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2015 DIGILAW 316 (JK)

Irfan-ul-Haq v. State of J&K

2015-07-03

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J.:- 1. Advertisement notice was issued by Zonal Education Officer, Devsar Kulgam on 9th November, 2010 where under applications were invited from eligible candidates for filling up of one Ret position in a school located in village Zangalpora as replacement case. It was also provided in the notification that the eligible candidates must be from revenue village Zangalpora. The Ret position could not be filled up till date because of filing of successive writ petitions. 2. In this writ petition the Court on 31st January, 2013, directed the Deputy Commissioner Kulgam to constitute team of two senior officers of repute. It is also provided in the order that these two officers shall visit both the villages i.e. Mangalpora and Zangalpora and shall examine the record position of the petitioners and their residential status shall be ascertained. The Committee was also directed to ascertain when petitioners have shifted to Mangalpora and what were the circumstances which led to their shifting, and whether they have shifted back to Zangalpora. 3. The issue cropped up because the petitioners claimed to be resident of Zangalpora where the school is located and where the Ret position is to be supplied. 4. The Deputy Commissioner constituted Committee comprising of Additional Deputy Commissioner Kulgam and one Mr. Javaid Ahmad Munshi, Ex-Chief Education Officer Kulgam. 5. The officers visited both the villages and after conducting on spot enquiry returned finding that father of the petitioner and also petitioner are residents of Mangalpora and not of Zangalpora. The Committees also reported that the father of the petitioner has only landed property in village Zangalpora. The committee reported that in this fact situation the petitioners cannot said to be resident of Zangalpora. 6. This report was filed before the Court on 17th July, 2013. Neither request for filing objections has been made from July, 2013, nor same have been filed against the aforesaid report. 7. Learned counsel for the petitioner submitted that because of the floods, the father of the petitioner was constrained to shift to village Mangalpora from village Zangalpora, where he has constructed a house. 8. Learned counsel also submitted that the petitioner is now residing at Zangalpora. 9. Learned counsel submitted that like other residents of the area the petitioner and her family sometimes live in Zangalpora and sometimes in Mangalpora. 10. 8. Learned counsel also submitted that the petitioner is now residing at Zangalpora. 9. Learned counsel submitted that like other residents of the area the petitioner and her family sometimes live in Zangalpora and sometimes in Mangalpora. 10. Learned counsel also referred to the documents placed on record to show that petitioner is resident of revenue village Zangalpora. 11. Learned counsel in support of his contention referred to Judgment of the Court reported in 2011 (4) JKJ 391 (HC) titled Javida Akhter v. State & Ors. 12. The posts of teachers which are sought to be filled up, are available under Sarva Shiksha Abhiyan (SSA). The Government of J&K has directed to follow the procedure for filling up of such posts by following the procedure provided for engaging Ret. Under the scheme in terms of the procedure prescribed the eligible candidates has to be residents of revenue village where the school is located and vacancies are to be supplied. The requirement under the scheme is thus actual residents of the particular village is eligible for seeking consideration for being selected and engaged as Ret. 13. The case like the present one in which some documents support the petitioners claim, does sometimes put the Court on cross roads in returning the findings for doing complete justice between the parties. 14. Whether the documents evidencing residential status of a person would in all circumstances be clinching in nature has to be answered in the facts of this case. 15. The admitted fact position is that petitioner was originally resident of village Zangalpora. All the documents on which reliance has been placed by learned counsel for the petitioner and which have been placed on writ record show that the petitioner is resident of village Zangalpora. To ascertain the factual position as has emerged in this case placing reliance solely on the documents for returning a finding may lead in doing injustice. 16. In order to resolve the conflict raised in the writ petition the Court on 31st January, 2013, directed Deputy Commissioner Kulgam to constitute Committee of two senior officers of repute for ascertaining the actual residential position. The committee after visiting both the villages and after making enquiries on spot and after hearing father of the petitioner and petitioner have recorded finding of fact that petitioner and her father are not residents of village Zangalpora but are residents of village Mangalpora. The committee after visiting both the villages and after making enquiries on spot and after hearing father of the petitioner and petitioner have recorded finding of fact that petitioner and her father are not residents of village Zangalpora but are residents of village Mangalpora. When the learned counsel was requested to show from the writ petition where it is stated that the petitioner is living at village Zangalpora he referred to Para 6, 8 and 9 of the petition. At paragraph 6 petitioners has referred to PPRC certificates issued by Tehsildar. She has also referred to income certificate issued in the month of February, 2011. 17. The PPRC issued by Tehsildar has been cancelled on the ground that same has been obtained by practicing fraud on the authority. Nowhere in the writ petition is it pleaded that on the last date of filing of the application the petitioner was resident of village Zangalpora. The PPRC to which reference is made and has been heavily relied upon, has been cancelled by the competent authority. The entire writ petition is based on this PPRC of the concerned Tehsildar to which reference is made at many paragraphs of the writ petition. 18. The issue is required to be concluded on the basis of the material available on writ record. The report of the Committee constituted by Deputy Commissioner in pursuance to Court Orders which has been filed in July 2013 in the Court is in the facts of this case is unquestionable. This report has dealt with all the aspects of the matter. 19. In the judgment Supra a finding was recorded that the candidate had temporarily shifted to town and migration was not permanent. This judgment cannot be applied to the facts of this case. 20. The report of the Committee clearly establishes that the petitioners are not resident of village Zangalpora. 21. For the above stated reasons this petition is dismissed along with connected IAs. 22. Interim direction shall stand vacated. 23. The official respondents shall complete the selection process preferably within three weeks from the date copy of this order is served.