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2013 DIGILAW 92 (JK)

Ridwana Parveen v. State Of J&K

2013-02-18

ALI MOHAMMAD MAGREY, Hasnain Massodi

body2013
Massodi, J. (Oral) 1. Whether a candidate engaged as Anganwadi Worker against a leave arrangement and after discharging her duties as such for some time and thereafter transferred/regularized against a clear Anganwadi position, has a right to get her seniority reckoned from the date of her initial engagement against leave arrangement, is the issue involved in the present Letters Patent Appeal. The controversy arises in the following factual background mapped out in the next para. 2. Syeda Showkat Ara - respondent No. 8 in the appeal was vide order No. ICDS/Breng/Estt/64-66 dated 2.7.1990 engaged as Anganwadi Worker in the Anganwadi Center Noorpora for a period of two months against leave vacancy of one Ms. Rozi. She was allowed to continue for a further period of two months and her terms as such extended from time to time till she, as per her claim, was engaged vide order No. ICDS/Breng/Estt/10-23 dated 3.2.1991 as Anganwadi Worker against a migrant vacancy of Ms. Koushalya in Anganwadi Center Noorpora. She continued as such from 4.4.1991 till 31.7.1992. She was vide order No. ICDS/B/Camp dated 1.8.1992 transferred against a clear vacancy vacated by Ms. Amira Jan. 3. The Programme Officer ICDS Anantnag issued a seniority list of Anganwadi Workers wherein date of engagement of respondent No.8 against leave arrangement, was shown as the date of her initial engagement. She was thereafter vide order No. 567/DSW of 2005 dated 17.8.2005 promoted as Supervisor. 4. The District Social Welfare Officer some time after the promotion order dated 17.08.2005 was issued in favour of respondent No.8, realized that the respondent's seniority was not to be reckoned w.e.f the date of her initial engagement against leave arrangement and she did not have a right to be placed at Sr. No.13 in the seniority list. Her promotion order was accordingly cancelled on 26.8.2005. 5. The respondent No. 8 questioned the order whereby her promotion was cancelled in a writ petition being SWP No. 1017 of 2005. The petition was disposed of with a direction to Director Social Welfare to accord consideration to the representation claimed to have been filed by her, voicing her grievances. Her promotion order was accordingly cancelled on 26.8.2005. 5. The respondent No. 8 questioned the order whereby her promotion was cancelled in a writ petition being SWP No. 1017 of 2005. The petition was disposed of with a direction to Director Social Welfare to accord consideration to the representation claimed to have been filed by her, voicing her grievances. Director Social Welfare in compliance of the writ court order dated 6.6.2008 accorded consideration to the representation and directed that respondent No.8's seniority be reckoned w.e.f 01.08.1992 i.e the date she was transferred vide order No. ICDS/D/Camp dated 1.8.1992 against a clear vacancy that had become available due to resignation of one Mst. Amira Jan. 6. Syeda Showkat Ara questioned the consideration order in a writ petition being SWP No.933/2007. She insisted that her seniority was erroneously fixed w.e.f 1.8.1992 and that her seniority deserved to be fixed w.e.f 3.2.1991 i.e. the date she was asked to work against a migrant vacancy. The writ petition was opposed by the respondents in the writ petition on the ground that respondent No.8 was working against a leave arrangement w.e.f 2.7.1990 to 1.8.1992, and her seniority could not be reckoned from the date earlier to 1.8.1992. 7. The writ court disposed of the writ petition vide judgment dated 6.6.2008 directing the respondents to re-examine/reconsider her case giving her seniority right from her initial appointment against the leave vacancy from 2.7.1990 to 01.08.1992 unless there was a break in her service during the said period. The writ court took a view that Anganwadi Worker does not hold a civil post and therefore once the Anganwadi Worker position becomes available because of transfer, leave or migration any substitute engaged against such position would get seniority from the date she occupied the position. Ld. Writ court placed reliance on law laid down in State of Karnataka v. Amir Bi (2006) 13 SCALE 319 . 8. Under Secretary to Government, Social Welfare Department as a sequel to the judgment addressed communication No. SW/OCDS/19 dated 15.10.2010 to Director Social Welfare Department Jammu/Kashmir, inter alia directing that migrant substitutes be given seniority from the date of their engagement as such and accordingly considered for regularization as Supervisors. Close on heels of the aforementioned communication, came the order No.289/DSWK of 2011 dated 30.5.2011 whereby respondents 7 & 8 have been temporarily appointed as Supervisors in the grade of Rs.4000-6000. Close on heels of the aforementioned communication, came the order No.289/DSWK of 2011 dated 30.5.2011 whereby respondents 7 & 8 have been temporarily appointed as Supervisors in the grade of Rs.4000-6000. The order has been made subject to the writ petitions 24/2011, 27/2011 and any other writ petition pending before the High Court. 