It’s era of ‘Good Governance’ but S.O 166 of 2020 still has bads even after GOI issuing S.O.3808(E), Why?
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When will it draw the attention of LG UT of J&K ?
Daya Sagar
Definition for Domicile (DC) of UT of J&K was drawn on 31-03-2020 but even after nearly 9 months the rules for grant of Domicile Certificate ( DC) are not properly laid atleast as regards (i) suitable amendment to Clause-5 (1) of the S.O.166 of 18-05-2020 by incorporating some sub clause for submitting application by a wife or husband for DC enclosing the PRC of her husband or his wife (ii) suitable amendment to make mention of POJK DPs in Rule-5 Clause-4 or adding a new Clause (iii) adding provision for making on line appeal to Appellate Authority against the non issue / delayed issue of domicile certificate (iv) adding provision for making online correction in application if needed or making a reply to Competent Authority the objections raised since it is an era of egovernnce.
Some of the deficiencies that were there to be made good at the level of Government of India (Ministry of Home Affairs ) concerned the Definition of UT of J&K , status of the Permanent Residents(PRs) /State subjects of erstwhile State of J&K ( State Subjects of J&K) and the like. But no good was done even before J&K Government issued S.O 166 of 18-05-2020 {Jammu and Kashmir Grant of Domicile Certificate ( procedure) Rules 2020} where in no doubt ‘attempt’ was made to push in the reference of PR of J&K as a category of likely applicants in the rules “making” reference of definition of the Domicile even when there was no reference of any such category in Clause 3A of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act (XVI of 2010). But since the applicants concerned were not likely to face problem from the side of the Competent Authority for issue of DC no commoner was likely to point out the flaw except those who look from technical angles and they did point the deficiencies and discrepancies immediately after 18-05-2020. But still some more questions other than definition of domicile as well as the rules in S.O 166 remained there like (i) earlier in J&K the Permanent Resident Status of Woman was considered lower than the MAN, a case of gender discrimination surviving under the shelter of Art-35A , where under neither the children of a PR of J&K woman married to a non- PRC holder man would not get PR status on the basis of PRC of their mother nor a non-PR of J&K husband could get PR status on the basis of PRC of his PRC holder wife (ii) earlier a non-PRC holder ( belonging to a state other than J&K ) wife could get PR status on the basis of the PRC of her J&K husband (iii) in S.O 166 there was no Clause under which the Displaced persons from POJK after new registration could apply , even they could not make application for Domicile online.
To start with some Tehsildars did not issue Domicile even to PRC holder woman on the basis of her own PRC when applied under Rule-5 Clause -1a of SO 166 and asked them to also submit PRC of their husband when even filing online application two PRCs could not be loaded. Any when some law knowing people created pressures PRC holder woman was issued DC on the basis of her PRC. This way some tried to continue gender discrimination even after 5th August 2019.
But the children of a J&K PRC holder woman who was married to a non-J&K PR were still not issued DC on the basis of the mother’s PRC and were asked to submit the PRC of father thereby rejecting applications made under Rule- 5 Clause-1b as children of a PRC holder with PRC of mother as enclosure. Anyhow with pointed references made to government , through media as well, after 5 months this controversy / deficiency was removed by government by issuing clarifications vide 27-JK(GAD) of 20-10-2020 only as regards the children conveying to the competent authority that “even if one of the parents ( mother or father ) is in possession of PRC the children would be entitled for grant of Domicile Certificate.
But grant of Domicile certificate to a non -permanent PRC holder husband on the basis of the PRC of his wife was still denied. The S.O 166 rules also did not have any category of that type where under one could apply and if someone applied enclosing the PRC of his wife under Rule-5 Clause-1a the competent authority refused that and had all reasons to refuse that since the clause was only for self. Not only that in case a non -PRC holder women who could earlier get PRC on basis of her husband’s PRC also now when applied under Rule-5 Clause-1a enclosing her husband’s PRC she too was denied DC by competent authority since technically the competent authority could accept it under Rule-5 Clause -1a which is for self or Clause-1b which is for Children.
Anyhow surely maybe it was again with repeated reportings / request through media that atlast Ministry of Home Affairs (Department of Jammu, Kashmir and Ladakh Affairs) issued order the S.O. 3808(E) 26th October 2020 in exercise of the powers conferred by section 96 of the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), where in under Item no 25 the Jammu and Kashmir Civil Services Decentralization and Recruitment Act (XVI of 2010) Section 3A was amended as — ). Atleast now it was expected that the LG”s Administration of UT of J&K will suitably amend Clause-5 (1) of the S.O.166 of 18-05-2020 by incorporating some sub clause for submitting application by a wife or husband for DC enclosing the PRC of her husband or his wife.
But as per information amendment to S.O.166 has not been issued even after 2 months of that by J&K government and the applications submitted by the either of the spouse enclosing PRC of the other spouse are being rejected since technically CAs do not yet have any clause in rules to accept the applications.
Nor has any order been issued ordering that requirement of domicile can be met by submitting the DC of spouse. The need to amend S.O 166 and delay was pointed out to the government on 08th December 2020 also{“S.O 3808(E) is over 40 days old but still S.O 166 for issuing Domicile not amended by J&K Govt”} but nobody seems to have cared and people are still facing harassment even after GOI having done its job on 26th Oct 2020.
In addition to above deficiencies S.O 166 of 18-05-2020 also needs to be amended / modified for including provisions for : 1. Providing for making on line appeal to Appellate Authority against the non issue / delayed issue of domicile certificate 2. Provision for making online correction in application if needed or making a reply to CA on the objection.3. Making the mention of POJK DPs in Rule-5 Clause-4 or adding a new Clause.
Daya Sagar Sr Journalist / Analyst Jammu & Kashmir Affairs dayasagr45@yahoo.com