Sonia Nayyar vs State and Others

Claiming herself to be the beneficiary of SRO272 of 1982 dated 3.7.1982, the petitioner obtained a certificate from the competent authority of

belonging to a backward area entitling her to be admitted in the MBBS course for the session 198384. It is prayed that the selection of

respondents 6 to 24 be quashed and the petitioner be admitted in the first year MBBS course on the basis of her merit and belonging to the

backward area.

The facts of the case are that respondent No. 1 by advertisement notice No. 5/MBBS/83 dated 24.5.1983 invited applications on the

prescribed form from permanent residents of the State for admission in the first year MBBS course in the Govt. Medical Colleges, Jammu and

Srinagar. According to para 8 of the notification candidates who claimed consideration for selection on the basis of their belonging to any of the

categories should attack with their application form certificates in the prescribed form issued by the competent authority in support of their claim.

Under para 11 of the notification it was provided that the eligible candidates shall appear in a written test and, if successful, in the viva voce. The

petitioner claims to have filed an application along with the certificate of being a beneficiary allegedly under item No. 2 of Govt. Order No:

1988GD of 1981 dated 8.9.1981, and claimed to be the resident of Assoh (Bani) being entitled to be considered as a resident of the backward

area The certificate is stated to have been issued on her application filed on 14.1.1982 which was delivered to her on 3.6.1982 under the hand and

seal of the Collector, Sub Divisional Magistrate (SDM), Basohli. The certificate was not retied upon by the authorities on the ground of its not

having been issued by the prescribed authority. The action of the respondent is stated to be illegal and contrary to the conditions prescribed in the

notification inviting application for admission to the MBBS course.

In the counteraffidavit, it is submitted that the certificate of belonging to a backward area furnished by the petitioner was not issued by the

competent certifying authority and was therefore, rightly ignored by the respondents. It is submitted that the Govt. order relied upon by the

petitioner in para 9 of her petition, was no more in force and stood superseded vide notification SRO272 of 1982 dated 3.7.1982 read with

notification SRO334 of 1983 dated 13.6.1983. Under the aforesaid notifications, a candidate in terms of the provisions of cl. (8) of notification

was required to submit the certificate of competent authority viz. Tehsildar of the concerned area of being a permanently residing in any village of

the State specified in AnnexureI of the said SRO.

The certificate produced by the petitioner was obtained by her in June, 1982, an year before the issuance of the notification inviting applications

for admission to the MBBS course. It is submitted that during the relevant period the Tehsildar was present and posted at Basohli from whom the

petitioner did not try to get the certificate under SRO272. It is further submitted that in the absence of the Tehsildar, Naib Tehsildar was

performing the duties. The certificate issued is stated to be without the authority of law and could not be made a basis for granting admission to the

petitioner under the reserved category. It is submitted that as many as 88 candidates had claimed consideration under the back ward area category

and out of them only 23 were in possession of valid certificates and were considered and selected. Rest of the 65 candidates including the

petitioner, could not be considered by the committee as they did not possess the requisite certificate from the competent authority.

In the objections filed on behalf of respondent No. 1 it is submitted that the petitioner had claimed to be belonging to village Assoh in Bani.

However, AnnexureII to SRO272 of 1982 against item No. 1 titled 'Bani' does not mention village Asooh. Village Asooh is mentioned against

item No, 5 under the caption of tehsil Basohll, patwar halqa Sandhroon. It is submitted that after the issuance of the notification inviting applications

the Tehsildar Basohli was all along present and remained posted at Basohli.

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

The petitioner was granted provisional admission to MBBS course, vide Court order passed in C.M.P. (W) No: 69 of 1984 dated 24.3.1984.

It was made clear that admission granted to the petitioner shall be at her own risk and costs and if she failed in her petition, she would vacate the

seat. The order of granting provisional admission was specifically treated to be without prejudice to the rights of the parties.

