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2013 DIGILAW 312 (JK)

Anshu Sharma v. State of J&K & Ors.

2013-05-16

DHIRAJ SINGH THAKUR, MOHAMMAD YAQOOB MIR

body2013
Yaqoob, J.— 1. Judgment dated 10th July, 2012 rendered in SWP No. 1653/2010 is the subject matter of challenge in this appeal. By virtue of the said judgment, engagement of respondent No. 9 as Anganwari Worker for Anganwari Centre Jatwal Morn has been maintained. 2. For selection of Anganwari Workers, criteria as laid down in Government Order No. 128-SW of 2008 dated 24.03.2008 was followed whereunder weightage of 75% marks for academic qualification and 25% for Viva Voce was prescribed. The said criteria has undergone change with the issuance of Government Order No. 07-SW of 2010 dated 18.01.2010, in terms whereof, weightage for academic and Viva Voce is prescribed as under: Matriculation 85 points. Viva Voce 15 points Again vide Government order No. 91-SW of 2010 dated 19.04.2010, Order No. 07-SW of 2010 dated 18.01.2010 has been modified. Clause (c) of which is relevant for the purpose of this case, reads as under: "(c) The selection process, if any already underway, shall be completed as per Government Order No. 128-SW of 2008 dated 24.03.2008. In all other cases wherever slot(s) is/are vacant, the same shall be filled-up as per the existing guide lines." 3. An advertisement notice No. DIP/J-7992 dated 21.1.2010 was issued and in the process of selection the criteria as laid down in Government Order No. 128-SW of 2008 dated 24.03.2008 has been followed, as a result thereof, respondent No. 9 has been selected and engaged. 4. Aggrieved thereof, the appellant filed the writ petition projecting therein that for selection criteria envisaged by Government Order No. 07-SW of 2010 dated 18.01.2010 should have been followed. 5. It is also contended by the learned counsel for the appellant that the appellant does not possess only higher qualification but is superior in merit as compared to respondent No. 9 at the Matric standard. In Viva Voce, respondent No. 9 has been awarded 19.5 marks out of 25 whereas the appellant has been awarded 11 marks. Merit has been converted into demerit. In case criteria as envisaged in Government Order No. 07-SW of 2010 dated 18.01.2010 would have been followed, respondent No. 9 would not have been selected. 6. Counsel for respondent Nos. 1 to 7 has projected that the process of selection was underway when Government Order No. 91-SW of 2010 dated 19.04.2010 was issued. Merit has been converted into demerit. In case criteria as envisaged in Government Order No. 07-SW of 2010 dated 18.01.2010 would have been followed, respondent No. 9 would not have been selected. 6. Counsel for respondent Nos. 1 to 7 has projected that the process of selection was underway when Government Order No. 91-SW of 2010 dated 19.04.2010 was issued. Therefore, in terms of Clause (c) of the said Government Order, the criteria as envisaged vide Government Order No. 128-SW of 2008 dated 24.3.2008 has been correctly followed. 7. Learned Single Judge has accepted the said contention by holding that the criteria of allocating 75% marks for academic qualification and 25% for Viva Voce cannot be faulted. 8. The admitted position, as emerges from the records, is that the advertisement notice has been issued on 21.01.2010, i.e., after the issuance of Government Order No. 07-SW of 2010 dated 18.01.2010. So the criteria envisaged for selection, i.e., weightage for academic 85 points and viva voce 15 points was to be applied. Government Order No. 91-SW of 2010 dated 19.04.2010 has been issued in partial modification of the guidelines provided under Government Order No. 07-SW of 2010 dated 18.01.2010. The wordings employed in Clause (c), as quoted above, i.e., "the selection process, if any already underway" would mean that the process which had been initiated and was underway prior to the issuance of Government Order No. 07-SW of 2010 dated 18.01.2010, for that process, criteria as envisaged by Government order No. 128-SW of 2008 dated 24.03.2008 had to be applied, i.e., weightage of 75% marks for academic qualification and 25% marks for viva voce. To say that the modificatory order dated 19.04.2010 was issued after the issuance of advertisement notice dated 21.1.2010, therefore, earlier criteria would apply, is misconceived. Clause (c) in the order date 19.04.2010 has been incorporated only to protect the position of the process of selection initiated prior to 18.01.2010. 9. The criteria as envisaged by Government Order No. 128-SW of 2008 dated 24.03.2008 has been wrongly applied to the instant case because process of selection has been initiated after 18.01.2010. 10. The selection based on such criteria was unwarranted, so has to be quashed as a result thereof, engagement order favouring respondent No. 9 is also quashed. 11. 9. The criteria as envisaged by Government Order No. 128-SW of 2008 dated 24.03.2008 has been wrongly applied to the instant case because process of selection has been initiated after 18.01.2010. 10. The selection based on such criteria was unwarranted, so has to be quashed as a result thereof, engagement order favouring respondent No. 9 is also quashed. 11. The another contention of the learned counsel that respondent No. 9 is resident of village Sangwali, so was not residing in Ward No. 4 where the Anganwari Centre is located, has also been rejected. But in the process, the documents as placed on record before the Writ Court by the appellant, i.e., report of the Patwari and Lumberdar has been ignored whereunder it has been clearly indicated that respondent No. 9 is residing in village Sangwali. 12. Appointment of respondent No. 9 in terms of order dated 24.09.2012 passed during pendency of the appeal has been directed to remain subject to the outcome of the appeal. Result is obvious. The appointment is quashed. 13. The respondent No. 5 shall conduct the interview afresh of all the eligible candidates who have applied and finalize the selection by applying the criteria, i.e., weightage of 85% marks for academic qualification and 15% of viva voce as provided in Government Order No. 07-SW of 2010 dated 18.01.2010. The said exercise shall be undertaken and completed within a period of eight weeks. Respondent No. 9 shall be allowed to continue and her position of engagement shall abide by result of the afore directed selection process. 14. Appeal accordingly succeeds. Judgment impugned is set aside.