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Tuesday, June 30, 2015

refusing to recognize the petitioner as the son of Police Martyr Late Shankar Jee and to grant Police Martyr Children Certificate to the petitioner as illegal, arbitrary and direct the respondents 3 and 4 to issue Police Martyr Children Certificate to the petitioner being son of late Mangalagiri Shankar Jee and further direct the 1st respondent to consider the petitioner in quota reserved for Police Martyr Children for the admission into 1st year MBBS Course for the academic year 2015-16.= i) Setting aside the Memo bearing C.No.5778/A7/2013 dated 28.01.2014 issued by the fourth respondent herein. ii) Directing the respondents to issue Police Martyr Certificate in favour of the petitioner herein to claim admission in terms of G.O.Ms.No.106, Health, Medical & Family Welfare (E1) Department dated 16.07.2013. iii) Since the verification of certificates is commencing shortly the respondents are directed to permit the petitioner to participate in the process of certificate verification and for allotment of seat in MBBS with an undertaking that the petitioner will produce the Police Martyr Certificate after receipt of the same from the competent authority.

HONBLE SRI JUSTICE A.V.SESHA SAI      

WRIT PETITION No.6302 of 2015  

17-06-2015

Mangalagiri Sairam...Petitioner

The Jawaharlal Nehru Technology University,Represented by its Registrar
(Convener, EAMCET-2015),Hyderabad, Telangana State and others. ...Respondents  

Counsel for Petitioner: Sri Kiran Palakurthi

Counsel for Respondents: G.P. for Home (TG)

<GIST:

>HEAD NOTE:  

