I am to fight my case as PIP (Ref wp 21313/2013 pending in HC of AP). It is all about denying me CAP cert which in turn has deprived my daughter to avail CAP quota (1%) for admission to MBBS in AP FOR eamcet 2013. The CAP cert issuing office in this case is ZSWO Ranga Reddy. They have stated " That you are not considered domicile of AP & You have not commissioned into Army from the state of AP"..None of the two conditions are mentioned in any of the circulars etc for admission for my daughter to qualify to sit for EAMCET 2013 test or for me to be eligible to obtain a CAP quota for my daughter. But the ZSWO RR Mr Srinu has not issued the CAP cert.
In his defence the ZSWO RR has referred to one Memo of Directorate of Sainik Welfare AP dated 19 Jan 2007 to all ZSWO of the state of AP had been quoted. That letter has categorically ordered the ZSWO not to issue CAP cert to the ESMs belonging to other states even when they have got their permanent address changed to some places in AP. The Director AP Sainik Welfare has in turn referred to the order of a division bench of High Court of AP namely WRIT Appeal No 951 & 952 of 2006. The Hon-ble Judges while dealing the writ Appeal filed by two Petitioner ESMs registered as ESMs in their respective states post retirement. They were not registered as ESM s post retirement in any district ZSWO in AP. But they ( had resided for 5 years in AP) applied for CAP cert for their wards who were otherwise eligible to sit ( studying 4 consecutive years preceding the final Cl XII exam in AP) for EAMCET. They were denied admission as none of ESMs was Registered with any ZSWO in AP post retirement..The single Judge bench in both the cases upheld the decision of the Dr NTR Health Science University hence the Writ Appeals which were clubbed together. The Division Bench also upheld the decision of the single bench judges in both the cases arriving at the conclusion that Registration by the ESMs post retirements with the ZSWO in AP is the pre-requisite to avail any concession/facility offered by the state of AP. The division Bench in its order also referred to one of the routine circular of Dte Gen of Resettlement of 1992 wherein it was stated in a very different context that mere Registration in any state post retirement by an ESM unless he is a domicile of that state will not make him eligible to avail concessions / benefits offered by that state. In other words the Division bench tried to put a stamp of authority to the much abused pre-requisite namely Domicile of the state to be eligible to avail concessions / benefits offered by that state. Nothing has changed in respect to eligibility conditions for the ESMs which is still governed by the provision of Govt of AP GO Ms 370 of 1994 which states " Thos Armed Forces personnel serving or retired who have resided 5 years in the state of AP , irrespective of their nativity, are eligible for CAP certificate ( obviously to be issued by the respective ZSWO in AP). It is the Director of the AP sainik Welfare who has ventured to negate the stated provision of the GO Ms 370 of 1994 supposedly approved by the cabinet of AP by interpreting the order of the Division Bench as it suits him and issued a letter which can be termed as defiance of his own govt of the day. Curiously the Director of AP sainik Welfare did not move any letter asking his ministerial collegues pressing for any amdt to GO 370 of 1994 or to seek clarifiaction from the High Court of AP before issuing such a Memo asking his sub-ordinate ZSWOs not to issue CAP cert to any ESMs belonging to any other state.
Now compare with the observations made by another set of Hon-ble Judges from another High Court on the issue of domicile of a state in India:--
“........., the High Court discussed the concept of domicile inter alia in the following terms;
What is domicile? Domicile as a concept is of immense importance, both in municipal law as well as in Private International Law or the conflicts of laws, as it is called. The concept denotes "the place of living", or more precisely a permanent residence. Domicile as pointed in Halsbury's Laws of England (Fourth Edition) Volume 8, Paragraph 421 "is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law." Although the notion which lies behind the concept of domicile is of "permanent residence" or a "permanent home", yet domicile is primarily a legal concept for the purposes of determining what is the "personal law" applicable to an individual and therefore, even if an individual has no permanent residence or permanent home, even then he is invested with a "domicile" albeit by law or implication of law.
There are three main categories or classes of domicile, A) Domicile of Origin, B) Domicile of Choice, and C) Domicile by law. "Domicile of origin" is the domicile which each person has at birth i.e. the domicile of his father or his mother. "Domicile of choice" is the domicile which a person of full age is free to acquire in substitution for that which he presently possesses. In other words, the "domicile of origin" is what is attached to person by birth whereas the domicile of choice is what is acquired by residence in a territory subject to a distinctive legal system with the intention to reside there permanently or indefinitely. What should be always remembered is that a domicile denotes an area with a separate and distinctive legal system and not just a particular place in a country. This aspect is elaborated in paragraph 442 of Halsbury's Laws of England (Fourth Edition) Volume 8, which states as under:
"Even person who has, or whom the law deems to have, his permanent home within the territorial limit of a single system of law is domiciled in the country over, which is the whole of that country even though his home may be fixed at a particular spot within it."
The same sentiment has been expressed by the hon-ble judges of the Supreme Court in many occasions while dealing with the issue of Domicile of a State within India. It has always upheld that it is one Domicile in whole of India..and that word Domicile of a state has been loosely used which means nothing more than a person's Residential Status in that state may differ in respective states in respect to number of years.
In my case It is residency of 5 years irrespective of nativity in the state of AP to be eligible for the ESMs to obtain CAP cert from the respective ZSWO. Consideration of Domicialary of the state of AP for an ESM to obtain CAP cert for CAP quota for his children as noted by the ordinary circular of the Dte Gen of Resettlement Min of Def GOI as well as touched upon by the division bench of the High Court is nothing but to draw attention of the ESMs to the eligibility conditions as stated in the GO Ms 370 of 1994 ( For the state of WB the ESMs whose children have studied last two years preceding the Class XII exam and sat for Joint Entrance Exam are eligible for CAP Cert irrespective of the nativity).
Can this issue of Domicile of the state of AP for an ESM be dealt in any other way by any court of Law by upholding the dictat of the Director of AP Sainik Welfare that no ESM belonging any other state be issued with CAP cert if that ESM had not been commissioned into the Armed Forces by citing his home address in any place in AP taking umbrage of the order of a division bench of the high court of AP which had simply stated that "mere Residence for 5 years in AP will not make an ESM eligible to avail CAP quota offered by the state of AP and one has to be ESM has to be domicile of the State of AP...
Time has come when even the Lorships be put on the mat and be asked to clarify what exactly they meant when they expressed their opinion " Mere Residence for 5 years" or "To be domicile of the state". Did they not encourage the Director of AP Sainik Welfare to go over board warning his ZSWOs not to issue CAP cert to any ESM belonging to other state even though they have changed their permanent address in their service book to any place in AP? or were they part of conspiracy to destabilise the state of AP where a very large number of ESMs belonging to other states have settled permanently post retiremnet from three services namely Army , Navy & Air Force.
Only Time will tell as the heat will engulf the Seemandharians and vice-versa when the the State of AP is bifurcated..very soon.