Rajesh Kumar And Ors vs High Court Of J&K And Ors on 22 April, 2010

Jammu High Court
Rajesh Kumar And Ors vs High Court Of J&K And Ors on 22 April, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP No. 1751 OF 2008    
Rajesh Kumar and ors  
Petitioners
High Court of J&K and ors
Respondent  
!Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate.
^Mr. A.Kapoor, Advocate for R-1&2. Ms. S.Kour, Advocate for R- 3 to 13.

Mr. Justice J. P. Singh, Judge.
Date: 22.04.2010 
:J U D G M E N T :

1) Governed by the Jammu and Kashmir High Court Staff
(Conditions of Service) Rules,1968, the petitioners and
respondent Nos. 3 to 13 are the members of the Jammu
and Kashmir High Court Staff Service. They were serving in
the same class and category as Senior Assistants when the
High Court of Jammu and Kashmir ordered adjustment of
respondent Nos. 3 to 13 as Head Assistant in their own pay
and grade, until further orders, entitling them to Charge
Allowance for working against the promotional post, vide
order No.667 of 24.11.2008.

2) In terms of the High Court order, respondent Nos. 3 to 13
were entitled to consideration for regularization/
2
appointment to the higher post only if they attained requisite
qualification and experience prescribed for the post.

3) Aggrieved by the adjustment of respondent Nos.3 to 13, the
petitioners have filed this Writ Petition seeking quashing of
the High Court order No.667 dated 24.11.2008 in so far as it
directs adjustment of respondent Nos. 3 to 13 against the
post of Head Assistant, hereinafter to be referred as the
“impugned order”, for short, besides for a command to the
respondents to consider and promote them as Head
Assistants.

4) The case set up by the petitioners in their Writ Petition, in a
nut shell, is that respondent Nos.3 to 13 did not possess
Degree of Graduation, the academic qualification,
prescribed as such for the post of Head Assistant vide High
Court Order No.579 dated 24.10.2008 issued under Rule 6
of the Jammu and Kashmir High Court Staff (Conditions of
Service) Rules 1968 and in supersession of all previous
orders in this behalf, prescribing Mode of recruitment/
promotion to various posts in the High Court, and were thus
disentitled to adjustment against the post of Head Assistant
which was per se bad because consideration under law,
was available to those alone who were otherwise eligible for
promotion under the Rules and the order of the High Court
issued under Rule 6 of the High Court Rules.

3

5) Adjustment of the respondents by the High Court has been
assailed as wholly unwarranted besides being unjustified, in
that, it had been ordered ignoring the right of consideration
of the available eligible Senior Assistants like the petitioners
and in violation of the order of the High Court prescribing
Mode of recruitment, inter alia, for the post of Head
Assistant.

6) The High Court Administration responds to the petitioners’
Writ Petition questioning its maintainability besides saying
that adjustment of respondent Nos. 3 to 13, who were senior
to the petitioners, was only a stop gap arrangement for
running the affairs of the Registry of the High Court and that
it had to continue until such time eligible and suitable
candidates were available to fill up the posts, which
according to it, would not affect any of the petitioners’
enforceable right.

The adjustments are stated to have been made by
Hon’ble The Acting Chief Justice, on the recommendations
of the Hon’ble Judges’ Committee.

7) Respondent Nos. 3 to 13 justify their adjustment saying that
Lord Acting Chief Justice possessed the Authority to relax
the conditions of service, And that the order impugned in the
Writ Petition, being in relaxation of the Rules, was not open
to question by the petitioners. They justify their adjustment
additionally relying on Circular No.13 of 1980 which allowed
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25% quota for promotion to matriculate employees of the
High Court staff.

8) I have considered the submissions of learned counsel for
the parties and perused the records made available by the
learned counsel appearing for the High Court.

9) To consider the issues projected by learned counsel for the
parties at the Bar, for determination, following questions
need to be addressed.

i) Whether adjustment of respondent Nos.3 to 13
against the post of Head Assistant affects any
enforceable right of the petitioners entitling them
to seek Judicial Review thereof?

ii) In case question No.1 was answered in the
affirmative, whether the High Court order No.667
dated 24.11.2008, in so far as it pertains to the
adjustment of respondent Nos. 3 to 13, was
justified and sustainable ?

iii) Whether Lord Acting Chief Justice, possessed
the power to relax the Rules, and if so, whether
the impugned order had been issued in
relaxation of the Rules ?

10) Before addressing the questions aforementioned, reference
needs to be made to some of the provisions of the Jammu
and Kashmir High Court Staff (Conditions of Service) Rules
1968, hereinafter to be referred as “the High Court Rules”,
5
for short, the order passed by Lord Chief Justice, in terms of
the Rule 6 of the High Court Rules, the recommendations
made by the Hon’ble Judges’ Committee, and the approval
accorded by Lord Acting Chief Justice thereon.

11) All appointments to the Staff of the High Court including
promotions, are made by the Chief Justice of the High Court
unless, the power of appointment, other than those of
Gazetted Officers, was delegated to the Registrar or to any
Judge of the High Court in terms of Rule 4 of the High Court
Rules.

Rule 6 of the High Court Rules, empowers the Chief
Justice to lay down the qualifications of the members of
service and determine the Mode of recruitment to the posts
borne on the cadre of the service.

The High Court Rules do not contemplate relaxation of
the Rules as such. The decision of Lord Chief Justice, in
case of any doubt regarding the interpretation of Rules is,
however, indicated to be final by the Rules.

12) The background facts leading to the issuance of High Court
orders prescribing Mode of Recruitment and Qualification for
the members of the service may now be noticed.
Acting under Rule 6 of the High Court Rules, the then
Lord Chief Justice prescribed qualifications and Mode of
appointment/ promotion to the posts on the cadre of the
service vide order No.508 dated 15.10.2008.

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These Rules were, however, later superseded by the
Acting Chief Justice when his Lordship, in exercise of the
powers under Rule 6 of the High Court Rules and in
supersession of all previous orders on the subject,
prescribed fresh qualifications/Mode of appointment to the
posts on the cadre of the service vide order No.579 dated
24.10.2008.

13) The Mode of appointment/ minimum qualification prescribed
for the post of Head Assistant, in terms of order No.579
dated 24.10.2008 is indicated as follows:-
Name of the Post: Head Assistant
Mode of Appointment: By promotion from amongst Senior
Assistants on the basis of seniority cum
merit.

Minimum qualification: Graduation from a recognized
Required University.

Minimum experience, if any,: Two years
required
Existing pay scale : 5000-8000

14) Note Nos. 1 and 2 appearing in the concluding portion of
order No.579 dated 24.10.2008 read thus:-
“1) If the candidate(s) is/are not available from the
relevant feeding cadre, then the selection/appointment shall be
made from amongst the candidate(s) from other equivalent
cadre(s).

(2) Since the requirement of graduation for entry into
the High Court service was prescribed vide Notification dated 25-4-
1987, at that time officials having qualification less than graduation
entered the service. Such official having during this period gained
sufficient experience in the working of the administration, the Chief
Justice may on his own or on the recommendations of committee, if
so constituted, relax the qualification in cases of officers/officials
who have made their entry into the service on or before the 25th of
April, 1987. Further the minimum period of experience can also be
relaxed in exceptional and appropriate cases. The officials can get
only one relaxation at the time.”

7

15) Few more facts, discerned from the official records leading
to the issuance of the order impugned in the Writ Petition
may be necessary. These are as follows:-

Qualification and Mode of recruitment prescribed for
appointment and promotion to the posts in the High Court by
Lord Acting Chief Justice vide order No.579 dated
28.10.2008 in supersession of order No.508 dated
15.10.2008, does not appear to have resulted in filling up of
the available vacancies in the High Court.
The Registrar General of the Court, therefore, mooted
proposal suggesting further relaxation in the Mode of
recruitment and promotions against the available vacancies
in the High Court Staff Service.

Lord Acting Chief Justice directed the matter to be
placed before the already constituted Judges’ Committee,
for examination/ recommendation and approval.
The Committee, accordingly, considered the Registrar
General’s Report/Note and made various recommendations
suggesting promotions/adjustments to various posts in the
High Court. The recommendations made by the Committee
at paragraph No. 33, which may be relevant for the purpose
of this Writ Petition, are reproduced hereunder for
reference:-

“33. Sanjeev Kumar, Abdul Rashid, Shakeel Ahmad, Bhawani
Prasad, Molvi Mehboob, Tahira Parveen, Ranjeet Singh,
Ravi Kumar, Pawan Kumar, Gh. Rasool and Daljit Singh
8
are adjusted as Head Assistants in their own pay and
grade till further orders.”

16) Perusal of the recommendations of the Judges’
Committee indicates that it had made No
suggestion/recommendation for affecting changes in
the Mode of Recruitment for appointment and promotion
to the posts available in the High Court, as proposed by
the Registrar General.

17) The recommendations of the Committee, suggesting
amongst others the adjustment of the respondents were
approved by Lord Acting Chief Justice on November 21,
2008.

18) Before entering into discussion on the issues which arise for
consideration in the Writ Petition, it needs to be noticed that
the Registrar General’s note, which had been put to the
Judges’ Committee, pursuant to the orders of the Acting
Chief Justice, neither refers to nor suggests filling up of
the posts of Head Assistant or for that matter change in
the Mode of recruitment therefor appearing in High
Court Order No.579 of 24.10.2008.

DISCUSSION:

19) Perusal of the facts culled from the records of the High Court
indicates that the recommendations made by the Registrar
General in his note of October 28, 2008, suggesting
reconsideration of the Mode of recruitment and appointment
9
to various posts in the High Court, does not appear to have
been deliberated upon by the Committee which, without
suggesting any changes in the already prescribed Mode of
recruitment for appointment and promotions, recommended
promotion/adjustment of the Head Assistants besides other
members of the service.

20) The mode of promotion to the post of Head Assistant, in
terms of Order No.579 aforesaid, permits consideration for
promotion, to only those Senior Assistants, who possessed
academic qualification of Graduation and had two years
experience as Senior Assistant. Respondent Nos. 3 to 13,
as admitted by the learned counsel for the parties at the Bar,
did not possess the prescribed qualification of Graduation.

21) Consideration for adjustment of those who were otherwise
ineligible for promotion against the promotional post is not
countenanced by the Service jurisprudence. Adjustment of
the respondents who were admittedly ineligible for promotion
for their not possessing requisite qualification was not thus
warranted particularly when eligible Senior Assistants
possessing requisite prescribed qualification and experience
were available with the High Court.

22) The recommendations made by the Judges’ Committee
suggesting adjustment of respondent No.3 to 13 as Head
Assistants, were thus not in consonance with Order No.579
dated 24.10.2008, which permitted promotion to the post of
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Head Assistant of only those Senior Assistants who were
graduates with two years’ experience.

23) The records further reveal that the only material which the
Hon’ble Judges’ Committee had considered while making
recommendations for promotion, was the Registrar
General’s note and nothing beyond that. The Registrar
General’s note, however, does not contain even a whisper
about the promotion/adjustment of the Head Assistants.

24) Approval accorded by Lord Acting Chief Justice to the
recommendations of the Hon’ble Judges’ Committee for
adjustment of respondent Nos. 3 to 13 as Head Assistants
cannot, thus, be justified, on any count whatsoever, in that,
the approval was in clear violation of Order No.579 dated
24.10.2008 issued by his Lordship, in terms whereof only
those Senior Assistants could be considered for promotion
as Head Assistants, who were graduates and had two years
experience as Senior Assistant.

25) In terms of the Mode of recruitment for appointment and
promotions prescribed by Lord Acting Chief Justice, the
power to relax the prescribed qualification under Order 579
dated 24.10.2008 was restricted only in case of those
officers/officials, who had made their entry into the High
Court service on or before April 25, 1987.

26) Respondent Nos. 3 to 13, as conceded by the learned
counsel appearing for the High Court, had entered the High
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Court service after April 25, 1987, the date prescribed in
Order No.579.

27) To examine the issues projected at the Bar by the
respondents’ learned counsel that Lord Acting Chief Justice
had the power to relax the Rules, the Rules were examined
in the light of the Mode of recruitment for appointment and
promotions prescribed vide Order No.579 dated 24.10.2008.
No provision was, however, found either in the Rules or in
the Mode of recruitment for appointment and promotions
prescribed by Lord Acting Chief Justice, which may be
construed vesting powers in the Lord Chief Justice to make
appointments/ promotions in relaxation of the Rules.

28) Note 2 forming part of Order No.579 too, was found vesting
only a limited discretion in the Lord Chief Justice to consider
relaxation of qualification in case of only those
officers/officials, who had made their entry in the High Court
service on or before April 25, 1987.

