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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJEEV KUMAR, PUNEET GUPTA, JJ.
Abhishek Khajuria, S/o. Sh. Ram Paul Sharma - Appellant
Versus
The State of Jammu and Kashmir, Through its Commissioner/Secretary, Revenue Department & Ors. - Respondents
LPA No. 107 of 2019
Decided On : 16-09-2023
ALC Certificate - Jammu & Kashmir Reservation Act, 2004 - Section 2(o), Section 17, Section 18 - The court discussed the interpretation and application of the Jammu & Kashmir Reservation Act, 2004, particularly Section 2(o) and the provisos appended thereto, in relation to the issuance of ALC category certificate. The court highlighted the requirements for claiming the benefit of reservation and the conditions for exemption from income ceiling, emphasizing the need for the applicant to have lived and completed entire education in the ALC area or the nearest adjoining area. The court also addressed the jurisdiction and limitations for appeal and revision under Sections 17 and 18 of the Act, concluding that the Deputy Commissioner's order was within jurisdiction and not time-barred.
Fact of the Case:
The appellant, born in a village near the Actual Line of Control, sought renewal of his ALC category certificate, which was subsequently challenged by a competitor. The Deputy Commissioner cancelled the certificate, leading to the appellant's writ petition, which was dismissed by the Writ Court.
Finding of the Court:
The court found that the appellant did not meet the requirements for exemption from income ceiling and that the Deputy Commissioner's order was within jurisdiction and not time-barred. The court also noted that the appellant's father had obtained the renewal of the certificate by misrepresentation.
Issues: The issues included the interpretation and application of the Jammu & Kashmir Reservation Act, 2004, the jurisdiction and limitations for appeal and revision, and the equitable considerations for saving the appellant's selection and appointment.
Ratio Decidendi: The court emphasized the need for the applicant to have lived and completed entire education in the ALC area or the nearest adjoining area to claim exemption from income ceiling. The court also clarified the jurisdiction and limitations for appeal and revision under the Act.
Final Decision: The appeal was dismissed, upholding the cancellation of the ALC category certificate and emphasizing that equity did not favor the appellant due to the pendency of the litigation and the misrepresentation in obtaining the certificate.
Based on the provided legal document, here are the key points regarding the judgment in Abhishek Khajuria vs. The State of Jammu and Kashmir:
Case Overview and Parties * The case involves an intra-court appeal by Abhishek Khajuria (Appellant) against a judgment by the Writ Court which upheld the cancellation of his Actual Line of Control (ALC) category certificate. * The Appellant was born in a village near the Actual Line of Control (ALC) but shifted to Akhnoor township at age six due to border disturbances. * His ALC certificate was initially issued in 2008 and renewed in 2013, but it was cancelled by the Deputy Commissioner in 2018 upon a challenge by a competitor (Respondent No.7) who was next in the merit list. * The Writ Court dismissed the appellant's writ petition, and the High Court upheld this dismissal.
Key Legal Issues and Interpretation * Income Ceiling Exemption: The central issue was whether the Appellant could claim exemption from the income ceiling (Clause (ix) of Section 2(o)) under the proviso. The Court held that to claim exemption, an applicant must have lived and completed their entire school education in the ALC area or, if unavailable, the nearest adjoining area. * Definition of "Nearest Adjoining Area": The Court ruled that "nearest adjoining area" refers to the area closest to the identified ALC zone (village Samwan), not the town where the family migrated to (Akhnoor). The nearest adjoining area was identified as village Kaleeth, not Akhnoor. * Statutory Requirements: To claim ALC category benefits, a person must establish: 1. Residence in an area identified near the Line of Actual Control. 2. Residence in that area for at least 15 years prior to application. 3. Actual residence in that area on the date of application. 4. That the income ceiling does not apply because the person lived and completed education in the ALC area or the nearest adjoining area. * Jurisdiction and Limitation: The Court clarified that while appeals under Section 17 have a 90-day limitation, revisions under Section 18 have no prescribed limitation period. The Deputy Commissioner acted under revisional jurisdiction (Section 18) when entertaining the competitor's challenge, which was filed after the appellant's selection was finalized, making the order valid and not time-barred.
