Jammu & Kashmir High Court - Srinagar Bench
Safiya Sikander vs State Of J&K & Ors on 1 September, 2021
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
Reserved on:17.08.2021
Pronounced on:01.09.2021
LPA No.112/2019
c/w
LPA No.113/2019
LPA No.114/2019
SAFIYA SIKANDER ... APPELLANT(S)
Through: Mr. Shafqat Nazir, Advocate.
Vs.
STATE OF J&K & ORS. ...RESPONDENT(S)
Through: Mr. Shah Aamir, AAG,
Mr. Sajad Ashraf, GA
Mr. M. R. Thakur, Advocate.
Mr. Nissar Ahmad Bhat, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, 'J'
1) Appellants have challenged judgments dated 15.03.2019 passed
by learned Writ Court, whereby writ petitions filed by the appellants
bearing SWP Nos.431/2019, 433/2019 and 434/2019 have been
dismissed.
2) The facts leading to filing of these intra-court appeals are that
Jammu and Kashmir Services Selection Board (for short the respondent
LPA No.112/2019
c/w LPA No.113/2019 & LPA No.114/2019
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Board) issued advertisement notice No.06/2017/01 to 06/2017/14 dated
28.12.2017, inviting online application from eligible candidates for
selection to the District Cadre posts of General Line Teachers. These
advertised posts related to Anantnag, Bandipora, Baramulla,
Ganderbal, Kulgam, Pulwama, Shopian, Srinagar, Samba, Udhampur,
Reasi and Rajouri districts. In the case of District Srinagar, 333 District
Cadre posts of Teachers were advertised, out of which 33 posts were
reserved for Scheduled Tribe category candidates. As per the
advertisement notice, only the candidates belonging to a particular
district were eligible to apply for the posts pertaining to the said district.
The last date for submission of application forms was fixed as 21st
January, 2018.
3) The writ petitioners responded to the aforesaid advertisement
notice by offering their candidature for Scheduled Tribe Category posts
pertaining to district Srinagar. After conducting OMR based written
test of the candidates, the respondent Board issued provisional shortlist
of the candidates vide its communication No.SSB/Secy/2018/9151-55
dated 04.08.2018 asking the shortlisted candidates to appear before the
Counselling cum Document Verification Committee for counselling
and document verification. The writ petitioners, accordingly, appeared
before the Committee and submitted certain certificates regarding their
eligibility. However, when the select list was published by the
LPA No.112/2019
c/w LPA No.113/2019 & LPA No.114/2019
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respondent Board, the writ petitioners did not find their names in the
same even though they had secured higher merit than those who were
selected in the merit list issued by the respondent Board. Accordingly,
the writ petitioners challenged the selection of candidates as General
Line Teachers under Scheduled Tribe category of District Srinagar by
filing the writ petitions which are subject matter of these intra-court
appeals.
4) The respondent Board filed its objections before the Writ Court,
in which it contended that the Counselling cum Document Verification
Committee, upon verification of the documents produced by the writ
petitioners, found them not eligible for the post of Teacher for District
Cadre Srinagar as they failed to produce residence certificate as
envisaged by Section 13 of the Jammu and Kashmir Civil Services
Decentralization and Recruitment Act, 2010 ( "Act of 2010" for short
hereinafter). The respondent Board took a stand that the merit position
of the writ petitioners is immaterial because they could not be
considered for the advertised posts under Scheduled Tribe category for
District Srinagar as they have been found not eligible for the said posts.
Accordingly, the respondent Board justified its action of ignoring the
candidature of the writ petitioners in the select list.
5) The learned Writ Court upon consideration of the material on
record, came to the conclusion that there is nothing on record to suggest
LPA No.112/2019
c/w LPA No.113/2019 & LPA No.114/2019
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that as on date of application, the writ petitioners had resided in District
Srinagar for a period of not less than 15 years and, as such, they were
rightly held ineligible for the posts in question. Accordingly, the writ
petitions have been dismissed in terms of judgments dated 15.03.2018
which are under challenge before us.
