Shahnaz Bhatt vs Divisional Commissioner, Jammu

The parties submitted at the bat that rather than passing order in CMP No.2465/92, it shall be desirable that the main petition itself is taken up

for consideration and that it be disposed of at the motion hearing stage without formally admitting it. Because of the desire and agreement of the

parties, therefore, I am disposing of the main petition itself after having taken it up for consideration on 2.12.1992 alongwith CMP No.2465/92.

The petitioner is the citizen of India, a permanent resident of J&K State and belongs to village Bathri, Tehsil Thatri, District Doda, the father of

the petitioner is a Govt. Servant. The petitioner was a candidate for the Entrance Examination conducted by respondent No.3 for admission to the

M.B.B.S. Course. As per Notification S.R.O.272 dated 3.7.1992, some seats in the Medical Colleges have been reserved for persons belonging

to backward areas and areas falling under the line of Actual Control. A person claiming consideration under a category reserved under Notification

SRO.272 dated 3.7.1982 is required to attach a certificate alongwith application from submitted to the competent authority that he/she belongs to

the said category. The Govt. has prescribed the competent authority who has been designated for the purposes of issuing certificate to candidates

of their belonging to those categories which have been reserved and for which special allocation of seats has been made for MBBS Courses in the

two Medical Colleges of the State.

Because the village Bathri in Tehsil Thatri in District Doda has been identified as a backward area and is admittedly and undisputedly a

backward area covered by Notification SRO.272 of 1982 and because admittedly persons belonging to this backward area constitute a reserved

category for consideration for admission in the MBBS Course. The petitioner applied to the Deputy Commissioner, Doda for issuance of

certificate of her belonging to the said backward area so as to enable her to apply to the competent authority for consideration under the said

reserved category. Vide order dated 9th, Dec. 1991, Deputy Commissioner, Doda, respondent No.2 rejected the petitioner's application and held

her not to be entitled to the grant of certificate. Aggrieved the petitioner approached the Divisional Commissioner, Jammu respondent No.l by way

of appeal against the order of Deputy commissioner, Doda, The Divisional Commissioner concurred with the Deputy Commissioner and rejected

the appeal of the petitioner. Having failed, in both the forums, the petitioner approached this court by filing writ petition No.348/92. This court vide

its judgment dated 14 Aug. 1992 remanded the case once agam to the Divisional Commissioner, Jammu with directions to consider afresh the

petitioner's application for grant of requisite certificate. Consequent upon the judgment of this, court dated 14.8.1992, the Divisional Commissioner

passed the impugned order dated 1st Sept 1992 wherein once again he declined to grant the certificate in favour of the petitioner and rejected Ihe

petitioner's prayer in this behalf.

I have heard the learned counsel for the parties and perused the record.

The circumstances under which the certificate of belonging to a backward area and the conditions on which such a certificate can be issued have

bees detailed in annexureIl to Notification SRO.272 dated 3.7.1982. It shall be advantageous and desirable to reproduce clause (b) of the said

annexure which is very clear on the subject of entitlement of the certificate, the conditions under which it could be granted and the relevant mind for

this purpose. Clause (b) reads thus:

circumstances which have to be borne in

(b). A person claiming benefit on grounds that he/she belongs to an identified backward Area or an Area near the Line of Actual Control must

establish that he/she or his/ her father or if father is dead other member of his/her family on whom he/she is dependent has resided in the area for a

period not less than 15 years prior to the claim of benefit. The candidates must also establish that he/she or his/her father or the person on whom

he/she is dependant, is actually residing in such area where the benefit is claimed. However, a candidate shall not be disentitled from claiming this

benefit only on the ground that his father or the person on whom he/she is dependant is living in a place which is not identified as backward Area or

Area near Uie Line of Actual Control, on account of his employment, business or other professional or vocational reason; provided the per capita

monthly income of his family does not exceed Rs.700/"".

While disposing of writ petition No. 348/92, vide judgment dated 14 Aug. 1992, it was clearly held by this court that a perusal of the aforesaid

clause clearly reveals that the place where a candidate studies is neither relevant nor material for the purposes of deciding as to whether the

candidate belongs to a backward area. It was held in that judgment that studying in a particular institution or at a particular place did no disentitle a

person from claiming consideration under a particular category nor did a person cease to belong to that particular category, if merely she was

studying in a particular institution or at a particular place.

