Rafiqa Akhtar vs State Of J&K &Ors

Rajnesh Oswal, J

The engagement of respondent no. 8, as Anganwari worker for Anganwadi Centre Bonpora Tenjimullah, was assailed by the respondent no. 7 through the medium of the writ petition bearing no. 986/2007 and the writ petition was disposed of vide an order dated 12.02.2008 by directing the Director Social Welfare Department, Kashmir, to examine the merit of the respondent no. 7 & 8 herein. The Director, Social Welfare Department was also directed to examine their claims about the residence and if they were found to be residents of the concerned village, then he was directed to examine as to who was more meritorious and then pass appropriate orders.

The respondent no. 2 conducted the enquiry pursuant to said order dated 12.02.2008 and came to the conclusion that none of the aspiring candidates belonged to the locality of Bonpora Tenjimullah and that the claim of the respondent no. 7 did not carry any weight, as she fell at serial no. 3 with respect to her merit and also did not belong to Bonapora Tenjimullah. Respondent no. 2 vide order dated 17.04.2008 further directed ICDS Anantnag (Chairman District Selection Committee) to take into consideration the merit of candidates from whole village i.e. Tenjimullah and select the meritorious/ genuine candidate.

Said order dated 17.04.2008 passed by the respondent no. 2 was assailed by both respondent no. 7 & 8 by individual writ petition bearing SWP no. 741/2008 and SWP no. 644/2008. SWP no. 644/2008 was withdrawn by the respondent no. 8 as is reflected in terms of order dated 19.08.2009. Thereafter the respondent no. 8 filed another writ petition bearing SWP no. 483/2010 challenging the same order dated 17.04.2008 that was challenged earlier also by her through the medium of withdrawn SWP no. 644/2008.

The writ petition bearing SWP no. 483/2010 filed subsequently by the respondent no. 8 was clubbed with the writ petition SWP no. 741/2008. Both these writ petitions came to be decided by virtue of common judgment dated 28.09.2011 by learned single Judge. The writ petitioned SWP no. 483/2010 filed by the respondent no. 8 was dismissed and the writ petition bearing SWP no. 741/2008 filed by the respondent no. 7 was disposed of by the learned single judge by quashing the order dated 17.04.2008 passed by the respondent no.2. The Deputy Commissioner, Anantnag was directed to hold enquiry either himself or by some other revenue officer after providing opportunity of hearing to the respondent no. 7 and other competing person viz the respondent no. 8 and after entertaining the material/documents those may be placed before him to return finding with regard to present status of the parties.

The judgment dated 28.09.2011 passed by the learned single judge was assailed by the respondent no.7 through the medium of intra court appeal bearing LPA No. 285/2011. By virtue of judgment dated 16.04.2013, the Division Bench set aside the order dated 28.09.2011 passed by learned single Judge and simultaneously order dated 17.04.2008 was also quashed to the extent that it had held the respondent no. 7 not meritorious and taking into consideration the merit of incumbents of whole village. The Division Bench also issued directions for considering the case of the appellant and pass appropriate orders.

Thereafter the respondent no. 5, vide order dated 14.11.2014, directed the appellant to produce all original certificates so that formal engagement order could be issued in her favour as she was figuring at serial no. 1 in the merit panel. The order dated 14.11.2014 was then assailed by the respondent no. 7 by virtue of writ petition bearing SWP no. 2207/2014 and the learned single Bench vide judgment dated 15.03.2016 quashed the order dated 14.11.2014 on the ground that appellant was a bystander and that the order of Division Bench dated 16.04.2013 was explicit and it was not open for the official respondents to extend the zone of consideration to some other candidate also. The learned Single Bench also directed the official respondents to consider and appoint the respondent no. 7 against the post within a period of six weeks.

The present intra-court appeal (LPA) has been filed against the judgment dated 15.03.2016 inter alia on the ground that the appellant was more meritorious than the respondent No.7 and the order of the Division Bench dated 16.04.2013 was not binding upon the appellant as she was not a party to the LPA.

Mr. M. A. Wani, learned counsel for the appellant has reiterated the submissions made in the memo of appeal.

On the contrary, Mr. Qayoom, learned counsel for the respondent No. 7 has argued that in view of the earlier order passed by the Division Bench dated 16.04.2013, the controversy stood settled and it was not open for the official respondents to issue order dated 14.11.2014.

After having heard the submissions of the learned counsels appearing for the parties and perusing the record, we are of the considered view that this intra-court appeal merits dismissal in view of the fact that the order dated 16.04.2013 was self-explanatory and explicit and the expansion of zone of consideration of candidates as provided by order dated 17.04.2008 had not found favour with the Division Bench and as such the same was quashed. The only option that had remained with the official respondents was to consider the case of the respondent no. 7 only. The appellant, no doubt, was with a better merit than the respondent no. 7 but it was not open for the official respondents to issue order dated 14.11.2014 in view of binding judgement/order dated 16.04.2013 passed by the Division Bench particularly when the said judgment/order had attained finality, as the same was never challenged.

The contention of the appellant that judgment/order dated 16/04/2013 was not binding upon her as she was not party to the LPA filed by the respondent no. 7 is misconceived as the positive directions were issued to the official respondents to consider the case of respondent no. 7 only.

We have examined the judgment impugned and we do not find any reason whatsoever to interfere with the well-reasoned judgment passed by the leaned Single Bench. Consequently, this letters patent appeal fails and the judgment impugned is upheld.

Appeal is dismissed without costs.