Shabeena Begum vs Unknown
2022 Latest Caselaw 719 j&K

       HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

                                               SWP No.442/2009
                                               IA No.01/2015
                                               IA Nos. 1801/2010
                                               IA No.588/2009

                                          Pronounced on: 05.05.2022

 Shabeena Begum                               .... Petitioner/Appellant(s)


                                Through:- Mr. O.P.Thakur,Sr. Adv. with
                                          Ms. Pummy Thakur, Adv.

                          V/s

                                                        .....Respondent(s)
 State and others

                                Through:- Mr. K.D.S. Kotwal, Dy. AG


 CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                JUDGMENT

1. The Child Development Project Officer (ICDS) Project, Ramsoo,

vide Advertisement Notice No.DIP/J-625 dated 28.4.2008, invited

applications from the eligible female candidates for engagement as

Anganwadi workers on honorarium basis for Anganwadi Centres in

the different Panch constituencies falling under ICDS Project

(Ramsoo) Ukhral.

2. The petitioner being eligible and belonging to ST category also

applied for the post of Anganwadi worker advertised for Anganwadi

Centre at ward No.1, Mohalla Batroo, Panchayat Halqa, Phagmulla.

3. As per the criteria laid down in the advertisement notice, the

applicant must be a permanent resident of J&K State and also

belonging to the concerned Panchayat in rural area or concerned

ward in urban area where the Anganwadi centre is located. Only

those candidates who are residing in the concerned Panchayat

constituency ward shall be eligible to apply and no qualification ban

for reserved categories was prescribed. The petitioner belonging to

Scheduled Category applied for the said post and along with her

application, she also annexed her residence certificate issued by the

Block Development Officer, Ramsoo. The residence certificates

issued by the Numberdar of Halqa Pogal and Halqa Panchal along

with the residence certificate issued by the Chowkidar of Halqa

Pogal were also submitted.

4. It is contended that along with the petitioner, two more candidates

namely Sakeena Begum (petitioner's sister) and respondent No.5,

Mst. Zaitoon Begum W/O Mohd Rafiq R/O Batroo Phagmula,

Tehsil Banihal, District Ramban also applied for the post of

Anganwadi worker in the said centre. The petitioner appeared before

the Selection Committee and was accordingly interviewed for the

post. The selection list was published on 22.09.2008 in the news

paper, however, the selection for the post of Anganwadi Worker at

Anganwadi Centre, Batroo (ST) was withheld. It appears that the

reason for withholding the post was that the respondent No. 5 had

raised the dispute regarding the residence of the petitioner. The

petitioner immediately thereafter inquired from respondents, who

informed her that an objection was raised by private respondent No.

5 regarding her residence. It is submitted by the petitioner that she

has been informed that Selection Committee had awarded her highest

points, i.e. 22.75, whereas respondent No. 5 had only obtained 20.52

points, respondent No. 3 was given only 18.52 points. The petitioner

thus got the highest points amongst other candidates for being

selected and appointed as Anganwadi worker for Anganwadi Centre,

Batroo (ST) of Panchayat Halqa, Phagmula.

5. The petitioner was, however, informed that the Block Development

Officer, Ramsoo has written a letter, cancelling her residence

certificate. It is urged that without giving her any opportunity of

being heard the concerned Block Development Officer has cancelled

her residence certificate, the same is arbitrary, illegal and is also

violative of principles of natural justice. The petitioner thus seeks a

direction for quashing the letter issued by respondent No. 6 whereby

the residence certificate issued to the petitioner stands cancelled.

The petitioner further seeks a writ of mandamus commanding the

respondent Nos. 1 to 4 and 6 to select and appoint her as Anganwadi

Worker in Anganwadi Centre, Batroo (ST) Panch constituency Ward

No.1 of Panchayat Halqa, Phagmula with all consequential benefits.

6. The contention of the petitioner is that she submitted a certificate

issued by the Block Development Officer, Ramsoo which certified

that she is a resident of Panch Constituency, Batroo, ward No. 1,

Panchayat Phagmulla of Block Ramsoo. This certificate was

submitted by her to the respondents along with her documents. The

respondents, however, informed her that the residence certificate

issued by the Block Development Officer, Ramban stands cancelled.

7. It is stated that despite petitioner's repeated requests the B.D.O,

Ramsoo did not issue the letter whereby her residence certificate has

been cancelled. As per the submission of petitioner, she is the

resident of Panch constituency ward No.1 of Panchayat Halqa,

Phagmula where the said Anganwadi centre is located and thus is

entitled to be considered for the post of Anganwadi Helper in the

area. The respondents without any justification have withheld the

selection and have accepted the letter issued by the B.D.O treating

her residence certificate as cancelled. The Block Development

Officer has cancelled her residence certificate without giving her any

opportunity of being heard.

