Ufaira Rashid vs State of J. and K. and Another

N.A. Kakru, J.—Admit. Heard the LC for the parties. Respondent No. 2 had declined to issue the certificate under SRO 126 of 1994 in

favour of the petitioner on the ground that the family of the petitioner had ceased to be resident of Gogji Pathri and the Tehsildar had also come to

a conclusion that the family resides at Batamaloo, Srinagar.

The petitioner challenged the order of respondent No. 2 before the Deputy Commissioner (DC), who is an appellate authority prescribed under

SRO 126, the appeal of the petitioner came to be allowed and respondent No. 2 was placed under direction to issue a backward area certificate

in favour of the petitioner after consideration of the case. Respondent No. 2 did not issue the certificate despite directions from the DC (Deputy

Commissioner). Consequently, the petitioner filed a writ petition bearing No. 126/97. In compliance to the directions of the Court respondent No.

2 filed objections before the Court through Mr. R, A. Khan, Ld. GA and in the objections it has been specifically pleaded that the Deputy

Commissioner's order required him to issue the certificate after consideration of the case, therefore, the matter required an enquiry afresh,

accordingly enquiry was initiated for issuance of the certificate and such enquiry revealed that the petitioner's mother is a teacher and her father is

also a government employee and their annual income is Rs. 1,43,064.00 and respondent No. 2 came to a conclusion on the above reasons that the

petitioner does not fall within the category of socially and educationally backward classes which resulted in rejection of the application.

LC for the petitioner has contended that respondent No. 2 has no opinion but to issue the certificate because he has been directed to dp so by

the Appellate authority (DC). It is also con-, tended at the bar that respondent No. 2 has issued a certificate in favour of one Miss Shugufta, who

is daughter of Mr. Abdul Rahim Rather, aCabinet Minister, therefore, the petitioner is also entitled to be treated alike.

The order of DC assumes significance and the issue involved needs the examination as to whether the respondent No. 2 was bound to issue the

certificate without enquiry afresh. Without dilating upon the submission in depth, it is relevant to mention that the DC directed the Tehsildar to issue

the certificate after consideration of the, case. The direction of the DC to respondent No. 2. is unambiguous and casts an obligation on re-,

spondent No. 2 to consider the matter and consideration is only possible in accordance with the, rules. The respondent No. 2 has stated in his,

objections which are supported by an affidavit that the case was examined, but questions entitlement of the petitioner, he has also produced an

order which has been passed by him on 9-10-1997 and examination of the said order leaves no room for the Court to doubt the statement of

respondent (2). Examining the matter on the strength of. averments made in the reply coupled with the contents of the order dated 9-10-1997

passed by respondent No. 2, I hold that respondent No. 2 has in no respect violated the order of appellate authority, conversly, the order of the

appellate au-thority (DC) has been adhered to by respondent No. 2, therefore, petitioner's ground of challenge is not sustainable.

This brings me to the plea of discrimination taken by the LC for the petitioner, who has contended that a certificate has been issued in favour of

one Miss Shugufta, daughter of a Cabinet Minister. It is relevant to notice here that similarly circumstanced persons are no doubt to be treated

alike but subject to availability of enforceable right, a relief granted to a person in contravention to law does not create an enforceable right in

favour of similarly situated persons and no equality can be claimed in respect of a wrong action of the State because concept of equality is positive

and not negative and suffice to say that the relief on the basis of wrong omissions and commissions under Article 14 is neither available nor can it

be claimed by a citizen. Here it requires a mention that reference to the daughter of a minister has been made to tempt the Court to display

indulgence. Mr. R. A. Khan, Ld. GA has contested this . contention on two-fold grounds, one that no specific plea has been taken in the writ

petition and another that the contention is unfounded upon facts and as per the information collected by him, it is a fact that Miss Shugufta was

granted a certificate but when the certificate was issued, her father was neither a sitting MLA nor was he a minister, therefore, this contention of the

LC for the petitioner is denied. It also requires to be noticed that the petitioner has"" not pleaded anything against the minister and if the petitioner

would have indicated him, in such eventuality, it would have necessitated his impleadment and without a specific averment in the writ petition such

passing reference does not call for consideration. Failure on the part of the petitioner to take a specific plea goes to show that the assertion is

without any basis, moreso, the statement made by Mr. R. A. Khan, Ld. GA sufficiently rebutts the allegation. Thus imputation against the minister

pressed into service is held untenable and the petitioner is not entitled to any relief on such assertion.

Mr. R. A. Khan has also contended that the petitioner had filed an affidavit before the Tehsildar in which she has suppressed the fact of her

mother' s employment and has also gone to say that she is simply a house wife, whereas, according to Mr. R. A. Khan, Ld. GA. She is a teacher

in Govt. Girls High School, R. N. Mandir, Srinagar and draws a sum of Rs. 5787/- per month and in view of misstatement of the fact according to

Mr. R. A. Khan, the petitioner is not entitled to the certificate. I do not want to express my opinion in this respect because I am going to leave this

area open for the authorities concerned to dwell upon.

In essence, through the medium of this writ petition, petitioner seeks implementation of the order of Deputy Commissioner (DC). I say so

because the main plank of the petitioner in the petition is the finding returned by the DC. The judgment of the appellate authority (DC) undoubtedly

has an effect of returning a finding in respect of genuineness of the petitioner's claim for certificate, but what requires to be borne in mind is that the

DC has dealt with the issue of change of residence only but entitlement or otherwise on the ground of income was not considered by the DC and

the fact remains that the order of DC requires the respondent No. 2 to look into the matter and respondent No. 2 has accordingly considered and

returned a finding against the petitioner, but perusal of the order does not satisfy, me that the petitioner was heard and she does; deserve alright of

opportunity on that count.

The LC for the petitioner has also canvassed that the income of the petitioner's mother cannot fall within the ambit of Ist. Proviso of rule (30) of

SRO 126. To appreciate this argument, it is relevant to notice that a cursory glance at Rule (37) of the statute envisages interpretation for carrying

into effect the provisions of the rules and if a plea is taken before the respondent No. 2, it can be dealt with in accordance with the rules.

It is apt to mention here that the petitioner has sought indulgence of the Court on the strength of verdict of appellate authority and according to

the argument of the LC for the petitioner, respondent No. 2 has failed to comply with the said order. Scope and ambit of the order has been

discussed by me hereinabove and I am of the opinion that the direction of the appellate authority does not relieve the respondent No. 2 of his

obligation to examine the case on the touchstone of provisions of SRO 126 of 1994, fact remains that the order of appellate authority obligates the

respondent No. 2 to consider the issue in accordance with the rules and a perusal of the order of the appellate authority can be termed by no

stretch of imagination to be a directive for issuance of the certificate without adhering to the rules and with-out conducting an enquiry, obviously,

contention of the LC for the petitioner is misconceived.

For the aforementioned reasons, I direct as under :--

(a) Reliefs prayed for in the writ petition are refused, however, in the interest of justice the respondent No. 2 is directed to grant a reasonable

opportunity of hearing to the petitioner in support of her plea regarding the income and shall pass appropriate orders, provided the petitioner opts

for a stand contrary to the conclusion the respondent No. 2 has arrived at and in order to avail of benefit of this direction, it shall be obligatory

upon the petitioner to appear before respondent No. 2 on 20-7-1998 along with, a copy of this Order, be it in person or through an authorised

attorney, failure on the part of petitioner to cause appearance as directed shall leave the respondent No. 2 free to pass the orders as warranted

under law.

(b) No Order as to Costs.