Irfan Ahmad Khan Gujjar vs State of J&K

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 132

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Sanjeev Kumar, J.
Irfan Ahmad Khan Gujjar - Petitioner
Versus
State of J&K and Ors. - Respondents
SWP No.546/2019, WP(C) No.815/2019, Caveat No.2641/2018 c/w CCP(S) No.163/2019, CCP(S) No.233/2021, OWP No.289/2019, CCP(S) 531/2019, OWP No.567/2019, OWP No.1658/2018, WP(C) 1695/2019, SWP No.2307/2018
Decided On : 20-04-2022

Advocates Appeared:
For the Petitioner:Mr. A.H. Naik, Sr. Advocate with Mr. Zia Shah, Advocate.
For the Respondent:Mr. M.A. Chashoo, AAG, Mr. Altaf Haqani, Sr. Advocate with Mr. Shakir Haqani, Advocate, Ms. Asifa Padroo, AAG.

Headnote:
Jammu and Kashmir Reservation Act, 2004-Section 18-Constitution of India-Article 342-President, while exercising his power under Clause (1) of Article 342, and specifying tribes or tribal communities, may also specify parts of, or groups within, such tribes or tribal communities for declaring them as Scheduled Tribes in relation to a State or Union Territory for the purposes of Constitution-Scheduled Tribe Order must be read as it is and it is not even permissible to say that a tribe or tribal community, sub-tribe, part of, or a group of any tribe or tribal community is synonymous to one mentioned in Scheduled Tribe Order if they are not so specifically mentioned in it. Once Competent Authority issues a certificate in favour of a person certifying him to be a member of Scheduled Tribe Community, there shall be presumption that certificate has been issued after following procedure laid down in the Act and Rules of 2005-Unless such certificate is challenged by aggrieved person by filing an appeal before Appellate Authority, same shall be presumed to be valid, complaints by busy bodies or bad competitors, notwithstanding-However, nothing prevents Competent Authority to suo motu or on an application made to it, call for records of proceedings taken, or orders made, by any Competent Authority for the purposes of satisfying itself as to legality or propriety of such proceedings or orders and may pass such orders in reference thereto as it deems fit. (Para 22, 25)
Result-Writ Petitions disposed of with observations.

JUDGMENT :

Sanjeev Kumar, J.

SWP No.546/2019

1. In this petition, the petitioner is a candidate selected as Sub Inspector (Executive) in Jammu and Kashmir Police pursuant to the selection made vide PHQ Notification No. PERS-A-400/2016/75303-403 dated 30th December 2016, under the reserved category of Scheduled Tribe (ST). It is the grievance of the petitioner that despite there being a valid Category Certificate of ST issued by the competent Authority in his favour, he has not been appointed pending authenticity report of petitioner’s Category Certificate from the competent Authority. He has, therefore, sought a direction to the respondents to issue authenticity report of the Category Certificate of the petitioner so that he is in a position to join as Sub inspector (Executive) in Jammu and Kashmir Police.

2. The stand of the official respondents in their objections is that pursuant to a complaint with regard to the genuineness of the Category Certificate of some candidates including the petitioner, an enquiry was conducted by the Addl. District Magistrate (ADM), Bijbehara, and on the basis of recommendations of the Sub Divisional Magistraate (SDM), the Deputy Commissioner, Anantnag, vide his Communication dated 8th May, 2019, cancelled the ST Category Certificate issued in favour of the petitioner and it is because of this reason, formal order of appointment in favour of the petitioner was not issued by the Appointing Authority.

3. Form perusal of the order sheet, it transpires that pursuant to the interim Orders passed on 15thMarch 2019, and 27thSeptember 2019, the petitioner has been appointed as Sub Inspector (Executive) in Jammu and Kashmir Police.

WP(C) No. 1695/2019

4. In this petition, the petitioner in SWP No. 546/2019 along with six others, has called in question Order No. 104 of 2019 dated 6thMay 2019, passed by the Deputy Commissioner, Anantnag, whereby the ST Category Certificates issued in favour of the petitioners by the Tehsildar Bijbehara, have been cancelled. Besides challenging the impugned order on merits, the petitioners have also assailed the impugned order on the ground that the same has been passed by the Deputy Commissioner, Anantnag, without providing the petitioners any opportunity of being heard. This Court, vide Order dated 23rd May 2019, while issuing notice to the respondents to file objections, has also directed the Deputy Commissioner, Anantnag, not to act upon the impugned order. This petition is contested by the respondents, inter alia, on the ground that the petitioners do not belong to the Tribe “Gujjar” identified by the President of India as Scheduled Tribe for the purpose of reservation and, therefore, the Category Certificates have been obtained by misrepresentation. It is also the stand of the official respondents that the procedure for grant of ST Category Certificate envisaged under the Jammu and Kashmir Reservation Act, 2004 (“the Act of 2004”) and the Rules framed thereunder is also not followed by the Competent Authority before issuing such certificates.

5. Mr. A. Haqani, learned senior Advocate, has intervened in the matter on behalf of Gujjar and Bakerwal Community and has opposed the grant of ST Category Certificate to the petitioners on the ground that they do not belong to the Gujjar Tribe and the Sub-Caste, to which, the petitioners belong, is not covered by the Presidential Notification.

WP(C) No. 1658/2018

6. Seven petitioners, who are real brothers and are also the petitioners in WP(C) No. 1695/2019 have filed this petition calling in question Order dated 14thAugust 2018, passed by the Tehsildar Bijbehara, keeping the ST Category Certificates issued in their favour in abeyance. The impugned order dated 14th August 2018, has merged with order of cancellation passed by the Deputy Commissioner, Anantnag, which is subject matter of challenge in WP(C) No. 1695/2019. This petition has, thus, virtually been rendered infructuous.

SWP No. 2307/2018

7. This is a petition by six cand