Reva Rani vs State Of J&K Through The Secretary ...
2023 Latest Caselaw 65 j&K

                                                                       Sr.No. 02



              HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU

                                                     SWP No. 212/2009
                                                     IA No. 227/2009

                                                     Reserved on :20.10.2022
                                                     Pronounced on :31.01.2023


Reva Rani, Age 42 years, W/o Sh. Rashpal                                ....Petitioner(s)
Singh R/o Ward No. 3, Samba Tehsil and
District Samba.

Through:- Sh. R. S. Thakur Sr. Advocate with
          Sh. Ashwani Thakur, Advocate.

                       V/s
     1. State of J&K through the Secretary Social                     ....Respondent(s)
        Welfare, Government of J&K, Jammu;
     2. Director Social Welfare, J&K, Jammu;
     3. The Selection Committee through
        (a)    Programmed       Officer,     Jammu
        Chairman;
        (b) District Social Welfare Officer, Jammu
        (Member);
        (c) Child Development Project Officer Kot
        Bhalwal (Member Secretary);
     4. Child Development Project Officer
        Integrated Child Development Scheme,
        Samba;
     5. Smt. Radha Gupta W/o Sh. Surinder Sethi,
        R/o Ward No.4, Samba, Tehsil and District
        Samba.

Through:- Sh. Suraj Singh, GA

Coram:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                JUDGMENT

1. Petitioner has invoked the jurisdiction of this Court in terms of Article 226 of the Constitution of India r/w Section 103 of the Constitution of the Jammu & Kashmir for the issuance of writ of (i) Certiorari, to quash the order of Child Development Project Officer, ICDS Project Samba (respondent No.4) No. CDPS/1101-03106 dated 20.04.2006 whereby respondent No.5 has been engaged as an Anganwari Worker, Anganwari Centre Ward No.3, Samba; (ii) Mandamus, directing the concerned respondents to engage the petitioner as

such Anganwari Worker at the said Centre instead; and further directing an action against the concerned for the fraud and misrepresentation committed by respondent No.5 in holding out as a resident of Ward No.3, which to her knowledge was not a fact and securing a permanent resident certificate in her favour on that false representation and by other concerned in the acceptance of the same without verification or deliberately causing a lot of hardship, inconvenience, harassment and loss in terms of money and time to the petitioner and compensation to her.

2. In the petition, petitioner has averred that she being citizen of India and permanent resident of State of J&K is entitled to constitutional, statutory and legal rights guaranteed by the Constitution of India and that of State and the laws made thereunder. That by virtue of an advertisement No. DIP/J-3665 dated 17.02.2005, applications were invited from eligible candidates for engagement as Anganwari Worker for various Anganwari Centres including Anganwari Centre Ward No.3 Samba. That the necessary condition for eligibility as provided in the advertisement is that applicant "must be a permanent resident of J&K State and should belong to/permanently resident in the Panchayat Halqa or Ward (in the case of Towns/Cities) where Anganwari Centre is located, besides, of course, possession of minimum educational qualification of matriculation. That the petitioner fulfilling all the necessary eligibility conditions and being permanent resident of the State permanently residing in Ward No.3 of Samba which needless to say is a town, where the Anganwari Centre for which she sought engagement as Anganwari Worker applied for the said engagement in accordance with the procedure and in compliance of the formalities laid down in the said advertisement. That the selection committee, respondent No.3, considered the candidates for engagement as Anganwari Worker and selected respondent No.5 for the said engagement for Anganwari Centre, Ward No.3, Samba, pursuant to which, respondent No.5 was engaged as Anganwari Worker for the said centre. That respondent No.5 is not the resident of Samba and did not permanently or temporarily reside in the said township until of course she was married to Sh. Surinder Sethi who is resident of the said township but of Ward No.3. That respondent No. 5 hailed from Punjab and was married in Ward No.4 Samba, a few years back after the aforesaid advertisement, she manipulated a permanent resident certificate by misrepresentation showing her to be resident of Ward No.3 by misrepresentation with a view to mislead the concerned authorities and making a false claim to engagement as Anganwari Worker for

Anganwari Centre Ward No.3 Samba. That the said PRC has been issued without verification or deliberately for illegally benefiting respondent No.5 and the officer issuing the said certificate and all others concerned with the enquiry are accountable for the wrong they have committed and are liable for action, the selection committee without going into the question of her residence and her not being eligible for engagement as Anganwari Worker in the said Centre recommended her engagement for the said centre whereas respondent No.4 ordered her engagement accordingly. That Tehsildar Samba held enquiry and made a report to the Deputy Commissioner Samba stating that respondent No.5 had secured engagement on the basis of a false document, he has referred to the documents in his report and concluded that the permanent resident certificate issued on 15.04.2005 was issued at a time when she was not the resident of Ward No.3, she is shown to be a resident of Ward No.4 in the family Ration Card and the voter list and still the PRC issued after the advertisement wrongly mentioned her to be resident of Ward No.3, therefore, the engagement of respondent No.5 cannot sustain, prayer has been made for quashment of impugned order.

