Shaheena Gulshan vs State Of J&K & Ors

Sanjay Dhar, J

1) Petitioner has challenged order bearing No.DCK/LS/ARA/15 /1364-67 dated 17.11.2015 passed by Deputy Commissioner, Kupwara, in an appeal filed by respondent No.6 against the petitioner whereby, while accepting the appeal, a direction has been issued for engagement of respondent No.6 as Anganwadi Helper for Anganwadi Centre, Mir Mohalla-B Putushai. A further direction has been sought upon the respondents for allowing the petitioner to work as Anganwadi Helper in the aforesaid Anganwadi Centre.

2) The facts emerging from the pleadings of the parties are that respondent No.5 issued an advertisement notification on 29.01.2011 inviting applications for engagement of Anganwadi Helper in various locations including Putushai Mir Mohalla-B. It appears that both the petitioner as well as respondent No.6 responded to the said notification but it was respondent No.6 who came to be selected. Petitioner filed objections to the said selection and the official respondents after conducting an enquiry dropped respondent No.6 from the tentative selection list and the petitioner came to be engaged as Anganwadi Helper in the said Anganwadi Centre in terms of order No.CDPO/ICDS/Estt/11/219-21 dated 19.12.2011. Against the said engagement order, respondent No.6 filed an appeal before the Deputy Commissioner, Kupwara, and the same came to be dismissed by the Deputy Commissioner in terms of his order dated 21.07.2012.

3) It seems that respondent No.6 challenged the aforesaid order of the Deputy Commissioner, Kupwara, by way of a writ petition bearing SWP No.1667/2012. The said writ petition came to be disposed of by this Court in terms of order dated 28.05.2015, whereby Deputy Commissioner was directed to hear the appeal of respondent no.6 afresh and provide opportunity of hearing to both the parties.

4) Pursuant to the aforesaid direction of this Court, the Deputy Commissioner, Kupwara, once again considered the appeal of respondent No.6 and passed the impugned order whereby appeal of respondent No.6 was accepted and a direction was issued for her engagement as Anganwadi Helper.

5) Petitioner has challenged the aforesaid order of the Deputy Commissioner, primarily, on the ground that respondent No.6 despite being ineligible for being appointed as Anganwadi Helper because of lack of requisite educational qualification has been directed to be engaged as a Anganwadi Helper. It has been also contended that respondent No.6 does not belong to the locality where the Anganwadi Centre is located and, as such, she was not eligible to be considered for engagement.

6) Respondent No.6 has contested the writ petition by filing a reply thereto. In her reply, respondent No.6 has mainly contested the writ petition on the ground that petitioner does not belong to the locality where the Anganwadi Centre is located and, as such, she is not eligible to be engaged as Anganwadi Helper. Respondent No.6 has given details of different Mohallas which are located in Revenue Village Putushai and claimed that petitioner is a resident of Haji Mohalla Putushai and not Mir Mohalla-B Putushai. Respondent No.6 has also filed a separate application in which it has been contended that the petitioner has since been divorced, as such, in terms of the covenants of engagement order, her engagement is liable to be terminated as she has shifted her residence.

7) The official respondents have also filed their reply to the writ petition, in which they have reiterated the factual position as stated hereinbefore. It has been averred that respondent No.6 is neither middle pass nor a resident of hamlet where from selection/engagement of Anganwadi Worker and Anganwadi Helper for Anganwadi Centre Mir Mohalla-B Putushai has been made.

According to the official respondents, the impugned order passed by the Deputy Commissioner, Kupwara, is in violation of clause (d) of the criteria for selection of Anganwadi Helper, as has been fixed by the Government vide Govt. Order No.07-SW of 2010 dated 18.01.2010 followed by Government Order No.10-SW of 2010 dated 19.01.2010.

8) I have heard learned counsel for the parties and perused the record of the case.

9) Vide the impugned order, the Deputy Commissioner, Kupwara, has, after holding the enquiry, concluded that Putushai is a Revenue Village but the Mohallas have been created by the people at their own choice and level. The Deputy Commissioner has nowhere in his order stated that petitioner is not a resident of the hamlet in which the Anganwadi Centre in question is located. He has nullified her engagement on the ground that respondent No.6 belongs to AAY category and, as such, she deserves preference in terms of clause 4(e) of the criteria notified vide Government Order No.07-SW of 2010 dated 18.01.2010.

10) It is not in dispute that petitioner is a matriculate whereas respondent No.6 is not even a middle pass. As per clause 4(d) of the criteria, the minimum qualification for engagement as Anganwadi Helper is middle pass and in case no middle pass candidate is available, then candidates with lesser qualification are to be considered. In the instant case, the Deputy Commissioner vide the impugned order has nullified the engagement of the petitioner on the ground that respondent No.6 is a person from Below Poverty Line category and as per clause 4(e) of the criteria, such candidates are to be preferred. The question of preference would come into play only when there are several eligible candidates available for selection. In the instant case, petitioner is holding the requisite qualification and there is nothing in the impugned order to even remotely suggest that she does not belong to the locality in question. Thus, she is an eligible candidate. Even if it is assumed that respondent No.6 also belongs to the same locality but still then she was not eligible as she, admittedly, was not holding even the qualification of middle pass. The question of preference would come into play only when there is competition between various eligible candidates. The same would not come into play in a case where the competition is between eligible and ineligible candidates. The respondent Deputy Commissioner has, therefore, fallen into error while passing the impugned order and by doing so, he has issued directions for engagement of an ineligible candidate, even though an eligible candidate was available for selection/engagement. The impugned order, therefore, is not sustainable in law.

11) So far as the contention of respondent No. 6 that petitioner, after her engagement as an Anganwadi Helper, has been divorced and as such her appointment/engagement is liable to be terminated, is concerned, the same is without any merit. Even if it is assumed that the petitioner has been divorced but that does not automatically lead to the conclusion that she has shifted her residence. Respondent No. 6 has not placed on record anything to substantiate the same. Thus, the submission of Ld. Counsel for respondent No. 6 is without any substance.

12) For the foregoing reasons, the writ petition is allowed and the impugned order passed by Deputy Commissioner, Kupwara is quashed. The petitioner, who is stated to be continuing as Anganwadi Helper on the strength of interim order passed by this Court, shall continue to hold the said post in accordance with the law governing the field.