Jammu & Kashmir High Court
Balqees Akhter vs Ut Of J & K Through on 13 October, 2023
Sr. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 23/2023
CM No. 1134/2023
Balqees Akhter W/O Mohd. Shabir .....Applicant(s)/Petitioner(s)
R/O Haji Mohalla, Ward No. 5,
Panchayat Halqa Mangal Narh Upper,
Tehsil Manjakote, District Rajouri
Through :- Mr. A A Khan, Advocate
v/s
1. UT of J & K through .....Respondent(s)
Commissioner/Secretary to Govt.,
Social Welfare Department,
J & K Govt., Civil Secretariat, Jammu/Srinagar
2. Director, Social Welfare Department, Jammu
3. Program Officer, ICDS Project, Rajouri
4. District Social Welfare Officer, Rajouri
5. Child Development Project Officer, Manjakote Rajouri
6. Maryam Kouser D/O Haji Mohd. Amin
W/O Shokat Hussain R/O Panchayat Halqa Galhutti,
Tehsil Manjakote, District Rajouri
Through :- Mr. Ramesh Arora, Sr. AAG for R-1 to 5
None for R-6
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
13.10.2023
(ORAL)
(Sanjeev Kumar J)
1. This intra court appeal is directed against the judgment dated
16.02.2023, passed by a Single Bench of this Court (for short, "the
Writ Court") in SWP No. 2571/2010 titled "Maryam Kouser vs.
State of J & K & Ors." whereby, the Writ Court has disposed of the
writ petition filed by Respondent No. 6 herein and quashed the
engagement order dated 17.08.2010. The Writ Court has
simultaneously directed the Respondent No. 3 also to enquire into
the factum of residence of the Respondent No. 6 herein as it was, at
the time of advertisement and selection within a period of one
month.
2. The impugned judgment of the Writ Court is assailed by the
appellant primarily on the ground that the Writ Court ought not to
have quashed the impugned order dated 17.08.2010 and paved the
way for the ouster of the appellant, who at the time of passing of the
judgment was performing her duties as Anganwari Helper in
Anganwari Centre Haji Mohalla, Ward No. 5, Panchayat Halqa
Mangal Nar Upper, Rajouri and more particularly when the Writ
Court had issued a direction to Respondent No. 3 to enquire into the
factum of residence of Respondent No. 6 herein.
3. Heard learned counsel for the parties and perused the material
available on record.
4. Respondent No. 6, despite presumptive service has not turned up
and therefore appeal as against her is heard in ex parte.
5. The short grievance projected by the appellant in this appeal is that
Respondent No. 6, despite not being the resident of Ward No. 5,
Haji Mohalla of Panchayat Halqa Mangal Nar Upper, Rajouri was
erroneously selected provisionally on the basis of merit obtained by
her in the selection process. This too was objected by the appellant.
Objection raised by the appellant with regard to the residence of
Respondent No. 6 was found tenable by the official respondents and
accordingly, in the place of Respondent No. 6, the appellant came
to be selected and engaged as Anganwari Helper in Anganwari
Centre Haji Mohalla, Ward No. 5, Panchayat Halqa Mangal Nar
Upper, Rajouri. This engagement of the appellant made by
Respondents vide order dated 17.08.2010 was made subject matter
of the challenge by Respondent No. 6 in SWP 2571/2010.
6. The Writ Court considered the entire matter in the light of a rival
case, set up by the parties and came to a conclusion that residence
of Respondent No. 6 was the question of factum and therefore,
required to be determined by holding an enquiry.
7. Learned counsel for the appellant submits that so far as the order of
the Writ Court, directing Respondent No. 3 to conduct an enquiry
into the factum of residence of Respondent No. 6 is concerned, the
appellant may not have any grievance. He however submits that the
Writ Court in all circumstances ought to have allowed the appellant
to continue as Anganwari Helper in the concerned Anganwari
centre till the conclusion of the enquiry and the passing of
appropriate orders by the competent authority thereupon.
8. We find sufficient substance in the submission made by learned
counsel for the appellant. The mere fact that the Writ Court has
directed the Respondent No. 3 to conduct an enquiry into the
factum of residence of Respondent No. 6, lends support to the
argument of learned counsel for the appellant that the question, as
to whether Respondent No. 6 was or was not the resident of the
Ward No. 5, Haji Mohalla of Panchayat Halqa Mangal Nar Upper,
Rajouri, is a question of fact which needs to be determined after
holding an enquiry. Once the Writ Court directed the Respondent
No. 3 to conduct an enquiry to find out the residence of Respondent
No. 6, as it was at the time of issuance of advertisement, it was in
the fitness of things to allow the appellant to continue as Anganwari
Helper till the conclusion of the enquiry and the passing of
appropriate orders by the competent authority.
9. The Writ Court in terms of order impugned has quashed the
engagement of the appellant, which would in turn mean that the
Writ Court has put the Respondent No. 6 back in position without
allowing the enquiry into her residence to be conducted and
completed.
10. For the foregoing reasons, we allow this appeal to the extent that
the direction of the Writ Court to Respondent No. 3 to enquire into
the factum of residence of Respondent No. 6, as it was at the time
of advertisement and selection, is upheld. However, the direction of
the Writ Court contained in Para 13 of the impugned judgment,
quashing the impugned order dated 17.08.2010 is set aside.
11. The appellant herein, who was in position as on the date of passing
of judgment dated 16.02.2023, passed by the Writ Court and has
continued thereafter as per interim direction passed by this Court in
this appeal vide order dated 02.03.2023 shall continue in service till
the conclusion of the enquiry and passing of the appropriate orders
thereupon by the competent authority.
12. Disposed of along with connected CMs.
(Mohan Lal) (Sanjeev Kumar)
Judge Judge
JAMMU
13.10.2023
Manan
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
