J&K Reservation Act 2004 | Social Caste Certificate Can Only Be Cancelled By Deputy Or Divisional Commissioner: High Court

A bench of Justice Wasim Sadiq Nargal has clarified that if any person is aggrieved by the issuance of an OSC certificate by the competent authority under section 16 of the Reservation Act, only the Deputy Commissioner or Divisional Commissioner can entertain an appeal and cancel the same if issued in violation of rules.

These observations were made while hearing a plea in which the petitioner had questioned an order passed by Additional Deputy Commissioner, Kulgam, whereby the OSC of the petitioner had been cancelled.

The petitioner had initially been declared as belonging to the weak and underprivileged class (Social Caste – Hajam) in 2006, with a certificate valid for five years. Upon renewal in 2013, the Additional Deputy Commissioner, Kulgam, cancelled the OSC Certificate in 2018, citing a violation of Rule 22(i) of the Reservation Rules, 2005.

The petitioner's counsel, Mr. Arif Sikandar Mir, contended that Rule 22(i) mandates two conditions—living with parents and dependence on parents—both of which are mutually exclusive. Emphasizing that the petitioner is not dependent on his parents, Mir argued that the rule was misapplied.

Furthermore, he asserted that the Additional Deputy Commissioner lacked the authority to cancel the certificate under Sections 17 or 18 of the Reservation Act, as no appeal or revision had been filed.

In response, the respondents claimed that the petitioner obtained the certificate fraudulently, providing false information about his father's income. They argued that the combined income of the petitioner and his father exceeded the prescribed limit of Rs. 4.50 lakhs, justifying the cancellation of the certificate under Rule 22(i).

Adjudicating upon the matter Justice Nargal pointed out that Rule 22(i) requires both conditions—living with parents and dependence on parents—to be satisfied and emphasized that the rule explicitly uses the word "and," making the conditions mutually exclusive.

The court clarified that if a person is employed or gainfully engaged, they cease to be dependent on their parents for the purpose of Reservation Rules and hence the income of the petitioner alone should have been considered.

“The Additional Deputy Commissioner Kulgam, however, on wrong interpretation of Rule 22(i) of the Reservation Rules 2005, has held that the annual income of both the petitioner and his father exceeds the ceiling limit of Rs.4.50 lacs, which comes out to be Rs.5,04,180/- and accordingly, has cancelled social caste certificate issued in favour of the petitioner vide impugned order, which thus cannot sustain the test of law, on this count only impugned order does not stand test of law”, the court recorded.

Deliberating on the other limb of the argument raised by the petitioner with regard to the lack of authority on the part of the Additional Deputy Commissioner to cancel the certificate, Justice Nargal observed that from the perusal of Sections 17 and 18 of the Reservation Act, it was amply clear that the Additional Deputy Commissioner lacked the jurisdiction to wield authority under these provisions to annul the "social caste certificate" awarded to the petitioner.

Observing that the Appellate Authority designated for such matters is the Deputy Commissioner within the district, who is also vested with the powers of revision under Section 18 the bench recorded,

“As such, 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”

Concluding that the Additional Deputy Commissioner misinterpreted Rule 22(i) and lacked the authority to cancel the certificate the Court quashed the impugned order.

Case Title: Hakeem Muzafar Khaliq Vs Inspector General, Crime Branch, Srinagar

Citation: 2023 LiveLaw (JKL) 301

Counsel For Petitioner: Mr. Arif Sikandar Mir, Advocate

Counsel For Respondent: Mr. Alla Ud Din Ganai, AAG Mr. Mubashir Majid Malik, Dy. AG

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