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2016 DIGILAW 347 (JK)

Maysooma Akhter v. State of J&K

2016-07-11

JANAK RAJ KOTWAL

body2016
JUDGMENT : Janak Raj Kotwal, J. 1. This is a writ petition. Petitioner seeks writ of certiorari quashing order No. ICDS/Bnl/11-125 dated 18.07.2011 issued by the Child Development Project Officer, Banihal-respondent No. 3, whereby respondent No. 6 has been engaged as Anganwadi Worker for Anganwadi Centre 'Ishaq Colony', Banihal and writ of mandamus directing respondents to appoint the petitioner as Anganwadi Worker for Anganwadi Centre, Naik Pora, Banihal. 2. I have heard learned counsel for the parties and perused the record. 3. Common ground between both the sides is that respondent No. 3 issued Advertisement Notice dated 06.08.2010 calling among others, applications for engagement of Anganwadi Worker for Anganwadi Centre of Mohalla, 'Naik Pora Ishaq Colony Road Side' of Panchayat Halqa, Lamber. Petitioner applied and appeared in the interview. Respondent No. 3 published the proposed select list in a newspaper namely 'Uddan' in its issued dated 17.07.2011 under DIP/JK-6160/2011 dated 15.07.2011. In this list inter alia name of Shahnaz Akhter- respondent No. 6 figured as the only candidate proposed for engagement for the said Anganwadi centre. The list so published invited objections, if any, against the proposed selection to be submitted to respondent No. 3 within ten days of its publication. Petitioner submitted an application to Deputy Commissioner, Ramban-respondent No. 4 objecting selection of respondent No. 6. Respondent No. 4 marked this application to respondent No. 3 requesting him to ensure a fair selection. Respondent No. 3 vide the impugned order dated 18.07.2011 engaged respondent No. 6 as Anganwadi Worker for aforementioned Anganwadi Centre. 4. Case set up by the petitioner is that Revenue Village/Panchayat Halqa, Lamber comprises of Gujjarnar/Gujjar Basti in Ward No. 1, Mirpora in Ward No. 2, Begpora/Batpora in Ward No. 3, Ganaiepora in Ward No. 4 and Naik Pora Bangam in Ward No. 5. Gujjarnar/Gujjar Basti has two Anganwadi Centres and other wards have one Centre each and that no location called as 'Ishaq Colony Naik Pora' exists in the official records as per report of the report of the Tehsildar, Banihal (annexure-B). Petitioner's case further is that she had applied for the said post being a resident of Naik Pora which falls in ward No. 5, whereas respondent No. 6 is a resident of Begpora, which falls in ward No. 3. Petitioner's case further is that she had applied for the said post being a resident of Naik Pora which falls in ward No. 5, whereas respondent No. 6 is a resident of Begpora, which falls in ward No. 3. Petitioner has alleged that in the Advertisement Notice name of the Anganwadi Centre and the village have been shown to be 'Naik Pora Ishaq Colony' just to create a right in favour of the respondent No. 6 even as there is no 'Ishaq Colony' as per the report of the Tehsildar. 5. Petitioner seeks quashing of the engagement of respondent No. 6 on the ground that under Government order No. 07-SW of 2010 dated 18.01.2010 the selection of an Anganwadi Worker is to be made from the hamlet in which the Anganwadi Centre is located and therefore, selection of respondent No. 6, a resident of ward No. 3, Begpora, for engagement in Anganwadi Centre located at Naik Pora comprised in Ward No. 5 is illegal, arbitrary and discriminatory. 6. Respondent No. 3 on one hand and respondent No. 6 on the other have in their objections opposed the writ petition on identical grounds. They have denied the description of the various Anganwadi Centres of village, Lamber as given by the petitioner. Respondent No. 6 in her objections has produced a list of all such centres (annexure-R IV) said to have been obtained by her on an application under Right to Information Act, showing also the name of the Panchayat and the name of the panchayat constituencies in a tabulated form. This list being important, the same is reproduced: "Certified that there are six Constituencies in village Lamber Tehsil Banilal District Ramban. As the certificate of the Block Development Officer, Banihal vide his No. 1514 and date 26.11.2011 Detail given as under: Submitted in original to the CDPO Banihal for favour of information and n/a. Yours faithfully. Sd/ Dilshada Akhter Supervisor ICDS, Banihal Forwarded in original to Shanaz Akhter, Anganwadi Worker Ishaq Colony Lamber Road Side..sick. Sd/-." Clear stand of respondent No. 3 in para II of preliminary objections is that post in question is for "Ishaq Colony Road Side". Sd/ Dilshada Akhter Supervisor ICDS, Banihal Forwarded in original to Shanaz Akhter, Anganwadi Worker Ishaq Colony