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2015 DIGILAW 82 (JK)

Bansi Lal v. State of J&K

2015-03-10

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasanthakumar, C.J. 1. This Letters Patent Appeal is filed against order made in SWP no. 2726/2012 dated 01.10.2014 wherein the appellant had challenged the selection process initiated consequent to the advertisement published in notification No. DIP/J/3692/2012 dated 27.08.2012 and the select panel prepared by respondent nos. 1 to 6, and for a direction , directing the respondents to re-advertise two posts of Rehbar-e-Taleem (RET) for new Primary School Dharlai in village Dharlai by inviting applications from the eligible candidates of Panchayat Halqa level. The learned Single Judge dismissed the writ petition. 2. It was the contention of the appellant that private respondent nos. 7 and 8 were not actually and physically residing in illage Dharlai comprised in Education Zone Ramban and, therefore, they were not eligible for engagement as RET in NPS, Dharlai. In the notification issued one of the eligibility conditions prescribed was that a candidate must attach with his application form attested photocopy of Permanent Resident Certificate stating that the candidate must be actually and physically residing in the illage where acancy exists. The private respondents were selected for the said two acancies above stated. 3. The appellant contended that there was no eligible candidate residing in village Dharlai and the private respondents being residents of Panchayat Halqa Dhandrath-C (Dukson) submitted their applications before respondent no.6. As per the scheme of selection to RET issued by the Government in Order No. 396-Edu of 2000 dated 28.04.2000 if a local candidate belonging to a particular village is not available, the panel can be drawn from adjoining village. In the year 2003 Government issued Order No.1639-Edu dated 12.11.2003, clarifying that if qualified candidate is not available in a village the selection process shall be extended to Halqa Panchayat and in case a candidate is not available within the Halqa Panchayat, the Education Zone shall be taken into account as unit of selection which was again clarified through Government Order No. 394-Edu of 2006 dated 28.07.2006 pursuant to the order issued by the Division Bench of this Court in LPA (SW) No. 215/2004. In terms of the said Government order, the appellant is eligible to apply and has a right to be considered for selection. 4. Respondent nos. In terms of the said Government order, the appellant is eligible to apply and has a right to be considered for selection. 4. Respondent nos. 7 and 8, who have been selected, produced documents in support of their claim and the learned Single Judge by order dated 24.05.2013, taking note of the controversy regarding the Permanent Resident Certificate of respondent nos. 7 and 8, referred the matter to the Deputy Commissioner, Ramban for conducting enquiry after giving reasonable opportunity to the appellant and respondent nos. 7 and 8. The learned Single Judge also permitted all parties to file documents in support of their claims. 5. The Deputy Commissioner sought for a report from Tehsildar Ramban, who heard the parties and submitted his report on 30.08.2013. In the said report it is stated that Permanent Resident Certificate of Jagdish Singh son of Bali Ram issued by Assistant Commissioner Revenue dated 29.08.2012 shows his village of residence as Dharlai. Permanent Resident Certificate of Rekha Devi D/O Mast Ram issued on 19.04.2011 shows her village of residence as Dessa at present Dharlai. The Election Card of Jagdish Singh and Rekha Devi shows their address as Dhandrath and Dharlai is a revenue village falling under Panchayat Halqa Dhandrath ‘C’. The Ration Card and electricity bills produced by the respondent nos. 7 and 8 during the course of enquiry also shows their place of residence as Dharlai. On the spot enquiry was also made to ascertain the facts on ground and some of the residents of the village Dharlai, who were enquired, deposed before the revenue officers that respondent nos. 7 and 8 are actually and physically residing in village Dharlai and both of them constructed houses in village Dharlai 7/8 years back and they started residing there. Thus a categorical finding was given in the report dated 30.08.2013 that respondent nos. 7 and 8 are actually residents of village Dharlai. The learned Single Judge accepted the said finding and dismissed the writ petition. 6. The order of the learned Single Judge is challenged on the ground that Deputy Commissioner has not personally conducted the enquiry and he deputed the Tehsildar to hold the enquiry, therefore, there is a procedural violation. 7. 7 and 8 are actually residents of village Dharlai. The learned Single Judge accepted the said finding and dismissed the writ petition. 6. The order of the learned Single Judge is challenged on the ground that Deputy Commissioner has not personally conducted the enquiry and he deputed the Tehsildar to hold the enquiry, therefore, there is a procedural violation. 7. We have perused the Permanent Resident Certificates dated 29.08.2012 issued to respondent based on report dated 25.08.2012 to respondent no.7, namely, Jagdish Singh as well as to the 8th respondent, namely, Rekha Devi dated 19.04.2011 based on report of Tehsildar dated 15.01.2011, as also the other documents relied in the enquiry report, particularly Ration Card and electricity bills. The applications were invited by notification dated 25.08.2012. The competent authority having issued the Resident Certificates dated 29.08.2012 and 19.04.2011, the said certificates are to be given due validity as the said certificates have been issued by Assistant Commissioner Revenue based on the report of the Tehsildar Ramban during discharge of his official duties, therefore, there is official presumption regarding the validity of the certificates possessed by respondent nos. 7 and 8. The said certificates are not questioned by the appellant in any forum, namely, before the appropriate appellate Revenue authority and the said certificates are valid even as on today. 8. The issue as to whether the certificate issued by the competent authority can be acted upon unless the same is set aside, was considered by Hon’ble the Supreme Court in the decision reported in (1997) 7 SCC 505 ( R. Kandasamy v. Chief Engineer, Madras Port Trust), in respect of the community certificate issued to a candidate was in issue. Hon’ble the Supreme Court in the said case held that so long as the community certificate issued by the competent authority is not cancelled, everyone is bound to accept the same as a valid certificate and the same shall be acted upon. Though the said case was relating to validity of community certificate, the principle stated in the judgment is applicable with equal force to the facts of this case as the issue in this case is regarding the acceptance of Permanent Resident Certificate produced by respondent nos. 7 and 8 and issued by the official respondents is valid document for selection as RET. 9. 7 and 8 and issued by the official respondents is valid document for selection as RET. 9. Thus we are in entire agreement with the order of the learned Single Judge and no case is made out to interfere with the said order. Hence the writ appeal is dismissed. However, the dismissal of the appeal will not preclude the appellant to challenge the Resident Certificates issued to respondent nos. 7 and 8, if the appellant is having any valid ground to challenge the same before any competent forum in accordance with law. 10. With the said liberty the writ appeal is dismissed. No costs.