For social caste certificate under J&K Reservation Act, parent’s income excludes: HC

Srinagar, Nov 28: The High Court of J&K and Ladakh on Wednesday set aside an order by Additional Deputy Commissioner (ADC), Kulgam, whereby he had cancelled Social Caste Certificate issued in 2006 to a man from south Kashmir’s Kulgam , Hakeem Muzafar Khaliq.

A bench of Justice Wasim Sadiq Nargal also quashed inquiry the crime branch had carried out against Hakeem in response to a complaint filed by a person Muzafar Gul Wagay (private respondent).
Hakeem was declared to fall under the week and underprivileged class (Social Caste – Hajam) in the year 2006. Accordingly, a certificate was issued by the competent authority on 18.8.2006 that he belonged to a social caste group, “Hajam” and the same was declared as valid for five years.

On expiry of the certificate, Hakeem applied for the renewal of the same and the competent authority renewed the certificate for further five years with effect from 05.04.2013.
On 02.11.2018, the ADC Kulgam, cancelled the certificate on the ground that the same was issued in contravention of Rule 22 (i) of SRO-294 dated 21.10.2005 also known as Reservation Rules 2005.

The ADC in his order held that Hakeem was drawing a monthly salary of Rs. 22540, which accounted for his annual income of Rs. 2,70,480 besides his father’s pension of Rs. 19,475 per month, which amounted to annual income of Rs. 2,33,700. Accordingly, the ADC held that the total income of both the son and his father was Rs. 504180 which exceeded sealing limit of Rs. 4.50 lakh for grant of social caste certificate.

The ADC cancelled the certificate on the ground that as per Rule 22 (i) of Jammu and Kashmir Reservation Rules, 2005 (SRO-294) the income of both the Hakeem and his father had to be taken into count for the purpose of sealing limit of Rs. 4.50 lakh.

“ I am of the considered opinion that the Rule 22 is apparently clear that a son or a daughter on being employed or gainfully engaged, ceases to be dependent upon his/her father as the case may be. Thus, for the purpose of Reservation Rules, the salary or income derived from the petitioner’s employment has to be taken into count and not the income of his father,” Justice Nargal said in his decision.

“On the plain reading of the Rule 22 (i), it is crystal clear that two conditions have to be satisfied before the said rule could have been invoked by the Additional Deputy Commissioner, Kulgam. First condition is petitioner should be living with his parents. And, second condition is petitioner should be dependent upon his parents”.

Underscoring that amount of four lakh fifty thousand has been substituted by amount of rupees eight lakhs, the court however said: “When the petitioner was granted the social caste certificate the ceiling limit for grant of social caste certificate was Rs four lakh fifty thousand”.

With regard to the argument that no appeal or revision had been preferred by the aggrieved person against the issuance of social caste certificate which was granted to the petitioner initially on 18.08.2006 and thereafter renewed on 30.03.2013, the court said: “Section 17 of the Reservation Act provides that if any person is aggrieved of the issuance of social caste certificate by the competent authority under section 16, then he may within a period of 90 days prefer an appeal to Deputy Commissioner or Divisional Commissioner as the case may be”

“Thus, from a bare perusal of the aforesaid statutory provisions, it can safely be concluded that Additional Deputy Commissioner could not have exercised the power under Section 17 or Section 18 by cancelling the social caste certificate granted to the petitioner as the Appellate Authority is the Deputy Commissioner in the district and Appellate Authority has also been given powers of revision under Section 18”.

As such, the court said, the Additional Deputy Commissioner had no competence or authority to act under Section 17 or Section 18 of the Reservation Act, 2005 and cancel the social caste certificate of the petitioner.

Observing that the Private Respondent ( Wagay) had neither filed an appeal nor revision before Deputy Commissioner Anantnag, the court held that he had filed a complaint before Additional Deputy Commissioner, who without any competence decided it. “On this count also the impugned order does not sustain the test of law”, the court said and allowed two petitions Hakeem had filed through advocate Arif Sikandar Mir.