Mohd. Rafeeq Bhat vs State Of J&K And Others
2021 Latest Caselaw 1248 j&K/2

                                      h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                 SWP No.445/2019[WP(C) 683/2019]
                                                 CM Nos.1339/2019, 1297/2019 &
                                                 1559/2020


                                                      Reserved on : 28.09.2021
                                                      Pronounced on : 06.10.2021

Mohd. Rafeeq Bhat                                                   ...Petitioner(s)

                          Through:- Mr. Hilal A. Wani, Advocates
      V/s

State of J&K and others                                           ...Respondent(s)

                          Through:- Mr. Sajad Ashraf, GA for R-1 to 4
                                   Mr. Mian Tufail, Advocate for R-5
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                 JUDGMENT

1. Vide Government Order No.141-Edu (YSS of 2017) dated

27.10.2017, 171 posts of Rehbar-e-Khel were created for District Budgam

and distributed over different zones. The criteria for selection of Rehbar-e-

Khel, as was provided in the Government Order (supra) was as follows:-

      BPE/Graduation with BPEd               :       60 points
      BPE with BPEd                          :       05 points
      MPEd                                   :       05 points
      M.Phill in Physical Education :                05 points
      Ph.D in Physical Education             :       05 points
      Diploma from NIS                       :       05 points
      Viva                                   :       15 points
             Total                           :       100 points

With a view to make selection, a Selection Committee of the

following members was constituted:-

1.District Development Commissioner : Chairman

2. District Youth Services & Sports Officer : Member-Secretary

3. District Employment & Counseling Officer: Member

4. Zonal Physical Education Officer Hqr : Member

2. Vide Notification No.01 of 2018 dated 01.01.2018, applications

were invited from eligible candidates (residents of concerned zone) and

accordingly, in the District of Budgam 413 applications from different

zones were received by the office of Chairman, Selection Committee. The

interviews were conducted w.e.f 12.06.2018 to 21.06.2018 zone-wise and

provisional select list for each zone was, accordingly, prepared and

forwarded to the Director General, Youth Services and Sports (Appointing

Authority) vide communication No.DYSS.BUD/ESTT/2761-62 dated

27.11.2018. The selection list was published in daily newspaper "Daily

Uzma". It appears that a complaint was filed by respondent No.5 in the

Governor's Grievance Cell alleging therein that despite having scored good

marks, he was eliminated from the select list. The complaint came to be

forwarded to the District Youth Services and Sports Officer, Budgam

(Member-Secretary of the Selection Committee) with the advice to re-

verify the merit of the candidates and dispose of his grievance accordingly.

Similar complaints were also received by the District Development

Commissioner, Budgam (Chairman, Selection Committee) with regard to

irregularities in the selection. The District Development Commissioner,

Budgam vide his order dated 04.01.2019 constituted an enquiry committee

headed by Additional Development Commissioner, Budgam to look into

different allegations made with regard to the selection. The joining reports,

if any, submitted by the appointed candidates were directed to be kept in

abeyance till outcome of the enquiry.

It may be noted that when the complaint was made to the Governor's

Grievance Cell and enquiry was initiated by the District Development

Commissioner, Budgam, the select list had been acted upon and the

candidates selected had been appointed by the Director General, Youth

Services and Sports in various zones including Rehbar-e-Khel zone Narbal

vide his order bearing No.DG-YSS/Estt/8546-52 dated 01.01.2019 and the

petitioner being the candidate last selected in Rehbar-e-Khel Zone Narbal

had also joined pursuant to his appointment.

3. Be that as it is, the Enquiry Committee proceeded with the enquiry

and after completing the proceedings submitted its report and with regard

to the complaint of respondent No.5 following observations were made by

the Enquiry Committee:-

"1. One candidate viz. Mr. Zahoor Ahmad Mir S/o Abdul Razaq Mir R/o Butpora Kanihama has been shown as having qualification B.P.Ed, M.P.Ed, M.Phill and Ph.D in the relevant fields but marks has been assigned to only B.P.Ed, M.P.Ed and M.Phill only and 05 marks of Ph.D has not been awarded so he got dropped from the select list as he was shown to secured 54.90 marks out of 100 instead of 59.90. By awarding 05 points of PhD, as per scheme he shall fall in the selection zone."