? Cases referred
1.AIR 2000 SC 735 (1)
2.(2011) 11 SCC 1

THE HONOURABLE SRI JUSTICE A.V.SESHA SAI        

WRIT PETITION No.16378 of 2015  

O R D E R:
      This writ petition is filed under Article 226 of the Constitution of
India for the following relief:
       To issue a writ, order or direction more particularly one in
the nature of writ of Mandamus -declaring the memo No. C No. 5778
/A7/2013 dt. 28.1.2014 issued by 4th respondent in refusing to
recognize the petitioner as the son of Police Martyr Late Shankar Jee
and to grant Police Martyr Children Certificate to the petitioner as
illegal, arbitrary and direct the respondents 3 and 4 to issue Police
Martyr Children Certificate to the petitioner being son of late
Mangalagiri Shankar Jee and further direct the 1st respondent to
consider the petitioner in quota reserved for Police Martyr Children
for the admission into 1st year MBBS Course for the academic year
2015-16.
2.      Heard Sri Kiran Palakurthi, learned counsel for the petitioner and
the learned Government Pleader for the official respondents apart from
perusing the material available on record.
3.      The deponent of the writ affidavit, who is the mother and natural
guardian of the petitioner herein, states that she is the second wife of one
late Mangalagiri Shankar Jee, who lost his life due to extremists attack on
the intervening night of 26/27.08.2002 while discharging his duties as
police constable at Chitriyala Jathara.  It is further stated that out of their
wedlock they begot the petitioner on 17.11.1997.  Petitioner made an
application to the Superintendent of Police, Nalgonda, Nalgonda
District/fourth respondent herein for issuance of Police Martyrs Children
Certificate to claim the benefits under G.O.Ms.No.106, Health, Medical &
Family Welfare (E1) Department dated 16.07.2013. By way of Memo  
C.No.5778/A7/2013 dated 28.01.2014, the fourth respondent refused to
issue the said certificate.  Assailing the same, petitioner filed
W.P.No.16445/2014 and according to the petitioner with a fond hope that
the fourth respondent herein would consider his claim, the said writ
petition was withdrawn.  Subsequently, the deponent in the present writ
petition made a representation to the fourth respondent requesting for
reconsideration on 06.06.2014 and as per the petitioner herein the same
proved to be futile.
4.      Pleading in the manner indicated supra, the present writ petition
has been instituted.
5.      When the matter is called today, written instructions furnished by
the Superintendent of Police, Nalgonda, Nalgonda District/fourth
respondent herein addressed to the office of the learned Government
Pleader have been placed on record by the learned Government Pleader
wherein it is stated that the petitioner submitted a petition to the then
Superintendent of Police, Nalgonda, Nalgonda District on 12.11.2013 for
issuance of  Police Martyrs Children Certificate to get admission into
MBBS/Medicine under the provisions of G.O.Ms.No.106 dated 16.02.2013  
and the Superintendent of Police, Nalgonda, Nalgonda District endorsed
and issued instructions to the Inspector of Police, Special Branch  to
enquire into the matter and submit a report, who in turn submitted a
report to the Superintendent of Police/fourth respondent herein vide
C.No.153/SB-NGA/2013 dated 28.12.2013.  Evidently, basing on the said
report, the fourth respondent herein rejected the claim of the petitioner.
Along with the instructions, the said report is also filed.
6.      It is contended by the learned Government Pleader that the
impugned action of refusing to issue Police Martyrs Children Certificate to
the petitioner herein is highly illegal, arbitrary, unreasonable and violative
of Article 14 of the Constitution of India and the said action deprives the
seat to the petitioner herein in medicine.  It is also submitted that the
impugned action is opposed to Section 16 of the Hindu Succession Act,
1956 and the voluminous material available on record clearly shows that
the petitioner is the son of late Shankarlal Jee and the deponent herein.
In support of his submissions and contentions, the learned counsel for the
petitioner places reliance on the judgments of the Honble Apex Court in
KAMESHWARI DEVI v. STATE OF BIHAR AND OTHERS   and          
REVANASIDDAPPA AND ANOTHER v. MALLIKARJUN AND            
OTHERS .
7.      On the contrary, it is vehemently contended by the learned
Government Pleader that there is no illegality nor infirmity in the
impugned action and the Superintendent of Police/fourth respondent
herein is perfectly justified in refusing the claim of the petitioner in the
absence of evidence with regard to the inheritance of the petitioner from
the deceased Mangalagiri Shankar Jee.  It is also the submission of the
learned Government Pleader that in view of report of the Inspector of
Police dated 28.12.2013 no relief can be granted.  It is also the
submission of the learned Government Pleader that in view of dismissal of
W.P.No.16445/2014 the present writ petition is not maintainable.
8.      The Government of Andhra Pradesh in the year 2013 brought in
amendment to the Andhra Pradesh Un-aided Non-Minority Professional
Institutions (Regulations of Admissions into Under Graduate Medical and
