Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 384 (JK)

Kulsooma Qayoom v. Riyaz Ahmed Hajam

2015-08-05

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Dhiraj Singh Thakur, J. 1. The present Letters Patent Appeal is preferred against the judgment and order dated 3.7.2014 whereby the writ petition filed by the respondents/petitioners has been allowed and the select list prepared by the official respondents, selecting the appellants quashed. The case set up by the petitioners before the writ court was that the selection for appointment as R-e-T should have been restricted to Kral Mohalla Qazibagh inasmuch as Kral Mohalla satisfied the applicability of Govt. Order No. 288-Edu of 2009, dated 8.4.2009. They, inter-alia, sought the issuance of a writ of certiorari for quashing the select list, which reflected the names of appellants herein on the ground that they did not belong to the habitation of Kral Mohalla. 2. From the record, it appears that a civil suit for declaration had been filed before the Court of learned Sub Judge, Budgam, seeking a declaration that Kral Mohalla constituted a separate habitation and, therefore, selection had to be made by resorting to the applicability of Govt. Order No. 288-Edu of 2009, dated 8.4.2009. The Civil Court vide its order dated 6.11.2013 while disposing of the application for ad interim relief, directed the CEO/ZEO concerned to strictly process the case in accordance with the applicable rules after getting a clarification from ACR Budgam about the habitation status of Kral Mohalla Qazibagh in terms of Govt. Order No. 288-Edu of 2009, dated 8.4.2009. 3. Pursuant to the said directions, the Assistant Commissioner (Rev) Budgam (for short, ACR Budgam) appears to have submitted a report in which the following facts were highlighted: (a) That Qazibagh was a hamlet of village Ichgam and the habitation of this village was scattered. (b) That there were mainly four mohallas/habitations/sub hamlets of Qazibagh commonly known as Kral Mohalla, Shah Mohalla/Asthan Mohalla, Gamander and Bonpora. (c) That Kral Mohalla and Shah Mohalla/Asthan Mohalla were on the same location and not away from each other but known separately as Shah Mohalla and Kral Mohalla. (d) That Gamander and Bonpora were located at a distance of about one KM and there was already one Primary and Middle School functional in Gamander Mohalla, which were more than one kilometer away from Kral Mohalla. 4. It appears that the official respondents on receipt of the report prepared the selection list by ignoring the petitioners and selecting the appellants herein by ignoring Govt. 4. It appears that the official respondents on receipt of the report prepared the selection list by ignoring the petitioners and selecting the appellants herein by ignoring Govt. Order No. 288-Edu of 2009, dated 8.4.2009, which led the petitioners to file the writ petition before the Writ Court. 5. The writ petition came to be allowed by the writ court by virtue of the judgment and order dated 03.07.2014 on the ground that the select list could not have been prepared by treating Qazibagh in its entirety as a habitation and that selection ought to have been conducted by taking only Kral Mohalla and Shah Mohalla as a habitation in line with the spirit of Govt. Order No. 288-Edu of 2009, dated 8.4.2009. 6. This judgment and order has been challenged by the appellants in the present Letters Patent Appeal primarily on the ground that Kral Mohalla or Shah Mohalla were not habitations at all. It was urged that population of Kral Mohalla was 188 souls only and that the distance from Kral Mohalla and Qazibagh was only 20 feet. It was further urged that the judgment impugned, in fact, substituted the advertisement notice by its own direction and was, thus, contrary to the settled principles of law. 7. Heard the counsel for the parties. 8. Learned counsel for the appellants urged that the writ petition filed by the respondents before the writ court was contrary to Rule 2(c) of the Jammu and Kashmir, High Court Writ Proceedings Rules, 1997 inasmuch as the petitioners had not specifically mentioned regarding the pendency of the suit filed by them. 9. Reliance was also placed upon 2003 (4) JKJ 215 [HC] : Mohd. Amin Dugga v. State of J & K & Ors. 10. This issue, however, appears not to have been agitated before the writ court although objections to that extent were taken in the reply filed by the appellants. Having not urged the issue before the learned Single Judge, the same cannot be permitted to be raised in the appeal proceedings. 11. The issue that requires consideration in the present appeal is as to whether the provisions of Govt. Order No. 288-Edu of 2009, dated 8.4.2009 can be made applicable to Kral Mohalla and Shah Mohalla by taking them as separate habitations or not. 12. In order to get the benefit of the aforementioned Govt. 11. The issue that requires consideration in the present appeal is as to whether the provisions of Govt. Order No. 288-Edu of 2009, dated 8.4.2009 can be made applicable to Kral Mohalla and Shah Mohalla by taking them as separate habitations or not. 12. In order to get the benefit of the aforementioned Govt. Order, a habitation has to be at least one kilometer away from other habitations and should have a population of more than 300 persons. 13. From the report of the ACR, it becomes clear that the school where the appointments have been made is situate in Kral Mohalla, which is located in village Qazibagh a hamlet of revenue village Ichgam. It also becomes evident that Shah Mohalla and Kral Mohalla are on the same location but are known separately and the population is more than 300 souls. It also becomes evident from the report of the ACR that Kral Mohalla is situate at a distance of 1.5 Kilometer away from the revenue village Ichgam and one kilometer away from the habitations of Gamander and Bonpora. 14. The habitations of Kral Mohalla and Shah Mohalla, thus, satisfy the conditions of Govt. Order No. 288-Edu of 2009, dated 8.4.2009 and, therefore, the learned Single Judge had rightly held that the selection ought to have been restricted to Kral Mohalla/Shah Mohalla and could not have been extended to the entire hamlet of Qazibagh. In fact, the selection of appellants, who were respondents No. 5 and 6 in the writ petition was made contrary to the report submitted by the ACR and thus, rightly quashed by the learned Single Judge. 15. Having gone through the judgment and order impugned, we cannot persuade ourselves to take a view different from the one taken by learned Single Judge. The appeal is found to be without merit and is accordingly dismissed along with connected applications.