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Judgment
In this petition, the petitioners have assailed the report of respondent No. 5 bearing No. ADCP/PS/1145 dated 01.02.2018 and the communication of
respondent No. 4 bearing No. DCP/SO/357 dated 09.08.2018 addressed to respondent No. 3.Â
In brief, the facts of the case are that the petitioners invoked the writ jurisdiction of this Court by way of SWP No. 2707/2012 for challenging the
corrigendum dated 27.02.2012, whereby it had been clarified that instead of “Village/Panchayat†as occurring in Clause 05 of the Advertisement
Notice dated 12.07.2011 it would be read as “Revenue Villageâ€. The petition was allowed by this Court vide judgment dated 18.02.2016. State
preferred an LPASW No. 100/2016 against the aforesaid judgment and the Hon’ble Division Bench allowed the appeal and quashed the judgment
dated 18.02.2016. The Hon’ble Division Bench while disposing of the appeal, directed the Deputy Commissioner, Poonch to decide whether
Village Nabinar is a habitation in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009. It was also enjoined upon the Deputy
Commissioner, Poonch to afford an opportunity of hearing to all the candidates. A Further direction was issued that the Deputy Commissioner, Poonch
after determination of the aforesaid question would issue necessary directions to the ZEO Poonch with regard to the preparation of the merit list.Â
In compliance to the Division Bench judgment dated 04.07.2017, the Deputy Commissioner, Poonch constituted a Commission for spot verification
regarding the status of habitation Mohalla Nabinar of Village Mankote. The Commission was consisted of Additional Deputy Commissioner, Poonch,
Deputy Education and Planning Officer, Poonch and Tehsildar Mankote. The Commission, as is apparent from the record, visited the spot and
submitted its fact finding report to the Deputy Commissioner, Poonch with the recommendation that Mohalla Nabinar could not be considered as a
habitation for the purposes of applicability of Government Order No. 288Edu of 2009 dated 08.04.2009. Feeling aggrieved of the findings of the
Commission, the petitioners filed their objections. They were heard in the matter through their learned counsel and, accordingly, the Deputy
Commissioner, Poonch concurred with the finding returned by the Commission and vide its communication dated 09.08.2018 impugned in this petition
intimated to the ZEO concerned that Mohalla Nabinar could not be considered as a habitation for the purposes of applicability of Government Order
No. 288-Edu of 2009 dated 08.04.2009 and, therefore, he can proceed ahead with the preparation of the select panel at the village level.Â
The petitioners, who had all along been contending that Mohalla Nabinar was a habitation as envisaged under Government Order No. 288-Edu of
2009 dated 08.04.2009 appear not to be happy with the report of the Deputy Commissioner, Poonch and are, therefore, before this Court by way of
this petition.Â
Learned counsel for the petitioners advanced his arguments on the following three points:-
(i) The report of the Deputy Commissioner, Poonch was vitiated as no opportunity of hearing was ever given to the petitioners, as directed by the
Division Bench of this Court.Â
(ii) The report of the Deputy Commissioner, Poonch impugned is factually incorrect, inasmuch, as the Deputy Commissioner, Poonch has failed to
take note of the relevant certificates issued by the Assistant Executive Engineer with regard to the distance and the Block Development Officer with
regard to the population.Â
(iii) The import of Government Order No. 288-Edu of 2009 dated 08.04.2009 was not correctly appreciated by the Deputy Commissioner, Poonch.Â
I have considered the submissions made by the learned counsel for the parties and perused the record.Â
The Division Bench while disposing of LPASW No. 100/2016 had directed the Deputy Commissioner, Poonch to decide whether village Nabinar
was a habitation in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009. The Deputy Commissioner, Poonch was also put under an
obligation to afford an opportunity of hearing to all the candidates including the petitioners herein. The Deputy Commissioner, with a view to take the
aforesaid decision, constituted a Commission consisting of three senior officers of the district. The Commission, as is apparent from its report, visited
the habitation concerned and inquired into the matter from the villagers concerned. The report was submitted by the Commission to the Deputy
Commissioner, Poonch. The Deputy Commissioner, Poonch did not accept the report of the Commission as it is but invited objections from the
aggrieved candidates. Admittedly, the petitioners submitted their detailed objections and even engaged services of a lawyer to argue on their behalf.
The Deputy Commissioner, Poonch after affording full opportunity to the lawyer engaged by the petitioners, ultimately concurred with the report of the
commission and found that Mohalla Nabinar was not a habitation for the purposes of applicability of Government Order No. 288-Edu of 2009 dated
08.04.2009 and, therefore, directed the ZEO concerned to proceed ahead with the selection on the basis of revenue village. The plea of the petitioners
that the report was formulated by the Deputy Commissioner, Poonch in violation of the principles of natural justice is totally misconceived and,
therefore, rejected. From the perusal of the impugned report, it is abundantly clear that ample opportunities were granted to the petitioners to represent
their case which they quite well availed and put up their stand before the Deputy Commissioner, Poonch through a duly constituted attorney, i.e,
Advocate engaged by the petitioners.Â
In that view of the matter, it does not lie in the mouth of the petitioners to say that they were not heard in the matter by the Deputy Commissioner,
Poonch. The other argument of the learned counsel for the petitioners that the Deputy Commissioner, Poonch did not take into consideration the
certificates earlier issued by the Assistant Executive Engineer and Block Development Officer concerned, is also devoid of any substance. There was
no direction issued by the Division Bench to take into consideration the earlier certificates issued by the Assistant Executive Engineer and the Block
Development Officer concerned. Since those certificates were not believed by the Court and, therefore, direction was issued to conduct fresh enquiry
by the Deputy Commissioner, Poonch.Â
The other argument of the learned counsel for the petitioners is that the contours of Government Order No. 288-Edu of 2009 dated 08.04.2009
were not kept in view while appreciating the evidence collected by the Commission with regard to the status of Mohalla Nabinar. It may be stated that
from the perusal of the report of the commission as well as the communication of the Deputy Commissioner, Poonch impugned, it is apparent that both
the Commission as well as the Deputy Commissioner were alive to the provisions of Government Order No. 288-Edu of 2009 dated 08.04.2009. It
was only after it was found that Mohalla Nabinar where the school was located was situated at a distance of less than 01 kilometre from the nearest
Mohalla/Habitation and that its population was less than 300, the decision was taken that Mohalla Nabinar did not qualify to be a habitation in terms of
Government Order No. 288-Edu of 2009 dated 08.04.2009. The plea raised on behalf of the petitioners before the Deputy Commissioner, Poonch that
the population of nearby Mohallas, i.eGayian, Khori and Basni which fall in MohraNabinar, should have been taken into consideration, was correctly
rejected by the Deputy Commissioner, Poonch for the purposes of applicability of Government Order No. 288-Edu of 2009 dated 08.04.2009. The
habitations even if they are constituted in one ward/mohra cannot be clubbed for the purpose of working out the total population for the purposes of
applicability of Government Order No. 288-Edu of 2009 dated 08.04.2009. It is now well settled.
For the reasons stated above, there is no merit in this petition and the same is, accordingly, dismissed.