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2018 DIGILAW 107 (JK)

Nisha Rana v. State

2018-02-26

RAMALINGAM SUDHAKAR

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JUDGMENT : 1. Both the writ petitions are taken up together for hearing. 2. The petitioner-Nisha Rana in SWP No.1418/2015 seeks the following relief:- “Certiorari quashing the order dated 01.04.2015 in so far as it affects the petitioner as the direction has been passed for the initiation for the fresh selection process with a further direction to the respondents to engage the petitioner as Anganwari Worker in newly created Anganwari Centre in Mohalla Sardari Lal SC, which falls in Ward No.1 in village Hamirpur.” 3. The petitioner-Sonali Sharma in SWP No.1118/2015 seeks the following relief:- “(i) A writ in nature of certiorari thereby the order of the respondent No.2 bearing No.DCK/Legal/2015-16/01-03 dated 01.04.2015 be quashed/annulled/set-aside. (ii) A writ of the nature of Mandamus commanding/directing the respondent Nos.1 to 4 to restore the selection list (Annexure-B) bearing No.DIP/J-7539/15 dated 14.02.2015 issued by the respondent Nos.3&4 (Annexure B) maintain the same and abide by/ act upon in its letter and spirit by posting the petitioner as Anganwari Worker in Centre Hamirpur Kathua.” 4. Sonali Sharma, the selected candidate, is aggrieved by the order dated 01.04.2015 primarily on the ground that though she was not heard and no opportunity has been given to her to participate in the process of hearing of the appeal filed by one Nisha Rana and in any event, the impugned order does not give any reason whatsoever as to the claim of the petitioner-Sonali Sharma and in contrast with that of the claim of petitioner-Nisha Rana, therefore, it is a non-speaking order and without application of mind purely based on a report of the Child Development Project Officer, ICDS Project Barnoti, which report was not given to the petitioner. The order dated 01.04.2015 is a cryptic order, the same reads as follows:- To The District Project Officer, ICDS, Kathua. No: DCK/Legal/2015-16/01-03 Date:01.04.2015 Subject: In the matter of Nisha Rana W/o Sh. Gian Chand R/o Ward No.1 (Mohalla Sardari Lal SC) Tehsil Hiranagar District Kathua vs. CDPO & others (Selection of Anganwari Woker). Sir, While examining the report submitted by the Child Development Officer ICDS, Project Barnoti vides his office letter No.CDPO/Br/2014-15/2387/15 dated 16.03.2015, it has been observed that Smt. Nisha Rana W/o Sh. Gian Chand R/o Ward No.01, village Hamirpur, Tehsil Hiranagar seems to be right claimant for the post of Anganwari Worker instead of Miss. Sir, While examining the report submitted by the Child Development Officer ICDS, Project Barnoti vides his office letter No.CDPO/Br/2014-15/2387/15 dated 16.03.2015, it has been observed that Smt. Nisha Rana W/o Sh. Gian Chand R/o Ward No.01, village Hamirpur, Tehsil Hiranagar seems to be right claimant for the post of Anganwari Worker instead of Miss. Sonali Sharma D/o Kuldeep Raj Sharma R/o Ward No.03 as Smt. Nisha Rana belongs to the SC Mohalla. In the view of above findings/report submitted by CDPO selection of the above said candidate is hereby quashed and directed to initiate fresh selection process action report. Deputy Commissioner Kathua 5. Nisha Rana, who participated to the post of Anganwari Worker pursuant to the advertisement notice, is aggrieved by the direction issued by the Deputy Commissioner, Kathua to initiate fresh selection process after setting aside the selection of Sonali Sharma. According to Nisha Rana, if the selection of Sonali Sharma is set aside, the selection process should have been continued with the next available candidate, that appears to be the grievance of the petitioner-Nisha Rana in SWP No.1418/2015. 