Gulshan Akhtar vs State and Others

Hon'ble Mr. Mohammad Yaqoob Mir, Judge

Petitioner vide order No.CDPO/ICDS/Kgm/ 221-24-AWH dated 25.5.2009 has been engaged as Helper in Anganwadi Helper in Anganwadi

Centre, Turigam.

Respondent No.6 has filed suit for declaration and injunction titled Mst. Shahida Akhter Vs. State & ors wherein she had prayed for declaring

the engagement order of the petitioner above referred to be null and void as she has claimed to be meritorious and deserving candidate entitled for

being engaged as Anganwadi Helper, further has prayed therein that the defendants No.3 and 4 therein (respondents No.3 and 4 herein) shall be

restrained from shifting the Centre from Ganai Mohalla of Village Turigam as located in the residential house of the respondent No.6 (plaintiff) to

the residential house of husband or father of the defendant No.5 (petitioner herein).

It appears that during the pendence of the suit, respondent No.4 CDPO has issued order dated 7.9.2010 wherein it has been noticed that the

petitioner Gulshan Akhter has some disturbances with her in-laws, on various visits she was found absent, Mst. Shahida Akhter (respondent No.6)

has filed a suit which is pending, FIR has been lodged against Gulshan Akhtar under No.103/2010 dated 20.9.2010, notice has been issued to the

petitioner but of no consequences. Finally on such basis, it has been concluded that the order of engagement as Helper of the petitioner is

cancelled.

Though very strange but disturbing position emerges because same CDPO (respondent No.4) on the same date i.e. 25.9.2010 has passed

another order bearing No.CDPO/Kgm/Estt-2010 /135-40 dated 25.9.2010 which reads as under:-Office of the Child Development Project

Officer, ICDS, Kulgam. Subject: Cancellation order in favour of Gulshan Akhtar AW Helper. Whereas one A. W. Centre was sanctioned for

village Turigam during the expansion programme 2008-09.

Whereas one Gulshan Akhter w/o Mohd Iqbal R/O Turigam had been selected A. W. Helper for the said A. W. Centre. Whereas one Shahida

Akhter w/o Mohd Ashraf Ganie R/O Turigam approached the Hon'ble Minister for Social Welfare and Director Social Welfare who endorsed the

application with the direction to look into the matter and do the needful.

Whereas the undersigned made the spot verification and found that the house in which the centre had been established is situated on the bank of

river and at the bank of village and is not feasible under norms. Whereas Gulshan Akhter is absconding and FIR has been lodged against her vide

No.103/010 dated 20-8-2010 with the result the A. W. Centre is not functioning.

Whereas the order issued is conditional that if the selectee would not perform her duties satisfactory, to make misappropriation and misconduct.

The honorary services shall terminate automatically without serving any notice.

Therefore, in view of the above the order issued in favour of Gulshan Akhter is hereby cancelled forthwith. Meanwhile, Shahida Akhter w/o

Mohd. Ashraf Ganie R/ O Turigam is hereby engaged as A. W. Helper for the said A. W. Centre being feasible under norms/criterion. She will be

entitled for monthly honorarium as admissible under rules subject to the availability of funds and the outcome of the court case if any.

Child Dev. Project Officer, ICDS, Kashmir. Aggrieved by the aforesaid order petitioner has filed the instant petition. According to learned

counsel for the petitioner respondent No.4, with the object of showering benefit upon respondent No.6, has concocted the papers, position of

which is exposed by the action of respondent No.4 itself as in one breath he has passed the order of cancellation and in the another breath, on the

same day, has passed the impugned order, whereby engagement of petitioner has been cancelled and respondent No.6 has been engaged as

Anganwadi Helper, further added that the perusal of FIR No.103/2010 dated 20.8.2010, copy of which is produced, would indicate that the said

FIR is not against the petitioner because in the FIR specifically reference is towards the dispute and then the alleged criminal activities of persons as

named therein which on perusal would indicate that there is no allegation against the petitioner Gulshan Akhter. Why respondent No.4 has made

reference to this FIR by mentioning that there is FIR against Gulshan Akhter appears to be somewhat suspicious. Learned counsel for the

petitioner further added that again a strange situation emerges i.e. respondent No.4 in his order has mentioned that Mst. Shahida (respondent

No.6) has approached the Hon'ble Minister for Social Welfare and Director Social Welfare with an application which has been endorsed to him

for looking into the matter. While considering the whole material as well as submission as made by the learned counsel for the parities, what

emerges is that the respondent No.4 in a clandestine manner has succeeded in showering benefits upon respondent No.6, perhaps to please the

higher officials of the department. Respondent No.4 in a most unethical manner, ignoring his status and position has passed the order of

cancellation dated 7.9.2010 where-under engagement order of the petitioner has been cancelled. Then again vide order dated 25.9.2010 has

cancelled the engagement of the petitioner and by the same order has engaged respondent No.6 as Anganwadi Helper. The action of the

respondent No.4 is a brazen violation of all norms and such action of the respondent No.4 is totally unwarranted and deserves to be deprecated

apart from being quashed. Does it befit to the status of officer of the rank of Child Development Project Officer to make reference to FIR and to

say it to be against the petitioner Gulshan Akhter when in the FIR her name does not figure. All that is alleged in the FIR is that petitioner had

complained her parents about the indifferent attitude of her husband, in consequence thereof some people from her parental home had gone to the

house of her husband and in the process had beaten them, so in that context those persons who had gone to the residence of her in-laws have been

alleged to have committed the offence, so against them FIR has been registered. The respondent No.4 without reading the contents of the FIR,

with his eyes shut, passed the order of cancellation and then in a very absurd manner without having regard to any process has engaged respondent

No.6 as Anganwadi Helper. By no standards action of the respondent No.4 can be maintained. Both the orders dated 25.9.2010 and 7.9.2010

shall stand quashed. Petitioner who had been validly engaged as Anganwadi Helper vide order dated 25.5.2009 shall hold the position unless

dislodged otherwise in accordance with law.

The respondent No.4 owes an explanation as to what made him to pass the first order of cancellation dated 7.9.2011 and then again to repeat

the same on 25.9.2010 with an addition of engaging respondent No.6 as Anganwadi Helper in an arbitrary manner. Director Social Welfare

(respondent No.2) shall look into this aspect and after calling an explanation shall take appropriate action against the respondent No.4 strictly in

accordance with rules.

Writ petition accordingly succeeds so shall stand disposed of along with connected CMP.