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2022 DIGILAW 347 (JK)

Tawheeda Akhtar v. Ruqaya Tasleem

2022-07-20

JAVED IQBAL WANI, PANKAJ MITHAL

body2022
Judgment Javed Iqbal Wani, J.—The instant appeal is preferred by the appellant against judgment dated 06.04.2022 (hereinafter referred to impugned order) passed in SWP No. 2130/2013 captioned as “Ruqaya Tasleem Vs. State and Ors”. 2. Before adverting to the issues involved in the instant appeal, brief facts emerging therefrom are delineated as under:— • In the year 2004, an advertisement notice was issued by the School Education Department for engagement of Rehbar-i-taleem (ReT) under SSA scheme in a school in Mehdi Colony, Wahdatpora, Budgam, situated in ward No. 4 of the Municipal Committee, Budgam. • The appellant herein applied for consideration against the said post of ReT as also respondent No. 1 claiming to be residents of said ward No. 4. • A dispute arose between the appellant herein and the respondent No. 4 herein about the place of residence of respondent No. 1 herein landing before the Chief Education Officer (respondent No. 4-herein) which finally resulted into drawing of a conclusion by respondent No. 4 that the respondent No. 1 is not the resident of ward No. 4, as such, not entitled to the consideration and issuance of a consequential order of appointment in favour of the appellant being order dated 11.08.2005. • The respondent No. 1, dissatisfied with the decision of the respondent No. 4, questioned the engagement order of the appellant herein in SWP No. 864/2005 before this Court with the following reliefs:— 1. By issuance of a writ of certiorari or any other appropriate writ order or direction, the impugned order no. CEOB/plg/3597-99 dated 11.08.2005 be quashed and 2. By issuance of a writ of mandamus or any other appropriate with, order or direction, respondents be directed to appoint the petitioner to the post of RT teaching guide for Primary School Mehdi Colony, Wahdatpora ward no. 4, District Budgam and to give her all the consequential benefits of her engagement as such with effect from the date it has been granted to the candidates who figured at serial no.2 in the list of candidates approved for appointment/engagement for Primary School Mehdi Colony, Wahdatpora, Ward No. 4. Budgam. 4, District Budgam and to give her all the consequential benefits of her engagement as such with effect from the date it has been granted to the candidates who figured at serial no.2 in the list of candidates approved for appointment/engagement for Primary School Mehdi Colony, Wahdatpora, Ward No. 4. Budgam. • During the pendency of the said petition this Court in terms of order dated 18.04.2013, while taking note of the rival claims of the appellant herein as also of the respondent No. 1, in the writ petition directed holding of an enquiry by the Assistant Commissioner, Budgam being respondent No. 8 herein for ascertaining the actual place of residence of respondent No. 1 herein. • The respondent No. 8 herein after holding said enquiry filed a report before this Court indicating therein that the petitioner’s (respondent No. 1 herein) actual residence is found in ward No. 3 of Municipal Committee, Budgam. • In pursuance to the said report of respondent No. 8, the writ petition of the petitioner-respondent No. 1 herein came to be dismissed with the observation “however, petitioner, if so advised, is at liberty to question the enquiry report before the appropriate forum.” • The respondent No. 1 herein chose to question the said report in SWP No. 2130/2013, whereunder the instant appeal has arisen, inter alia, praying therein following reliefs:— i. By issuance of writ of certiorari or any other appropriate writ, the impugned order (inquiry report Annexure-Z/7) be quashed and consequently the appointment Order No. CEOB/Plg/3579-99 dated 11.08.2005 passed by the Chief Education Officer, Budgam (Annexure-S) be also quashed and appropriate order be passed whereby the grievance of the petitioner would get redressed with a view to get her appointed as RT in Government Primary School, Mehdi Colony, Wahadatpora-Budgam in accordance with the provisions governing such appointment. ii. Appropriate direction, writ be issued prohibiting the official respondents not to release benefits in favour of the respondent No.8 which she is likely to draw on the basis of inquiry report/out of fraudulent documents. • The said petition was filed, inter alia, on the grounds that the enquiry conducted by the respondent No. 8 and findings returned thereof were not correct as the material produced before respondent No. 8 by the respondent No. 1 herein was not considered. • The said petition was filed, inter alia, on the grounds that the enquiry conducted by the respondent No. 8 and findings returned thereof were not correct as the material produced before respondent No. 8 by the respondent No. 1 herein was not considered. The writ petition came to be opposed by the appellant herein, inter alia, on the ground of maintainability being misconceived, inasmuch as that the petition raised disputed questions of facts. • The writ Court, however, allowed the petition in terms of impugned judgment and quashed enquiry report directing holding of a fresh enquiry in the matter with a further consequential direction depending upon the result of such enquiry by Assistant Labour Commissioner (Revenue), Budgam. 