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2025 DIGILAW 169 (JK)

Aasia Jan v. State of J&K

2025-03-26

RAJNESH OSWAL

body2025
JUDGMENT : 1. By this common order, the above numbered two writ petitions filed by petitioner Aasia Jan are proposed to be disposed of. 2. The petitioner was engaged as Anganwadi Worker in Anganwadi Centre at Lalgam (Manzipora) vide order dated CDPO/T/Estt/2015/714-15 dated 23.03.2015. By asserting that the respondent No.4 i.e. Child Development Project Officer, ICDS Project, Tral Pulwama, has entertained the objections in respect of tentative selection list issued by the official respondents, the petitioner has filed writ petition bearing WP(C) No.3108/2019, praying therein that the respondents be directed to allow the petitioner to work on the position of Anganwadi Worker engaged in terms of order dated 23.03.2015. 3. In the aforesaid writ petition, the official respondents have filed their response stating therein that one post of Anganwadi Worker was sanctioned by the Government for its establishment in Manzimpora Lalgam during the expansion program 2014-15 and the said post was advertised on 25.08.2014 through print media and in response thereto, eight applications were received and Sarpanch of the area certified that the candidates belong to Lalgam Manzimpora. One candidate-Tahira Akhter was found to be non-local out of the candidates. It is further stated that one Shazia Nabi had filed a writ petition bearing SWP No.1686/2015 which came to be disposed of by this Court vide order dated 10.08.2015 and she has also filed a contempt petition which is pending consideration before this Court and the matter has been referred to Deputy Commissioner, Pulwama for ascertaining the actual residence of the petitioner. 4. The petitioner-Aasia Jan has filed another writ petition bearing WP(C) No. 406/2021, wherein she has impugned communication No. ADC/Tral/Gen/2020-21/3938-41 dated 30.01.2021 addressed by the Additional Deputy Commissioner, Tral, to the respondent-Deputy Commissioner, Tral, whereby the findings recorded by the Enquiry Committee have been communicated to the said respondent. 5. It is contended by the petitioner that the official respondents had had constituted a committee to enquire the genuineness of the engagement of the petitioner in hamlet Manzipora Lalgam Tral. The Enquiry Committee without any notice to the petitioner has taken a decision in derogation to the conditions incorporated in the advertisement notice read with the scheme formulated by the Government for engagement of Anganwadi Workers vide order No.07- SW of 2010 dated 10.10.2010. The Enquiry Committee without any notice to the petitioner has taken a decision in derogation to the conditions incorporated in the advertisement notice read with the scheme formulated by the Government for engagement of Anganwadi Workers vide order No.07- SW of 2010 dated 10.10.2010. It is urged by the petitioner that the Committee has not reported the correct position as the Committee has restricted the zone of selection viz-a-viz Mohalla and not Hamlet, which is the zone of selection as per advertisement notice and the provisions of the scheme in vogue. It is further stated that the petitioner was engaged only when no objections were filed against the tentative selection list and the petitioner was surprised when after seven long years, the official respondents entertained the objections against her selection. It is also contended by the petitioner that no appeal in terms of Government Order No.07-SW of 2010 dated 18.10.2010 has been preferred against her selection but the private respondent Shazia Nabi, after a gap of more than two years, approached Additional District Magistrate for setting aside the selection of the petitioner but the said appeal also stands closed/dropped. It is further stated that the private respondent Shazia Nabi has questioned her selection on the ground that she is the resident of Mohalla Qazimpora and not the resident of approved location i.e. Manzipora whereas hamlet Manzipora consists of Manzipora, Qazimpora and Khalenderpora and the petitioner being the meritorious candidate and residence of the approved hamlet was selected. 6. The respondent No. 5 has filed response stating therein that a committee was constituted by the Additional Deputy Commissioner, Tral, vide his office letter dated 10 th March, 2020 only after the District Program Officer, Pulwama, vide his letter dated 7 th January, 2020 in consequence of the communication of the Project Officer, Pulwama, had requested the District Development Commissioner, Pulwama, to constitute a committee so that the actual residence of private respondent Shazia Nabi and the appointee i.e. the petitioner herein could be ascertained. The committee constituted by the Additional Deputy Commissioner, Tral, was comprised of BDO, Tral and Naib Tehsildar, Dadsara as officers and other three officials of the Revenue and Rural Development Department. The report is clear in terms of the residence of the two candidates at the time of engagement. The committee constituted by the Additional Deputy Commissioner, Tral, was comprised of BDO, Tral and Naib Tehsildar, Dadsara as officers and other three officials of the Revenue and Rural Development Department. The report is clear in terms of the residence of the two candidates at the time of engagement. It is further stated that the correct position as per the advertisement notice published in Greater Kashmir is actually “Manzimpora Mohalla” and not “hamlet”. The advertisement is clearly, undoubtedly and unmistakably for a “Mohalla” and not for a “Hamlet” and the petitioner does not qualify the basic criteria which is “Mohalla” for which the advertisement was made. It is averred that the Committee constituted by the Additional Deputy Commissioner, Tral, had proceeded on spot and on the basis of the evidence and witnesses has established that Miss Shazia Nabi, at the time of the advertisement of the post of Anganwadi Worker for Manzimpora Mohalla, resided at Mohalla Manzimpora and the engaged Worker, Miss Aasia Jan, resided in Qayimpora Mohalla. 