8. It is stated that petitioner along with her family is living with her

mother as Khana Nasheen daughter and the husband of the petitioner

as Khana Damad. She submits that petitioner has also been clearly

reflected and shown in the voter list for 2002, 2005 and even 2008

and 2006. It is urged by the learned counsel for the petitioner that

respondent No.6, B.D.O, Ramsoo has cancelled the residence

certificate of the petitioner and with held the selection process

without affording an opportunity of being heard to her and also

without associating her husband and family, as such, same is illegal,

arbitrary and violative of principle of natural justice.

9. The official respondents-1, 4 and 6 in their objections, however,

submit that the petitioner is not a resident of the Batroo village, as

such, she was not even eligible to apply much less to be selected for

the post of Anganwadi Worker in the aforesaid centre. They further

submit that the petitioner never submitted documents which are

annexed with the petition in their office. These documents, in any

case, according to them are not a proof of the fact of migration of the

husband of the petitioner from his residence to the present place. The

petitioner has failed to provide any authentic/cogent/mandatory

documentary proof of her husband's migration. According to the

respondents, the petitioner had obtained residence certificate

wrongfully, fraudulently and, therefore, the same was rightfully

cancelled by respondent No. 6 on verification of the actual residence

of the petitioner. The respondents have placed on record the

communication No.778-89 dated 11.02.2009, which states that as per

verification from the record and reported by the field staff the ward

certificate issued in favour of Shabeena Begum w/o Mohd. Youssaf

R/O Batroo Panchayat Panchall has been cancelled. Their further

stand is that the name of the petitioner is found registered in the voter

list of Mohalla Dhanmasta and does not figure in the voter list of

Phagmulla.

10. The respondent No. 5, Mst. Zaitoon Begum in her objections submits

that the petitioner is married to Mohd Yousuf, who is a resident of

Village Dhanmasta and ever since their marriage the petitioner has

migrated to Village Dhanmasta. Respondent No.5 has denied that

husband of the petitioner is a Khana Damad and the petitioner is

Khana Nasheen daughter in Village, Batroo, Phagmula, Ward No.1.

Respondent No.5 in her objections has further submitted that as the

petitioner is from other Village and is trying to usurp the post and is

creating hurdles in the way of replying respondents by manipulating

and forging the record. Respondent No.5 also stated that so called

certificates obtained from Chowkidars and Nambardars are

manipulated and the Block Development Officer, Ramsoo has rightly

cancelled the residence certificate of the petitioner after a thorough

enquiry.

11. This petition involves disputed questions of fact, as such, this court

cannot go into the disputed questions of law and same needs to be

brought to its logical end by the concerned Deputy Commissioner in

terms of Government Order No.07 SW of 2010 dated 18.01.2010,

which provides filing of the appeal by the aggrieved party.

12. The said Government Order provides that whenever any body feels

aggrieved with the selection of Anganwadi Worker or with the mode

and manner of selection of the Hamlet, an appeal shall be preferred

to the Deputy commissioner concerned within 30 days from the date

of selection of Anganwadi Worker or the date of identification of

location of the Hamlet for the setting up of Anganwadi Centre and

the Deputy Commissioner concerned shall dispose of the appeal

within 15 days thereafter from the date of the receipt of the appeal

after conducting an enquiry.

13. Considering the plea raised by the petitioner that she is a Khana

Nasheen daughter and her husband is also Khana Damad and they

are staying in Village Batroo, Ward No.1, Phagmulla, as also

keeping in view the stand of the respondents taken in their the

objections, petitioner is directed to file an appeal before the Deputy

Commissioner, Ramban within 30 days after getting certified copy of

the order projecting her grievance as regards the actual residence,

and the Deputy Commissioner concerned on receipt of the same,

shall hold an inquiry after affording an opportunity of hearing to

the petitioner as also to respondent No. 5. On the basis of inquiry so

to be conducted, the Deputy Commissioner shall pass a speaking

order as regard the actual residence of the petitioner and the same

shall be conveyed to the CDPO, Ramsoo, who shall proceed ahead

with the selection process in accordance with the inquiry report of

the Deputy Commissioner, Ramban.

14. With the aforesaid observations, the writ petition is disposed of.

(Sindhu Sharma) Judge JAMMU 05.05.2022 Ved-Secy Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes