Jammu & Kashmir High Court
Salima Akhtar W/O Mohd. Shabir vs State Of Jammu & Kashmir Through on 6 June, 2025
46
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on:- 29.05.2025.
Pronounced on:- 06.06.2025
SWP No. 1140/2015
IA No. 1/2015
IA No. 1466/2015
CM No. 7787/2021
Salima Akhtar W/O Mohd. Shabir, .....Appellant(s)/Petitioner(s)
R/O W. No. 8, Mohalla Magrian
Dhargloon, Tehsil Balakote, District
Poonch.
Through: Ms. Surinder Kour, Sr. Advocate with
Mr. Akash Choudhary, Advocate.
q
Vs
01. State of Jammu & Kashmir through ..... Respondent(s)
Commissioner-cum-Secretary to
Government Social Welfare
Department, J&K Govt. Civil
Secretariat, Jammu.
02. Director Social Welfare Department,
Jammu.
03. Deputy Director (ICDS), Directorate of
Social Welfare Department, Jammu.
04. District Programme Officer (ICDS),
Poonch.
05. Child Development Project Officer,
Balakote.
06. District Social Welfare Office, Poonch.
07. Zarina Kousar W/O Mohd. Farooq,
R/O Village Dhargloon, District
Poonch
Through: Mr. Ravinder Gupta, AAG for R-1 to 6
Mr. Irfaan Khan, Advocate for R-7.
c/w
SWP No. 397/2015
IA No. 468/2015
Zarina Kousar W/O Mohd. Farooq .....Appellant(s)/Petitioner(s)
R/O Village Dhargloon, Tehsil
Balakote, District Poonch.
2 SWP No. 1140/2015
c/w SWP No. 397/2015
2025:JKLHC-JMU:1458
Through: Mr. Irfaan Khan, Advocate.
q
Vs
01. The State of Jammu & Kashmir ..... Respondent(s)
through its Commissioner/Secretary to
Government, Social Welfare
Department, Civil Secretariat, Jammu.
02. The Director, Social Welfare
Department, Jammu.
03. The Deputy Director (ICDS),
Directorate of Social Welfare,
Department, Jammu.
04. The District Programme Officer,
Poonch.
05. The Child Development Project
Officer, Balakote, District Poonch.
06. Salima Akhter, W/O Mohd. Ibrahim,
R/O Dhargloon, Tehsil Balakote
District Poonch.
Through: Mr. Ravinder Gupta, AAG for R-1 to 5
Ms. Surinder Kour, Sr. Advocate with
Mr. Akash Choudhary, Advocate for R-6.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
01. Both the above titled writ petitions having arisen from the engagement of
Anganwari Helper for Anganwari Centre, Magrian in Block Balakote, District
Poonch and being inter linked are proposed to be disposed of by this common
judgment.
02. The brief facts arising out of both the writ petitions are noticed as under:-
(i) One, Salima Akhter was engaged as Anganwari Helper by the
respondent-Child Development Project Officer, Balakote, vide Order
No. ICDS/BK/163-66/2011 dated 01.07.2011 for Agnagwari Centre
Mohalla Magrian of District Poonch;
(ii) Aggrieved of her engagement, one, Zarina Kousar challenged her
engagement through SWP No. 397/2015. This Court vide order dated
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19.02.2015 noted that Salima Akhter, upon enquiry, was found to be
overaged and not being eligible to be engaged as Anganwari Helper in
Anganwari Centre Mohalla Magrian, in view of the communication
dated 04.02.2014, issued by the Directorate of Social Welfare, Jammu
and ordered that the respondents shall place before the Court details
regarding action taken pursuant to aforesaid communication dated
04.02.2014; and
(iii) Pursuant to the aforesaid direction, the respondent-CDPO, Balakote
disengaged Salima Akhter with immediate effect vide Order No.
ICDS/BK/204-5/2015 dated 31.03.2015. Aggrieved by her
disengagement order, Salima Akhter, challenged the same through SWP
No. 1140/2015.
03. In view of the aforesaid facts, both the writ petitions having been clubbed
are proposed to be disposed of by this common judgment.
04. Learned AAG assisted by Mr. Mohd Aslam Choudhary/respondent- CDPO
Balakote, who was present in the Court, stated that the record of the process of
selection of the Anganwari Helper for Anganwari Centre Magrian despite efforts
could not be traced, as such, matter is being considered without record.
