Amresh Singh Son Of Angrez Singh ... vs Wasim Akram Son Of Nazir Ahmed ...
2023 Latest Caselaw 2273 j&K

                                     [

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                              LPA No. 218/2018
                                              LPA No. 219/2018
                                              LPA No. 223/2018
                                              LPA No. 46/2019

                                          Reserved on 07.10.2023.

                                          Pronounced on 12 .10.2023
LPA No. 218/2018

Amresh Singh son of Angrez Singh age 29                   ..... appellants (s)
years resident of village Masri Tehsil and
District Doda.

                              Through :- Mr. Ajay Kumar Advocate.

                        V/s



1 State of J&K through Commissioner/Secretary to Government Education
Department J&K Govt Civil Sectt. Jammu
2. Secretary to Govt. Revenue Department Civil Sectt Jammu
3.Divisional Commissioner, Jammu
4. Director School Education, Jammu
5. Deputy Commissioner, Doda
6. Chie Education Officer, Doda
7. Zonal Education Officer, Doda
8. Wasim Akram son of Nazir Ahmed Zargar resident of village Tarone Tehsil
and District Doda.
9. Zahida Parveen daughter of Shri Nazir Ahmed Zargar
10. Nazir Ahmed Zargar son of Ghulam Mohd Both residents of village
Tarone, Tehsil and District Doda.
11. Tehsildar Doda.

                              Through :- Ms Monika Kohli Sr. AAG
                                         Mr. Achal Sharma Advocate

LPA No. 219/2018

Amresh Singh son of Angrez Singh age 29                   ..... appellants (s)
years resident of village Masri Tehsil and
District Doda.

                              Through :- Mr. Ajay Kumar Advocate.

                        V/s
                                     2




1 State of J&K through Commissioner/Secretary to Government Education
Department J&K Govt Civil Sectt. Jammu
2. Secretary to Govt. Revenue Department Civil Sectt Jammu
3.Divisional Commissioner, Jammu
4. Director School Education, Jammu
5. Deputy Commissioner, Doda
6. Chie Education Officer, Doda
7. Zonal Education Officer, Doda
8. Wasim Akram son of Nazir Ahmed Zargar resident of village Tarone Tehsil
and District Doda.
9. Zahida Parveen daughter of Shri Nazir Ahmed Zargar
10. Nazir Ahmed Zargar son of Ghulam Mohd Both residents of village
Tarone, Tehsil and District Doda.
11. Additional Deputy Commisoner, Doda.

                              Through :- Ms Monika Kohli Sr. AAG
                                         Mr. Achal Sharma Advocate

LPA No. 223/2018                                          ..... appellants (s)

Amresh Singh son of Angrez Singh age 29
years resident of village Masri Tehsil and
District Doda.

                              Through :- Mr. Ajay Kumar Advocate.

                        V/s



1 State of J&K through Commissioner/Secretary to Government Education
Department J&K Govt Civil Sectt. Jammu
2.Director School Education, Jammu
3. Chief Education Officer, Doda
4 Divisional Commissioner, Jammu
4. Director School Education, Jammu
5. District Development Commissioner, Doda
6. Tehsildar Doda
7. Station House Office, Police Station Doda
8. Zonal Education Officer Doda
9.Wasim Akram son of Nazir Ahmed Zargar resident of village Tarone Tehsil
and District Doda.

                              Through :- Ms Monika Kohli Sr. AAG
                                         Mr. Achal Sharma Advocate

LPA No. 46/2019
                                        3


1 State of J&K through Commissioner/Secretary to Government Education
Department J&K Govt Civil Sectt. Jammu
2.Director School Education, Jammu
3. Chief Education Officer, Doda
4 Sh. Pawan Dev Kotwal, the then Divisional Commissioner, Jammu
4. Director School Education, Jammu
5. District Development Commissioner, Doda
6. Tehsildar Doda
7. Station House Office, Police Station Doda
8. Zonal Education Officer Doda

                                             Ms Monika Kohli Sr. AAG
                                 vs.

