Hem Raj & Ors. vs State of J&K & Ors.

By way of the present petition, the petitioners seek issuance of a writ of certiorari for quashing the selection of respondents 4 to 7 having been

made by respondents 1 to 3 and also pray for a writ of mandamus commanding the respondents 1 to 3 to consider the names of the petitioners

instead of respondents 4 to 7 for appointment and any other direction in the nature of conducting verification of the certificates as produced by

respondents 4 to 7 by virtue of which they had taken undue advantage in the public services and have also prayed that the enquiry be initiated

against the respondents 4 to 7, who have produced fake, false and frivolous certificates, action under law against those authorities with whose

connivance, the respondents 4 to 7 have been able to get the certificates in their favour. The Rule nisi was issued at the time of motion hearing of

the petition asking the respondents, to show cause as to why the petition be not admitted to hearing, returnable within six weeks and also notice

was issued in the C.M.P. returnable within the same period. In the meanwhile direction was issued directing the respondents that in case the

appointment orders of respondents No.4 to 7 have not been issued so far, same be kept in abeyance till further orders from this Court. However,

in case they have already been appointed, their services may not be regularised till objections to be filed by the respondents are considered. This

direction was passed on 7th January, 1998.

Respondents 4 to 7, who have appeared through Mr. Sunil Sethi, have filed the objections in which they have besides raising other

controversies, have stated that the petition is not maintainable as none of the rights of the petitioners have been violated and that the petition is liable

to be dismissed as the petitioners have wilfully concealed the relevant facts from this Hon'ble Court and have projected a wrong picture to assert

that the answering respondents are not entitled to the benefits of reservation. It has further been pleaded that the answering respondents have

rightly been selected in the Scheduled Caste Category as they have been issued the Certificate of belonging to Scheduled Caste commuity. The

answering respondents belong to Basit community, which is recognised Scheduled Case community under the, The Constitution (Jammu &

Kashmir) Scheduled Castes Order, 1956. The Basrt community is figuring at Serial No.2 in the said schedule. It is further submitted and projected

by the respondents that in case the petitioner have any grievance against the issuance of Schedule Caste certificate in favour of the answering

respondents, there is proper procedure provided by SR0126 of 1994 itself without seeking quashment of the certificates issued infavour of the

answering respondents, the present petition is not maintainable. It is also projected and pleaded that the respondents though profess Sikhism but

the factum of their being belonging to Scheduled Caste category i.e., Basit cannot be disputed and the Scheduled Caste Certificates have been

issued to the answering respondents in reference to their belonging to the Basit community. It is further pleaded that the Constitution (Jammu &

Kashmir) uuled Caste Order, 1956 itself creates a provision that Scheduled Caste may be a person who is professing Hinduism or Sikhism as

religion and so on.

I have heard the arguments of the learned counsel for the parties at length. Learned counsel for the petitioners submits that as per the record

available with him, namely, revenue record and other factual documents the person of the respondents 4 to 7 have obtained certificates by

projecting wrong facts before the appropriate forum of the Competent Authority and have obtained certificates, which are not based on the facts,

which entitled the respondents 1 to 3 for issuance of such certificats. The arguments projected by the learned counsel are basically based on the

factual documents as per the revenue record in the area that the persons belong to Rajput community and Sikhs are not falling in the category of

Basit, who have been issued the certificates. The avernments made by the learned counsel for the petitioners boils down to the factual aspect of the

case. This being the extraordinary writ court is not a court of fact. To appreciate the facts in correct perspective, the persons of the petitioners

have got the remedy under SR0126 of 28.6.1994 and the relevant rules there under, wherein a certificate having been issued by the Competent

Authority. In case anybody is aggrieved of the issuance of any such certificate, he can prefer an appeal under Rule 31 or a Review/Revision under

Rule 32 issued under SRO126 of 1994. Rule 31 provides:

Appeals(1) Any person aggrieved by an order of rejection of the authorised officer under rule 30, may, at any time before the expiry of 90

days from the date of the order, prefer an appeal to

(i) Deputy Commissioner, if the order appealed against is passed by Tehsildar or SubDivisional Magistrate in their capacity as Authorised Officer

(ii) Divisional Commissioner, if the order appealed against is passed by Deputy Commissioner or Additional Deputy Commissioner in their

capacity as Authorised Officer;

(iii) Director General of Police against the order passed by the DIG.

(2) The Appellate Authority referred to in subrule (1) shall within 30 days from the date of receipt of the appeal pass such orders on the appeal as

it deems fit;

Provided that no such order shall be made unless a reasonable opportunity of being heard has been afforded to the appellant.

Review/Revision The Appellate Authority may, suo moto or on an application made, call for the record of the proceedings taken or orders

made by an Authorised Officer under these rules for purposes of satisfying itself as to the legality or propriety of such proceedings or orders and

may pass such orders in reference thereto, as he deems fit;

Provided that no order, prejudicial to any person shall be passed under this rule without giving him/her a reasonable opportunity of being heard.

So the SRO 126 is selfcontained procedure, in case of persons having any grievance against issuance of such certificates he may move the

Appellate Authority or the Appellate Authority may, suo moto or on an application made before him and he can satisfy himself about the

genuineness of the Certificates having been issued, so it is for that Court to arrive at a conclusion in the facts of a case and to see whether the

Certificate has been issued on sufficient/genuine material or on fake or on insufficient material. Under the extraordinary writ jurisdiction of this

Court, the factual aspect of the matter cannot be gone into, however, this Court has to see whether a candidate seeking consideration under the

reserve category on the basis of a Certificate has been considered by the Board/the Selection Authority and has to further appreciate whether the

Selection Authority has not misdirected itself in giving considering to the reserve category claims consideration and both of them claim to be

belonging to same category. This Court has further to see whether meritorious and efficient person amongst the two claimants have been selected

or not and in case it is found that a less meritorious has been selected ignoring the candidate with a higher merit, this Court has to interfere in

exercise of its extraordinary writ jurisdiction and accordingly appropriate direction shall be issued. But as regards the factual dispute whether the

Certificates have been issued on the genuine ground or on fake ground is a domain beyond appreciate the facts on this aspect being a writ court.

However, when the grievance has been projected, it will not be in the fitness of things to ignore the same.

I, therefore, while disposing of the matter direct the Deputy Commissioner, Rajouri to hold an enquiry within a period of one month from the

date he recieves a copy of this order regarding the genuineness or otherwise of the Certificates alleged to have been issued in favour of the

respondents 4 to 7. After the result of the enquiry, the appointing authority may issue the appointment orders in favour of the persons, who are

found eligible for being appointed under the reserved category as per their merit and certificates, provided they have claimed the consideration

under the said reserved category. The said enquiry is to be conducted and concluded by the Deputy Commissioner, Rajouri, who is appellate

authority in terms of SRO 126 of 1994. 6. The petition is accordingly disposed of alongwith CMP Nos.1 and 216 of 1998 in view of the above

directions.