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2021 DIGILAW 445 (JK)

Safiya Sikander v. State of J&K

2021-09-01

PANKAJ MITHAL, SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. 1. Appellants have challenged judgments dated 15.03.2019 passed by learned Writ Court, whereby writ petitions filed by the appellants bearing SWP Nos.431/2019, 433/2019 and 434/2019 have been dismissed. 2. The facts leading to filing of these intra-court appeals are that Jammu and Kashmir Services Selection Board (for short the respondent Board) issued advertisement notice No.06/2017/01 to 06/2017/14 dated 28.12.2017, inviting online application from eligible candidates for selection to the District Cadre posts of General Line Teachers. These advertised posts related to Anantnag, Bandipora, Baramulla, Ganderbal, Kulgam, Pulwama, Shopian, Srinagar, Samba, Udhampur, Reasi and Rajouri districts. In the case of District Srinagar, 333 District Cadre posts of Teachers were advertised, out of which 33 posts were reserved for Scheduled Tribe category candidates. As per the advertisement notice, only the candidates belonging to a particular district were eligible to apply for the posts pertaining to the said district. The last date for submission of application forms was fixed as 21st January, 2018. 3. The writ petitioners responded to the aforesaid advertisement notice by offering their candidature for Scheduled Tribe Category posts pertaining to district Srinagar. After conducting OMR based written test of the candidates, the respondent Board issued provisional shortlist of the candidates vide its communication No.SSB/Secy/2018/9151-55 dated 04.08.2018 asking the shortlisted candidates to appear before the Counselling cum Document Verification Committee for counselling and document verification. The writ petitioners, accordingly, appeared before the Committee and submitted certain certificates regarding their eligibility. However, when the select list was published by the respondent Board, the writ petitioners did not find their names in the same even though they had secured higher merit than those who were selected in the merit list issued by the respondent Board. Accordingly, the writ petitioners challenged the selection of candidates as General Line Teachers under Scheduled Tribe category of District Srinagar by filing the writ petitions which are subject matter of these intra-court appeals. 4. The respondent Board filed its objections before the Writ Court, in which it contended that the Counselling cum Document Verification Committee, upon verification of the documents produced by the writ petitioners, found them not eligible for the post of Teacher for District Cadre Srinagar as they failed to produce residence certificate as envisaged by Section 13 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010 (“Act of 2010” for short hereinafter). The respondent Board took a stand that the merit position of the writ petitioners is immaterial because they could not be considered for the advertised posts under Scheduled Tribe category for District Srinagar as they have been found not eligible for the said posts. Accordingly, the respondent Board justified its action of ignoring the candidature of the writ petitioners in the select list. 5. The learned Writ Court upon consideration of the material on record, came to the conclusion that there is nothing on record to suggest that as on date of application, the writ petitioners had resided in District Srinagar for a period of not less than 15 years and, as such, they were rightly held ineligible for the posts in question. Accordingly, the writ petitions have been dismissed in terms of judgments dated 15.03.2018 which are under challenge before us. 6. We have heard learned counsel for the parties and perused the record of the case. 7. The decision in this case hinges on determination of the issue whether the writ petitioners, on the basis of the documents which they had placed before the Counselling cum Document Verification Committee, could be stated to have resided for a period not less than 15 years before the date of application in District Srinagar, which was the requirement under Clause 1(i) of the Advertisement Notice dated 28.12.2017, which reads as under: “(1) Online applications are invited from eligible candidates for participating in the selection process for various District cadre posts shown against Unique Advertisement Number mentioned in the Annexure “A” to this notification who:- (i) are permanent residents of J&K State. (a) It is further amplified that in respect of District Cadre posts only those candidates who are residents of the concerned District as defined under the relevant Act/Rules can apply. However, candidates belonging to SC category are eligible to apply for the said reserved vacancies irrespective of the district of residence in the concerned District. (b) “A person shall be deemed to be resident of a particular District if he / she has resided in such District as the case may be for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area”. (b) “A person shall be deemed to be resident of a particular District if he / she has resided in such District as the case may be for a period of not less than 15 years before the date of applying for a particular post and is actually residing in the said area”. (c) If a woman marries outside her District the period of residence of 15 years shall not operate as bar for applying to a post provided that her husband is a resident of that District, as the case may be, for a period of not less than 15 years.” 