1. Wasim Akram son of Nazir Ahmed Zargar resident of village Tarone Tehsil
and District Doda
2. Amresh Singh son of Angrez Singh age 29 years resident of village Masri
Tehsil and District Doda.

                                             Mr. Achal Sharma Advocate
                                             Mr. Ajay Sharma Advocate.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
        HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                 JUDGMENT

Sanjeev Kumar, J.

LPA No. 218/2018, LPA No. 219/2018 & LPA No. 223/2018

1 These three intra-Court appeals by the appellant are directed

against a composite judgment dated 03.12.2018 passed by a learned Single

Judge of this Court ["the Writ Court"] in SWP No. 2360/2010, SWP

No. 2009/2017 and OWP No.1190/2017 whereby the Writ Court has allowed

SWP No. 2360/2010 filed by respondent No.8 herein and quashed the orders

dated 21.08.2010, 01.09.2010 and 17.09.2010 impugned in the said writ

petition, whereas SWP No.2009/2017 and OWP No. 1190/2017 filed by the

appellant have been dismissed.

2 Briefly put the facts leading to filing of these appeals are that the

Chief Education Officer, Doda vide his Advertisement Notice dated

14.12.2009 invited village-wise applications on prescribed format from the

permanent residents of J&K State for engagement of ReTs at village

level/Panchayat level/Zone level in various upgraded Primary Schools in

different education zones of District Doda. Two posts of ReTs were notified to

be filled up in upgraded Primary School, Masri of revenue village, Masri.

3 The appellant and respondent No.8 herein along with others

responded to the aforesaid Notification and sought their consideration against

the aforesaid two posts of ReT in UPS, Masri. On the basis of eligibility and

merit, the Zonal Education Officer, Doda prepared and displayed a tentative

list of candidates to be engaged as ReTs in UPS, Masri under SSA Scheme.

Respondent No.8 along with one Jamsheed Ahmed were tentatively found

entitled to be engaged as ReTs in UPS, Masri. Since the panel was subject to

objections, as such, the appellant herein filed written objections to the

engagement of respondent No.8 on 19.01.2010 and brought it to the notice of

the Authorities concerned that respondent No.8 was actually the resident of

village Trown and had, by suppression of material facts, obtained another PRC

for village Masri much after the cut-off date mentioned in the Advertisement

Notification.

4 The appellant also filed an application before Deputy

Commissioner, Doda seeking his indulgence to verify the authenticity and

genuineness of PRC certificate issued on 18.01.2010 and RBA certificate

issued by the Tehsildar, Doda dated 16.08.2004. On the basis of the complaint

received by the Deputy Commissioner, Doda, an enquiry was got conducted

through the Assistant Commissioner, Doda who, vide his communication dated

19.05.2010 communicated to the Deputy Commissioner, Doda that respondent

No.8 had obtained the second PRC of village Masri by fraudulent means. It

was also reported that respondent No.8 and his sister Zahida Parveen had

produced wrong affidavit before the Authority concerned that they had not

previously obtained any PRC, nor had they made any application in this behalf.

The Assistant Commissioner, Doda, thus, recommended cancellation of the

second PRC issued in favour of respondent No.8.

5 Acting upon the report of Assistant Commissioner, Doda, the

Deputy Commissioner, Doda vide his communication dated 19.05.2010

recommended to the Divisional Commissioner, Jammu for cancellation of the

second PRC issued in favour of respondent No.8. The Divisional

Commissioner, upon consideration of the recommendations of the Deputy

Commissioner, Doda and taking note of the facts and circumstances detailed

therein, forwarded the case for cancellation of second PRC to the

Administrative Department with the request that same may be placed before

the Hon‟ble Revenue Minister for passing appropriate orders against

respondent No.8 and his sister i.e respondent No.9 herein, besides the Deputy

Commissioner, Doda was also directed to register a case for cheating against

respondent No.8 and his sister. The Divisional Commisisoner, Jammu also

directed the cancellation of appointment of respondent No.8 as ReT. The order

passed by the Divisional Commissioner, Jammu was brought to the notice of

Chief Education Officer, Doda by the Deputy Commissioner, Doda vide his

communication dated 01.09.2010 and the former was directed to initiate

appropriate action to ensure that respondent No.8 is disengaged as ReT.

