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2019 DIGILAW 29 (JK)

Taanisha Manhas v. State of J&K

2019-01-28

DHIRAJ SINGH THAKUR

body2019
JUDGMENT : 1. Petitioners claim to be the residents of the area adjoining actual line of control. Under the Jammu and Kashmir Reservation Act, 2004 (for short the Act of 2004), persons residing in the area adjoining the actual line of control fall under the category of socially and educationally backward classes and are, thus, entitled to certain benefits of reservation. The case of the petitioners was considered by the Tehsildar, Khour, being the competent authority, but rejected. 2. In appeal, the Deputy Commissioner, Jammu vide order dated 12.09.2015 upheld the order of the Tehsildar, Khour and dismissed the appeal on the ground that the petitioners’ case fell under the excluded category in terms of clause (ix) of the second proviso to Section 2(o) of the Act of 2004. 3. The basis of exclusion was that the annual income of the petitioners’ family was beyond Rs.4.50 lacs which, thus, resulted in their exclusion from consideration under the socially and educationally backward classes Category. 3. The basis of exclusion was that the annual income of the petitioners’ family was beyond Rs.4.50 lacs which, thus, resulted in their exclusion from consideration under the socially and educationally backward classes Category. For purpose of reference, section 2(o) of the Act of 2004 is reproduced hereunder: “2(o) “socially and educationally backward classes” mean- (i) persons residing in the backward area; (ii) the persons residing in the area adjoining Actual Line of Control; and (iii) weak and under privileged classes (social castes), declared as such under notification SRO-394 dated 05.09.1981 read with notification SRO 272 dated 03.07.1982 and notification SRO 271 dated 22.08.1988 as amended from time to time: Provided that the Government may, on the recommendations of the State Backward Classes Commission, make inclusions in, and exclusion from, the said category from time to time: Provided further that the persons specified below and their children shall be excluded from the category of socially and educationally backward classes”- (i) Governor (serving or retired); (ii) Chief Justice and Judges (serving and retired) of High Court or the Supreme Court of India; (iii) Chief Minister and Ex-Chief Minister; (iv) Ministers and Ex-Ministers of Cabinet rank; (v) Ministers of State and Deputy Ministers having more than one term; (vi) Chairman and members of Jammu and Kashmir Public Service Commission or the Union Public Service Commission; (vii) Members of the State Legislature (elected and nominated both) having more than one term irrespective of the period under the second term; (viii) Members of All India Services; (ix) Any person whose annual income from all sources, determined in the prescribed manner, exceeds rupees three lacs or such amount as may be notified by the Government from time to time in accordance with the prescribed norms; and (x) Such other persons as the Government may notify from time to time;” 4. If a person who does not fall in the exclusionary clause as reproduced here-in-above applies for a certificate, the procedure that has been prescribed, is contained in Rule 21 of the Jammu and Kashmir Reservation Rules, 2005 (for short, the Rules of 2005) framed under the Act. If a person who does not fall in the exclusionary clause as reproduced here-in-above applies for a certificate, the procedure that has been prescribed, is contained in Rule 21 of the Jammu and Kashmir Reservation Rules, 2005 (for short, the Rules of 2005) framed under the Act. Clause (iii) whereof prescribes as under:- “21(iii) A person claiming benefit for being resident of Backward Area or of Area near the Line of Actual Control must establish that he/she has resided in the area for a period not less than 15 years before the date of application and is actually residing in the said area. However, a person may not be disentitled from claiming this benefit only on the ground that his/her father or person on whom he/she is dependent is living in a place which is not identified as Backward Area or area near line of Actual Control on account of his employment, business or other professional or vocational reasons;” 5. The appellate authority in its order impugned also recorded the admission of the petitioners’ father that the petitioners had not received their entire school education from an area adjoining the actual line of control. It also appears from the order impugned that despite there being an order for production of school record from the actual line of control area, no such record was ever produced. 6. It is in the background of the aforementioned facts that the present petition has been filed seeking Certiorari not only of the order impugned passed by the Deputy Commissioner in his capacity as an appellate authority, but has also tried to highlight the apparent contradiction in the two provisions i.e. proviso appended to clause (ix) of the second proviso to Section 2(o) of the Act of 2004 and rule 21(iii) of the Rules of 2005. 7. It was stated that when two provisions are read together, the contradiction becomes apparent because employment of a person outside an area adjoining actual line of control would not debar a person from claiming the benefit under the Act and further that since the father of the petitioners was in public employment and remained outside the areas adjoining the actual line of control and that the family had to move with him, the benefit cannot be denied to the petitioners. 8. Heard learned counsel for the parties. 9. 8. Heard learned counsel for the parties. 9. On a plain reading of the provisions as contained in Section 2(o) as also Rule 21(iii), it is clear that there is neither any contradiction nor any ambiguity whatsoever. Persons with annual income exceeding Rs.4.50 lacs are to be necessarily excluded from the category of socially and educationally backward classes among eight other categories mentioned therein. Once a person gets excluded from the said category based upon his income, then the issue of actual residence in the areas adjoining the actual line of control pales into insignificance. 10. Assuming that the petitioners’ father continued to remain residing in the area adjoining the actual line of control and the petitioners also continued to receive education in the said area, still on account of the operation of clause (ix) of the second proviso to Section 2(o), the petitioners would be disentitled to receive any benefit under the Act of 2004. 11. Be that as it may, the order impugned dated 12.09.2015 passed by the Deputy Commissioner, Jammu calls for no interference. 12. This petition is found to be without any merit and is, accordingly, dismissed along with connected IAs.