Dental Professional Courses) Rules, 2007 and added the following after
sub-Rule (iv) of Rule 3 of G.O.Ms.No.136, Health, Medical & Family
Welfare (E1) Department dated 30.04.2007:
       0.25% for Police Martyrs Children (PMC) i.e., Children of
Police Professional who died in extremist/terrorist violence subject to
production of documentary evidence in support of their claim and
subject to confirmation by the competent authority.
9.      The government published the above notification by way of
G.O.Ms.No.106, Health, Medical & Family Welfare (E1) Department
dated 16.07.2013.      
10.     In the instant case, the petitioner herein is claiming the
benefit under the said Rule.  The Superintendent of Police,
Nalgonda, Nalgonda District/fourth respondent herein by way of
Memo bearing C.No.5778/A7/2013 dated 28.01.2014 refused to  
issue the Police Martyr Children Certificate, saying that the deponent
is not the legal heir of the deceased Shanker Jee as per the
statements recorded in the enquiry report by the Inspector of Police,
Special Branch.  In the report of the Inspector dated 28.12.2013,
which is placed on record, it is stated that in the absence of legal
inheritance from the deceased Shanker Jee, the petitioner cannot get
any benefit from the police department.  It is also stated that
Mr.Madhu Babu, the Senior Assistant in D.G.P Office, Hyderabad
vehemently opposed for extending any kind of benefit to the
deponent.  Another objection mentioned in the report is that in view
of the agreement entered into between M.Doulath Bai and the
deponent herein  on 05.10.2002, any benefits or facilities or aid
extended by the Government, shall go to Smt.M.Doulath Bai only.
11.     In the instant case, the petitioner is asking for the Police Martyr
Children Certificate only for the purpose of availing the statutory benefit
under the Rules i.e for securing a seat in MBBS.  The respondents herein
are not specifically disputing the relationship of the petitioner with late
Shanker Jee and the status of the petitioner as son of late Shanker Jee.
The statutory right of Doulath Bai nor her children have nothing to with
this benefit.  The reasons assigned by the respondents in denying the
claim of the petitioner are highly iniquitous, palpably untenable,
preposterous and reprehensible.
12.     As rightly contended by the learned counsel for the petitioner.
under Section 16 of the Hindu Succession Act, 1956, the petitioner shall
be treated on par with the children of  late Shanker Jee through his first
first wife.  The objection of Mr.Madhu Babu, son of Doulath Bai, as
mentioned in the enquiry report is of no significance at all as he has no
rival claim with the petitioner.  Another vital aspect which needs mention
is that in O.S.No.29/2014 filed by the deponent and the petitioner herein
before the Court of the Junior Civil Judge, Devarakonda, the Tahisildar
filed a written statement, admitting the relationship of the petitioner with
late Shanker Jee as father.  Even in the enquiry report of the Inspector of
Police, Special Branch, dated 18.12.2013, it is stated that the deponent
got a son by name Mr.Sairam though deceased late Shakder Jee who was  
7 years old. By any stretch of imagination the claim of the petitioner
cannot be denied for Police Martyr Children Certificate when the paternity
is not in dispute.  In this context, it may be appropriate to refer to the
judgments of the Honble Apex Court in the case of KAMESHWARI DEVI  
(supra 1) and REVANASIDDAPPA AND ANOTHER (supra 2).      
13.     In KAMESHWARI DEVI (supra 1), the Honble Apex Court at  
paragraphs 14, 15 and 16, held as follows:
14. It cannot be disputed that the marriage between Narain Lal and
Yogmaya Devi was in contravention of Clause (i) of Section 5 of the
Hindu Marriage Act and was a void marriage. Under Section 16 of
this Act, children of void marriage are legitimate. Under the Hindu
Succession Act, 1956, property of a male Hindu dying intestate
devolve firstly on heirs in Clause (1) which include widow and son.
Among the widow and son, they all get shares (see Sections 8, 10
and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi
cannot be described a widow of Narain Lal, her marriage with Narain
Lal being void. Sons of the marriage between Narain Lal and
Yogmaya Devi being the legitimate sons of Narain Lal would be
entitled to the property of Narain Lal in equal shares along with that
of Rameshwari Devi and the son born from the marriage of
Rameshwari Devi with Narain Lal. That is, however, legal position
when Hindu male dies intestate. Here, however, we are concerned
with the family pension and death-cum-retirement gratuity payments
which is governed by the relevant rules, It is not disputed before us
that if the legal position as aforesaid is correct, there is no error with
the directions issued by the learned single Judge in the judgment
which is upheld by the Division Bench in LPA by the impugned
judgment.
15. Rameshwari Devi has raised two principal objections : (1)
marriage between Yogmaya Devi and Narain Lal has not been
proved, meaning thereby that there is no witness to the actual
performance of the marriage in accordance with the religious
ceremonies required for a valid Hindu marriage and (2) without a civil
