Gulshan Rashid vs State of J&K & Ors.

Objections have been filed.

Heard. Admit.

Issue fresh notice. Mr. M.A. Wani, AAG accepts notice for respondents 1 to 4 and Mr. Firdous Ahmad Parray, Advocate, for respondent no.

5 (impleaded). Learned counsel for respondents submit that the objections filed by them are on affidavit and the same be treated as counter

affidavit. I order accordingly. Learned counsel for the petitioner submits that he does not want to file any rejoinder affidavit.

With the consent of learned counsel for the parties, this petition is taken up for final disposal.

The case of the petitioner is that a notification was issued by the official respondents for making selection/engagement as Anganwari Workers in

different districts/villages. Her further case is that she being eligible in terms of advertisement notification for being engaged as Anganwari Worker

filed an application which was accompanied by the relevant certificates and on the basis of the merit she was selected as Anganwari Worker. The

merit list was published in daily ""Greater Kashmir"" on January 29, 2006 and the petitioner was selected for Anganwari Centre Sever, Harden.

Objections were invited in respect of the selection list and thereafter petitioner was engaged vide order No. CDPO/ESTT/Camp Kup.0107 dated

31.03.2007. The engagement of the petitioner was subject to many conditions which inter alia included verification of her matriculation certificate.

The petitioner joined her services and continued as such till the order impugned no. ICDS/Wov/Estt/07/17883 dated 31.10.2007 was passed by

respondent no. 2. The petitioner being aggrieved of this order challenged the same on numerous grounds and this Court vide order dated

16.11.2007 directed that the post which has rendered vacant because of termination of the petitioner shall not be filled up till next date before the

Bench. It is submitted at the bar that the post is still vacant. The respondents have filed their objections.

The petitioner has challenged the order on many grounds but the main plank of attack is that before passing of the impugned

disengagement/termination order the petitioner was neither associated with any enquiry nor any show cause notice was served on her to explain her

position and to show cause as to why her services be not terminated. The factum of nonissuance of show cause notice before

disengaging/terminating the petitioner is also admitted by respondents.

Heard. Considered the matter. The Anganwari Worker is not holding a civil post and, as such, the protection available to civil servants in terms

of Article 126 (sic) of Constitution of India read with section 103 of the Constitution of J&K may not be strictly available to such kind of

employment, but the petitioner having been engaged against the post of Anganwari Worker after going through a proper selection process and

after having joined the post and availing the benefits thereof cannot be denuded of the said post without complying with the minimum requirement

of principles of natural justice. It is settled principle of law that every administrative action has to be informed of reason and if such order affects the

civil rights of the person then it has to be passed by complying with the minimum requirement of principles of natural justice. Learned counsel for

the petitioner has referred to the judgment of the Apex Court in D.K. Yadav v. J.M.A. Industries Limited, (1993) 3 SCC 259. The Hon'ble

Supreme Court after referring to earlier judgment in A. K. Kraipak v. Union of India and Colonel J.N. Sinha v. Union of India, has held that even

an administrative order which involves civil consequences must be in consonance with the principles of natural justice. The person concerned must

be given fair opportunity to show cause before any adverse decision is taken. As stated earlier, no such opportunity of hearing has been granted to

the petitioner in this case which renders the impugned order illegal and bad in law. This Court has refrained itself from entering into the controversy

raised by the parties in their pleadings as to whether the matriculation certificate submitted by the petitioner is fake or genuine. The claim of the

petitioner is that the certificate is genuine whereas the claim of respondents is that the certificate is fake. The respondents while declaring the

certificate as fake have relied upon the reports of Board of School Education. Learned counsel for the respondents submits that condition in the

engagement order provided that the services of the petitioner shall be terminated in case it is found that the certificates submitted by her are fake.

The principles of natural justice are to be read as part of this condition. The condition gives unilateral power to the authorities to take a unilateral

decision adverse to the petitioner. The power, however, has to be exercised in consonance with principles of natural justice. The person affected

has to be given opportunity of hearing before any adverse order is passed. The action can only then be said to be in tune with mandate of Article

14.

Be that as it may, the petitioner is required to be given an opportunity of hearing and a show cause notice is to be issued to her before

termination of services to explain her position. The impugned order in view of the above discussion is rendered illegal and the same is quashed. The

respondents are at liberty to pass appropriate orders against the petitioner, butbefore passing any adverse order against the petitioner, she shall be

given opportunity of hearing by issuance of show cause notice to her. The respondents may issue show cause notice within week's time from the

date copy of this order is received by them and the petitioner shall reply the same within fifteen days thereafter relying upon all the documents she

wants to. The competent authority thereafter shall take a decision in the matter and pass fresh orders.

The writ petition is disposed of accordingly.