- (1.) THESE two petitions being two sides of the same controversy are taken up together for common disposal. A.) Way back in 1998 vide notice published on 14th May, the respondent/PSC sought candidature for appointments against 33 posts of Munsiffs reserving six therefrom for RBA category. In March/April, 1999 examinations for selection of candidates for Jammu and Kashmir Civil Services (Judicial) were conducted and the list of selected candidates include respondent No. 6 in SWP No. 973 of 2000 and petitioner in SWP No. 1755 of 2000 under RBA category forwarded to Government who along with others yet appointed as Munsiffs under order No. 662/LD (A) of 2000 dated: 20.4.2000. Expressing grievance against that the petitioner in Writ petition No. 973 above mentioned claiming to have appeared at said examination and figuring in waiting list challenged the selection/appointment of 6th respondent on the ground that he had manipulated his category certificate of RBA category on basis whereof he was selected and accordingly prayed for quashment of his selection and the consequential appointment. This petition being No. 973 appears to have been instituted in this court on 25.7.2000. B. Around four months thereafter i.e. on 8.11.2000 6th respondent in aforesaid petition instituted writ petition No. 1755/2000 in this court seeking quashment of a communication addressed by Divisional Commissioner to Dy. Commissioner, Baramulla under his No. Div. Com./LRB/BLA/20 dated: 30.5.2000 directing an enquiry against alleged fakery of petitioners RBA category certificate on basis of a representation reportedly received by him. A mandatory direction against functionaries of the Government for prohibiting such inquiry till disposal of the earlier writ petition was also prayed for. Accordingly the main question emerging in both writ petitions is the genuineness/fakery of the RBA category certificate forming basis of the selection/appointment of petitioner in petition No. 1755, the sixth respondent in petition No. 973, both of 2000; namely Shri Mohd Yousuf Allai.
(2.) FACTUAL position of the case appears to be that Shri Allai, is originally a resident of village Mirgund of Tehsil Pattan but claims to have shifted to the scheduled backward village Shilvat of Tehsil Sonwari somewhere in 1982 to which effect a certificate is claimed to have been issued by Tehsildar, Sonwari on 3.12.1996 in terms of SRO 126 of 1994" whereunder any person residing in a backward area for 15 years could claim the benefit of being a resident of backward area. To counter this the facts pleaded by his rival are that Shri Allai appeared in KCS(J) examinations of 1994 and 1996 also wherein he applied under open merit category showing village Mirgund as place of his residence and not Shilwat, as he would have had he been a resident of that village. Projected alongwith this, is a stream of circumstances, having bearing on the matter. The academic record including his Matriculation and LLB certificates show Sh. Allai to be a resident of Mirgund village as also his enrolment as an Advocate has been reflected in his application form of 1994 and 1996 whereunder he sought candidature in KCS (J). Coupled with this are the certificates purporting to have been issued by concerned Chowkidar of village Shilvat regarding petitioners residence in that village where he claims to have received landed property by way of gift. A comparative assessment of the documents relied upon by rival sides as aforesaid tilts the probabilities against Shri Allais claims of having been a resident of village Shilvat because all certificates which ordinarily carry a presumption of authenticity regarding their contents, that is, the Matriculation Certificate issued by BOSE, Degree Certificate issued by the University, and the enrolment certificate issued by High Court, all show him to be a resident of village Mirgund Tehsil Pattan against Chowkidar and Lambardars written information and the ration ticket relied upon by him appear to be frivolous.
