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2010 DIGILAW 357 (JK)

Naseema Bano v. State Of J&K

2010-06-05

Hasnain Massodi, MOHAMMAD YAQOOB MIR

body2010
Per Massodi, J. 1. The respondents in the year 2005 invited applications for engagement as Anganwadi Workers for different Anganwadi Centers of Kashmir Province including Anganwadi Center Zamindar Mohalla, Drugmulla, Kupwara. The appellant responded to the notice and submitted an application for her engagement as Anganwadi Worker in Anganwadi Center Zamindar Mohalla, Drugmulla -- one of the Anganwadi Centers under ICDS Project Kupwra. The respondents vide order No.CDPOK/ICDS/Estt/06/115-118 dated 15.05.2006, engaged the appellant as Anganwadi Worker for the said Anganwadi center. The respondent No.6, after the aforesaid engagement, threw challenge to the engagement of the appellant, complaining that the appellant though previously a resident of Zamindar Mohalla, Drugmulla, Kupwara, had married at Kachri Langate and therefore, was not entitled to her engagement as Anganwadi Worker in Anganwadi Center Zamindar Mohalla, Drugmulla. The respondents, on verification of the complaint received from respondent No.6, found substance in the complaint and concluded that the appellant had married at village Kachri Langate and thus did not belong to Panchayat Halqa, in which the Anganwadi Center in question was located. The respondents cancelled order of engagement of appellant and in her place engaged respondent No.6, vide order dated 12.9.2006 as Anganwadi Worker in Anganwadi Center Zamindar Mohalla, Drugmulla, engaged. 2. The appellant approached this Court with a writ petition, pleading, inter-alia, that the appellant was engaged as Anganwadi Worker on the strength of her merit; that the appellant was unmarried on the date of advertisement notice and figured .at the top of the select list published in 30th January 2006 Issue of Daily "Tameel-i-Irshad"; that the respondents issued formal engagement order in favour of the appellant on 15th of May 2006. Immediately whereafter engagement order was kept in abeyance vide Order No.CDPOK/ICDS/Estt/509-10 dated 18th May 2006; that the respondents thereafter proceeded to cancel engagement order in favour of the appellant vide order No.POK/ICDS/Estt/06/1072-73 dated 12.9.2006 and later vide order No.CDPOK/ICDS/Estt/06/ 954-58 dated 30.9.2006, engaged respondent No.6 against the vacancy. The appellant complained that her order was cancelled and respondent No.6 engaged notwithstanding the order of this Court in SWP No.1393/2006, wherein the appellant had questioned the order dated 18th May 2006, placing appellant’s engagement order in abeyance. The appellant complained that the respondents held inquiry into complaint filed by respondent No.6 in exparte, at the back of appellant and that the appellant was neither heard nor allowed to project her case. The appellant complained that the respondents held inquiry into complaint filed by respondent No.6 in exparte, at the back of appellant and that the appellant was neither heard nor allowed to project her case. The appellant even disputed that any inquiry was ever conducted by the respondents to conclude that the appellant was not resident of Panchayat Halqa concerned at the time of her engagement as Anganwadi Worker. The appellant insisted that on the date of advertisement notice, the appellant was eligible in all respects for the advertised post and that her marriage, after her application was received, would not render her ineligible for engagement for the advertised post. The appellant pleaded that even after her marriage the appellant has been residing as Khana Nisheen Daughter -- village Zamindar Mohalla, Drugmulla and that the appellant had even inherited property from her father. The order dated 12.9.2006 is assailed as violative of Articles 14 and 311 of Constitution of India. 3. The respondents resisted the writ petition on the grounds that the respondent No.6, also an aspirant for the post of Anganwadi Worker in Anganwadi Center Zamindar Mohalla, Drugmulla, objected to the engagement of appellant on the ground that the appellant was not residing at Zamindar Mohalla, Drugmulla and that the complaint filed by the respondent No.6 on scrutiny was found to be true and correct. It is pleaded that the respondents conducted an inquiry in the matter and even made spot verification, which revealed that the appellant was married to one Shri Ghulam Mohi-ud-din of Kachri Langate in September 2005 and that said Ghulam Mohi-ud-din had been employed as Rehbar-e-Taleem Teacher in a School at Kachri Langate for last two years. The inquiry, according to the respondents, also revealed that the appellant’s husband was residing with his parents at Village Kachri Langate. The respondents claimed the inquiry held by the respondents, to have lead to conclusion that the appellant was not resident of village Zamindar Mohalla, Drugmulla, Kupwara, her engagement as Anganwadi Worker was cancelled and in her place respondent No.6 engaged. The respondents insisted that in terms of engagement order dated 15th May 2006, the engagement order was liable to be cancelled/ terminated in the event the candidate was found to have shifted to a place other than the place in the Panchayat Halqa/Mohalla/Patti/village Anganwadi Center for which she has been selected, was located. 