Lamber Road Side..sick. Sd/-." Clear stand of respondent No. 3 in para II of preliminary objections is that post in question is for "Ishaq Colony Road Side". In justifying and defending the selection and appointment of respondent No. 6 unanimous stand of respondents 3 and 6 is that respondent No. 6, besides being the meritorious candidate in whole of the village having secured 49.3 points/marks as against 32.2 marks secured by the petitioner, is the resident of ward No. 3, Naik Pora Ishaq Colony near roadside, which itself is known as a hamlet of village, Lamber, where the Anganwadi Centre is located. In this context, both these respondents have stated also that all respectful persons of the area through a certificate and resolution have unanimously stated that 'Ishaq Colony Naik Pora' is located at roadside. 7. Ms. Aruna Thakur, learned counsel for the petitioner argued vehemently that the Anganwadi Centre in question is located at Naik Pora comprised in Ward No. 5 and is called as Anganwadi Centre, Naik Pora. She being a resident of Naik Pora alone is eligible for engagement in the said centre but in the Advertisement Notice respondent No. 3 fraudulently suffixed 'Ishaq Colony' to the name of the centre in order to give undue benefit to respondent No. 6, who is a resident of ward No. 3 Begpora. 8. Per contra, Mr. Vishal Bharti, learned Dy. AG, appearing for respondents 1 to 5 and Mr. F.A. Natnoo, learned counsel for respondent No. 6 argued that the Anganwadi Centre in located at Ishaq Colony of Naik Pora, which is comprised in ward. No. 3 and not in ward No. 5, whereas the petitioner is a resident of Bangam comprised in ward No. 5. 9. In resisting the claim of the petitioner, respondents 3 & 6 have contended that petitioner is a resident of Bangam, Lamber and she has misrepresented before this Court by stating her residence as Ishaq Colony New Basti Lamber (Bangam-B) instead of her actual residence at Lamber, Bangam-B. In this context respondent No. 6 has pointed out that petitioner has tempered her application form (annexure-II) by inserting the term 'Ishaq Colony New Basti' against the column of residence with the connivance of some subordinate official of the department through originally she had shown her residence Lamber (Bangam-B). 10. Given that the Advertisement Notice was issued on 06.08.2010, it is not disputed that selection of Anganwadi Workers/Anganwadi Helpers is governed by Government Order No. 07-SW of 2010 dated 18.01.2010, which provides for the eligibility criteria. Clause 1(a) of Government order dated 18.1.2010 as amended by Government order 10-SW of 2010 dated 19.01.2010 in juxtaposition clause 3 (e) provide for the unit of selection of an Anganwadi Worker for a particular Anganwadi Centre. They read: 1(a) "Hemlet shall be adopted as a unit for selection of Anganwadi Worker". 3(e) "The candidate should belong to the hamlet where the Anganwari 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. Likewise, if no suitable candidate in that Revenue Village, a candidate from the adjoining Revenue Village shall be selected on the basis of inter-se-merit". 11. To meet the eligibility criteria for selection and appointment as Anganwadi Worker for an Anganwadi Centre the candidate primarily should belong to the hamlet (habitation) in which the Anganwadi Centre is located, that is, she must be a resident of the same hamlet. If, however, a suitable candidate is not available in that hamlet, the unit of selection gets expended to the Revenue Village of which the said hamlet is a part and likewise, if no suitable candidate is available in the whole Revenue village a candidate from adjoining Revenue Village can be selected. 12. It needs to be noticed, and that is manifest, that Government Order No. 07-SW of 2010 dated 18.01.2010 has not linked the eligibility criteria for selection of Anganwadi Worker with any panchayat halqa or panchayat constituency. Reason may be that a panchayat halqa may not necessarily correspond with a Revenue Village and likewise a panchayat constituency (ward) may not necessarily correspond with a habitation of a Revenue Village. This being the position, the selecting authority, while issuing Advertisement Notice for engagement of Anganwadi Worker for any Anganwadi Centre must give the name of the hamlet (habitation) in which the centre is located and the name of Revenue Village of which the said hamlet (habitation) is a part. 13. This being the position, the selecting authority, while issuing Advertisement Notice for engagement of Anganwadi Worker for any Anganwadi Centre must give the name of the hamlet (habitation) in which the centre is located and the name of Revenue Village of which the said hamlet (habitation) is a part. 13. In the case on hand it has been noticed and needs to be underlined that neither the name of the Revenue Village nor the name of the hamlet has been given in the Advertisement Notice. Instead name of the panchayat halqa, name of the mohalla and in some cases ward-number has been given. The Anganwadi Centre in question figures at serial No. 10 in the Advertisement Notice, the name of panchayat halqa is given as 'Lamber' and name of concerned mohalla as 'Naik Pora Ishaq Colony Roadside'. Ward-number however, has not been shown. 