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2017 DIGILAW 254 (JK)

Heimalla Bano v. State of J&K

2017-05-23

TASHI RABSTAN

body2017
Judgment 1. Petitioner seeks quashment of selection of respondent No.5, as Anganwari Worker (AWW) III Angawari Centre (AWC) C.R Pora Mohalla Bonapora in Village C.R Pora Bonapora Payeen, under Expansion Programme Phase-II. 2. The main facts, emanating from the case set up by petitioner, are that in the year 2008, official respondents invited applications from the eligible candidates for the position of Anganwari Worker in Anganwari Centre C.R Para Mohalla Bonapora. It is contended that since October, 1998, petitioner has been working as Anganwari Helper in the Centre, where position of AWW was to be filled up. She, a physically handicapped person with 50 per cent disability, passed matriculation examination with 342 marks. Petitioner claims that though being more meritorious, she has been ignored, whereas respondent No.5, not possessed of much merit, has been selected by respondents, which forced her to knock at portals of this Court with the present writ petition. 3. On notice official respondents have filed objections, contending therein that in pursuance of advertisement notification, only two eligible candidates applied for the said position of AWW. 75 points were fixed as weightage for metric/middle, while as 25 points for viva voce, and that respondent No.5 has secured 38.10 points whereas other candidate, namely, Masooda Akhter, obtained 22.95 points weightage. It is also insisted that petitioner hails from Chaki-Rambirpora Mohalla, Rather Pora Payeen, as such, she does not fall in the approved location, i.e., Bonapora, where the Centre is located, therefore, petitioner’s merit could not be considered, being resident of different location. 4. Learned counsel for the petitioner has stated that petitioner, being more qualified meritorious and experienced as compared to respondent No.5, deserves to be selected inasmuch as she is working since 1998 in the respondent-department, has every right to be considered for selection against the position of Anganwari Worker, as such. According to learned counsel petitioner as well as respondent No.5 hail from the same Mohalla/habitation, where the Anganwari Centre is located therefore, appointment/selection of respondent No.5, is required to be quashed. 5. 1 have heard learned counsel for the parties, considered their submissions and perused the writ record. 6. In terms of Government Order No.07 SW of 2010 dated 18.01.2010, which furnishes norms and guidelines on the subject matter, petitioner has to exhaust the remedy of appeal as well as revision. 5. 1 have heard learned counsel for the parties, considered their submissions and perused the writ record. 6. In terms of Government Order No.07 SW of 2010 dated 18.01.2010, which furnishes norms and guidelines on the subject matter, petitioner has to exhaust the remedy of appeal as well as revision. For facility of reference, it would be appropriate to reproduce relevant, portion of the said guidelines hereunder:— “Appeal: Wherever anybody feels aggrieved with the selection of Anganwadi Worker/Helper or with the mode and manner of selection of the Hamlet for setting up of Anganwadi Centre, an appeal shall be preferred to the Deputy Commissioner concerned within 30 days from the date or selection of Anganwadi Worker/Helper or the date of identification of location of the Halmet for the setting up of Anganwadi Centre. The Deputy Commission concerned shall dispose of the appeal within 15 days from the date of the receipt of the complaint after conducting an enquiry whatever may be deemed necessary. Revision: In case where the order made in the appeal does not satisfy the aggrieved person(s), a revision shall lie with the Divisional Commissioner concerned within 15 days from the date, of passing of the order by the Deputy Commissioner concerned. Divisional Commissioner concerned shall pass as order within one month from the date of the receipt of the revision petition. The order of the Divisional Commissioner concerned in this matter, however, shall be final.” 7. It transpires from the above that petitioner had efficacious, alternative remedy available, however, she, has filed the present writ petition, instead. 8. If parties have remedy to approach Tribunal, they should avail said option instead of approaching Civil Court or High Court under Article 226 of the Constitution of India. Reference in this regard is made to Board of Wakf, West Bengal vs. Anis Fatma Begum and Anr., 2010 (7) Supreme 1059 . A question arose in Bihar State Electricity Board and Another vs. Ramdeo Prasad Singh and Others AIR 2011 SC 3423 , as to whether a workman as defined in the Industrial Disputes Act, can challenge the order of dismissal in a suit and pray for his reinstatement, the Supreme Court held that if a dispute was an industrial dispute relating to enforcement of right or obligation created under the Act, the only remedy available was to get the same adjudicated under the Act, i.e. by raising industrial dispute. The Supreme Court held that the suit, filed by workmen, questioning dismissal and seeking reinstatement, was not maintainable. 