Vide advertisement notice dated 2451983 applications on the prescribed form were invited from permanent residents of the State of Jammu and

Kashmir for admission to 1st year MBBS course iii the Govt. Medical Colleges at Jammu and Srinagar. The candidates applying were directed to

be possessing the minimum qualifications prescribed in the said advertisement notice. The candidates who claimed consideration for selection to the

MBBS course on the basis of their belonging to any of the special category, were directed to attach with their application forms the certificates in

the prescribed form issued by the competent authority in support of their claims. Annexures to the advertisement notice prescribed the Tehsilder of

the concerned area as the competent certifying authority for the purposes of the candidates claiming benefit under the category of being residents of

backward area. The application forms complete in all respects were directed to be delivered personally or sent by registered post so as to reach

the officer prescribed therein on or before 1171983. The petitioner had produced the certificate of her belonging to a backward area which was

admitted not issued by the competent authority but was issued by the SDM Basohli. The certificate produced shows that the petitioner was a

resident of village Asooh without referring to the tehsil or district. As the application is claimed to have been made before the Tehsilder Basohli and

the certificate dated 3.6.1982 has been issued by the SDM Basohli, it can be assumed as has been argued, that the petitioner belonged to village

Asooh tehsil Basohli which according to her was a backward area in terms of AnnexureII to SRO394 of 1981 dated 5.9.1981. A perusal of the

said SRO (annexureII) produced in the Court shows that the village Asooh is shown to be a part of Sandhroon area of tehsil Basohli and not of

Bani. The respondents have specifically stated that no village by the name of Asooh in Bani has been declared as a backward area. The certificate

issued was, therefore, on wrong assumpations and without any basis.

It is also established that when the law prescribes a particular thing to be done in a specified manner and by the prescribed authority, resort

cannot be had to other modes or means. The competent authority prescribed under SRO272 was the Tehsildar of the area and not the SDM. The

SDM was not even the appellate authority so far so the issuance of the certificate of resident of backward area was concerned. How the petitioner

succeeded in obtaining a certificate on 361982 when the advertisement notice inviting applications, was issued on 2451983, is itself intriguing

requiring a deep probe in the matter. No person can be allowed to choose the time and authority of his or her choice for the purposes of getting a

benefit meant for socially and educationally backward categories intended to be protected by the respondent State. If it is found that the Tehsildar

Besohli, was never on leave even for one day after 2451983, the petitioner may be justified in alleging that she could not be penalised for the fault

of the authorities of the respondentState. Bat in view of the specific averments made in the counteraffidavit that the Tehsiidar was all along available

during the period from 2451983 to 11101983, the petitioner cannot be allowed to rely upon the document issued by an authority not authorised

by law or the rules to issue such a certificate. The respondents have specifically stated that even in the year 1982 when the certificate is claimed to

have been issued in favour of the petitioner the duties of the Tehsildar were being performed by Naib Tehsildar In his absence. The petitioner has

not assigned any reason to justify as to why did she apply about a year in advance for the grant of certificate from the date of the issuance of the

notification inviting applications and what were the grounds upon which such certificate was issued in her favour. The averments made by the

petitioner are so ambiguous that this Court is not in a position to determine as to whether she was entitled to the grant of certificate or not under

SRO272 referred to here in above. It is true that this Court cannot substitute its opinion for the opinion of the competent authority, but in the

interest of the petitioner could have been in a position to ascertain the true position to avoid hardship to her if she was otherwise found entitled to

the grant of the certificate under SRO272 .

SRO272 in so far as the entitlement of a person to the grant of certificate of belonging to a backward area is concerned, provides:

Safeguards:

a) xx xx xx

b) A person claiming benefit on the grounds that he/she belongs to an identified x 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 that 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 inform claiming this

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

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

monthly income of his family does not exceed Rs. 600/.

Provided that benefit shall be limited for one generation only;

Provided further that no candidate can claim benefit under any category, except Scheduled Castes and Sports, if his father or the person on whom

he is dependent (if father is dead) has already received benefit under such category.

Under para 3 of the SRO272 the procedure is prescribed for filing an application for the grant of certificate in the form prescribed in the said

SRO. Under para 4 the Tehsildar has to grant the certificate or reject the application within a period of 15 days and any person aggrieved by the

order of rejection of the application, can prefer appeal to the Deputy Commissioner under para 5 of the aforesaid SRO. The petitioner in order to

claim the benefit of belonging to a backward area had to show that she or her father had resided in the area for a period not less than 15 years

prior to the claim of the benefit. She had also to establish that she or her father or her father or the person on whom she was dependent was

actually residing in such area where benefit is claimed. However, a candidate cannot be disentitled from claiming the benefit only on the ground that

her father or the person on whom she was dependent was living in a place which was not identified as a backward area on account of his

employment, business or otherwise professional or vocational reason provided the per capita, monthly income of his family did not exceed Rs.

