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2016 DIGILAW 45 (MEG)

Agnes Kharshing v. State of Meghalaya

2016-10-27

DINESH MAHESHWARI, VED PRAKASH VAISH

body2016
JUDGMENT : DINESH MAHESHWARI, J. 1. The appellant herein, who had lodged an FIR dated 12.02.2010 [bearing No.62(7) 2011 of Laitumkhrah Police Station, East Khasi Hills District, Shillong] alleging manipulation of marks and use of false certificates in the process of recruitment to the post of Assistant Teacher in Government L.P. Schools, preferred a writ petition [WP(C) No.161 of 2016] essentially with the prayer that the investigation in the said FIR be transferred to Central Bureau of Investigation ['CBI'] as, according to the appellant, several State functionaries were involved in the matter and the investigation was not properly proceeding ahead. However, by the impugned order dated 03.10.2016, the learned Single Judge of this Court declined to proceed with the writ petition after the respondents stated that the matter in issue was pending before the Hon'ble Supreme Court in a petition for Special Leave to Appeal ('SLP'). Aggrieved by the order so passed by the learned Single Judge, the petitioner/appellant seeks to maintain this intra court appeal. 2. At the initial stage in the said writ petition, it appeared before the Court that there had been another litigation concerning the recruitment in question in a batch of writ petitions led by WP(C) No.106 (SH) of 2010. The decision in the said writ petition was questioned before the Division Bench in the appeals led by WA No.52(SH) of 2011; and the final judgment in the appeals has been questioned in SLP (C) No.5991 of 2014 that remains pending before the Hon'ble Supreme Court. At the given stage, the copies of the orders so passed by the Courts were not placed on record and hence, the petitioner/appellant was called upon to state all the relevant facts with specifications and copies of necessary documents. 3. Thereafter, on 03.06.2016, the learned Single Judge took note of the submissions made on behalf of the petitioner/appellant and called for the progress report from the Investigating Officer of the concerned Police Station. 3. Thereafter, on 03.06.2016, the learned Single Judge took note of the submissions made on behalf of the petitioner/appellant and called for the progress report from the Investigating Officer of the concerned Police Station. After filing of the report by the Investigating Officer, it appears that the fact of pendency of the matter before the Apex Court was again placed before the Court whereupon the learned Single Judge, by the order dated 08.09.2016, even asked for the assistance of the counsel who had filed the SLP before the Hon'ble Supreme Court; and, by another order dated 29.09.2016, directed the State counsel to file an affidavit when it was submitted that the issue involved in the case had already been brought to the notice of the Hon'ble Supreme Court. Thereafter, an affidavit of the Commissioner and Secretary, Home (Police) Department, Government of Meghalaya was filed on 30.09.2016 stating, inter alia, as under:- "2. That the deponent states that during the pendency the Special Leave Petition, the instant writ application on the same cause has been filed before this Hon'ble Court praying for a direction to hand over Laitumkhrah P.S. Case No. 62 (7) of 2011 to CBI involving the same issue which is pending before the Hon'ble Supreme Court. 3. That the deponent states that since the subject matter and the issue involved pending before the Hon'ble Supreme Court and this Hon'ble Court is identical in nature, the Director of School Education and Literacy, Government of Meghalaya who is a party in the proceedings before the Hon'ble Supreme Court, in order to avoid multiplicity of proceedings and proper appreciation of the matter had filed an Interlocutory Application bringing on record the instant Writ Petition being W.P. (C) No. 161 of 2016 before the Hon'ble Supreme Court. ...." 4. It is seen that in the interlocutory application filed before the Hon'ble Supreme Court, the fact of filing of Writ Petition (C) No.161 of 2016 was brought to the notice of the Hon'ble Supreme Court. On our query, the learned counsel for the appellant as also learned Sr.GA are not in a position to state if any order has been passed by the Hon'ble Supreme Court in the said I.A. 5. On our query, the learned counsel for the appellant as also learned Sr.GA are not in a position to state if any order has been passed by the Hon'ble Supreme Court in the said I.A. 5. In the given status of record, the learned Single Judge proceeded to close the matter in the writ petition without any order, essentially on the principles of judicial propriety, particularly when the matter was said to be pending before the Hon'ble Supreme Court. The order passed by the learned Single Judge on 03.10.2016 reads in its entirety as under:- "03-10-2016 Heard Mr. N. Syngkon, learned counsel on behalf of the petitioner as well as Mr. V.K.Jindal, learned Sr. Counsel, assisted by Mr. M.K. Marak