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2023 DIGILAW 158 (JK)

Jyoti Sambyal v. State

2023-04-25

RAJESH SEKHRI, SANJEEV KUMAR

body2023
JUDGMENT : 1. This appeal under clause XII of Letters Patent is directed against the judgment dated 25.04.2019 passed by the learned Single Judge of this Court ['the Writ Court'] in SWP No. 1813/2015 titled 'Badham Kumar v. State of Jammu and Kashmir whereby the writ petition filed by Respondent No. 6 herein ['the writ petitioner'] has been allowed and the order of appointment issued in favour of the appellant has been quashed with a further direction to consider the writ petitioner for appointment. 2. Briefly stated the facts giving rise to filing of this appeal are that vide Advertisement Notification dated 01.05.2010 issued by the office of Chief Education Officer, Samba, two vacancies of ReT in Primary School Dhayansar falling in Purmandal Zone were notified for selection. The consideration was restricted to the permanent residents of the State residing in the village concerned. Three candidates, who had applied for the vacancies in question, were placed in the tentative list of candidates, to be considered for engagement of ReTs by the Zonal Education Officer, Purmanadal. The candidate at S. No. 1 namely, Renu Salathia was admittedly a resident of village Kartholi Morha Dhayansar with highest merit, as such, was ultimately engaged as ReT against one of the two notified vacancies, without any protest or objection from any candidate. The appellant herein was placed at S. No. 2 and the writ petitioner was placed at S. No. 3 in the tentative panel on the basis of their merit. 3. The writ petitioner feeling aggrieved by the placement of the appellant herein in the tentative panel despite being a resident of village Aithem, a different village, filed SWP No. 1386/2011. The grievance projected by the writ petitioner was that the official respondents had, though received written objections from him, yet failed to decide the same. The Single Bench which considered the matter, was of the opinion that, in view of the factual dispute involved in the matter, the petition deserved to be disposed of by directing the Deputy Commissioner, Samba to hold an enquiry vis-a-vis the residence of the parties. It was so ordered by the learned Single Bench while disposing of the writ petition vide order dated 06.02.2013. In compliance with the directions passed by the learned Single Bench, Additional Deputy Commissioner, Samba conducted an enquiry. It was so ordered by the learned Single Bench while disposing of the writ petition vide order dated 06.02.2013. In compliance with the directions passed by the learned Single Bench, Additional Deputy Commissioner, Samba conducted an enquiry. In the enquiry, it was concluded by him that, on the basis of oral and documentary evidence led by the parties, the writ petitioner was found residing in village Kartholi from birth till date, while as the appellant herein was not residing in village Kartholi at the time of issuance of the Advertisement Notification in question. The said report was submitted by the Deputy Commissioner, Samba to the Director School Education, Jammu for further necessary action. 4. Feeling aggrieved, the appellant filed SWP No. 1905/2014 challenging the report of the Additional Deputy Commissioner, Samba, but later on, withdrew the said writ petition without seeking any adjudication, probably for the reason that, in the meanwhile, the Director School Education, Samba vide order dated 30.01.2015 impugned in the writ petition had offered appointment to the appellant ignoring adverse report submitted by the Additional Deputy Commissioner Samba. It is this order of the Director School Education, Jammu dated 30.01.2015 which was assailed by the writ petitioner in SWP No. 1813/2015. The Writ Court, after having gone through the entire controversy and, in particular, taking note of the fact that the subsequent incumbent Director School Education, Jammu, namely Simrandeep Singh, while examining the file of appointment of ReT made in favour of the appellant as ReT, had recorded that an impropriety had been committed by the erstwhile Director School Education, Jammu in making the appointment in favour of the appellant, dismissed the writ petition vide judgment impugned. 5. The impugned judgment is assailed by the appellant on multiple grounds. The primary ground that was vehemently pressed into service by Mr. Abhinav Sharma, learned Senior Counsel appearing for the appellant is that the report of the Additional Deputy Commissioner, Samba, which the writ Court has strongly relied upon, has not conclusively determined the issue with regard to the residence of the parties and, therefore, rightly ignored by the then Director School Education, Jammu. It is submitted that the Director School Education, Jammu, on the basis of material before him, had rightly come to the conclusion that the appellant as well as the writ petitioner were the residents of village Kartholi and, therefore, eligible. It is submitted that the Director School Education, Jammu, on the basis of material before him, had rightly come to the conclusion that the appellant as well as the writ petitioner were the residents of village Kartholi and, therefore, eligible. He, thus, offered the appointment to the appellant on the basis of her better merit. 6. Having heard learned counsel for the parties and perused the material on record, we are of the considered view that the judgment impugned passed by the Writ Court is legally and factually correct and, therefore, does not call for any interference by us. 7. Indisputably, in the first round of litigation which culminated with the disposal of SWP No. 1836/2011 by the learned Single Judge vide its order dated 06.02.2013, the Deputy Commissioner, Samba, either personally or through some other officer, not below the rank of Assistant Commissioner Revenue, was directed to hold an enquiry into the place of residence of the appellant and the writ petitioner. The Deputy Commissioner, Samba constituted a Committee of four officers headed by the Additional Deputy Commissioner, Samba. The writ petitioner as well as the appellant herein were given ample opportunity to produce oral and documentary evidence. The Committee evaluated the evidence on record and came to the conclusion that the appellant herein was not residing in village Kartholi at the time of issuance of Advertisement Notification in question and found her claim of having been residing in village Kartholi since 2007 contrary to the documentary evidence on record. The Committee also found that the writ petitioner had sufficiently proved by reference to documents that he had been residing in village Kartholi since 1980. As was provided in the judgment dated 06.02.2013 passed in SWP No. 1386/2011, the Competent Authority was to fill up the second post of ReT in the School concerned on the basis of the findings returned by the Committee, which had conducted the enquiry under the directions of Deputy Commissioner, Samba. The appellant knew that the report of the Deputy Commissioner Samba was against him and, therefore, she approached this Court by way of SWP No. 1905/2014 to challenge the said report. However, it is not discernible from the order dated 19.12.2014 as to why and under what circumstances, the appellant withdrew her writ petition. The appellant knew that the report of the Deputy Commissioner Samba was against him and, therefore, she approached this Court by way of SWP No. 1905/2014 to challenge the said report. However, it is not discernible from the order dated 19.12.2014 as to why and under what circumstances, the appellant withdrew her writ petition. It is, however, clear that immediately after withdrawal of the writ petition, the then Director School Education, Jammu vide his order dated 30.01.2015 approved the appointment of the appellant against the second post of ReT in Primary School Dhyansar. As is rightly held by the Writ Court, the Director School Education, Jammu could not have ignored the report of the Deputy Commissioner, Samba and the mandate of the directions passed by the Writ Court in SWP No. 1386/2011. 8. In view of the clear directions passed by the Writ Court in its judgment dated 06.02.2013, the Director School Education, Jammu had no option, but to go by the findings of the Enquiry Committee and issue the appointment order accordingly. Not only he brushed aside the enquiry report, but also acted in a manner which cannot be termed otherwise than illegal and arbitrary. It seems that the appellant and the then Director School Education, Samba entered into an unholy alliance to defeat the rights of the writ petitioner. The order of appointment issued by the then Director School Education, Jammu, impugned before the Writ Court was clearly in violation of the directions passed by the Writ Court in SWP No. 1386/2011. It needs to be noted that, with the withdrawal of the writ petition filed by the appellant, the enquiry report finalized by the Deputy Commissioner, Smaba had attained finality and, therefore, in view of the clear directions contained in order dated 06.02.2013, the Director School Education, Jammu was under an obligation to give effect to the enquiry report and issue order of appointment in favour of the writ petitioner. 9. For these reasons and the reasons spelt out by the Writ Court in its judgment dated 06.02.2013, we find absolute impropriety having been committed by the then Director School Education, Jammu in issuing the order of appointment in favour of the appellant. The Writ Court has rightly allowed the writ petition and quashed the aforesaid order of appointment. We find no reason or justification to interfere with the well reasoned judgment of the Writ Court. The Writ Court has rightly allowed the writ petition and quashed the aforesaid order of appointment. We find no reason or justification to interfere with the well reasoned judgment of the Writ Court. This appeal is found to be without any merit and is, accordingly, dismissed.