Jammu & Kashmir High Court - Srinagar Bench
Rayeesa Nabi vs State Of J&K And Ors on 30 October, 2024
Bench: Sanjeev Kumar, Puneet Gupta
Serial No. 09
Regular Cause List
HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 227/2023 in
SWP No. 2505/2011
CM No. 6672/2023
Rayeesa Nabi
... Appellant(s)
Through: -
Mr Bilal Ahmad Malla, Advocate
V/s
State of J&K and Ors.
... Respondent(s)
Through: -
Mr Abdul Rashid Malik, Sr. AAG with
Mr Younis Hafiz, Assisting Counsel.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Puneet Gupta, Judge
(ORDER)
30.10.2024
Sanjeev Kumar-J:
01. Impugned in this appeal, filed under Clause 12 of the Letters
Patent, is an Order and Judgment dated 31st of August, 2023 passed by the
learned Single Judge of this Court (hereinafter referred to as "the Writ
Court") in SWP No. 2505/2011 titled "Rayeesa Nabi v. State of J&K and
Ors.", whereby the Writ Court has dismissed the Writ Petition of the
Appellant herein.
02. The short question that arises for determination in this appeal
is whether the Respondent No.6, who has been engaged as Anganwadi
Worker for Anganwadi Centre Tonger Mohalla, Village Khumriyal, District
Kupwara, was actually residing in the hamlet where the Anganwadi Centre
in question is located on the date of submission of the application form.
LPA No. 227/2023 in
03. Mr Bilal Ahmad Malla, the learned Counsel appearing for the
Appellant, submits that no enquiry worth the name was made by the CDPO
concerned to find out the actual residence of the Respondent No.6 and she
was erroneously considered, despite the fact that she was not the resident of
the hamlet concerned, on the ground that she was Matriculate and more
meritorious than the Appellant herein. It is further submitted that feeling
aggrieved by the selection of the Respondent No.6 herein, the Appellant
approached the Deputy Commissioner, Kupwara by way of an appeal, but
the Deputy Commissioner dismissed the appeal relying solely on some
factual report submitted by the CDPO. The learned Counsel for the
Appellant further contended that the report of the CDPO was not conclusive
with regard to the factum of residence of Respondent No.6.
04. Having heard the learned Counsel for the parties and perused
the material on record, we are of the concerned opinion that the issue
involved for determination in this appeal has not been addressed correctly
by the Deputy Commissioner, Kupwara (the Appellate Authority) in right
perspective. In the appeal filed before the Deputy Commissioner, the
Deputy Commissioner, having regard to the nature of dispute involved,
ought to have constituted a committee of Officers other than CDPO to hold
an enquiry to find out the residence of both the Appellant as well as the
Respondent No.6 and, accordingly, proceeded to decide the appeal. This
has not happened in the case. The Writ Court has not taken this aspect of
the matter into consideration and has concluded against the Appellant that
the inquiry conducted by the Deputy Commissioner was conclusive in
nature and did not call for any interference by the Writ Court.
05. For the aforesaid reasons, the present appeal is allowed on the
i. The impugned Order and Judgment passed by the Writ
Court as well as the one passed by the Deputy
Commissioner, Kupwara are set aside;
LPA No. 227/2023 in
ii. The matter is remanded to the Appellate Authority (the
Deputy Commissioner, Kupwara) to conduct de novo
proceedings in the matter. The Deputy Commissioner
shall constitute a Commission headed by an Officer not
below the rank of Assistant Commissioner, Revenue to
hold an enquiry to find out the actual and physical
residence of the Appellant as well as the private
Respondent;
iii. Based on such enquiry findings of the Commission, the
Appellate Authority shall proceed to dispose of the
appeal;
iv. Needless to say, if upon enquiry, it is found that the
Appellant as well as the Respondent No.6 are residents
of the hamlet concerned, the Order of engagement shall
be issued in favour of the Respondent No.6, who is
Matriculate and more meritorious than the Appellant,
subject to completion of all other formalities in this
behalf. However, if on enquiry, it is found that the
Respondent No.6 is not the resident of the concerned
hamlet, notwithstanding that the Respondent No.6 is a
Matriculate and more meritorious than the Appellant,
the Order of engagement shall be issued in favour of
the Appellant herein, subject to completion of all other
formalities required in this behalf;
v. Both the parties shall appear before the Deputy
Commissioner, Kupwara, upon receipt of notice from
the Deputy Commissioner;
vi. The proceedings shall be concluded by the Deputy
Commissioner within a period of four months from the
date copy of this Order is served upon it; and
vii. Till the Deputy Commissioner passes appropriate
orders on the merits of the case and in accordance with
LPA No. 227/2023 in
law, status quo, as it exists today, with regard to the
position in question shall be maintained.
06. Letters Patent Appeal is disposed of on the above terms, along
with the connected CM(s).
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
SRINAGAR
October 30th, 2024
"TAHIR"