(3.) THIS controversy mystery surrounding the matter might perhaps have been resolved had the enquiry ordered by Divisional Commissioner in the matter vide aforementioned communication been allowed to be concluded, which incidentally count not happen due to the prohibitory order passed in Sh. Allais writ petition No. 1755/2000 whereunder all authorities of State who restrained from conducting the enquiry; which those could not even take off; in view whereof this court appears to have felt constrained to direct an inquiry in the matter by Registrar Vigilance of this court on 11.8.2003 in following terms: This order appears to have been challenged by Sh. Allai before a Division Bench of this court which confirmed the same vide order dated: 17.10.2003, passed in LPA No. 18 of 2003 in following terms: 'The ground urged in support of the Appeal is that the Appellants counsel has not agreed to the assigning of the fact finding process to the Registrar Judicial. Instead the counsel though did not show any cause against enquiry, agreed holding of enquiry under SRO 126 of 1994. The submission of the counsel which runs counter to the statement appearing in the judgment of the court cannot be urged in Appeal. This is so as this statement of facts and happenings and concession made transpiring at the hearing appearing in the judgment and order of the court record, are not open to challenge in appellate proceedings and are conclusive of the facts and events so stated. Only way to correct the record, if the party thinks that the facts and happenings in court are not correctly reflected in the order is to move and call the attention of the very Judge who made record. Otherwise the matter ends there and court record is unquestionable. In this regard, it is apt to notice the observations of Supreme Court in Central Bank of India vs. Vrajlal Kapurchand Gandhi and others (2003 AIR SCW 3485 ) as under: - "12. The only course open to a party taking the stand that order does not reflect actual position is to move to High Court in line with what has been said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and another (1982 (2) SCC 463). In recent decisions i.e., Bhavnagar University vs. Palitanga Sugar Mill Pvt. Ltd. (2002 AIR SCW 4939) and Room Kumar vs. .Mohan Thedani (2003(3) Scale 611) the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This court cannot launch into an enquiry as to what transpired in the High Curt. It is simply not done. Public Policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. We do notice that when the matter was required to be enquired by Deputy Commissioner, Baramulla on communication received from Divisional Commissioner and Chief Secretary, the Appellant rushed to the court to pray for stoppage of such enquiry by filing SWP No. 973/2000 to seek stay of writ proceedings in SWP 1755/2000 filed by Mr. Javaid Ahmad questioning the genuineness of RBA Certificate of the Appellant on the strength of which certificate Appellant got the benefit of selection/appointment to Judicial Service in RBA category, on the specious but fallacious plea of putting on hold parallel enquiry. Now when court ordered the enquiry on agreement of the parties by Registrar Vigilance (Judicial), the Appellant has come in Appeal to pray that such enquiry be held under SRO 126 of 1994 and not by the Registrar Vigilance (Judicial). If Appellant is not objecting to the enquiry, which he should not, in order to reach the truth and determine the factual premise of the RBA category status and certificate of the appellant, he should least fear for such fact finding enquiry by Registrar Vigilance (Judicial). It is necessary to determine factual premise and truthfulness of the RBA category certificate and relatable status of the appellant and the benefit derived there -from by him in order to re -enforce the confidence in Judicial system and maintain purity of stream of justice. SRO 126 of 1994 is not be all and end all of finding truth or otherwise or grave allegation/charge of fraud, misrepresentation, concealment and suppression of facts in obtaining the RBA Certificate by the Appellant. We see - nothing wrong in asking the Registrar Vigilance (Judicial) to hold enquiry and file report in the matter as ordered by writ Court. We also notice that the Appellant has opportunity to associate with the enquiry, depending on the necessity and it cannot be inferred from the impugned order that Appellant is denied opportunity to be associated with the enquiry, no matter the enquiry is a fact finding process". As a result of the direction as confirmed by the Division Bench, Registrar Vigilance appears to have furnished his report to this court on 31.8.2005 finally holding that neither in 1977 nor any time after that Shri Allai had migrated to Rakh -Shilvat from village