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2017 DIGILAW 384 (JK)

Imitiaz Hussain v. State of J&K

2017-07-19

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. The respondent No. 3 vide Advertisement Notice No. Edu/SDP/SSA/278922-55 dated 04.08.2010 invited applications for engagement of RET Teachers under SSA Scheme in different villages of District Rajouri. Amongst others, two posts of RET teachers were notified for Government Primary School, Kanger (Kandi) of Zone Koteranka. In response to the aforesaid Notification, the petitioner claims to have applied for the post notified for Government Primary School, Kanger (Kandi). It is averred in the writ petition that since the habitation Kanger where the School in question was situated qualified to be “village” in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009 and, therefore, the panel was required to be drawn by taking habitation Kanger as unit of selection. The petitioner claims that while the panel was being prepared, he came to know that the same was being prepared in violation of the Advertisement Notice as well as the Government Order No. 288-Edu of 2009 dated 08.04.2009. He approached this Court through the medium of SWP No. 2801/2010 seeking an innocuous direction to the respondents to prepare the merit penal on habitation basis and empanel the petitioner and others belonging to the habitation for consideration and issuance of necessary orders of appointment in their favour. It is submitted that in the aforesaid writ petition, by way of an interim order, directions were issued to the respondents to proceed in making selection on habitation basis strictly in accordance with the provisions of Government Order No. 288-Edu of 2009 dated 08.04.2009. In the meanwhile, it is claimed by the petitioner that respondent No. 4 had already prepared the merit panel at the village level wherein all the candidates belonging to different Moharas of Revenue village Kandi, who had applied, had been empanelled. The petitioner figured at S. No. 8 of the panel. However, pursuant to the interim directions issued by this Court on 07.12.2010 in SWP No. 2801/2010 fresh panel was prepared in terms of Government Order No.288-Edu of 2009 dated 08.04.2009 in which the name of the petitioner figured at S. No. 2. The respondent No. 2, on receipt of aforesaid panel, issued approval for engagement of the petitioner and one Ishtiaq Hussain against the two posts of RET teachers notified for Government Primary School, Kanger vide Notification dated 08.04.2010. 2. The respondent No. 2, on receipt of aforesaid panel, issued approval for engagement of the petitioner and one Ishtiaq Hussain against the two posts of RET teachers notified for Government Primary School, Kanger vide Notification dated 08.04.2010. 2. It appears that engagement of the petitioner was challenged by one Zubina Kousar and Kifaitullah in two separate writ petitions, i.e., SWP Nos. 2528/2011 and 301/2012. The writ petition of Zubina Kousar was disposed of by directing the Deputy Commissioner, Rajouri to conduct inquiry about the permanent place of residence of petitioner. It is claimed by the petitioner that the inquiry so conducted, revealed that Zubina Kousar was not the resident of Mohra Kanger, whereas the petitioner was found to be the resident of Mohra Kanger. Similarly the writ petition filed by Kifiatullah was disposed of on 21.05.2014 with a direction to the Deputy Commissioner, Rajouri to conduct an inquiry with regard to respondent No. 6’s residence and also to inquire about the applicability of Government Order No. 288-Edu of 2009 dated 08.04.2009. It is stated in the writ petition that pursuant to the order passed by this Court dated 21.05.2014 in SWP No. 301/2012, an inquiry was conducted by the Deputy Commissioner, Rajouri, who vide report dated 30th August 2014, came to the conclusion that the petitioner Kifiatullah was the resident of Mohra Khaker, whereas respondent No. 6 in writ petition SWP No. 301/2012 was residing in Mohra Kanger of village Kandi where the School was located. 