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2018 DIGILAW 531 (JK)

Sheeraza Akhtar v. State of JK

2018-07-18

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. An advertisement notification dated 15.07.2010 came to be issued by the Child Development Project Officer, whereby 23 Anganwari Centers were notified for engagement of Anganwari Workers on honorarium basis. In the said notification one center situate at Khudpora in village Devsar also figured where one post of Anganwari Worker had to be filled up subject to fulfillment of the eligibility conditions. 2. It appears that one Saima Akram came to be selected in the said process of selection. The said selection was challenged in appeal by Saira Parveen, respondent no.6 herein, before the Deputy Commissioner, Kulgam. The ground taken in the appeal was that the selected candidate, Saima Akram, was a resident of hamlet Khospora Devsar and was not the resident of Khudpora Devsar. The appellate authority i.e., the Deputy Commissioner, Kulgam, upon receipt of a report from CDPO, Devsar, came to the conclusion that Saima Akram was a permanent resident of hamlet Khospora Devsar which is a separate hamlet and thus was not eligible for engagement as Anganwari Worker. The Deputy Commissioner in his order dated 18.01.2011 also clearly held that the appellate, Saira Parveen, respondent no.6 herein, was a permanent resident of hamlet Khudpora, where the Anganwari Center was situated. Accordingly, while allowing the appeal, the Deputy Commissioner, Kulgam, directed consideration of appellants case for engagement as per norms. 3. Pursuant to the order dated 18.01.2011 passed by the Deputy Commissioner, Kulgam, respondent no.6 came to be engaged vide order dated 03.02.2011 and is working as such. 4. The petitioner herein feeling aggrieved of the order of the Deputy Commissioner, Kulgam, dated 18.01.2011 as also the engagement order of respondent no.6, Saira Parveen, dated 03.02.2011 filed the present petition on 25.03.2011. This court, by virtue of order dated 28.03.2011, while issuing notice ordered that the engagement/selection of private respondent no.6, Saira Parveen, would remain subject to outcome of the civil miscellaneous petition. 5. The plea taken in the writ petition is that the petitioner was a rightful claimant to the post against which the private respondent no.6 has been engaged. This court, by virtue of order dated 28.03.2011, while issuing notice ordered that the engagement/selection of private respondent no.6, Saira Parveen, would remain subject to outcome of the civil miscellaneous petition. 5. The plea taken in the writ petition is that the petitioner was a rightful claimant to the post against which the private respondent no.6 has been engaged. The main grievance, as highlighted in the writ petition, is that after disposal of the appeal by the Deputy Commissioner, Kulgam, it was obligatory for the official respondents to select the petitioner against the advertised post and that instead of doing that the private respondent no.6 was appointed simply on the basis that her appeal had been allowed. Reliance is placed upon the certificate issued by the Executive Officer, Municipal Committee, Devsar, reflecting the names of the residents of Mohalla Khudpora with a view to show that name of the private respondent no.6 was conspicuously absent. It is also stated that petitioner was more meritorious as compared to private respondent no.6. 6. In the response filed by the State, it is stated that the petitioner’s claim that she had a better claim for appointment was baseless inasmuch as the petitioner had remained absent in the process of interview which as per the criteria fixed by the department was mandatory for every candidate. With regard to residential status of private respondent no.6, it was stated that her residential status had been verified on spot verification as also the PRC issued by the Tehsildar Devsar, wherein it was stated that private respondent no.6 was residing within the same hamlet where the Anganwari Center was sanctioned. 7. It needs to be noticed that the assertion of the State respondents that the petitioner had remained absent in the interview which was mandatory for the candidates has not been rebutted. This was a material issue which was required to be denied in case the petitioner had actually appeared in the interview. Equally so it has not been denied by the petitioner that the requirement of appearing in the interview was a mandatory requirement. 8. From the material on record and on the basis of the arguments made by the learned counsel for the parties it becomes clear that as against the selection and appointment of one Saima Akram, the petitioner did not feel aggrieved. 8. From the material on record and on the basis of the arguments made by the learned counsel for the parties it becomes clear that as against the selection and appointment of one Saima Akram, the petitioner did not feel aggrieved. Respondent No.6, Saira Parveen, however, felt aggrieved and approached the Deputy Commissioner, Kulgam, by way of an appeal which was allowed. In the appeal, it was clearly held that respondent no.6 was in fact a resident of hamlet Khudpora. The petitioner, therefore, cannot succeed in the present writ petition by raising an issue with regard to the residential status of private respondent no.6, which has since attained finality. In case the petitioner had felt aggrieved of the manner in which the post of Anganwari Worker was filled up then she should have on her own taken steps to file an appropriate appeal before the Deputy Commissioner at the appropriate time. In any case, the petitioner cannot be permitted to succeed on the ground that she was more meritorious than the private respondent no.6 inasmuch as it has clearly been stated in the counter affidavit that the petitioner had not appeared in the interview which fact remains unrebutted. In the counter affidavit, the State had also taken a plea that appearance in the interview was a mandatory requirement even this fact has not been rebutted by the petitioner. If that be so, the petitioner’s claim that she was more meritorious than private respondent no.6 also becomes untenable. 9. Be that as it may, in my opinion, the writ petition lacks merit and is accordingly dismissed.