Gulshan Bano vs Social Welfare (State ...
2023 Latest Caselaw 1296 j&K/2

    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                                     Reserved on: 25.5.2023
                                                  Pronounced on: 09.10.2023

                              SWP 1153/2009

Gulshan Bano

                                                     ... Petitioner/Appellant(s)
Through: Mr. M. Iqbal Dar, Advocate

                       V/s
Social Welfare (State Government)
                                                             ... Respondent(s)
Through: None

CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                             JUDGMENT

1. This is a writ petition of 2009 filed by the petitioner invoking the writ

jurisdiction of this court under article 226 of the Constitution of India

for issuance of a writ of Certiorari and a mandamus with respect to

selection matter pertaining to Anganwari Worker for Anganwari Centre

Guroora, Dar Mohalla, falling in ward No. 6 under khana nos. 158-197

for which the respondent 5 - Kounsar Nabi daughter of Ghulam Nabi

Dar resident of Guroora, Bandipora is stated to have been engaged and

appointed pursuant to issuance of a select list by ICDS Project

Bandipora by CDPO Bandipora published in the newspaper Rising

Kashmir dated 08.8.2008.

2. The petitioner's case is that she being a resident of village Guroora

falling under khana no. 162 and possessing requisite eligibility had

applied for the engagement in response to advertisement issued by

Child Development Project Officer (CDPO) ICDS Project Bandipora. It

is pleaded in the writ petition that petitioner was expecting to be

engaged as such but as the expected engagement of the petitioner did

not happen so the petitioner approached the Civil Court Sub Judge,

Bandipora, with a civil suit filed on 11.7.2008 in which the defendants

were the officials concerned who are said to have assured the petitioner

that since her grievance is genuine as such that would be redressed by

issuance of an appropriate order which made the petitioner to withdraw

the civil suit so filed by her.

3. It is pleaded that the concerned officials made a U-turn with respect to

the assurance given to the petitioner when the petitioner came across

with selection list as published in the newspaper Rising Kashmir dated

08.8.2008 which led the petitioner to make a representation to the

respondents concerned questioning the engagement of the respondent 5

- Kounsar Nabi and sought the deletion of her name from the select list

so as to accommodate the petitioner for engagement as Anganwari

Worker.

4. It is in this set of facts that the petitioner came forward with the

institution of the present writ petition on 25.8.2009 after a period of one

year from the date of publication of the select list in the newspaper

Rising Kashmir on 8.8.2008 by which time respondent 5 is stated to

have been engaged and appointed.

5. The respondent 5 has appeared in the case by submitting her

objections/replies to the writ petition denying the allegations made in

the petition with respect to her i.e. respondent 5's residential status in

the context of ward No. 6.

6. On the other hand, the petitioner at her end came forward with a

supplementary affidavit in response to the reply affidavit filed by

respondent No. 5. In her supplementary affidavit the petitioner

reiterated that the selection of respondent No. 5 Kounsar Nabi was

without following rules and regulations on the subject matter and that

the merit-wise position of the petitioner as against the respondent No. 5

was better with 46.53 points as against 40.90 points of the respondent

no. 5.

7. On behalf of the official respondents, reply has also been filed wherein

the allegations made in the writ petition have been denied. With

reference to the fact of withdrawal of the civil suit by the petitioner on

3.9.2008, a disclosure has been made that against said withdrawal the

petitioner had sought the review the civil court of Sub Judge Bandipora

which was denied in terms of order dated 16.7.2009.

8. It is in the light of the facts and circumstances of the case that

adjudication of the present writ petition is to be accorded.

9. This court finds itself in a state of surprise that the petitioner has named

respondent 5 as Kounsar Nabi daughter of Ghulam Nabi Dar having

been selected and engaged for this purpose. The reference is made to

the select list of ICDS Project Bandipora as issued by CDPO Bandipora

published in Rising Kashmir dated 8.8.2008. A perusal of the said

select list at serial No. 32 for Dar Mohalla Guroora Ward No. 6, the

name of candidate figuring in the select list is Arif Kusar with the

parentage of Gh. Nabi Dar and residentship of Dar Mohallah and merit

position of 40.90 points. This court is at a loss to reconcile with the

fact that if in the select list the name of the selected candidate is Arif

Kusar and in that regard even the appearing respondent No. 5 has

annexed the documents bearing her particulars that mention her name

as Arifa Kusar daughter of Gh. Nabi Dar then wherefrom the petitioner

has picked up the name Kounsar Nabi as respondent No. 5. This is

reflective of the fact that the petitioner has ventured to file the writ

petition without any seriousness on her end and the litigation was

resorted only for the sake of it.

10. Be that as it may, in the writ petition the petitioner has concealed the

fact that after withdrawal of her civil suit she had gone for a review

with respect to the withdrawal of her suit and which review was

dismissed in July 2009 as is borne out from the reply of the official

respondents.

11. It, thus, becomes evident that the one year gap between the publication

of the select list in August 2008 and filing of the writ petition in August

2009 is because of the fact that the petitioner was engaged in the civil

suit, its withdrawal and its review. In case the selection of respondent

no. 5 was so misconceived and unwarranted then the petitioner should

have lost no time in approaching this court with a writ petition but

instead the petitioner approached the civil court and wasted time on her

sweet will for which the consequence has to be suffered by none else

than the petitioner herself. Otherwise also, the petitioner has in the writ

petition assailed the engagement of respondent No. 5 primarily on

account that she was not a resident of khanas from 158 - 197 and not

on the point of merit position whereas in the supplementary affidavit

the petitioner switched over to the merit position to assail the selection

of respondent No. 5 - Kounsar Nabi meaning thereby the petitioner

knew that the respondent No. 5 was the resident of khana, which was

eligible to apply for the selection.

12. Thus the petitioner is blowing hot and cold in her case upon which this

court cannot act to offset the selection and engagement of the selected

and engaged Arifa Kusar daughter of Gh. Nabi Dar who is stated to be

respondent no. 5. As such this writ petition is meritless and deserves to

be dismissal and is accordingly dismissed.

(RAHUL BHARTI) JUDGE Srinagar 09-10-2023 N Ahmad

Whether the order is speaking: Yes/No

Whether the order is reportable: Yes/No