Zahoor Ahmad Mir vs State Ofj&K & Ors
2023 Latest Caselaw 968 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                                Reserved on: 03.08.2023
                                                Pronounced on:18.08.2023

                           SWP No.900/2013
                                c/w
                          CPSW No.395/2013

ZAHOOR AHMAD MIR                               ...PETITIONER(S)

      Through: - Mr. I. Sofi, Advocate
Vs.

STATE OFJ&K & ORS.                            ...RESPONDENT(S)

      Through: - Mr. Syed Musaib, Dy. AG.
                 Mr. Mubeen Wani, Dy. AG
                 Mr. M. A. Wani, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR,JUDGE

                                JUDGMENT

SWP No.900/2013

1) This is the third round of litigation initiated by the petitioner

challenging the engagement of respondent No.7 as Rehbar-e-Taleem for

the school located at Piswal Mohalla Warnow Rung District Kupwara.

2) Initially, the petitioner filed a writ petition bearing OWP No.

1512/2010 before this Court whereby he had challenged the enquiry

report submitted by the Assistant Commissioner, Revenue, Kupwara.

According to the said report, it was concluded that the petitioner was

actually residing at Warnow with his father at the time of issuance of the

advertisement notice inviting applications for the post of ReT for the

school located at Piswal Mohalla Warnow Rung, hence not eligible for

engagement. This Court vide its order dated 24th December, 2010,

disposed of the aforesaid writ petition extending the following

directions:

a) The Deputy Commissioner, Kupwara, shall either himself enquiry into the issue of residence of the petitioner or cause the enquiry to be done by the Additional Deputy Commissioner, Kupwara, in which enquiry the petitioner as also the private respondent shall be associated. The petitioner shall be given opportunity of hearing which will include production of documents as well. The authority thereafter shall return the finding about the actual residence of the petitioner. This process be initiated and concluded within a period of one month from the date copy of this order is served upon respondent No.5.

b) On receipt of the report of authority, respondent nos.3 and 4 shall proceed with the selection process and engage the meritorious candidate on the post of Rehbar-e-Taleem in accordance with the terms and conditions of Advertisement Notification, guidelines of the scheme and Government orders occupying the field. Respondents 3 and 4 will conclude the process of selection and appointment within a period of one month thereafter.

3) It seems that pursuant to the aforesaid directions of this Court, the

Additional Deputy Commissioner, Kupwara, submitted his report to the

Deputy Commissioner, Kupwara, vide his communication

No.ADDCK/2011/957-60 dated 15.09.2011. As per the said report, the

Additional Deputy Commissioner, Kupwara, also came to the conclusion

that the petitioner, at the time of issuance of notification by the Education

Department for appointment of ReTs, was residing with his father at

Warnow and not with his brother at Piswal Mohalla Warnow Rung.

4) The aforesaid report was challenged by the petitioner by way of

second writ petition bearing SWP No.2034/2011. This Court vide its

order dated 07.12.2012, concluded that the enquiry conducted by the

Additional Deputy Commissioner, Kupwara, is not in consonance with

the earlier direction dated 24.12.2010 passed in the first writ petition. It

was also observed that the report of the Additional District Development

Commissioner, Kupwara, is cryptic in nature and, accordingly, the same

was quashed. The Court directed the Deputy Commissioner, Kupwara,

to get the issue of residence of the petitioner enquired into either himself

or through Additional Deputy Commissioner, Kupwara, after hearing

both the contesting parties.

5) Pursuant to the aforesaid directions of this Court, impugned report

dated 02.05.2013 has been rendered by the Deputy Commissioner,

Kupwara. As per the said report, the contention of the petitioner that he

is a resident of Rung Warnow is not tenable and it is respondent No.7

who is a resident of said habitation and, as such, she deserves to be

considered for engagement as ReT. It seems that on the basis of aforesaid

report of the Deputy Commissioner, Kupwara, respondent No.7 has been

engaged as an ReT in terms of impugned order dated 18.05.2013 issued

by Zonal Education Officer, Khumeriyal.

6)    Heard and considered.


7)    The main ground urged by learned counsel for the petitioner for

impugning the report of the Deputy Commissioner, Kupwara, and the

order of engagement of respondent No.7 is that the report of the Deputy

Commissioner, Kupwara, appears to be based upon the enquiry

conducted by the Additional Deputy Commissioner, Kupwara, and his

consequent report but the Additional Deputy Commissioner, Kupwara,

has not rendered any fresh report at all.

