Jammu & Kashmir High Court - Srinagar Bench
Waseem Javaid Khan vs State Of J&K And Others on 22 October, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 416/2014
Reserved on: 17.10.2019
Pronounced on:22.10.2019
Waseem Javaid Khan ......Petitioner
Through: Petitioner in person.
Versus
State of J&K and others ......Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. Impugned in this writ petition is a consideration order issued by respondent No.2 vide his No.368 of 2014 dated 13.02.2014, thereby the claim of the petitioner, for his appointment as Sub Inspector in J&K Armed Police under RBA category, has been rejected.
2. Before adverting to the grounds of challenge urged in this petition, it would be necessary to give brief resume of the factual antecedents leading to the filing of the instant petition.
The petitioner, claiming to be a person of the reserved category of Resident of Backward Area, responded to the advertisement notice issued by respondents bearing No. Pers-00/2009/4614-713 dated 29.01.2009 for making selection and appointment to the post of Sub Inspector in the Armed Wing of J&K Police. The petitioner appended with his application 2 ( SWP No. 416/2014) a certificate of RBA category purportedly issued by the Tehsildar, Pahalgam on 18.02.2007. The category certificate was valid till 30.02.2012. The respondents found the petitioner eligible and allowed him to participate in the selection process. The petitioner was also interviewed under the RBA category. On conclusion of the selection process, the respondents issued the select list in which the petitioner was shown selected for the post of Sub Inspector under RBA category. The petitioner was duly informed that he had been selected for appointment as Sub Inspector in the Armed Wing of J&K Police and was advised to report to the Deputy Inspector General of Police, Armed Range, Kashmir by 11th November, 2010 along with his testimonials. After verification of the documents of the selected candidates, formal orders of appointment in favour of the selected candidates were issued but the petitioner was not appointed.
The petitioner claims that he approached the office of the DIG, Armed Range, Kashmir to enquire into the matter and to find out as to why the order of appointment in his favour had not been issued. The petitioner submits that he was not provided the requisite information by the respondents and, therefore, he submitted an application to the respondents under the Right to Information Act, 2009. In response, the petitioner was provided with the copy of order issued by respondent No.2 vide PHQ Order No. 367 of 2011 dated 29.01.2011. Petitioner was thus informed that his candidature has been cancelled due to invalid RBA certificate submitted by him. Realizing that the certificate of RBA dated 3 ( SWP No. 416/2014) 18.02.2007 submitted by him along with his application form was doubtful certificate, the petitioner once again applied for issuance of RBA certificate to the competent authority i.e. Tehsildar, Pahalgam, who, after conducting detailed enquiry into the matter and ascertaining the entitlement of the petitioner to such certificate, issued the category certificate in Form-X of SRO 126 on 10.03.2011. In the meanwhile, the petitioner had already approached this Court by way of SWP No. 657/2011 challenging the validity of Order No. 367 of 2011 dated 29.01.2011. The writ petition aforesaid was decided by this Court vide judgment dated 07.05.2012. The order impugned in the writ petition i.e. Order No. 367 of 2011 dated 29.01.2011 was quashed and the respondent No.2 was directed to associate the petitioner with the inquiry, if any, contemplated against RBA certificate produced by the petitioner at the time of his responding to the advertisement notice. The Court also provided that in the inquiry the petitioner would be given an adequate and reasonable opportunity to project his case. The Court further provided that the decision consequent to the outcome of such inquiry would be taken by the respondents within four weeks from the date the inquiry was concluded.
In compliance to the judgment of this Court, the inquiry was conducted by the Senior Superintendent of Police, Anantnag under the order of respondent No.2 in which the Inquiry Officer, inter alia, concluded that petitioner was resident of Village Hapatnar, a backward area as notified under the Jammu and Kashmir Reservation Rules, 1994 4 ( SWP No. 416/2014) issued vide SRO 126 of 1994, and that the certificate issued to the petitioner, which was appended by him along with his application form, was signed by one Abdul Rehman, Shali Clerk ( now retired), on behalf of the Tehsildar, Pahalgam. The Inquiry Officer also came to the conclusion that the petitioner in the mater had acted in good faith and was not privy to the forgery/fraud committed by the Shali Clerk. It was also observed by the Inquiry Officer that the petitioner, being bonafide resident of Hapatnar, was otherwise entitled to the issuance of RBA certificate.