Findings of Fact * The Appellant lived in the ALC area only until age six; his entire school education was completed in Akhnoor. * The income of the Appellant's family exceeded the prescribed ceiling, and he failed to meet the educational residency requirements to waive this ceiling. * The renewal of the certificate in 2013 was obtained by the Appellant's father through misrepresentation, as he failed to disclose the family's income exceeding the limit.
Equitable Considerations and Final Decision * The Court refused to exercise equitable jurisdiction to save the Appellant's appointment. * Reasons for rejection of equity: * The certificate was obtained via misrepresentation by the father. * The Appellant had not yet been posted to any department due to the pendency of the litigation and the subsequent cancellation of his certificate. * Respondent No.7 (the competitor) had a valid certificate and was deprived of her right to appointment due to the invalid certificate of the Appellant. * Equity did not tilt in favor of the Appellant given the pendency of the case and the fact that the irregularity was attributable to the applicant's side (misrepresentation).
Final Outcome * The appeal was dismissed. * The cancellation of the ALC category certificate was upheld. *
JUDGMENT :
Sanjeev Kumar, J.
1. This intra-court appeal by the appellant-Abhishek Khajuria is directed against the judgment and order dated 03.05.2019 passed by a learned Single Judge ["the Writ Court"] in SWP No.679/2018 titled Abhishek Khajuria v. State of J&K and others, whereby the Writ Court has upheld the order of the Deputy Commissioner, Jammu dated 17.02.2018 and dismissed the writ petition of the appellant.
2. Before we turn to consider the grounds of challenge urged by the learned counsel for the appellant to assail the impugned judgment, we deem it appropriate to give brief resume of factual antecedents leading up to the filing of this appeal.
3. The appellant was born in the year 1993 in village Samwan Pallanwala Tehsil Khour District Jammu, an area adjoining to the Actual Line of Control (ALC). In the year 1999, due to disturbance on the border, the appellant, who was six years old, was forced to shift and take temporary residence along with his parents in the township of Akhnoor. It is where the appellant was brought up and received education. At the time of shifting from Samwan to Akhnoor, both the parents of the appellant were serving in the School Education Department and were posted in Akhnoor only.
4. On an application filed by the appellant for grant of certificate of being a member of Socially and Educationally Backward Class (Resident of area adjoining Line of Actual Control), the Tehsildar, Akhnoor issued requisite category certificate in favour of the appellant, which was delivered to him by the Tehsildar concerned under his hand and seal on 23rd September, 2008. The certificate issued was to remain valid for a period of five years from the date of issue thereof.
5. Admittedly, the category certificate issued in favour of the appellant was not assailed by anybody and it remained in operation for prescribed period of five years. However, on the expiry of the period of validity of the category certificate issued in favour of the appellant on 23rd September, 2013, an application was moved by the appellant for renewal thereof under Rules. The Competent Authority considered the application and renewed the ALC certificate issued in favour of the appellant for a further period of five years on 23rd September, 2013.
6. It seems and is substantiated by the material on record, the appellant as well as respondent No.7 along with other candidates belonging to ALC category responded to an advertisement notification issued by the J&K Services Selection Board for filling up the post of Accounts Assistants. In the selection process conducted by the J&K SSB, the name of the appellant figured in the waitlist ahead of respondent No.7 in the category of ALC. This, as is contended by the appellant, made respondent No.7 to rake up the controversy with regard to validity of ALC certificate issued in favour of the appellant in the year 2008 and renewed in the year 2013. Respondent No.7 moved the office of Deputy Commissioner, Jammu by filing a petition styled as "Appeal/Revision" to seek quashment of the ALC certificate issued in favour of the appellant.
7. On being put on notice by the Deputy Commissioner, the appellant contested the application by filing his objections. The Deputy Commissioner considered the entire issue in the light of relevant record and the rival contentions of both the sides and came to the conclusion that the certificate of ALC category issued in favour of the appellant in the year 2008 and renewed in the year 2013 by the Tehsildar, Akhnoor was contrary to and in violation of Jammu & Kashmir Reservation Act, 2004 ["the Act of 2004"] and the J&K Reservation Rules, 2005 framed thereuder. Accordingly, vide his order dated 17.02.2018, the Deputy Commissioner, Jammu cancelled the certificate of ALC category issued in favour of the appellant.
8. Aggrieved, the appellant filed SWP No.679/2018, which, upon completion of pleadings, was taken up by the Writ Court for consideration and disposal. Vide judgment dated 03.05.2
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