Jammu & Kashmir High Court - Srinagar Bench
Mst. Shazia Akhtar vs State Of J&K & Ors on 9 September, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
SWP No. 1960/2016
Reserved on 05.09.2022.
Pronounced on 09.09.2022
Mst. Shazia Akhtar.
...Petitioner/Appellant(s)
Through: Mr. Wani Manzoor, Advocate.
Vs
State of J&K & Ors.
...Respondent(s)
Through: Mr. Sheikh Feroz, Dy. AG.
Mr. Mian Tufail, Advocate.
CORAM:
HON'BLE Ms JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. In the instant petition, petitioner has assailed the enquiry report of the Sub-Divisional Magistrate (SDM), Sopore dated 1st December, 2016 and Tehsildar Dangiwacha dated 28 th November, 2016 with a further direction that respondents be restrained from taking any action in consequence to the conclusion of the impugned enquiries and the petitioner be allowed to continue to perform her duties along with all benefits.
2. In terms of Order No. CDPO/Rf/Esstt/11/51-54-A dated 23.08.2011, petitioner came to be engaged as Angamwadi Helper in Doligund Masjid/Mohalla/Sheikh Mohalla District, Baramulla and in pursuance of the said order petitioner joined on 24.08.2011, and is discharging her duties regularly since then. The said selection/engagement process was challenged by one Tasleema Bano in SWP No. 2368/2011, which came to be 2 disposed of in terms of order dated 25th August, 2016, with the following directions;-
"This writ petition along with connected CMP(s) is disposed of and Deputy Commissioner, Baramulla is directed to appoint senior Revenue Officer of the District as an enquiry officer to ascertain the residential status of the petitioner. In the enquiry, the petitioner and the private respondents shall also be afforded opportunity of hearing and any documents produced by them shall also be considered by the enquiry officer.
In the enquiry, if it is found that the petitioner does not belong to Sheikh Mohalla/Masjid Mohalla ov village Doligund, then the engagement of private respondent shall remain un-disturbed and she shall continue to work as Anganwari Worker. However, if in the enquiry, it is found that Tasleema Banl, the writ petitioner is also resident of Sheikh Mohalla/Masjid Mohalla of village Doligund, then respondents 2 to 4 shall consider the comparative merit of the petitioner and private respondent and meritorious candidate between the two shall be appointed and engaged as Anganwari worker. The entire process shall be concluded within six weeks from the date copy of this order is served on Deputy Commissioner".
3. In pursuance to the aforesaid directions, Tehsildar Watergam vide communication dated 28th November, 2016 submitted the enquiry report which reveals that there is no geographical boundaries between the houses of petitioner and the respondent 3 No. 5. They are the residents of same Hamlet (Mohalla), namely Masjid/ Sheikh Mohalla.
4. The said report is based on the statements of the parties as also the village locals, members of Masjid Committee, Village Officers, Sarpanch of village Panchayat, Deputy Sarpanch, Supervisor of ICDS Department, recorded by the Tehsildar Watergam.
5. The Sub-Divisional Magistrate, Sopore vide communication No. SDM/Spr/C/2016-17/399 dated 1st December, 2016, reported that after spot inspection of the site it was found that both residential houses of the petitioner and respondent are almost equidistant from the Masjid and the Anganwadi Centre. Pertinently the village comprises of 104 households with 4 Anganwadi Centres and only one Masjid in whole village. There seems no locational edge between the respondent and the petitioner, upon each other, as such the selection needed to be considered on the basis of prescribed merit. It is reported that the report has been prepared after affording ample opportunity of being heard to either of the party in presence of their relatives as also in presence of the Lumberdar and Chowkidar. Furthermore, statements of impartial persons/witnesses were also recorded for preparation of the enquiry report.
6. Heard learned counsel for the parties and have gone through the material placed on record especially the enquiry conducted by 4 the SDM Sopore and report of Tehsildar Watergam in pursuance to the judgment passed by this Court on 25.08.2016 in SWP No.2386/2011.
7. The petitioner in the writ petition alleges that no notice has been served to her and the enquiry report has been prepared without affording her opportunity of being heard and without production of the documents which would substantiate her claim. The SDM Sopore has prepared his report on the basis of the report furnished by the Tehsildar Watergam, however, no spot inspection has been made by the SDM, Sopore. It is also submitted that enquiry Officer has not taken the assistance of any agency much less the ICDS Department for identification of the location but has submitted the enquiry report without following proper procedure.
8. The reply to the writ petition stands filed by the respondents and the official respondents in para-8 of their reply submit that the enquiry officer has taken assistance of all those, who he were required to be heard in the matter. In fact the Tehsildar Dangiwacha in terms of his communication dated 26.09.2016 had asked Child Development Project Officer, ICDS Rafiabad to attend his office on 05.10.2016 and thereafter the said Child Development Project Officer in terms of his communication dated 22.10.2016, was told by Tehsildar Dangiwacha to accompany him to the spot on the scheduled date alongwith 5 relevant documents. Therefore, the contention of learned counsel for the petitioner that enquiry officer has not taken assistance of any agency is not sustainable.
9. Perusal of the record reveals that the enquiry report is based not only on the statements of the petitioner as well as respondent but also respectable/impartial persons of the locality including the Panchs and Surpanch of the concerned vicinity; as such the contention that the enquiry is not transparent/fair is without merit, as such, rejected. The enquiry reports were prepared after taking into consideration the documents produced by both the parties to the lis, statements of the lumberdar, Chokidar, and the impartial persons of the locality for ascertaining the specific location of the residential houses of the rival parties.
10. Admit.
11. In view of the discussion made hereinabove, the Enquiry Committee has rightly observed that the appointment needs to be made on the basis of the merit of the petitioner and the private respondent. Be that as it may, this writ petition is disposed of in light of the judgment passed by this Court on 25.08.2016, in SWP No. 2368/2011, with a direction to the respondent No. 2-4/official respondents to assess the comparative merit of the petitioner as well as of the private respondent and pass appropriate orders of engagement in favour of the meritorious candidate within a period of four weeks from 6 the date certified copy of this order is made available to the respondent/authority.
12. Disposed of along with connected CM(s).
(MOKSHA KHAJURIA KAZMI) JUDGE Srinagar September, , 2022.
"Abdul Rashid"