8. From a perusal of the aforesaid Clause, it is clear that District Cadre posts are meant only for those candidates who are residents of the concerned District as defined under the relevant Act/Rules. This clause of the advertisement notice owes its genesis to the provisions contained in Section 6 of the Act of 2010, which deals with appointment to District Cadre posts. It reads as under: “6. Appointment to District Cadre posts. A persons shall be eligible to the appointment to a District Cadre post only if he,-- (i) is a permanent resident of the State; (ii) is a resident of the concerned district; and (iii) possesses the prescribed qualification, eligibility and experience for the post as specified under the rules/orders regulating recruitment to such posts. 9. From a perusal of the aforesaid provision, it is clear that for being eligible for appointment to the District Cadre posts, a candidate, inter alia, should be a resident of the concerned district. As per Clause 1(i)(b)of the advertisement notice, as quoted above, a person is deemed to be resident of a particular District if he/she has resided in such District for a period not less than 15 years before the date of application and is further actually residing in the said area. Thus, in order to be eligible to apply for a District Cadre post, it has to be shown by the candidate that he/she is residing in that particular district for a period not less than 15 years and that he was actually residing in the district as on the date of application. 10. Thus, in order to be eligible to apply for a District Cadre post, it has to be shown by the candidate that he/she is residing in that particular district for a period not less than 15 years and that he was actually residing in the district as on the date of application. 10. Now the point to be determined is as to whether on the basis of the documents placed before the Counselling cum Verification Committee by the writ petitioners, it can be stated that they had resided for a period not less than 15 years in District Srinagar and that they were actually residing in the said District on the date of the application. According to the writ petitioners, they had placed the following documents/certificates before the Counselling cum Verification Committee : (i) State Subject certificate’ (ii) ST category certificate; (iii) Permanent Resident certificate dated 06.03.2018 issued by the concerned Tehsildar; (iv) Certificate dated 20.09.2018 issued by Tehsildar Headquarter with Deputy Commissioner Srinagar; (v) Migration certificate dated 06.01.2018 issued by Tehsildar Gurez in favour of the father of the petitioners; (vi) Photo voter slip issued by Election Commission of India in favour of the petitioners; (vii) Copy of ration card showing residence of father of the petitioners with house number; (viii) The revenue documents of the land on which father of the petitioners has constructed a residential house in the year 1991 along with Khaka Dasti thereof; (ix) Marks card of the petitioner Safiya of class nursery (admission No.842 of Way Land School Jawahir Nagar, Srinagar) (x) Certificate issued by Tehsildar Headquarter with Deputy Commissioner, Srinagar, dated 18.02.2019 certifying that father of the petitioners has been a resident of Mehjoor Nagar, Srinagar, since 1989. 11. So far as document at serial No.(x) i.e., certificate issued by Tehsildar Headquarter, Srinagar, dated 18.02.2019, is concerned, it is improbable that the writ petitioners would have produced the said certificate before the Counselling Cum Document Verification Committee for the reason that the date of counselling and verification of documents, as mentioned in petitioners’ own documents, was 17th September, 2018, whereas the aforesaid certificate has been issued on 18.02.2019 which is well after the date of counselling and documents verification. Any document produced after the cut-off date fixed for verification of documents cannot be taken into consideration by the selection agency for the purpose of determining the eligibility of a candidate. 12. Any document produced after the cut-off date fixed for verification of documents cannot be taken into consideration by the selection agency for the purpose of determining the eligibility of a candidate. 12. So far as the State Subject certificate and Scheduled Tribe Category certificates of the writ petitioners are concerned, it is clearly shown in these certificates that the writ petitioners are residents of Tehsil Gurez in District Baramulla (now District Bandipora). The other certificates, mentioned hereinbefore, that were produced by the writ petitioners before the Committee do not suggest that they have resided in District Srinagar for a period of 15 years and that they were actually residing in Srinagar on the date of application. All these documents have been meticulously analysed by the learned Writ Court and we do not find any error in the said analysis or the conclusion drawn by the learned Writ Court from such analysis. 13. Apart from the above, sub-rule (4) of Rule 13 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, provides that the permanent resident certificate shall be the conclusive proof of residence of a candidate in a particular District or the Division. It reads as under: “(4). For purposes of this rule, the permanent resident certificate shall be the conclusive proof of residence of a candidate in a particular District or the Division.” [emphasis supplied] 14. The expression “conclusive proof” has been defined in Section 4 of the Act of Evidence Act. The relevant excerpts of the said provision are quoted below: “Conclusive Proof”.—When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” From a perusal of the aforesaid provision, it is clear that when a fact is declared to be “conclusive proof” of another, no evidence could be given for the purposes of disproving the said fact. 15. 