Acting on the aforesaid inquiry report submitted by the SSP, Anantnag, the respondent No.2 passed the order impugned and rejected the claim of the petitioner for his appointment as Sub Inspector in the Armed Wing of J&K Police under RBA category on the ground that petitioner was not possessed of a valid category certificate at the relevant point of time i.e. during the process of selection. It is this order, which is assailed by the petitioner in this petition.
3. The impugned order has been challenged, primarily, on the following grounds:
(i) That the respondent No.2 has not considered the report of the Inquiry Officer in right perspective. The respondent No.2 could have differed with the Inquiry officer on justifiable grounds, yet before passing the impugned order, it was incumbent upon respondent No.2 to afford opportunity of being heard to the petitioner, which was, however, not given to the petitioner. 5 ( SWP No. 416/2014)
(ii) That respondent No.2 did not appreciate the findings on fact recorded by the Inquiry Officer that petitioner was not privy to the preparation of forged certificate by one Abdul Rehman, Shali Clerk (now retired), who had put the signatures of Tehsildar himself and delivered the certificate to the petitioner. The findings of the Inquiry officer, that petitioner had bonafidely applied for issuance of the category certificate to the competent authority, which was delivered to him by the office of Tehsildar, purportedly signed by Tehsildar itself and, therefore, the petitioner had no reason or occasion to doubt the signatures which were put on the seal of the Tehsildar, Pahalgam, have also been ignored by the respondent No.2 without any rhyme or reason.
(iii) That petitioner, otherwise being resident of village Hapatnar, which is declared as backward area by the competent authority under SRO 126 of 1994, was entitled to the issuance of aforesaid certificate and, which fact was corroborated when on a fresh application moved by the petitioner, RBA category certificate was issued to the petitioner by the Tehsildar, Pahalgam.
4. Respondents have filed their objections/ counter affidavit and have sought to justify the order impugned primarily on the ground that, after the report of the Inquiry officer, establishing that the certificate of RBA submitted by the petitioner along with his application form was invalid having been signed by a Shali Clerk, Abdul rehman, by forging the signatures of Tehsildar, Pahalgam, the respondent No.2 had no option but 6 ( SWP No. 416/2014) to cancel the selection of the petitioner and reject his claim. On behalf of the respondents, it is submitted that the selection of the petitioner as Sub Inspector under RBA category was provisional and subject to verification of his certificates. On verification, the RBA certificate produced by the petitioner, was found not issued by the office of Tehsildar, Pahalgam. On further inquiry it revealed that the certificate purportedly signed by tehsildar, Pahalgam was actually signed by the Shali Clerk in the office of Tehsildar. The selection of the petitioner was, thus, on the basis of a certificate, which was invalid and not worthy of consideration.
5. Having heard the petitioner in person and Mr. B. A. Dar, learned Sr. AAG for the respondents and perusing the record, I am of the considered view that the respondents cannot deny appointment to the petitioner by hiding behind pure technicalities of law.
