Yasmeena Jan vs State Of J&K & Ors
2022 Latest Caselaw 657 j&K/2

       HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                      AT SRINAGAR


                                          SWP No. 1054/2012
                                      Reserved On : 09.05.2022
                                      Pronounced On: 21.05.2022


Yasmeena Jan
                                              ......Petitioner(s)
                  Through: Mr.S.R.Khawar, Advocate


                                   Versus
State of J&K & Ors.
                                               .....Respondent(s)

                     Through:   Mr. Sheikh Feroz, Dy. AG for R-1-6.
                                Mr.M.Ashraf Wani, Advocate for R-7.

CORAM: HON'BLE MR JUSTICE M.A.CHOWDHARY, JUDGE

                          JUDGMENT

1. The respondents issued an advertisement notice wherein applications

were invited from eligible female candidates for engagement as

Anganwadi Workers on honorarium basis for different Anganwadi

Centres including Kirmani Mohalla Nowdal, Tral. The petitioner and

respondent no. 7 amongst other candidates, in response to the

advertisement notice filed the application form alongwith all

certificates. After satisfied with the eligibility and merit of the

petitioner, she came to be engaged Angwari Worker for Anganwari

Centre Kirmani Mohalla, vide Order No. CDPO 148 of 2009 dated

15.01.2009 by the respondents/competent authority.

2. The private respondent no. 7 Mahmooda Akhtar challenged the

selection/engagement of the petitioner before this court through writ

SWP No. 1054/12 Page 1 petition bearing SWP No. 13/2009 on the ground that she was more

meritorious than petitioner and is resident of Kirmani Mohalla PL

284-B. The petition came to be disposed of by this Court on

11.08.2011 with a direction to Dy. Commissioner, Pulwama to

enquire into the matter and make recommendations to District

Programme Officer ICDS, Pulwama for further action.

3. In compliance to the directions passed by this court in SWP No.

13/2009 on 11.8.2011, Dy. Commissioner, Pulwama conducted

enquiry and vide his report dated 09.05.2012 held that respondent no.

7 was also local resident of Kirmani Mohalla, in view of her marriage

on 27.04.2008. As a result of this finding, respondent no. 7 admittedly

being more meritorious than petitioner was engaged in place of

petitioner as Anganwari worker for Kirmani Mohalla Anganwari

Centre vide Order No. CDPO/T/012/103-06 dated 18.05.2012, after

cancellation of the appointment of petitioner.

4. Aggrieved of the aforesaid order whereby appointment of petitioner

was cancelled and in her place respondent no. 7 was appointed,

petitioner has assailed the order and prayed quashment thereof,

asserting in the petition on hand that the Dy. Commissioner

(respondent no.3) as alleged without affording reasonable opportunity

to the petitioner held on the basis of Tehsildar's report that the private

respondent had been residing in Kirmani Mohalla. The enquiry has

been conducted unilaterally and respondent No. 3 instead of enquiring

the matter personally relied on the report of Tehsildar, who submitted

that the private respondent was resident of Kirmani Mohalla at the

time of issuance of engagement order and also states that the report

SWP No. 1054/12 Page 2 filed by Dy. Commissioner ( respondent no.3) is based on political

influence, malafides and arbitrariness.

5. The learned counsel for the petitioner states that petitioner's

qualification is 10+2 and has been permanently residing in Kirmani

Mohalla/PL284-B of Nowdal Tral, as such, the engagement order was

issued in her favour as per norms and the petitioner had been

discharging her duties with dedication and honesty and receiving the

honorarium as well and the private respondent at the time of issuance

of the engagement was residing at main town Tral and as per report of

the respondent No. 6, she entered into Nikha with one Bilal Ahmad

Wani on 27.4.2008, which is clear manipulation and fabrication, just

to get engagement as Anganwadi Worker and to defeat the rights of

the petitioner. It is also submitted that Bilal Ahmad Wani husband of

the respondent no.7, was not the resident of Kirmani Mohalla Pl 284-

B which is evident from the electoral roll and the report of Tehsildar.

6. It is argued that the recommendations made by respondent no. 3 is

against the facts, as the reports submitted by Tehsildar and BDO

clearly indicate that at the time of engagement of the petitioner on

15.01.2009 the private respondent was not residing in the Kirmani

Mohalla Nowdal Tral and all the documents like Ration Card,

Electricity Bill annexed with the objections submitted by the private

respondent show that these documents have been issued in the year

2010 which again clearly shows that neither private respondent nor

her husband were residents of Kirmani Mohalla Nowdal Tral when

the advertisement for the said post was issued.