6 It seems that pursuant to the directions issued by the Divisional

Commissioner, Jammu and Deputy Commissioner, Doda and on the

instructions of CEO, Doda, ZEO Doda prepared fresh panel showing appellant

as a person entitled to be engaged as ReT in UPS, Masri in place of respondent

No.8. The Select list was, accordingly, forwarded to the Competent Authority

i.e Director School Education, Jammu for approval. The Director School

Education, Jammu accorded approval to the panel and paved the way for

appointment of appellant as ReT in UPS Masri. Before the approved panel

could be given effect to, respondent No.8 filed SWP No. 2360/2010

challenging order dated 21.08.2010 passed by the Divisional Commisisoner,

Jammu, order dated 01.09.2010 passed by the Deputy Commissioner, Doda

along with tentative panel prepared by the ZEO, Doda on 17.09.2010. The

official respondents as well as appellant herein filed their objections.

7 With a view to determine the actual and physical residence of

respondent No.8, the Writ Court, vide its order dated 09.02.2015 directed the

Deputy Commissioner/Additional Deputy Commissioner, Doda to conduct an

enquiry focused on following two issues:

(i) the actual and physical residence of the petitioner at Masri/Trown, the period and the duration thereof, so also in the case of the parents of the petitioner;

(ii) The benefit received by the petitioner or any member of his family on account of being a resident of backward area. Details of RBA certificate issued in favour of the petitioner and other members of his family and whether they have been renewed or cancelled.

8 It seems that in compliance with the directions passed by the Writ

Court, Additional Deputy Commissioner, Doda conducted an enquiry and

submitted his report to the Deputy Commissioner, Doda in which respondent

No.8-the writ petitioner in SWP No. 2360/2010 was stated to be actually and

physically residing in village Masri along with his parents. Since this report of

the Additional Deputy Commissioner, Doda was not palatable to the appellant,

as such, he challenged the same by way of SWP No. 2009/2017. Apart from

challenging the report of Additional Deputy Commissioner, Doda, the

appellant also called in question the Government Order dated 18.06.2014

whereby the Government cancelled the 1st PRC of respondent Nos. 8 and 9 in

respect of village Trown and upheld the 2nd PRC of respondent No.8 for village

Masri. All the three writ petitions, one filed by respondents No.8 and two filed

by the appellant came to be considered and disposed of by the Writ Court vide

order and judgment dated 03.12.2018 which is impugned in the four different

appeals: three filed by the appellant and one filed by the State of Jammu and

Kashmir (now UT of J&K).

9 Having heard learned counsel for the parties and perused the

material on record, it is necessary to first advert to the salient features of ReT

Scheme which the official respondents followed for making engagement of

ReTs under SSA scheme as well. The ReT Scheme in the then State of Jammu

was promulgated vide Government Order No. 396 of Edu 2000 dated

28.04.2000 to ensure peoples‟ participation in the management of education at

the gross root level. In terms of the Scheme, the eligibility criteria for

engagement of an ReT was prescribed as under:

(a) ReT should be the permanent resident of the State;

(b) He or she should belong to the village where there is assessed deficiency of staff. On the certification of VEC that no local candidate from the village is available, VEC can draw up the panel from the adjoining village;

(c ) He or she should possess the minimum qualification of 10+2;

(d) The candidate shall as far as possible fulfill the age qualification as prescribed by the State Government; and

(e) Due consideration shall be given by the VEC to the Scheduled Castes and Scheduled Tribes.

10 What is relevant for the controversy raised in these appeals is

clause (b) of the eligibility which provides that a candidate to be engaged as

ReT in a particular school must belong to the village where there is assessed

deficiency of staff.