4. It is in this backdrop, the petitioner was not allowed to work on the

post of Rehbar-e-Khel Zone Narbal nor was a formal order of his posting

issued. The petitioner feeling aggrieved by such action of the respondents

has filed the instant petition seeking, inter alia, a direction to the

respondents to issue a formal order of his posting as Rehbar-e-Khel in Zone

Narbal and allow him to perform his duties. He has also sought a direction

to the respondents to pay him the salary.

5. This petition came up for consideration for the first time on

08.03.2019, when this Court taking note of the submissions made by the

learned counsel for the petitioner asked Mr. Sajad Ashraf Mir, Govt.

Advocate to seek instruction in the backdrop of his statement in the Court

that all appointments of Rehbar-e-Khel in District Budgam have been kept

in abeyance on account of some enquiry. In response to the directions

passed on 08.03.2019, Mr. Sajad Ashraf Mir filed objections and disclosed

that the respondents have re-visited the selection and have now selected

respondent No.5 in place of the petitioner. This Court while posting the

matter for consideration on 18th March, 2019 vide its order dated 12th

March, 2019 directed that selection of respondent No.5 shall not be given

effect to.

6. Having been put on notice, respondent Nos. 1 to 4 (official

respondents) as also respondent No.5 (private respondent) have filed their

objections. The stand of the official respondents is what is taken note of

herein above. It is submitted that after the selection process was completed

and appointment orders issued, complaints started pouring-in with regard to

irregularities in selection. One complaint through Governor's Grievance

Cell was received from respondent No.5 alleging therein that his

qualification i.e. PhD, which would have given him additional 05 points,

was not considered and, as a result, he was eliminated from the zone of

selection. With a view to examine these complaints, a Committee of

Officers was constituted by the District Development Commissioner,

Budgam, who was also Chairman of the Selection Committee and on the

basis of the report submitted by the Enquiry Committee, grievance of

respondent No.5 was found genuine. It was found that the respondent No.5

had applied for the post of Rehbar-e-Khel in Zone Narbal with his

qualifications as B.P.Ed, M.P.Ed, M.Phill and PhD but while evaluating his

merit, 05 marks, which were allocable for PhD qualification, had not been

counted. This is how the merit of respondent No.5, which should have been

59.90 was wrongly calculated as 54.90. It is, thus, recommended that

because of his merit, which was higher than that of the petitioner,

respondent No.5 was entitled to be selected in place of petitioner.

7. Private respondent, too, has sought to justify his selection on the

basis of his merit, as evaluated by the Enquiry Committee and which is part

of its recommendations contained in the report dated 21.01.2019. He has

also refuted the allegation of the petitioner that the PhD degree obtained by

him from Dr. Babasaheb Ambedkar Marathwada University, Aurangabad

["the University"] while serving as contractual lecturer in the Union

Territory of J&K was a sham and fraudulent degree. Respondent No.5

would submit that the PhD degree was obtained by him as a part time

scholar and that there was no prohibition to obtain such degree while

working as lecturer on academic arrangement in the Education Department.

He would place reliance on the Ordinance of the University permitting PhD

degree as a part time scholar. Reliance was also placed on Public Notice

F.No.20-1/2014(PS) dated 10th March, 2017 issued by the University

Grants Commission, whereby it has been clarified that PhD degrees, which

are pursued either full time or part time would be treated as degrees

awarded through Regular Mode provided these are in conformity with the

existing Statutes/Byelaws/Ordinances etc of the degree awarding

University. On the strength of the Ordinance and Public Notice issued by

the UGC, respondent No.5 would claim that the degree of PhD acquired by

him is acquired through legitimate means and, therefore, cannot be doubted

or impugned by anyone including the petitioner.

