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2018 DIGILAW 952 (JK)

Aatish Bhamotra v. State

2018-12-04

GITA MITTAL, TASHI RABSTAN

body2018
JUDGMENT : 1. By way of instant appeal, the appellant has assailed the decision dated 25th November, 2016, whereby SWP No. 1409/2005 filed by Ms. Sunita Rani (the respondent No. 5 herein) was allowed. 2. Facts giving rise to the present matter is within the narrow compass and to the extent necessary set down hereinafter. 3. An advertisement notice was issued by the Director School Education on 21.02.2005 inviting applications for appointment as Anganwari Workers in various Anganwari Centres. So far as the eligibility condition is concerned, the public notice issued by the official respondents stipulated as follows: “(iii) The applicant must be a Permanent Resident of J&K State and should belong to/permanently reside in the Panchayat Halqa or Ward (in the case of towns/cities); where Anganwari Centre is located.” 4. Amongst the Anganwari Centres to which applications were invited, the Anganwari Centre-in-question including the one notified is located in Arazi Samba Block in Panchayat Halqa Keli Mandi of District Samba. 5. It is undisputed that both the appellant-Aatish Bhamotra and the respondent No. 5-Sunita Rani applied for the said position. 6. It is undisputed on the record placed before the learned Single Judge that Sunita Rani, the respondent No. 5 herein had asserted that she was resident of village Arazi which falls within the territory of Panchayat Halqa Keli Mandi. So far as the appellant is concerned, she is stated to be a resident of Ward No. 11, Kotli, which falls within the limits of Municipal Committee, Samba. 7. In the selection, the appellant was selected and appointed as Anganwari Worker for the Anganwari Centre Arazi Samba Block. This appointment was challenged by the respondent No. 5 herein by way of SWP No. 1409/2005. 8. We may note here that there is no dispute to the qualifications possessed by the appellant and the private respondent No. 5 or their eligibility from this point of view. 9. The challenge laid by respondent No. 5 in her writ petition was primarily on the ground that the appellant herein was not a resident of the Panchayat Halqa within which Anganwari Centre was located and, therefore, she ought not to have been appointed. 9. The challenge laid by respondent No. 5 in her writ petition was primarily on the ground that the appellant herein was not a resident of the Panchayat Halqa within which Anganwari Centre was located and, therefore, she ought not to have been appointed. On a consideration of the material placed by the parties on the writ record, the learned Single Judge accepted the objections made by the respondent No. 5 therein and held that the appellant was a resident of Ward No. 11, which falls within the limits of Municipal Committee, Samba and was not located within the Panchayat Halqa in which the Anganwari Centre was located and consequently was disentitled for appointment as the Anganwari Worker. In this background, the learned Single Judge set-aside the appointment of the appellant herein and directed the official respondents to select and engage the respondent No. 5 (writ petitioner) as Anganwari Worker in Anganwari Centre Arazi Block, Panchayat Halqa Keli Mandi subject to her fulfilling the qualification for the post. The learned Single Judge has also directed the official respondents to accord consideration for adjustment of the private respondent/appellant herein, against some other vacancy keeping in view the fact that on the date of consideration of the writ petition, the appellant herein had already rendered more than ten years service on the post in question. 10. Now aggrieved by this adjudication, the appellant has filed the present appeal assailing the judgment of the learned Single Judge primarily on the ground that the concerned Anganwari Centre is located in Ward No. 11 and that she is resident of Ward No. 11. 11. We have heard learned counsel for the parties at great length and given our considered thought to the matter pressed by the petitioner. The condition of the notice inviting the applications for appointment clearly contained the Condition No. (iii) that the applicant must not only the permanent resident of J&K but also should permanently reside in the Panchayat Halqa where the Anganwari Centre is located. So far as the Anganwari Centres within the limits of Municipal Committees in towns and cities are concerned, it was prescribed that the applicant must be resident of the Ward in which such centre is located. 12. In the present case, it is undisputed that the Anganwari Centre is located in Village Arazi Samba Block. 13. So far as the Anganwari Centres within the limits of Municipal Committees in towns and cities are concerned, it was prescribed that the applicant must be resident of the Ward in which such centre is located. 12. In the present case, it is undisputed that the Anganwari Centre is located in Village Arazi Samba Block. 