29) Respondent Nos. 3 to 13 having entered service much after
the date appearing in note 2 referred to hereinabove, were
thus not entitled to any relaxation in the qualification
prescribed vide Order No.579 dated 24.10.2008.

30) Respondent Nos. 3 to 13’s counsel’s next submission that
the adjustment of respondent Nos. 3 to 13 were justified in
view of the quota of promotions reserved vide Circular No.13
of 1980 needs to be noticed only for rejection, in that, the
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Circular has no application to the post of Head Assistant and
that apart Order No.579 dated 24.10.2008, does not
prescribe any such type of quota for in-service ineligible
Senior Assistants for promotion to the post of Head
Assistant, as was projected by the learned counsel to justify
the adjustment of respondent Nos.3 to 13, despite their
ineligibility.

31) The High Court Administration’s learned counsel’s plea that
the adjustment of the private respondents was a stop gap
arrangement for running the affairs of the Registry too, is
found to be without merit, in that, no material has been
placed on records to support the plea. On the contrary, the
Registrar General’s silence to suggest promotion/
adjustment against the post of Head Assistants, goes a long
way in suggesting that the adjustment of respondents had
not been made by way of stop gap arrangement for running
the affairs of the Registry because had there been any such
necessity, the Registrar General’s note should have referred
to it.

32) The Judges’ Committee appears to have suggested the
adjustment of respondent Nos. 3 to 13 as Head Assistants,
merely on the basis of their seniority.

33) The petitioners possessed requisite qualification of
Graduation as also the experience needed for promotion to
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the post of Head Assistant; they were, thus, entitled to
consideration for promotion/adjustment.

34) Omission of the Judges’ Committee to accord consideration
to the petitioners, despite their eligibility and experience,
only on the ground that they were junior to the private
respondents is unwarranted, in that, such a course was not
permissible under law and was even otherwise in violation of
the High Court Rules and High Court Order No.579 dated
24.10.2008.

35) The question that arises for consideration is; whether the
approval accorded by Lord Acting Chief Justice to the
recommendations of the Judges’ Committee for adjustment
of the respondents, refusing consideration to the eligible
Senior Assistants like the petitioners, was justified and
warranted under law ?

36) The answer to the question cannot but, be emphatic ‘No’, in
that, while directing adjustment of the Head Assistants, the
Mode of recruitment for appointment and promotion
prescribed therefor, in exercise of powers vested in Lord
Chief Justice under Rule 6 of the High Court Rules was
required to be adhered to, And in this view of the matter,
violation of, the Rules framed under Section 108 of the
Constitution of Jammu and Kashmir which were required to
be followed in letter and spirit, cannot be justified.

14

37) Seniority is no doubt relevant for considering promotion to
the post of Head Assistant but its relevance was subject to
the candidate’s eligibility for consideration therefor, meaning
thereby that ineligible Senior Assistants cannot claim
consideration for promotion only on the basis of their
seniority.

38) The approval accorded by Lord Acting Chief Justice for
adjustment of the respondents, without commenting on the
Registrar General’s note as to whether or not the existing
prescribed qualifications warranted any change, and taking
any decision thereon, as to whether the Mode of recruitment
and promotion prescribed by Lordship vide Order No.579
warranted any further change/modification, is found
unjustified and illegal, in that, the adjustment of the
respondents ordered vide the impugned High Court order
violates not only the petitioners’ right of consideration to
promotion/adjustment for the post of Head Assistant,
guaranteed to them under Article 16 of the Constitution of
India, but also the Rules governing the service conditions of
the members of the Jammu and Kashmir High Court Service
read with the High Court Order No.579 which do not permit
manning of the posts in the cadre of the Service by ineligible
candidates.

39) The facts and circumstances of the case, in which the
adjustment of respondent Nos. 3 to 13, has been ordered
15
and that too in violation of the Rules governing the service
justifies Judicial Review thereof, particularly when note No.2
appended to the order impugned, hints at the respondents’
regularization/appointment on the higher posts on their
attaining qualification and experience prescribed therefor.

40) Respondents’ learned counsel’s plea that the adjustment of
respondent Nos. 3 to 13 does not violate any enforceable
right of the petitioners is found untenable, in that, for making
adjustments against higher posts, allowing the incumbents
to draw the Charge Allowance, eligibility prescribed therefor,
cannot, in my view, be sacrificed to adjust ineligible persons
against the promotional post, when eligibles therefor were
available for such adjustment, temporary or otherwise.

41) Petitioners’ right to consideration for promotion and
adjustment having been thereby adversely affected, would
not thus disentitle them to invoke the Extraordinary Writ
Jurisdiction of the Court, notwithstanding any prior
Representation against the adjustment, as projected by the
High Court’s learned counsel, in that, the Rules do not
contemplate any Appeal/Representation against the orders
of promotion/adjustment.

42) For all what has been said above, question No.1 is
answered by holding that adjustment of respondent Nos. 3
to 13 against the post of Head Assistants affects the
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petitioners’ right to consideration entitling them to invoke the
Extra Ordinary Writ Jurisdiction of the Court.
So far as question No.2 is concerned, the High Court
Order No.667 dated 24.11.2008 in so far as it pertains to the
adjustment of respondent Nos. 3 to 13 is found unjustified
and against the Rules, hence unsustainable.
Concluding finding on question No.3, it is held that the
High Court Rules do not as such vest absolute power in the
Lord Chief Justice to relax the Rules and the power of
relaxation, in terms of High Court Order No.579 dated
24.10.2008, is exerciseable in case of only those officers/
officials who had entered the service before April 25, 1987.
Lord Acting Chief Justice had not, thus, relaxed the
Rules in approving the respondents’ adjustments ordered
vide the order impugned in the Writ Petition.

43) The upshot of the above discussion and the findings is that
the Writ Petition succeeds and is, accordingly, allowed
quashing the High Court Order No.667 of 24.11.2008 in so
far as it orders adjustment of respondent Nos. 3 to 13 as
Head Assistants.

Records be returned to the learned counsel for the High
Court.

(J. P. Singh)
Judge
JAMMU:

22.04.2010
Vinod.

Ghausia Memorial Trust & Ors vs Ajit Prasad Tarway on 7 April, 2010

Jammu High Court
Ghausia Memorial Trust & Ors vs Ajit Prasad Tarway on 7 April, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
C Rev No. 147 OF 2009  Contempt (c) No. D-1 OF 2010   
Ghausia Memorial Trust & Ors 
Petitioners
Alflah Gousia Muslim Trust & Ors.
Respondent  
!M/s Anil Gupta & B. L. Chatha, Advocate.
^Mr. M. A. Bhat, Advocate

Hon'ble Mr. JUSTICE J. P. SINGH, JUDGE.   
Date: 07.04.2010 
:J U D G M E N T :

A Suit for permanent prohibitory injunction
restraining the petitioners-defendants from interfering in
the management, administration and other matters of
Ghausia Jamia Masjid Bathendi Morh, Jammu and the
landed property measuring 5 kanals 5 marlas comprised
in Khasra No. 331 min situated at Village Channi Rama,
Jammu was filed by Alflah Gousia Muslim Trust, inter
alia, pleading that the Trust had been constituted by ten
persons namely Abdul Aziz Bhatt, Mushtaq Hussain
Baji, Mohd. Bashir, Abdul Rashid Mir, Sadiq Hussain,
Abdul Majid, Mohd. Aziz, Haji Shoket Ali, Haji Munshi
2
and Mohd. Ashraf for, amongst others, better
administration of Ghausia Jamia Masjid Bathendi Morh.
It was indicated in the plaint that one of the
petitioners namely Ghulam Rasool had been
mismanaging and misusing the funds/donations/income
of the said Masjid Sharief in connivance with other
petitioners-defendants for last so many years.
The petitioners contested the respondents’ Suit
denying the allegations of mismanagement of the affairs
of Ghausia Jamia Masjid Bathendi Morh which
according to Ghulam Rasool was being administered
and managed by him as its President. According to the
defendants, the plaintiffs had constituted a self styled
Trust to achieve their nefarious design of usurping the
property of the Masjid Sharief which was stated by the
defendants to have been constructed on the land
donated by Ghulam Rasool’s father. According to the
defendants, Ghulam Rasool was managing the affairs of
the Masjid Sharief smoothly with the help of other office
bearers. It was further indicated by the defendants in
their Written Statement that the plaintiffs had filed the
Suit against the defendants when the latter had not
3
obliged them to part with the possession of the land in
possession of the Masjid where they wanted to raise
construction of some Shops.

An ex-parte ad-interim injunction was issued by the
trial Court of learned City Judge, Jammu on February
19, 2009 whereby the petitioners-defendants were
temporarily restrained from causing any sort of
interference in the management, administration and
other matters of Ghausia Jamia Masjid Bathendi Morh
and from interfering with the landed property measuring
5 kanals 5 marlas comprised in Khasra No. 331 min
situated at Village Channi Rama, Jammu under the
possession and use of Ghausia Jamia Masjid Bathendi
Morh, Jammu. The defendants were further restrained
from collecting any donation in the name of Ghausia
Jamia Masjid Bathendi Morh. This ex-parte order, on
contest by the petitioners was made absolute vide trial
Court’s order of May 26, 2009.

Petitioners’ Appeal against the Order before
learned Principal District Judge, Jammu having failed,
they have invoked the Revisional Jurisdiction of the
4
Court seeking setting aside of the orders of the trial
Court and the Ist Appellate Court.

I have heard and considered the submissions of
learned counsel for the parties, gone through their
pleadings, copies whereof have been placed on records
and the orders passed by the Courts below.
The trial Court had come to the conclusion that as
the operation of the two Trust Deeds, one relied upon
by the plaintiffs and the other by the petitionersdefendants,
was in different fields and the subject
matter of the Suit was covered by the Trust Deed relied
upon by the plaintiffs, so there was a prima facie case in
favour of the plaintiffs justifying issuance of the
injunction.

Learned District Judge was, however, of the view
that as the land over which the Masjid Sharief stood
constructed was State land and did not belong to any
private person, so in order to benefit maximum people
of the locality, it would be just and proper if the property
in dispute was managed and administered by the
respondents because the petitioners had been
5
mismanaging and misusing the funds/donations and
income of the Masjid.

Both the Courts below have dealt with the case
perfunctorily, avoiding prima facie determination of the
real issues between the parties, which were necessarily
required to be examined to find as to whether or not the
respondents-plaintiffs had succeeded in making out a
prima facie case justifying issuance of the impugned
injunctive directions.

The dispute projected by the plaintiffs-respondents
in their Suit did not refer to the affairs of Alflah Gousia
Muslim Trust alone, but pertained to the administration,
management and affairs of Ghausia Jamia Masjid
Bathendi and the land in possession of the Masjid
Sharief. The plaintiffs’ plaint indicates the petitionersdefendants
to have been managing the affairs of the
Masjid Sharief before the constitution of Alflah Gousia
Muslim Trust on February 13, 2009.

The Trust Deed relied upon by the petitionersdefendants
specifically records petitioner-Ghulam
Rasool to have been managing the affairs of the Trust
6
known as Ghausia Memorial Trust from the premises
of Ghausia Jamia Masjid Bathendi Morh, Jammu.
Although the Trust Deed relied upon by the
plaintiffs does not hint at the mismanagement of the
Masjid by Ghulam Rasool, yet it impliedly indicates his
ouster therefrom.

The Petitioners-defendants had questioned the
power and authority of the settlers to constitute the
Alflah Gousia Muslim Trust saying that he could not be
ousted from the management of the Masjid without
following proper procedure therefor.
The questions that, therefore, were required to be
determined though prima facie, to find the existence or
otherwise of a prima facie case and other legal
requirements justifying issuance of injunctive directions
were inter alia as follows:-

a) Whether the settlers of Alflah Gousia Muslim
Trust had any right to constitute the Trust for
the management and administration of the
affairs of Ghausia Jamia Masjid Bathendi Morh,
Jammu and were entitled to manage the affairs
of the Masjid Sharief?

7

b) Whether petitioner-Ghulam Rasool had infact
been ousted from the management and affairs
of the Masjid, if so, when and how?

c) Whether the plaintiffs were in possession of the
Masjid and its properties and had any right to
seek injunctive directions against the
defendants in respect of the management of
the affairs of Ghausia Jamia Masjid Bathendi?

d) Whether there was any material on records in
proof of the plaintiffs-respondents averments
that the petitionersdefendants had been
mismanaging the affairs and misusing the
funds of Ghausia Jamia Masjid Bathendi Morh?
As the questions aforementioned, amongst others,
arising out of the pleadings of the parties including the
right claimed by the petitioners-defendants to manage
the affairs of Ghausia Jamia Masjid Bathendi have not
been determined by the Courts below to find the
existence or otherwise of a prima facie case and other
legal requirements justifying issuance of injunctive
directions so their orders cannot be justified, in that,
they have acted illegally in issuing the injunction against
the petitioners without first addressing the questions
which they were required under law so to do.

