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2013 DIGILAW 217 (JK)

Maroofa Akhter v. State & Ors.

2013-04-16

ALI MOHAMMAD MAGREY, MANSOOR AHMAD MIR

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Mansoor, J.— 1. The instant appeal calls in question judgment dated 28th September, 2011, for short impugned judgment, passed by the learned Writ Court in SWP No. 741/2008. 2. To understand the grievance of the appellant in proper perspective, a brief narration of the controversy, may be made, thus. 3. An Advertisement Notice seeking female matriculate candidatures for their engagement as Angan Wari Workers in different Integrated Child Development Scheme Projects, for short ICDS Projects, of Kashmir province. 4. Responding to the said Advertisement, appellant submitted application form to seek her engagement for Mohallah Bonpora Tenjmullah, Shangus, An-ganwari Center. 5. Besides appellant, one Nayeema Akhter was eligible to apply for the post as on the cut off date, being matriculates of the area. But, appellant being meritorious of the two, had a preferential right for appointment. 6. The process of selection, as contended, was made to remain static for long so as to see that respondent No. 6 is appointed on the post despite the fact that, as on the cut off date, she was not the resident of Village Tenjmullah. The appellant addressed many representations to official respondents, seeking her appointment on the post, but in vain. 7. The official respondents went ahead with their plan and/recommended the name of respondent No. 6 for engagement against the post in question, constraining the appellant to knock the doors of the Court by filing a Civil Suit before the court of Principal District Judge, Ananrnag, challenging the recommendation aforesaid and seeking a direction in the name of official respondents to appoint her on the post instead. 8. During the pendency of the suit official respondents selected and appointed respondent No. 6 on the post, which was challenged by the medium of a writ petition, being SWP No. 986/2007. 9. Upon consideration of the matter, a direction was issued in the name of respondent No. 2, vide order dated 12th February, 2008, to the effect that merit position and the residential status of the appellant and respondent No. 6, be ascertained. He was further directed that in case he derives satisfaction that both the candidates are residents of same village viz. Tanjmulla, he shall pass requisite orders on the basis of merit notwithstanding the appointment of respondent No. 6 on the post. He was further directed that in case he derives satisfaction that both the candidates are residents of same village viz. Tanjmulla, he shall pass requisite orders on the basis of merit notwithstanding the appointment of respondent No. 6 on the post. Appointment of respondent No. 6 was kept subject to outcome of such enquiry which had to be completed within a period of two weeks from the date the order was served upon him. Order dated 12th February, 2008, is verbatim reproduced below, thus: "On consensus of learned counsel for the parties, this writ petition is disposed of with the following directions: The matter shall be referred to the Director Social Welfare Department Kashmir. He will examine the merit of the candidates i.e. the petitioner and respondent No. 5. He shall also examine their claim about residence and on consideration of the matter find out as to whether both the petitioner and respondent No. 5 were residents of the concerned village on the date the advertisement notice was issued. If that is so, he shall see out of the two who is meritorious and pass appropriate orders notwithstanding the appointment of respondent No. 5 on the post. The inquiry be conducted and orders in this behalf passed within a period of two weeks from the date the order is served on the Director. Appointment of respondent no. 5 shall remain subject to outcome of inquiry. Disposed of." 10. The directions were not complied with by respondent No. 2, therefore, a contempt petition was filed by the appellant and during the pendency of contempt proceedings, a fresh selection process was undertaken by him calling upon appellant, respondent No. 6 and one Rafiqa Banoo to appear before him in this behalf. 11. In the meanwhile, respondent No. 6 obtained and produced before the Authorities a forged and fake Permanent Resident Certificate, reflecting her to be the resident of village Tanjimulla. 12. The complaint of appellant was entrusted by respondent No. 5, to Tehsildar for necessary action who conducted and concluded the enquiry with the report that the Permanent Resident Certificate, in possession of, and produced in support by respondent No. 6, has been issued vide No. 1931/PRC of 2004:05, which pertains to some other person and not to respondent No. 6. 13. 13. Thereafter, Deputy Commissioner, Anantnag, forwarded the matter with the report of Tehsildar to respondent No. 2 mentioning therein that the report of Tehsildar is self explanatory, therefore, action needs to be taken in the matter. 