HC acquits former Horticulture Director in backdoor appointments’ case

Excelsior Correspondent
Srinagar, Dec 28: High Court today acquitted the former Director of Horticulture department G A Dar from the alleged charges of making backdoor appointments in the department as he had made these appointments on the directions of then Horticulture Minister, Abdul Rahim Rather.
The Court of Justice Ali Mohammad Magrey said the appellant Dar is entitled to acquittal. “Appeal succeeds, judgment impugned is set aside. Accused-appellant is entitled to acquittal, so acquitted. Accused-appellant who is at large on bail is discharged of his bail bounds and surety bounds”, Justice Magrey said.
Dar was held accused of having abused his official position as Director Horticulture Kashmir and made backdoor appointments of 121 persons as Gardners/ Orderlies in the Horticulture Department by violating all the norms, rules and regulations exhibiting favouritism at the cost of educated meritorious youth, thereby, shattering their faith in public officers and conferred pecuniary advantage to the appointees.
A case was registered with Police Station, Vigilance Organization, Kashmir on 17.04.2002 in consequence to report appearing in media that the Director Horticulture had made number of illegal appointments of Class-IV employees without adhering to the set procedure and norms.
It was alleged that Dar during his tenure as Director Horticulture from November, 1997 to June, 1998 made 111 appointments against Class-IV posts and also regularized services of 14 daily wagers.
Dar challenged the verdict of Special Court Anti- Corruption by seeking its reversal on the grounds that the he has not committed any illegality but has followed the directions of the concerned Minister of the time.
Dar’s Counsel Advocate Bashir Ahmad Bashir submitted that the appellant had the competence to make appointments against the posts in question and the only thing that can be attributed to the appellant is that he did not follow the procedure for making such appointments which can be a procedural irregularity only and not the criminal misconduct.
He further submitted that the next charge against the appellant that he has abused his official position by appointing these 121 persons is also not proved as none of the prosecution witnesses deposed that appellant has appointed the said 121 persons for extraneous considerations or that any of his relations were among the beneficiaries.
“There is no such allegation also in the prosecution case against the appellant that he appointed these 121 persons for extraneous considerations or that he bestowed any benefit upon his relations through such irregular process of appointment. He would, therefore, submit that in absence of such allegation of extraneous consideration the appellant cannot be said to have abused his official position and the findings returned by the trial court are bad in law”, court recorded the arguments of Bashir.
State counsel, on the other hand, submitted that the points raised by Dar’s Counsel does not prove the innocence of the appellant. He stated that conferring such pecuniary gain, therefore, constituted a dishonest intention and thus comes within the ambit of Section 5(1) (d) of the P. C. Act.
In reply to the query raised by the Court that the appellant has taken the defence of having followed the orders of concerned Minister, the State Counsel, said that the appellant could have easily refused the dictate as it was not mandatory for him to follow such instructions without following the procedure.
Justice Magrey after considering the submissions made by the Counsel for the parties and after perusal of the entire evidence placed on record by the prosecution said the State has launched the criminal prosecution against Dar for having failed to follow the procedure while making the 121 appointments against the posts of Orderlies, Chowkidars and Gardeners etc.
Mentioning the statement of prosecution witness Ghulam Mohammad  Wani deposed that he was unemployed. However, in the year 1998 he was appointed as Gardener in Horticulture Department. He is 10+2, and for securing job, he presented an application before the then MLA Abdul Rahim Rather.
After this, for securing appointment he did not appear in any interview and MLA handed over order to him at his residence. He did not give any bribe to anyone. In cross-examination he deposed, that from 1998, he is performing his duty, and at present he is permanent employee and gets yearly increment. After receiving the order, he had undergone an advance course training in Zainapora. He has no knowledge whether his record has been sent to the centre. Till, he got the employment, he did not meet Director Horticulture.
The Trial Court after considering the overall matrix of the case has convicted the appellant and sentenced him to undergo the simple imprisonment as appointment order bore signature of the then Director. He identified the signature of the Director for the reason that he has worked with him. In cross-examination, he deposed, that he joined training at Zainapora. He got employment on the application which he had presented to his MLA Rather. Rather in those days was Minister-in-Charge of his Department. He did not give any bribe to anyone for securing the job.. Before his employment he did not know Director Dar.
Justice Magrey after examining witnesses said no nexus was found between the appellant and the beneficiaries direct or otherwise. “None of them is neither alleged nor proved to be of his relation, therefore, the charge against the appellant for having obtained pecuniary advantage for himself or for somebody else is just a feeble allegation which cannot stand the test of law”, he said.
“Since the prosecution did not allege appellant of being incompetent to make the alleged appointments or that the said appointments were made against the non-existing vacancies, therefore, the court feels it unnecessary to go into those aspects” reads the judgment.
“However, it would be apt to mention that since neither the competence of the appellant is challenged nor the vacancies are stated to have been filled up against non-existing posts, therefore, the appellant could have, at the most been held to be involved in procedural irregularity which could have been ratified by regularizing the services of the beneficiaries who are otherwise also on rolls, getting all the service benefits”.
Court further added that none of the requirements envisaged for fixing a criminal liability against the appellant are fulfilled in this case and still the conviction is recorded against him. The trial court, very apparently, has landed in error while dealing with this case by fixing a criminal liability against the appellant when, as a matter of fact, there is not an iota of evidence to make appellant liable for such liability.
The overall scenario of the case, Court said, manifestly made it clear that the appellant has been wrongly proceeded against, implicated and convicted on wrong assumptions. “In my considered view the procedural irregularity has mistakenly been taken as criminal misconduct which is not coming forth from anywhere. The appellant appeared to have been miserably prejudiced firstly by the wrong prosecution launched against him and subsequently by the impugned judgment.
Court said one does not understand as to how the trial court has come to the conclusion that criminal misconduct in the present case made out against the appellant and how he distinguished the judgment cited by the defence counsel in support of their case.
“There is no disagreement on the point that corruption has eaten the very vitals of our society and it needs to be dealt with iron hands; however, the courts of law need to take extra care while fastening the criminal liability to avoid wrong implication of an innocent”, Justice Magrey observed.
Court recorded that the whole prosecution case is shrouded in mystery, confusion worst confounded, chain of links totally broken, therefore, on such type of evidence, court is not persuaded to hold that the accused is guilty as the evidence has been totally mis-appreciated.
Total doubtful position of the prosecution case, as narrated by the witness, inspired confidence that the guilt  against the accused is not proved. Thus, the judgment passed by the Trial Court is unsustainable.

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