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2015 DIGILAW 445 (JK)

Qadir Mir v. State of J&K

2015-08-27

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. Aggrieved of modification of interim orders dated 27.12.2013, 31.12.2013 and 08.01.2014 passed in CMP Nos. 12/2014; 4226/2013; 4227/2013; 17/2014; 4265/2013 & 4266/2013 arising out of SWP Nos. 11/2014 and connected petitions, in terms of common order dated 08.06.2015 passed by learned writ Court, appellants-writ petitioners have filed a batch of six appeals assailing the common order on the grounds set out in the memo of appeals. The factual matrix attendants to the matter are briefly noticed. 2. A complaint from inhabitants of village Chanthan Chaekpora, Kulhama, Zabgullah, was received in the office of Hon'ble Chief Minister alleging fraudulent appointments of contingent paid employees, Rehbar-e-Taleems (Rets), embezzlement of Government funds in Education Department, District Budgam, and creation of Sarva Shikhsha Abhiyan (SSA) Schools. This happened in the year 2013. In view of nature of allegations in the complaint a Committee comprising M/S Khursheed Ahmad Shah, IAS, the then Deputy Commissioner, Budgam, Tariq Ali Mir, Director School Education, and Mohammad Yaseen Sofi, District Treasury Officer, Budgam, came to be constituted to enquire into such allegations. The Committee embarked upon an inquiry which revealed that about 114 contingent paid employees were fraudulently engaged without proper authorization, and, subsequently, these employees were regularized as Class IV employees. The report of the enquiry committee made startling revelations as it was found that as many as 14 out of the regularized Class TV employees were in the age group of 7 to 14 years on the date of their regularization. The Committee also stumbled upon material to reveal appointment of some of the Rets etcetera on the basis of fake certificates. It also identified delinquent officers/officials. 3. Based on enquiry report, the Deputy Secretary to Government, General Administration Department, vide communication bearing No. GAD(Vig)114-Comp/2013 dated 10.12.2013 directed appropriate action to be taken by the Education Department. The Deputy Secretary to Government, Education Department, vide communication dated 31.12.2013, directed the Director, School Education, Kashmir, to place the identified officials, 13 in number, working in the Education Department, under suspension. The Director, School Education Department, Kashmir, wrote a communication to the Director of Vigilance, Jammu & Kashmir, Jammu, to register an FIR and conduct the investigation into the matter. 4. Aggrieved of the aforesaid orders and communication, the appellants-writ petitioners filed a batch of writ petitions assailing the enquiry as also the follow up action. The Director, School Education Department, Kashmir, wrote a communication to the Director of Vigilance, Jammu & Kashmir, Jammu, to register an FIR and conduct the investigation into the matter. 4. Aggrieved of the aforesaid orders and communication, the appellants-writ petitioners filed a batch of writ petitions assailing the enquiry as also the follow up action. On consideration of the applications for ad interim relief filed alongside the writ petitions, the impugned order No. 2464-DSEK dated 31.12.2013 came to be stayed. The communication dated 10.12.2013 from the Deputy Secretary to Government, General Administration Department, to the Director of Vigilance, also came to be stayed as the same was assailed in some of the writ petitions. This resulted in a stalemate. On consideration of the applications for temporary injunction in the context of pleadings of the appellants-writ petitioners, the learned writ Court was of the view that ad interim orders passed in the writ petitions on different dates had the effect of putting the enquiry on hold. It observed that the enquiry and investigation conducted was not to the prejudice of the writ petitioners, as they would have sufficient opportunity to put forward their stand before the investigating officer/investigating agency. The learned writ Court repelled the contention raised on behalf of the learned counsel for the appellants-writ petitioners that the appellants though nominated in the communication did not actually play any role in the alleged malpractices. It was of the view that the officers involved in the alleged malpractices could be identified only by allowing the enquiry/investigation to proceed further, and a fair and objective enquiry would take care of the apprehensions raised by the appellants-writ petitioners that they had been selectively placed under suspension while six out of 13 identified officers have been left out. These appeals have been filed against the aforesaid order passed by the learned writ Court. 5. We have heard learned counsels for the parties, perused the record and considered the matter. 