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2013 DIGILAW 611 (JK)

Posha Begum v. State

2013-10-09

DHIRAJ SINGH THAKUR

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1. An advertisement notice No. DIPJK-8088 dt. 22.10.2010, came to be issued by the Child Development Project Officer, Rajwar, Handwara, inviting inter-alia applications from eligible candidates for engagement as Anganwadi workers in Anganwadi centre Herpora Geeripora. 2. One of the main condition for eligibility was that the candidate should belong to the same hamlet where the Centre is located. It was further provided in the advertisement notice that, in case, no suitable candidate is available in the hamlet, the selection would be made from revenue village of which the said hamlet was a part. The selection had to be made on the basis of merit inter-se between the candidates. 3. Pursuant to the notification aforementioned, both the petitioner-Posha Begum, as well as the private respondent No. 5-Saleema Bano, applied for the said post and their names were found mentioned in the panel prepared by the Selection Committee. However, even when the respondent No. 5, was found to be more meritorious, she was not engaged on the ground that she did not belong to the hamlet Herpora Geeripora. This resulted in the engagement of the petitioner vide order dt. 11.8.2011. 4. An appeal came to be preferred by respondent No. 5, challenging the engagement of the petitioner and her non selection before the Deputy Commissioner, Kupwara-respondent No. 2. It was asserted in the appeal by the respondent No. 5, that she was the resident of the area which was very much a part of hamlet Herpora Geeripora. 5. The respondent No. 2, on the basis of the material on record held that both the appellant (Saleema Bano-respondent No. 5 herein) and the private respondent (Posha Begum-petitioner herein) are residing within the advertised hamlet. The appeal was finally decided by the respondent No. 2 by virtue of his order dt. 26.3.2012, and the official respondents were directed to issue formal order of engagement as Anganwadi worker in Anganwadi Centre Herpora Geeripora, in favour of private respondent No. 5 herein i.e., appellant before the appellate authority. It is the aforementioned order passed by respondent No. 2, which is impugned in the present petition. 6. Counsel for the petitioner submitted that the order impugned was bad in law as no opportunity of being heard was granted to the petitioner. It is the aforementioned order passed by respondent No. 2, which is impugned in the present petition. 6. Counsel for the petitioner submitted that the order impugned was bad in law as no opportunity of being heard was granted to the petitioner. He further submitted that it is the petitioner only who resides in the hamlet and respondent No. 5, resides one kilometer away from the concerned Centre for which the engagement was sought to be made. 7. Counsel for the official respondents as also private respondent, on the other hand, urged that the petition was not maintainable on the ground that an equally efficacious remedy was available to the petitioner by way of a revision before the Divisional Commissioner, in terms of the approval of the norms in this regard by the Cabinet governing the selection and dispute resolution, circulated by the State Government vide Circular dt. 18.1.2010 and corrigendum issued in this regard vide order dt. 19.1.2010. Attention of the court was drawn to the said norms which provide for a revision against an order of Deputy Commissioner. 8. Counsel for the respondents, therefore, urged that in case the petitioner was not satisfied with the finding returned by the Deputy Commissioner in appeal, the appropriate remedy was to challenge the same before the Revisional authority and that this court was not equipped to return a finding on fact as to whether the parties were actually residing in the hamlet in question or not. 9. In any case, the counsel for the respondents urged that the remedy of writ being a discretionary remedy, was not to be exercised when no reasons have been given as to why the petitioner despite having an equally efficacious remedy by way of a revision before the Divisional Commissioner, chose not to avail the same. 10. Heard learned counsel for the parties. 11. What is challenged before this court is the order dt. 26.3.2012, passed by respondent No. 2. One of the cardinal principles of law is that power of judicial review, under Article 226 of the Constitution of India, is not in regard to the decision but the process of arriving at the decision. Such a view has been taken by the Apex Court in the case reported as Appropriate Authority and another v. Sudha Patil and another, (1998) 8 SCC 237 . Such a view has been taken by the Apex Court in the case reported as Appropriate Authority and another v. Sudha Patil and another, (1998) 8 SCC 237 . In the aforementioned judgment passed by the Apex Court, it was held that even when the order passed by an inferior Tribunal does not provide for an appeal, the High Court cannot get its jurisdiction enlarged and exercise an appellate power while examining the correctness of the conclusion arrived at by such tribunal. What was observed in para 6 of the judgment in the aforementioned case is being reproduced below:- "6. So far as the first question is concerned, the parameters for exercise of supervisory jurisdiction of the High Court under Article 226 of the Constitution while examining the decision of an inferior tribunal has no connection with the question whether an appeal is provided for against the said order of the tribunal under the statute in question. As has been held in several decisions of this Court, the power being supervisory in nature, in exercise of such power, a finding/conclusion of an inferior tribunal can be interfered with if the High Court comes to the conclusion that in arriving at the conclusion, the tribunal has failed to consider some relevant materials or has considered some extraneous and irrelevant materials for that the finding is based on no evidence or the finding is such that no reasonable man can come to such a conclusion on the basis of which the finding has been arrived at. This being the settled position, it is difficult to sustain a plea that when the order of the tribunal does not provide for an appeal, the High Court can get its jurisdiction enlarged and exercise an appellate power while examining the correctness of the conclusion arrived at by such tribunal................ " 12. Similar view has been taken by the Apex Court in Union of India and others v. Shatabadi Trading and Investment Pvt. Ltd. and others, (2001) 6 SCC 748 . In para 5 of the judgment aforementioned, the Apex Court has observed as under:- ".................It is trite to say that the proceedings arising under Article 226 of the Constitution are in the nature of judicial review and such review could be only in respect of the process of decision and not the decision itself........." 13. In para 5 of the judgment aforementioned, the Apex Court has observed as under:- ".................It is trite to say that the proceedings arising under Article 226 of the Constitution are in the nature of judicial review and such review could be only in respect of the process of decision and not the decision itself........." 13. The judgment rendered by the Apex Court in Sudha Patil's case (supra), was referred to in Shatabadi Tradings' case also. 14. Again in State of A.P. v. P.V. Hanumantha Rao and Anr, (2003) 10 SCC 121 , the Apex Court held as under:- "30. True it is that remedy of the writ petition available in the High Court is not against the "decision" of the subordinate court, tribunal or authority but it is against the "decision making process". In the "decision making process", if the court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining." 15. In para 33 of the judgment in the aforementioned case, it was further held as under:- "32. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognized even in the case of Sawarn Singh ( AIR 1976 SC 232 ) on which strong reliance was placed in behalf of the State. The relevant observations are: "In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law." 16. Testing the order of the authority concerned i.e. Deputy Commissioner, Kupwara, on the touchstone of the principles aforementioned, it is seen that the said authority in the present case has recorded a finding based on evidence which was legally admissible. The authority concerned had given an opportunity of being heard to the parties, pursuant to which, some documentary evidence was also produced by the petitioner. The Deputy Commissioner has clearly observed in his order as under:- "Heard the parties. Perused the records placed on the file. What emerges out is that the appellant and the private respondent both are residing within the advertised hamlet. The observations raised by the private respondent and consideration thereof by Respondent no. 02 & 03 is not tenable, as neither the official respondents nor the respondent No. 04 has put forth any tenable, justifiable evidence in support of their objections. Therefore, I am of the considered view that the appeal posses merit and is accordingly accepted. The official respondents are directed to issue formal order in favour of the appellant who was earlier tentatively selected for being engaged as worker for AW Centre Herpora Geeripora. The appeal is accordingly disposed of" 17. What emerges from the aforementioned order passed by the respondent No. 2, is that the petitioner did participate in the appeal proceedings but failed to put-forth any tenable or justifiable evidence in support of her objections. From the order, passed by the aforementioned respondent, it appears that CDPO, Langate, was also asked to furnish a report as regards the residence of the petitioner and respondent No. 5. A copy of the report furnished by the CDPO, Langet, is on record furnished to the Court by the respondents. Following facts are clearly mentioned in the said report:- i/ Geeripora village consists of two parts: a/ Bunpora-having almost 75 choolas (households). b/ Herpora-Having almost 62 choolas (households). Both parts are separated by the Magam road. ii/ Herpora is on North West side. iii/ Herpora is well defined and naturally demarcated. iv/ Saleema D/o Ab Ahad Lone has house no. 12 and Posha w/o Nasir Ahmad, has house no. 20. v/ Both belong to same Ward No. 8. vi/ Both have same Grave yard. vii/ Both share same Mosque. After analyzing the location as well as facts gathered from locals it clearly appears that Saleema D/o Ab Ahad Lone belongs to hamlet Herpora." 18. 12 and Posha w/o Nasir Ahmad, has house no. 20. v/ Both belong to same Ward No. 8. vi/ Both have same Grave yard. vii/ Both share same Mosque. After analyzing the location as well as facts gathered from locals it clearly appears that Saleema D/o Ab Ahad Lone belongs to hamlet Herpora." 18. It was based upon the aforementioned report and the assessment of the appellate authority on the basis of record before it that it came to a conclusion that, in fact, both petitioner and private respondent No. 5, were the residents of the same hamlet. 19. Taking into consideration the decision arrived at by the appellate authority-Deputy Commissioner, Kupwara, on the basis of the material placed before it and testing the same on the touchstone of the law as laid down by the Apex Court in the aforementioned cases, it is seen that there is no perversity in the methodology adopted by the appellate authority in arriving at the decision aforementioned. 20. For the reasons mentioned above, this petition is found to be without merit and is dismissed along with connected IA. Interim direction dt. 4.4.2012, shall stand vacated.