Constitution Bench for final hearing, making it clear that Aadhaar card scheme is voluntary and cannot be made mandatory till the matter is decided by the Hon'ble Supreme Court in one way or the other and the interim orders passed commencing from 29.03.2013 shall be strictly followed. Thus it is beyond doubt that Government Order issued cannot at all be sustained as it is in violation of the interim orders passed by the Hon'ble Supreme Court. 6. The Hon'ble Supreme Court having exercised its jurisdiction under Article 32 of the Constitution of India and passed interim orders, the same are binding on all States. Hence the impugned order issued in Govt. Order No. 35-F of 2016, dated 10.02.2016 is quashed with liberty to the respondents to issue a fresh order in compliance with the interim orders passed by Hon'ble the Supreme Court relating to PDS Scheme and in particular for the purpose of distribution of food-grains, etc. cooking fuel, such as kerosene and for the purpose of the LPG Distribution Scheme as well as passing orders depending on the final orders to be passed by the Hon'ble Supreme Court. 7. The writ petitions are allowed on the said limited extent with the liberty as stated supra. No costs.