05. Petitioner, Zarina Kousar filed this petition, challenging the engagement of
respondent -Salima Akhter, primarily on the ground that she was overage at the
time of appointment, as the guidelines provided that a person could be appointed
as Helper up to the age of 44 years, whereas, the respondent-Salima Akhter, in
view of the certificate issued by the Board of School Education, was overage and
the respondents had illegally appointed her by ignoring the claim of the petitioner,
who was also an aspirant for the aforesaid job.
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06. The official respondents, in their objections, have not specifically denied
the facts and have accepted that on an enquiry, respondent-Salima Akhter was
found overage on the basis of a certificate issued by the J&K Board of School
Education. It has also been averred that respondent-Salima Akhter, despite
directions, could not produce any valid proof of her date of birth, except the copy
of Ration Card, on the basis of which she had been engaged earlier. Respondent-
Salima Akhter has not filed the objections to the petition.
07. Learned Counsel for the petitioner-Zarina Kousar argued that the petitioner
was not appointed against the post of Helper, as the official respondents had
appointed the private respondent illegally, though she was overage at the time of
engagement; that the guidelines governing the scheme provided that a Helper can
be appointed with the maximum age of 44 years whereas, the private respondent
was engaged when she was already over the age of 44 years; that in view of the
date of birth, having been recorded as 24.09.1962 by the J&K State Board of
School Education, Salima Akhter, had failed to place on record any other proof
with regard to her age so as to claim that she was engaged within the permissible
age; that on a complaint filed by the petitioner, an enquiry was conducted and the
Dy. Director (ICDS), Directorate of Social Welfare, Jammu who had directed to
put up the case before the Selection Committee and disengage the ineligible
candidates; that the respondents had taken an action in the matter and passed the
Order No. ICDS/BK/204-5/2015 dated 31.03.2015 whereby, the private
respondent was disengaged.
08. Learned counsel for the petitioner further argued that as a natural
consequence, it was incumbent upon the official respondents that on
disengagement of private respondent, to pass the order for engagement of the
petitioner, as the next aspirant to be engaged as Helper in the concerned
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Anganwari Centre, however, the respondents failed to do so. Therefore, it is
prayed that the instant petition be allowed and official respondents be directed to
engage the petitioner forthwith against the post of Helper in the concerned
Anganwari Centre.
09. Learned counsel for the official respondents, while making submissions,
argued that the private respondent had been wrongly and illegally engaged and the
respondents on finding that she had been engaged being overage, her engagement
was cancelled and an order was passed to disengage her. He further submits that
since there was no record of selection with the official respondents, as stated by
the CDPO Balakote, namely, Mohd. Aslam Choudhary, who is present in the
Court, therefore, the petitioner's claim cannot be considered for her engagement
and the official respondents be permitted to undertake a fresh selection process in
accordance with the guidelines on the subject.
10. Learned Senior Counsel appearing for private respondent submits that it
was wrong on the part of the official respondents to claim that the private
respondent was overage. She argued that it is the date of advertisement which is
material to ascertain the age and not the date of final selection list or engagement
order; that the application had been invited for the post of Helper by the official
respondents in the year 2007-08 when the private respondent was within the
permissible age to apply for the job, therefore, her date of appointment as on
01.07.2011 cannot be reckoned to be a date for ascertaining the age of the private
respondent.
11. Learned senior counsel appearing for the private respondent has, however,
fairly accepted that as of now the private respondent was over the age of 60 years
and cannot be considered to be retained in the job and prays that the stigma of
being overage at the time of selection, as wrongly claimed by the petitioner and
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the official respondents, be removed and the official respondents be allowed to
undertake the fresh selection process for the position of the Helper which is lying
vacant, in the concerned Anganwari Centre.
12. The private respondent- engagee, despite having been given time by the
respondents and the Enquiry Committee, had failed to produce any valid proof of
her date of birth and had also failed to produce the same before this Court. She
has also not been able to substantiate as to when she had applied for the post. The
official respondents have also not been able to produce the record and the
respondent-CDPO Balakote, who is present in the Court, submits that the record
is not available with the Department in this regard. It appears from the sequence
of all the events that the private respondent was engaged being overage, as such,
her initial engagement which has been challenged through this writ petition was
illegal, arbitrary and cannot be sustained.
13. Having regard to the aforesaid reasons and the discussion made
hereinabove, the petition is allowed and the official respondents are directed to
offer an engagement order to the petitioner. This exercise shall be completed by
the respondents within a period of four weeks from the date a certified copy of
this order is made available to them.