Because the Divisional Commissioner in his order dated 23 April 1992 dismissing the appeal of the petitioner against the order dated 9 Dec. 1991

passed by the Deputy Commissioner, Doda had declined to grant the certificate to the petitioner only on the ground that she had become

disentitled for the same on the basis of he studying at Bhaderwah and because she had been exposed to environment which provided better

educational opportunities, this court quashed the aforesaid order of Divisional Commissioner dated 23 April 1992, and disagreed with him that

such considerations of studying in an educational institution outside the backward area could at all be passed into aid for denying to a candidate the

benefit of belonging to a backward area.

The language of clause (b) reproduced above leaves no one in any doubt that what is relevant for the purposes of deciding whether a person

belongs or does not belong to a backward area is the residence in the backward area for a period of fifteen years either of the candidate himself of

his father. The period of 15 years has been related to a date prior to the making of the claim for getting this benefit. In fact clause 9b) broadly

consists of two parts. In the first part all that is relevant is simple residence, or what one may call simple domicile for a period of 15 years prior to

the date of making the claim for getting the benefit under the reserved category. In the first part, it has very clearly been laid down that either the

candidate himself should have been residing or, if not himself, his father should have been residing in the backward area. The second part of clause

(b) consists of only those persons where even through the candidate's father belongs to the backward area, but does not actually reside there for

reasons of his employment, business or other professional or vocational grounds. In the second category, however, a condition has been attached,

viz; that such a person should not be earning monthly income of more than Rs. Seven hundred. In substance, therefore, it means that even though

persons belonging to a backward area, but working outside the area also are entitled to be considered in the reversed category, but they become

disentitled for such considerations if their monthly income exceeds Rs. Seven hundred. In the present case, however, we are not concerned with

the second category of persons, because admittedly the present case comes and falls within the four corners of the first category.

In para 4 of the writ petition, the petitioner has clearly spelt out, in unequivocal and categoric terms that his father has been continuously residing

in village Bathri for a period of 15 years. The fact that the petitioner has been getting education at a place outside the limits of the backward area is

wholly immaterial in so far as her entitlement to get a certificate is concerned, because under clause (b), the residence either of the candidate

himself or of his father has to be taken into consideration. There is no legal requirement that both the father and the candidate should be residing in

the backward area. If one of them resides, it is enough for the purposes of clause (b). Similarly, whether the family comprises of five persons or ten

persons or for that matter hundred persons is wholly immaterial. Also immaterial is the income of the petitioner, .candidate or his father or for that

matter of the family. All these considerations are wholly irrelevant and I must observe that both the Divisional Commissioner and the Deputy

Commissioner unnecessarily and without proper application of mind imported these extraneous consideration in deciding the issue of the grant of

certificate to the petitioner. While determining the issue, they both travelled much beyond the scope of the Notification and thus, without weighing

the scales of law appropriately denied to the petitioner the benefit of her belonging to a backward area. 9. In the light of aforesaid discussions

therefore, and because of the irrefutable pleadings of the petitioner, not controverted by the respondents and other material on record, I hold that

the petitioner had succeeded in establishing beyond any doubt that she actually belongs to a backward area and because of her belonging to a

backward area, she was entitled to the grant of certificate. Because the petitioner was allowed by this court to take examination and be considered

under the reserved category, and because the petitioner has actually been examined has been considered and also in fact been selected, remanding

the case back either to Deputy Commissioner Doda or to Divisional Commissioner, Jammu for passing of formal order will be an unnecessary

ritual which I do not think is required to be observed. Under the peculiar circumstances of the case, I hold that the petitioner belongs to the

backward area of village Bathri in Tehsil Thathri in District Doda and that she is entitled to consideration under this reserved category for admission

to M.B.B.S. Course. I also hold that there is no need for her producting any formal certificated in the peculiar circumstances of this case.

Because of aforesaid declaration by this court, it is directed that if in the reserved category of belonging to a backward area, the petitioner has

been selected by the Competent Authority and if she is otherwise eligible, she shall be granted admission in the M.B.B.S. Course.

With the aforesaid directions, therefore, this petition is allowed and finally disposed of alongwith connected CMPs.