4. The respondents insisted that in terms of engagement order dated 15th May 2006, the engagement order was liable to be cancelled/ terminated in the event the candidate was found to have shifted to a place other than the place in the Panchayat Halqa/Mohalla/Patti/village Anganwadi Center for which she has been selected, was located. 4. The Writ Court on consideration of the matter, held the appellant to have suppressed important facts that emerged from the pleadings and record. The Writ Court noticed the case specifically set up by the respondents that the order of engagement was obtained by the appellant "by fraud and misrepresentation". The appellant was found to have admitted fact of her marriage at Village Kachri, Langate, Kupwara, and attempted to set up a claim that notwithstanding her having so married, the appellant continued to be resident of Village Zamindar Mohalla, Drugmulla as the appellant was married as Khana Nisheen Daughter, by her father, a plea not supported by any convincing evidence on the file. The Writ Court proceeded to dismiss the writ petition vide judgment and order dated 30th September 2009. 5. The Writ Court judgment and order are questioned by the appellant in the present Letters Patent Appeal on the grounds that the Writ Court did not deal with and deliberate upon the main plank of appellant’s case before it; that the inquiry if any was held at the back of the appellant and without her having been associated with the inquiry. The Writ Court is said to have failed to appreciate that the main grievance of the appellant was that the appellant had been denied the right of being heard and in the process the respondents had violated well established principle of natural justice. The respondents, according to the appellant, did not controvert the averments made by appellant in this regard. The Writ Court is said to have failed to accord consideration to the documentary evidence placed by the appellant on the file, which according to the appellant, sufficiently indicated that the appellant was Khana Nisheen Daughter and residing at her parental house. The Writ Court is said to have misdirected itself and based the judgment and order, dismissing the writ petition, on non-existing material. 6. We have gone through memorandum of appeal as also writ record. We have heard learned counsel for the parties. 7. The Writ Court is said to have misdirected itself and based the judgment and order, dismissing the writ petition, on non-existing material. 6. We have gone through memorandum of appeal as also writ record. We have heard learned counsel for the parties. 7. The Integrated Child Development Services Scheme (ICDS) has been devised to:- improve the nutritional and health status of pre-school children in the age-group of 0-6 years; lay the foundation of proper psychological development of the child; to reduce the incidence of mortality, morbidity, malnutrition and school drop-out; achieve effective coordination of policy and implementation amongst the various departments to promote child development; and enhance the capability of the mother to look after the normal health and nutritional needs of the child through proper nutrition and health education. 8. The Scheme was conceived with an integrated delivery package of early childhood services so that their synergistic effect can be taken full advantage of. The Scheme aims to improve the nutritional and health status of vulnerable groups including pre-school children, pregnant women and nursing mothers through providing a package of services including supplementary nutrition, pre-school education, immunization, health check-up, referral services and nutrition & health education. 9. The Scheme targets the most vulnerable groups of population including children upto 6 years of age, pregnant women and nursing mothers belonging to poorest of the poor families and living in disadvantaged areas including backward rural areas, tribal areas and urban slums. The identification of beneficiaries is done through surveying the community and identifying the families living below the poverty line. 10. The important objectives of the scheme are achieved through Anganwadi Centres, set up at the grass roots level. Anganwadi Centers converge basic services through community-based Anganwadi Workers, and also provide a meeting ground for the target groups and frontline workers to promote awareness and undertake joint action for child development and women’s empowerment. 