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2022 DIGILAW 191 (JK)

Taanisha Manilas v. State of J&K

2022-04-26

MOKSHA KHAJURIA KAZMI, PANKAJ MITHAL

body2022
JUDGMENT : 1. Heard Sh. Anuj Dewan Raina, learned counsel for the petitioners/appellants and Sh. S.S. Nanda, learned Senior Additional Advocate General for the respondents. 2. The Jammu and Kashmir Reservation Act, 2004 (hereinafter referred to the Act) provides for reservation to certain categories of persons in the matter of appointment to government Services. One of the categories of such reserved persons is socially and educationally backward classes of persons as defined under section 2(o) of the Act. The socially and educationally backward classes of persons includes inter alia persons residing in the area adjoining to Actual Line of Control. 3. In this appeal, we are concerned as to whether the petitioners/appellants are residents of the area adjoining to actual line of control so as to entitle them of the certificate of socially and educationally backward classes for the purposes of reservation in appointments. 4. The father and the grandfather of the petitioners/appellants were residents of Village Khour in District Jammu, which is adjoining to the Actual Line of Control and, as such, they were having the certificate of socially and educationally backward persons. The petitioners/appellants dependent upon their father. Their father was a Government Employee who remained posted outside the village and the district Jammu. The petitioners/appellants, on account of the posting of their father to various places, migrated with him and studied in schools where their father remained posted. Their entire education up to class-Xth was from outside the Village Khour. 5. The petitioners/appellants contends that as they are originally belongs to village Khour and had to remain outside due to the posting of their father, they are entitled to issuance of certificate of socially and Educationally backward classes of persons being a resident of the area adjoining to Actual Line of Control. 6. The application of the petitioners/appellants for such a certificate was rejected by the Competent Authority-Tehsildar Khour vide order dated 09.03.2015 (at place is mentioned 19.03.2015) on two grounds that the income of the father of the petitioners/appellants exceeds Rs. 4.50 lacs and, as such, they stand excluded from the aforesaid category and, secondly, that they have not obtained their entire schooling from the area adjacent to Actual Line of Control. 7. The appeal of the petitioners/appellants against the aforesaid order filed under section 17 of the Act before the Deputy Commissioner, Jammu was initially allowed vide order dated 18.06.2015 and the matter was remanded. 7. The appeal of the petitioners/appellants against the aforesaid order filed under section 17 of the Act before the Deputy Commissioner, Jammu was initially allowed vide order dated 18.06.2015 and the matter was remanded. On remand the Tehsildar; Khour vide fresh order dated 31.07.2015 again refused to grant the certificate of socially and educationally backward classes to the petitioners/appellants. 8. Again an appeal was preferred which was dismissed on 12.09.2015 by the Deputy Commissioner, Jammu. A further appeal was dismissed on 17.10.2015 by the Divisional Commissioner, Jammu. 9. Aggrieved by the non-grant of the aforesaid certificate the petitioners/appellants preferred OWP No. 1717/2015 and the same has also been dismissed vide judgment and order dated 28.01.2019. The learned Single Judge has dismissed the writ petition holding that as the income of the parents exceeds the limit of Rs. 4.50 lacs prescribed under Clause (ix) of the 2 nd proviso to Section 2(o), they stand excluded and are not entitled for such a certificate. 10. It is against the aforesaid judgment and order of the writ court that the petitioners/appellants have preferred this appeal under Clause 12 of the Letters Patent. 11. The submission of Sh. Raina, learned counsel for the petitioners/appellants is that the provisions of the aforesaid Act have to be read harmoniously in the light of the objective sought to be achieved by the said Act. Since the petitioners/appellants were dependent upon their father and had to live with him where ever he was posted, they are entitled to the benefit of reservation. The income ceiling limit would not apply to them as the education was not available to them in the village of their origin i.e. Khour adjacent to the Actual Line of Control. 12. Sh. S.S. Nanda, on the other hand, submits that the petitioners/appellants stand excluded from the socially and educationally backward classes of persons. They cannot be recognized as residents of the area adjoining actual line of control as they have not received their entire schooling from the said area and also on account of the income of their parents. They have not suffered any disadvantage in life or education on account of their origin from an area adjoining actual line of control. 13. They cannot be recognized as residents of the area adjoining actual line of control as they have not received their entire schooling from the said area and also on account of the income of their parents. They have not suffered any disadvantage in life or education on account of their origin from an area adjoining actual line of control. 