Mirgund where he continues to reside. Doubting genuineness of the RBA category certificate issued in his favour the Registrar Vigilance returned certain important findings having bearing on matter. Relevant portion may be quoted from the report. "The important questions of fact involved in this enquiry therefore are: Had the respondent shifted to village, rakhshilvat, Tehsil, Sonawari from village, Mirgund, Tehsil, Pattan in the year 1977 or 1982? and had the respondent resided in village, Rakhshilvet for a period of not less than 15 years continuously and permanently, as at the time of the application for RBA certificate i.e., 04.05.96 ?........" ".......The very basis of respondents migration to Village, Rakhshilvat, Tehsil Sonawari from Village Mirgund, Tehsil, Pattan is, therefore, shaken. That notwithstanding, the core questions for consideration are, had the respondent actually migrated to Village, Rakhshilvat in the year 1977, say, when Ali Mohammad Rather gifted a portion of his house to him or any time thereafter, say, in the year 1982 and thereafter resided there continuously and permanently. Important evidence on these points is to be looked in the statement of all Mohammad Rather, because it was a portion of his house where the respondent had allegedly assumed abode after migration to that Village. Neither he has stated nor it appears from his statement that the respondent had actually occupied that portion of the house in the year 1977 or any time thereafter and resided there continuously. Other evidence on this point can be found in the statements of Mohammad Sadeeq Ganie - Chowkidar, Ghulam Hussain -Lumberdar and Abdul Gani Baba -Patwari......" ".......According to Mohammad Sadeeq Ganie, Chowkidar, none namely Mohammad Yousuf Allai, resides or ever resided within his Chowkidara, including Village, Rakhshilvat. Gh. Hussain, the Lumberdar of Village, Rakhshivat, too has clearly stated that neither he had ever seen the person, namely, Mohammad Yousuf Allai nor any such person resides in Village Rakhshilvat. Patwari, Abdul Gani Baba has also stated that Mohammad Yousuf Allai did not reside in Village Rakhshilvat when he was posted as Pathwari of that Village......." "........The Patwari, while referring to choolo Register of village, Rakhshilvat, has also categorically stated that no Choola in the name of Mohammad yousuf Allai ever existed or exists in the register. The respondent, Mr. Allai, in his writ as also with the objection to the other writ has produced a photocopy each of a certificate dated 20.05.96 issued by Chowidar of village Rakhshilvat, Sadiq Ganai, certifying that the respondent is a permanent resident of that village and his choola is entered at serial No. 334. However, in his deposition before this commission the chowkidar, while referring to this certificate, has categorically denied to have issued such certificate and has stated that Mr. Air Rather, who is a big man of the Illaqa, had approached him for a Choola certificate for his son and had obtained his signature on a written document. Saying that he is an illiterate person, the chowkidar has also stated that he signed the certificate under the impression that the same was issued for the son of Ali Rather. Circumstances surrounding its issuance notwithstanding, the certificate issued by the Patwari is contrary to the concerned register, which alone is the public document, and therefore, should not be relied upon..............."(Para 16) "........The, other instances quoted by the respondent are the issuance of PRC in his favour, showing him to be a resident of Village, Rakhshilvat and the migration certificate dated 21.02.1982 issued by Tehsildar, Pattan. A photocopy each of this PRC is annexed with petition in SWP 1755 as Annexure E and objections in SWP 973 as Annexure R -3. It shows to have been issued by the Dy. Commissioner, Baramulla in the year 1995 on the basis of enquiry held by Tehsildar, Sonawari in file No.384 of the year 1995. A photocopy each of the migration certificate is also annexed as Annexure -C and Annexure R -10 respectively. It shows to have been issued by Tehsildar, Pattan. Nature and value of these two documents would be considered after determination of the questions of fact framed above........"(Para 19) ".........In Para 9 (iv) of his petition, the petitioner has contended that in the year 1981 the respondent had obtained PRC from the office of Dy. Commissioner, Baramulla, showing him to be a resident of Village Mirgund, Tehsil Pattan. Its copy is annexed as Annexure -8. He passed his matric examination from Jammu and Kashmir Board of school Education (BOSE), where his permanent address is recorded as village, Mirgund, Tehsil Pattan........"(Para 20) ".......Later he joined service with the same board and in his service record also he is recorded as a resident of Village, Mirgund, Pattan. The petitioner has also contended that the respondent joined LL.B. Course in Kashmir University showing he to be a resident of Village Mirgund. He got enrolled himself as an advocate with High Court of Jammu and Kashmir and also appeared in KCS ( Judicial) Examinations held in the year 1994 and 1996, again showing he to be a resident of Village, Mirgund......."(Para 21) ".......... Mr. Mukhtar Ahmed Jallu, Law Officer, BOSE, Srinagar had produced relevant record before this commission on 09.10.03, when his statement was recorded. His statement shows that Mr. Mohammad Yousuf Alai had applied in prescribed form for admission to the Board Examination for the year 1977. In that application (EXPMJ) he had given his permanent home address as Mirgund, Narbal, Kashmir. In the year 1997, respondent had taken employment in the same Board as Legal Assistant when he had shown himself to be a resident of Zanakote, Srinagar........ ."(Para 22) "..........Mr. Mohammad Latief Khan, Assistant Registrar, High Court of J&K, Main Wing, whose statement was recorded on 08.12.03, has produced record pertaining to Mr. Mohammad Yousuf Allais enrolment as advocate and that pertaining to his appointment as Oath Commissioner. Mr. Mohammad Yousuf Allai had applied for enrolment as advocate with Bar Council of Jammu and Kashmir in June 1990. In his application for such enrolment he had given his permanent address as "R/0 Mirgund (Pattan) P/0 Mirgund (Pattan)". The record also contains a copy of PRC issued by Dy. Commissioner, Baramulla in the year 1981 and character certificate issued by Dean of Students Welfare, the University of Kashmir on 03.05.90. In both these documents Mr. Alai is shown as a resident of Village, Mirgund, Tehsil, Pattan. Mr. Alai was first enrolled provisionally as advocate for two years vide Notification No. 133 dated 10.02.93. In both these notifications, he is shown as a resident of village, Mirgund, Pattan........" (Para 23) "..........Mr. Mohammad Yousuf Alai applied for appointment as Oath Commissioner vide his application dated 14.07.92. In this application also he has shown his address as R/O Mirgund, P/O Mirgund Pattan.......... (Para 24) ".......Mr. Mushtaq Ahmed, Head Assistant, J&K Public Service Commission has produced record pertaining to Mr. Mohammad Yousuf Alais admission to KCS (Judicial) Examination 1996. The record contains application in prescribed form, submitted by Mr. Mohammad Yousuf Alai. In this application he has shown his postal and permanent address as R/o and P/o Mirgund (pattan). The record also contains attendance sheet in which his permanent as well as postal address is shown as R/o and P/o Mirgund (Pattan). Record also contains a copy of PRC of Mr. Alai which is similar as that furnished with application for enrolment as advocate i.e., issued by Dy. Commissioner, Baramulla in the yea, 1981, showing him as a resident of Village, Mirgund, Mr. Mushtaq Ahmad has also stated, which gets confirmation from the record, that in all the communications addressed by the candidate to the Public Service Commission and by the Public Service Commission to the candidate in connection with the examination, address of the candidate is recorded as Mirgund, Pattan..... ...."(Para 25) Registrar Vigilance also doubted competence of the Officer shown to have issued the RBA category certificate and opined that because of that the certificate was Sham. Following is what he has said in this behalf. ".........In his statement before this Commission Syed Mohammad Yasin has stated that in the year 1996 he was posted as Tehsildar, agrarian Reforms Sumbal -Sonawari and remained so for four years. This Tehsil comprises of three Nayabats (circles) namely, Shadipora, Hajin and Sumbal. His territorial jurisdiction as Tehsildar Agrarian Reforms extended to Shadipora and Hajin circles whereas the Sumbal circle was under the jurisdiction of territorial Tehsildar, even for Agrarian Reforms matter. Village, Rakhshilvat