Jammu & Kashmir High Court
Babli Devi vs State Of J&K; And Ors on 20 November, 2017
S.No. 28
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT Jammu
SWP No. 2140/2017
MP No. 1/2017
Date of order: 20.11.2017
Babli Devi. Vs. State of J&K andors.
Coram:
Hon'ble Mr. Justice RamalingamSudhakar, Judge.
Appearance:
For the Petitioner(s): Mr. Rahil Raja, Advocate
For the respondent(s):Mr. Vishal Bharti, Dy. A. G for R-1 to 5
Mr. MohdArif, Advocate for R-6 i/ Whether to be reported in Yes/No Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. Through the instant writ petition, the petitioner seeks the following relief:-
"i) Writ, order of direction in the nature of Writ of Certiorari quashing the Order dated 8th April, 2017 passed by the Respondent No. 3 in the Revision Petition, registered as File No. 87/Revision Petition 2013-2014 titled AnjuBala vs. Deputy Commissioner Rajouri and Others, filed by the Respondent No. 6 whereby the order dated 30th January, 2014 passed by the Respondent No. 4 has been set aside on the ground of violation of principle of natural justice, without providing for fresh consideration of the matter by the Respondent No. 4 after hearing the parties;
ii) Writ, order of direction in the nature of Writ of mandamus commanding the Respondent No. 4 to SWP No. 2140/2017 Page 1 of 4 consider the matter with regard to the actual residence of Respondent No. 6 in MohraKharkanna of Revenue Village SewaJagir afresh after providing an opportunity of being heard to the petitioner as also to the Respondent No. 6;
iii) Writ, order of direction in the nature of Writ of Mandamus commanding the Respondent No. 3 to immediately and forthwith transmit the entire record of the revision petition as also the record file of the Respondent No. 4 in the matter, back to the Respondent No. 4 enabling the latter to accord fresh consideration in the matter.
iv) Writ, order of direction in the nature of Writ of Mandamus commanding the Respondent No. 5 to consequently, take appropriate action with regard to the continuance or discontinuance of the engagement of Respondent No. 6 based on the orders in the matter to be passed by the Respondent No. 4 upon such fresh consideration;
v) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioner and against the respondents along with cost."
2. The petitioner challenged the Order dated 8th April, 2017 passed by the Division Commissioner, Jammu-respondent No. 3. The cause of action for filing the instant writpetition is Advertisement Notice dated 5th June, 2012 and thereafter selection to the post of Anganwari Worker in Anganwari Centre Kharkanna falling in Revenue Village SewaJagirPanchayatSagote Tehsil and District Rajouri.
3. Petitioner and respondent No. 6 participated in the process of selection. Respondent No. 6 was selected as Anganwari Worker in Anganwari Centre Kharkanna falling in Revenue Village SewaJagirPanchayatSagote. The petitioner moved an application to respondent No. 4, Deputy Commissioner, Rajouri, who after inquiry, without hearing respondent No. 6, passed an order dated 30 th January, 2014 thereby cancelling the habitation certificate issued to respondent SWP No. 2140/2017 Page 2 of 4 No.6, the selected candidate. Respondent No. 6, aggrieved by the said cancellation order passed by respondent No. 4, moved respondent No. 3 by way of a Revision Petition, pleading violation of principles of natural justice which came to be allowed by order dated 8th April, 2017 (Annexure-M to the writ petition).
4. The petitioner now challenges the order dated 8th April, 2017 primarily on the ground that the 3rd respondent while setting aside order dated 30.01.2014 should have remanded the matter back to respondent No. 4, Deputy Commissioner, Rajouri for consideration of the entire issue afresh after hearing both the writ petitioner as well as respondent No. 6 and also to consider all the documents on merits. This exercise having not been done, the writ petitioner is now before this Court.
5. Order impugned dated 8th April, 2017 (Annexure-M to the writ petition), no doubt is in favour of 6th respondent and it passed on account of violation of principles of natural justice. However, this order of respondent No. 3 has not indicated as to how the matter should be proceeded thereafter by respondent No. 4. The issue raised by the petitioner on the merits of 6th respondent's claim of habitation should have been decided based on the documents submitted by the petitioner as well as the documents furnished by 6th respondent. A final decision needs to be taken by respondent No. 4, Deputy Commissioner, Rajouri. That has not been ordered and hence the writ petition has been filed.
6. Heard Mr. Vishal Bharti, learned Deputy Advocate General for respondent Nos. 1 to 5 and Mr. Mohd Arif for respondent No. 6.
7. Learned counsel appearing for respondent No. 6 pleaded that on merit, respondent No. 6 is much higher than that of the writ petitioner. The plea of habitation, raised by the writ petitioner, is wrong and it is denied.
8. In this factual background of the case, the Divisional Commissioner, Jammu-respondent No. 3 having set aside the order passed by SWP No. 2140/2017 Page 3 of 4 respondent No. 4, has to indicate as to how the matter will proceed further after submission of documents by either of the parties. To that extent, the plea made by the petitioner deserves to be accepted.
9. The order of 3rd respondent-Divisional Commissioner, Jammu setting aside the order of respondent No. 4, Deputy Commissioner, Rajouri on violation of principles of natural justice is correct. However, the issue of habitation has to be concluded finally by respondent No. 4 after giving opportunity of hearing to the writ petitioner and 6th respondent. All the documents submitted by the parties have to be considered on merits. To that extent, learned counsel for both the sides are agreeable for hearing by 4th respondent to decide the lis.
10.In this view of the matter, the relief of certiorari is declined. Mandamus is issued to the 4threspondent to hear the parties on 20th December, 2017, on merits. Both the parties are at liberty to submit their documents to 4th respondent, who will consider and decide the matter. This exercise to be completed within a period of four weeks thereafter. Till such time a decision is taken, present position of 6threspondent shall not be disturbed. There is no bar for release the salary of respondent No. 6, if she has worked during the period of dispute.
11.The writ petition is disposed of in terms as above along with connected MP(s).
(RamalingamSudhakar) Judge Jammu:
20.11.2017 Tilak, Secy.SWP No. 2140/2017 Page 4 of 4