6) We have heard learned counsel for the parties and perused the
record of the case.
7) The decision in this case hinges on determination of the issue
whether the writ petitioners, on the basis of the documents which they
had placed before the Counselling cum Document Verification
Committee, could be stated to have resided for a period not less than 15
years before the date of application in District Srinagar, which was the
requirement under Clause 1(i) of the Advertisement Notice dated
28.12.2017, which reads as under:
"(1) Online applications are invited from eligible
candidates for participating in the selection process
for various District cadre posts shown against
Unique Advertisement Number mentioned in the
Annexure "A" to this notification who:-
(i) are permanent residents of J&K State.
(a) It is further amplified that in respect of
District Cadre posts only those
candidates who are residents of the
concerned District as defined under the
relevant Act/Rules can apply.
However, candidates belonging to SC
category are eligible to apply for the
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c/w LPA No.113/2019 & LPA No.114/2019
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said reserved vacancies irrespective of
the district of residence in the
concerned District.
(b) "A person shall be deemed to be
resident of a particular District if he /
she has resided in such District as the
case may be for a period of not less than
15 years before the date of applying for
a particular post and is actually residing
in the said area".
(c) If a woman marries outside her District
the period of residence of 15 years shall
not operate as bar for applying to a post
provided that her husband is a resident
of that District, as the case may be, for
a period of not less than 15 years."
8) From a perusal of the aforesaid Clause, it is clear that District
Cadre posts are meant only for those candidates who are residents of
the concerned District as defined under the relevant Act/Rules. This
clause of the advertisement notice owes its genesis to the provisions
contained in Section 6 of the Act of 2010, which deals with appointment
to District Cadre posts. It reads as under:
"6. Appointment to District Cadre posts.
A persons shall be eligible to the appointment to a
District Cadre post only if he,--
(i) is a permanent resident of the State;
(ii) is a resident of the concerned district; and
(iii) possesses the prescribed qualification,
eligibility and experience for the post as
specified under the rules/orders regulating
recruitment to such posts.
9) From a perusal of the aforesaid provision, it is clear that for being
eligible for appointment to the District Cadre posts, a candidate, inter
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c/w LPA No.113/2019 & LPA No.114/2019
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alia, should be a resident of the concerned district. As per Clause
1(i)(b)of the advertisement notice, as quoted above, a person is deemed
to be resident of a particular District if he/she has resided in such
District for a period not less than 15 years before the date of application
and is further actually residing in the said area. Thus, in order to be
eligible to apply for a District Cadre post, it has to be shown by the
candidate that he/she is residing in that particular district for a period
not less than 15 years and that he was actually residing in the district
as on the date of application.
10) Now the point to be determined is as to whether on the basis of
the documents placed before the Counselling cum Verification
Committee by the writ petitioners, it can be stated that they had resided
for a period not less than 15 years in District Srinagar and that they were
actually residing in the said District on the date of the application.
According to the writ petitioners, they had placed the following
documents/certificates before the Counselling cum Verification
Committee:
i) State Subject certificate'
ii) ST category certificate;
iii) Permanent Resident certificate dated
06.03.2018 issued by the concerned
Tehsildar;
iv) Certificate dated 20.09.2018 issued by
Tehsildar Headquarter with Deputy
Commissioner Srinagar;
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c/w LPA No.113/2019 & LPA No.114/2019
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v) Migration certificate dated 06.01.2018 issued
by Tehsildar Gurez in favour of the father of the
petitioners;
vi) Photo voter slip issued by Election Commission
of India in favour of the petitioners;
vii) Copy of ration card showing residence of father
of the petitioners with house number;
viii) The revenue documents of the land on which
father of the petitioners has constructed a
residential house in the year 1991 along with
Khaka Dasti thereof;
ix) Marks card of the petitioner Safiya of class
nursery (admission No.842 of Way Land
School Jawahir Nagar, Srinagar)
x) Certificate issued by Tehsildar Headquarter
with Deputy Commissioner, Srinagar, dated
18.02.2019 certifying that father of the
petitioners has been a resident of Mehjoor
Nagar, Srinagar, since 1989.
