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J&K High Court · body

2016 DIGILAW 213 (JK)

Sushma Devi v. State of J&K

2016-04-22

JANAK RAJ KOTWAL

body2016
JUDGMENT : Janak Raj Kotwal, J. Respondent No. 2, the Programme Officer, ICDS Project (Chairman District Level Selection Committee), Kathua issued Advertisement Notice No. POK/ICDS/2010-11/421-40/10, dated 03.07.2010 calling applications inter alia for engagement of the Anganwadi Worker for Anganwadi Centre, Churnda, Panchayat and Village, Sadrota, Tehsil Billawar. The Notice provided inter alia that the applicant must be a permanent resident of the village/hamlet, where the Anganwadi centre is located. 2. Petitioner applied for the said post claiming to be a resident of hamlet, Churnda and fulfilling the requisite qualification and other conditions mentioned in the Notice. She was called for interview. Respondent No. 3, the Child Development Project Officer, Lohai Malhar, published provisional select list of Anganwadi Workers to be engaged in different Anganwadi Centers. Private respondent, Veena Devi D/o Thakur Dass figured in the list for engagement for the aforementioned Anganwadi Centre. Petitioner, however, did not figure in this list. 3. Petitioner claims to have raised objection against selection of the private respondent by a written representation to the Tehsildar, Billawar and respondent No. 3, alleging that the private respondent is not a resident of hamlet, Churnda/Ward No. 3. She further claims to have filed SWP No. 578/2011, before this Court, which according to her, was disposed of on 18.03.2011 with a direction to her to file appeal before the Deputy Commissioner, Kathua in terms of Govt. Order No. 07-SW of 2010, dated 18.01.2010 (hereinafter to be referred as G.O. No. 07-SW). She claims to have filed appeal dated 21.03.2011 (Annexure-G) before the Deputy Commissioner, Kathua. 4. Petitioner, however, filed this writ petition alleging that respondents have decided to appoint the private respondent ignoring her objection. She assails and seeks quashing of the selection of the private respondent on the ground that she is not a resident of hamlet, Churnda. She is a resident of hamlet, Owandi, which is 3 kms. away from Churnda. Besides, on the ground that she was possessing superior merit having educational "qualification of 10+2 as compared to private respondent, who is a matriculate only. She contends that selection of the private respondent is discriminatory and violative of Articles 14 and 16 of the Constitution of India. 5. Heard learned counsel for the parties and perused the record. 6. Besides, on the ground that she was possessing superior merit having educational "qualification of 10+2 as compared to private respondent, who is a matriculate only. She contends that selection of the private respondent is discriminatory and violative of Articles 14 and 16 of the Constitution of India. 5. Heard learned counsel for the parties and perused the record. 6. Stand of the official respondents in their reply is that after raising of the objection by the petitioner regarding place of residence of the private respondent they got the place of residence of the latter verified from the Revenue authorities two times and taking into consideration the certificate issued by the Tehsildar, Billawar showing the private respondent residing in hamlet, Churnda, issued engagement order in her favour. Official respondents, however, have not specifically denied the contention of the petitioner that private respondent was not a resident of hamlet, Churnda but a resident of hamlet, Owandi, Ward No. 3. 7. Stand of the private respondent is that petitioner as well as private respondent belong to the same ward, that is, Ward No. 3, Panchayat Halqa, Sadrota and are placed on equal footing. She is higher in merit and has been rightly selected. Private respondent, however, too has not specifically denied the contention of the petitioner that she is a resident of hamlet, Owandi and not of hamlet, Churnda and the intervening distance between the two hamlets is 3 kms. 8. The Anganwadi Centre in question is located in hamlet, Churnda. It is not disputed that the petitioner is a resident of that hamlet. In support of her allegation that the private respondent is a resident of hamlet, Owandi, petitioner has produced copy of residence certificate issued by the Block Development Officer, Lohai Malhar, District Kathua showing that the private respondent is a resident of Ward No. 3 (Owandi). The private respondent in her reply has not denied the specific contention of the petitioner that she is a resident of hamlet, Owandi and has instead stated widely that both she and the petitioner belong to Ward No. 3 of Panchayat Halqa, Sadrota. The private respondent in her reply has not denied the specific contention of the petitioner that she is a resident of hamlet, Owandi and has instead stated widely that both she and the petitioner belong to Ward No. 3 of Panchayat Halqa, Sadrota. Likewise, the official respondents too have not denied the specific contention that private respondent is a resident of Halqa, Owandi though their contention is that after raising of the objections by the petitioner, they had got private respondent's place of residence verified from the Revenue Authority and engaged her taking into consideration the certificate issued by the Tehsildar, Billawar showing that she is a resident of hamlet, Churnda. In support, they have produced as Annexure-A, a document, whereby Patwari seems to have verified that nine candidates that include petitioner named therein and private respondent, were residents of hamlet, Churnda. The certificate said to have been issued by the Tehsildar, Billawar, however, has not been produced. 