8. Respondent No.5 is very categoric in his assertion that he had

submitted the PhD qualification certificate along with his application and

not, later on, after conclusion of the selection process, as is alleged by the

petitioner.

9. Having heard learned counsel for the parties and perused the record,

I am of the considered opinion that the decision of this petition turns

squarely on the adjudication of the following three questions:-

i) Whether respondent No.5, at the time of submission of

application form or at any time before or at the time of

interview, had submitted his qualification certificate of Ph.D

or the same was submitted by him after conclusion of the

selection process?

ii) Whether the degree of Ph.D acquired by respondent No.5 from

the University simultaneously while serving as Lecturer on

academic arrangement in the education department of the

State (now UT) is a valid degree legitimately acquired?

iii) Whether the official respondents could withdraw appointment

of the petitioner and offer it to respondent No.5 without even

affording an opportunity of being heard to the petitioner?

10. With a view to find out answer to these questions, particularly,

question No.(i), the official respondents were directed to produce the

original record. Official respondents have produced the relevant record,

which, except application forms of th petitioner and respondent No.5, is

photocopy of the original record.

Question No.(i)

11. Answer to this question can only be found from the record of the

official respondents. It may be noted that this Court vide order dated

28.09.2021 while reserving the matter for orders directed the official

respondents to submit original record including the application form of

respondent No.5 within one week. In response to this order, photocopy of

the record which contains application forms of the petitioner and

respondent No.5 and few interdepartmental communications including a

copy of enquiry report prepared by a Committee headed by the Deputy

Commissioner, Budgam is produced by Mr. Sajad Ashraf, GA. Very vital

record, which would have bearing on the controversy, has been deliberately

withheld. As a matter of fact, what is produced before me is only a

photocopy of the truncated record. The provisional select list, appointment

orders and the revised provisional select list are all missing from the

record. The District Youth Services & Sports Officer, Budgam not only

owes an explanation as to why the complete original record was not

provided and instead Xerox copy of half of the record, withholding

important information from the Court, was submitted but he also deserves

to be proceeded for committing contempt of Court.

12. I may place it on record that because of submission of incomplete

record by the District Youth Services and Sports Officer, Budgam, this

Court has been incapacitated to have access to the original record and

verify the veracity of allegations made by the petitioner. Be that as it is,

such lapse on the part of respondent No.3 is not going to deter this Court

from rendering justice in the matter.

13. From a perusal of the photocopy of the application form of

respondent No.5, it transpires that along with the application form

submitted by respondent No.5 on 09.01.2018, he had appended his

educational testimonials including Ph.D completion certificate obtained

from Dr. Babasaheb Ambedkar Marathwada University, Aurangabad. What

the Court found astonishing was that respondent No.5 has not given the

year of passing of Ph.D, though he has given the year of passing of all

other qualifications. In support of his claim that he had done Ph.D, on the

cut-off date the respondent No.5 has placed amongst his educational

qualification certificates a notification issued by the University on

13.10.2017 declaring respondent No.5 eligible for award of the said degree.

It is, thus, clear that, though notification declaring respondent No.5 eligible

for award of decree was issued on 13.10.2017, yet actual degree was

conferred on him by the University on 15th May, 2018. It is because of this

reason, copy of Ph.D degree awarded by the University on 15 th May, 2018

was later on given to the respondents, may be, after conclusion of the

selection process.

14. From the application form of respondent No.5, it is, thus, evident

that the notification holding respondent No.5 eligible for award of degree

of Ph.D by the University had been issued on the date he submitted his

application form and this is what emerges from the application form.

Question No.(ii)

15. So far as this question is concerned, it raises some disputed questions

of fact. The petitioner alleges that respondent No.5 while being in the

regular employment of the Education Department of the State (now UT) as

Lecturer on academic basis could not have simultaneously pursued his

Ph.D degree even by part time mode. Contrarily, respondent No.5 submits

that he pursued his Ph.D degree from the University as a part time scholar

and, therefore, was not required to attend the University on regular basis.

