Jammu & Kashmir High Court - Srinagar Bench
Posha Akhter vs Jai Pal Singh & Anr. on 27 May, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
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** Contempt 601/2011 CMP Nos. 01/2015 & 2688/2014 C/w OWP No. 206/2011 CMP No. 312/2011 SWP No. 2062/2011 CMP No. 3411/2011 SWP No. 2308/2012 CMP NOs. 1909/2014 & 3699/20102 Contempt No. 713/2012 Date of Order: 27/05/2016 Posha Akhter Vs. Jai Pal Singh & anr.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge. Appearing counsel:
For Petitioner (s): Mr. S. R. Hussain, Adv. For Respondent (s): Mr. M. A Wani, AAG.
Mr. T., A Lone, GA.
i) Whether to be reported Digest/Journal : Yes
ii) Whether to be reported in Press/Media : Optional (Oral):
1. Petitioner on the strength of Certificate dated 29-03-
2008 issued by Tehsildar Devsar bearing No. 185/BAC/SC under SRO No. 294 dated 21-10-2005 being a member of socially backward class has been selected by the Service Selection Recruitment Board (SSRB for short) for the post of Physical Education Teacher District Cadre Kulgam. Thereafter on the recommendations of the SSRB has been appointed vide Order No. 32- DYSS/Estt/10 dated 25-08-2010. During the verification of the Category Certificate, petitioner apprehending its cancellation filed petition SWP No. 338/2011. Same was disposed of vide order dated 24- 02-2011 with the following directions;
"The petition is disposed of by providing that, in the event action is initiated for cancellation of the category certificate issued in favour of the petitioner, then in such eventuality, the respondents to follow the mandate of law and to afford opportunity of hearing to the petitioner."
2. The respondent No. 2 (Deputy Commissioner Kulgam) seems to have initiated an inquiry which has culminated into issuance of order NO. DCK/174-76 dated 25-02- 2011, in terms whereof the OSC Certificate of the petitioner has been cancelled as having been declared fake. The said order has been challenged by medium of OWP NO. 206/2011 wherein interim direction was passed on 03-03-2011 providing to "maintain status quo" till next date of hearing before the Bench.
3. SSRB subsequent thereto based on order of cancellation of Category certificate has conveyed to the Commissioner/Secretary to Government Technical Education/Youth Service and Sports vide letter No. SSB/Sel/Secy/011/3717-21 dated 16-08-2011 that the selection of the petitioner is cancelled. Said order has been challenged by medium of SWP NO. 2062/2011. Interim direction thereon was passed on 22-09-2011 providing the said order of cancellation bearing No. SSB/Sel/Secy/011/3717-21 shall remain stayed. Based on cancellation of selection by SSRB, Youth Service and Sports issued Order No. Dyss/7031-37 dated 22- 10-2012 cancelling the appointment of the petitioner abinitio. Same has been assailed by medium of SWP No. 2308/2012. Interim direction thereon was passed on 06-11-2012, providing that the post of Physical Education Teacher that may become available due to cancellation of petitioner's selection shall not be filled up till next date before the Bench.
4. The petitioner filed Contempt petition bearing No. 601/2011 projecting therein that in derogation of the rd order of the status quo issued on 3 March 2013, in SWP NO. 206/2011. The respondents have passed the subsequent orders for which they shall be dealt with under law. During pendency of the Contempt petition, vide order dated 29-10-2013 respondents were directed to explain under what circumstances order dated 22-10- 2012 based on letter No. SSB/Sel/Secy/011/3117-21 dated 16-08-2011 received from SSRB, operation of which was under stay has been acted upon. AS a result whereof Order No. 37-Edu (Tech) of 2014 dated 17-02- 2014 was issued where under order of cancellation of appointment was kept in abeyance, but petitioner was not permitted to work. Finally, the respondent Director General Youth Service and Sports has permitted the petitioner to work
5. Since salary was not paid to the petitioner as a result whereof petitioner filed one more contempt petition. It is in the same background, repeated directions were issued for implementing the order in its letter and spirit which could not happen as a result whereof personal appearance of respondents No. 2 and 3 has been ordered now respondent Director Youth Service & sports is present in the Court
6. In the aforestated facts and circumstances, for resolving the controversy, all these petitions are taken up for final disposal.