6. Mr. I. Sofi, learned counsel for the appellants has vehemently argued that though 13 officers were identified for being placed under suspension, the Director School Education, Kashmir, has arbitrarily selected the appellants-writ petitioners for being placed under suspension. 5. We have heard learned counsels for the parties, perused the record and considered the matter. 6. Mr. I. Sofi, learned counsel for the appellants has vehemently argued that though 13 officers were identified for being placed under suspension, the Director School Education, Kashmir, has arbitrarily selected the appellants-writ petitioners for being placed under suspension. It is further contended that the impugned communication/orders directing enquiry against the appellants-writ petitioners had been assailed in a few writ petitions and the enquiry was not supported by any material to connect the appellants-writ petitioners with the alleged malpractices. According to learned counsel for the appellants-writ petitioners, the appellants-writ petitioners were not posted at the places where the alleged malpractices have taken place and that they have not dealt with the alleged unauthorized fraudulent appointments and regularizations. It is further contended that the learned writ Court has not considered this aspect and allowed the respondents to initiate the departmental enquiry/investigation against the appellants- writ petitioners. 7. Per contra, learned Additional Advocate General submitted that the pleas raised by the appellants-writ petitioners could not be looked into at this stage and a fair and objective enquiry would take care of the apprehensions expressed by appellants-writ petitioners who will have a fair opportunity of putting forth their stand before the Inquiry officer/investigating agency. 8. We have given our thoughtful consideration to the contentions raised at the Bar. The enquiry report submitted by a Committee constituted for the purpose brings it to fore a scam related to unauthorized and fraudulent appointments, some of these made on fake documents followed by regularization of the fraudulently engaged contingent paid employees as Class IV employees. It is flabbergasting to note that 14 amongst the regularized class IV employees were found to be minors in the age group of 7 to 14 years on the date of regularization. The enquiry, on the face of it took the lid off a can of worms. How many skulls would tumble out of the cupboard would be dependent on enquiry and investigation which has to be brought to its logical conclusion. The effect of the interim orders dated resulted in putting the enquiry/investigation on hold, thus thwarting the course of justice. The enquiry, on the face of it took the lid off a can of worms. How many skulls would tumble out of the cupboard would be dependent on enquiry and investigation which has to be brought to its logical conclusion. The effect of the interim orders dated resulted in putting the enquiry/investigation on hold, thus thwarting the course of justice. The interim orders, justifiably, called for vacation so as to clear the decks for a fair enquiry/investigation into serious charges which not only involved delinquency of officers/officials who conceived and executed the plan of making unauthorized and fraudulent appointments by hatching a criminal conspiracy but also indulged in activities and acts of commission which are in direct conflict with penal law of the land. Insofar as the plea raised by appellants-writ petitioners regarding their not being posted at the places where such unauthorized and fraudulent appointment orders were issued and fraudulent regularizations were made is concerned, the same is in the nature of defence plea of alibi. The issue whether there was material to establish nexus of appellants-writ petitioners with the fraudulent appointments and regularization of contingent paid employees is the subject of enquiry/investigation and the appellants-writ petitioners have the opportunity of advancement of such pleas and articulating their stand before the Investigation officer/investigating agency/trial court at the appropriate stage. 9. It is well settled that where no right is determined by the writ Court, the Letters Patent Appeal will not be maintainable. In the instant batch of writ petitions before the learned writ Court, no determinative finding has been recorded in respect of any right claimed by the appellants-writ petitioners. Thus the very maintainability of the Letters Patent Appeals is under cloud. That apart, it is significant to note that the learned writ Court has taken care of the interests of the appellants-writ petitioners by directing that the orders to the extent directing suspension of the appellants-writ petitioners, may not be acted upon unless such recourse adversely affects progress of enquiry and investigation. In the aforementioned backdrop, we find no infirmity in the impugned order. This batch of Letters Patent Appeals being meritless is dismissed alongwith all connected CMPs.