Jammu & Kashmir High Court - Srinagar Bench
Mst. Fehmida vs State Of J&K And Ors on 24 February, 2025
Bench: Sanjeev Kumar, Puneet Gupta
Serial No. 22
Supplementary-1 Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPASW No. 187/2015
CM No. 1642/2020
Dated: 24th of February, 2025.
Mst. Fehmida
... Appellant(s)
Through: -
Mr Hilal Ahmad Wani, Advocate.
V/s
State of J&K and Ors.
... Respondent(s)
Through: -
Mr Ilyas Nazir Laway, Government Advocate for R-1 to 5; and
Mr N. A. Beigh, Senior Advocate with
Mr Irfan Rasool, Advocate for R-6.
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
Hon'ble Mr Justice Puneet Gupta, Judge
(JUDGMENT)
Sanjeev Kumar-J:
01. This intra Court appeal arises out of an Order and Judgment
dated 27th of September, 2015 passed by the learned Single Judge of this
Court ("the Writ Court") in SWP No. 26/2012 titled "Mst. Mehmooda v.
State of J&K and Ors.", whereby the Writ Court has allowed the Writ
Petition filed by the Respondent No.6 and quashed the Order dated 20 th of
December, 2011 passed by the Deputy Commissioner, Ganderbal, the
Respondent No.3 herein, as also the Order passed by the Divisional
Commissioner, Kashmir dated 28th of December, 2011.
02. The Respondent No.5, vide advertisement notification bearing
No. DIPJK/9184 dated Nil, issued in the year 2010, invited applications for
engagement of Anganwadi Helpers in 22 different Anganwadi Centers of
Block Lar, which included the Anganwadi Centre Khawajabagh, Kondabal,
Ganderbal, falling in revenue village Yangoora (B). The advertisement
notification, inter alia, prescribed a minimum qualification of 8th Pass for
the post of Anganwadi Helper. It was also provided in the advertisement
notification that in case no Middle Pass candidate was available, the
candidate with lesser qualification was to be considered. The Appellant, as
also the Respondent No.6 herein, responded to the advertisement
notification. On the recommendations of the concerned Sarpanch and,
having regard to the fact that the Respondent No.6 was a widow and
belonged to a BPL family, she came to be engaged as Anganwadi Helper in
terms of Order No. ICDS/ESTT-08/L171-73 dated 8th of January, 2011.
03. The Appellant herein filed an appeal before the Deputy
Commissioner, Ganderbal, challenging the selection and engagement of the
Respondent No.6 as Anganwadi Helper in the Anganwadi Centre in
question. The Deputy Commissioner allowed the appeal of the Appellant
herein and quashed the engagement of Respondent No.6 herein, with a
direction to the official Respondents to re-advertise the said post of
Anganwadi Helper.
04. Feeling aggrieved of the aforesaid direction to re-advertise the
post, the Appellant filed a Revision Petition before the Divisional
Commissioner, Kashmir against the Order of the Deputy Commissioner,
Ganderbal. The Divisional Commissioner, Kashmir accepted the Revision
Petition filed by the Appellant and set aside the directions of the Deputy
Commissioner, Ganderbal to the extent of issuing fresh advertisement
notification. This was done by the Divisional Commissioner vide Order
dated 28th of December, 2011. Both the aforesaid Orders; one passed by the
Deputy Commissioner, Ganderbal dated 20th of December, 2011 and the
other by the Divisional Commissioner, Kashmir dated 28 th of December,
2011, were called in question by the Respondent No.6 before the Writ
Court through the medium of SWP No. 26/2012.
05. The Writ Petition filed by the Respondent No.6 was contested
by the official Respondents as well as the Appellant herein.
06. The Writ Court, after hearing the rival contentions of the
parties and going through the material on record, came to the conclusion
that the Respondent No.6, being a widow, belonging to the BPL category,
fulfilled the eligibility criteria and, therefore, had been rightly engaged as
Anganwadi Helper by the official Respondents. The Order of the Deputy
Commissioner, Ganderbal dated 20th of December, 2011, which was
slightly modified by the Divisional Commissioner, Kashmir vide Order
dated 28th of December, 2011, was found not well-founded and, resultantly,
the Writ Petition was allowed and the Order passed by the Deputy
Commissioner, as also the Order passed by the Divisional Commissioner,
were quashed. The Writ Court also recorded a finding that the Appellant
herein was not eligible.