7. In essence, the controversy is with regard to OSC Certificate on the strength of which petitioner had obtained her selection and appointment. The said Certificate in the opinion of the Deputy Commissioner, Kulgam on the basis of the report of Additional District Development Commissioner is fake. The order dated 25- 02-2011 passed by the Deputy Commissioner cancelling OSC Certificate of the petitioner is under challenge in OWP No.206/2011
8. Deputy Commissioner in his order has mentioned that Additional District Development Commissioner has conducted a detailed inquiry, visited the spot recorded the statements of the locals and obtained a detailed report from Tehsildar Devsar under No. 705/OQD dated 11/12/2010. As per the report of the Tehsildar Devsar, the certificate is fake not issued by the Tehsil Office further the candidate does not fall in the OSC Category. Learned counsel for the petitioner has produced the copy of the report of Tehsildar reference of which is made in the order of the Deputy Commissioner. Its perusal suggests that the Tehsildar has simply mentioned that the Category certificate issued in favour of the petitioner has not been issued during his tenure as Tehsildar Devsar but the seal affixed on the said Certificate is of the office. He has tried his best to trace the record/file of said certificate but same is not available in the office, has further stated that the certificate under question may be cancelled because father of the petitioner does not fall in OSC Category.
9. Deputy Commissioner was required to hold a complete inquiry and to hear the petitioner and to consider the report of the Tehsildar bearing No. 705/OQD dated 11- 12-2010, which has not been correctly reflected in the order dated 25-02-2011. In addition thereto in terms of the directions issued in SWP NO.338/2011 as quoted above, the Deputy Commissioner was required to hear the petitioner as well. The question as to whether certificate has been issued from the Tehsil Office or not has not been correctly addressed in light of the report of the Tehsildar. There should be a detailed inquiry as to how the certificate has been issued when seal of the office is affixed on it, why file could not be traced from the office. Learned Deputy Commissioner while perusing the report of the Tehsildar observing that petitioner does not fall under OSC Category should have conducted the inquiry. Therefore order of Deputy Commissioner dated 25-02-2011 cancelling category certificate of the petitioner is unsustainable. Same is quashed.
10. SWP No. 206/2011 as such is allowed. As a necessary corollary thereto order of SSRB cancelling selection of the petitioner and then the order of Director, Youth Service and Sports cancelling the appointment of the petitioner as under challenge in SWP NO. 2062/2011 and SWP No. 2308/2012 shall stand quashed, both the petitions are allowed.
11. In totality of the circumstances, Deputy Commissioner Kulgam is directed as under;
i) To hold enquiry regarding the Certificate (OSC) dated 29-03-2008 issued by the T ehsildar under SRO294 dated 21-10-2005.
ii) To ascertain as to whether on the date of issue of the Certificate (OSC), petitioner belonged to that Category.
iii) Petitioner during enquiry shall be given reasonable opportunity of being heard. On the basis of the final report/conclusion of enquiry by the Deputy Commissioner, if certificate is found genuine and petitioner is found belonging to the category OSC, the selection/appointment of the petitioner as Physical Education Teacher shall be un-interferable, the petitioner in the eventuality shall be allowed to continue and shall be extended all service benefits right from the date of her appointment and joining
iv) In case, Deputy Commissioner on enquiry finds the OSC Certificate of the petitioner as fake or finds that she does not belong to the Category OSC then said certificate shall be cancelled. Same be conveyed to SSRB, who shall then initiate action for cancellation of selection and convey the same to Government with a recommendation to cancel the appointment.
v) The enquiry shall be concluded preferably within four weeks from the date order is served upon Deputy Commissioner, Kulgam.
vi) The release of salary was observe d to be deferred, but since she has been appointed on selection, therefore till conclusion of enquiry and consequent result thereof she can not be denied the salary, which shall be released in her favour subject to adherence to rules and codal formalities, same shall be without prejudice to the rights of the petitioner.
vii) Right is reserved to the petitioner to re-agitate subject to survival of cause.
The two contempt petition are segregated and taken up for disposal separately.
Disposed of as above.
SRINAGAR (Mohammad Yaqoob Mir)
27thMay 2016.
Judge
"Aasif"