HC strikes down “discriminatory” application of COI rules

February 27, 2020

Govt notifications which limited scope and status of COIs issued to descendants of Sikkim Darbar employees quashed

Gangtok, 26 Feb:

The High Court of Sikkim has quashed a series of government notifications which had limited the scope of Certificates of Identification issued to children of government servants [who were in service on or before 31 Dec, 1969 but were not included in the Sikkim Subjects Register].

Deciding on the case on 20 Feb, Justice Meenakshi Madan Rai struck down the “discriminatory” interpretation of the rules as being “irrational” and violative of Article 14 of the Constitution of India which ensures equality before law to all citizens

This had been a vexed issue for a while, especially since the rules were interpreted and applied in a manner which denied parity to such COI holders, limited the benefits for which such COIs could be used and went as far as to even refuse issuance of Certificates of Identification to the grandchildren of such government servants.

Children of those non-locals who were in government service on or before 31 Dec, 1969 used to be issued Certificates of Identification which accorded them recognition as locals in all aspects in Sikkim.

This “status” was however degraded through a series of government notifications, the first one which was issued as an executive order in the year 1995 which spelled out that “Certificate [of Identification] obtained by such persons shall be for the purpose of employment only.”

Shortly after, the Notification of 1996 imposed further restrictions on such COIs by reiterating that the certificates will be for the purpose of employment only “and no other purpose.”

The practice till then was to treat these certificates as counting the holders among locals and allowed them all rights and privileges such as buying and selling land, owning property or securing trade licenses.

A decade later, the District Collectors, who issue COIs, perhaps emboldened by the manner in which the rules and the language was being interpreted and applied, decided that the third generation of such COI-holders were not entitled to receiving Certificates of Identification.

The rule, when it was first framed, stated that those who were government servants in or before 1969 and their children were entitled to receive COIs. At that time, this group of people had not yet reached the third generation, but by the year 2006, the third generation had also come of age, grown up with only Sikkim as their home and were seeking COIs for themselves to get recognized as locals.

It is then that they realized that of all the categories of COI-holders, only they had been singled out to be refused recognition accorded to their parents and grandparents.

The government memorandums and notifications were not based on any statutory, legislative enactments or codified laws, but given that they were policy decisions of the government, became laws and rules in practice.

In the year 2016, the grandchildren and children of such government servants moved the High Court seeking that the discriminatory notifications and practices listed above be quashed.

The State respondents disputed allegations of arbitrariness in their interpretations and argued that the certificates issued to children of such government servants was a one-time concession extended to them and was never envisaged as extending to perpetuity.

The 50-page judgment delves deep into arguments raised by both sides and makes several observations on the constitutionality and rationality of the government decisions on the matter at hand and decides that classifying COIs issued to descendants of non-local government servants [who were in service on or before 1969] as being exclusively for employment and no other purpose was “irrational and violative of Article 14 of the Constitution of India and deserve to be and are hereby quashed.”

The Home Department letter which refused a COI to a third generation member of the said group on the argument that he was not entitled to it has also been quashed by Justice Rai and the State Government prohibited from giving effect to the arguments of this letter in any other instance as well.

The judgment goes on to clearly spell out that “descendants of persons who have obtained COI on the basis of their father being Government servants in the Government of Sikkim prior to 31.12.1969… are entitled to obtain COI.”

“This also includes the third generation and their subsequent generations,” the order reiterates.

Significantly, the judgment also directs that COI obtained by such persons “shall have the same utility and benefits” as the other four categories of COI-holders in Sikkim “sans discrimination on any count.”

 

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