11 It is not in dispute that the term „village‟ has been later on

explained by the Government to be a „revenue village‟. In the instant case,

two posts of ReT were notified to be filled up in the upgraded Primary

School, Masri which is situate within the revenue village Masri.

Indisputably the appellant belongs to village Masri, whereas there is

controversy with regard to the actual and physical residence of respondents

NO.8. It seems that at the time of submission of application form,

respondent No.8 appended with his application form a PRC issued by the

Deputy Commissioner, Doda indicating his residence in the revenue village

Trown. It is, however, not known as to how and on what basis, ZEO Doda

empanelled him for engagement as one of the ReTs in UPS Masri. Since the

name of respondent No.8 was indicated only in the tentative panel which

was subject to objections, as such, the appellant, who was next in merit and

was actually a resident of village Masri, raised objection.

12 With a view to meeting the objection raised by the appellant

respondent No.8 hurriedly applied and got the second PRC issued by the

Additional Deputy Commissioner, Doda and, this, was in respect of village

Masri. The application form and the affidavit submitted by respondents

No.8 and 9 in support of their claim have been placed on record by the

appellant which are not refuted by respondent No.8. The application form

and the affidavit submitted clearly indicate that respondent No.8 obtained

the second PRC and this time in respect of village Masri by stating on oath

that this was his first application for grant of PRC and that he had not been

earlier issued any certificate of permanent residence. The competent

Authority believed the respondent No.8 and issued the PRC indicating the

his residence in village Masri. The appellant immediately objected to it and

filed a complaint before the Deputy Commissioner, Doda. Enquiry was

conducted in the matter and it was found that the second PRC obtained by

respondent No.8 was by misrepresentation and suppression of material

information and that the same was obtained only with a view to stake claim

for engagement as ReT in UPS Masri.

13 Accordingly, the Deputy Commissioner, Doda recommended

cancellation of the second PRC issued in favour of respondents No. 8 and 9

to the Divisional Commissioner, Doda. Since the Revenue Minister is the

competent Authority to cancel the PRC issued in favour of a person, as

such, the Divisional Commissioner forwarded the case to the

Administrative Department of Revenue. Simultaneously, the Divisional

Commissioner, Jammu also directed the Deputy Commissioner, Doda to

take necessary steps for cancellation of engagement of respondent No.8, if

any, made against the post of ReT in UPS Masri. The Deputy

Commissioner, Doda swung into action and called upon CEO, Doda to take

immediate action. On the directions of CEO, Doda, the ZEO Doda reframed

the tentative panel and showed the appellant as tentatively selected instead

of and in place of respondent No.8 and forwarded the panel to the Director

School Education, Jammu for approval.

14 As stated above, the panel got the approval from the Director

School Education, Jammu but could not be given effect to due to filing of

SWP No. 2360/2010 by respondent No.8. Pursuant to the interim directions

dated 09.02.2015 passed in SWP No. 2360/2010, the Additional Deputy

Commissioner, Doda conducted fresh enquiry into the actual and physical

residence of respondent No.8 and concluded that respondent No.8 was

actually and physically residing in village Masri along with his parents.

This report was separately challenged by the appellant in SWP

No. 2009/2017. In the meanwhile, the cancellation file of respondent No.8

came up for consideration before the Administrative Department wherein it

was decided to cancel the first PRC of respondent No.8 issued in the year

2004 in respect of village Trown and uphold the second PRC issued for

village Masri. Accordingly, Government Order dated 18.06.2014 was

issued which the appellant assailed in OWP No. 1190/2017.

15 The core issue that arises for determination before us is two fold:

(i) whether respondent no.8 was actually and physically residing in the

revenue village Masri on the date of issuance of Advertisement

Notification; and (ii) whether the conduct of respondent No.8 exhibited by

him from time to time would justify the exercise of equitable jurisdiction

vested in this Court under Article 226 of the Constitution of India.