15. The Supreme Court in the case of Calcutta Municipal Corporation v. Pawan Kumar Saraf and another, (1999) 2 SCC 400 , while interpreting proviso to sub-section (5) of Section 13 of Prevention of Food Adulteration Act, 1954, according to which a document purporting to be a certificate signed by Director, Central Food Laboratory, is to be treated as final and conclusive evidence of the facts stated therein, in para 12 of the judgment observed as under : “12. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is import of Section 4 of the Evidence Act, 1872 which defines three kinds of presumptions among which the last is “conclusive proof”: 16. Again, in State of Kerala v. Mohammad Basheer, (2019) 4 SCC 260 , the Supreme Court, while explaining the meaning of the expression “conclusive proof”, has observed that it is well settled that when the enactment enjoins that any evidence would be treated as conclusive proof of certain factual situations or legal hypothesis, law would forbid other evidence to be adduced for purposes of contradicting or varying such conclusiveness. 17. From the foregoing analysis of the legal position, it is absolutely clear that once sub-rule (4) of Rule 13 (supra) makes State Subject certificate “conclusive proof” with regard to residence of a candidate in a particular District or division, no amount of evidence or documents can dislodge the same. Admittedly, the State Subject certificates submitted by the writ petitioners before the Counselling cum Document Verification Committee show them to be the residents of Tehsil Gurez District Baramulla (now District Bandipora). These certificates are conclusive proof about the fact that they belong to the said District. Thus, even if for the sake of arguments, it is assumed that the writ petitioners did produce documents or evidence before the Verification Committee to establish that they have been residing in District Srinagar for a period of more than 15 years, still then their claim cannot be accepted in the face of conclusive proof of their residence as given in the State Subject certificates produced by them. 18. 18. Learned counsel for the writ petitioners has vehemently contended that the selected candidates i.e., private respondents herein originally belong to the areas outside District Srinagar but they have managed to get State Subject certificates from Srinagar District by suppressing the material facts before the authorities who have issued the State Subject certificates in their favour. 19. We are afraid we cannot go into this aspect in these proceedings. Once the private respondents have submitted State Subject certificates showing them to be the residents of District Srinagar before the Counselling cum Document Verification Committee, it was not open to the Committee to go behind the circumstances under which these documents were issued by the competent authority. It is impermissible for this Court also to go into this issue in these proceedings. 20. Even otherwise, it appears from the material on record that suppression of material facts, if any, has been resorted to by the writ petitioners. On the one hand they claim to be residing in District Srinagar since the year 1989 but on the other they have obtained permanent resident certificates and category certificates in the year 1998 showing themselves to be residents of Tehsil Gurez District Bandipora. If the writ petitioners were actually residing in District Srinagar since the year 1989, they could have easily procured the aforesaid certificates from the Competent Authority of District Srinagar. Gurez being a backward area, it seems, the writ petitioners deliberately chose to get the aforesaid certificates by showing themselves as residents of said area so as to reap the benefit of reservation in employment meant for the residents of backward areas but unfortunately it has worked against them in this case. The writ petitioners cannot now be heard to claim that they are actually residents of District Srinagar and to have best of both worlds. 21. It has been lastly contended by the learned counsel for the writ petitioners that sub-rule (4) of Rule 13 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, is working very harshly against the writ petitioners, inasmuch on the basis of the documents, which they have produced before the Counselling cum Document Verification Committee, they are shown to be the residents of District Srinagar whereas on the basis of the State Subject certificates, they are presumed to be residents of District Bandipora. This, according to the learned counsel, has put the writ petitioners in a precarious position as they cannot apply for their employment to District Cadre posts either in District Bandipora or in District Srinagar. According to the learned counsel, even the Writ Court has noted this lacuna in the Rules but has expressed its helplessness in the matter. 22. As already noted, the State Subject certificate, as per the existing rules, is the conclusive proof of residence of a candidate and, as such, it would be open to the writ petitioners to apply for District Cadre posts in District Bandipora and no amount of documents is enough to refute or rebut the position regarding their residence in District Bandipora. Even otherwise, the writ petitioners have not challenged the vires of Rule 13 of the of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, as such, we are not inclined to go into this aspect of the matter. The said Rule, as on date, has to be applied as it is and not as it ought to be. 23. For the forgoing reasons, we no not find any infirmity or illegality in the impugned judgment(s) passed by the learned Writ Court. The appeals are, accordingly, dismissed being without any merit.