9. Ridwana Parveen, present appellant was not a party to either of the writ petitions filed by respondent No. 8. The appellant is a graduate Anganwadi Worker appointed against a clear vacancy. She claims to rank senior to respondent 7&8 and therefore to have a right to be promoted /appointed as Supervisor ahead of the respondents 7&8. The appellant questions the writ court order dated 6.6.2008 on the grounds that the controversy involved has not been appreciated by the writ court in right perspective that the conclusions drawn, do not find support from the law laid down in State of Karnataka v. Ameer Bi (2006) 13 SCALE 319 and that the judgment is rendered oblivious to Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules 1991. The appellant insists that the communication No. SW/OCDS/19 dated 15.10.2010 is not in tune with Rule 9 J&K Social Welfare (Non Gazetted) Service Recruitment Rules 1991 as also Rule 24 J&K Civil Services (Classification, Control and Appeal) Rules 1956. 10. Heard and considered. 11. The Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules, 1991 (hereinafter Rules of 1991) deal with constitution of J&K Social Welfare non gazetted service recruitment to the services, maintenance of seniority and allied matters. The post of Supervisor is borne on the Service. Schedule VI to the Rules of 1991 deals with posts of CDS wing and lays down the minimum qualification for direct recruitment and method of recruitment for the post of Supervisor and other Posts (Anganwadi worker in the Wing). The Rules of 1991 have been substituted by Jammu and Kashmir Social Welfare (Subordinate) Service Recruitment Rules, 1992 notified vide SRO 335 dated 22nd of 2009. [Refer 2009 (9) JKS JK-292] However, Rules of 1991 are relevant to the present controversy. Schedule VI reads as under: Designation Minimum Qualification for direct recruitment Method of recruitment Supervisor Graduate with training in Anganwari course from any recognized institution/aided institution. Preference will be given to female candidates having one of the subject as Home Science/Child Development/Sociology i. 50% by direct recruitment ii. Schedule VI reads as under: Designation Minimum Qualification for direct recruitment Method of recruitment Supervisor Graduate with training in Anganwari course from any recognized institution/aided institution. Preference will be given to female candidates having one of the subject as Home Science/Child Development/Sociology i. 50% by direct recruitment ii. 25% posts would be reserved for selection from amongst Anganwari workers who have rendered 5 years service as such and are graduates. iii. 25% posts would be reserved for selection from amongst Matriculate Anganwari workers who have rendered not less than 10 years service as such. Matriculation with training in Anganwari course for Anganwari workers of class III with at least 10 years of service. The selection of candidates against the reserved quota of graduate/matriculation Anganwari workers would be made through SSRB. In case sufficient number of candidates from amongst the Anganwari workers aren't available/not suitable the posts will be filled up by recruitment. In case of Anganwari workers the relaxation of age bar maybe granted up to maximum period of 10 years; provided they are otherwise eligible. Anganwari Workers Middle pass and above. 100% by direct recruitment. The appointment will be made strictly in accordance with the procedure laid down in ICDS Manual as per extent reproduce here under. "the anganwari workers expected to be a women in the age group of 21-45 years and is to be selected from within the village/local community. Special care has to be taken in the selection to be Anganwari Workers so that she can effectively serve the peaceful children,, pregnant women and nursing mothers and women in the age group of 15-44 years of the project area. She should be able to work with women and children of the Scheduled Castes and Scheduled tribes and other weaker sections of the community." 12. We are required to give a closer look to the Rules of 1991 to find out the mode and manner in which the seniority of the members of Jammu and Kashmir Social Welfare (Non Gazetted) Recruitment Rules, 1991 including that of Supervisor, Anganwadi worker, etc is to be maintained. Rule 9 of the Rules of 1991, titled "Maintenance of Seniority" in particular needs to be noticed for the purpose of present controversy. It provides: "Seniority of the members of the service shall be regulated under the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. Rule 9 of the Rules of 1991, titled "Maintenance of Seniority" in particular needs to be noticed for the purpose of present controversy. It provides: "Seniority of the members of the service shall be regulated under the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. The administrative department in the Civil Secretariat shall maintain an up to date and final seniority list of the service". 