7. The respondent Nos. 1-3 have filed their response stating therein that the engagement of the petitioner was challenged by the private respondent in writ petition No.1685/2015 and vide order dated 10 th August, 2015, respondent No.4 was directed to consider the objections of private respondent Shazia Nabi (petitioner in SWP No.1685/2015) as against the engagement order of respondent No.5 (petitioner herein). It is averred that in compliance to the directions of this Court, the respondent No.4 called both petitioner and the private respondent. Shazia Nabi contended that the petitioner is not the resident of Manzimpora but of Qayimpora. It is also averred that after hearing both the candidates, a spot verification was conducted on 10.10.2019 regarding location of the Anganwadi Centre and the residence of both the candidates. During the process, locals of the Village Lalgam were also consulted and the statements were recorded and it was found that Shazia Nabi was a resident of Manzimpora Lalgam and the petitioner was resident of Qayimpora. During the process, locals of the Village Lalgam were also consulted and the statements were recorded and it was found that Shazia Nabi was a resident of Manzimpora Lalgam and the petitioner was resident of Qayimpora. It is averred that as it was not possible to reach to a definite conclusion with regard to the residence of the two candidates, as such, the matter was taken up with the Deputy Commissioner, Pulwama, with the request to constitute a team of officers headed by some officers from the Revenue Department and Rural Development Department so that actual residence of the petitioner and Shazia Nabi is ascertained. The answering respondents have objected to the writ petition by submitting that the Deputy Commissioner is yet to take a final call in the matter, as such, the writ petition is not maintainable. 8. The private respondent Shazia Nabi, who was not initially impleaded as respondent in the writ petition but was subsequently arrayed as respondent No.6 in WP(C) No.406/2021 pursuant to the motion made by her, has also filed her response stating therein the factual aspects of the case but the main contention of the private respondent is with regard to residential status of the petitioner. It is stated that the petitioner has herself admitted in para (3) of the petition that she was called by the CDPO and ADC Tral, therefore, she cannot claim that she was not heard in the matter. It is averred that the CDPO had requested Deputy Commissioner to ascertain the factual position so as to arrive at a definite conclusion with regard to residential status of the petitioner and private respondent. 9. Mr. Hilal Wani, learned counsel for the petitioner has confined his argument only to the extent that the Anganwadi Centre was sanctioned for hamlet and not for the Mohalla, therefore, the objection of the private respondent with regard to residential status of the petitioner was not entertainable at all and, as such, the report submitted by the Enquiry Committee becomes meaningless. 10. Per contra, Mr. 10. Per contra, Mr. Ilyas Laway, learned counsel for the official respondents has argued that during the enquiry conducted by the Committee constituted by the Additional Deputy Commissioner, Tral, it has been established that the petitioner is a resident of Qayimpora and not Manzimpora and that no final decision in the matter has been taken by the official respondents, as such, the writ petition is premature. 11. Mr. M. Ashraf Wani, learned counsel for the private respondent, has argued that the official respondents have acted in compliance to the directions passed by this Court in the writ petition preferred by the private respondent and the petitioner not being resident of location where Anganwadi Center is located, could not have been engaged as Anganwadi worker. 12. Heard and perused the record. 13. It needs to be noted that this Court vide order dated 10 th August, 2015 passed in SWP No.1685/2015 directed the respondent No.4-CDPO to consider the objections of Shazia Nabi as against the engagement of the petitioner in light of the conditions incorporated in the order of engagement and thereafter pass appropriate orders. The respondent No.4, in compliance to the aforesaid directions of this Court, heard both the candidates i.e. petitioner herein as well as the private respondent and also conducted spot verification but was not in a position to return a positive finding with regard to residential status of both the candidates, as such, took up the matter with the Deputy Commissioner, Pulwama, with the request to constitute a team of officers to ascertain the residential status of the petitioner as well as private respondent. Thereafter, the Additional Deputy Commissioner, Tral, constituted a Committee vide order dated 10 th March, 2020 comprising of BDO Tral, Naib Tehsildar Dadsara, Panchayat Inspector, Tral, Patwari Halqa, Pinglish and Patwari Halqa Rathsuna. The Committee submitted its report on 19 th December, 2020 with the following findings: 1. The village lalgam consists of five Mohallas viz. 1. Khaldar Mohalla 2. Manzimpora Mohalla. 3. Qayimpora Mohalla 4. Path Pir Naar 5. Nai Basti. 2. An Anganwadi centre stands established in Mohalla Qayimpora in The house of Mr. Ab Majeed S/O Nabir Rather since 2006 and is Functional. 3. Two Anganwadi centres are functional in khaldar Mohalla. The village lalgam consists of five Mohallas viz. 1. Khaldar Mohalla 2. Manzimpora Mohalla. 