3. It was also concluded by the Deputy Commissioner in his report that the population of Mohra Kanger was less than 300 souls and that it was not separated from the adjoining Mohra by a distance of one Kilometer or more, the conditions laid down in the Government Order No. 288-Edu of 2009 dated 08.04.2009 were not fulfilled. Being aggrieved, the petitioner challenged the report of Deputy Commissioner, Rajouri dated 30.08.2014 in SWP No. 2419/2014 in which this Court vide order dated 04.09.2014, appointed Chowdhary Niaz A. Naaz, Advocate of this Court as Court Commissioner for conducting on spot measurement of actual distance between two adjoining Mohras, i.e., Kanger and Khaker. Being aggrieved, the petitioner challenged the report of Deputy Commissioner, Rajouri dated 30.08.2014 in SWP No. 2419/2014 in which this Court vide order dated 04.09.2014, appointed Chowdhary Niaz A. Naaz, Advocate of this Court as Court Commissioner for conducting on spot measurement of actual distance between two adjoining Mohras, i.e., Kanger and Khaker. Pursuant to the aforesaid order, the Court Commissioner conducted the spot inspection and took measurement with the help of Assistant Executive Engineer concerned and two other Junior Engineers and found that the actual distance between the two Mohras, i.e., Kanger and Khaker of village Kandi is 567 meters. Taking note of the report of the Court Commissioner, this Court dismissed the writ petition filed by the petitioner, i.e., SWP No. 2419/2014 on 16.12.2015 by placing reliance upon a Full Bench judgment of this Court delivered in LPA No. 148/2013 titled Mubeena Hassan v. State of J&K and ors. It appears that the petitioner thereafter also took resort to the remedy of filing review. The Review petition filed by the petitioner which was registered as Review (SWP) No. 14/2015, was also dismissed by the learned Single Judge of this Court on 31.12.2015. The petitioner claims that against the Judgment passed on 16.12.2015, he has filed LPAs, i.e., LPA Nos. 02/2016 and 38/2016 which also have been dismissed by the Division Bench of this Court vide order dated 30.01.2017. 4. It is also submitted that while aforesaid appeals were pending, respondent No. 2 issued an order by which he has ordered disengagement of the services of the petitioner on the basis of the report of Deputy Commissioner, Rajouri dated 30.08.2014 and further directions have been issued to respondent No.3 to process the case of meritorious candidates for engagement as RET teachers on the resultant vacancy on the basis of Revenue village. The petitioner claims that this has been done under the directions of respondent No.2 issued vide his communication No. DSEJ/Legal/25683-88 dated 9th August, 2016 which order the Director has kept subject to the outcome of LPA No. 02/2016 which has already been dismissed. As noted above, LPA No. 02/2016 has been dismissed. 5. The petitioner claims that this has been done under the directions of respondent No.2 issued vide his communication No. DSEJ/Legal/25683-88 dated 9th August, 2016 which order the Director has kept subject to the outcome of LPA No. 02/2016 which has already been dismissed. As noted above, LPA No. 02/2016 has been dismissed. 5. The petitioner is aggrieved of the aforesaid order of Respondent No. 2 issued on 09.08.2016 and has challenged the same, inter alia, on the ground that despite the fact that there was ample material to show that the habitation Kanger qualified to be a Revenue village in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009 and the respondent No. 2 has acted upon the report of Deputy Commissioner, Rajouri which was factually incorrect and had been managed by respondent No. 6. 6. It is vehemently contended by learned counsel for the petitioner that habitation Kanger is having the population of more than 300 souls and is separate from its adjoining habitation by a distance of more than one kilometer and, therefore, all the parameters laid down in Government Order No. 288-Edu of 2009 dated 08.04.2009 are satisfied. Reliance was placed upon the earlier report of Deputy Commissioner, Rajouri dated 21.12.2013 wherein pursuant to the directions issued by this Court on 21.09.2012 in SWP No. 2528/2011, filed by one Zubina Kousar, an inquiry was held by the then Deputy Commissioner, Rajouri, who in his report concluded that Zubina Kousar was resident of village Kandi and that there was no reference to Mohras in the Revenue records except in Chowkidara Register. In the aforesaid report, it was also concluded that the two mohras, i.e., Mohra Kanger and Mohra Sarha were adjacent to each other and separated by Kassi, i.e., Nullah which was about 20 feet wide and the population of Mohra Kanger as per the records was about 262 persons. This report was produced by record by learned counsel for the petitioner during the course of arguments and is taken on record. 7. Per contra, learned counsel for the respondents would submit that the petitioner had managed his appointment illegally and, therefore, the same was called in question by respondent No. 6 in SWP No. 301/2012. This report was produced by record by learned counsel for the petitioner during the course of arguments and is taken on record. 