07. It is this Order and Judgment passed by the learned Writ Court
which is called in question by the Appellant herein, being the Respondent
No.6 in the Writ Petition, before us in this appeal.
08. Having heard the learned Counsel for the parties and perused
the material on record, we find that in terms of Government Order No. 07-
SW of 2010 dated 18th of January, 2010, the following eligibility criteria
was laid down for the post of Anganwadi Helper:
"a. The selection of Helper shall be restricted to the village
where Anganwadi Centre is located;
b. The candidate shall be in the age group of 18 to 45 years;
c. The candidate should be the permanent resident of the
State;
d. Minimum qualification for Anganwadi Helper shall be
Middle Pass. In case, no Middle pass candidate is available,
candidates with lesser qualification shall be considered.
e. Preference shall be given to the candidates from BPL
category in following order of priority:
i. Widow;
ii. Divorcee;
iii. Orphan; and
iv. Any candidate from amongst poorest of
the poor in the Revenue Village.
f. The candidate considered for Anganwadi Helper should
have sufficient accommodation with proper sanction available to be
exclusively used for running the Anganwadi Centre.
g. In case of a tie-up for selection of Anganwadi Helper,
preference shall be given to the "Most deserving" among the
deserving candidates."
09. Indisputably, the Respondent No.6 does not hold the
qualification of 8th Pass and, therefore, she is not eligible to be engaged as
Anganwadi Helper. That apart, in terms of the aforesaid criteria, as laid
down in Government Order dated 18th of January, 2010, which was in
vogue at the time of issuance of the advertisement in question, a widow,
divorcee or an orphan, who belong to BPL category, are entitled to
preference. The issue of preference, however, can only be applied once the
candidates belonging to the preferred category hold the basic eligibility.
This aspect of the matter has not been considered by the Writ Court. We are
at a loss to find any material on record, on the basis whereof, the Writ Court
could have come to the conclusion that even the Appellant was not eligible.
The Appellant, as it appears, has been held ineligible by the Deputy
Commissioner and by the Writ Court on the ground that he does not belong
to the BPL category.
10. At the cost of repetition, it needs to be emphasized that both
the Deputy Commissioner as well as the Writ Court have misconstrued the
selection criteria. From reading of the selection criteria, reproduced
hereinabove, it is abundantly clear that the minimum qualification
prescribed for engagement as Anganwadi Helper is Middle Pass and it is
only where no Middle Pass candidate is available, the candidate with lesser
qualification can be considered. In the instant case, the Appellant herein
was a candidate having 8th Pass qualification and, in the face of availability
of eligible candidate, the Respondent No.6 could not have been considered.
The condition that the candidate should be one belonging to the BPL
category is not the condition of eligibility. The eligibility criteria,
reproduced above, only lays down preference in favour of candidates from
BPL category, that too, in the following order of priority:
i. Widow;
ii. Divorcee;
iii. Orphan; and
iv. Any candidate from amongst the poorest of the poor in the
Revenue village.
As held above, the issue of preference would come into
consideration only when the candidate claiming preference has the basic
eligibility prescribed for the post. The Deputy Commissioner has
elaborately discussed the legal position and has rightly come to the
conclusion, in its Order dated 20th of December, 2011, that the Respondent
No.6 lacked the basic qualification prescribed for the post of Anganwadi
Helper, i.e., Middle Pass. The Deputy Commissioner, however, erroneously
declared the Appellant ineligible on the ground that she was not a candidate
belonging to the BPL category. This Order of the Deputy Commissioner
dated 20th of December, 2011 was, on revision, modified by the Divisional
Commissioner vide Order dated 28th of December, 2011. The ineligibility
of Respondent No.6 was upheld, however, the Divisional Commissioner
issued directions to the official Respondents to select the eligible candidate
under law out of the existing panel within one month.
11. The Writ Court has fallen in error in concurring with the
opinion of the Deputy Commissioner, Ganderbal that the Appellant was
herself ineligible to participate in the selection, for, she did not belong to
the BPL category, which, as held above, was incorrect. The Writ Court,
having found the Appellant ineligible on the ground that she was not a BPL
category candidate, allowed the Writ Petition filed by the Respondent No.6
and quashed the Order of the Deputy Commissioner dated 20 th of
December, 2011 as also the Order of the Divisional Commissioner dated
28th of December, 2011. The Writ Court has, thus, gone wrong in
appreciating the eligibility criteria in its right perspective.