9. Entertaining writ petition, in spite of availability of alternative remedy, by the High Court, has not been appreciated by the Supreme Court. The Supreme Court so held in Transport and Dock Workers Union and Others vs. Mumbai Port trust and Another 2011 (2) SCC 575 by opining: “14. In our opinion writ petition filed by the appellant should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellants by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us the some High Courts adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles. 10. Again the Supreme Court III Kanaiyalal Lalchand Sachdev and Others vs. State of Maharashtra and Others, 2011 (2) SCC 782 has held that High Court rightly dismissed the petition on the ground that an efficacious remedy was available to appellants and that it is well settled that ordinarily relief under Articles 226/227 of the Constitution of India, is not available if an efficacious alternative remedy is available to aggrieved person. Reference m this regard was also made to decisions in Sadhana Lodh vs. National Insurance Co. Ltd., (2003) 3 SCC 524 ; Surya Devi Rai v. Ram Chander Rai, (2003) 6 SCC 675 ; and SBI v. Allied Chemical Laboratories, (2006) 9 SCC 252 . 11. In GAIL (India) Ltd. vs. Gujarat State Petroleum Corporation Ltd., (2014) 2 SCC 329, the Supreme Court held that if remedy of arbitration was available, the High Court should not have entertained the writ petition under Article 226 of the Constitution of India and should have relegated respondent in the said case to avail remedy of arbitration and arbitral tribunal could have decided the complicated dispute between the parties by availing the services of the experts. Similar views were made by the Supreme Court in Union of India v. Major General Shri Kant Sharma and Another, AIR 2015 SC 2465 . 12. Even this Court on similar facts in case, titled as, “Sangeeta Devi vs. State and Ors.”, SWP No.2121/2011 decided on 01.04.2017, has held that filing of writ while bypassing the remedy available under Government Order No.07-SW of 2010 elated 18.01.2010, cannot be encouraged. 13. The remedy of writ under Article 226 of the Constitution is extraordinary and discretionary. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. Ordinarily, if a party does not resort to the remedy provided by law and straightway approaches the High Court to question the action of authority in disregard of prescribed procedure that stands on a different footing, in such circumstances writ petition deserves dismissal. These are again the observations of the Supreme Court in Satya Pal Anand vs. State of Madhya Pradesh and Others, (2016) 10 SCC 767 . Be that as it may, when a forum is created for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation and the High Court is not to entertain a petition under Article 226 of the Constitution, if an effective alternative remedy is available to the aggrieved person or the procedure, under which the action complained of has been taken, itself contains a mechanism for redressal of grievance. 14. It is well settled that writ jurisdiction is discretionary jurisdiction and the discretion is not to be ordinarily exercised if there is an alternative remedy available to the person approaching the High Court with writ petition. In the present case, a clear alternative remedy is available to petitioner and hence entertainment of writ petition on hand does not arise at all. This Court cannot adopt an over liberal approach unnecessarily to add the load of arrears instead of observing judicial discipline in following settled legal principles. Writ petition, for all what has been discussed herein above, is not maintainable. 15. In the light of above settled proposition of law as declared by the Supreme Court, and in view of efficacious alternative remedy available to the petitioner in terms of Government Order No.07-SW of 2010 dated 18.01.2010, the writ petition is dismissed. Writ petition, for all what has been discussed herein above, is not maintainable. 15. In the light of above settled proposition of law as declared by the Supreme Court, and in view of efficacious alternative remedy available to the petitioner in terms of Government Order No.07-SW of 2010 dated 18.01.2010, the writ petition is dismissed. However, petitioner is at liberty to avail alternative remedy of filing appeal and the intervening period of delay shall not come in her way, if she chooses to approach the appropriate forum. Interim direction, if any, shall stand vacated.