Vineet Sharma vs State of J&K and Others

Challenge is made to a certificate granted in favour of the respondent no. 5. By this certificate respondent no. 5 has been declared to be resident

of an area described as area falling under the Actual Line of Control. This certificate enables its holder to certain benefits. Respondent no. 5 got

admission in the discipline of MBBS. The petitioner appears to have been deprived of this benefit. The question qua validity of the certificate was

examined by the Deputy Commissioner, Poonch. This was done in the exercise of power conferred upon him under Rule 32 of the J and K

Reservation Rules of 1994 popularly known as SRO 126 of 1994. These Rules were issued on 28.3.1994. The certificate in question is regulated

by Rule 29(2)(c). For facility of reference this is being reproduced below:

A person claiming the benefit on the grounds that he/ she belongs to an unidentified backward area or an area near the Line of Actual Control

must establish that he/she has resided in the area for a period of not less than 15 years prior to the date of application and is actually residing in the

said area. However, a person shall not be disentitled from claiming this benefit only on the ground that his/ her 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 reasons"".

The learned counsel appearing for the petitioner submits that the benefit of this Rule could be given only to that person who had resided in the

area for a period of not less than 15 years prior to the date of application. He submits that the benefit given to respondent no. 5 on the ground that

her parents were in service and therefore her case is covered by the last paragraph of the Rule referred to above is a conclusion which is not

justified. 3. The evidence which has come on the record and which was appreciated by the Deputy Commissioner, Poonch is as under:

(i) Voter list of Bakshi Nagar in the city of Jammu indicating enrolment of the petitioner in the electoral roll alongwith his father grand father and

other family members.

ii) Spot enquiry conducted by the Deputy Commissioner Poonch in which he arrived at following conclusions, (a) That the grandfather of

respondent no. 5 is having a shop in Golad Mendhar where he was working as' a gold smith and was infact working.

b) Grand father owns a house in this area.

c) The ration card and the ""mal shumari"" i.e. census operation indicates the prseence of respondent no. 5 and her father at the place in question.

d) The Deputy Commissioner as a revisional authority also recorded the statements of Numberdar, Chowkidar and other citizens. These were to

the effect that the father of the respondent no. 5 is a Government employee and has been away from the place which falls within the Line of Actual

Control. On account of this factor they had to move from place to place.

e) ""Misal Haqiat"" of 196162 was also perused. It was found that the family was allotted land as refugees in village Dharana Mendhar and

thereafter, they have shifted to Golad Mendhar.

After taking note of these factors, it was found that respondent no. 5 is entitled to the certificate in question. The fact that the name of

respondent no. 5 was included in the ration card of grand father was taken note of. The fact that the parents of the applicant were in Government

service and were not in a position to reside in that area on account of the fact that they were government servants and as such had to move from

place to place was also given due regard. Taking note of the evidence noted above, the revisional authority has come to the conclusion that

respondent no. 5 was rightly granted the certificate. This conclusion is being challenged on the ground that the respondent no. 5 had all along

stayed at Jammu. This would disable the respondent no. 5 of the certificate. It is also urged that if the background which led to issuance of Rule is

taken into consideration even then respondent no. 5 is not entitled to the benefit of the certificate. For this the recommendation made by the

committee which stands reproduced in para 11 of the writ petition is adverted to. These are as under:

7.07 (b) A person claiming benefit on the ground that he belongs to a backward area must establish that he or his father continuously resided in

the area for a period of not less than 15 years prior to claiming the benefit. He must further establish that he has suffered because of the disabilities

attached to that area. At the time when the benefit is claimed, he must also establish that he is actually residing in that area"".

It is further submitted that last paragraph of Rule 29 would apply to the person who is in service and not to his/her ward.

After having heard learned counsel for the parties I am of the opinion that the certificate issued in favour of the respondent no. 5 cannot be

faulted.

Rule 29 merely makes a provision that in order to qualify for a certificate it has to be established that a person has resided in the area for a

period of not less than 15 years prior to the date of application. This Rule does not make mention of the fact that stay has to be continuous and

uninterrupted. The evidence in the shape of ration card and other material which has been noticed above does indicate that respondent no. 5 at

some point of time did reside with her grandfather. No adverse inference can be drawn from the voter list. This is because respondent no. 5 was

less than 18 years of age at the time of the alleged entry and the question of her being enrolled in the electoral roll would be of no consequence.

Again the meaning which is sought to be put on the last paragraph of Rule 29(2)(c) i.e. the benefit of certificate of resident of Actual Line of

Control can be given only to a Government servant who is on the move and not to his/ her ward is an interpretation which is not spelt out from the

plain reading of Rule 29. To some extent the view expressed by this court in the case reported as Nahar Singh vs. Manohar Kumar and Others.

AIR 1993 J and K 69 supports the case of respondent no. 5 Paragraph 4 of the judgement is relevant. Therein it has been held as under:

It does no appear that the said SRO was intended to give relief to such students who were educationally backward on account of the

nonavailability of the facilities available to the students living in urban areas"". It was further held

In view of the fact that the parents of the petitioners belong to an area which has admittedly been declared as a backward area and their

permanently residing out of the area on account of their Government service particularly when their income is admittedly within the ceiling

prescribed no option is left to the authorities but to grant certificate as demanded"". 8. In this situation, it is held that the certificate issued in favour of

respondent no. 5 was validly issued. Thus, there is no merit in this petition which is dismissed.