12. After having made a feeble attempt to justify the impugned
Judgment passed by the Writ Court, Mr N. A. Beigh, the learned Senior
Counsel, appearing for the Respondent No.6 herein, prayed for invoking the
equitable jurisdiction vested in this Court under Article 226 of the
Constitution, so as to save the selection and engagement of the Respondent
No.6, on the ground that she had been in position and working as
Anganwadi Helper for the last about 15 years. He would urge that the
Respondent No.6 is a widow, belonging to a BPL family and, therefore,
deserves compassion of the Court.
13. Having concluded that the Respondent No.6 was ineligible to
be engaged as Anganwadi Helper, for, she lacked the basic educational
qualification prescribed for the post, we are left with no other option, but to
declare the selection and engagement of the Respondent No.6 nullity in the
eye of law. We could have seriously considered the submissions of Mr
Beigh for invoking our equitable jurisdiction, provided there had been delay
on the part of the Appellant to raise her grievance before the competent
fora. The Respondent No.6 knew well that she was illiterate and, therefore,
not eligible to apply for the post of Anganwadi Helper, more particularly in
presence of other eligible candidates possessing the requisite qualification
of middle Pass, yet, she took a chance by submitting her application form.
On the basis of misplaced sympathies, she also came to be selected and
engaged as Anganwadi Helper on 8th of January, 2011. The Appellant, who
was aggrieved of the selection and engagement of the Respondent No.6, did
not waste any time and approached the civil Court and, thereafter, upon
withdrawing the civil Suit, before the Deputy Commissioner in the year
2011, itself. The Deputy Commissioner, Ganderbal, vide its Order dated
20th of December, 2011, held the Respondent No.6 ineligible to be engaged
as Anganwadi Helper. The Divisional Commissioner upheld that Order
with slight modification, as discussed above, and the matter landed before
the Writ Court in the year 2012, itself, when SWP No. 26/2012 came to be
filed by the Respondent No.6. The Respondent No.6 has, thus, continued in
service after 20th of December, 2011 on the basis of interim directions
14. Needless to say, appointment of a candidate to an office, post
or position would be a nullity in the eye of law, if the person appointed/
engaged against such post lacks the basic eligibility qualification prescribed
for the post. An appointment, which is a nullity in the eye of law, cannot be
validated only on the ground that the person so appointed has continued on
the post/ position for a pretty long time, more particularly when the
continuation of such candidate in service is in pursuance of the interim
orders passed by the Court/ Tribunal or some other competent authority.
15. Insofar as the submission of Mr Beigh regarding the equitable
jurisdiction vested in us is concerned, we are of the view that, while
invoking equity in favour of Respondent No.6, we need to look to the plight
of a candidate, Appellant herein, who had been fighting her battle in the
Courts of law for the last more than 15 years. The Appellant herein, who
was entitled to be engaged as Anganwadi Helper, was denied the
engagement, so as to confer wrongful benefit upon the Respondent No.6.
She immediately protested and took to legal recourse. It is a different matter
that a litigation launched by the Appellant herein to enforce her right took
almost 15 years to attain finality before this Court. It would be totally unfair
and highly inequitable to tell the Appellant herein that, though, she has
succeeded in the litigation and is found entitled to engagement, yet she will
not be given such engagement, for the reason that under the Court orders,
the Respondent No.6 has continued for 15 years. Equities are not only
meant for one party. The Court needs to balance the equities and to ensure
that justice is meted out to both the parties.
16. For the aforesaid reasons, we are inclined to accept this appeal
and set aside the impugned Judgment and Order passed by the Writ Court.
Ordered, accordingly. Consequently, the engagement of the Respondent
No.6 as Anganwadi Helper is quashed. The official Respondents shall
proceed to select and engage the next meritorious and eligible candidate in
the panel within two months from the date a copy of this Judgment is
served upon them. We, however, leave it to the Government to adjust the
Respondent No.6 herein against an available post of Anganwadi Helper in
some Anganwadi Centre, provided there is no candidate with 8th Pass
qualification available in the concerned hamlet.
17. Letters Patent Appeal is, accordingly, disposed of on the
above terms, along with the connected CM(s).
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
SRINAGAR
February 24th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes.