14. It, however, emerges from the pleadings, and emerged as common ground between both the sides, that panchayat halqa, Lamber comprises of the whole Revenue Village of the same name, that is, Lamber, which has various panchayat constituencies (wards) and Anganwadi Centres. Petitioner in paragraph 3 of the petition has given the names of the various panchayat constituencies (wards) of the village and the number of the Aganwari Centres constituted in these wards on the basis of her personal knowledge without, however, any supporting material. On the other hand, a detail in this regard is available in annexure R-IV to the objections filed by respondent No. 6 (Ref. para-6 above) provided to her by the department on her application under RTI Act, which in absence of any rejoinder by the petitioner, can be taken as reliable official version in this regard. 15. Annexure R-IV (supra) would show that Revenue Village (Panchayat Halqa), Lamber comprises of six panchayat constituencies (wards). As the controversy revolves around ward No. 3 and ward No. 5 so both these wards have been noticed. Ward No. 3 is named, 'Upperpora'. It has two Anganwadi Centres, namely, 'Bhatpora Lamber' and 'Ishaq Colony Near Roadside (Naik Pora)'. Ward No. 5 is named, Bangam. It has one Anganwadi Centre namely, Bangam Lamber -B. 16. As the controversy revolves around ward No. 3 and ward No. 5 so both these wards have been noticed. Ward No. 3 is named, 'Upperpora'. It has two Anganwadi Centres, namely, 'Bhatpora Lamber' and 'Ishaq Colony Near Roadside (Naik Pora)'. Ward No. 5 is named, Bangam. It has one Anganwadi Centre namely, Bangam Lamber -B. 16. Contextually, in defending and justifying the selection of respondent No. 6, the clear stand of respondent No. 3 as well as respondent No. 6 primarily is that the Aganwari Centre in question is located in ward No. 3, Naik Pora Ishaq Colony roadside, which itself is known as a hamlet of village Lamber and that respondent No. 6 is a resident of Naik Pora Ishaq Colony Roadside. For ready reference paragraphs 5 & 11 of the objections filed by respondent No. 3 are reproduced: "5. That the averments made in para 5 so far it makes reference to Govt. Order No. 18.1.2010 and the conditions laid down therein are not disputed. However, it is further clarified that the respondent No. 6 being a candidate with 49.3 points/marks was topping the whole village viz merit and otherwise being the resident of ward No. 3 Naikpora Ishaq Colony Near Road side which itself known as a Hamlet of village Lamber has rightly been considered for appointment." 11. That in response to averments made in para 13 it is submitted that the respondent No. 6 besides being adjudged as meritorious among the candidates who applied from the whole Village has also been found the resident of Ward No. 3 Naikpura Ishaq Colony roadside where the Anganwadi Centre is located. As such the contention sought to be made by the petitioner does not require any consideration at all. It is submitted that there is no illegality committed by the respondent authorities in selecting the answering respondent as is sought to be projected by the petitioner." (Underlining by me) 17. The clear position thus emerging, and that is manifest, is that the selection under dispute relates to the Anganwadi Centre located at the roadside in 'Naik Pora Ishaq Colony', which is a hamlet comprised in Ward No. 3 of Revenue Village (Panchayat) Lamber. The clear position thus emerging, and that is manifest, is that the selection under dispute relates to the Anganwadi Centre located at the roadside in 'Naik Pora Ishaq Colony', which is a hamlet comprised in Ward No. 3 of Revenue Village (Panchayat) Lamber. As said above, in terms of the Government order dated 18.01.2010 unit of selection and engagement of an Anganwadi Worker for an Anganwadi Centre is the hamlet in which centre is located and in case no candidate is available in the hamlet the unit of selection gets expended to the whole Revenue Village. Panchayat Halqa/Ward has no relevance in such selection. 