8

Perusal of the trial Court’s ex-parte ad-interim
order, which was later made absolute, demonstrates
injudicious exercise of jurisdiction by the learned City
Judge in issuing such injunctive directions at the interim
stage which, in effect and in essence, was the final relief
prayed for by the respondents in their Suit.
Power of the Court to dispense with the Notice
before considering issuance of ex-parte ad-interim
injunction, contemplated by Order 39 Rule 3 of the
Code of Civil Procedure, too has been exercised in a
mechanical fashion and routine manner, without spelling
out the colossal loss that would have been caused to
the plaintiffs in the event of issuance of a short Notice
before considering the respondents’ application seeking
issuance of ad-interim injunction against the
defendants.

Dispensing with the Notice to the opposite party
before issuance considering issuance of injunction is
not an idle formality and the Courts are required to
exercise this power only on the existence of good and
sufficient spelt out reasons in support of its opinion that
the object of granting the injunction would be defeated
9
by delay which may occasion in the issuance of Notice
to the opposite party.

The trial Court has not followed the provisions of
Order 39 Rule 3 of the CPC in letter and spirit while
dispensing with the issuance of prior Notice before
issuance of injunctive directions and thus erred in
issuing injunction of such a dimension which has the
effect of ousting the petitioners from the affairs of the
Masjid, which course may be contemplated only in case
of a very strong and exceptional prima facie case in
favour of the plaintiffs warranting issuance of the
directions which, if not issued would have rendered the
Suit infructuous or otherwise caused such irreparable
damage or injury to the plaintiffs which may not be
compensated by costs.

Coming to the order passed by the first Appellate
Court, it is found that the grievance projected by the
petitioners in their Appeal against the order of the trial
Court and stated to have been demonstrated at the time
of its hearing has not at all been addressed to by the
learned District Judge who has decided the Appeal in a
slip shod manner without dwelling on the issues which
1 0
were required to be addressed before ruling on the
correctness or otherwise of the trial Court’s order and
erroneously recording finding without there being any
material in support thereof that the petitioners had been
mismanaging the affairs of and misusing the
income/funds of the Masjid Sharief.

Respondents’ learned counsel’s plea that this
Court should not interfere with the orders of the Courts
below in view of the law laid-down by the Hon’ble
Supreme Court of India in Managing Director (MIG)
Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another
versus Ajit Prasad Tarway, Manager (Purchase and Stores)
Hindustan Aeronautics Ltd. Balanagar, Hyderabad, reported as
AIR 1973 SC, 76, is untenable, in that, both the Courts
below having been found to have exercised their
jurisdiction illegally, the judgment referred to by the
learned counsel would have no application to the facts
of the case.

For all what has been said above, the orders
impugned in the Revision Petition need to be set aside
requiring the trial Court to examine the respondents’
case for deciding their application seeking injunction
afresh.

1 1
This Revision Petition, therefore, succeeds and is,
accordingly, allowed, setting aside order dated
26.05.2009 of learned City Judge, Jammu and order
dated 26.09.2009 of learned Principal District Judge,
Jammu.

The matter is remanded to the trial Court for
consideration afresh of respondents’ application for
issuance of ad-interim injunction in accordance with law.
Parties through their learned counsel are directed
to appear before the trial Court on April 17, 2010.
In view of the orders passed in C.Rev.147/2009,
Contempt (C) No. D-1/2010 does not require further
consideration. It is disposed of, accordingly.
(J. P. Singh)
Judge
JAMMU:

07.04.2010
Pawan Chopra

Shree Mata Devi Shrine Board & Anr vs Gandarb Singh And Ors on 25 March, 2010

Jammu High Court
Shree Mata Devi Shrine Board & Anr vs Gandarb Singh And Ors on 25 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
OWP No. 719 OF 2002    
Shree Mata Devi Shrine Board & anr. 
Petitioners
Gandarb Singh and ors 
Respondent  
!Mr. D.C.Raina, Sr. Advocate with Mr. Anil Verma, Advocate
^Mr.B.S.Bali, Advocate

Mr. Justice J. P. Singh, Judge
Date: 25.03.2010 
:J U D G M E N T :

Gandarb Singh Katoch-respondent filed a Claim
Petition under Section 15(2) of the Payment of Wages
Act, 1936 with the Authority under the Payment of
Wages Act (Labour Officer), Reasi saying that the
Additional Chief Executive Officer of Shree Mata
Vaishno Devi Shrine Board, Katra had allotted work for
construction of widening of road from Katra to Shree
Mata Vaishno Devi Shrine in the year 1996 in favour of
Kanth Lal-Contractor, who approached him for supply of
labour for execution of the work. He along with 51
others workers, accordingly, worked for the construction
of road from RD-595 to RD-740 from 13.11.1996 to
August, 1997. The labourers were, however, paid only
in part by the contractor.

A claim for Rs.2,46,464/- was thus laid before the
Authority under the Payment of Wages Act by Gandarb
Singh Katoch for and on behalf of the labourers
employed by Kanth Lal-Contractor for execution of the
work of Shree Mata Vaishno Devi Shrine Board.
The Contractor appeared before the Authority in
response to the Notice issued to him in this behalf and
agreed to settle the dispute amicably by making
payment of wages by the next date of hearing fixed for
July 26, 1999. He, however, failed to honour his
commitment opting to remain absent from the
proceedings. The Contractor and the other respondents
including the Board were later set ex-parte when after
appearing before the Authority, they opted not to file any
objection to the Claim Petition and remain absent.
On the basis of the ex-parte evidence produced in
the case, the Authority under the Payment of Wages Act
held the claimant entitled to Rs.1,71,474/- as per the
details appearing in the Muster sheet placed on records
of the Authority.

In terms of the Award of the Authority, all the
respondents i.e. the Contractor, Shree Mata Vaishno
Devi Shrine Board and its functionaries were held liable
to satisfy the Award.

Statutory remedy of Appeal does not appear to
have been resorted to either by the Contractor or by the
petitioners who have filed this Writ Petition seeking
quashing of the Award of the Authority.
Mr. D.C.Raina, learned Senior counsel, appearing
for the Board submitted that the Board had discharged
its contractual obligation by paying the Contractor for
the work he had done for it and in view of the
Contractor’s admission to pay the claimant and his
labourers, the Board was not under any obligation to
satisfy the Award, which the learned counsel says, was
without jurisdiction in so far as it held the Board liable to
satisfy the labourers’ claim.

Per contra Mr. B.S.Bali, referring to the provisions
of the Contract Labour (Regulation and Abolition) Act,
1970 submitted that Board, being the Principal employer
for whom the contractor had engaged the labour, the
Authority had not committed any jurisdictional error in
holding the Board liable to satisfy the labour Claim.
Mr. Bali further submitted that having agreed to
satisfy the Award during the execution proceedings, the
Board was not entitled to invoke the Extra Ordinary Writ
Jurisdiction of the Court, because the Board cannot be
permitted to approbate and reprobate.
Learned counsel referred to interim orders passed
on 28.02.2002, 18.03.2002, 25.04.2002 and 4.06.2002,
copies whereof have been placed on records, to urge
that having all along agreed to satisfy the labour claim,
the petitioners’ approach to this Court was not bonafide.
I have considered the submissions of learned
counsel for the parties and perused the records.
To determine the issue raised by the learned
Senior counsel that the Board was not under any
obligation to satisfy the Award of payment of wages to
the labourers engaged by the Contractor employed by
the Board, regard needs to be had to the provisions of
Section 3 of the Payment of Wages Act 1936, which for
facility of reference is reproduced hereunder:-
“[ RESPONSIBILITY FOR PAYMENT OF WAGES.–(1)
Every employer shall be responsible for the payment of all
wages required to be paid under this Act to persons
employed by him and in case of persons employed

(a) in factories, if a person has been named as the
manager of the factory under clause (f) of sub-section
(1) of section 7 of the Factories Act, 1948 (63 of 1948);

(b) in industrial or other establishments, if there is a
person responsible to the employer for the supervision
and control of the industrial or other establishment;

(c) upon railways (other than in factories), if the employer
is the railway administration and the railway
administration has nominated a person in this behalf
for the local area concerned;

(d) in the case of contractor, a person designated by such
contractor who is directly under his charge; and

(e) in any other case, a person designated by the
employer as a person responsible for complying with
the provisions of the Act;

the person so named, the person responsible to the
employer, the person so nominated or the person so
designated, as the case may be, shall be responsible for
such payment.

(2) Notwithstanding anything contained in subsection
(1), it shall be the responsibility of the
employer to make payment of all wages required to be
made under this Act in case the contractor or the
person designated by the employer fails to make such
payment.]”

Perusal of Section 3(2) quoted above
indicates, unambiguously, the responsibility of the
employer to make payment of all wages required to
be made under the Payment of Wages Act in case
the Contractor or any other person designated by
the employer fails to make the payment of wages to
the employed persons i.e. the labourers.
Learned Senior counsel is thus not right in
saying that the Board was not liable to satisfy the
Award which remained unsatisfied by the
contractor engaged by it.

This apart, the Board cannot even otherwise
deny its liability to satisfy the Award in view of the
express provisions of Section 21(4) of the Contract
Labour (Regulation and Abolition) Act, 1970 which
hold the principal employer, liable to pay the wages
of the labourers, which for facility of reference are
reproduced hereunder:-

“21. RESPONSIBILITY OF PAYMENT OF
WAGES(1) A contractor shall be responsible for
payment of wages to each worker employed by
him as contract labour and such wages shall be
paid before the expiry of such period as may be
prescribed.

(2) Every principal employer shall nominate
a representative duly authorized by him to be
present at the time of disbursement of wages by
the contractor and it shall be the duty of such
representative to certify the amounts paid as
wages in such manner as may be prescribed.
(3) It shall be the duty of the contractor to
ensure the disbursement of wages in the presence
of the authorized representative of the principle
employer.

(4) In case the contractor fails to make
payment of wages within the prescribed period or
makes short payment, then the principal employer
shall be liable to make payment of wages in full or
the unpaid balance due, as the case may be, to
the contract labour employed by the contractor
and recover the amount so paid from the
contractor either by deduction from any amount
payable to the contractor under any contract or as
a debt payable by the contractor.”

In view of the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970
reserving right with the employer, like the Board to
recover the wages payable to the labourers by the
contractor, from the contractor in the event of its
making payment of unpaid wages to the labourers,
the Board’s Writ Petition is clearly misconceived, in
that, in view of the statutory provisions referred to
hereinabove, the Board cannot deny its liability to
satisfy the Award of the Authority.

Mr. Bali’s plea that the approach of the Board
to this Court was not bonafide, appears to be well
merited, in that, having all along agreed in
execution proceedings before the Authority under
the Payment of Wages Act, to pay the wages to the
labourers, the Board’s approach to this Court
denying its liability to make payment of wages to
the labourers, cannot looked from any angle, be
said to be bonafide.

Shree Mata Vaishno Devi Shrine Board’s Writ
Petition is, thus, found to be misconceived and
without merit.

The Writ Petition, therefore, fails and is,
accordingly, dismissed with costs quantified at
Rs.5000.

Registrar Judicial is directed to release the
amount deposited by the Board in this Court in
favour of Gandarb Singh Katoch-respondent no.1,
along with interest accrued thereon.
(J. P. Singh)
Judge
JAMMU:

25.03.2010
Vinod

_______________________________________________________________________________
CMP No.134/2010:-

Petitioners have moved this Motion for amendment
of the Writ Petition seeking substitution of petitioner
No.1 M.K.Dwivedi, the then Additional Chief Executive
Officer, Shree Mata Vaishno Devi Shrine Board, Katra,
by “Shree Mata Vaishno Devi Shrine Board through
Additional Chief Executive Officer, Katra,” on the ground
that M.K.Dwivedi, the then Additional Chief Executive
Officer was inadvertently indicated as petitioner No.1 in
the Writ Petition in place of Shree Mata Vaishno Devi
Shrine Board, Katra, which had infact filed the Writ
Petition to question Award dated 17.02.2001 of the
Authority under Payment of Wages Act(Labour Officer),
Reasi.

2

After having heard learned counsel for the Board
and Mr. Bali for respondent No.1, the claimant, I find
that omission of Shree Mata Vaishno Devi Shrine
Board, Katra as petitioner in the Writ Petition appears to
be inadvertent.