16 So far as the status of respondent No.8 being actual and physical

resident of village Masri is concerned, the same, in our opinion, is not

firmly established. Indisputably, respondent No.8 and his family originally

belonged to revenue village Trown which is a backward area notified under

the J&K Reservation Act 2004 and the rules framed thereunder. With a

view to reap the benefit of backward area and to obtain a category

certificate of RBA, respondent No.8 all along claimed and asserted to be the

resident of village Trown. He was issued PRC in year 2003 in respect of

village Trown. He also obtained a certificate of RBA in the year 2004 on

the ground that he was actually and physically residing in village Trown.

Probably, he later on shifted to village Masri, but he did not prepare any

documents, in particular, the Ration Card of village Masri for the reason

that he never wanted to lose his RBA status which was conferred upon him

by being the resident of village Trown. Even his name does not exist in the

voter list of village Masri for the years prior to 2009.

17 As is apparent from the communication of Deputy Commissioner,

Doda dated 12.07.2013 addressed to the then Additional Advocate General

representing the Education Department, the father of respondent No.8

appeared before the Tehsildar, Doda on 05.05.2010 and made a statement

that he had already obtained PRC in favour of his son, namely Waseem

Ahmed, respondent No.8 herein, in 2003 as a resident of village Trown and

that his son had erroneously obtained the PRC from the revenue Department

showing himself as a resident of village Masri. He even requested that the

PRC certificate issued in favour of his son for village Masri be cancelled

and he be allowed to retain the PRC of village Trown issued in the year

2003. It seems that this report was not accepted by Writ Court and the

Deputy Commissioner, Doda was again directed to consider the issue. The

Deputy Commissioner conducted the enquiry and concluded that

respondent No.8 and his sister were permanently and actually residing in

village Masri with their parents and that they had not obtained any benefit

of RBA certificate issued to them by the Tehsilda Doda in respect of village

Trown.

18 From a reading of the report prepared by the Deputy

Commissioner, Doda, it seems that he has mainly relied upon some oral

statements of the villagers and some Chula Chowkidara register and also

some khasra girdwari in respect of some land of family of respondents No.8

in village Masri.

19 Admittedly, the ration card, which is a relevant document, for the

year 2009 when the Advertisement Notification was issued was not

obtained by the respondent No.8. In short, what we find is that the material

taken into consideration by the Deputy Commissioner, Doda was not

sufficient to come to a conclusion that respondent No.8 was actually and

physically residing in village Masri at the time of issuance of notification or

on the cut off date mentioned in the said notification. Even if we were to

assume that he had taken up his residence in village Masri and was residing

there in the year 2009 still the Writ Court ought not to have allowed the writ

petition filed by respondent No. 8 in exercise of equitable jurisdiction

vested in it by Article 226 of the Constitution of India. Respondent No.8 has

all along been playing smart with the Authorities and wanted to sail in two

boats simultaneously. He being the actual resident of village Trown had

obtained his PRC and RBA certificate by showing himself to be the

permanent and actual resident of village Trown. May be he had shifted his

residence to village Masri, but he did not prepare the relevant documents

which would indicate him to be the resident of village Masri till the

Advertisement Notification in question was issued by the CEO, Doda in the

year 2009. Since an opportunity came in the way of respondent No.8 in the

year 2009 when notification was issued by the CEO Doda for filling up the

posts of ReTs in UPS Masri, he submitted his application form but could

not append therewith the PRC in respect of village Masri. The ZEO, Doda

even considered his name though erroneously and indicated him in the

tentative panel on the basis of his merit. When this was objected to by the

appellant, respondent No.8 swung into action and moved an application

before the Deputy Commissioner Doda. He misrepresented before the

Authorities and claimed that he had not earlier been issued any PRC nor had

he made any application in this behalf. He suppressed the fact that he was

already possessing PRC and RBA certificate in respect of village Trown

and persuaded the Deputy Commissioner, Doda to issue fresh PRC in

respect of village Masri. This is the first fraud played by respondent No.8.

The appellant who felt deprived of his right did not relent and made an

application to the revenue authorities for cancellation of his second PRC.