3. The impugned judgment is being challenged, inter alia, on the following grounds:— i. Because the judgment is bad in law and proceeds on wrong premises without appreciating the law and facts in real perspective and sets a wrong precedent. The judgment is, therefore, liable to be set aside. ii. Because the very writ petition in which impugned judgment has been passed is misconceived and non-maintainable and barred by principles of res judicata. In this regard it is submitted that the issue as to whether respondent No. 1 was resident of Ward No. 3 or 4 was an issue in the earlier writ petition. The Court had appointed a Court Commissioner, herein respondent No. 8, to enquire about the actual residence of respondent No. 1. Said Commissioner had submitted its report and opined that Respondent No. 1 was resident of Ward No. 3. The Hon’ble Court considered said report and passed a judgment. The Hon’ble Court has ruled that respondent No. 1 was resident of Ward No. 3 and rejecting challenge to engagement order of appellant. The respondent No. 1 had not objected to report of Enquiry Officer and allowed it to culminate in the judgment of the Hon’ble Court. The report has merged in the judgment. Having failed to object to the correctness of the report, the respondent No. 1, under such circumstances, could not be permitted to challenge correctness of report by filing a fresh writ petition and thereby get a relief that was denied in the earlier writ petition. The liberty claimed to be granted could not be for the purposes of challenging the engagement of appellant by indirect means. The liberty claimed to be granted could not be for the purposes of challenging the engagement of appellant by indirect means. The learned Court, it submitted with humility, while deciding, the subsequent writ petition has failed to consider this aspect of the matter and opened up issues that have been already conclusively decided. The impugned order is, as such, liable to be set aside. iii. Because the enquiry report was not any statutory exercise but pursuant to order of Hon’ble Court to enable it to return a finding qua residence of respondent No. 1. The report has been accepted by the Hon’ble Court and accordingly a finding returned qua the residence. The report has merged in the judgment. There cannot be now fresh enquiry to remove the basis of earlier judgment and thereafter return a contrary finding. It will amount to two contrary courses by the Hon’ble Court on the same issue and is not in conformity with principles of amity and comity, which the court of co-ordinate jurisdiction are supposed to observe while deciding cases. It such course is allowed, then there would be never any finality to decisions made by Court of law. The impugned judgment is, therefore, liable to be set aside. The liberty granted in the earlier judgment could never mean to override the judgment qua the issues decided by it. iv. Because the Learned Single Judge has wrongly observed that out of two contradictory sets of available documents, enquiry officer has relied upon one set of documents only and has not, according to Learned Single Judge, assigned any reason for the conclusion that have been drawn by him. It is submitted, with all humility, that observation of the Learned Single Judge is not correct. The reasons given are writ large in the report of the enquiry officer itself. The perusal of the enquiry report would reveal that enquiry officer had been conscious of the fact that contradictory set of documents have been produced by opposing parties to establish their respective point of view. What has persuaded the enquiry officer to discard the documents of the respondent No. 1, which purportedly showed her to be resident of Ward 4, is the Government Gazette which defined the limits of wards juxtaposed with the actual location of her residential house. What has persuaded the enquiry officer to discard the documents of the respondent No. 1, which purportedly showed her to be resident of Ward 4, is the Government Gazette which defined the limits of wards juxtaposed with the actual location of her residential house. The enquiry officer has clearly stated that as per definition given in Government Gazette, the residential house of petitioner’s father falls within Ward 3 and the Nallah that is alluded in Government Gazette is flowing on the right side of the mohalla in which it, i.e., the residential house, falls. It is submitted that in light of said finding and reason no more additional reason was required to be given for discarding the documents that wrongly and falsely showed respondent No. 1 to be resident of Ward No. 4. All such documents paled into insignificance in light of Government Gazette, which is to be treated conclusive qua the limits of a ward. The observation of the Learned Single Judge that report is not well reasoned