Looking to the long pendency of the Writ Petition in
the Court, it is considered appropriate to determine the
Writ Petition finally, after hearing Shree Mata Vaishno
Devi Shrine Board in the matter which has been
adjudged liable to pay the awarded amount.
Accordingly, finding merit in the Motion, it is
allowed permitting substitution of Shree Mata Vaishno
Devi Shrine Board, Katra as petitioner no.1 in place of
Mr. M.K.Dwivedi, in OWP No.719/2002.
Registry to make necessary corrections.
(J. P. Singh)
Judge
JAMMU:

25.03.2010
Vinod

Rakesh Kumari vs Balwan Singh & Ors on 8 March, 2010

Jammu High Court
Rakesh Kumari vs Balwan Singh & Ors on 8 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Rev No. 4 OF 2009 AND BA No.86 OF 2009    
Rakesh Kumari  
Petitioners
Balwan Singh & ors. 
Respondent  
!Ms. Seema Sharma, Advocate for Petitioner 
^M/s G. S. Thakur and P.S. Parmar, Advocates for Respondents.Ms. Neeru Goswami,    
Dy.A.G. for the State

Mr. Justice J. P. Singh, Judge
Date: 08.03.2010 
:J U D G M E N T :

One Kundan Lal was killed on March 08, 2006 near Ban
Ganga, Katra, Jammu. Dis-satisfied with the arrest of only two
persons as against seven stated to have been nominated by the
petitioner, his mother, as the assailants, she approached this
Court by her Writ Petition seeking investigation into her son’s
Murder by the Central Bureau of Investigation or any other
independent Investigating Agency.

The judgment delivered by the Writ Court was modified by
a Letters Patent Bench of this Court directing re-investigation
into the petitioner’s son’s Murder by the Crime Branch of the
State Government. The re-investigation carried out, however,
reiterated involvement of only two persons.
During the currency of the trial before learned Sessions
Judge, Reasi, the prosecution moved an application seeking
impleadment of Balwan Singh, Sohan Singh, Suram Singh,
Vijay Singh and Narinder Singh, who had been named as
assailants by the petitioner Rakesh Kumari and her daughter
Neeru Devi in their deposition in the Court.
Rejection of the State’s Application by the Trial Court has
landed the petitioner again in this Court, where through this
2
Criminal Revision, she seeks setting aside of the Trial Court’s
order of January 01, 2009.

I have considered the submissions of learned counsel for
the parties and gone through the records.
Learned Sessions Judge has rejected the State’s plea for
impleadment of persons other than those put up for Trial, on
two grounds viz (1) The State’s request was pre-mature and (2)
the statements of the petitioner and her daughter Neeru Devi,
were not sufficient enough to justify impleadment of persons
other than those put up for trial in the case.
While holding that the statements of the petitioner and her
daughter Neeru Devi were not sufficient to justify impleadment,
the trial Court has referred to various aspects of the case to
support its conclusion. Statement made by the petitioner, which
was sought to be supported by her daughter’s statement has
been found prima facie insufficient to justify impleadment in
view of the shortcomings noticed in the statements including
those of petitioner’s admission of nominating only two/three
persons as assailants, when she had informed the
Superintendent of Police, immediately after the occurrence, on
phone, and the statement of Neeru Devi where, during her
cross-examination she had hinted at her reaching the place of
occurrence along with her mother when Kundan Lal’s dead
body was lying near the wash room at the place of occurrence.
Before dealing with the issue projected by Ms. Seema
Sharma at the hearing of this Petition to urge that the Trial
Court had misread and misconstrued the petitioner’s statement
besides committing an error of law in rejecting the State’s
prayer for impleadment, regard needs to be had to the power of
the Court to implead persons other than those put up for trial in
3
the Court as contemplated by Section 351 of the Code of
Criminal Procedure, Svt. 1989.

It would be profitable in this respect to refer to what was
held by their Lordships of Hon’ble Supreme Court of India in
Kailash v. State of Rajasthan & anr., reported as 2008 AIR
SCW 1717, where dwelling on a similar provision in the Central
Code of Criminal Procedure, 1974, their Lordships held as
follows:-

“A glance at these provisions would suggest that
during the trial it has to appear from the evidence
that a person not being an accused has
committed any offence for which such person
could be tried together with the accused who are
also being tried. The key words in this Section are
“it appears from the evidence”..” any person”*..
“has committed any offence”. It is not, therefore,
that merely because some witnesses have
mentioned the name of such person or that there
is some material against that person, the
discretion under Section 319 Cr.P.C. would be
used by the court. This is apart from the fact that
such person against whom such discretion is
used, should be a person who could be tried
together with the accused against whom the trial
is already going on. This Court has, time and
again, declared that the discretion under Section
319 Cr.P.C. has to be exercised very sparingly
and with caution and only when the concerned
court is satisfied that some offence has been
committed by such person. This power has to be
essentially exercised only on the basis of the
evidence. It could, therefore, be used only after
the legal evidence comes on record and from that
evidence it appears that the concerned person
has committed an offence. The words “it appears”
are not to be read lightly. In that the Court would
have to be circumspect while exercising this
power and would have to apply the caution which
the language of the Section demands.

10. In a reported decision in Mohd. Shafi v.
Mohd.Rafiq & Anr.
{JT 2007 (5) SC 562}, to which
4
one of us (Sinha,J.) was a party, this Court had
observed in para 7 as under:-

“Before, thus, a trial Court seeks to take recourse
to the said provision, the requisite ingredients
therefore must be fulfilled. Commission of an
offence by a person not facing trial, must,
therefore, appear to the Court concerned. It
cannot be ipse dixit on the part of the court.
Discretion in this behalf must be judicially
exercised. It is incumbent that the Court must
arrive at its satisfaction in this behalf.”
In the above case this Court referred to the
decision reported in Municipal Corporation of
Delhi v. Ram Krishan Rohtagi & ors.
[(1983) 1
SCC 1] and highlighted the following remarks
made in para 19 therein which are to the following
effect:

“19**.. But, we would hasten to add that this is
really an extraordinary power which is conferred
on the Court and should be used very sparingly
and only if compelling reasons exist for taking
cognizance against the other person against
whom action has not been taken***..”

It was further stated in para 13:

“***.. it is evident that before a court exercises
its discretionary jurisdiction in terms of Section
319 of the Code of Criminal Procedure, it must
arrive at the satisfaction that there exists a
possibility that the accused so summoned in all
likelihood would be convicted. Such satisfaction
can be arrived at inter alia upon completion of the
cross-examination of the said witness. For the
said purpose, the Court concerned may also like
to consider other evidence.”

11. In Krishnappa v. State of Karnataka [(2004) 7
SCC 792] this Court, while relying on another
reported decision in Michael Machado v. Central
Bureau of Investigation
[(2000) 3 SCC 262] went
on to hold that the power under Section 319,
Cr.P.C. is discretionary and should be exercised
5
only to achieve criminal justice and that the court
should not turn against another person whenever
it comes across evidence connecting that other
person also with the offence. The Court further
observed:

“**a judicial exercise is called for, keeping in
conspectus of the case, including the stage at
which the trial has already proceeded with the
quantum of evidence collected till then, and also
the amount of time which the court had spent for
collecting such evidence***”

The Court further observed:

“The Court, while examining an application under
Section 319 Cr.P.C., has also to bear in mind that
there is no compelling duty on the court to
proceed against other persons. In a nutshell, it
means that for exercise of discretion under
Section 319 Cr.P.C., all relevant factors, including
the one noticed above, have to be kept in view
and an order is not required to be made
mechanically merely on the ground that some
evidence had come on record implicating the
person sought to be added as an accused.”
Petitioner’s counsel’s plea that the trial Court had
misconstrued and misquoted the statements of the petitioner
and her daughter is not borne out from the records.
The findings recorded by the Trial Court in coming to the
conclusion that impleadment of persons other than those put up
for trial was not warranted, too does not justify interference in
view of cogent reasons given by it in support therefor and the
legal position referred to hereinabove.
The Trial Court was required to assess whole of the
prosecution case as it stood produced before the Court at the
time of consideration of the State’s request for impleadment and
not a part thereof in isolation as suggested by the petitioner’s
learned counsel, which it has done rightly in the present case.

6

For all what has been said above, the approach adopted
by the trial Court in rejecting State’s Application being premature
and leaving the issue open for its re-consideration when
some other evidence was brought on records by the
prosecution, does not justify interference in Revision,
additionally because, the order passed by the trial Court
deferring consideration of the issue till other prosecution
evidence was recorded, was interlocutory and not open to
Revision, in terms of Section 435 (4-a) of the Code of Criminal
Procedure.

No ground for interference with the order impugned in the
Revision Petition has, thus, been made out.
This Revision Petition is, accordingly, dismissed.
Bail Application No.86/2009 shall, accordingly, stand
disposed of as infructuous.

( J. P. Singh )
Judge
Jammu:

08.03. 2010
Ram Murti

Ramesh Kumar vs State Of J&K And Others on 5 March, 2010

Jammu High Court
Ramesh Kumar vs State Of J&K And Others on 5 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 131 OF 2008    
Ramesh Kumar   
Petitioners
State of Jammu & Kashmir and others.  
Respondent  
!Mr. M. A. Goni, Sr. Advocate with Mr. Ajay Singh Kotwal, Advocate.
^Mr. Gagan Basotra, Addl. AG for respondent Nos. 1 to 6. Mr. D. C. Raina, Sr.
Advocate with Mr. Raghu Mehta, Advocate for respondent No.7. 

Honble Mr. Justice Virender Singh, Judge
Honble Mr. Justice Sunil Hali, Judge
Date: 05.03.2010 
:J U D G M E N T: 

With the consent of learned counsel for both the sides, we
intend to dispose of the instant Letters Patent Appeal at motion
stage itself. Writ Court record is also available for our perusal.
Admitted.

Through the instant appeal the appellant, who got an
appointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary
School Sharni in year 2000, has questioned the legality of the
order dated 01.09.2008 (Annexure-A) of learned Single Judge
whereby his appointment stands quashed and private respondent
No.7 (hereinafter to be referred to as writ petitioner) has been
appointed as R-e-T Teacher for the said school. All consequential
benefits flowing from the said appointment have also been granted
to the writ petitioner. The impugned order stands implemented, as
2
a result, appellant has lost his job and the writ petitioner has been
appointed.

It needs to be mentioned here that the appellant did not
contest the writ petition before the learned Writ Court, so set exparte.
However, his services were regularized in accordance with
the provisions of the Scheme and he came to be appointed as
General Line Teacher substantively for the said school during the
pendency of the lis in the month of November, 2005 after putting
in five years of service.

We, while giving priority to the instant appeal, sought a
clarification from the State in our order dated 02.02.2010,
observing:-

A good case for not only admission of the
appeal has been made out but a very good
case for stay of operation of judgment and
order has also been made out. However,
taking into account, that the order appealed
against has been implemented, as a result,
appellant has lost his job and the writ
petitioner- respondent has been appointed,
we would require the State to supply the
lacunae which was not supplied while filing
the counter affidavit.

The school is situated, as pleaded in the
writ petition, in village Sharni. The State in
its Affidavit has not indicated whether
village Sharni is or is not in a Revenue
village and if it is not in a Revenue village,
whether it is a Mohalla or a hamlet within a
Revenue village. It has also not indicated
that if village Sharni is a Mohalla or a
hamlet within a Revenue village, what is the
name of that Revenue village. It has also
3
not indicated whether the village Rokali and
village Chagsoo are parts of the same
Revenue village where village Sharni is
situated. We want the State to file such
affidavit within two weeks from today.

List at the top of the list two weeks hence.

Records, as produced, are being returned,
which shall be produced at the time of
hearing.
In response, an affidavit has been filed by Chief Education
Officer Doda stating therein that Sharni, Rokali and Chagsoo are
different revenue villages as certified by Tehsildar Thathri vide its
letter No.899/OQ dated 10.02.2010, copy thereof is placed on
record.

Mr. Raghu Mehta, Advocate, appearing for the writ petitioner
has also moved an application bearing CMP No.24/2010 for
placing on record the supplementary affidavit of the writ petitioner.
Learned Senior Advocate Mr. Goni did not object to taking of the
same on record. So we allow the prayer.

Heard learned counsel for both the sides and perused the
Writ record.

Mr. Goni contends that may be the appellant did not contest
the writ petition before the learned Writ Court and proceeded exparte,
one important fact that he was appointed as General Line
Teacher substantively in accordance with the provisions of the
Scheme in November, 2005 was not brought to the Court by the
contesting parties. According to him, it was incumbent upon them
to bring this important fact before the learned Writ Court during
the pendency of the lis and had it been so done, the complexion of
the main case would altogether have been different. He submits
4
that the State has now chosen not to assail the order of the learned
Writ Court and gave appointment to the writ petitioner pursuant to
the direction. Therefore, on this flaw alone, the impugned
judgment is not sustainable.

