Nazir Ahmad Paswal vs Through:- Mr Mir Manzoor
2023 Latest Caselaw 657 j&K/2

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR
                              -.-
                                   SWP No. 387/2016
                                                                Reserved on 19.05.2023
                                                              Pronounced on 26.05.2023

Nazir Ahmad Paswal
                                                                 ...Petitioner(s)
                              Through:-    Mr Mir Manzoor, Advocate

                                     v.
State of J&K and others
                                                                 ...Respondents
                              Through:-    Mr Mohsin Qadri, Sr. AAG, for R-1 to 6
                                           Ms Saima Mehboob, Advocate, for R-7
Coram:
                   Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge
                                    JUDGMENT

01/- The petitioner herein is challenging and seeking quashment of the enquiry report bearing No. 226/JC/TDHP dated 09/10/2015 made by respondent no. 6, whereby, the respondent no. 6 has reported to the Deputy Commissioner Kulgam that Mandowbal Asnoor habitation is not predominantly inhabited by ST Population.

02/- Precisely, the case of the petitioner is that he had offered his candidature for engagement as Rehbar-e-Taleem in Middle School habitation Mandowbal, Asnoor, Zone D. H. Pora, District Kulgam, pursuant to an advertisement notice no. ZEO/DHP/4087-88/14 dated 05.06.2014 issued by respondent no. 5. The selection process culminated into tentative selection of one Zamrooda Akhter daughter of Ghulam Mohammad Naik R/o Asnoor, District Kulgam, respondent no. 7, in terms of Notification No. CEO/K/Ret/2867/14 dated 03.09.2014.

03/- Feeling aggrieved of the selection, the petitioner objected to the same and challenged it by filing a writ petition, SWP no. 97/2015. Respondent no. 7, had also filed a writ petition, SWP no. 2102/2014, for finalizing the selection process by issuing engagement order in her favour. Both these writ petitions were disposed of by this Court in terms of a common judgment dated 17.09.2015 in the following manner:

"i) Deputy Commissioner, Kulgam shall enquire into the matter to find out whether habitation Mandowbal, Asnoor is predominantly inhabited by

ST population and transmit his report to Chief Education Officer, Kulgam.

ii) In the event, it is found that habitation Mandowbal, Asnoor, is not predominantly inhabited by ST population, Ms Zamrooda Akhter selected for the position shall be appointed against the advertised post. However, in case Dy. Commissioner, Kulgam arrives at a conclusion that habitation concerned is predominantly inhabited by ST category population, her selection shall stand cancelled and selection process finalized restricting it to candidate from Schedule Tribe Category.

iii) Chief Education Officer, Kulgam on receipt of such report shall find out whether Mr. Nazir Ahmad Piswal, responded to the Advertisement Notice in question, on the basis of record available as also the order passed by Civil Court in file No. 55/M, titled Nazir Ahmad Piswal v. State of J&K and Ors.

iv) Let such exercise be concluded within a period of six weeks' from receipt of this order."

04/- Thereafter, the petitioner has filed one more writ petition, SWP no. 2708/2015, seeking to challenge the enquiry report of the Naib-Tehsildar who had been entrusted with the enquiry by the Tehsildar concerned. The said writ petition, however, was disposed of by this Court in terms of order dated 16.12.2015 by observing that indulgence of the court is neither possible nor would it be apt to do so as the matter involves a point of fact. The court had, however, kept it open for the petitioner to raise his objection before the Deputy Commissioner who had to accord consideration to such objection, if raised.

05/- Upon notice the respondents appeared and filed their reply, stating therein, inter alia, that the respondent no. 7 was the only candidate who responded to the advertisement notice and came to be selected; the enquiry in question was initiated and report filed in compliance to the common judgment of this Court, delivered in writ petitions, SWP nos. 97/2015 and 2102/2014; the petitioner did not apply for the post in question within the cut-off date fixed in the notification; the writ petition raises disputed questions of fact which cannot be gone into by this court in its writ jurisdiction; the petitioner had filed writ petitions, SWP o. 97/2015 and 2708/2015 on the same subject, therefore, is precluded to file one more writ petition on the same subject. The reply filed by the Deputy Commissioner in unambiguous terms mentions that in terms of the detailed report

furnished by the Tehsildar DH Pora, there are 103 households in habitation Mondowbal, Asnoor with a total population of 546, out of which only 37 households belong to ST community having a total population of 207 only, which means that the habitation Mondowbal Asnoor is not predominantly inhabited by ST population.

06/- Heard learned counsel for the parties; considered the submissions made and perused the material made available.

07/- It needs to be noted in the first place that petitioner had filed a suit for Permanent Prohibitory and Mandatory Injunction before the court of Munsiff, D. H. Pora, pleading therein, inter alia, that he had not been allowed to participate in the selection process by refusing to entertain his application. The court, in terms of order dated 14.10.2014, directed the respondents to allow the plaintiff/ petitioner to participate in the process of selection subject to the conditions incorporated in the said order.

08/- Admittedly, the whole case of the petitioner hinges on the claim that the habitation for which the post in question was advertised is predominantly inhabited by ST population, therefore, the selection against the post is in violation of the Government Order No: 635-Edu of 2010 dated 04.08.2010 which inter alia provides that in case of habitations predominantly inhabited by SC/ST population, only the candidates belonging to these categories, and possessing the prescribed qualification, shall be considered for selection as Rehbar-e-Taleem.

09/- This court while appreciating the grievances of the petitioner had directed the concerned authority to enquire into the matter and take requisite steps on the basis of the outcome of such enquiry. The claim putforth by the petitioner, during enquiry, has been negated by the competent authority.

10/- What appears, therefore, is that this court, at the instance of the petitioner, directed for verification of the status of the habitation by an enquiry so that the claim projected by him in the writ petition, that the habitation in question is predominantly inhabited by ST population and he being a ST candidate deserved to be engaged as Rehbar-e-Taleem, is answered effectively. However, since the enquiry report is not on the lines

the petitioner expected, he seeks to challenge the same in the instant petition precisely on the ground that it is not based on facts and is incorrect.

11/- The Deputy Commissioner concerned is stating on affidavit that the claim putforth by the petitioner is against records. An enquiry report based on the spot visit of the concerned Magistrate is also negating the claim of the petitioner. The issue cannot be allowed to be too overstretched to consume decades to settle or till the time it satisfies the expectations of the petitioner.

12/- Having regard to what has been said hereinbefore, the writ petition is held to be without any merit, therefore, dismissed along with all CMs. Interim direction, if any, shall stand vacated. The respondents shall proceed with and finalize the selection process for the post in question without any further delay.

13/- There shall, however, be no order as to costs.

(Moksha Khajuria Kazmi) Judge SRINAGAR 26.05.2023 Amjad lone, Secretary Whether the judgment is speaking: Yes Whether the judgment is reportable: No