18. Petitioner also says that the Anganwadi Centre in question is located in Naik Pora, which according to her, is comprised in ward No. 5. She applied for the said post being a resident of Naik Pora, whereas respondent No. 6 is a resident of Begpora, which falls in ward No. 3. She has alleged that no location called as 'Ishaq Colony Naik Pora' exists in official records as per the report of the Tehsildar (annexure-B) and that in the Advertisement Notice name of Anganwadi Centre and village have been shown to be Naik Pora Ishaq Colony to create right in favour of respondent No. 6. Since the Anganwadi centre is located in Naik Pora, primarily a candidate belonging to Naik Pora would be eligible for engagement in the said Anganwadi Centre, and would have the locus standi to assail the selection and engagement of any other candidate. 19. That the Anganwadi Centre is located in Naik Pora is admitted by both the sides. Dispute narrows down to two questions. One, whether there is no place called as Ishaq Colony and name of the Centre has been shown as 'Naik Pora Ishaq Colony' only to create a right of engagement in favour of respondent No. 6, as alleged by the petitioner and two, whether, the petitioner is a resident of Naik Pora and the respondent is a resident of Begpora, as alleged by the petitioner. 20. 20. The contention of the petitioner that she is a resident of Naik Pora, which is comprised in ward No. 5 and her allegation that there is no place, namely, Ishaq Colony are liable to be rejected straightway for the reason that in her application form, copy whereof has been produced as annexure R-2 by respondent No. 3, which has not been disputed, the petitioner has shown her place of residence as 'Ishaq Colony New Basti Lamber (Bangam-B)'. It is obvious that initially she had shown her place of residence simply as Lamber (Bangam-B) and the term 'Ishaq Colony New Basti' has been interlined. This aspect has been pointed out by respondent No. 6 in her reply stating that petitioner indulged in tempering of relevant document viz. her application form by inserting the term 'Ishaq Colony New Basti' against the column of residence with the connivance of some subordinate official of the department. There is no denial of this aspect. Petitioner has not filed any rejoinder to deny either that in her application form she did not mention her place of residence as 'Ishaq Colony New Basti' or that she did not manage to insert this term at a later stage. It being so, petitioner cannot be heard denying existence of the place Ishaq Colony in village Lamber and the certificate issued by Tehsildar, Banihal in this regard cannot be given any importance because it cannot be said that any settlement or colony in a Revenue village or city will find its place in Revenue record also. 21. Be that as it may, even though in the title of the writ petition, she has shown her residence as ward No. 5, Naik Pora, Bangam, page No. 11 of the paper book of the writ petition shows her as a resident of Bangam, ward No. 5 Panchayat Halqa, Lamber. This is a certificate dated 26.8.2010 issued by Block Development Officer, Banihal, which for ready reference is reproduced: "On the strength of affidavit furnished by the applicant and as reported by secretary Panchayat that Smt. Maysooma Akther D/o Mohd Ayoub Shah is permanently residing in Panch constituency No. 05 of village Bangam Panchayat Lamber of this Block. Her name exists at Sr. No. 80 of draft electoral roll. The said draft electoral roll is subject to further approval/Authentication by the higher authorities. Her name exists at Sr. No. 80 of draft electoral roll. The said draft electoral roll is subject to further approval/Authentication by the higher authorities. The certificate is issued without any cutting and over writing No. 332 Dated 26.08.2010 Sd/- Block Development Officer Banihal. 22. Contention of the petitioner that she is a resident of Naik Pora and Naik Pora is comprised in ward No. 5 is not substantiated and on the other hand there is sufficient material on record to indicate that she is a resident of a place called Bangam. There is no reasonable ground for disbelieving the official version coming through the objections filed by respondent No. 3 supported by his affidavit and annexure R-IV (surpa), which has not been disputed, that Anganwadi Centre in question, that is, Naik Pora, Ishaq Colony falls in ward No. 3, whereas Bangam is a place falling in ward No. 5 and has a separate Anganwadi Centre called as Bangam, Lamber-B. Petitioner not being a resident of Naik Pora, where the Anganwadi Centre is located, has no locus standi to assail the selection and engagement of respondent No. 6 nor any other illegality in the selection of respondent No. 6 has been found. 23. Viewed thus, this writ petition has no merit and is dismissed. 24. Disposed of. Petition Dismissed.