11) So far as document at serial No.(x) i.e., certificate issued by
Tehsildar Headquarter, Srinagar, dated 18.02.2019, is concerned, it is
improbable that the writ petitioners would have produced the said
certificate before the Counselling Cum Document Verification
Committee for the reason that the date of counselling and verification
of documents, as mentioned in petitioners' own documents, was 17th
September, 2018, whereas the aforesaid certificate has been issued on
18.02.2019 which is well after the date of counselling and documents
verification. Any document produced after the cut-off date fixed for
verification of documents cannot be taken into consideration by the
selection agency for the purpose of determining the eligibility of a
candidate.
LPA No.112/2019
c/w LPA No.113/2019 & LPA No.114/2019
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12) So far as the State Subject certificate and Scheduled Tribe
Category certificates of the writ petitioners are concerned, it is clearly
shown in these certificates that the writ petitioners are residents of
Tehsil Gurez in District Baramulla (now District Bandipora). The other
certificates, mentioned hereinbefore, that were produced by the writ
petitioners before the Committee do not suggest that they have resided
in District Srinagar for a period of 15 years and that they were actually
residing in Srinagar on the date of application. All these documents
have been meticulously analysed by the learned Writ Court and we do
not find any error in the said analysis or the conclusion drawn by the
learned Writ Court from such analysis.
13) Apart from the above, sub-rule (4) of Rule 13 of the Jammu and
Kashmir Civil Services Decentralization and Recruitment Rules, 2010,
provides that the permanent resident certificate shall be the conclusive
proof of residence of a candidate in a particular District or the Division.
It reads as under:
"(4). For purposes of this rule, the permanent
resident certificate shall be the conclusive
proof of residence of a candidate in a
particular District or the Division."
[emphasis supplied]
14) The expression "conclusive proof" has been defined in Section 4
of the Act of Evidence Act. The relevant excerpts of the said provision
are quoted below:
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c/w LPA No.113/2019 & LPA No.114/2019
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"Conclusive Proof".--When one fact is
declared by this Act to be conclusive proof
of another, the Court shall, on proof of the
one fact, regard the other as proved, and
shall not allow evidence to be given for the
purpose of disproving it."
From a perusal of the aforesaid provision, it is clear that when a
fact is declared to be "conclusive proof" of another, no evidence could
be given for the purposes of disproving the said fact.
15) The Supreme Court in the case of Calcutta Municipal
Corporation v. Pawan Kumar Saraf and another, (1999) 2 SCC 400,
while interpreting proviso to sub-section (5) of Section 13 of Prevention
of Food Adulteration Act, 1954, according to which a document
purporting to be a certificate signed by Director, Central Food
Laboratory, is to be treated as final and conclusive evidence of the facts
stated therein, in para 12 of the judgment observed as under:
"12. If a fact is declared by a statute as final and
conclusive, its impact is crucial because no party can
then give evidence for the purpose of disproving that
fact. This is import of Section 4 of the Evidence Act,
1872 which defines three kinds of presumptions
among which the last is "conclusive proof":
16) Again, in State of Kerala v. Mohammad Basheer, (2019) 4 SCC
260, the Supreme Court, while explaining the meaning of the
expression "conclusive proof", has observed that it is well settled that
when the enactment enjoins that any evidence would be treated as
conclusive proof of certain factual situations or legal hypothesis, law
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c/w LPA No.113/2019 & LPA No.114/2019
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would forbid other evidence to be adduced for purposes of
contradicting or varying such conclusiveness.