6. It is not in dispute and is otherwise established in the inquiry conducted by respondent No.2 that petitioner belongs to an area which is declared as Backward under the provisions of SRO 126 of 1994. It is also established on record that petitioner was all along eligible to the issuance of such certificate. The certificate issued by Tehsildar, Pahalgam, subsequently on the fresh application moved by the petitioner, bears testimony of the aforesaid fact. The Inquiry officer has, on the basis of record, concluded that the petitioner had bonafidely applied for issuance of the certificate to the office of Tehsildar, Pahalgam, but the certificate of category issued to him, which should have ben signed by the Tehsildar, was, in fact, signed by one Abdul Rehman, Shali Clerk in the office of 7 ( SWP No. 416/2014) Tehsildar, (now retired). The Inquiry Officer also opined that from the evidence available, it cannot be said that the petitioner, though, a beneficiary of the certificate, was in any way privy or contributory to the fraud/forgery committed by the said Clerk. In view of aforesaid evidence on record, the respondent No.2 could not have brushed aside the claim of the petitioner only on the ground that whether or not the petitioner was responsible for forging the certificate, his certificate appended with the application form, was invalid. This is too technical a plea taken by the respondent No.2 to deny the appointment to the petitioner.
7. It may be noted that a person acquires the status of being a resident of backward area by being a resident of that area and having resided there continuously for a period of 15 years. The issuance of the certificate by the competent authority is only a declaration of the status. A person claiming such status can participate in a selection process even on the basis of an under-process certificate issued by the competent authority and the certificate of category issued even after cut off date and before conclusion of the selection is entertainable and such person is given the benefit. The legal position on the point is well settled.
8. In the case of Surjeet Singh Bali vs. State of J&K and others, (2007) 2 JKJ 382 , this position has been elaborately made clear. Relying upon an earlier judgment of this Court in the case of J&K Public Service Commission and another vs. Ms. Rimpi Ohri and another, 2002 (1) SLJ, 234, this Court in paras 11 and 12 of the aforesaid judgment held thus: -
8 ( SWP No. 416/2014)
"11. The RBA status is conferred by residence/domicile. The private respondents were having this status even at the time of submission of application forms but were not in possession of the certificates concerned, which came to be issued in their favour after filing of the application forms and before the examination came to be held. They have mentioned in the application forms that they belong to RBA category. While making this observation, we are supported by what was said by this court in the case reported as 2002(1) SLJ 234, J&K Public Service Commission and another Vs. Ms. Rimpi Ohri and another. It is profitable to reproduce para 27 of the aforesaid judgment as under:-
"The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already held that she was a resident of LAC, at the time of submission of the application and continue to be so even today. If that is so, she was definitely possession the qualification with regard to the resident of LAC, at the time of closing date of the application i.e 16.03.1999. Non renewal of certificate would not alter the status of her residence if otherwise she was factually resident of Line of Actual Control. The faction of the respondent/writ petitioner being the resident of Line of Actual Control is not denied by the applicant."
12. It is to be taken into consideration as to what is the purpose, object, aim and ambit of SRO 126/94. The Constitutional guarantees that socially backward be uplifted and up-graded and some benefits be given to them in terms of the Constitutional mandate. The Government of Jammu and Kashmir formulated the Reservations Rules-SRO 126/94. The purpose of SRO is to confer certain benefits to the members belonging to the categories of RBA. Line of Actual Control, Scheduled Castes and Scheduled Tribes and no qualification is prescribed except that a candidate seeking the benefit of any such category should be a resident of a particular area at a particular point of time."
9. In view of the aforesaid legal position and also in the given facts and circumstances, I am of the view that the equities heavily tilt in favour of the petitioner.
9 ( SWP No. 416/2014)
10. This petition is, accordingly, allowed. The order impugned bearing Order No.368 of 2014 dated 13.02.2014 is quashed and a direction is issued to the respondent No.2 to issue formal order of appointment in favour of the petitioner as Sub Inspector in the Armed Wing of J&K Police, within a period of two months from the date a certified copy of this order is served upon respondent No.2. The petitioner shall be entitled to his appointment retrospectively with effect from the date the candidates selected along with him were so appointed. The retrospective effect, however shall be on notional basis and the petitioner would be entitled to monitory benefits from the date of issuance of the appointment order.
( Sanjeev Kumar) Judge SRINAGAR 22.10.2019 Anil Raina, JR/Secy Whether the order is speaking: Yes/No Whether the order is reportable: Yes ANIL RAINA 2019.10.23 10:16 I attest to the accuracy and integrity of this document