Farida Banoo vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, Judge

Following reliefs are sought:-

i. Certiorari quashing, the impugned order bearing No. 432/DSWK of 2008 dated 17.4.2008 issued by the respondent No. 2.

ii. Mandamus commanding the official respondents to allow the petitioner to continue on the post of Anganwadi worker for Anganwadi Centre

Bonapora Tangimullah without any hindrance and she be paid the honorarium regularly.

iii. Prohibition prohibiting the official respondents from dispensing with the services of the petitioner.

Mr. G.Q. Bhat appearing for private respondents raised objections about the maintainability of the petition on the ground that the petitioner had

filed SWP No. 644/08 in which the following reliefs were sought:-

Certiorari thereby quashing the impugned order No. 432/DSWK of 2008 dated 17.4.2008 issued by the respondent No. 2.

Mandamus commanding the respondents to allow the petitioner to continue on the post of Anganwari Worker in Anganwari Centre Bonapora

Tangimulla ICDS Project Shangus and release all the benefits attached to the post in favour of the petitioner.

Learned counsel submitted that the writ petition (SWP No. 644/08) was dismissed as withdrawn vide Court order dated 19.8.2009. The said

order is reproduced as under:-

Learned appearing counsel for the petitioner in SWP No. 644/08 submits that he is under instructions not to press this writ petition, therefore,

seeks its withdrawal. Prayer granted. SWP No. 644/08 is dismissed as withdrawn alongwith connected CMPs. Interim direction, if any, shall

stand vacated. Record of SWP 741/08 shall be segregated which shall be listed separately in due course.

Learned counsel submitted that in the earlier writ petition petitioner had challenged the same order and sought same relief which has been

dismissed as withdrawn, therefore, the present petition is not maintainable. Learned counsel accordingly sought dismissal of the writ petition.

Mr. P.S. Ahmed appearing for the writ petitioner submitted that the circumstances in which the earlier writ petition was dismissed as withdrawn

by the court are clearly detailed out in the writ petition. Learned counsel submitted that the petitioner had not given any instruction to the counsel

appearing in the earlier writ petition to seek dismissal of the writ petition. Learned counsel further submitted that the dismissal of the writ petition

will not affect the maintainability of the present petition, in as much as, the provisions of C.P.C are not applicable to the petition filed u/s 226 of the

Constitution of India in terms of explanation appended to Section 141 of the CPC. Learned Counsel also relied on the Judgment reported in M/s.

Shyam Gas Company Vs. State of U.P. and others, and submitted that in view of the law laid down in the said judgment this petition is

maintainable.

What is in dispute is the order passed by Director Social Welfare which is impugned in this petition and was also impugned in the earlier writ

petition. The aforementioned order of the Director Social Welfare was passed in pursuance to the orders passed by the Court in writ petition No.

986/07 decided on 12.2.2008. The present writ petition in view of the fact that the earlier writ petition challenging the order and for the same

cause having been dismissed as withdrawn is not maintainable for the following reasons.

A. A person who is aggrieved of any action/order of the State/Authority on the grounds available in law can challenge the same in a writ petition. It

is the pure choice of the writ petitioner to proceed against the action/order in accordance with the law. Petitioner may not elect to prosecute the

writ petition and may not elect to seek annulment of the order and in this behalf is entitled to seek withdrawal of the writ petition. The moment the

writ petition is dismissed as withdrawn, it may in certain circumstances amount to accepting the order passed by the authority. Such a person

would be precluded to challenge the said order in other writ petition. Without permission of court a person cannot challenge an order by filing writ

petitions one after other. Permitting such course would be against public policy which provides that every litigation should have a lawful quietus.

Courts cannot be asked to consider same issue in different proceedings in the same jurisdiction.

B. The Judgment of Allahabad High Court on which reliance is placed by the Counsel for the petitioner is not applicable to case, in as much as, in

that case a suit was filed which after filing the writ petition was withdrawn. The petitioner who had filed the writ petition thereafter sought

withdrawal of the suit in fact had challenged the order before the High Court and as two parallel proceedings could not continue in respect of the

same issue so he had rightly withdrawn the suit. He could not be precluded from prosecuting the writ petition.

This petition is not maintainable. However, dismissal of the petition shall not preclude the petitioner from filing appropriate proceedings which

may be available to the petitioner including filing of review petition against the order passed in SWP No. 644/08. It is made clear that the dismissal

of this petition shall not prevent respondents/competent authority to accord consideration to the petitioner on merits. Dismissed.

SWP No. 741/08

Mr. G. Q. Bhat for petitioner.

Ms. Nusrat Razak, GA for respondents.

With the consent of the learned counsel for the parties Dy. Commissioner, Anantnag is ordered to be impleaded as party respondent in the writ

petition. Registry to up date the cause title of the writ petition.

Order No. 432-DSWK of 2008 dated 17.4.2008 passed by respondent No. 2 has been called in question in this writ petition. The said order

has been passed in pursuance of the Court order dated 12.2.2008 in SWP No. 986/07, On notice issued respondents have filed objections.

Heard. Learned counsel for the parties.

The Court in SWP No. 986/07 had directed the respondent No. 2 to examine the merit of the candidates i.e. the petitioner and respondent

No. 5 and also to examine the claim of the residence of both the competing persons. It was also provided that after the verification of the residence

of two competing candidates the order of engagement shall have to be passed in favour of the candidate having superior merit.

The respondent No. 2 in the impugned order has stated that on observing the panel framed by District Selection Committee it appeared none

of the aspiring candidates belong to the locality of Bonapora Tenjimullah though it has been stated that petitioner is having superior merit than that

of respondent No. 5. It is for this reasons that respondent No. 2 has directed the Programme Officer ICDS Anantnag to take into consideration

the merit of the incumbents from the whole village and select the meritorious/genuine candidate in accordance with the ICDS norms/standing rules.

Learned Counsel for the petitioner submitted that without there being any material respondent No. 2 has observed that the petitioner is not a

resident of the area.

Question of fact has again arisen as to which place the petitioner belongs to. Respondent No. 2 has framed opinion on the basis of panel

framed by District Selection Committee that none of the aspiring candidates belong to the locality of Bonapora Tenjimullah. The opinion framed by

respondent No. 2 is not supported by any material. It was incumbent upon the respondent No. 2 to seek assistance from the Revenue Authorities

or any other Authority and it was also incumbent upon the respondent No. 2 to issue notice to the parties before coming to the conclusion and give

them opportunity of hearing. The impugned order suffers from arbitrariness and non-application of mind and cannot be maintained.

For the above stated reasons this petition is disposed of in the following manner.

By issuance of writ of Certiorari the Impugned Order No. 432-DSWK of 2008 dated 17.4.2008 issued by respondent No. 2 is quashed.

Dy. Commissioner Anantnag is directed to hold an enquiry either himself or by some other Revenue Officer and after providing opportunity of

hearing to the petitioner and other competing persons viz respondent No. 5 in SWP No. 986/07 and after entertaining the material/documents that

may be placed before him will return a finding about the present status of the parties. The respondent No. 3 to act on the recommendation of the

Dy. Commissioner and pass orders for engagement in accordance with the rules. The Dy. Commissioner or the authority to whom enquiry may be

entrusted by him to initiate and conclude the process within a period of six weeks from the date copy of this order is served on him. Respondent

No. 3 to pass appropriate orders in pursuance of the recommendation made by the Dy. Commissioner within a period of three weeks. Meanwhile,

status quo be maintained till outcome of enquiry.