is not correct and is contrary to fact. The impugned judgment, therefore, deserves to be set aside. v. Because there is a reference to material in the enquiry report which substantiates the fact that respondent No. 1 is not resident of Ward No. 4. In this regard it is submitted that enquiry officer has referred to the statements of Lumberdar and Chowkidar, who have unequivocally stated that respondent NO. 1 was resident of Haknipora, i.e., Ward 3. Enquiry officer has referred to notices issued by Jammu and Kashmir Bank to father of the respondent on the address disclosed by father of the respondent No. 1 at the time of securing loan. In said notices, address of father of respondent No. 1 is shown as Haknipora. To the same effect was the document issued by Patwari of the area. Under such circumstances, when there is sufficient material that was also in conformity with the Government Gazette, the report could not be said to the irrational or perverse. Since there was sufficient material to support the finding returned by enquiry officer, the learned Single Judge ought not to have interfered with the finding of fact as none of the grounds on which finding of fact could be interfered with in writ jurisdiction existed. The impugned judgment is, therefore, liable to be set aside. vi. Since there was sufficient material to support the finding returned by enquiry officer, the learned Single Judge ought not to have interfered with the finding of fact as none of the grounds on which finding of fact could be interfered with in writ jurisdiction existed. The impugned judgment is, therefore, liable to be set aside. vi. Because appellant is working on the position for last 17 years. The scheme under which appellant has been engaged has been already wound up. Respondent No.1 is already employed in Social Welfare Department. Under such circumstances, respondent No.1 will not get any benefit no matter what would be the fresh report. Equity demands that appellant been not disturbed after having put in 17 years particularly because Hon’ble Court has already rejected challenge to engagement of appellant on earlier occasion. It will be significant to state that under similar circumstances, this Hon’ble Court in the case titled “Shazia Bashir Vs. Tanveera Akhtar” LPASW No. 174 of 2018 decided on 11.08.2021 has refused to issue a writ against the person who was working for 17 years after noticing that scheme had been closed and no engagement order could be issued in favour of person challenging the appointment after scheme has been would up. Law laid down in the judgment covered the case all four corners. The impugned judgment is, therefore, liable to be set aside. 4. Heard learned counsel for the parties and perused the record. 5. Mr. Tasaduq H. Khawja, learned appearing counsel for the appellant while making his submissions reiterated the contentions raised and ground urged in the memo of appeal and would pray for setting aside of the impugned judgment whereas, per contra, Mr. Altaf Haqani, learned senior counsel appearing for the respondent No. 1 would controvert and resist the contentions raised and grounds urged by Mr. Tasaduq H. Khawja, learned counsel appearing for the appellant and would seek dismissal of the appeal primarily and fundamentally on the ground that the impugned judgment has been passed validly and rightly by the writ court. 6. Altaf Haqani, learned senior counsel appearing for the respondent No. 1 would controvert and resist the contentions raised and grounds urged by Mr. Tasaduq H. Khawja, learned counsel appearing for the appellant and would seek dismissal of the appeal primarily and fundamentally on the ground that the impugned judgment has been passed validly and rightly by the writ court. 6. Amongst other issues raised in the instant appeal, the moot issue that arises for our consideration is “as to whether the enquiry report of respondent No. 8, entrusted by the Court to hold such an enquiry during the course of proceedings in SWP No. 864/2005 to enable it to decide the issue(s) involved therein can independently be challenged in the subsequent writ petition i.e., SWP No. 2130/2013 after the said report had been accepted by the Court of coordinate jurisdiction in the previous writ petition i.e., SWP No. 864/2005.” 7. It is an admitted fact that the issues in SWP No. 864/2005 was as to whether the respondent No. 1 herein was resident of ward 4 or not and whether the order of appointment of the appellant herein was valid and the Writ Court while adjudicating upon the said issues in its wisdom appointed respondent No. 8 herein as an enquiry officer in order to ascertain as to whether the respondent No. 1 is resident of ward No. 4 or not, in order to enable it to determine the validity or otherwise of appointment order of the appellant herein. 