Joining issue on merits of the case, Mr. Goni submits that
the main case set up by the writ petitioner before the learned Writ
Court was that her village is at a less distance from village Sharni
where the vacancy was assessed and that village Chagsoo, the
village of the appellant was far away from Sharni and this is what
has weighed with the learned Writ Court for ousting the appellant
whereas, admittedly, the appellant was more meritorious in
qualifications than the writ petitioner, which fact is otherwise
evident from Annexure-K. According to learned counsel, village
Rokali from where the writ petitioner hails and village Chagsoo, the
village of the appellant, in fact, are not contiguous to village Sharni
where the deficiency had occurred and, therefore, both the villages,
may be one falling at a distance of 2 kilometers and the other at a
distance of 3 kilometers are to be considered as adjoining villages
under the spirit of the Scheme. Therefore, the merit on the basis of
qualifications of an individual candidate shall prevail. This is
what is done in the present case while appointing the appellant.
According to the learned counsel, the approach adopted by the
learned Writ Court in quashing the appointment of the appellant
primarily on the basis of the distance from village Sharni where the
deficiency occurred, is not the correct approach, as such, the
impugned judgment deserves to be set aside on merits as well.
Mr. Goni lastly submits that the appellant by now has
become overaged and will not be able to get any government job.

5

His entire family is dependent upon him, which includes minor
children as well. Therefore, his case deserves an equitable tilt,
more so when his regular appointment was not made the subject
matter of challenge before the learned Writ Court.
Mr. D. C. Raina, learned Sr. Advocate, on the other hand,
submits that the impugned judgment is absolutely in line with the
Scheme, which has co-relation with the distance. He submits that
if one goes by the spirit of the Scheme, in the event of no local
candidate available from the village where the deficiency of staff is
assessed, Village Level Committee can draw up panel from the
adjoining village and in the present case the adjoining village was
village Rokali only, which was just 2 kilometers away from village
Sharni and that village Chagsoo was 3 kilometers away from the
said village. This is the reason that even in the panel Annexure-K
(attached with the memo of appeal), when list of candidates on the
basis of merit was prepared for the said school, the appellant
figured at serial No.3 whereas the writ petitioner was at serial No.1.
So percentage of the appellant on the basis of his academic
qualifications was not given weightage. According to Mr. Raina,
another candidate namely Mohinder Kumar is reflected at serial
No.5 in the list (Annexure-K) and his percentage is 56.50 i.e. much
higher than of the appellant, but the distance of his residence to
School is assessed as 6 kilometers. This shows that Village Level
Committee was conscious of the fact that as per the Scheme,
distance of the residence of the candidate from the School where
the vacancy was to be filled has to be given preference over and
above the qualifications. This is the reason that learned Writ
6
Court found appointment of the appellant as wrong and rightly
quashed it.

Mr. Raina then submits that may be during the pendency of
the lis, fact of regularization of the services of the appellant as
General Line Teacher was not brought to the notice of the Writ
Court, that by itself would not strengthen the case of the appellant,
if his initial appointment was bad. A wrong, which has been done
by ignoring the R-e-T Scheme operative at that stage, will not give
him a right of regularization even if any order in his favour has
been passed subsequently by the concerned authority on the basis
of length of his service.

Mr. Raina lastly submits that even on equity the appellant
has no case for the simple reason that equity when pitted against
the fundamental right, has to make way for enforcement of
fundamental right. Therefore, it cannot be a case of showing any
equitable tilt in favour of the appellant.

Mr. Raina has relied upon the following two judgments:-

1) Koshlya Devi Versus State of J&K and others, 2007
(1) JKJ 102 (HC)

2) Susheel Kumar Versus State of Jammu & Kashmir
and others (LPASW No.131/2006)
Since the dispute pertains to the appointment made under
R-e-T Scheme, it would be relevant to keep in view the eligibility
conditions envisaged by the Scheme. The Scheme postulates that
a person, who is meritorious amongst the candidates
possessing the prescribed qualification, belongs to the village
where deficiency has occurred, is to be appointed. Now
suppose no candidate having the prescribed eligibility qualification
7
is available in the village where the deficiency has occurred, would
it mean that post shall remain vacant. The Scheme by itself takes
care of such a situation also by providing that in such eventuality
a candidate from the adjoining village may be appointed. Now let
us conceive another situation. Suppose the village where
deficiency has occurred and a candidate having requisite
qualification is not available and a candidate from adjoining village
is to be taken as the Scheme provides, is adjoined by more than
one village and each village has candidates having the prescribed
eligibility qualifications, the question would arise in such like
situation, as to how the selection can validly be made. The
Scheme does not take care of such a situation despite that it
cannot be accepted that in such like situation, the framers of the
Scheme intended to keep the post vacant. Going by the intention
of the framers of the Scheme that the vacancy occurring must be
filled up for the welfare of the children of a particular village,
interpretation of the expression Adjoining village would be
necessary.

Dictionary meaning of the expression adjoining as per
Blacks Law Dictionary is Touching; sharing a common
boundary; Contiguous. It can be read as adjacent also, which
means lying near or close to but not necessarily touching.
As per Websters Comprehensive Dictionary, expression
adjoining is synonyms to expression adjacent which means
lying next, bordering; contiguous, lying near or close at hand.
As per Law Lexicon, the expression adjoining means
touching or contiguous, as distinguished from lying near or
8
adjacent. Etymologically, the word means touching or contiguous
to, but the lexicographical meaning is close to; near to; contiguous.
Village in any case shall now be read as revenue village.
Reading the dictionary meaning of adjoining and the meaning of
the word village, the expression adjoining village would mean a
village adjoining or near to the village in issue.
The above definitions, however, do not completely fit in the
situation envisaged keeping in view the nature and context of the
Scheme. In our considered view, the expression adjoining village
as contemplated by the Scheme would mean the village or the
villages surrounding the village where the deficiency has occurred.
The definition of adjoining village cannot be restricted to a single
village or a village nearer to the village where deficiency has
occurred. Adjoining village would mean village/villages adjoining
the village in issue where the deficiency has occurred irrespective
of number.

Now the next question would be that if eligible candidate
more than one are available in more than one adjoining villages,
how the selection would be made. The learned Writ Court adopted
the principle of distance only from the villages of the candidates to
the village where deficiency had occurred. This principle, in our
view, is not the correct one for the reason that under this principle
less meritorious candidate may steal a march over the meritorious
candidates available in the other adjoining village. It can be
comfortably imagined that the intention of the Scheme is not to
appoint less meritorious candidate over and above the meritorious
candidates, the intellectual development of the children of a
particular village being the heart beat of the Scheme.

9

The appointment of the appellant, if appreciated in the light
of the aforesaid discussion, the net result would be that it was not
at all bad and rather absolutely in consonance with the spirit of
the Scheme in operation at that time for the reason that admittedly
he was more meritorious in his qualifications than the writ
petitioner. Therefore, in our considered view, the impugned
judgment of the learned Single Judge quashing the appointment of
the appellant deserves to be set aside.

Before parting with the judgment, we may observe here that
the argument advanced by Mr. Raina with regard to the eligibility
of Mohinder Kumar falling at serial No.5 having been more
meritorious than even the appellant and still not appointed on
account of the distance of his village from the School where
deficiency occurred, appears to be attractive, but deserves to be
rejected for the reason that said Mohinder Kumar had not
challenged the appointment of the appellant. The present case,
thus, has been appreciated with regard to the merit of the
appellant vis-`-vis writ petitioner only.

The judgments on which Mr. Raina has relied heavily in
support of his submissions, in our view, are not at all applicable to
the facts of the present case, which has been dealt with by us
altogether on different aspect.

Consequently, the appeal on hand is allowed and the
impugned judgment of the learned Single Judge whereby
appointment of the appellant as R-e-T Teacher in Primary School
Sharni was quashed is set aside, resultantly, the writ petition of
the writ petitioner/ respondent No.7 herein shall stand dismissed.
Service status of the appellant shall be restored forthwith. The
10
appellant shall also be entitled to all consequential benefits except
the monetary one by deeming him in continuous service. The writ
petitioner, thus, shall stand ousted from the post held by her
pursuant to the impugned judgment.

Connected CMP(s) also stands disposed of accordingly.
( Sunil Hali ) ( Virender Singh )
Jammu Judge Judge
05.03.2010
Narinder

Ramesh Kumar vs State Of J&K And Others on 5 March, 2010

Jammu High Court
Ramesh Kumar vs State Of J&K And Others on 5 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 131 OF 2008    
Ramesh Kumar   
Petitioners
State of Jammu & Kashmir and others.  
Respondent  
!Mr. M. A. Goni, Sr. Advocate with Mr. Ajay Singh Kotwal, Advocate.
^Mr. Gagan Basotra, Addl. AG for respondent Nos. 1 to 6. Mr. D. C. Raina, Sr.
Advocate with Mr. Raghu Mehta, Advocate for respondent No.7. 

Honble Mr. Justice Virender Singh, Judge
Honble Mr. Justice Sunil Hali, Judge
Date: 05.03.2010 
:J U D G M E N T: 

With the consent of learned counsel for both the sides, we
intend to dispose of the instant Letters Patent Appeal at motion
stage itself. Writ Court record is also available for our perusal.
Admitted.

Through the instant appeal the appellant, who got an
appointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary
School Sharni in year 2000, has questioned the legality of the
order dated 01.09.2008 (Annexure-A) of learned Single Judge
whereby his appointment stands quashed and private respondent
No.7 (hereinafter to be referred to as writ petitioner) has been
appointed as R-e-T Teacher for the said school. All consequential
benefits flowing from the said appointment have also been granted
to the writ petitioner. The impugned order stands implemented, as
2
a result, appellant has lost his job and the writ petitioner has been
appointed.

It needs to be mentioned here that the appellant did not
contest the writ petition before the learned Writ Court, so set exparte.
However, his services were regularized in accordance with
the provisions of the Scheme and he came to be appointed as
General Line Teacher substantively for the said school during the
pendency of the lis in the month of November, 2005 after putting
in five years of service.

We, while giving priority to the instant appeal, sought a
clarification from the State in our order dated 02.02.2010,
observing:-

A good case for not only admission of the
appeal has been made out but a very good
case for stay of operation of judgment and
order has also been made out. However,
taking into account, that the order appealed
against has been implemented, as a result,
appellant has lost his job and the writ
petitioner- respondent has been appointed,
we would require the State to supply the
lacunae which was not supplied while filing
the counter affidavit.

The school is situated, as pleaded in the
writ petition, in village Sharni. The State in
its Affidavit has not indicated whether
village Sharni is or is not in a Revenue
village and if it is not in a Revenue village,
whether it is a Mohalla or a hamlet within a
Revenue village. It has also not indicated
that if village Sharni is a Mohalla or a
hamlet within a Revenue village, what is the
name of that Revenue village. It has also
3
not indicated whether the village Rokali and
village Chagsoo are parts of the same
Revenue village where village Sharni is
situated. We want the State to file such
affidavit within two weeks from today.

List at the top of the list two weeks hence.

Records, as produced, are being returned,
which shall be produced at the time of
hearing.
In response, an affidavit has been filed by Chief Education
Officer Doda stating therein that Sharni, Rokali and Chagsoo are
different revenue villages as certified by Tehsildar Thathri vide its
letter No.899/OQ dated 10.02.2010, copy thereof is placed on
record.

Mr. Raghu Mehta, Advocate, appearing for the writ petitioner
has also moved an application bearing CMP No.24/2010 for
placing on record the supplementary affidavit of the writ petitioner.
Learned Senior Advocate Mr. Goni did not object to taking of the
same on record. So we allow the prayer.

Heard learned counsel for both the sides and perused the
Writ record.

Mr. Goni contends that may be the appellant did not contest
the writ petition before the learned Writ Court and proceeded exparte,
one important fact that he was appointed as General Line
Teacher substantively in accordance with the provisions of the
Scheme in November, 2005 was not brought to the Court by the
contesting parties. According to him, it was incumbent upon them
to bring this important fact before the learned Writ Court during
the pendency of the lis and had it been so done, the complexion of
the main case would altogether have been different. He submits
4
that the State has now chosen not to assail the order of the learned
Writ Court and gave appointment to the writ petitioner pursuant to
the direction. Therefore, on this flaw alone, the impugned
judgment is not sustainable.

