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Judgment
Instant appeal under Clause 12 of the Letters Patent is directed against the judgment dated 08.04.2011 passed in SWP No.385/2010.
The factual background is required to be noticed for appreciating the controversy in its right perspective:
(I) Appellant vide order dated 8th March, 2010, issued by CDPO, ICDS, Pahloo, on selection by the Select Committee, has been engaged as
Anganwadi Helper in Anganwadi Centre, Herpora Akhal.
(II) Respondent No.6 filed writ petition(SWP) No.385/2010 wherein appellant was not arrayed as a party. The petition was disposed of vide
judgment impugned dated 08.04.2011. Learned Single Judge noticed that in the select list respondent No.6 (petitioner therein) figured at serial
No.6 but formal engagement order was not issued which prompted her to file the writ petition. In the reply filed by the official respondents therein,
it was mentioned that the respondent No.6 belonged to Mir Mohalla which was not accepted by the learned Single Judge. Finally, learned Single
Judge issued a direction to issue formal engagement order in favour of respondent No.6 (petitioner therein).
(III) The respondents had not brought it to the notice of the Court that the appellant is already engaged as Anganwadi Helper. Instead while
implementing impugned judgment dated 08.04.2011, the engagement order of the appellant has been cancelled by the respondents vide order
dated 28.11.2011 and by the same order respondent No.6 was engaged as Anganwadi Helper.
(IV) Appellant instead of challenging order dated 08.04.2011, filed a separate writ petition which was registered as SWP No.814/2011, which
has been dismissed for want of prosecution vide order dated 18.11.2011. The appellant was given liberty to have recourse to the remedies as shall
be available to her as against the judgment dated 08.04.2011 rendered in SWP No.385/2010.
(V) The appellant again filed fresh writ petition registered as SWP No.852/2012 wherein the said order dated 28.11.2011 providing for
cancellation of her engagement and engagement of respondent No.6 has been challenged.The said petition has been allowed vide judgment dated
25.05.2015. Aggrieved whereof, respondent No.6 filed LPA No.98/2015 which was allowed vide judgment dated 11.08.2015 and the order of
learned Single Judge dated 25.05.2015 was set aside with a protection to the appellant (private respondent therein) to challenge the order of this
Court dated 08.04.2011 passed in SWP No.385/2010.
(VI) This is how the instant appeal has been filed but since appellant was not a party in SWP No.385/2010, therefore, leave to appeal has been
granted vide order dated 28.03.2016. Thereafter vide order dated 27th February, 2017, delay in preferring the appeal has been condoned.
We have heard learned counsel for the parties. The position as emerge from the records is that the appellant, on selection, has been engaged as
Anganwadi Helper in Anganwadi Centre, Herpora Akhal, vide order dated 08.03.2010, issued by CDPO, ICDS, Pahloo, which order has neither
been revoked nor challenged. These facts had not been brought to the notice of the learned Single Judge. In addition thereto, the appellant was not
even arrayed as a party in the Writ Petition(SWP) No.385/2010. In absence of any challenge to the said order of engagement dated 08.03.2010,
respondent No.6 could not be engaged. The official respondents while implementing the impugned judgment dated 08.04.2011 have cancelled the
engagement of the appellant. Same was not permissible. The judgment impugned dated 08.04.2011 is also not sustainable on two counts. Firstly,
the position of the appellant having been working as Anganwadi Helper in pursuance to order dated 08.03.2010 issued by CDPO, should have
been impleaded as party/respondent because her rights are prejudicially affected. Secondly, the official respondents, more particularly respondent
No.3 who had issued order dated 08.03.2010 in favour of the appellant, should have brought to the notice of the Court that Ms. Shabroza
(appellant) is already engaged as Anganwadi Helper. Same has not been done. When the said order dated 08.03.2010 was not challenged nor
quashed, how could official respondents while implementing judgment impugned cancel the said order.
The respondent No.6 (writ petitioner in SWP No.285/2010) as well as official respondent therein had concealed the material fact i.e. the
position of appellant having been engaged on 8th March, 2010, therefore, on misrepresentation of facts, judgment impugned has been passed. The
approach of respondent No.6 is not free from blame as having concealed the material fact. Equally true about the official respondents therein, more
particularly respondent No.3, because they too have concealed the fact of engagement of the appellant.
The appellant in the instant appeal has also contended that the respondent No.6 was not eligible at all because she is not the resident of Herpora
Akhal but is the resident of Mir Mohalla.
Be that as it may, since the order of engagement dated 8th March, 2010 issued on proper selection has not been challenged, therefore, in
absence of challenge to the said order, writ petition of respondent No.6 bearing SWP No.385/2010 was not worth to be entertained.
For the stated reasons, appeal is allowed. Judgment dated 08.04.2011 is set aside. Consequently, the follow up order of compliance dated
28.11.2011 issued in compliance to the impugned judgment dated 08.04.2011 is also set aside, position of the appellant in terms of her order of
engagement dated 08.03.2010 be restored
Appeal succeeds, shall, accordingly, stand disposed of.