SWP No. 1054/12 Page 3

7. The official respondents have filed objections wherein it is stated that

the private respondent challenged the selection of petitioner before

this Court in SWP No. 13/2009 on the grounds that she was more

meritorious and belongs to hamlet Kirmani Mohalla. The petition was

disposed of by this court with directions to Dy. Commissioner,

Pulwama to look into the matter and make recommendation to District

Programme Officer ICDS, Pulwama for taking further action. In

compliance to the Court directions the enquiry was initiated into the

matter. The Tehsildar and BDO Tral were directed by the Dy.

Commissioner to proceed on spot in order to ascertain the residence of

the petitioner herein as well as private respondent. The Tehsildar

submitted his report to the Dy. Commissioner and in terms of the said

report the private respondent herein has been shown to have been

residing in Kirmani Mohalla. The Tehsildar recorded the statements of

the locals, the Nikah Nama and the electric bills were also collected

from the private respondent. Besides this the report of the BDO, Tral

dated 24.08.2011 reveals that the private respondent herein resides in

Kirmani Mohall and the house is registered in the Punch constituency

No. PL/156/II. The Dy. Commissioner after perusing the reports of

the Tehsildar and the BDO Tral alongwith the material placed on

record, disposed of the appeal filed by the private respondent herein

and passed order dated 09.05.2012 the operative portion of which

reads as under:

"In view of foregoing reasons and observations, it is concluded that the appellant/petitioner was entitled to the post in dispute. As such, the respondent No. 5 is advised to consider the petitioner for the said post."

SWP No. 1054/12 Page 4

8. It is also stated in the objections that after enquiry report dated 09-

05-2012 passed by Dy. Commissioner, Pulwama, the respondent No.5

had issued Order No. CDPO/012/103-06 dated 18.05.2012, wherein

the engagement of the petitioner was cancelled and the private

respondent was engaged. The respondents resisted the allegations

against the respondents-department that the recommendations made

by respondent No. 3 i.e. Dy. Commissioner are based on political

influence but the same had been issued after conducting thorough

enquiry through his field functionaries.

9. Respondent No. 7 have filed objections stated therein that on 27th of

April 2008, the respondent no. 7 was married with one Bilal Ahmad

Wani who is the resident of Kirmani Mohalla in Nowdal Tral isthus

eligible in terms of the notification and she was considered and was

having highest merit but in order to deprive her from the post of

Anganwardi Worker which was wrongfully submitted that she is not

the resident of Kirmani Mohalla and belongs to some other place. It is

also stated that the voter list of which mention is made is fabricated

and false document but as a matter of fact the Village Level Worker

has reported to the BDO that she lives in the Kirmani Mohalla but

because of illegal and extraneous consideration no action was taken

by the BDO who was the member of the selection committee and the

engagement order was passed in favour of the petitioner which was

challenged by the respondent no. 7 in SWP No. 13/2009 which was

disposed of with direction to Dy. Commissioner, Pulwama to hold an

enquiry and give sufficient opportunity to the contesting parties to

project their claim. In compliance to the direction passed by the court

SWP No. 1054/12 Page 5 an enquiry was initiated, summons were issued to the parties who

caused their appearance before the Dy. Commissioner in person as

well as through their counsel. The report was also sought from

Tehsildar and BDO Tral and other documents were entertained while

passing the order in terms of the order passed by Court in SWP No. 13

of 2009. After considering the documents/report received from

Tehsildar and BDO Tral the finding has been recorded by the Dy.

Commissioner that respondent No. 7 was the resident of Kirmani

Mohalla at the time of selection and at present is the resident of said

Mohalla. Since the Dy. Commissioner is vested with the powers and is

acting as a quasi judicial body and has to rely upon the documents

pleadings and law while conducting enquiry and record finding in the

enquiry.

10. It is further submitted that the petitioner was illegally engaged as an

Anganwadi Worker by the official respondents, the Court in order to

determine the factual position thought it proper to get the enquiry

conducted by the Dy. Commissioner and on his recommendations

appropriate orders were passed. The ICDS Pulwama/Shopian had

directed the Child Development Project Officer ICDS Tral to

implement the order in letter and spirit and as a matter of fact the

official respondents accepted the order passed by the Dy.