13. The controversy raised in the present petition relates to pre 2009 period, the focus therefore is to remain on Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules, 1991. The post of Assistant Child Development Officer (ACDO) and Anganwadi worker finds mention in schedule VI to the Rules of 1991. The recruitment, seniority and allied matters of the Anganwari workers, supervisor etc. in CDS wing of the Social Welfare Department are therefore governed by Rules of 1991. Rule 9 of Rules of 1991 refers to the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 24 of Jammu and Kashmir CS (CC&A) deals with seniority. It reads as follows. "The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be". 14. It follows that while determining seniority of an Anganwari worker to consider her promotion as Supervisor, reference is to be made to Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules, 1991 as also Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. 15. Learned Single Judge while disposing of the writ petition has not made even a passing reference to Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules, 1991, as also Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Learned Single Judge instead has proceeded on the assumption, that as an Anganwadi worker does not hold civil post, her seniority is to be computed from the date she is engaged irrespective of the status given to her and the reason that lead to her engagement, as such. Learned Single Judge instead has proceeded on the assumption, that as an Anganwadi worker does not hold civil post, her seniority is to be computed from the date she is engaged irrespective of the status given to her and the reason that lead to her engagement, as such. Learned Single Judge further proceeded to hold that seniority of an Anganwadi worker engaged on leave arrangement and later regularized against the vacant position is to be counted from the date of his initial engagement. The question as to how the controversy would be impacted by the mandate of Rules of 1991 has not been at all looked into by the writ court. 16. We are of the opinion that this aspect of the matter required to be gone through before holding the writ petitioner/respondent no. 8 entitled to seniority w.e.f the date of her initial engagement on leave arrangement. 17. The writ court while allowing the writ petition has placed reliance on laws laid down in State of Karnatka v. Ameer Bi (2006) 13 Scale 319 . The matter related to an Anganwadi worker discharging duties under the ICDS programme in the State of Karnatka. The Anganwadi workers in the State of Karnatka admittedly were not covered by any recruitment rules and their conditions of service were regulated by ICDS scheme. The position in Jammu and Kashmir State is different, as the Aaganwari worker as also other posts in the hierarchy in CDS Wing are governed by Jammu and Kashmir Social Welfare (Non Gazetted) Recruitment Rules 1991 and find places in schedule VI to the Rules. The facts of the present case therefore are markedly different from the facts of Ameer Bi's case (Supra). It is debatable whether the law laid down in Ameer Bi's case having regard to different status of Anganwari worker in two states i.e. Karnataka and Jammu and Kashmir, would be applicable in the facts of the present case. This aspect of the matter has also escaped attention of the writ petition 18. We for the reasons discussed find merit in the present appeal. We accordingly allow the Letters Patent Appeal and set aside the wit court judgment dated 6th June 2008, called in question in the present appeal and remand the matter to the writ court for consideration afresh, after affording parties an opportunity to complete their pleadings. 19. We for the reasons discussed find merit in the present appeal. We accordingly allow the Letters Patent Appeal and set aside the wit court judgment dated 6th June 2008, called in question in the present appeal and remand the matter to the writ court for consideration afresh, after affording parties an opportunity to complete their pleadings. 19. We are told that the appellant in addition to challenge to the writ court judgment dated 6th June 2008, through medium of instant Letters Patent Appeal, has assailed the order No. 289-DSW-of 2011 dated 30th May 2011 as also the communication No. SW/ICDS/19/2010 dated 15th October 2010 in a separate writ petition. It would be just and proper to take up the SWP No. 933/2007 alongside the writ petition filed by present appellant on same controversy though raised in two different writ petition's so as to avoid conflicting judgments. 20. Registry to list the writ petitioners at an earliest. 21. The letters patent appeal is accordingly disposed.