11. Having regard to role contemplated for Anganwadi Centers in implementation of the scheme, the emphasis is laid on engagement of Anganwadi Worker, residing in the Panchayat Halqa, where the Anganwadi Center is set up. No difficulty is to be confronted in understanding the reason that has prompted Social Planners to decide to draw an Anganwadi Worker from the locality where the Anganwadi Center is located. No difficulty is to be confronted in understanding the reason that has prompted Social Planners to decide to draw an Anganwadi Worker from the locality where the Anganwadi Center is located. A local female candidate is well aware of the local problems, has not to undertake any travel to reach her center and is available round the clock to perform her multifaceted role. It is against the said backdrop that the candidate engaged as Anganwadi Worker is to be replaced, if she after her engagement, shifts to the place other than the place in the Panchayat Halqa/ Village/Patti, where Anganwadi Center, for which she has been engaged, is situated. It implies that even if a female candidate selected as Anganwadi Worker is resident of Panchayat Halqa, where Anganwadi Center is situated but subsequently shifts her residence from the place, she loses her right to retain the engagement. There is thus no question of a candidate retaining her engagement, where she is not resident of the Panchayat Halqa/ village/ Patti/hamlet, where the Anganwadi Center is situated, at the time of her engagement. So viewed, the date of advertisement and even date of engagement are irrelevant as regards place of residence of a candidate aspiring for her engagement as Anganwadi Worker. The appellant did not disclose before the Writ Court, that she was married at village Kachri Langate a few months before engagement order in her favour was made. It has not been denied before the Writ Court that the place, where the appellant is married is far away from the village, where Anganwadi Center for which the appellant was engaged as Anganwadi Worker, is situate. The appellant, however, did not find it necessary to inform the respondents regarding her having married after she responded to the advertisement notice in question, at village Kachri, Langate. The appellant, thus withheld the vital information from the respondents, which if disclosed would have dissuaded the respondents from engaging -- appellant as Anganwadi Worker in the Anganwadi center in question. The grievance voiced by the appellant in the writ petition that the inquiry was held at her back and without affording her an opportunity of being heard, is devoid of any substance. Engagement order dated 15th June 2006 was put under abeyance immediately, i.e., 02 days, after the order was issued. The grievance voiced by the appellant in the writ petition that the inquiry was held at her back and without affording her an opportunity of being heard, is devoid of any substance. Engagement order dated 15th June 2006 was put under abeyance immediately, i.e., 02 days, after the order was issued. The respondent No.6, aware that the appellant had married at village Kachri Langate and changed her residence from village Zamindar Mohalla, Drugmulla to Kachri Langate, did not expect the appellant to be engaged as Anganwadi Worker in Anganwadi Center and once she became aware of the said development, she lost no time in objecting to the engagement of the appellant. The appellant’s engagement order dated 15th May 2006 was placed under abeyance on 18th May 2006 and the appellant informed accordingly. The appellant was again aware of the complaint lodged by respondent No.6 as also inquiry necessitated by the complaint and the order dated 18.5.2006, placing in abeyance her engagement order, as is evident from the SWP No.1393/2006. The appellant in the aforementioned writ petition assailed the order dated 18th May 2006. The appellant appears to have been well aware of the complaint as well as inquiry at the time of filing of SWP No.1393/2006. The appellant did not find it necessary to project her case before the respondents and controvert the complaint lodged by respondent No.6. The appellant thus having in the first instance withheld the important information from the respondents and thereafter avoided to project her case before the respondents to rebut the averments made in the complaint, filed by respondent No.6, cannot be heard saying that she was denied opportunity of being heard or not associated with the inquiry. Independent of the stand taken by the appellant, the inquiry appears to have been conducted in transparent manner. Inquiry Officer found husband of the appellant, whom appellant claimed to be residing with her as Khana Damad at her parental house, to have been working as Rehbar-e-Taleem Teacher in his native village Kachri Langate and to have been residing with his parents at the said village. This fact is corroborated by none else than Sarpanch of village Kachri Langate. The appellant, after having been caught on the wrong foot for withholding information regarding her marriage, made an attempt in vain before the Writ Court to set up a case of Khana Nisheen Daughter. This fact is corroborated by none else than Sarpanch of village Kachri Langate. The appellant, after having been caught on the wrong foot for withholding information regarding her marriage, made an attempt in vain before the Writ Court to set up a case of Khana Nisheen Daughter. The Writ Court rightly rejected claim set up by the appellant, as a last resort, on the ground of it being not supported by any cogent and convincing evidence. 12. We are of the considered view that the grounds urged in Letters Patent Appeal are bereft of any merit and that no case has been made out to overset Writ Court judgment and order dated 30th September 2009. 13. This Letters Patent Appeal, therefore, fails and is accordingly dismissed.