8. It is also not in dispute that the respondent No. 1 herein while maintaining subsequent SWP No. 2130/2013 besides seeking quashment of the enquiry report conducted by respondent No. 8 also sought quashment of the appointment order dated 11.08.2005 of the appellant herein. Indisputably the said appointment order of the appellant herein has not been quashed in either of the petitions by the Writ Courts and in essence rejected the challenge to the same. The said appointment order of the appellant is in place and existence as on date. 9. Indisputably the said appointment order of the appellant herein has not been quashed in either of the petitions by the Writ Courts and in essence rejected the challenge to the same. The said appointment order of the appellant is in place and existence as on date. 9. It is worthwhile to note here that after holding of the enquiry in the matter by the respondent No. 8 herein and after submitting a report thereto before the Writ Court, the Writ Court on the basis of the said report ruled that the respondent No. 1 herein was not resident of ward No. 4 and consequently dismissed the writ petition and essentially rejected the challenge to the appointment order of the appellant herein. The enquiry report solicited by the Writ Court to enable it to decide the case thus served its purpose and merged with the judgment of the Writ Court dated 17.09.2013. The report per se was not a statutory report with an independent existence but a report furnished pursuant to a Court order for enabling it to decide the issues pending consideration before it. Thus it can safely be said that the report thus had no value of its own and could not have either been read or relied upon in any subsequent proceeding and for any purpose. 10. It is significant to mention here that any complaint against the said enquiry report for whatever reason ought to have been raised before the said Court where it was sought and furnished. It is an admitted fact that the respondent No. 1 has not objected to the said report before the said Court in the said petition and if the respondent No. 1 had not been provided any opportunity to object to the said report, the respondent No. 1 could have challenged the same while throwing challenge to the judgment passed in the said writ petition on this ground alone that the enquiry report is not correct and valid, but under no circumstances the respondent No. 1 herein could have challenged the said report in isolation without throwing challenge to the judgment of the writ Court in which it got merged by way of a separate subsequent petition. The recourse undertaken by the respondent No. 1 herein in filing a separate petition against the said enquiry report would be hit by the principles of constructive res judicata. The recourse undertaken by the respondent No. 1 herein in filing a separate petition against the said enquiry report would be hit by the principles of constructive res judicata. Here a reference in this regard to the judgment of the Apex Court passed in case titled as “Devilal Modi v. States Tax Officer, Ratlam and Ors.” reported in AIR 1965 SC 1150 , would be relevant and germane herein wherein a party had failed to challenge the legality of the particular notification in the writ petition that was ultimately dismissed and the legality of same notification was challenged in a subsequent writ petition though on other grounds. Though the writ petition was allowed by the High Court, the Apex Court did not approve the approach of the High Court observing at para 9 as follows:— ......This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action, but basically, even this view is founded on the same considerations of the public policy, because if the doctrine of constructive res judicata is not applied to the writ proceedings, it would be open to the party to take one proceedings after another and urge new grounds every time and that plainly is inconsistent with considerations of public policy to which we have just referred. 11. Indisputably, the writ court quashed the enquiry report that had been accepted in the earlier writ petition by the Writ Court and returned a finding that the respondent No. 1 herein is not resident of ward No. 4 and in essence the impugned judgment. The quashment of the said enquiry report in the subsequent petition by the Writ Court has the potential of setting at naught the findings returned in the earlier writ petition recorded on the basis of the enquiry report which had attained finality. The quashment of the said enquiry report in the subsequent petition by the Writ Court has the potential of setting at naught the findings returned in the earlier writ petition recorded on the basis of the enquiry report which had attained finality. The course adopted by the Writ Court in the impugned judgment per se as such runs in conflict with the principle/doctrine of amity and comity of Courts as the quashing of the enquiry report by the Writ Court in terms of the impugned judgment amounts to accusing the earlier Writ Court of concurrent jurisdiction of having accepted a report wrongly or having undertaken an operation by wrong tools. Such a course is not permissible on the aforesaid principle/doctrine of amity and comity of Courts. A reference in this regard to the judgment of the Apex Court passed in “Shankara Cooperative Housing Society Limited Vs. M. Prabhakr and Others” reported in 2011 (5) SCC 607 would be