Joining issue on merits of the case, Mr. Goni submits that
the main case set up by the writ petitioner before the learned Writ
Court was that her village is at a less distance from village Sharni
where the vacancy was assessed and that village Chagsoo, the
village of the appellant was far away from Sharni and this is what
has weighed with the learned Writ Court for ousting the appellant
whereas, admittedly, the appellant was more meritorious in
qualifications than the writ petitioner, which fact is otherwise
evident from Annexure-K. According to learned counsel, village
Rokali from where the writ petitioner hails and village Chagsoo, the
village of the appellant, in fact, are not contiguous to village Sharni
where the deficiency had occurred and, therefore, both the villages,
may be one falling at a distance of 2 kilometers and the other at a
distance of 3 kilometers are to be considered as adjoining villages
under the spirit of the Scheme. Therefore, the merit on the basis of
qualifications of an individual candidate shall prevail. This is
what is done in the present case while appointing the appellant.
According to the learned counsel, the approach adopted by the
learned Writ Court in quashing the appointment of the appellant
primarily on the basis of the distance from village Sharni where the
deficiency occurred, is not the correct approach, as such, the
impugned judgment deserves to be set aside on merits as well.
Mr. Goni lastly submits that the appellant by now has
become overaged and will not be able to get any government job.

5

His entire family is dependent upon him, which includes minor
children as well. Therefore, his case deserves an equitable tilt,
more so when his regular appointment was not made the subject
matter of challenge before the learned Writ Court.
Mr. D. C. Raina, learned Sr. Advocate, on the other hand,
submits that the impugned judgment is absolutely in line with the
Scheme, which has co-relation with the distance. He submits that
if one goes by the spirit of the Scheme, in the event of no local
candidate available from the village where the deficiency of staff is
assessed, Village Level Committee can draw up panel from the
adjoining village and in the present case the adjoining village was
village Rokali only, which was just 2 kilometers away from village
Sharni and that village Chagsoo was 3 kilometers away from the
said village. This is the reason that even in the panel Annexure-K
(attached with the memo of appeal), when list of candidates on the
basis of merit was prepared for the said school, the appellant
figured at serial No.3 whereas the writ petitioner was at serial No.1.
So percentage of the appellant on the basis of his academic
qualifications was not given weightage. According to Mr. Raina,
another candidate namely Mohinder Kumar is reflected at serial
No.5 in the list (Annexure-K) and his percentage is 56.50 i.e. much
higher than of the appellant, but the distance of his residence to
School is assessed as 6 kilometers. This shows that Village Level
Committee was conscious of the fact that as per the Scheme,
distance of the residence of the candidate from the School where
the vacancy was to be filled has to be given preference over and
above the qualifications. This is the reason that learned Writ
6
Court found appointment of the appellant as wrong and rightly
quashed it.

Mr. Raina then submits that may be during the pendency of
the lis, fact of regularization of the services of the appellant as
General Line Teacher was not brought to the notice of the Writ
Court, that by itself would not strengthen the case of the appellant,
if his initial appointment was bad. A wrong, which has been done
by ignoring the R-e-T Scheme operative at that stage, will not give
him a right of regularization even if any order in his favour has
been passed subsequently by the concerned authority on the basis
of length of his service.

Mr. Raina lastly submits that even on equity the appellant
has no case for the simple reason that equity when pitted against
the fundamental right, has to make way for enforcement of
fundamental right. Therefore, it cannot be a case of showing any
equitable tilt in favour of the appellant.

Mr. Raina has relied upon the following two judgments:-

1) Koshlya Devi Versus State of J&K and others, 2007
(1) JKJ 102 (HC)

2) Susheel Kumar Versus State of Jammu & Kashmir
and others (LPASW No.131/2006)
Since the dispute pertains to the appointment made under
R-e-T Scheme, it would be relevant to keep in view the eligibility
conditions envisaged by the Scheme. The Scheme postulates that
a person, who is meritorious amongst the candidates
possessing the prescribed qualification, belongs to the village
where deficiency has occurred, is to be appointed. Now
suppose no candidate having the prescribed eligibility qualification
7
is available in the village where the deficiency has occurred, would
it mean that post shall remain vacant. The Scheme by itself takes
care of such a situation also by providing that in such eventuality
a candidate from the adjoining village may be appointed. Now let
us conceive another situation. Suppose the village where
deficiency has occurred and a candidate having requisite
qualification is not available and a candidate from adjoining village
is to be taken as the Scheme provides, is adjoined by more than
one village and each village has candidates having the prescribed
eligibility qualifications, the question would arise in such like
situation, as to how the selection can validly be made. The
Scheme does not take care of such a situation despite that it
cannot be accepted that in such like situation, the framers of the
Scheme intended to keep the post vacant. Going by the intention
of the framers of the Scheme that the vacancy occurring must be
filled up for the welfare of the children of a particular village,
interpretation of the expression Adjoining village would be
necessary.

Dictionary meaning of the expression adjoining as per
Blacks Law Dictionary is Touching; sharing a common
boundary; Contiguous. It can be read as adjacent also, which
means lying near or close to but not necessarily touching.
As per Websters Comprehensive Dictionary, expression
adjoining is synonyms to expression adjacent which means
lying next, bordering; contiguous, lying near or close at hand.
As per Law Lexicon, the expression adjoining means
touching or contiguous, as distinguished from lying near or
8
adjacent. Etymologically, the word means touching or contiguous
to, but the lexicographical meaning is close to; near to; contiguous.
Village in any case shall now be read as revenue village.
Reading the dictionary meaning of adjoining and the meaning of
the word village, the expression adjoining village would mean a
village adjoining or near to the village in issue.
The above definitions, however, do not completely fit in the
situation envisaged keeping in view the nature and context of the
Scheme. In our considered view, the expression adjoining village
as contemplated by the Scheme would mean the village or the
villages surrounding the village where the deficiency has occurred.
The definition of adjoining village cannot be restricted to a single
village or a village nearer to the village where deficiency has
occurred. Adjoining village would mean village/villages adjoining
the village in issue where the deficiency has occurred irrespective
of number.

Now the next question would be that if eligible candidate
more than one are available in more than one adjoining villages,
how the selection would be made. The learned Writ Court adopted
the principle of distance only from the villages of the candidates to
the village where deficiency had occurred. This principle, in our
view, is not the correct one for the reason that under this principle
less meritorious candidate may steal a march over the meritorious
candidates available in the other adjoining village. It can be
comfortably imagined that the intention of the Scheme is not to
appoint less meritorious candidate over and above the meritorious
candidates, the intellectual development of the children of a
particular village being the heart beat of the Scheme.

9

The appointment of the appellant, if appreciated in the light
of the aforesaid discussion, the net result would be that it was not
at all bad and rather absolutely in consonance with the spirit of
the Scheme in operation at that time for the reason that admittedly
he was more meritorious in his qualifications than the writ
petitioner. Therefore, in our considered view, the impugned
judgment of the learned Single Judge quashing the appointment of
the appellant deserves to be set aside.

Before parting with the judgment, we may observe here that
the argument advanced by Mr. Raina with regard to the eligibility
of Mohinder Kumar falling at serial No.5 having been more
meritorious than even the appellant and still not appointed on
account of the distance of his village from the School where
deficiency occurred, appears to be attractive, but deserves to be
rejected for the reason that said Mohinder Kumar had not
challenged the appointment of the appellant. The present case,
thus, has been appreciated with regard to the merit of the
appellant vis-`-vis writ petitioner only.

The judgments on which Mr. Raina has relied heavily in
support of his submissions, in our view, are not at all applicable to
the facts of the present case, which has been dealt with by us
altogether on different aspect.

Consequently, the appeal on hand is allowed and the
impugned judgment of the learned Single Judge whereby
appointment of the appellant as R-e-T Teacher in Primary School
Sharni was quashed is set aside, resultantly, the writ petition of
the writ petitioner/ respondent No.7 herein shall stand dismissed.
Service status of the appellant shall be restored forthwith. The
10
appellant shall also be entitled to all consequential benefits except
the monetary one by deeming him in continuous service. The writ
petitioner, thus, shall stand ousted from the post held by her
pursuant to the impugned judgment.

Connected CMP(s) also stands disposed of accordingly.
( Sunil Hali ) ( Virender Singh )
Jammu Judge Judge
05.03.2010
Narinder

Ramesh Kumar vs State Of J&K And Others on 5 March, 2010

Jammu High Court
Ramesh Kumar vs State Of J&K And Others on 5 March, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 131 OF 2008    
Ramesh Kumar   
Petitioners
State of Jammu & Kashmir and others.  
Respondent  
!Mr. M. A. Goni, Sr. Advocate with Mr. Ajay Singh Kotwal, Advocate.
^Mr. Gagan Basotra, Addl. AG for respondent Nos. 1 to 6. Mr. D. C. Raina, Sr.
Advocate with Mr. Raghu Mehta, Advocate for respondent No.7. 

Honble Mr. Justice Virender Singh, Judge
Honble Mr. Justice Sunil Hali, Judge
Date: 05.03.2010 
:J U D G M E N T: 

With the consent of learned counsel for both the sides, we
intend to dispose of the instant Letters Patent Appeal at motion
stage itself. Writ Court record is also available for our perusal.
Admitted.

Through the instant appeal the appellant, who got an
appointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary
School Sharni in year 2000, has questioned the legality of the
order dated 01.09.2008 (Annexure-A) of learned Single Judge
whereby his appointment stands quashed and private respondent
No.7 (hereinafter to be referred to as writ petitioner) has been
appointed as R-e-T Teacher for the said school. All consequential
benefits flowing from the said appointment have also been granted
to the writ petitioner. The impugned order stands implemented, as
2
a result, appellant has lost his job and the writ petitioner has been
appointed.

It needs to be mentioned here that the appellant did not
contest the writ petition before the learned Writ Court, so set exparte.
However, his services were regularized in accordance with
the provisions of the Scheme and he came to be appointed as
General Line Teacher substantively for the said school during the
pendency of the lis in the month of November, 2005 after putting
in five years of service.

We, while giving priority to the instant appeal, sought a
clarification from the State in our order dated 02.02.2010,
observing:-

A good case for not only admission of the
appeal has been made out but a very good
case for stay of operation of judgment and
order has also been made out. However,
taking into account, that the order appealed
against has been implemented, as a result,
appellant has lost his job and the writ
petitioner- respondent has been appointed,
we would require the State to supply the
lacunae which was not supplied while filing
the counter affidavit.

The school is situated, as pleaded in the
writ petition, in village Sharni. The State in
its Affidavit has not indicated whether
village Sharni is or is not in a Revenue
village and if it is not in a Revenue village,
whether it is a Mohalla or a hamlet within a
Revenue village. It has also not indicated
that if village Sharni is a Mohalla or a
hamlet within a Revenue village, what is the
name of that Revenue village. It has also
3
not indicated whether the village Rokali and
village Chagsoo are parts of the same
Revenue village where village Sharni is
situated. We want the State to file such
affidavit within two weeks from today.

List at the top of the list two weeks hence.

Records, as produced, are being returned,
which shall be produced at the time of
hearing.
In response, an affidavit has been filed by Chief Education
Officer Doda stating therein that Sharni, Rokali and Chagsoo are
different revenue villages as certified by Tehsildar Thathri vide its
letter No.899/OQ dated 10.02.2010, copy thereof is placed on
record.

Mr. Raghu Mehta, Advocate, appearing for the writ petitioner
has also moved an application bearing CMP No.24/2010 for
placing on record the supplementary affidavit of the writ petitioner.
Learned Senior Advocate Mr. Goni did not object to taking of the
same on record. So we allow the prayer.

Heard learned counsel for both the sides and perused the
Writ record.

Mr. Goni contends that may be the appellant did not contest
the writ petition before the learned Writ Court and proceeded exparte,
one important fact that he was appointed as General Line
Teacher substantively in accordance with the provisions of the
Scheme in November, 2005 was not brought to the Court by the
contesting parties. According to him, it was incumbent upon them
to bring this important fact before the learned Writ Court during
the pendency of the lis and had it been so done, the complexion of
the main case would altogether have been different. He submits
4
that the State has now chosen not to assail the order of the learned
Writ Court and gave appointment to the writ petitioner pursuant to
the direction. Therefore, on this flaw alone, the impugned
judgment is not sustainable.