13. The appellant has contended that Arazi Block falls within the municipal limits of Ward No. 11 of Samba. In this regard, Mr. Thakur, learned counsel for the respondent No. 5 has drawn our attention to the objections filed by the appellant in the writ petition wherein it has been stated as follows: “It is further submitted that the Arazi Samba “B” is a part of Panchayat Halqa Keli Mandi including village Kotli Mandi. The delimitation of the area was completed by the Block Development Officer Samba way back in the year 2003 where some of the area was brought under the Wards but the Arazi Samba continued to be remained the part of Panchayat Halqa Keli Mandi at the time of selection. The area was again bifurcated in to different Wards and subsequently some of the area was brought under Wards from Village Arazi and as such at present the Arazi Samba “B” falls in Ward No. 11.” 14. It is apparent from the above that delimitation of the area was effected in the year 2003 where part of the Arazi Samba B was brought under the municipal limits of Ward No. 11. 15. The aforesaid position stands fortified by the stand of the official respondents taken in the affidavit dated 05th March, 2018 filed by them, which has been sworn by Smt. Kamla Devi, Child Development Project Officer, ICDS, Samba, wherein it is stated as follows: “5. That the Anganwari Centre is functioning presently at the same place where, it was opened in the beginning i.e. Arazi Samba-B. Arazi Samba-B is a village and falls in Panchayat Keli Mandi where private respondent Sunita Rani is residing currently. It is, however, submitted that a Part of Arazi Samba-B, falls under Ward No. 11 also within municipal limits, Samba, wherein Anganwari Centre is presently functioning. It is further submitted that part of Panchayat Halqa Keli Mandi became part of municipal limits of Samba in the year 2004 prior to issuance of advertisement notification dated 21.02.2005.” 16. It is, however, submitted that a Part of Arazi Samba-B, falls under Ward No. 11 also within municipal limits, Samba, wherein Anganwari Centre is presently functioning. It is further submitted that part of Panchayat Halqa Keli Mandi became part of municipal limits of Samba in the year 2004 prior to issuance of advertisement notification dated 21.02.2005.” 16. In view thereof, nothing would turn on the submission of the appellant herein that the Anganwari Centre is located in the municipal limits of Ward No. 11. 17. So far as the residence of the appellant is concerned, we find on record a certificate issued by Thuro Devi, Panch Ward No. 5, Panchayat Halqa, Mandi Keli, Samba, which is to the following effect: “CERTICATE It is confirmed by the undersigned that Miss Atish Bamotra D/o Sh. Harbans Lal belong to Kotli (Samba) under Municipal Committee, Samba. It is also certified that Smt. Sunita Rani W/o Sh. Deepak Kumar R/o Arazi Samba P/o & Tehsil Samba District Jammu and the post of Anganwari Worker has been created at Arazi Samba itself. Thuro Devi Panch Ward No. 5 Panchayat Halqa Mandi Keli Samba.” 18. There can be no manner of dispute at all that so far as the Aatish Bhamotra, the appellant is concerned, she was a resident of Kotli, Samba which falls under the Municipal Committee, Samba. It cannot he held that she was a resident of Village Arazi, Samba Block as is being contended before us. 19. So far as the residence of the private respondent No. 5 is concerned, there is no dispute at all either before us or before the Writ Court, that she was a resident of Village Arazi, Samba Block which falls under Panchayat Halqa Keli Mandi. In this regard, our attention has also been drawn to a Certificate dated 05th August, 2005 issued by Shri Kamer Singh, Sarpanch of Panchayat Halqa, Mandi Keli, Block Samba certifying that Smt. Sunita Rani was a resident as above. 20. We find yet another circumstance which would militate grant of relief to the present appellant. In the affidavit dated 05th March, 2018, the official respondents have further disclosed that the appellant cannot be permitted to continue as Anganwari Worker at the Anganwari Centre at Village Arazi, Samba Block for the reason that she is married and her matrimonial home is located at Diani completely different Panchayat. In the affidavit dated 05th March, 2018, the official respondents have further disclosed that the appellant cannot be permitted to continue as Anganwari Worker at the Anganwari Centre at Village Arazi, Samba Block for the reason that she is married and her matrimonial home is located at Diani completely different Panchayat. The appellant is stated to have settled in the Vijaypur Tehsil which is altogether different ICDS Block. 21. In view of the above, the finding of the learned Single Judge that the appellant was not a resident of the Panchayat Halqa in which the Anganwari Centre is located is correct. Merely because the person who was not eligible to be initially appointed has been appointed and continued in position for the period of ten years because the writ petition filed in 2005 remained pending in Court for ten years, from the year 2005 till its dismissal by the order dated 25.11.2016 would not justify her continuation or re-engagement to a position. 22. The appeal is hereby dismissed along with the pending application.