Meema Begum vs State Of Jk & Ors
2023 Latest Caselaw 982 j&K/2

                                                               Sr. No. 11
                                                               Suppl. List. 1

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                              LPA No. 103/2023

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

Through:    Mr. Mir Umar, Adv.

                                      Vs.
State of JK & Ors.                                               ...Respondent(s)

Through:    Mr. Rais-ud-Din Ganai, Dy. AG for 1 to 5
            Mr. M. A.Wani, Adv. for 6.
CORAM:

           HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
           HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
                                 ORDER

19.08.2023

1. This intra-court appeal by the appellant is directed against the judgment dated 24th May 2023 passed by learned Single Judge of this Court ["the writ court"] in SWP No. 1046/2013 titled Mst. Nahida Begum vs. State of JK & Ors.

2. Before we advert to the grounds of challenge urged by Mr. Mir Umar, learned counsel for the appellant, we deem it appropriate to set out few facts which are germane to the disposal of the controversy raised in this appeal.

3. With a view to operationalize and give effect to expansion programme of Anganwadi Centres Phase II, the Child Development Project Officer, ICDS, Wavoora vide his advertisement notification dated 12th October 2009 invited applications on prescribed pro-forma from eligible candidates for engagement as Anganwadi Workers on honorary basis for various Anganwadi Centres including an Anganwadi Centre located in Mir/Sheikh Mohalla falling in Ward No. 6 of Village Panchayat, Kanthpora. Simultaneously, with the engagement of Anganwadi Workers, the process was set in motion to engage Anganwadi Helpers on honorarium basis. Although there is no specific notification issued in this behalf on record, yet it seems that

on the basis of information supplied by the Office of CDPO concerned, the appellant herein as well as respondent No. 6 submitted their applications and sought consideration for engagement as Anganwadi Helper in the centre concerned.

4. The process of selection culminated into engagement of appellant as Anganwadi Helper for Anganwadi Centre Mir/Sheikh Mohalla. The CDPO/ICDS Project Wavoora issued a formal order of engagement of the appellant vide his No. CDPO/ICDS/Wav/Sel/10/72-75 dated 5th April 2010. From the reading of the order of engagement, it also transpires that the sanction for engagement of the appellant as Anganwadi Helper was accorded by the Convener, Block Level Selection Committee Kupwara (District Social Welfare Officer Kupwara) vide his endorsement No. DSWOK/Sel/AWH/10/222-24 dated 09.01.2010 which means that the process of selection for engagement of Anganwadi Helper in question was set in motion much prior to 09.01.2010. Be that as it is, the respondent no. 6 feeling aggrieved of her exclusion and engagement of the appellant as Anganwadi Helper filed SWP No. 455/2011. The said writ petition was disposed of on the motion hearing date without any notice to the respondents in terms of order dated 9th March 2011. The official respondents were directed to consider the representation made by the respondent No. 6 against the engagement of the appellant and pass an appropriate order after providing oral hearing to both the sides.

5. In compliance with the judgment dated 9th March 2011 supra, the Director, Social Welfare Kashmir considered the grievance of the respondent No. 6 as projected in the representation and disposed of the same vide its order bearing No. 678 DSWK of 2011 dated 26.12.2011. The Director, found the grievance raised by the respondent No. 6 against the engagement of appellant devoid of any merit.

6. The allegation of respondent No. 6 that at the time of engagement, the appellant was not Middle Pass and, therefore, ineligible to be engaged as Anganwadi Helper was rejected on the ground that as per the selection norms in vogue at the time of making selection, there was no specific educational qualification prescribed for engagement as Anganwadi Helper. The Director also found the allegation of the

respondent No. 6 that the appellant was APL category candidate baseless. It was found that the appellant was possessing AAY category Ration card.

7. Feeling aggrieved by the order of Director dated 26.12.2011, the respondent No. 6 filed another petition i.e., SWP No. 1046/2013. The impugned order of consideration passed by the Director, Social Welfare as also the engagement of the appellant as Anganwadi Helper was assailed primarily on the following grounds:-

(1) That the appellant was illiterate and not possessing the qualification of Middle and, therefore, ineligible to be engaged as Anganwadi Helper.

(2) That as per the norms laid down by the Government vide order No. 07-SW of 2010 dated 18.01.2010, the minimum qualification prescribed for the engagement as Anganwadi Helper was Middle.

(3) That the appellant was holding APL Ration Card, whereas, respondent No. 6 (the writ petitioner) was a candidate belonging to BPL Category and, therefore, the respondent No. 6 had a priority claim for engagement as against the appellant.

8. The writ petition was opposed both by the official respondents as well as by appellant and the same came to be allowed by the writ court vide judgment dated 24th May 2023 impugned in this appeal. The writ court agreed with the contention of respondent No. 6 that as provided under Government Order No. 07-SW of 2010 dated 18.01.2010 as also Circular/instruction issued in the year 2006, the qualification prescribed for Anganwadi Helper was Middle pass and, therefore, the appellant was not eligible. The writ court accordingly allowed the writ petition and quashed the engagement of appellant as Anganwadi Helper with a further direction to the respondent No. 2 to revisit the matter and pass orders considering the case of the petitioner for engagement as Anganwadi Helper.

9. It is this judgment of the writ court which is assailed before us by the appellant.

10. Having heard learned counsel for the parties and perused the material available on record, we are of the considered opinion that the

judgment passed by the writ court is neither sustainable on facts nor on law and, therefore, deserves to be set-aside.

