HEM RAJ Vs. STATE OF J&K

JUDGEMENT

(1.) 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.

(2.) 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 willfully concealed the relevant facts from this Honble 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 community. The answering respondents belong to Basit community, which is recognised Scheduled Case community under the The Constitution (Jammu & Kashmir) Scheduled Castes Order, 1956. The Basit 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 in favour 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) Scheduled 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.

(3.) 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 certificates. 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 extra -ordinary 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 thereunder, 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 ijnderSRO -126of 1994. Rule31 provides: "31. 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 Sub -Divisional 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 sub -rule (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. 32. 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,"