3. Respondents 1 to 4 have opposed the petition and in their objections have specifically contended, that in response to the advertisement dated 17.02.2005 the petitioner as well as respondent No.5 including other candidates applied for selection as Anganwari Worker in Anganwadi Centre Ward No.3 Notified Area Committee Samba, that as per criteria the petitioner has secured 36.60 points whereas respondent No. 5 has secured 50.15 points, that initially Smt. Madhu Bala w/o Sh. Vishal Bharti having higher merit points 57.83 was selected but she did not join as such the next meritorious candidate respondent No.5 was selected and engaged vide respondent No.4's Order No. CDPO/S/1101-03/06 dated 20.04.2006 in Anganwadi Centre Ward No.3 Samba and is functioning since her engagement. It is contended that petitioner has filed the instant petition in the year 2009 as such it suffers from laches and delay and hence is liable to be dismissed, that pursuant to the advertisement notice issued respondent No.5 had applied for engagement as Anganwari Worker in Anganwadi Centre Ward No.3 Samba and along with application form she enclosed under process certificate issued by the Naib Tehsildar Samba dated 22.02.2005 which shows that she was already married to Surinder Kumar Sethi and so far as the question of Permanent Resident Certificate the remedy available to petitioner is to challenge the same in the Revision before the Revenue Minister under the provisions of Grant of Permanent Resident Certificate

procedure Act. It is further contended that on the basis of record provided relating to residence and academic qualification the merit of respondent No.5 along with other candidates was evaluated and since respondent No.5 has secured higher merit points she has been selected and engaged for Anganwadi Centre Ward No.3 Samba which at present is functioning in Ward No. 4, even as per merit position four (4) more candidates, namely, (i) Smt. Rita Sharma (W/o Sh. Nagesh Kumar Padha) (ii) Anju Sharma (D/o Sh. Puran Chand), (iii) Sushma Devi (W/o Madan Lal) & (iv) Sarita Rani (W/o Sham Singh) who are higher in merit than the petitioner and, therefore, petitioner has no preferential claim than that of respondent No. 5, prayer has been made for dismissal of the petition.

4. Respondent No.5 has vehemently resisted the petition by contending therein that she being permanent resident of Ward No.3 Samba where the centre was to be opened and now is located and functioning, she being eligible on all counts applied for the post of Anganwadi Worker and in support of her claims she submitted her education qualification and other certificates which in clear terms show that she is resident of ward No.3 (now ward No.4 after delimitation of wards), whereas petitioner who is actually residing in Ward No.6 (now Ward No.3 after delimitation), where already two Anganwadi Centres are functioning, that the ward in which the petitioner is residing is much far away from the centre in which she has been appointed. It is contended that after evaluating the merit of each candidate the official respondents prepared the merit list and she being more qualified and meritorious was selected and recommended for appointment/engagement and accordingly was engaged on 20.04.2006 and joined on the same day and since then is continuously working there, that while working petitioner started mounting pressure by making representation for shifting of the Anganwadi centre to her ward upon which residents of ward No.3 elected Ward Member as well as President of Municipal Committee Samba strongly objected the move of the petitioner, that on any other legal ground muchless any ground taken in the writ petition her selection and engagement cannot be set aside, prayer has been made for dismissal of the writ petition.

5. Sh. R. S. Thakur, learned senior counsel while reiterating the grounds urged in the writ petition for quashment of impugned order, has vehemently argued, that the petitioner fulfilling all the necessary eligibility conditions and being permanent resident of the State, permanently residing in Ward No.3 of Samba which needless to say is a town, where the Anganwari Centre for which she sought engagement as Anganwari Worker, applied for the said engagement

in accordance with the procedure and in compliance of the formalities laid down in the said advertisement, the selection committee-respondent No.3 considered the candidates for engagement as Anganwari Worker and pursuant to the said selection, respondent No.5 was wrongly engaged as Anganwari Worker for the Anganwadi Centre Ward No.3 Samba. It is argued, that respondent No.5 is not the resident of Samba and did not permanently or temporarily reside in the said township, until of course she was married to Sh. Surinder Sethi who is resident of the said township but not of Ward No.3, respondent No. 5 hailed from Punjab and was married in Ward No.4 Samba and few years back after the aforesaid advertisement she manipulated a permanent resident certificate by misrepresentation showing her to be resident of Ward No.3 and making a false claim to engagement as Anganwari Worker for Anganwari Centre Ward No.3 Samba. It is further argued, that the said PRC has been issued without verification or deliberately for illegally benefiting respondent No.5, even the selection committee without going into the question of her residence and her not being eligible for engagement as Anganwari Worker in the said Centre recommended her engagement for the said centre and respondent No.4 ordered her engagement accordingly, whereas, Tehsildar Samba held enquiry and made a report to the Deputy Commissioner Samba stating that respondent No.5 had secured engagement on the basis of a false document by concluding that the permanent resident certificate issued on 15.04.2005 was issued at a time when respondent No.5 was not the resident of Ward No.3, respondent No. 5 is shown to be a resident of Ward No.4 in the family Ration Card and the voter list and still the PRC issued after the advertisement wrongly mentioned her to be resident of Ward No.3. It is vehemently argued that order of the Child Development Project Officer, ICDS Project Samba (respondent No.4) No. CDPS/1101-03106 dated 20.04.2006 whereby respondent No.5 has been engaged as an Anganwari Worker, Anganwari Centre Word No.3, Samba be quashed.