6. A perusal of the files produced by the either party would reveal that Sonali Sharma was, in fact, selected as Anganwari Worker by proceedings dated 14.02.2015 signed by the D.P.O (ICDS Project) District Kathua (Chairman Selection Committee), District Social Welfare Officer, Kathua and Child Development Project Officer, ICDS Project, Barnoti. Against this selection, Nisha Rana filed an appeal to the Deputy Commissioner, Kathua (Annexure-F to her writ petition) alongwith interim petition for stalling the selection process. The following interim order was passed on 23.02.2015:- No.DCK/HQA/2014-15/784-85 Date: 23.02.2015 Subject : In the matter of Nisha Rana W/o Sh. Gian Chand R/o Ward No.1 (Mohalla Sardari Lal SC) Hamirpur, Tehsil Hiranagar Kathua vs. CDPO & ors. (Selection of AWHs). Sir, Kindly refer to the subject cited above. In this context, I am directed by the worthy Deputy Commissioner, Kathua to request you to provide complete selection process record pertaining to selection of AWHs to this office with in two days & also direct Sonali Sharma D/o Sh. Kuldeep Raj Sharma R/o Ward No.3, House No.1 Hamirpur Tehsil Hiranagar Distt. Kathua to attend worthy Deputy Commissioner’s office on 02.3.2015 at 10.00 AM alongwith all relevant documents. It is further directed that the selection proceedings shall remain stayed till 02.3.2015. 7. Kuldeep Raj Sharma R/o Ward No.3, House No.1 Hamirpur Tehsil Hiranagar Distt. Kathua to attend worthy Deputy Commissioner’s office on 02.3.2015 at 10.00 AM alongwith all relevant documents. It is further directed that the selection proceedings shall remain stayed till 02.3.2015. 7. From this interim order, it is clear that a specific direction has been issued to issue notice to Sonali Sharma D/o Sh. Kuldeep Raj Sharma so that she can attend the hearing on 02.03.2015. Unfortunately, even as per this document, this Court finds that the copy of notice dated 23.02.2015 has been issued only to Nisha Rana, who is the appellant before the Deputy Commissioner, Kathua but there is nothing to indicate that the notice dated 23.02.2015 was issued to Sonali Sharma. 8. Be that as it may, the impugned order also does not state whether Sonali Sharma D/o Sh. Kuldeep Raj Sharma was noticed and heard. The impugned order only states that the report of the CDPO, ICDS Project Barnoti dated 16.03.2015 holds in favour of Nisha Rana and against Sonali Sharma. In fact, the authority has simply abdicated his function of hearing the matter on merits. The order is simply based on the aforesaid report of CDPO, setting aside the selection of Sonali Sharma. The Deputy Commissioner, Kathua erred in passing a non-speaking order, without application of mind to the rival claims. It also shows total non-application of mind to Sonali’s claims. 9. Besides the plea of no notice and no hearing is evident from the order itself. 10. This Court finds no hesitation to accept the plea of Sonali Sharma that the impugned order should be set aside and the appeal should be considered afresh after hearing Nisha Rana W/o Sh. Gian Chand as well as Sonali Sharma D/o Sh. Kuldeep Raj Sharma on merits. Accordingly, the impugned order is set aside. 11. Both the parties will be entitled to submit their records before the authority. A copy of the report of the CDPO shall be given to Sonali Sharma so as to enable her to submit her objections. 12. Since the writ petition of Sonali Sharma is allowed, no order is required to be passed in other writ petition filed by Nisha Rana. 13. A copy of the report of the CDPO shall be given to Sonali Sharma so as to enable her to submit her objections. 12. Since the writ petition of Sonali Sharma is allowed, no order is required to be passed in other writ petition filed by Nisha Rana. 13. As and when the proceedings stand concluded, either of the aggrieved party is entitled to pursue the matter by way of appeal in terms of Government order No.07 SW of 2010 dated 18.01.2010 in relation of selection of Anganwari Workers/Helpers. 14. Writ petition No. 1118/2015 of Sonali Sharma is allowed and writ petition No. 1418/2015 of Nisha Rana is disposed of along with connected MP(s).