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2016 Supreme(J&K) 660
IN THE HIGH COURT OF JAMMU AND KASHMIR
Dhiraj Singh Thakur, Bansi Lal Bhat, JJ.
Muhammad Yousuf Allai - Appellant
Vs.
Javaid Ahmad Geelani - Respondent
LPA No. 110 of 2008, CMP No. 181 of 2008, LPA No. 104 of 2008 and CMP No. 168 of 2008
Decided On : 16-04-2016
For the Appellant :M/s M.C. Dinghra, Advocate and M.K. Pandita, Advocate
For the Respondents:M/s Z.A. Shah, Sr. Advocate with Mr. I. Sofi, Advocate, Mr. B.A. Dar, Advocate, Mr. Majid Jahangir, Advocate and Mr. A. Amin, Advocate
A community certificate issued to a scheduled tribe candidate is good and valid for all purposes till it is canceled.
Headnote:
LETTERS PATENT APPEAL - SUBJECT - RBA CERTIFICATE - ACT SECTION LISTED - SUMMARY
Fact of the Case:
The appellant, Muhammad Yousuf Allai, was selected as a Munsiff under the RBA category pursuant to a notification dated 14.05.1998 issued by the Public Service Commission based upon the claim of the appellant that he was a resident of village Rakhsahilvat, which was scheduled as a backward area in terms of SRO 126 of 1994. The selection of the appellant forms the genesis of the litigation in the present case primarily on the ground that the said appellant was in fact a permanent resident of Village Mirgund and that he had fraudulently obtained the certificate with a view to get the benefit of reservation provided for residents of village Rakhsahilvat.
Finding of the Court:
The court held that the fact-finding enquiry was totally inconsequential and the same could not have formed a basis for any administrative action against the appellant. The court further held that the Deputy Commissioner, Baramulla shall himself conduct an enquiry with regard to the legality and propriety of the RBA certificate issued in favor of the appellant to determine as to whether the appellant had the requisite 15 years of residence at Rakhsahilvat prior to the date of application and was actually residing in the said area in terms of SRO 126.
Issues: 1. Whether the appellant was a permanent resident of village Rakhsahilvat and entitled to the benefit of reservation provided for residents of village Rakhsahilvat? 2. Whether the RBA certificate issued in favor of the appellant was valid and legal?
Ratio Decidendi: 1. The court held that the appellant was not a permanent resident of village Rakhsahilvat and was not entitled to the benefit of reservation provided for residents of village Rakhsahilvat. 2. The court held that the RBA certificate issued in favor of the appellant was not valid and legal.
Final Decision: The court modified the judgment and order impugned with the following directions: (i) The Deputy Commissioner, Baramulla shall himself conduct an enquiry with regard to the legality and propriety of the RBA certificate issued in favor of the appellant to determine as to whether the appellant had the requisite 15 years of residence at Rakhsahilvat prior to the date of application and was actually residing in the said area in terms of SRO 126. (ii) Reasonable opportunity of being heard shall be given to the appellant in the matter. (iii) Respondent No. 1-Javaid Ahmad Geelani in LPA No. 110/2008, is permitted to produce before the Deputy Commissioner, Baramulla all such material as he may deem fit to prove that the appellant was not entitled to any such benefit. (iv) The enquiry shall be completed positively within a period of three months from today. On the conclusion of the enquiry, appropriate orders shall be passed. (v) The order of the Deputy Commissioner, Baramulla shall be forwarded to the Registrar General of this court, who shall place the same before Lord Chief Justice for appropriate orders. (vi) The Deputy Commissioner shall ensure that no dilatory tactics succeed, which may obstruct him in submitting his report and passing the order within the time prescribed. (vii) Till the conclusion of the enquiry of the Deputy Commissioner, Baramulla, the appellant shall not be assigned any judicial work but may be assigned such alternate work as may not be connected with any judicial function. (viii) The issue of registration of a criminal case shall depend upon the decision of the Full Court based upon the outcome of the enquiry of the Deputy Commissioner.
Dhiraj Singh Thakur, J.
The present Letters Patent Appeals have been preferred against the judgment and order dated 06.06.2008 by virtue of which the writ court decided the writ petitions bearing SWP Nos. 973 of 2000 and 1755 of 2000 by way of a common order.
2. With a view to understand the controversy in its correct perspective, it is necessary to give in brief a few material facts.
LPA No. 110/2008
3. Appellant-Muhammad Yousuf Allai came to be selected as a Munsiff under the RBA category pursuant to notification dated 14.05.1998 issued by the Public Service Commission based upon the claim of the appellant that he was resident of village Rakhsahilvat, which was scheduled as a backward area in terms of SRO 126 of 1994.
4. The selection of the appellant forms the genesis of the litigation in the present case primarily on the ground that the said appellant was in fact a permanent resident of Village Mirgund and that he had fraudulently obtained the certificate with a view to get the benefit of reservation provided for residents of village Rakhsahilvat.
SWP No. 1724/1999
5. The appellant's selection was challenged for the first time in SWP No. 1724/1999, by Riyaz Ahmad Gada, who, inter alia, alleged that the appellant-Muhammad Yousuf Allai had got selected in the reserved category fraudulently inasmuch he was not actually a resident of the backward area Rakhsahilvat to which he claimed that he belonged to the said area.
6. It was also contended in that petition that in the earlier process of selection, he had appeared in the open merit category, which only supported the fact that he never belonged to the said backward area.
This writ petition came to he decided by a Division Bench of this Court by virtue of judgment and order dated 29.09.2009 by holding as under:
"..It was also contended that Respondent No. 5 appeared in the Open Merit Category in the previous similar selection process, but appeared in the Category reserved for candidates belonging to Backward Area while participating in the subject selection process. It was contended that Respondent No. 5 thus played fraud. The Officer who issued the certificate in favour of Respondent No. 5, upon which the said respondent staked his claim for the vacancy reserved for Backward Area candidates, was not made a party to the writ petition. There is, thus, no scope of going into the question whether the said certificate was or was not a valid certificate and, accordingly, whether Respondent No. 5 took recourse to fraud while offering himself as a candidate belonging to Backward Area Category. A person, who belongs to Backward Area Category, belongs to said category from the clay he is born, but acceptance thereof depends upon a certificate to that effect being issued by the competent authority. Untill such a certificate is issued, despite the person belonging to Backward Area Category cannot stake his claim as a Backward Area candidate.."
SWP No. 973/2000
7. This writ petition was filed by the petitioner, Javaid Ahmad, challenging the selection of private Respondent No. 6 therein (Muhammad Yousuf Allai) on the ground that the said respondent had manipulated his RBA category certificate even when he was not a permanent resident of village Rakhsahilvat. A prayer was thus made, seeking the quashment of selection/appointment of the said respondent.
SWP No. 1755/2000
8. It appears that based upon the allegations of mis-representation, fraud and concealment of material facts with regard to the selection and appointment of appellant-Muhammad Yousuf Allai, the Divisional Commissioner, Baramulla vide his communication dated 30.05.2000 directed the Deputy Commissioner, Baramulla to investigate the matter and furnish a detailed report with regard thereto.
9. On coming to know about the said report, the appellant filed the said petition, seeking a mandamus against the official respondents not to conduct any kind of investigation or enquiry regarding the validity or otherwise of the RBA certificate i