Joining issue on merits of the case, Mr. Goni submits that
the main case set up by the writ petitioner before the learned Writ
Court was that her village is at a less distance from village Sharni
where the vacancy was assessed and that village Chagsoo, the
village of the appellant was far away from Sharni and this is what
has weighed with the learned Writ Court for ousting the appellant
whereas, admittedly, the appellant was more meritorious in
qualifications than the writ petitioner, which fact is otherwise
evident from Annexure-K. According to learned counsel, village
Rokali from where the writ petitioner hails and village Chagsoo, the
village of the appellant, in fact, are not contiguous to village Sharni
where the deficiency had occurred and, therefore, both the villages,
may be one falling at a distance of 2 kilometers and the other at a
distance of 3 kilometers are to be considered as adjoining villages
under the spirit of the Scheme. Therefore, the merit on the basis of
qualifications of an individual candidate shall prevail. This is
what is done in the present case while appointing the appellant.
According to the learned counsel, the approach adopted by the
learned Writ Court in quashing the appointment of the appellant
primarily on the basis of the distance from village Sharni where the
deficiency occurred, is not the correct approach, as such, the
impugned judgment deserves to be set aside on merits as well.
Mr. Goni lastly submits that the appellant by now has
become overaged and will not be able to get any government job.

5

His entire family is dependent upon him, which includes minor
children as well. Therefore, his case deserves an equitable tilt,
more so when his regular appointment was not made the subject
matter of challenge before the learned Writ Court.
Mr. D. C. Raina, learned Sr. Advocate, on the other hand,
submits that the impugned judgment is absolutely in line with the
Scheme, which has co-relation with the distance. He submits that
if one goes by the spirit of the Scheme, in the event of no local
candidate available from the village where the deficiency of staff is
assessed, Village Level Committee can draw up panel from the
adjoining village and in the present case the adjoining village was
village Rokali only, which was just 2 kilometers away from village
Sharni and that village Chagsoo was 3 kilometers away from the
said village. This is the reason that even in the panel Annexure-K
(attached with the memo of appeal), when list of candidates on the
basis of merit was prepared for the said school, the appellant
figured at serial No.3 whereas the writ petitioner was at serial No.1.
So percentage of the appellant on the basis of his academic
qualifications was not given weightage. According to Mr. Raina,
another candidate namely Mohinder Kumar is reflected at serial
No.5 in the list (Annexure-K) and his percentage is 56.50 i.e. much
higher than of the appellant, but the distance of his residence to
School is assessed as 6 kilometers. This shows that Village Level
Committee was conscious of the fact that as per the Scheme,
distance of the residence of the candidate from the School where
the vacancy was to be filled has to be given preference over and
above the qualifications. This is the reason that learned Writ
6
Court found appointment of the appellant as wrong and rightly
quashed it.

Mr. Raina then submits that may be during the pendency of
the lis, fact of regularization of the services of the appellant as
General Line Teacher was not brought to the notice of the Writ
Court, that by itself would not strengthen the case of the appellant,
if his initial appointment was bad. A wrong, which has been done
by ignoring the R-e-T Scheme operative at that stage, will not give
him a right of regularization even if any order in his favour has
been passed subsequently by the concerned authority on the basis
of length of his service.

Mr. Raina lastly submits that even on equity the appellant
has no case for the simple reason that equity when pitted against
the fundamental right, has to make way for enforcement of
fundamental right. Therefore, it cannot be a case of showing any
equitable tilt in favour of the appellant.

Mr. Raina has relied upon the following two judgments:-

1) Koshlya Devi Versus State of J&K and others, 2007
(1) JKJ 102 (HC)

2) Susheel Kumar Versus State of Jammu & Kashmir
and others (LPASW No.131/2006)
Since the dispute pertains to the appointment made under
R-e-T Scheme, it would be relevant to keep in view the eligibility
conditions envisaged by the Scheme. The Scheme postulates that
a person, who is meritorious amongst the candidates
possessing the prescribed qualification, belongs to the village
where deficiency has occurred, is to be appointed. Now
suppose no candidate having the prescribed eligibility qualification
7
is available in the village where the deficiency has occurred, would
it mean that post shall remain vacant. The Scheme by itself takes
care of such a situation also by providing that in such eventuality
a candidate from the adjoining village may be appointed. Now let
us conceive another situation. Suppose the village where
deficiency has occurred and a candidate having requisite
qualification is not available and a candidate from adjoining village
is to be taken as the Scheme provides, is adjoined by more than
one village and each village has candidates having the prescribed
eligibility qualifications, the question would arise in such like
situation, as to how the selection can validly be made. The
Scheme does not take care of such a situation despite that it
cannot be accepted that in such like situation, the framers of the
Scheme intended to keep the post vacant. Going by the intention
of the framers of the Scheme that the vacancy occurring must be
filled up for the welfare of the children of a particular village,
interpretation of the expression Adjoining village would be
necessary.

Dictionary meaning of the expression adjoining as per
Blacks Law Dictionary is Touching; sharing a common
boundary; Contiguous. It can be read as adjacent also, which
means lying near or close to but not necessarily touching.
As per Websters Comprehensive Dictionary, expression
adjoining is synonyms to expression adjacent which means
lying next, bordering; contiguous, lying near or close at hand.
As per Law Lexicon, the expression adjoining means
touching or contiguous, as distinguished from lying near or
8
adjacent. Etymologically, the word means touching or contiguous
to, but the lexicographical meaning is close to; near to; contiguous.
Village in any case shall now be read as revenue village.
Reading the dictionary meaning of adjoining and the meaning of
the word village, the expression adjoining village would mean a
village adjoining or near to the village in issue.
The above definitions, however, do not completely fit in the
situation envisaged keeping in view the nature and context of the
Scheme. In our considered view, the expression adjoining village
as contemplated by the Scheme would mean the village or the
villages surrounding the village where the deficiency has occurred.
The definition of adjoining village cannot be restricted to a single
village or a village nearer to the village where deficiency has
occurred. Adjoining village would mean village/villages adjoining
the village in issue where the deficiency has occurred irrespective
of number.

Now the next question would be that if eligible candidate
more than one are available in more than one adjoining villages,
how the selection would be made. The learned Writ Court adopted
the principle of distance only from the villages of the candidates to
the village where deficiency had occurred. This principle, in our
view, is not the correct one for the reason that under this principle
less meritorious candidate may steal a march over the meritorious
candidates available in the other adjoining village. It can be
comfortably imagined that the intention of the Scheme is not to
appoint less meritorious candidate over and above the meritorious
candidates, the intellectual development of the children of a
particular village being the heart beat of the Scheme.

9

The appointment of the appellant, if appreciated in the light
of the aforesaid discussion, the net result would be that it was not
at all bad and rather absolutely in consonance with the spirit of
the Scheme in operation at that time for the reason that admittedly
he was more meritorious in his qualifications than the writ
petitioner. Therefore, in our considered view, the impugned
judgment of the learned Single Judge quashing the appointment of
the appellant deserves to be set aside.

Before parting with the judgment, we may observe here that
the argument advanced by Mr. Raina with regard to the eligibility
of Mohinder Kumar falling at serial No.5 having been more
meritorious than even the appellant and still not appointed on
account of the distance of his village from the School where
deficiency occurred, appears to be attractive, but deserves to be
rejected for the reason that said Mohinder Kumar had not
challenged the appointment of the appellant. The present case,
thus, has been appreciated with regard to the merit of the
appellant vis-`-vis writ petitioner only.

The judgments on which Mr. Raina has relied heavily in
support of his submissions, in our view, are not at all applicable to
the facts of the present case, which has been dealt with by us
altogether on different aspect.

Consequently, the appeal on hand is allowed and the
impugned judgment of the learned Single Judge whereby
appointment of the appellant as R-e-T Teacher in Primary School
Sharni was quashed is set aside, resultantly, the writ petition of
the writ petitioner/ respondent No.7 herein shall stand dismissed.
Service status of the appellant shall be restored forthwith. The
10
appellant shall also be entitled to all consequential benefits except
the monetary one by deeming him in continuous service. The writ
petitioner, thus, shall stand ousted from the post held by her
pursuant to the impugned judgment.

Connected CMP(s) also stands disposed of accordingly.
( Sunil Hali ) ( Virender Singh )
Jammu Judge Judge
05.03.2010
Narinder

Jammu & Kashmir State Road … vs Mohd. Rafiq & Others on 25 February, 2010

Jammu High Court
Jammu & Kashmir State Road … vs Mohd. Rafiq & Others on 25 February, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
CIMA No. 190 OF 2005   
Jammu & Kashmir State Road Transport Corporation.  
Petitioners
Farid Hussain and Ors 
Respondent  
!Mr. R.Koul, Advocate
^Mr. K.J.Singh, Advocate for respondent nos. 1 & 2. Respondent no.3 ex-parte

Honble Mr. Justice Mansoor Ahmad Mir  
Date: 25.02.2010 
:J U D G M E N T :

Appellant has challenged award dated 10th November, 2003 passed by the Motor Accidents
Claims Tribunal (MACT), Udhampur in Claim Petition no. 63/Claim, titled Farid Hussain &
another versus Mohd. Rafiq & Others, on the grounds taken in the memo of appeal.
Respondent nos. 1 & 2, being the victim of the vehicular accident, filed a claim petition before
the Motor Accidents Claims Tribunal, Udhampur for grant of compensation on the ground that
their father namely Abdul Majid, who was traveling in the vehicle/goods carrier truck bearing
no. 336/JKZ, which was being driven by Mohd. Rafiq, driver, rashly and negligently met with
an accident near Marothi on Sudh Mahadev Dudu Road on 21.01.1988 and lost his life in the
said accident.

Respondents have filed their objections.

Following issues came to be framed:

1. Whether on 21.1.88 Vehicle no. 336/JKZ driven by respondent no.1 under the
employment of respondent nos. 2 & 3 rashly and negligently met with an accident near Marothi
on Sudh Mahadev Dudu Road in consequence of which Ab. Majid who has also travelling in
the ill fated vehicle along with others sustained grievous injuries and died on spot?

OPP
Whether the monthly income of the deceased was Rs.3000/- at the time of his death, if so what
is its effect on the petitioner?

OPP
Whether the deceased was travelling as a gratuitous passenger in the offending vehicle as such
respondent no.3 is not entitled to pay any amount to the deceased?

OPR3

Relief.
Claimants/respondents have examined the witnesses including driver Mohd. Rafiq.
Virtually the appellant had admitted that deceased was travelling in the truck. He died because
the truck met with an accident and cause of the accident was heavy rain.

It also appears that batch of claim petitions came to be filed and the Tribunal recorded
the findings that the accident was outcome of rash and negligent driving of the driver.

In the given circumstances, the Tribunal has rightly recorded the findings in favour of
the claimants and against the appellant.

While going through the memo of appeal, the appellant has questioned the award only
on two grounds viz; (1) that the claim petition was admittedly time barred, (2) that
compensation awarded is excessive.

The learned counsel argued that the award is not justified on the said two grounds.
Admittedly, the deceased was a labourer and was also working as RajMistri. He was
earning Rs.100/ – per day.

Appellant has not led any evidence in rebuttal. Thus, it can safely be held that he was
earning Rs.3000/- per month as labourer/daily wager. It is but natural that he would have been
spending 1/3rd for his personal expenses and rightly the Tribunal had assessed loss of
dependency to the tune of Rs.2000/- per month. Admittedly, age of the deceased was 39 years
at the time of death and the multiplier Sixteen as per Second Schedule of the Motor Vehicles
Act is applicable, but the Tribunal has applied multiplier of Ten, but unfortunately
claimants/respondent Nos. 1 & 2 have neither questioned the award to that extent by way of
appeal nor by a cross objection. Reluctantly, the multiplier Ten applied by the Tribunal is
maintained.

Learned counsel for the appellant lastly argued that the claim petition was to be dismissed on
the count that it was barred by time. I am of the view that argument of the learned counsel for
the appellant is not tenable for the following reasons:-

The Motor Vehicle Act has gone thorough a sea change and the provision, whereunder
the time frame was fixed, came to be deleted by the amendment and now in terms of the
amendment, a claim petition can be filed at any time. Limitation will not come in the way of
the claimants for seeking benefit of this social legislation.

Apex Court in cases titled New India Assurance Co. Ltd. versus C. Padma & anr.,
reported as AIR 2003, SC, 4394, Dhannalal versus D.P.Vijayvargiya & Ors., reported as AIR
1996 SC, 2155 and Vinod Gurudas Raikar versus National Insurance Co. Ltd., AIR 1991 SC
2156, laid-down the same law.

It is also apt to mention here in that the appellant has not taken this issue before the
Tribunal in objections/reply nor by way of any other mode. Thus the appellant cannot raise this
issue now.

In the given circumstances, this appeal is, accordingly, dismissed, along with all CMPs.

(Mansoor Ahmad Mir)
Judge

JAMMU:

25.02.2009
Pawan Chopra

Safina Javeed vs State Of J&K. While on 1 February, 2010

Jammu High Court
Safina Javeed vs State Of J&K. While on 1 February, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
SWP  No. 964 OF 2008   
Safina Javeed
Petitioners
State and others
Respondent  
!S.KShukla, Advocate 
^Mrs. Neeru Goswami, Dy.AG for R- 1 & 3. Mr. F.A.Natnoo, Advocate for R-2. 