14. Even after having with him the crystal clear report about the production of fake and forged Permanent Resident Certificate by respondent No. 6, the respondent No. 2 did not take any action, prompting the appellant to serve a legal notice upon him requesting therein that judgment dated 12th February, 2008, be complied with. 15. Thereafter, by virtue of Order No. 432-DS WK of 2008 dated 17th April, 2008, respondent No. 2, besides cancelling the appointment of respondent No. 6, directed the respondent No. 3, to undertake selection process for the post in dispute while taking into consideration the merit of the incumbents from the whole village in accordance with the standing norms. Copy of the order has been placed on record of LPA as Annexure C. 16. This order was challenged by both appellant and respondent No. 6, by virtue of two different writ petitions being SWP Nos. 741/2008 and 644/2008, respectively. The petition filed by respondent No. 6, viz. SWP 644/2008, was dismissed as withdrawn in terms of order dated 19th August, 2009. It would be apt to reproduce the said order herein, thus: "Learned appearing counsel for the petitioner in SWP 644/08 submits that he is under instructions not to press this writ petition, therefore, seeks its withdrawal. Prayer granted. SWP 644/08 is dismissed as withdrawn along with connected CMPs. Interim direction, if any, shall stand vacated. Record of SWP 741/08 shall be segregated which shall be listed separately in due course." 17. During the pendency of said writ petition, respondent No. 6 filed another writ petition being SWP No. 483/2010 and again called in question the same order viz. Order dated 17th April, 2008, subject matter of SWP 644/2008. 18. The writ petition, SWP No. 483/2010, has been filed without any leave having been granted by the Court to call in question the same order which was subject matter of the writ petition that stands withdrawn. 19. Learned Writ Court, while rendering the impugned judgment, dealt both the writ petitions viz. SWP 741/2008 and 483/2010, allowing the SWP 741/2008 and dismissing the SWP No. 483/2010. 20. The Learned Writ Court while allowing the writ petition viz. 19. Learned Writ Court, while rendering the impugned judgment, dealt both the writ petitions viz. SWP 741/2008 and 483/2010, allowing the SWP 741/2008 and dismissing the SWP No. 483/2010. 20. The Learned Writ Court while allowing the writ petition viz. SWP 741/2008 quashed the impugned order viz. order dated 17-4-2008 passed by respondent No. 2, in its entirety. It further directed the Deputy Commissioner, Anantnag, to hold an enquiry in the matter after affording an opportunity of hearing to both appellant and respondent No. 6. The learned Writ Court directed further that statusquo, in the meanwhile, be maintained. 21. The appellant questions the impugned judgment to the extent it quashes the order dated 17th April, 2008, in its entirety, impugned in both writ petitions viz. SWP No. 741/2008 and 483/2010, besides directing Deputy Commissioner, Anantnag, to hold an enquiry in the matter and for ordering statusquo till completion of such enquiry. 22. This is how the instant appeal has come into being. 23. We have heard learned counsel for the parties and considered the matter. 24. The thing that has prompted the appellant to come in appeal against the impugned judgment, despite the fact that it allows her writ petition, appears to be the effect of the directions passed in terms of the said judgment. The learned Writ Court while ordering statusquo by virtue of the judgment impugned has allowed the respondent No. 6 to continue on the post in dispute, therefore, dismissing her writ petition simultaneously affects no one but the appellant. The respondent No. 6 has virtually emerged as winner despite dismissal of writ petition, while as the appellant has been rendered a loser despite her writ petition having been allowed. 25. Another effect of the directions issued, in terms of the impugned judgment, is that it amounts to setting aside of the judgment rendered in the earlier writ petition viz. SWP No. 986.2007 dated 12th February, 2008, which has, otherwise, not been challenged and has thus attained the finality, for, the controversy had been confined between the appellant and respondent No. 6, only; that there were stark revelations of respondent No. 6 being in possession of and having produced a fake and forged Permanent Resident Certificate. Therefore, we feel that it was not open for the learned Writ Court to again direct an enquiry in the matter. 26. Therefore, we feel that it was not open for the learned Writ Court to again direct an enquiry in the matter. 26. Taking note of what has been discussed hereinbefore, we allow the appeal and set aside the impugned judgment dated 28th September, 2011. The order No. 432-DSWK of 2008 dated 17th April, 2008, passed by respondent No. 2 and impugned in SWP No. 741/2008, is also quashed to the extent it holds appellant not meritorious and directing for taking into consideration the merit of the incumbents of whole village. 27. Respondents, in the result, are directed to consider the case of the appellant for appointment and pass requisite orders thereon. 28. Send down the record.