11. Indisputably, the process of selection for filling up the position of Anganwadi Helper for the Anganwadi Centre Mir/Sheikh Mohalla was set in motion before 09.01.2010. We are saying so as the approval for engagement of the appellant as Anganwadi Helper was accorded by the Selection Committee headed by District Social Welfare Officer on 09.01.2010. If that be the admitted position, the norms of selection which were in vogue prior to the issuance of Government Order of 2010 were applicable to the selection in question.

12. In these circumstances, the question arises as to what were the norms and what was the qualification prescribed for the position of Anganwadi Helper as on the date the selection process in question was set in motion which culminated into issuance of engagement order in favour of the appellant.

13. Learned counsel for the appellant places reliance on the circular issued by the Principal Secretary to Government, Social Welfare Department bearing No. SW/ICDS/133/08 dated 24th June 2008. From reading of the Circular aforesaid, it clearly transpires that the Circular was meant to lay down instructions/guidelines for engaging Anganwadi Helpers under Phase II. The circular provided the following guidelines:-

(i) The candidate shall be in the age group of 18045 years.

(ii) The candidate shall be a local from the same Panch.

Constituency/Ward where Anganwadi Centre is located.

(iii) Preference shall be given to a lady who belongs to BPL Family.

(iv) Preference shall also be given to a widow/divorcee and orphan with meager source of sustenance.

Selection will be made by concerned District Social Welfare Officer and Child Development Project Officer.

14. A bare look at the circular would indicate that the official respondents did not provide any specific educational qualification for Anganwadi Helper. The plea of the respondent No. 6 which has found favour with the writ court that the Circular dated 24.06.2008 was not in supersession of the earlier circulars on the subject and, therefore, should be read to provide additional eligibility conditions is without

any substance and cannot be accepted. The earlier circular bearing No. DIPK: 761 dated 7th May 2006 which laid down eligibility conditions and criteria of selection to the post of Anganwadi Helper does not only indicate the educational qualification but also provides the age requirement as also the preference to be given amongst the candidates seeking consideration. We could have accepted the argument of learned counsel for the respondent No. 6 had it been a case of adding one or two new eligibility conditions. The Circular of 2008 though does not specifically mentions that it is issued in supersession of the earlier circulars but having regard to its contents, the only inescapable conclusion that one would reach at is that it superseded all earlier guidelines and instructions on the subject and was meant specifically to lay down eligibility conditions and the selection criteria for engagement of Anganwadi Helpers for the Anganwadi Centres sanctioned under Phase II. There were no further instructions or circulars between 24.06.2008 and the Government order dated 18.01.2010. That being the clear position emerging from reading of two circulars and the Government Order above mentioned, it can be safely held that it was circular dated 24.06.2008 that was in vogue and holding the field on the date the process of selection was initiated and the approval for the engagement of the appellant was granted by the competent authority.

15. We, therefore, agree with the Director, Social Welfare Kashmir that at the relevant point of time when the instant selection process was initiated and the selection of appellant was approved on 09.01.2010, the norms laid down in the Circular dated 24.06.2008 were applicable and there was no educational qualification prescribed for engagement as Anganwadi Helper. That apart, we cannot lose sight of fact that even respondent No. 6, who has launched a scathing attack on the eligibility of the appellant, was herself not a Middle Pass. She qualified her Middle Class only in the year 2013. A certificate in this regard has been placed on record by the appellant and the said position could not be rebutted by the respondent No. 6 by providing any contrary proof.

16. The plea of respondent No. 6, which was neither raised nor has the writ court dealt with, but was urged vehemently by Mr. Wani, learned

counsel appearing for respondent No. 6 that respondent No. 6 being a candidate belonging to BPL Family was entitled to preference over the appellant, who as per the respondent No. 6 was a candidate belonging to APL Family, is also fallacious. It is on record and is also specifically mentioned in the consideration order passed by the Director, Social Welfare that the appellant belongs to AAY [Antyodaya Anna Yojana] which is admittedly and clearly a category below the BPL [Below Poverty Line].

17. It is not the case pleaded by the respondent No. 6 anywhere that the appellant and the respondent No. 6 were having same merit in selection and, therefore, the respondent no. 6 being a BPL candidate was entitled to preference. In the absence of specific pleadings in this regard raised before the writ court, we cannot entertain this plea and embark upon an enquiry to find out as to what was the merit of the appellant as well as respondent No. 6 in the selection process. The appellant has been in position as Anganwadi Helper since April 2010 i.e., for the last more than 13 years and in the absence of a cast iron case demonstrated by the respondent No. 6, such engagement at this point of time need not to be interfered with. Writ court has not considered all these aspects in proper perspective and has thus landed in error by allowing the writ petition and directing the cancellation of engagement of appellant.

18. For all these reasons, we find merit in this appeal and the same is accordingly allowed. The judgment impugned dated 24 th May 2023 passed by the writ court is set-aside. The official respondents in particular Director, Social Welfare Kashmir, the District Social Welfare Officer, Kupwara and CDPO Wavoora are directed to put the appellant back in position within a period of two weeks from the date a copy of this judgment is served upon the aforesaid respondents.

19. The appeal is allowed.

           (RAJESH SEKHRI)                       (SANJEEV KUMAR)
                    JUDGE                                 JUDGE
SRINAGAR:
19.08.2023
Altaf

              Whether approved for reporting?        Yes/No