14. Petition is, accordingly, 'disposed of' along with all connected
application(s). No order as to costs.
15. Petitioner-Salima Akhter, through the medium of the present petition, has
challenged Order No. ICDS/BK/204-5/2015 dated 31.03.2015, whereby, the
official respondents had disengaged her from the post of Anganwari Helper in
Anganwari Centre, Magrian and also prays to quash the communication No.
DSWJ/ICDS/1574-75/14 dated 04.02.2014, issued by the Dy. Director (ICDS),
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Directorate of Social Welfare, Jammu, being ultra virus, illegal, arbitrary,
unconstitutional and contrary to the provisions of law and Rules and against the
provisions of principles of natural justice.
16. The petitioner, has asserted in her petition that she had applied for the post
of Anganwari Helper in the year 2007-08, however, the selection had taken 2-3
years and finally the official respondents had issued engagement order in her
favour on 01.07.2011; that respondent No. 7-Zarina Kousar had filed a complaint
alleging that the petitioner was overage at the time of appointment and the Dy.
Director (ICDS), Directorate of Social Welfare, Jammu vide communication No.
DSWJ/ICDS/1574-75/14 dated 04.02.2014, conveyed to respondent- CDPO,
Balakote to put up her case before the Chairman Selection Committee and
disengage the ineligible candidate and settle the matter accordingly; that Zarina
Kousar had also filed a writ petition in the Court seeking quashment of her
engagement that the official respondents had taken a stand that the petitioner was
overage at the time of selection. However, at the relevant time in the year 2007-
08, when the petitioner had applied, the department had notified the criteria vide
Government Order No. 07-SW of 2010 dated 18.01.2010, and as per this criteria,
candidate could be in the age group of 18 to 44 years, with preference to the
widow, divorcee, orphan or any other candidate from amongst poorest of the poor
in the Revenue Village; that she was within the permissible age and had been
appointed legally and the official respondents had illegally disengaged her on a
complaint made by another aspirant, without affording an opportunity of being
heard to the petitioner. Therefore, learned counsel for the petitioners prays that the
impugned order be quashed and the official respondents be directed to allow the
petitioner to perform her duties for which she had been engaged in the year 2011.
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17. The official respondents in their objections/reply have stated that the
petitioner was engaged by the then Selection Committee, as Anganwari Helper
under the Super Mission Project by the then CDPO Balakote. Upon verification of
the certificates, the petitioner had produced the BPL Ration Card, and on
objection raised by the respondent-Zarina Kousar with regard to age of the
petitioner, she was asked to produce any record in support of her age. However,
she failed to produce the record with regard to her date of birth and an enquiry
was initiated in which it was found that the petitioner had been engaged when she
was overage as per the criteria.
18. Respondent No. 7-Zarina Kousar in her objections has stated that the
official respondent had engaged the petitioner in violation of the criteria being
overage, that the petitioner on affording reasonable opportunity of heard before
passing the order of disengagement had failed to substantiate her claim with
regard to being within the permissible age. It is further stated that the person
employed in violation of the provisions is not entitled to continue on the post in
question as the same violates the mandates of Articles 14 and 16 of the
Constitution of India as it deprives the candidates who are eligible for the post.
19. For the reasons assigned in the earlier petition and the fact that the
petitioner has already crossed the age of 60 years was not in any way, entitled to
be retained in the job, therefore, the present petition has become infructuous.
Moreover, it is a fact that as per the Government Order which has been relied by
the petitioner, a Helper could be engaged within the age bracket of 18 to 44 years
However, the petitioner had not substantiated any proof with regard to her age
either at the time of her engagement, during the enquiry initiated by the
respondent-department and even before this Court in any of the two petitions. The
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official respondents have thus rightly disengaged the petitioner for being overage
relying upon 'Date of Birth' as recorded by the Board of School Education.
20. Having regard to the aforesaid reasons and discussion hereinabove, the
present petition being devoid of any merit and having been rendered as
infructuous, is accordingly, dismissed along with all connected application(s).
21. Interim direction, if any, shall stand vacated. No order as to costs.
22. Both the writ petitions along with the connected application(s) are disposed
of, accordingly. Copies of this common judgment shall be placed across files of
both the cases.
(MA CHOWDHARY)
JUDGE
Jammu
06.06.2025.
Renu
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