It follows, therefore that ""the petitioner had to prove that she or her father had continuously been living in the area declared as backward for a

period of 15 years prior to the claim of benefit and if her father was not residing there on account of his employment, business or other vocational

reason, per capita income of his family did not exceed Rs. 600 per month.

The respondent authorities of the Revenue Department have not been in a position to produce the relevant file for perusal of the Court to

ascertain as to whether the petitioner could be considered entitled to the benefit of SRO272 even in the absence of the certificate issued by an

authority not competent to issue the same. The petitioner has also failed to place on record any document or proof to show that she was entitled to

the benefit of the aforesaid SRO. The irony is that the petitioner has not even alleged in her petition that she was entitled to the grant of certificate

under the aforesaid SRO.

From the record it appears that the petitioner was not the only candidate whose application form was rejected on the ground of certificate not

having been issued by the competent authority it appears that as many as 88 candidates had applied for consideration under the said category and

only 23 possessed the valid certificates who were considered and selected and rest of the 65 candidates including the petitioner, were held not

eligible for consideration on the ground of the certificate having not been issued by the competent authority. The petitioner cannot be discriminated

and conferred benefits ignoring the claims of other 64 candidates similarly situated and possessed of the certificates.

The respondents have also placed on record copy of the letter of Naib Tehsildar, Basohli issued under No. 282/N/P dated 3.2.1984,

addressed to the Secretary to Govt. Revenue Department wherein the position regarding the vacancy of the post of Tehsildar of Basohli, has been

specifically mentioned. It reads:

It is a fact that the post of Tehsildar Boshli remained vacant due to the retirement of Sh. Basant Singh, Tehsildar w.e.f. 151982 to 2571982.

During the said period Shri Mulkh Raj Sharma, Naib Tehsildar, Basohli, was holding the charge of Tebsildar, Basohli.

The post of Tehsildar Basohli is being manned by Shri. S.N. Gupta from 151983 to July, 1983. But during the vacant period no any person was

manned on the said post.

The petitioner has also not explained the circumstances, even in her rejoinder, prompting her to file an application for getting the certificate from the

SDM at a time when the notification inviting applications for admission to the MBBS course had not been issued. She has also not stated any

reason as to why did not she make any effort to get the certificate from the Tehsildar after the issuance of the advertisement notice particularly

when the Tehsildar was available and performing his duties in the area continuously thereafter. The petitioner has also failed to mention the basis of

her entitlement to the grant of the certificate in tier rejoinder Both the parties is the case have tried to take advantage of the procedural and

technical wrangles. It is established position of law that any person claiming the benefit under a specified category has to prove his or her case to

be covered by the benefit claimed. In the absence of the pleadings and the certificate issued by the competent authority this Court is not in a

position to uphold the plea of the petitioner that she actually belonged to the backward area and was entitled to the grant of certificate in terms of

SRO272 which was allegedly not granted to her by the competent authority on account of his being absent from duty or on leave.

The petitioner has, therefore, failed to prove her case for the issuance of any of the directions as prayed for by her. The writ petition, therefore,

merits dismissal.

I am conscience of the fact that dismissal of the writ petition would definitely adversely affect the interest of the petitioner who was granted

provisional admission and might have completed the course by now. However, the majesty of rule of law has to be protected and maintained at all

costs irrespective of extraneous considerations. It appears that in the instant case the contesting respondents had filed their counteraffidavit before

March 1984 but the petitioner did not take any further step for the service of respondents 5 to 24 and allowed the matter to prolong in the court

unnecessarily. The delay in the disposal of this case is attributable only to the petitioner. The mere fact that she was granted provisional admission

and has been appearing in the examination with the directions of the Court, would not confer any additional right upon her, if she otherwise has

failed to prove her case entitling admission to MBBS course under any of the reserved categories. The price of delay has to be paid by the

petitioner alone.

Under the circumstances the writ petition is dismissed and s provision all admission granted to the petitioner cancelled Consequent upon the

cancellation of the provisional admission, consequences shall follow and the respondents shall not be bound by any of the results of the petitioner

declared.

However, keeping in view the peculiar circumstances of case it would be appreciated if the respondentauthorities may courier the case of the

petitioner for regulation of her to the MBBS course by an administrative order upon proof of the that she belonged to a backward area and such

an the respondentauthorities or this court.

C.M.Ps No. 69/84,500, 3310 & 4198 of 1988 shall stand disposed of accordingly.