Shahidia Begum vs State Of Jammu And Kashmir Th. Secretary Education Deptt. And Ors

Tashi Rabstan, J

The respondents vide advertisement notice No. DSWJ/ICDS/ Adv/05/05 dated 17.02.2005 invited applications for one post of Anganwari Worker for Anganwari Centre, Gujjar Basti, Lopa, for which the minimum qualification prescribed was Matric and having age between 21-45 years as on 01.01.2005. In response to the said notification the petitioner along with 11 more candidates were applied. Subsequently, the District Selection Committee on the basis of the documents available attached with the application forms, issued a proposed select list and the same was displayed on the notice board for inviting objections, if any. In the said list, name of Amina Bano was shown proposed to be selected.

The petitioner herein thereafter filed objections, claiming that the proposed select candidate, namely, Amina Bano is a resident of Garh Badanoo and also having lesser marks that the petitioner. The Chairman and the Member Secretary of the Selection Committee accordingly disposed of the case in absence of the District Social Welfare Officer, Doda (Member), who was stated to be out of station, recommended to cancel the proposed selection of Amina Bano. Subsequently, the case was sent to the District Social Welfare, Doda on his arrival in the office, who being familiar to the topography of the area noticed that again a non-local candidate is being recommended to be Anganwari Worker in Anganwari Centre, Gujjar Basti, Lopa. He took up the matter with the Committee and the case was deferred for reconsideration.

The petitioner thereafter approached to the District Development Commissioner, Doda who directed the respondent No. 6, i.e. Child Development Project Officer, Thathri and the said respondent No. 6 vide communication dated 27.01.2007 intimated that no local candidate of Gujjar Basti Lopa is available and both the candidates i.e. the petitioner and the proposed select candidate, namely, Amina Banoo are non-local candidates residing at Bangorah and Garh Badanoo respectively. Therefore, due to non-availability of a local candidate from Gujjar Basti, the District Selection Committee recommended the name of Ruksana Banoo as Anganwari Worker in Anganwari Centre, Gujjar Basti, Lopa on the basis of having been highly meritorious amongst all the applicants, who responded against the said post. Accordingly, respondent No. 6 vide order dated 14.02.2007 issued engagement order in favour of respondent No. 7, namely, Ruksana. Hence the present petition. Through the medium of the instant writ petition, the petitioner challenges the engagement of respondent No. 7 on various grounds.

Objections have been filed by the respondents, wherein it is stated that the proposed select candidate, namely, Amina Banoo was a non-local candidate of Gujjar Basti and was found lower in merit than the petitioner. It is also stated that the petitioner belongs to Lopa Bangorah and the aforementioned proposed select candidate belongs to Garh Badanoo and that Bangorah Lopa and Gujjar Basti Lopa are two separate hamlets of revenue village Thathri located at a distance of 1.8 kms away from each other. It is also denied that the petitioner was recommended as Anganwari Worker in Anganwari Centre, Gujjar Basti, Lopa. Since there was no availability of any candidate from where the school is located i.e. at Gujjar Basti Lopa, falling in revenue village Thathri, the Selection Committee had recommended respondent No. 7 for engagement against the said post, as she found more meritorious than the petitioner herein.

The selection in question pertained to the year 2007. As no interim order was passed by this Court on the first date of hearing and the respondent No. 7 is continuing against the post of Anganwari Worker for the last more than 12 years, therefore, quashing the selection of respondent No. 7 at this belated stage would be improper. The Apex Court in case titled

"Union of India Vs K. P. Tiwari" reported in 2003 9 SCC 129, in paragraph (4) & (5) held as under:-

"(4) It is unnecessary in this case to examine either question of law or fact arising in the matter. Suffice to say that the respondent has been appointed now and has been in service for more than five years. We do not think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.

(5) In that view of the matter, we decline to interfere with the order made by the High Court. These appeals are accordingly dismissed."

Even otherwise, disputed questions of fact are involved in the instant writ petition which cannot be gone into by this Court in its extraordinary writ jurisdiction under Article 226 of the Constitution of India. The Apex Court in case titled "New Okhla Industrial Development Authority Vs Kendriya Karamchari Sahkari Grih Nirman Samiti" reported in 2006(3) Supreme 617 in paragraphs Nos. 12 & 13 held as under:-

"12. ................................... In a petition under Article 226, the High Court has jurisdiction to try issues of law and fact. Where, however, the petition raises complex question of fact, the Court should not entertain the petition. In Mahanta Moti Das v. S.P. Sahid (AIR 1959 SC 942) the High Court refused to go into the question as to whether Trusts were public or private trusts as the question had involved investigation of complicated facts and recording of evidence. The view was upheld. Thus, if there is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence, it should not be decided in a writ proceeding (See Union of India v.T.R. Verma, AIR 1957 SC 882). If disputed questions of fact arise and the High Court is of the view that those may not be appropriately tried in a writ petition, the High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit.

In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition."

In view of the ratio of the above referred judgments, I am not inclined to quash the order dated 14.02.2007 passed by respondent No. 6, whereby respondent No.7 was engaged as Anganwari Worker in Anganwari Centre, Gujjar Basti, Loopa. The instant writ petition is accordingly, dismissed alongwith connected CM.