SHAKEELA AKHTER Vs. STATE OF J&K

JUDGEMENT

(1.) THE controversy involved in this petition relates to engagement to the post of Anganwari Worker for Anganwari Centre, Chadipora, Chitragam, ICDS project Shopian. Notification under no. DIPK/6261 dated February 17, 2005, came to be issued by respondent no. 2, Director, Social Welfare, Kashmir whereby and whereunder applications were invited from eligible female candidates for engagement of Anganwari Workers on honourarium basis for Anganwari Centres in different ICDS projects located in the districts of Kashmir Province. Amongst the eligibility conditions, one of the conditions notified was that the applicant must be a permanent resident of Jammu and Kashmir State and should belong to / permanently reside in the Panchayat Halqa or Ward (in the case of towns / cities), where Anganwari Centre was located. The advertisement notification further provided that location of Anwanwari Centres, for which engagement of Anganwari Worker was to be made, would be available in the office of the concerned Child Development Project Officers / Programme Officers. The respondent no. 5 came to be engaged as Anganwari Worker in Anganwari Centre Chadipora, Chitragam by respondent no. 4 vide order no. ICDS/spn/estt. - - 051/245 -47 dated August 20, 2005. The petitioner feeling aggrieved of the engagement of respondent no. 5 filed complaint on the ground that respondent no. 5 does not belong to Chadipora and, accordingly, sought cancellation of her engagement and sought her own engagement being resident of Chadipora, Chitragam. A suit was instituted by the present petitioner before the Sub -ordinate Civil court in which besides official respondents, respondent no. 5 was also impleaded as party defendant. Following reliefs were sought in the said suit: "In the premises, it is therefore prayed, that the appointment order No. ICDS/Sin/Estt/057245 -47 dated 20.8.2005 being illegal and against said norms of scheme be declared null and void and decree for mandatory injunction commanding the defendants to select / appoint plaintiff. Further the order from Lok Adalat dated 7.8.200 (sic) in a case titled Mubeena Anjum v. State of J&K and others be recalled, set aside and any other relief which is just and proper in circumstances of the case be passed in favour of the plaintiff and against the defendants with costs in the interest of justice."

(2.) IN the said suit, written statement was filed by official respondents 1 to 4 in which, at para 7, stand was taken by the said official respondents that the petitioner as per report of Tehsildar belongs to Chaddipora halqa Chitragam whereas defendant / respondent no. 5 belongs to Chaddipora halqa Sugan. However, the petitioner laid a motion for withdrawal of the said suit which was pending on the files of learned Munsiff, Pulwama. The application seeking withdrawal of the suit was allowed by the learned trial Judge vide order dated June 4, 2008 and the suit was ordered to be dismissed as withdrawn. It was also recorded in the said order that the plaintiff has sought withdrawal of the suit without reserving any right for institution of a fresh suit. The respondent no. 5 also instituted a suit which was also pending on the files of learned Munsiff, Pulwama and the said suit was also withdrawn by respondent no. 5. The instant writ petition came to be filed before this Court on June 13, 2008 after withdrawal of the suit filed by the petitioner. In the writ petition, following reliefs are sought: "a. Writ, order or direction in the nature of certiorari for quashing the order of Lok Adalat dated 07.08.06 passed in the suit titled Mubeena Anjum v. State and others and all other orders which may be issued on the subject regarding the engagement of respondent no. 5 with further directions to the respondents to produce the record for the examination of the Court. b. Writ, order or direction in the nature of Mandamus commanding the respondents to issue order of engagement in favour of the petitioner as Anganwadi Worker for Anganwadi Centre Chitragam Mohalla Chidipora Tehsil Shopian with further directions to pay the salary to the petitioner for the period she has worked over the last more than two years at the said Anganwadi Centre with further directions to allow her to continue to work and pay the salary in future without any interruption."

(3.) LEARNED counsel for the petitioner, after arguing the case, submitted that he does not press relief (a) of the writ petition as no order has been passed by the Lok Adalat in the suit of respondent no. 5. His statement is taken on record and the writ petition, so far as it pertains to relief (a), in this backdrop to this extent does not survive. The material which has been brought on record of the writ petition by petitioner shows that Chadipora is mohalla of village Chitragam to which petitioner belongs and village Chadipora falls in halqa Sugan and is allegedly a different village to which respondent no. 5 belongs. The entire controversy raised in this writ petition revolves on the question as to whether respondent no. 5 belongs to village Chadipora in which Anganwari Centre is located? One of the communications placed on the writ record issued by Deputy Director (ICDS) bearing no. DSWK/CS/07/3415 -17 dated June 12, 2007 addressed to Mr. M.A. Gatoo, Public Prosecutor, District & Sessions Court, Pulwama Reveals that the petitioner is permanent resident of halqa Chitragam, Mohalla Chadipora as she possesses the PRC of the same Mohalla and panchayat halqa, whileas respondent no. 5 is a resident of village Chidipora halqa Sugan. The official respondents on the basis of the record have taken the stand that the petitioner belongs to Mohalla Chadipora, village and halqa Chitragam and respondent no. 5 belongs to village Chadipora, halqa Sugan. The respondent no. 5 has also filed objections to the maintainability of the writ petition. She has placed On record communication addressed by Tehsildar Shopian to Child Development Project Officer, ICDS Shopian, dated May 9, 2006 in which the Child Development Project officer, ICDS Shopian is informed that on verification conducted by Naib Tehsildar, Zainpora it is revealed that the petitioner is residing with her husband on outskirts of village Chitragam; these families are part of village Chitragam and they are enlisted in cholabandi register of village Chitragam but people call it Chidipora Mohalla. This part of village is not a revenue recorded village, further the complainant and her husband produced PRC certificates which show their residence at Chitragam. The said communication further reveals that on the side of Shopian Zainpora road is a revenue recorded village Chidpora which is included with patwar halqa Sugan and respondent no. 5 is residing in the village with her father. The said village falls within the territorial jurisdiction of panchayat halqa Chitragam. The respondent no. 5 has alongwith her objections also placed on record SRO 284 dated August 14, 1997 which determines the panchayat halqas. At serial no. 9 is shown panchayat halqa Sugan comprising of villages Sugan, Dragger and Heffkuri whereas at serial no. 12 panchayat halqa Chitragam is shown which comprises of villages, Chitragam, Chedipora and Kashwa. The merit position as shown in communication bearing no. Pop/ICDS -2006/983 -84 dated September 15, 2006 addressed by Programme Officer, Pulwama to the Honble Minister for Social Welfare Department, shows that the petitioner is possessing 32.58 points while as respondent no. 5 is possessing 34.34 points. Thus, admittedly, respondent no. 5 is having superior merit than that of the petitioner.