Court having pronounced upon the marriage between Yogmaya Devi  
and Narain Lal in accordance with Hindu rights, it cannot be held that
the children of Yogmaya Devi with her marriage with Narain Lal
would be legitimate under Section 16 of the Hindu Marriage Act. First
objection we have discussed above and there is nothing said by
Rameshwari Devi to rebut the presumption in favour of marriage duly
performed between Yogmaya Devi and Narain Lal. On the second  
objection, it is correct that no civil Court has pronounced if there was
a marriage between Yogmaya Devi and Narain Lal in accordance with
Hindu rights. That would, however, not debar the State Government
from making an inquiry about the existence of such a marriage and
act. on that in order to grant pensionary and other benefits to the
children of Yogmaya Devi. On this aspect we have already adverted
to above. After the death of Narain Lal, inquiry was made by the
State Government as to which of the wives of Narain Lal was his legal
wife. This was on the basis of claims filed by Rameshwari Devi.
Inquiry was quite detailed one and there are in fact two witnesses
examined during the course of inquiry being (1) Sant Prasad Sharma,
teacher, DAY High School, Danapur and (2) Sri Basukinath Sharma,
Shahpur Maner who testified to the marriage between Yogmaya Devi
and Narain Lal having witnessed the same. That both Narain Lal and
Yogmaya Devi were living as husband and wife and four sons were
born to Yogmaya Devi from this wedlock has also been testified
during the course of inquiry by Chandra Shekhar Singh, Rtd. District
Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S. N. Sinha,
w/o Sri S. N. Sinha, ADM and others. Other documentary evidence
were also collected which showed Yogmaya Devi and Narain Lal were
living as husband and wife. Further, the sons of the marriage
between Yogmaya Devi and Narain Lal were shown in records as
sons of Narain Lal.
16. Having considered all the facts of the case as presented before us
we do not find any error in the impugned Judgment of the Division
Bench of the Patna High Court upholding the judgment of the learned
single Judge referred to in the beginning of this judgment. The
appeal, therefore, fails and is dismissed. However, there shall be no
order as to costs.
14.     In REVANASIDDAPPA AND ANOTHER (supra 2), the Honble      
Apex Court at paragraphs 39 and 40, held as follows:
39.    We are constrained to differ from the interpretation of
Section 16(3) rendered by this Court in Jinia Keotin (supra) and,
thereafter, in Neelamma (supra) and Bharatha Matha (supra) in
view of the constitutional values enshrined in the preamble of our
Constitution which focuses on the concept of equality of status and
opportunity and also on individual dignity. The Court has to
remember that relationship between the parents may not be
sanctioned by law but the birth of a child in such relationship has to
be viewed independently of the relationship of the parents. A child
born in such relationship is innocent and is entitled to all the rights
which are given to other children born in valid marriage. This is the
crux of the amendment in Section 16(3). However, some limitation
on the property rights of such children is still there in the sense their
right is confined to the property of their parents. Such rights cannot
be further restricted in view of the preexisting common law view
discussed above.
40.     It is well known that this Court cannot interpret a socially
beneficial legislation on the basis as if the words therein are cast in
stone. Such legislation must be given a purposive interpretation to
further and not to frustrate the eminently desirable social purpose of
removing the stigma on such children. In doing so, the Court must
have regard to the equity of the Statute and the principles voiced
under Part IV of the Constitution, namely, the Directive Principles of
State Policy. In our view this flows from the mandate of Article 37
which provides that it is the duty of the State to apply the principles
enshrined in Chapter IV in making laws. It is no longer in dispute that
today State would include the higher judiciary in this country.
15.     For the aforesaid reasons and having regard to the nature of
controversy and having regard to the principles laid down in the above
referred judgments, the writ petition is allowed:
i)      Setting aside the Memo bearing
C.No.5778/A7/2013 dated 28.01.2014 issued by
the fourth respondent herein.
ii)     Directing the respondents to issue Police Martyr
Certificate in favour of the petitioner herein to
claim admission in terms of G.O.Ms.No.106, Health,
Medical & Family Welfare (E1) Department dated
16.07.2013.
iii)    Since the verification of certificates is commencing
shortly the respondents are directed to permit the
petitioner to participate in the process of certificate
verification and for allotment of seat in MBBS with
an undertaking that the petitioner will produce the
Police Martyr Certificate after receipt of the same
from the competent authority.
As a sequel, Miscellaneous Petitions, pending if
any, shall also stand disposed of.  No costs.
______________
A.V.SESHA SAI,J  
Date: 17.06.2015 

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