Commissioner, the petitioner has not preferred any revision or

challenged the said order before proper forum. Dy. Commissioner,

Pulwama has found that answering respondent, entitled to the post of

Anganwadi Worker in Kirmani Mohalla Nowdal Tral, as such the

termination has to follow and private respondent no. 7 was

SWP No. 1054/12 Page 6 engaged/appointed from the date petitioner was appointed and she is

entitled to honorarium which she has been wrongfully deprived and

denied. Dy. Commissioner has considered the relevant documents

pleadings and law while passing the order and the order passed by him

is reasoned one.

11. Pursuant to the directions of this court passed in writ petition SWP

No.13/2019 the Dy. Commissioner, Pulwama conducted an enquiry

concluding that respondent no.7 herein having been married to one

Bilal Ahmad Wani on 27.04.2008 was deemed to be resident of

Kirmani Mohalla Nowdal Tral. The Dy. Commissioner thus held the

petitioner i.e. respondent no. 7 (herein) to be entitled to the post in

dispute and it was recommended that she be considered for the said

post. Following outcome of the enquiry report and the

recommendation therein the Child Development Officer ICDS Tral

vide order dated 18.5.2012 cancelled the engagement of petitioner

with immediate effect and respondent No. 7 ( herein) was re-engaged

as Anganwadi Worker at Anganwadi Center Kirmani Mohalla

NowdalTral on honorarium basis.

12. Petitioner has assailed the enquiry report of Dy. Commissioner and

also the engagement order passed in favour of respondent no. 7. The

Govt. of J&K vide Govt. Order NO. 07-SW of 2010 dated 18.01.2010

had laid down criteria for making selection of Anganwadi

Worker/Helper which inter-alia provides that whenever anybody feel

aggrieved with the selection of Anganwadai Worker/Helper or with

the mode and manner of selection of the hamlet for setting up of

Anganwadi Centre, an Appeal shall be preferred to the Dy.

SWP No. 1054/12 Page 7 Commissioner concerned within 30 days from the date of selection of

Anganwadi Worker/Helper or the date of identification of location of

the Hamlet for the setting up of Anganwadi Centre. It has been further

stipulated that in case the order made in the Appeal does not satisfy

the aggrieved person(s), a Revision shall lie with the Divisional

Commissioner concerned, within 15 days from the date of passing of

the order by the Dy. Commissioner concerned who have been further

obligated to pass an order within one month from the date of the

receipt of the revision petition. The order thus provides for an

alternative and efficacious remedy to the aggrieved person. The

petitioner herein instead of choosing that forum for seeking revision

has preferred this writ petition.

13. In the considered opinion of this court by invoking the writ

jurisdiction, evidence cannot be re-appreciated to reverse finding of

fact, recorded during enquiry by a statutory authority and even if upon

re-appreciation, another view is possible, this court under writ

jurisdiction cannot hold different and contrary fact finding to the

report submitted by a designated authority .

14. A Division Bench of this court in a case titled Naseema Irshad vs.

State of J&K & Ors. ( LPASW No. 235/2017) decided on 28.11.2017

held that this court cannot sit in appeal against the findings of fact

recorded by a Committee . The same view had been taken by another

Division Bench of this court in SWP NO. 1739/2016 titled Imtiaz

Hussain Vs. State of J&K & Ors.

15. Having regard to the aforestated factual background of the case and

the legal position, this court cannot give contrary fact finding to the

SWP No. 1054/12 Page 8 report submitted by the Dy. Commissioner, Pulwama holding that the

respondent No. 7 (herein) being resident of the locality on the strength

of marriage with a local of the hamlet as on 27.04.2008 the last date

for filing of application form, was entitled to be considered for

engagement as Anganwadi Worker for Anganwadi Centre of Kirmani

Mohalla Nowdal Tral. Respondent No. 7 admittedly was more

meritorious than the petitioner, therefore, she being eligible to the

candidature was well within her rights to be engaged as Anganwadi

Worker being more meritorious than the petitioner.

16. For the aforesaid reasons and observations hereinabove, it held that

the respondent No. 7 being more meritorious than the petitioner and

also being local resident of the locality having Anganwadi Centre

Kirmani Mohalla Nowdal Tral, was entitled to be engaged as

Anganwadi Worker. The impugned order(s) thus cannot be disturbed

by this court. The writ petition being devoid of any merit and

substance is hereby dismissed. Interim direction, if any, shall stand

vacated.

SRINAGAR 21.05.2022 ( M.A.CHOWDHARY) JUDGE Mujtaba

SYED MUJTABA HUSSAIN 2022.05.24 01:51 SWP I attest to the No. 1054/12 accuracy and Page 9 integrity of this document