The Deputy Commissioner, Doda as well as the Divisional Commissioner,

Jammu have recommended the cancellation of his second PRC, but

somehow the respondent No.8 seems to have managed with the

Government and got the order issued in respect of cancellation of his first

PRC and not the second which he had obtained by misrepresentation.

Obviously, the Government acted arbitrarily and condoned the fraud played

by respondent No.8.

20 The Writ Court was aware of all these aspects, but,

concluded that since the requirement of Advertisement Notification and the

ReT Scheme is that a candidate to be engaged as ReT must be physically

and actually residing in the village where the school is situate, as such, the

PRC was not the primary evidence of residence. We respectfully concur

with the view taken by the Writ court, but the Writ Court has not taken note

of the conduct of the appellant which alone had disentitled him to invoke

the extraordinary equitable writ jurisdiction of the Constitutional Court

under Article 226 of the Constitution of India.

21 It is trite law that he who seeks equity must do equity and in

granting relief peculiar to its own jurisdiction, the Writ Court which is also

a Court of equity, acts upon this rule. The Court of equity refuses relief to a

person whose conduct in respect of subject matter of litigation has been

improper. Although the respondent No.8 is not found to have indulged in

any fraud or misrepresentation in this litigation, yet his conduct of

manipulating two PRCs and one RBA certificate claiming to be resident of

two different villages is not condonable. A citizen who manipulates law to

suit his need cannot seek the protection of law when law takes it own

course. We could have appreciated the bonafides of the respondent No.8,

had he voluntarily surrendered his PRC and RBA certificate which he had

obtained by claiming to be permanent resident of village Trown by

submitting before the Authorities that he has given up his residence at

village Trown and has taken it up permanently at village Masri. However,

the reposndent No.8 wanted to have the best of both worlds. We are, thus,

of the firm opion that the Courts of equity have no place for such litigants.

22 For all these reasons, we pass the following order:

(i) LPA No.223/2018 filed by the appellant Amresh Singh & LPA No. 46/2019 filed by the State of J&K (now UT) are allowed. Order dated 03.12.2018 passed in SWP No. 2360/2010 set aside. Consequently, the writ petition is dismissed.

(ii) LPA No. 219/2018 filed by the appellant Amresh Singh is allowed and the order dated 03.12.2018 passed in SWP No. 2009 is set aside. As a result, the writ petition is allowed and the enquiry report dated 07.07.2015 issued by the Additional Deputy Commissioner, Doda whereby it was held that the respondent Waseem Akram and his sister are permanently and actually residing in village Masri with their parents and, therefore,

the appellant Amresh Singh is entitled to be considered for engagement as ReT UPS Masri.

(iii) LPA No. 218/2018 filed by the appellant Amresh Singh is allowed and the order dated 03.12.2018 passed in OWP No. 1190/2017 is set aside. Consequently, the writ petition is also allowed and the Government orders No. Rev/PRC/137 dated 18.06.2014 and No. 148-52 dated 04.05.2016 which were impugned in the writ petition are quashed. The second PRCs obtained by respondent Wasim Akram and his sister by practicing fraud and misrepresentation shall be deemed to have been cancelled.

We, however, take judicial note of the fact that with the coming into force of the J&K Reorganization Act, 2019, the concept of PRC in UT of Jammu and Kashmir has ceased to exist and the citizens of India leaving in the UT of Jammu and Kashmir are now entitled to issuance of Domicile Certificate subject to fulfillment of certain conditions as laid down in the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020. We make it clear that, notwithstanding the quashment of aforesaid Government Orders, and cancellation of 2nd PRCs of respondents No.8 & 9, they shall be free and entitled to obtain Domicile Certificates, if not already obtained, from the Competent Authority on fulfillment of requisite formalities and meeting the required eligibility conditions.

                               (MOHAN LAL)                     (SANJEEV KUMAR)
                                    JUDGE                                JUDGE
Jammu
12.10.2023
Sanjeev                     Whether order is reportable: Yes