Suriya Bano vs State Of J&K & Ors

Sanjay Dhar, J

1) The petitioner has challenged order dated 31st of December 2012, passed by the Deputy Commissioner, Kupwara, whereby the appeal filed by the petitioner challenging the engagement of respondent No.6 as Anganwadi Worker for Anganwadi Centre Teli Mohalla, Khawarpora, Kupwara, has been dismissed. Challenge has also been thrown to order dated 18th of February 2013 passed by the Divisional Commissioner Kashmir, whereby revision petition filed by the petitioner against the impugned order passed by the Deputy Commissioner, Kupwara, has been rejected.

2) As per the case of the petitioner, an advertisement notice dated 10th of October 2009 came to be issued whereby applications were invited for engagement of Anganwadi Workers for different Anganwadi Centres including Anganwadi Centre Teli Mohalla Ward No.5 of Panchayat halqa Khawarpora. The petitioner as well as respondent No.6 responded to the said advertisement notice and participated in the selection process. According to the petitioner, she is a resident of Ward No.5 Teli Mohalla and has passed 10+2 examination with high merit, as such, she was eligible to participate in the selection process. The petitioner has placed on record Ward certificated issued by Block Development Officer, Tangdar Karnah, in support of her contention that she was residing in Ward No.5 Teli Mohalla.

3) After culmination of the selection process, the official respondent issued a tentative select list whereby the petitioner was shown to have been selected but the said list was challenged by respondent No.6 by filing an appeal before the Deputy Commissioner, Kupwara. According to the petitioner, the Deputy Commissioner, Kupwara, without hearing her issued an order on 9th February 2011, whereby engagement of the petitioner was set aside. The petitioner is stated to have filed writ petition bearing SWP No.721/2011, challenging the order of the Deputy Commissioner, Kupwara, and vide order dated 17th of July 2012, passed by this Court, order of the Deputy Commissioner, Kupwara, was set aside and he was directed to rehear the appeal after giving an opportunity of hearing to the parties. The Deputy Commissioner after hearing the parties dismissed the appeal filed by the petitioner in terms of impugned order dated 31st of December 2012. The petitioner challenged the aforesaid order by way of a revision petition before the Divisional Commissioner, Kashmir, but the revision petition was dismissed by the Divisional Commissioner, Kashmir, in terms of impugned order dated 18th of February 2013. Accordingly, respondent No.6 came to be engaged as Anganwadi Worker for Anganwadi Centre, Teli Mohalla, Ward No.5 Khawarpora, in terms of order dated 10.01.2013 issued by respondent No.5.

4) The petitioner has challenged the impugned orders on the grounds that as on the date of submitting the application, she was eligible for being engaged as Anganwadi Worker, inasmuch as she was residing in Ward No.5 Teli Mohalla at the relevant time. It is submitted that the delimitation of Wards had taken place in the year 2011 and the same had no effect upon a case which related to the period when the delimitation had not taken place. It is contended that it is a settled law that eligibility of a candidate for being appointed to a government service has to be seen on the date of the application and not on the date of making of actual selection/appointment. In this regard reliance has been placed upon the ratio laid down in the judgments passed by the Supreme Court in the cases of Rekha Chaturvedi (Smt) vs. University of Rajasthan, 1993 Supp. (3) SCC 168, and Dr. M. V. Nair vs. Union of India & Ors, (1993) 2 SCC 429 and the judgment of this Court in the case of Umar Rasool Reshi vs. State of J&K & Ors. 2012 (IV) S.L.J 1012(HC). It has been further contended that the petitioner had submitted all the requisite documents including the Ward certificate issued by Block Development Officer concerned along with her application which clearly showed that she is a resident of Teli Mohalla Ward No.5. It is submitted that this aspect of the matter has been ignored by the appellate as well as a revisional authorities while passing the impugned orders

5) The official respondents have contested the writ petition by filing a reply thereto. In their reply, the official respondent have submitted that the petitioner was not eligible for being engaged as an Anganwadi Worker for Anganwadi Centre, Teli Mohalla Ward No.5 as she is not a resident of the said habitat. It has been submitted that there are concurrent findings of fact rendered by the Deputy Commissioner, Kupwara, and the Divisional Commissioner, Kashmir, that the petitioner was not eligible for being engaged as an Anganwadi Worker as she was not residing in the habitat where the Anganwadi Centre is located, which is a requirement of the scheme.

6) Respondent No.6 has also filed objections to the writ petition. In her objections, respondent No.6 has submitted that the delimitation had taken place in the year 2007 and as per the delimitation of the wards, the residence of the petitioner falls in Ward No.4 whereas the residence of respondent No.6 falls in Ward No.5. It is submitted that it is for this reason that the engagement of the petitioner was cancelled and after respondent No.6 succeeded before the appellate authority as well as before the revisional authority, the order of engagement came to be issued in her favour. Respondent No.6 has placed on record copy of the certificate issued by Secretary, Panchayat Halqa Khawarpora, according to which the residence of the petitioner falls in Ward No.4 and that of respondent No.6 in Ward No.5 where the Anganwadi Centre in question is located.

7) I have heard learned counsel for the parties and perused the pleadings and the record produced by the official respondents.

8) The main contention that has the raised by learned counsel for the petitioner during the course of arguments is that as on the date of submitting the application in response to the advertisement notice dated 10th of October 2009, the petitioner’s residence fell in Ward No.5 Teli Mohalla, where the Anganwadi Centre is located, as such, she was eligible for being engaged as an Anganwadi Worker for the said Centre. According to learned counsel, the delimitation of Wards has taken place in the year 2012, when the engagement of the petitioner as Anganwadi worker had taken place and, as such, the Deputy Commissioner as well as the Divisional Commissioner have fallen into an error by not noticing this important aspect of the matter.

9) If we have a look at the impugned order dated 31st of December 2012, it bears reference to notification SRO 108 dated 30th March, 2012, which, in fact, is 30th March 2007.

There appears to be a typographical error in the order of the Deputy Commissioner. The record shows that the delimitation of the wards has taken place in the year 2007 and not in the year 2011 or 2012, as has been claimed by the petitioner. As per the delimitation, the residence of the petitioner falls in Ward No.4 and not in Ward No.5 Teli Mohalla where the Anganwadi Centre in question is located. The advertisement notice was issued in the year 2009, i.e. well after the delimitation of the wards had taken place. Thus, as on the date of the application, the petitioner had ceased to be the resident of Ward No.4 where the Anganwadi Centre is located. Thus, no fault can be found in the order impugned passed by the Deputy Commissioner, Kupwara, as upheld by the Divisional Commissioner, Kashmir.

10) It has been contended in the writ petition that the father of the petitioner owned another residential accommodation in Ward No.5 of Teli Mohalla. This plea has never been raised by the petitioner either before the Deputy Commissioner or before the Divisional Commissioner. Even otherwise it is a question of fact as to whether the petitioner’s father owned another residence in Ward No.5 and whether the petitioner actually resided in the said residence. These questions cannot be determined in the writ proceedings, particularly when there are concurrent findings of fact that the petitioner’s residence falls falling in Ward No.4 as per the revised delimitation of the wards that had taken place in the year 2007.

11) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.

12) The record be returned to the learned counsel for the official respondents.