Mr. Justice Sunil Hali, Judge
Date: 01.02.2010 
:J U D G M E N T :

Vide Advertisement notice no.12-PSC of 2006
dated 20.12.2006, respondent no.2 invited
applications from the eligible candidates on a
prescribed form for filling up of various posts of
Lecturers in different discipline including 12 posts of
Political Science in the Higher Education. The break
up of the posts advertised, is as under:-
Open merit : 06
RBA : 03
SC : 01
ST : 01
SLC : 01
Total : 12
Advertisement notification provided two
categories, one meant for in-service category and
other for the direct recruitment from the open
market. The petitioner submitted her application
form for the said post of Lecturer Political Science in
2
the open market. She along with other eligible
candidates, was allowed to participate in the
selection process by respondent no.2- Public Service
Commission. The select panel declared by
respondent no.2 vide its Notification No.PSCDR/
Sec./2007 dated 29.08.2007 indicated names of
three persons, who were selected under RBA
category, namely, Muzzafar Ali, Jeewan Lal and
Prem Singh. As a sequel to the selection being
made, the appointment orders were issued vide
Govt. Order No.230-HE of 2007 dated 18.10.2007.
All the selected candidates, who were offered
appointments came to be appointed by the
respondents. One of the selected candidates,
namely, Sh. Muzaffar Ali who was in the RBA
category has resigned from the said post on his
selection to the Kashmir Administrative Service. On
the resignation of said Muzaffar Ali, State made
temporary appointment of one Shri Amit Bhalla on
academic arrangement basis.

The grievance of the petitioner is that
respondents under Rule 57 of the J&K Public Service
Commission (Business and Procedure) Rules, 1980
have to prepare the waiting list of the candidates
along with original recommendations of the selected
candidates while submitting the same to the
Government for issuance of appointment orders.
According to the petitioner, she was next in the
merit, therefore, required to be appointed against
the said post on account of resignation of one
Muzzaffar Ali. It is also contended that the vacancy
3
had occurred within the life of the waiting list, which
was to remain in force for a period of one year and
extendable for another period of six months on the
recommendations of the Government. The
respondents did not appoint the petitioner, thus her
right of being considered for appointment to the
post in question, has been violated.
On the other hand, the stand of the
respondents is that mere selection does not give any
right of appointment. The petitioner admittedly did
not make the grade, as such, has no right to be
appointed. It is not in dispute that the respondents
did not prepare any waiting list. However, what is
being contended is that even if the waiting list was
prepared even then the petitioner has no right to be
appointed against the post which has been filled up.
Resignation of the candidate resulted into vacancy
which was required to be filled up by taking recourse
to fresh advertisement. It is only in case where
candidate selected does not join, the panel remains
in operation. Once the panel of the select list is
exhausted by issuing of such appointment orders
and consequently on their joining the panel is
exhausted.

I have heard learned counsel for the parties
and perused the record.

It may be important to mention here that
respondent no.2 was directed by this Court to
submit the merit position of the petitioner.
According to the merit list disclosed before this
court, the petitioner has obtained 49.22 points
4
whereas cut of merit in RBA category is 49.86
points, who admittedly could not make the grade in
the selection process.

To examine the contours of the controversy
what is being emphasized by the petitioner is that
resignation/non-joining of the candidate during the
life of the panel would create an obligation on the
Public Service Commission and State to make
appointment from the waiting list according to the
merit. The petitioner has placed reliance on the
judgment of the Division Bench of this Court in case
Ghulam Ahmad Malik Vs. State of J&K. While
dealing with the contention of the learned counsel
for the respondents in the aforesaid case, the
Division Bench of this Court has observed as
under :-

56. We do not agree with Sh. Bakshi for two
reasons:-

1. The judgment cited by learned counsel refers to a
case where the life of a select panel ceases to
exist after the appointment of first person in the
select panel. The ratio of the judgment cannot be
applied to the facts of present case because it is
admitted by the parties that life of the select
panel continues to remain in operation for one
year extendable to another six months on the
requisition of the State Government; and

2. A litigant cannot be compelled to suffer because
of the delay in disposal of his lis. It goes without
saying that in-action by a judicial authority should
not prejudice anyone.

57. This apart, it has been held in State of U.P. V.
Ram Swarup Saroj
(supra) that a party who
approaches the Court within the life of the waiting list
cannot be deprived of his right to seek operation of
the waiting list because of non-consideration of his
case within the validity period of the waiting list.

58. We, thus, hold that all those vacancies, which
have fallen vacant because of the non-joining, death
or resignation of the appointees within a period of
one year from the date of the recommendation by the
5
Public Service Commission for appointment, shall
become available to the candidates in the waiting list
in the order of merit against their respective
categories.
The Division Bench while examining the import
of the Apex Courts judgment titled as State of
Punjab V. Raghbir Chand Sharma and
another
reported in AIR 2001 SC 2900 distinguish the
judgment on an issue that the matter before the
Apex Court was that life of the select list had ceased
to exist after the appointment of first person in the
select panel. The judgment relied upon by the
respondents in State of Punjab Vs. Raghbir Chand
Sharma and another postulates that the select list
was prepared only for one post and panel ceased to
exist and had outlived its utility and no one else in
the panel could legitimately contend that he should
have been offered appointment either in the vacancy
arising on account of the subsequent resignation of
the person appointed from the panel or any other
vacancy arising subsequently. The following are the
observations made by the Apex Court in the
aforesaid judgment:-

With the appointment of the first
candidate for the only post in respect of which
the select panel was prepared, the panel
ceased to exist and has outlived its utility and
no one else in the panel can legitimately
contend that he should have been offered
appointment either in the vacancy arising on
account of the subsequent resignation of the
person appointed from the panel or any other
vacancies arising subsequently. The circular
order dated 22.03.1957, relates to select
panels prepared by the PSC and not a panel
of the nature under consideration herein. That
apart, even as per the said circular, no claim
can be asserted and countenanced for
appointment after the expiry of six months.
6
The import of the judgment of the Apex Court
refers to a panel prepared by the State Government
who invited applications for making appointment to
the post of Assistant Advocate General. It further
contemplates that circular relied upon by the
petitioners in the said case was to remain in force
for a period of six months and not beyond that. The
important observation made by the Apex Court is
that the circular relied upon by the writ petitioners
relates to the panels prepared by the PSC and not
the panel prepared by the State.

The import of the aforementioned judgment is
that selection process of the Assistant Advocate
General was initiated by the State Government and
not by the PSC, which provided that a panel has to
remain in force for a period of six months. In the
case in hand, selection process has been initiated by
the PSC and the Rule 57 clearly contemplates that
the select list prepared was to remain in force for a
period of one year from the date it is communicated
to the Government. The validity period of one year
can, however, be extended for a further period of six
months on specific request of the Government if the
request of such extension is made before the expiry
of the validity of the panel. Rule further provides
that the waiting list of the candidates may be drawn
up by the Commission and communicated to the
Government, along with the original
recommendations, to the extent to be determined
by the Commission in each case.

7

The aforesaid rule clearly envisages two
situations, one that select list has to be prepared
along with waiting list which is required to be
submitted to the Government; secondly, the
recommendations of the Commission has to remain
in force for a period of one year, extendable by
further period of six months on specific request of
the Government.

The object and purpose of preparing the select
list along with waiting list is to ensure that no
selection process so initiated is lost on account of
Government failure to make appointment on the
basis of said list. The purpose is to ensure that duly
selection process is brought to its logical conclusion,
for which life of the panel is provided as one year.
After the expiry of the period of one year, panel
ceases to exist and fresh recruitment is required to
be done so as to ensure that process of making
selection does not impede the rights of the person
who have acquired their eligibility during this period.
Contingency may arise during the subsistence of the
life of panel where candidate may not join or die or
resign after joining leaving the vacancy unfilled.
There is obligation on the part of the respondents to
make appointments of the candidates from amongst
the waiting list on the basis of their merit. The
respondents are under an obligation under rules to
offer this appointment to the person in the waiting
list otherwise very purpose of framing Rule 57 would
be defeated. The select list has to remain in force for
a period of one year and object cannot be destroyed
8
while refusing to make appointment from within the
waiting list in case of any contingency as indicated
above, which may arise. The stand of the
respondents is that once the appointment is made,
the panel gets exhausted, cannot be accepted as
there is no such contingency provided under the
rules that select list can be operated only in case of
non-joining of the candidate and not in the event of
death or resignation.

In view of the above, while concurring with a
view taken by the Division Bench of this Court, I
allow this writ petition and direct the respondent-
PSC to recommend the name of the petitioner to
respondent no.1 for appointment as Lecturer in
Political Science against the post fallen vacant due
to the resignation of one Muzaffar Ali provided she is
next in the merit, within one month who shall
consider the same and pass appropriate orders
within one month thereafter.

Disposed of along with connected CMP(s), if
any.

(Sunil Hali)
Judge
Jammu
01.02.2011.

Madan

Shakeel Ahmad vs Fida Hussain & Ors on 1 January, 2010

Jammu High Court
Shakeel Ahmad vs Fida Hussain & Ors on 1 January, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Rev No. 84 OF 2006 
Shakeel Ahmad  
Petitioners
Fida Hussain & Ors 
Respondent  
!Mr. Sunil Sethi, Sr. Advocate, with Mr. Vikas Abrol, Advocate
^Mr. O. P. Thakur, Advocate

HON'BLE MR. JUSTICE SUNIL HALI, JUDGE.       
Date: 01.01.2010 
:J U D G M E N T :

This Criminal Revision has been filed against order dated
17.10.2006 passed by learned Additional Sessions Judge,
Ramban, whereby the respondents have been directed to be
tried under Sections 323/325/326/341/34 RPC, holding that no
offence under Section 307 RPC is made out against them. The
Challan, accordingly, has been directed to be transferred to the
Court of Munsiff, Judicial Magistrate Ist Class, Ramban, for
disposal of the case under law.

Mr. Sethi, learned Senior counsel, appearing for the
petitioner submits that the petitioner, who is an employee of the
Forest Department, while on his way to attend his official duty
2
on 11th of July, 2006, was attacked by the respondents with iron
rods and lathies. This was with a criminal intention to kill the
petitioner as there was some old enmity between the parties
with regard to a piece of land. It is stated that on account of the
said attack the petitioner sustained multiple injuries and
remained hospitalized for about three weeks and underwent a
surgery also. In this regard, reliance has been placed on the
medical certificate issued by the Registrar, Surgical Unit-6,
SMHS Hospital Srinagar, copy whereof has been placed on
record.

It is further stated that Challan against the respondents
was filed before the Court of learned Additional Sessions Judge
Ramban, under Sections 307/323/325/345 RPC but the learned
Court, without appreciating the facts and the nature of injuries,
as reflected in the medical certificate issued by the authority
concerned, has committed a legal error in discharging the
respondents for offence under Section 307 RPC by order
impugned. It is stated that while framing the charge, the learned
trial Court should not have only relied upon the opinion of the
doctor regarding sufficiency of the injuries to cause death but
should have also taken into consideration the evidence and
circumstances which only suggested that the intention of the
respondents was to kill the petitioner.

3

I have heard the learned counsel for the parties.
It is not in dispute that while framing charge if there is
reasonable suspicion that the accused has committed the
offence, than he is required to be put to trial. However, the
courts will not act as Post Office. It is required to peruse the
record and come to a prima facie opinion that there are
sufficient grounds for framing the charge against the accused.
The case of the petitioner is that the trial Court has discharged
the accused under Section 307 RPC solely on the basis of the
report of the doctor who has examined the petitionercomplainant
and has not taken into consideration the
circumstantial evidence which suggested that intention of the
respondents was to kill the complainant. There is no dispute
that the statements of the eye witnesses cannot be over looked
by relying exclusively on the report of the expert evidence.
However, the nature of the injuries which are inflicted on the
body of the complainant can only be confirmed by the medical
evidence. The nature of the injuries will reveal the weapon of
offence used which can only be gathered from the injuries
which have been inflicted on the complainant.
In the present case the trial Court has, after examining
the report of the doctor, discharged the accused persons for
offence under Sections 307 RPC and charged them under
4
Sections 323/325/326/341/34 RPC. According to the report of
the doctor, injuries no. 1 to 5 are simple in nature whereas
injury no. 6 is grievous injury.

I, therefore, do not find any reason to interfere with the
well reasoned order of the trial Court.

The revision petition has no force. It is, accordingly,
dismissed.

(SUNIL HALI)
Judge
JAMMU:

01.01.2010
Anil Raina, Secy.