8) The official respondents have not placed on record copy of the

enquiry report submitted by the Additional Deputy Commissioner,

Kupwara, which seems to be the basis of the impugned report of the

Deputy Commissioner, Kupwara. In this context, it would be apt to

notice the contents of the impugned report dated 02.05.2013 made by the

Deputy Commissioner, Kupwara. It reads as under:

The Addl. Deputy Commissioner, Kupwara pursuant to the said directions summoned the parties and recorded their statements, besides, he also visited the spot and accordingly furnished a detailed report which revealed that the Petitioner, namely, Zahoor Ahmad Mir is not the actual resident of the advertised hamlet/habitation, Rung Warnow, as the petitioner's father is residing at Wannow, however, one of his brothers is residing at Rung Warnow, the advertised habitation, and the petitioner himself has joined his brother with an ulterior motive to illegally avail the benefit of the ReT post. The Addl. Deputy Commissioner, has further added in his report that the contentions of the petitioner of being the resident of Rung Warnow are not tenable, as it is the private respondent namely, Nusrat Abdullah, who resides within the advertised habitation and deserves to be considered for engagement as ReT subject to fulfillment of the other eligibility criteria as envisaged under rules.

9) From a perusal of the aforesaid report, it is clear that the

Deputy Commissioner has based his findings upon the detailed report

furnished by the Additional Deputy Commissioner, Kupwara. The report

further reveals that the Additional Deputy Commissioner, Kupwara, has

furnished his report after recording statements of the witnesses and after

summoning and hearing the parties.

10) As already stated, the official respondents have not placed on

record the report of the Additional Deputy Commissioner, Kupwara,

which finds mention in the impugned report dated 02.05.2013 made by

the Deputy Commissioner, Kupwara. Therefore, learned counsel for the

official respondents was directed to produce the relevant record so as to

ascertain the veracity of the contention of the petitioner that the

Additional Deputy Commissioner, Kupwara, has not furnished any fresh

report to the Deputy Commissioner, Kupwara. Accordingly, the record

has been produced by the learned counsel appearing for the official

respondents.

11) A perusal of the record reveals that there is no enquiry report

of the Additional Deputy Commissioner, Kupwara, on the file. The only

report of the Additional Deputy Commissioner, Kupwara, which is on

record of the file is report dated 15.09.2011 that was subject matter of

challenge in SWP No.2034/2011. The said report of Additional Deputy

Commissioner, Kupwara, stands quashed in terms of order dated

07.12.2012 passed in the aforesaid writ petition. If the Deputy

Commissioner, Kupwara, while making the impugned report, has relied

upon the same report of the Additional Deputy Commissioner, Kupwara,

which has been quashed in the earlier round of litigation between the

parties, then the impugned report of the Deputy Commissioner is no

report in the eyes of law because the foundation of the said report has

already been knocked down by this Court in the earlier round of

litigation. This Court could not find any other report of the Additional

Deputy Commissioner, Kupwara, in the record produced by learned

counsel for the official respondents. The only conclusion in these

circumstances that can be drawn is that the Deputy Commissioner,

Kupwara, while rendering his finding with regard to residence of the

petitioner, has relied upon the report of the Additional Deputy

Commissioner which has already been quashed by this Court. The

impugned report made by the Deputy Commissioner, Kupwara, is,

therefore, liable to be set aside being not sustainable in law.

12) Accordingly, the writ petition is disposed of with the following

directions:

I. The impugned report dated 02.05.2013 made

by respondent No.5 is quashed. The said

respondent is directed to get the enquiry

regarding residence of the petitioner conducted

by the Additional Deputy Commissioner,

Kupwara, or undertake the said enquiry himself

afresh. This exercise shall be completed at an

earliest, preferably within a period of one

month from today and while making the

enquiry, the petitioner and respondent No.7

shall be heard and they shall be allowed to

produce witnesses and the documents.

II. The impugned order of engagement of

respondent No.7 shall remain in abeyance and

it shall be given effect to only if, upon enquiry,

it is found that the petitioner was not residing

at Piswal Mohalla Warnow Rung at the relevant

time or else the official respondents shall

withdraw the impugned order.

13) The record be returned to learned counsel for the respondents.

CPSW No.395/2013

In view of the decision in the main writ petition, the order out

of which instant contempt petition has arisen, has merged in the

final judgment. Therefore, nothing further survives for

consideration in this contempt petition. The same is, accordingly,

disposed of.

(Sanjay Dhar) Judge Srinagar 18.08.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:          Yes/No
                   Whether the order is reportable:        Yes/No