7. Per contra, learned counsel for the respondents would submit that the petitioner had managed his appointment illegally and, therefore, the same was called in question by respondent No. 6 in SWP No. 301/2012. This Court, after hearing the petitioner herein and respondent No. 6, who was writ petitioner therein, disposed of the writ petition by directing the Deputy Commissioner, Rajouri to conduct an inquiry with regard to the applicability of Government Order No. 288-Edu of 2009 dated 08.04.2009. It is thus submitted that pursuant to the directions issued by this Court on 21.05.2014 while disposing of the writ petition, an in-depth inquiry was conducted by the Deputy Commissioner, Rajouri by associating the petitioner and respondent No. 6. Ultimately, the findings were returned that the conditions laid down in the Government Order No. 288-Edu of 2009 dated 08.04.2009 were not fulfilled and, accordingly, the Chief Education Officer, Rajouri was directed to proceed in the matter under rules as per the conditions laid down in the Advertisement Notification. 8. Learned counsel for the respondents further argued that in the writ petition, i.e., SWP No. 2419/2014 filed by the petitioner challenging the report of the Deputy Commissioner, Rajouri, this Court appointed an Advocate of this Court as Court Commissioner to conduct the spot inspection and take the measurement and the Court Commissioner with the assistance of Assistant Executive Engineer and two Junior Engineers took the measurement and found that the distance between the two Mohras, i.e., Kanger and Khaker of village Kandi was 576 meters. It is thus contended that in the light of aforementioned two reports there remains nothing to be determined with regard to the applicability of Government Order No. 288-Edu of 2009 dated 08.04.2009. Therefore, respondent No. 2 has rightly passed impugned order dated 09.08.2016. 9. Learned counsel for respondent No. 6 has placed reliance upon a Judgment of this Court passed in the case of Seema Devi and Anr. V. State of J&K and Ors., 2012 (4) JKJ 116 (HC), wherein under similar set of circumstances, report of Deputy Commissioner, which he had prepared on the basis of evidence adduced before him by the parties, was not interfered with. 10. Heard learned counsel for the parties and perused the record. V. State of J&K and Ors., 2012 (4) JKJ 116 (HC), wherein under similar set of circumstances, report of Deputy Commissioner, which he had prepared on the basis of evidence adduced before him by the parties, was not interfered with. 10. Heard learned counsel for the parties and perused the record. Undisputedly, there are two reports, one by the Deputy Commissioner, Rajouri, prepared by him pursuant to the directions issued in SWP No. 301/2012 and the other by the Court Commissioner prepared by him in terms of order dated 04.09.2014 passed in SWP No. 2419/2014. In both the reports, it is unequivocally held that insofar as Mohra Kanger is concerned, the same does not qualify to be village in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009. Even the report prepared by the then Deputy Commissioner, Rajouri dated 21.12.2013 on which reliance was placed by learned counsel for the petitioner is of no assistance to the petitioner, inasmuch as, in the aforesaid report also, it has been shown that the total population of Mohra Kanger as per records is 262 persons and, therefore, the provisions of Government Order No. 288-Edu of 2009 are not attracted. 11. Viewed thus, there is no material on record which would persuade this Court to take a view contrary to the one that is taken by the then Deputy Commissioner, Rajouri as well as by the Court Commissioner (Supra). Needless to say that the writ Court cannot re-appreciate the evidence to reverse a finding of fact, even if, upon re-appreciation, another view is possible. This Court cannot sit in an appeal against the findings of fact recorded by the Deputy Commissioner and Court Commissioner, who were directed to hold inquiry in the matter by this Court, particularly, when the findings were recorded by the Deputy Commissioner as also by the Court Commissioner after associating the petitioner as well as respondent No. 6 and were otherwise not found to be perverse and based on no evidence. 12. In this view of the matter, order impugned passed by respondent No. 2 does not call for any interference and, therefore, the writ petition is found to be without any merit and, hence, dismissed with all connected MPs.