relevant and germane herein. In the said case the High Court in a previous writ petition at the behest of the one the legal representative had rejected challenge to a notification declaring a particular property as evacuee. However, in a subsequent writ petition by other legal representatives, the Division Bench of the Court allowed the writ petition and quashed the notification. The Apex Court, however, did not approve the judgment passed in the subsequent writ petition and while referring to the principle of amity and comity observed as under at para 78: 78 ….In India household Household and Healthcare Ltd. V. LG Household and Healthcare ltd, this court has held: 16. “The doctrine of amity and comity required a Court not to pass an order which would be in conflict with another order passed by a competent Court of Law.” 12. “The doctrine of amity and comity required a Court not to pass an order which would be in conflict with another order passed by a competent Court of Law.” 12. Having regard to the aforesaid settled principle, it can safely be said that the enquiry report of the Court Commissioner having been appointed during the course of proceedings by the Writ Court in the earlier writ petition to enable it to decide issues involved therein, could not have been independently challenged in the subsequent writ petition on any ground whatsoever, much less on the basis of the liberty granted by the Writ Court in the said proceedings to the respondent No. 1 herein, to challenge the enquiry report in appropriate proceedings, if so advised, which liberty was conditional i.e., “if so advised” meaning thereby if available under Law, as the Writ Court would not have expected that the respondent No. 1 herein would be advised to follow a procedure that is contrary to the basic principles of law and public policy. The challenge is subject to right available under law and procedure and not dehors the procedure. The respondent No. 1 herein would have been well advised to prefer an appeal against the judgment and challenge the enquiry report as well therein but under no circumstances could have challenged the enquiry report alone by a separate subsequent writ petition which enquiry report as has been observed in the preceding paras had got merged in the earlier judgment passed by the Writ Court and, as such, could not have been challenged without challenging the said judgment as the enquiry report had no independent existence after it got merged into the judgment of the Writ Court. 13. That even otherwise also assuming for the sake of arguments that the respondent No. 1 herein could have challenged the enquiry report independently by a subsequent writ petition yet the perusal of the impugned judgment reveals that the Writ Court has wrongly observed that out of two contradictory sets of available documents, the enquiry officer had relied upon one set of documents only and had not assigned any reasons for discarding other set of documents that supported the cause of respondent No. 1 herein. The perusal of the enquiry report, however, would reveal that the enquiry officer had been conscious of the fact that contradictory set of documents had been produced by the contesting parties before him for establishing their respective claims. Seemingly, what has persuaded the enquiry officer to discard the documents of the respondent No. 1 herein showing her to be the resident of ward No. 4, as has been stated in the report itself, is the Government Gazette which define the limits of the wards and the enquiry officer had clearly stated as per definition given in the said Government Gazette, the residential house of the father of the respondent No. 1 herein fell within ward 3. In the light of the said observation of the enquiry officer, no more reason ought to have been expressed for discarding the documents of the respondent No. 1 herein as all the documents produced by the respondent No. 1 paled into insignificance in presence of the Government Gazette. The view expressed by the enquiry officer about the residence of the respondent No. 1 herein was the only available view which per se cannot said to be either perverse or based on no evidence as had been opined by the Writ Court in the impugned judgment and such a view ought not to have been interfered with by the Writ Court in the impugned judgment in exercise of extraordinary jurisdiction and the observation made by the Writ Court in this regard that the report is not well-reasoned cannot said to be correct and is admittedly contrary to the facts. 14. In view of the aforesaid discussion, the case projected and law cited by the learned senior counsel appearing for the respondent No. 1 in rebuttal to the case setup by the learned counsel for the appellant cannot by any sense of imagination said to be potent enough to dislodge the case of the appellant herein. 15. For what has been observed, considered and analyzed hereinabove, we are of the view that the appeal merits to be allowed. Accordingly, appeal is accepted, impugned judgment dated 06.04.2022 is set aside and Writ Petition No. 2130/2013 dismissed. 16. No order as to costs.