17) From the foregoing analysis of the legal position, it is absolutely
clear that once sub-rule (4) of Rule 13 (supra) makes State Subject
certificate "conclusive proof" with regard to residence of a candidate in
a particular District or division, no amount of evidence or documents
can dislodge the same. Admittedly, the State Subject certificates
submitted by the writ petitioners before the Counselling cum Document
Verification Committee show them to be the residents of Tehsil Gurez
District Baramulla (now District Bandipora). These certificates are
conclusive proof about the fact that they belong to the said District.
Thus, even if for the sake of arguments, it is assumed that the writ
petitioners did produce documents or evidence before the Verification
Committee to establish that they have been residing in District Srinagar
for a period of more than 15 years, still then their claim cannot be
accepted in the face of conclusive proof of their residence as given in
the State Subject certificates produced by them.
18) Learned counsel for the writ petitioners has vehemently
contended that the selected candidates i.e., private respondents herein
originally belong to the areas outside District Srinagar but they have
managed to get State Subject certificates from Srinagar District by
suppressing the material facts before the authorities who have issued
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c/w LPA No.113/2019 & LPA No.114/2019
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the State Subject certificates in their favour.
19) We are afraid we cannot go into this aspect in these proceedings.
Once the private respondents have submitted State Subject certificates
showing them to be the residents of District Srinagar before the
Counselling cum Document Verification Committee, it was not open to
the Committee to go behind the circumstances under which these
documents were issued by the competent authority. It is impermissible
for this Court also to go into this issue in these proceedings.
20) Even otherwise, it appears from the material on record that
suppression of material facts, if any, has been resorted to by the writ
petitioners. On the one hand they claim to be residing in District
Srinagar since the year 1989 but on the other they have obtained
permanent resident certificates and category certificates in the year
1998 showing themselves to be residents of Tehsil Gurez District
Bandipora. If the writ petitioners were actually residing in District
Srinagar since the year 1989, they could have easily procured the
aforesaid certificates from the Competent Authority of District
Srinagar. Gurez being a backward area, it seems, the writ petitioners
deliberately chose to get the aforesaid certificates by showing
themselves as residents of said area so as to reap the benefit of
reservation in employment meant for the residents of backward areas
but unfortunately it has worked against them in this case. The writ
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c/w LPA No.113/2019 & LPA No.114/2019
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petitioners cannot now be heard to claim that they are actually residents
of District Srinagar and to have best of both worlds.
21) It has been lastly contended by the learned counsel for the writ
petitioners that sub-rule (4) of Rule 13 of the Jammu and Kashmir Civil
Services Decentralization and Recruitment Rules, 2010, is working
very harshly against the writ petitioners, inasmuch on the basis of the
documents, which they have produced before the Counselling cum
Document Verification Committee, they are shown to be the residents
of District Srinagar whereas on the basis of the State Subject
certificates, they are presumed to be residents of District Bandipora.
This, according to the learned counsel, has put the writ petitioners in a
precarious position as they cannot apply for their employment to
District Cadre posts either in District Bandipora or in District Srinagar.
According to the learned counsel, even the Writ Court has noted this
lacuna in the Rules but has expressed its helplessness in the matter.
22) As already noted, the State Subject certificate, as per the existing
rules, is the conclusive proof of residence of a candidate and, as such,
it would be open to the writ petitioners to apply for District Cadre posts
in District Bandipora and no amount of documents is enough to refute
or rebut the position regarding their residence in District Bandipora.
Even otherwise, the writ petitioners have not challenged the vires of
Rule 13 of the of the Jammu and Kashmir Civil Services
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Decentralization and Recruitment Rules, 2010, as such, we are not
inclined to go into this aspect of the matter. The said Rule, as on date,
has to be applied as it is and not as it ought to be.
23) For the forgoing reasons, we no not find any infirmity or
illegality in the impugned judgment(s) passed by the learned Writ
Court. The appeals are, accordingly, dismissed being without any merit.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
01.09.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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c/w LPA No.113/2019 & LPA No.114/2019
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