3. Qayimpora Mohalla 4. Path Pir Naar 5. Nai Basti. 2. An Anganwadi centre stands established in Mohalla Qayimpora in The house of Mr. Ab Majeed S/O Nabir Rather since 2006 and is Functional. 3. Two Anganwadi centres are functional in khaldar Mohalla. One is established in the house of Bilal Ahmad S/o Gh Nabi Rather since 30 Years and the second is established in the house of the Mohammad Akbar S/o Ab Razaq Ganie since two years. The said centre has been primarily established in the old house of the said person (Mohammad Akbar) in Manzimpora Mohalla for three months and after the construction of the new residential house. The said centre was shifted from the old house to new house in Khaldar Mohalla. Now, the two Anganwadi centres are both established in Khaldar Mohalla within a space of just 70 feet. 4. No Aanganwari Centre has been established in Manzimpora Mohalla. 5. Some 30 years back the residential house of Gh Nabi Rather (deceased father of Miss Shazia Nabi) was in khaldar Mohalla and Some 25 years back the father of the petitioner had constructed a House in Manzimpora and the petitioner and her other family members were residing in Mohalla Manzimpora without any migration. The family of the applicant has started the construction of a new house in pati peer Naar in the year (2020) and is presently residing in a makeshift single story kitchen of one Ab Majid S/o Gh Hassan Temporarily, and has dismantled the old house reportedly. 6. When the notification was circulated in September 2014, the petitioner and her family were residing in Mohalla Manzimpora as was verified on spot by the committee and from the statement of the villagers. 7. As per the findings of the committee, and the statements of the villagers. Asiya Jan D/O Gh Mohammad Rather (Respondent No 5) is Working as Aanganwari Worker established in Khaldar Mohalla in the residential house of Mohammad Akbar S/O Ab Razaq Ganai. The said Asiya Jan D/O Gh Mohammad Rather (Respondent No 5) was residing in Qayimpora Mohalla at the time of the notification (Report enclosed). 14. The aforesaid findings of the Committee were forwarded by the Additional Deputy Commissioner, Tral, to the Deputy Commissioner, Tral-respondent No.5 in terms of impugned communication dated 30.01.2021. The said Asiya Jan D/O Gh Mohammad Rather (Respondent No 5) was residing in Qayimpora Mohalla at the time of the notification (Report enclosed). 14. The aforesaid findings of the Committee were forwarded by the Additional Deputy Commissioner, Tral, to the Deputy Commissioner, Tral-respondent No.5 in terms of impugned communication dated 30.01.2021. The dispute raised by the petitioner is that the Anganwadi Centre was sanctioned for hamlet Lalgam and, as such, the artificial distinction in the form of Mohalla cannot be created by the official respondents to dispute the residential status of the petitioner. A perusal of the advertisement notice reveals that the Anganwadi Centre was sanctioned for location Manzimpora Mohalla of village Lalgam. Clause 3(e) of Government Order No.07-SW of 2010 dated 28.10.2010 provides that the candidate shall belong to the hamlet where the Anganwadi Centre is located and if a suitable candidate is not available in that hamlet, the candidate shall be selected from the revenue village of which the said hamlet is a part. 15. In the present case, admittedly, the Anganwadi Centre is located at Mohalla Manzimpora of Revenue Village Lalgam. The report of the Enquiry Committee reveals that there are five mohallas i.e. Khaldar Mohalla, Manzimpora Mohalla, Qayimpora Mohalla, Path Pir Naar and Nai Basti. An Anganwadi centre stands established in Mohalla Qayimpora, two Anganwadi Centres are functional in Khaldar Mohalla and no Anganwadi Centre has been established in Manzimpora Mohalla. Once this Court vide order dated 10 th August, 2015, had directed the respondent No.4 to consider the objections filed by the private respondent as against the engagement of the petitioner, it was obligatory upon the said respondent to comply the directions of this Court and once he was not in a position to return a positive finding with regard to residential status of the petitioner, her action in approaching the Deputy Commissioner concerned for constitution of a Committee and the subsequent constitution of the Committee by the Additional Deputy Commissioner cannot be faulted with. 16. 16. It is evident from the record and as admitted by the official respondents that no final decision has been taken as yet by the Deputy Commissioner-respondent No.5, as such, any observation made by this Court qua the merits of the respective claims of the contesting parties shall cause prejudice to either of the parties, particularly when the respondent No.4-CDPO is already in the process of complying the direction passed by this Court vide order dated 10 th August, 2015. 17. Once this Court has arrived at the conclusion that there is no fault with the action of the respondent No.4 in seeking assistance of the Deputy Commissioner concerned for determining the residential status of the petitioner, any report submitted by the Enquiry Committee constituted by the Additional Deputy Commissioner, Tral cannot be quashed. 18. In view of the above, both these writ petitions are disposed of by directing the respondent Deputy Commissioner to take a final decision in the matter on the basis of the enquiry report forwarded to him by the Additional Deputy Commissioner, Tral, and thereafter respondent No.4, shall pass appropriate orders in accordance with the order dated 10 th August, 2015 passed by this Court, which mandates the respondent No.4 to afford opportunity of hearing to the contesting parties. The entire exercise be completed by the official respondents within a period of three months from the date of receipt of this order.