IMPORTANT POINT : If father of a person because of his employment moves out of backward area and carries with him his son/daughter and establishes a temporary residence outside backward area without giving up his residence in backward area, such son or daughter would not be disentitled from claiming a resident of backward area.

Judgement :

The petitioner has challenged FIR No. 16/2015 for offence under Section 5(2) of the J&K Prevention of Corruption Act, 2006 (for short ‘the Act of 2006’) registered with Police Station, Vigilance Organization, Jammu (Now, ACB Jammu).

2. As per the impugned FIR, a verification, on the basis of a complaint against the officers/officials of J&K PSC regarding the concealment of facts and inclusion of fake RBA/OSC/ALC certificates by most of the selected KAS candidates, was conducted by the Vigilance Organization, Jammu. During the said verification, it was revealed that RBA certificate in favour of the petitioner has been issued in violation of the provisions of J&K Reservation Act 2004 (for short “the Act of 2004”), inasmuch as, the annual income of father of the petitioner exceeded the prescribed ceiling limit and that the petitioner had not completed her entire school education from the local area. It was found that the aforesaid facts are reflected in the report of the concerned Patwari, but in spite of this, the then Tehsildar Banihal Sh. Jitender Mishra issued RBA certificate in favour of the petitioner in contravention of the provisions contained in the Act of 2004. It was also revealed that the petitioner has, on the basis of aforesaid RBA certificate, got selected in KAS 2001 batch thereby depriving deserving candidates of their right. As per the aforesaid verification, offence under Section 5(2) of the Act of 2006 stands disclosed against the then Tehsildar Banihal Sh. Jitender Mishra and others.

3. The petitioner has laid challenged to the impugned FIR by contending that she was a law graduate and after, completing her Degree in Law, she got herself enrolled as an Advocate in terms of Notification No. 622 dated 11.02.2009 issued by the High Court of Jammu and Kashmir. It is further averred that the petitioner started her practice as an Advocate in the office of Sh. Ved Raj Wazir Advocate and was getting independent salary of Rs.2500 per month. It is averred that the moment the petitioner joined the profession as an Advocate, she ceased to be dependent upon her father for the purpose of the Act of 2004 and the Rules framed thereunder. It is contended that, though the annual income of her father exceeded the ceiling limit prescribed under Section 2(o) of the Act of 2004, yet, for the purpose of issuance of RBA certificate in favour of the petitioner, it is only her income which was to be taken into account and not that of his father, as the petitioner, at the relevant time, was gainfully employed. On this ground, it is urged that the then Tehsildar concerned, while issuing the RBA certificate in favour of the petitioner, has not violated any statute or rule. It is further submitted that the petitioner has not suppressed any facts from the relevant authorities, nor has she obtained the certificate by any deceitful means. Thus, it cannot be stated that then Tehsildar concerned, while issuing the RBA certificate in her favour, has misused or abused his official position.

4. The petition has been resisted by the respondents by filing reply thereto. In their reply, the respondent-Vigilance Organization, Jammu, has, besides narrating the allegations made in the impugned FIR, contended that the verification conducted by the Vigilance Organization has established that RBA certificate issued in favour of petitioner is in violation of norms and the rules and that the same has been issued by the then Tehsildar Banihal by abusing his official position. It has been contended that the petitioner has not received her education from the local area concerned and that the income of her father exceeded the prescribed limit, as such, she was not entitled to grant of RBA certificate. It has been submitted that the respondent-Vigilance Organization has statutory power to undertake investigating of the case once FIR has been registered and the question, whether the then Tehsildar concerned has abused his official position, while issui