6. Sh. Suraj Singh, learned GA has strongly opposed the writ petition and by recapitulating the grounds averred in his written response has strenuously argued, that as per criteria the petitioner has secured 36.60 points whereas respondent No. 5 has secured 50.15 points, that pursuant to the advertisement notice issued respondent No.5 applied for engagement as Anganwari Worker in Anganwadi Centre Ward No.3 Samba and along with the application form she enclosed under process certificate issued by the Naib Tehsildar Samba dated

22.02.2005 which shows that she was already married to Surinder Kumar Sethi and so far as the question of Permanent Resident Certificate, the remedy was available to the petitioner to challenge the same in the Revision before the Revenue Minister under the provisions of Grant of Permanent Resident Certificate Procedure Act. It is argued, that on the basis of record relating to residence and academic qualification, the merit of respondent No.5 alongwith other candidates was evaluated, and since respondent No.5 has secured higher merit points, viz, 50.15 she was selected and engaged for Anganwadi Centre Ward No.3 Samba which at present is functioning in Ward No. 4, and as per merit position even four (4) more candidates namely (i) Anju Sharma (D/o Sh. Puran Chand) securing 44.10 merit points, (ii) Smt. Ritu Sharma (W/o Sh. Nagesh Kumar Padha) securing 47.28 merit points, (iii) Sushma Devi (W/o Madan Lal) securing 43.02 merit points & (iv) Sarita Rani (W/o Sham Singh) securing 42.71 merit points have higher merit points than that of petitioner who has no better claim than that of respondent No. 5 and other four higher meritorious candidates, prayer has been made for dismissal of the petition.

7. I have heard learned counsel for the parties, gone through their pleadings and have thoroughly scanned the record available.

8. From the perusal of record it is depicted that as per Annexure-R-2, Residence Proof Certificate issued by one Elected Ward Member Ward No.3 (Now Ward No.4) Samba Municipal Committee Samba, respondent No.5-Smt. Radha Gupta is the resident of Ward No.3. Annexure-R-3 is the under process certificate of Tehsildar Samba which also depicts that respondent No.5 is the resident of Ward No.3 Samba. Annexure-R-4 is the Permanent Residence Certificate issued by Deputy Commissioner Samba which demonstrates/establishes that one Surinder Kumar husband of respondent No.5 is the resident of Ward No.3 Samba. Annexure-R-5 is the State Subject issued by the Sub Divisional Magistrate Samba which establishes that respondent No.5 is the wife of Surinder Kumar, resident of Ward No.3 Samba. Aforesaid annexures viz; R-2, R-3, R-4 & R-5 to the response filed by the respondents, have been issued/prepared by the Public Servants in discharge of their official duties, therefore, the entries made in the said documents are the primary evidence regarding their proof which is a relevant fact under Section 35 of the Evidence Act and presumption of truth/correctness is attached thereto. Annexure R-6 (from Page 79 to 82) is the merit list in regard to the selection and appointment of Anwanwadi Workers of Ward No.3 Samba wherein total No. of candidates

are 51, in which petitioner figuring at Serial No. 29 at Page-80 has secured 36.54 points whereas four other candidates figuring at Serial Nos. 17, 24, 34 and 38 namely (i) Anju Sharma D/o Sh. Puran Chand, (ii) Smt. Ritu Sharma W/o Sh. Nagesh Kumar Padha, (iii) Sushma Devi W/o Madan Lal & (iv) Sarita Rani W/o Sham Singh, have secured more merit points as 44.10 points, 47.28 points 43.02 points and 42.71 points respectively, while respondent No.5-Smt. Radha Gupta figuring at Serial No. 22 of the merit list (Annexure R-6) at Page 80 has secured more/higher merit points of 50.15 than that of the petitioner and all other candidates, therefore, having better claim for her engagement as Anganwadi Worker in Anganwadi Centre Ward No. 3 Samba. Even on merit, the petitioner figures at the lowest merit points of 36.54, therefore, has no preferential right to assert her claim for her engagement as Anganwadi Worker in Anganwadi Centre Ward No. 3 Samba.

9. For the forgoing reasons and discussion, the net result is, that the petitioner has failed to make out a case for quashment of the impugned order No. CDPS/1101/03106 dated 20.04.2006 whereby respondent No. 4 has engaged respondent No. 5 as Anganwadi Worker in Anganwadi Centre Ward No. 3 Samba. Instant petition being not maintainable is outrightly rejected and dismissed. Interim direction dated 04.02.2009 shall stand vacated.

10. Disposed of accordingly alongwith connected application(s), if any.

(Mohan Lal) Judge Jammu:

31.01.2023 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No