was not covered under his territorial jurisdiction. He has admitted that he had issued the RBA Certificate in favour of Mr. Mohammad Yousuf alai and had also recommended issuance of PRC in his favour. He has also admitted that authority to enquire and issue RBA certificates under SRO 126 lies with territorial Tehsildar only and no other certificate under that SRO was issued by him. He had enquired into and issued RBA certificate in favour of Mr.Mohd. Yousuf alai under written authority given to him by the then Deputy Commissioner, Baramulla, Mr. Atul Dullo. Dilating the point he has stated that the then territorial Tehsildar, Mr. mohammad Amin khan, had requested Mr. Dullo that he being preoccupied, application of Mr. Mohammad Yousuf Alai be entrusted to him. Mr. Dullo in turn first entrusted the application to him verbally but at his insistence issued a written order. As regards issuance of PRC, he has admitted that power to issue PRCs also lies with territorial Tehsildar but due to heavy schedule of the territorial Tehsildar, Deputy Commissioner, Baramulla, had authorized him verbally to deal with these cases and he issued hundreds of PRCs. Mr. Yasin has further stated that the RBA certificate was issued by him under file No. 38/96 and the PRC was processed under file No.384/95. Both these numbers were given from the Register of territorial Tehsildar and files were also kept in that office..........."(Para 29) "..........What is thus, clear from the statement of Syed Mohammad Yasin, is that at the relevant tune he was posted as Tehsildar, Agrarian Reforms, Sumbal Sonawari, His territorial Jurisdiction extended only to Shadipora and Hajin circles of that Tehsil. Village Rakhshilvat was not covered under his territorial jurisdiction even for Agrarian Reforms purpose. In his capacity as Tehsildar, Agrarian Reforms, he was not authorized to deal with and issue RBA certificate under SRO 126 and to process and recommend cases for issuance of PRCs. Even in respect of persons residing within his territorial jurisdiction i.e., Shadipora and Hajin circles. Only the territorial Tehsildar of the Tehsil was authorized to deal with such cases and issue RBA certificates. As per him, application for issuance of RBA certificate to Mr. Mohammad Yousuf Alai was entrusted to him by a written order by the then Deputy Commissioner, Baramulla, Mr. Atul Dello, he had processed his case for issuance of PI " having been verbally authorized by the Deputy Commissioner to deal with such cases due to heavy schedule of Territorial Tehsildar............"(Para30) "...........Mr. M. Amin Khan, the then Tehsidar, Sumbal -whom Syed Mohammad Yasin has also named in his statement - has state/ that enquiry regarding issuance of PRCs and RBA certificate fell exclusively within the jurisdiction of territorial Tehsildar, Syed Mohammad Yasin, who was posted as Tehsildar, Agrarian Reforms, had no authority to process or issue PRC or RBA certificate, not only because he could not as Tehsildar Agrarian Reforms deal with such matters but aJso because Village, Rakhshilvat fell outside his jurisdiction. He has further stated that no higher authority/officer had in his presence, verbally or in writing, empowered Syed Mohammad Yasin to process or issue PRC or RBA certificate in favour of Mr. Mohammad Yousuf Alai or any other person. Any such claim made by Syed Mohammad Yasin is not correct.......... "(Para 31) ".........Syed Mohammad Yasin, who was posted as Tehsildar, Agrarian Reforms, was neither competent nor authorized and did not even had the territorial jurisdiction to issue the RBA certificate dated 30.12.96 in favour of the respondents while issuing this certificate, he had falsely designated himself as the "Authorised Officer". The certificate, therefore, besides being contrary to factual position, is a sham document, issued by a person without jurisdiction. Also it does not appear that Syed Mohammad Yasin was authorized to process or recommend the cases for issuance of PRCs. The migration certificate dated 21.02.82 (para -18) in face of above factual position also appears to be a sham document........"(Para 34) Shri Allai has however filed his written objection to said report to state that he was not given a fair chance to participate in the enquiry, which in view of the well supported conclusions arrived at by Registrar Vigilance only appears to be a desperate stretch to catch the straw. ;