9. What emerges from the pleadings of the parties and the documents produced by the petitioner in relation to place of residence of the private respondent is that the private respondent is a daughter of one Thakur Dass, who resides in hamlet, Owandi. In this backdrop the verification certificate of the Patwari in regard to the list of the candidates produced by the official respondents, cannot be given any weightage. What is rather clear than evident from the reply of the private respondent as also the representation of the petitioner, which was earlier submitted by her to the Tehsildar, Billawar, is that both hamlet, Churnda and hamlet, Owandi are comprised in ward No. 3 but the fact of the matter remains that these are two separate hamlets of village, Sadrota. 10. The Advertisement notice in question was issued in July, 2010. Engagement of Anganwadi Worker/Anganwadi Helper is governed by Govt. Order No. 07-SW of 2010, dated 18.01.2010 (for short G.O. No. 07-SW). Clause (1) (a) G.O. No. 07-SW, provides that the 'Revenue Village' shall be adopted as a unit for selection of Anganwadi workers. Clause 3(e) provides that for engagement as Anganwadi worker, the candidate should belong to the hamlet, where the Anganwadi Centre is located. If a suitable candidate is not available in that hamlet, the candidate should be selected from the Revenue Village of which the said hamlet is a part. Clause 3(e) provides that for engagement as Anganwadi worker, the candidate should belong to the hamlet, where the Anganwadi Centre is located. If a suitable candidate is not available in that hamlet, the candidate should be selected from the Revenue Village of which the said hamlet is a part. If, however, no suitable candidate in the Revenue village is available, a candidate from the adjoining revenue village shall be selected on the basis of inter-se merit. 11. It is, thus, mandatory for the selecting authority/ appointing authority to select and engage a suitable candidate, if available, from the hamlet in which the Anganwadi Centre is located, notwithstanding higher merit of any other candidate residing outside that hamlet. It is only when a suitable candidate is not available in the hamlet in question, candidate may be selected from the Revenue Village of which that hamlet is a part or the adjoining Revenue Village as the case may be. There is no scope of engaging a candidate from another hamlet even if the two hamlets are comprised in the same ward. Private respondent is a resident of hamlet, Owandi and the Anganwadi Centre is located in Hamlet, Churnda so selection and appointment of private respondent dehors the criteria laid down in G.O. No. 07-SW, even if the two hamlets are comprised in the same ward. Selection and engagement of the private respondent, therefore, cannot sustain for the aforementioned reasons and is liable to be quashed. 12. Having so held, it, however, is not possible to issue a direction for declaring the petitioner as selected candidate and to engage him because material produced by the parties is not sufficient to show that she alone was a suitable candidate from hamlet, Churnda. Case of the petitioner in this regard, briefly, is that she was called for interview but later private respondent figured in the provisional select list. There is no material to show nor it has been contended that none other than the petitioner belonging to hamlet, Churnda had applied for the post, or is more suitable than her. 13. Case of the petitioner in this regard, briefly, is that she was called for interview but later private respondent figured in the provisional select list. There is no material to show nor it has been contended that none other than the petitioner belonging to hamlet, Churnda had applied for the post, or is more suitable than her. 13. For all that said and discussed above, this writ petition has merit so by issue of writ of certiorari selection/engagement of private respondent, Veena Devi D/o Thakur Dass as Anganwadi Worker for Anganwadi Centre, Churnda is quashed and by issue of writ of mandamus official respondents are directed to undertake the selection process afresh on the basis of applications already received from the candidates belong to hamlet, Churnda. Since the matter relates to the year, 2010, this exercise be completed expeditiously not later than four weeks hereafter. 14. Disposed of.