on behalf of the CBI. As directed by this Court, Mr. P.Nongbri, learned State counsel has filed an affidavit wherein in para 2 it is stated that the issue involved in this case is also pending before the Hon'ble Apex Court. If it is so, I am not inclined to entertain the petition since the matter is already before the Hon'ble Apex Court, otherwise it will amount to judicial indiscipline. Para 2 of the said affidavit is reproduced herein below: "2.That the deponent states that during the pendency the Special Leave Petition, the instant writ application on the same cause has been filed before this Hon'ble Court praying for a direction to hand over Laitumkhrah P.S. Case No. 62 (7) of 2011 to CBI involving the same issue which is pending before the Hon'ble Supreme Court." Court Master to return Progress report submitted by IO. Accordingly, writ petition is disposed of without any order." 6. Seeking to assail the order aforesaid, learned counsel for the appellant has strenuously argued that the matter pending before the Hon'ble Supreme Court does not involve the question of investigation in the FIR; and the appeal before the Hon'ble Supreme Court relates to the judgment of the Division Bench of this Court and for that matter, the prayer made in relation to the criminal investigation could not have been declined by the learned Single Judge. 7. In response to our query in regard to the subject-matter of appeal before the Hon'ble Supreme Court and that of Laitumkhrah PS Case No.62 (7) 2011, it is an admitted position that the matter essentially concerns the process of recruitment of Assistant Teacher at Lower Primary School level. 7. In response to our query in regard to the subject-matter of appeal before the Hon'ble Supreme Court and that of Laitumkhrah PS Case No.62 (7) 2011, it is an admitted position that the matter essentially concerns the process of recruitment of Assistant Teacher at Lower Primary School level. In regard to the said recruitment process, there had been allegations of manipulation of marks and favouritism. The matter had acquired the attention of this Court earlier in a batch of petitions led by WP(C) No.106 (SH) of 2010. While disposing of the said batch of petitions by the order dated 21.10.2011, the learned Single Judge directed the Superintendent of Police, CBI, Shillong to cause an enquiry into the matter relating to the appointment of Assistant Teachers. The CBI, after making an enquiry, submitted its report before the Court. It appears that ultimately, in the appeals led by Writ Appeal No.52 (SH) of 2011, a Division Bench of this Court directed in its judgment and order dated 16.08.2012 that the Principal Secretary to the Government of Meghalaya in the Education Department shall constitute a High Level Scrutiny Committee. It has also been indicated that on the recommendations of such High Level Scrutiny Committee, services of some of the selected candidates were terminated; and such selected candidates, whose services were terminated, have challenged their termination orders in another batch of petitions led by WP(C) No.166 of 2014, which is pending in this Court. On the other hand, some of the aggrieved candidates have challenged the aforesaid judgment and order dated 16.08.2012 as passed in WA No.57 (SH) of 2011 in SLP (C) No.5991 of 2014 that remains pending in the Hon'ble Supreme Court and therein, an interim order was passed by the Supreme Court on 21.04.2014, staying the operation of impugned judgment and order dated 16.08.2012. 8. It is not in dispute that in the FIR aforesaid, the allegations of the appellant are essentially of manipulation of marks in the same selection process which was the subject-matter in the aforesaid judgment and order dated 16.08.2012, which has been challenged before the Hon'ble Supreme Court in SLP (C) No.5991 of 2014. That being the position, it is difficult to say that the subject-matter of SLP pending before the Hon'ble Supreme Court and that involved in the FIR lodged by the appellant are distinct or different. That being the position, it is difficult to say that the subject-matter of SLP pending before the Hon'ble Supreme Court and that involved in the FIR lodged by the appellant are distinct or different. On the contrary, it is evident on the face of the record that the matter involved in the FIR is fundamentally concerning the same subject-matter which is involved in the SLP before the Hon'ble Supreme Court. 9. In the given set of facts and circumstances, the learned Single Judge cannot be faulted in declining to exercise writ jurisdiction in this matter at the instance of the petitioner. 10. In view of the above, we are not inclined to entertain this intra court appeal. The appeal, is therefore, dismissed summarily. 11. However, in the circumstances of the case, we make it clear that we have not pronounced on the merits of the contentions sought to be urged by the appellant on her prayer for transfer of investigation to CBI; and the parties are otherwise at liberty to take recourse to appropriate remedies in accordance with law.