13. In context with the controversy as to whether the petitioners/appellants are entitled to the certificate of socially and educationally backward classes of persons as defined under section 2(o) of the Act, it is important to refer to Section 2(o) and the Rule 21 of the Rules framed under the Act. 14. Section 2(o) of the Act defines socially and educationally backward classes to mean inter alia the persons residing in the area adjoining actual line of control. Section 2(o) of the Act as is relevant for us is quoted below:- "Socially and educationally backward classes" mean (i) The 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-572 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 four lacs and fifty thousand) or such amount as may be notified by the Government from time to time in accordance with the prescribed norms. Provided that the income ceiling 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, as the case may be, and in case such schooling is not available in such area, from the nearest adjoining area". (x) Such other persons as the Government may notify from time to time." 15. Rule 21 of the rules framed under the act lays down the procedure for issuance of certificates under the Act. It inter alia provides that a person claiming benefit of resident of area near the Actual Line of Control must establish that he has resided in the area for a period of not less than 15 years before the date of application and is actually residing in the said area. However, he would not be disentitled for such a benefit/certificate on the ground that his father or the person upon whom he is dependant is living in some other place on account of his employment etc. 16. The relevant provision of Rule 21(iii) which is material for our purpose is quoted below:- "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". 17. The proviso to Section 2(o) is material for our purposes as it provides for the persons and their children who shall stand excluded from the said category. It inter alia includes any person whose annual income from all sources exceeds Rs.4,50,000/- but that the said income ceiling 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 and, in cases, such schooling is not available in such area from the nearest adjoining area. 18. 18. A conjoint reading of the above provisions would reveal that socially and educationally backward classes of persons for the purposes of reservation under the Act includes persons residing in the area adjoining Actual Line of Control. 19. Rule 21 of the Rules specifies the time limit for which one has to be living in such an area and it provides that a person claiming such a benefit must establish that he has resided in the area for a period not less than 15 years person has to be a resident in the area adjoining Actual Line of Control and that he must be residing therein for a period not less than 15 years before the date of application and is actually residing in the said area. 20. In the case at hand, the petitioners/appellants may be originally from the area adjoining Line of Actual Control but they have never resided for a period of 15 years before applying for the certificate in the said area and, as such, does not fulfill the necessary mandatory condition for getting such a certificate. 21. The living of the parents of the petitioners/appellants in a different area on account of their employment, business etc may not disentitle them from claiming the benefit of such reservation but, nonetheless, they have to prove that they had been living in such an area for not less than 15 years. The petitioners/appellants have not submitted any proof of such residence. 22. It is also not disputed that the income of the parents of the petitioners/appellants or that of their father exceeds Rs.4,50,000/- and, as such, they stand excluded from the social and educationally backward classes of persons by virtue of Clause ix of the proviso to Section 2(o) of the Act. The submission that the ceiling limit shall not apply in the case of the petitioners/appellants is misconceived, inasmuch, as they have not received their entire school education from an area identified as backward or actual line of control. 23. It may also be pertinent to mention here that the object of granting reservation to the residents of the area of Actual Line of Control as socially and educationally backward persons is to ensure that persons who suffer both socially and educationally by living in such an area are not left behind from the normal stream. 24. 23. It may also be pertinent to mention here that the object of granting reservation to the residents of the area of Actual Line of Control as socially and educationally backward persons is to ensure that persons who suffer both socially and educationally by living in such an area are not left behind from the normal stream. 24. The petitioners/appellants throughout their school education up to Class-Xth almost have lived outside the area of Actual Line of Control and have received the best of education without suffering any handicap which otherwise they may have faced by living in such an area. They have not earned any disadvantage so as to receive any special protection, and moreover, they were financially well off as their parents had enough income exceeding the limit provided. Therefore, any benefit of reservation which is intended to protect persons actually living and residing in the area Actual Line of Control is not available to the petitioners/appellants as a matter of right only for the reason they happen to be originally of such an area. The benefit of reservation under the Act is a mere privilege and cannot be claimed as of right when the person seeking reservation had not suffered any vagaries of the area of actual line of control. 25. The application of the petitioners/appellants for grant of such certificates has consistently been rejected right from the Competent Authority to the Divisional Commissioner as well as in the writ jurisdiction for cogent reasons and, as such, we do not intend to interfere with the impugned judgment and order. 26. The appeal is dismissed holding that the petitioners/appellants are not entitled to such a certificate and that they have rightly been denied its benefit.