16. I have given my consideration to the rival contentions and found that

under Regulation 13 of the University Grants Commission (Minimum

Standards and Procedure for award of M.Phil/Ph/D Degree) Regulations,

2009, M.Phil/Ph.D scholars whether they are regular or part time are

obliged to necessarily undertake course work for a minimum period of one

semester. That would mean that even a part time scholar has to undergo the

course work on regular basis for a period of six months. It is evident that

respondent No.5 while serving as Lecturer on academic basis in the

Education Department of the State has not undertaken such mandatory

course work. Additionally, a part time scholar is also not exempted from

pursuing the course of Ph.D under the guidance of a nominated guide.

17. A person serving in J&K cannot, by any stretch of imagination, be

expected to pursue his Ph.D course even on part time basis in a University

located in Maharashtra because the distance between the two places is so

vast that it is practically impossible for an employee serving in the State

even in academic or contractual capacity to pursue his Ph.D on part time

basis in Dr. Babasaheb Ambedkar Marathwada University, Aurangabad.

This is one of the aspects that needs to be considered by the Government

before taking any further decision in the matter.

Question No.(iii)

18. Admittedly, vide order dated 01.01.2019 by the Director General,

Youth Services and Sports, the petitioner had been appointed as Rehbar-e-

Khel in Zone Narbal being the candidate last in the select list in the open

merit and, therefore, was entitled to all protections available to a civil

servant. It may be, as pleaded by the respondents, a case of correction of

error. Even correction of an error would have required atleast putting the

petitioner to show cause notice and giving him hearing before passing

order adverse to his interests. Undoubtedly, the selection and appointment

of the petitioner had conferred a vital right on him to continue in service

and he could not have been deprived of such right without first giving him

an opportunity of being heard. The cancellation of his appointment would

definitely involve civil consequences. Had he been put on notice, perhaps,

he could have demonstrated before the respondents that the Ph.D degree

relied upon by the official respondents was invalid and obtained in

violation of the relevant statutes and guidelines and respondent No.5 is not

entitled to addition 05 points.

Conclusion

19. In view of the aforesaid, this petition is disposed of by directing as

under:-

i) That the second select list prepared pursuant to the report of the

Enquiry Committee headed by the Deputy Commissioner, Budgam,

whereby appointment of the petitioner is sought to be substituted by

the appointment of respondent No.5 is held bad and in violation of

the principles of natural justice.

ii) Respondent No.2 is directed to proceed in the matter in accordance

with law and in case appointment of the petitioner is required to be

withdrawn pursuant to the recommendations of the Enquiry

Committee headed by the District Development Commissioner,

Budgam, the petitioner shall be put on notice to show cause and shall

be given an adequate opportunity to put forth his point of view.

Needless to say that he shall be provided not only the report of the

Enquiry Committee but also other documents, which the official

respondents rely upon to substitute his appointment by respondent

No.5. All points raised by the petitioner including the issue of

validity of Ph.D degree of respondent No.5 shall be considered and

decided by respondent No.2 in light of the UGC(Minimum

Standards and Procedure for Awards of M.Phil/Ph.D Degree)

Regulations, 2009 and the Ordinances of Dr. Babasaheb Ambedkar

Marathwada University, Aurangabad. Proceeding, if initiated, shall

be concluded within two months from the date of this judgment.

iii) Respondent No.3, who has misled the Court by producing photocopy

of the record instead of original record, as was directed by this Court,

is guilty of withholding the relevant information from this Court,

deserves to be proceeded against for committing contempt of this

Court.

iv) Registry shall frame a separate Robkar and direct respondent No.3 to

appear in person before this Court on 28th October, 2021 to show

cause as to why he be not punished for committing the contempt of

this Court by deliberately misleading the Court, producing

photocopy of the record and withholding relevant information from

the Court.

Record produced by the learned counsel for the official respondents

be returned back to him, however, the Registry shall retain a photocopy of

the record as part of the writ record.

(Sanjeev Kumar) Judge Srinagar.

06.10.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes