Jammu & Kashmir High Court
Sunita Kumari And Others vs State Of J&K; & Others on 23 May, 2018
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Date of order:23.05.2018
1. SWP No. 1222/2015, MP No. 1/2015
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2. SWP No. 1811/2015, MP No.1/2015
3. SWP No. 1296/2015, MP No. 1/2015
4. SWP No. 1745/2015, MP No. 1/2015
5. SWP No. 1401/2015, MP No. 1/2015
6. SWP No. 1413/2015, MP No. 1/2015
7. SWP No. 1288/2015, MP No. 1/2015
8. SWP No. 2128/2015, MP No. 1/2015
9. SWP No. 2018/2015, MP No. 1/2015
10. SWP No. 1499/2015, MP No. 1/2015
11. SWP No. 1627/2015, MP No. 1/2015
12. SWP No. 1486/2015, MP No. 1/2015
13. SWP No. 1322/2015, MP Nos. 1/2015, 1/2016
14. SWP No. 3341/2015, MP No. 1/2015
15. SWP No. 1363/2015, MP No. 1/2015
16. SWP No. 2014/2015, MP No. 1/2015
17. SWP No. 1837/2015, MP No. 1/2015
18. SWP No. 1666/2015, MP No. 1/2015
19. SWP No. 1498/2015, MP No. 1/2015
20. SWP No. 1737/2015, MP No. 1/2015
21. SWP No. 1568/2015, MP Nos. 1/2015 & 2/2015
22. SWP No. 1795/2015, MP No. 1/2015
23. SWP No. 2019/2015, MP No. 1/2015
24. SWP No. 1711/2015, MP No. 1/2015
25. SWP No. 2668/2015, MP Nos. 1/2015, 1/2016
26. SWP No. 1573/2015, MP No. 1/2015
27. SWP No. 1490/2015, MP No. 1/2015
28. SWP No. 1380/2015, MP No. 1/2015
29. SWP No. 1478/2015, MP No. 1/2015
30. SWP No. 2169/2015, MP No. 1/2015
31. SWP No. 1569/2015, MP No. 1/2015
32. SWP No.1608/2015, MP No.1/2015
33. SWP No. 1665/2015, MP No. 1/2016
34. SWP No. 1855/2015, MP Nos. 1/2015, 1/2016
35. SWP No. 1541/2015, MP No. 1/2015
36. SWP No. 1643/2015, MP No. 1/2015
37. SWP No. 1681/2015, MP No. 1/2015
38. SWP No. 1578/2015, MP No. 1/2015
39. SWP No. 2942/2015, MP No. 1/2015
40. SWP No. 2515/2015, MP No. 1/2015
41. SWP No. 1459/2015, MP No. 1/2015
42. SWP No. 1634/2015, MP No. 1/2015
43. SWP No. 1519/2015, MP Nos. 1/2015, 2/2015 & 1/2016
44. SWP No. 1439/2015, MP No. 1/2015
45. SWP No. 1415/2015, MP No. 1/2015
SWP 1222/2005 a/w connected matters Page 1 of 46
46. SWP No. 1466/2015, MP No. 1/2015
47. SWP No. 1607/2015, MP No. 1/2015
48. SWP No. 1804/2015, MP No. 1/2015
49. SWP No. 1389/2015, MP No. 1/2015
50. SWP No. 1506/2015, MP No. 1/2015
51. SWP No. 1414/2015, MP No. 1/2015
52. SWP No. 1477/2015, MP No. 1/2015
53. SWP No. 1421/2015, MP No. 1/2015
54. SWP No. 1528/2015, MP No. 1/2015
55. SWP No. 1620/2015, MP No. 1/2015
56. SWP No. 1475/2015, MP No. 1/2015
57. SWP No. 1673/2015, MP No. 1/2015
58. SWP No. 1819/2015, MP No. 1/2015
59. SWP No. 1559/2015, MP No. 1/2015
60. SWP No. 1552/2015, MP No. 1/2015
61. SWP No. 1632/2015, MP No. 1/2015
62. SWP No. 1544/2015, MP No. 1/2015
63. SWP No. 1416/2015, MP No. 1/2015
64. SWP No. 1408/2015, MP No. 1/2015
65. SWP No. 1372/2015, MP No. 1/2015
66. SWP No. 3315/2015, MP No. 1/2015
67. SWP No. 1570/2015, MP No. 1/2015
68. SWP No. 1594/2015, MP No. 1/2015
69. SWP No. 1714/2015, MP No. 1/2015
70. SWP No. 2028/2015, MP No. 1/2015
71. SWP No. 1792/2015, MP No. 1/2015
72. SWP No. 1773/2015, MP No. 1/2015
73. SWP No. 1916/2015, MP No. 1/2015
74. SWP No. 1915/2015, MP No. 1/2015
75. SWP No. 1527/2015, MP No. 1/2015
76. SWP No. 1840/2015, MP No. 1/2015
77. SWP No. 1729/2015, MP No. 1/2015
78. SWP No. 1748/2015, MP No. 1/2015
79. SWP No. 3257/2015, MP No. 1/2015
80. SWP No. 1629/2015, MP No. 1/2015
81. SWP No. 1700/2015, MP No. 1/2015
82. SWP No. 1734/2015, MP No. 1/2015
83. SWP No. 1828/2015, MP No. 1/2015
84. SWP No. 1383/2015, MP Nos. 1/2015, 1/2017
85. SWP No. 1453/2015, MP No. 1/2015
86. SWP No. 613/2016, MP No. 2/2016
87. SWP No. 1630/2016, MP No. 1/2016
88. SWP No. 1691/2016, MP No. 1/2016
89. SWP No. 165/2017, MP No. 1/2017
90. SWP No. 220/2017, MP No. 1/2017
91. SWP No. 530/2017, MP Nos. 1/2017, 2/2017
92. SWP No. 798/2017, MP No.1/2017
93. SWP No. 1468/2017, MP No. 1/2017
94. SWP No. 2095/2017
SWP 1222/2005 a/w connected matters Page 2 of 46
1. SWP No. 1222/2015
Sunita Kumari and others Vs State of J&K and others.
For the petitioner(s) : Mr F.A.Natnoo, Advocate
For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG.
2. SWP No. 1811/2015
Babli Devi and another Vs State of J&K and others. For the petitioner(s) : Mr P.N.Raina, Sr. Advocate with Mr J.A.Hamal, Advocate For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 3. SWP No. 1296/2015 Neelam Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr. Amit Gupta, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 4. SWP No. 1745/2015 Anju Bala and others Vs State of J&K and others. For the petitioner(s) : Mr Ashok Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 5. SWP No. 1401/2015 Neelam Rani Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 6. SWP No. 1413/2015 Jyoti Devi and others Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 7. SWP No. 1288/2015 Renu Sharma and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 3 of 46 8. SWP No. 2128/2015 Indira Devi Vs State of J&K and others. For the petitioner(s) : Mr. Ashok Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 9. SWP No. 2018/2015 Vijay Mala Vs State of J&K and others. For the petitioner(s) : Mr F.S.Butt, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 10. SWP No. 1499/2015 Shafia Begum Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 11. SWP No. 1627/2015 Azmat Bi and others Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 12. SWP No. 1486/2015 Neelam Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 13. SWP No. 1322/2015 Shafia Shafiq Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 14. SWP No. 3341/2015 Zahida Parveen and others Vs State of J&K and others. For the petitioner(s) : Mr. M.R. Qureshi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 4 of 46 15. SWP No. 1363/2015 Naseem Akhter and others Vs State of J&K and others. For the petitioner(s) : Mr. N.D. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 16. SWP No. 2014/2015 Ruksana Tabasum and others Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 17. SWP No. 1837/2015 Nirbla Devi and another Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 18. SWP No. 1666/2015 Sunita Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. P.N.Raina, Sr. Advocate with Mr. J.A.Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 19. SWP No. 1498/2015 Shaheena Akhter Vs State of J&K and others. For the petitioner(s) : Mr. Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 20. SWP No. 1737/2015 Asha Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 5 of 46 21. SWP No. 1568/2015 Raheena Begum Vs State of J&K and others. For the petitioner(s) : Mr. Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 22. SWP No. 1795/2015 Ritu Thakur and others Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 23. SWP No. 2019/2015 Sunita Devi and others Vs State of J&K and others. For the petitioner(s) : Mr Ashok Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 24. SWP No. 1711/2015 Fareena Akhter and another Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 25. SWP No. 2668/2015 Saleema Begum and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 26. SWP No. 1573/2015 Azmait Begum and others Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 6 of 46 27. SWP No. 1490/2015 Pinki Rani Vs State of J&K and others. For the petitioner(s) : Ms Vilakshna Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 28. SWP No. 1380/2015 Shahnaz Kousar and another Vs State of J&K and others. For the petitioner(s) : Mr. Khalil Ahmed, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 29. SWP No. 1478/2015 Asha Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr P.N. Raina, Sr. Advocate with Mr J.A.Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 30. SWP No. 2169/2015 Darshna Devi Vs State of J&K and others. For the petitioner(s) : Mr. Amrit Sarin, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 31. SWP No. 1569/2015 Saima Begum Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 32. SWP No. 1608/2015 Kirna Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr P.N Raina, Sr. Advocate with Mr J.A Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 33. SWP No. 1665/2015 Kailash Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 7 of 46 34. SWP No. 1855/2015 Shakeela Begum and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 35. SWP No. 1541/2015 Sharishta Devi and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 36. SWP No. 1643/2015 Rashda Akhter Vs State of J&K and others. For the petitioner(s) : Mr. Sheikh Alam, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 37. SWP No. 1681/2015 Shabnam Akhter Vs State of J&K and others. For the petitioner(s) : Mr. I. H. Bhat, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 38. SWP No. 1578/2015 Geeta Devi and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 39. SWP No. 2942/2015 Saleema Bano and another Vs State of J&K and others. For the petitioner(s) : Mr. A.H. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 8 of 46 40. SWP No. 2515/2015 Shano Devi Vs State of J&K and others. For the petitioner(s) : Mr. P.N.Raina, Sr. Advocate with Mr. J.A.Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 41. SWP No. 1459/2015 Shailla and others Vs State of J&K and others. For the petitioner(s) : Mr. Shafiq-ur-Rehman Bhat, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 42. SWP No. 1634/2015 Bandana Rajput Vs State of J&K and others. For the petitioner(s) : Mr. V. S. Saini, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 43. SWP No. 1519/2015 Inderjeet Kaur and others Vs State of J&K and others. For the petitioner(s) : Mr Abhinav Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG for R-1 to 6. None for R-7 44. SWP No. 1439/2015 Sakina Bi Vs State of J&K and others. For the petitioner(s) : Mr. Tanzeer Khatana, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 45. SWP No. 1415/2015 Shaheen Anjum and others Vs State of J&K and others. For the petitioner(s) : Mr. M.R. Qureshi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 46. SWP No. 1466/2015 Nusrat Bano and another Vs State of J&K and others. For the petitioner(s) : Mr. N. D. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 9 of 46 47. SWP No. 1607/2015 Suriya Begum and others Vs State of J&K and others. For the petitioner(s) : Mr. M.A. Choudhary, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 48. SWP No. 1804/2015 Sunita Sharma and others Vs State of J&K and others. For the petitioner(s) : Mr. Pawan Dev Kotwal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 49. SWP No. 1389/2015 Rajni Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. V. S. Saini, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 50. SWP No. 1506/2015 Bashir Akhter and others Vs State of J&K and others. For the petitioner(s) : Mr. Z.A. Mughal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 51. SWP No. 1414/2015 Tazeem Akhter and others Vs State of J&K and others. For the petitioner(s) : Mr. M.R. Qureshi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 52. SWP No. 1477/2015 Nagina Shaheen and others Vs State of J&K and others. For the petitioner(s) : Mr. Anayat Ali Sagar, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 53. SWP No. 1421/2015 Shaheen Jabeen and another Vs State of J&K and others. For the petitioner(s) : Mr. S.N. Hamdani, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 10 of 46 54. SWP No. 1528/2015 Nisha Devi and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 55. SWP No. 1620/2015 Zahoor Bibi Vs State of J&K and others. For the petitioner(s) : Ms Vilakshana, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 56. SWP No. 1475/2015 Reena Rani and others Vs State of J&K and others. For the petitioner(s) : Mr Abhinav Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 57. SWP No. 1673/2015 Asia Parveen and others Vs State of J&K and others. For the petitioner(s) : Mr. M. I. Sherkhan, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 58. SWP No. 1819/2015 Suneel and others Vs State of J&K and others. For the petitioner(s) : Mr. Mohinder Kumar, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 59. SWP No. 1559/2015 Zarina Begum Vs State of J&K and others. For the petitioner(s) : Mr. A.M. Malik, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 60. SWP No. 1552/2015 Rekha Jamwal Vs State of J&K and others. For the petitioner(s) : Mr. Rajneesh Jamwal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 11 of 46 61. SWP No. 1632/2015 Sushma Devi Vs State of J&K and others. For the petitioner(s) : Mr. A.M. Malik, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 62. SWP No. 1544/2015 Kiran Bala and others Vs State of J&K and others. For the petitioner(s) : Mr. P.N. Raina, Sr. Advocate with Mr. J.A.Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 63. SWP No. 1416/2015 Fareeda Begum and others Vs State of J&K and others. For the petitioner(s) : Mr. Z.A. Mughal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 64. SWP No. 1408/2015 Razia Bano Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 65. SWP No. 1372/2015 Nasreen Fatima and another Vs State of J&K and others. For the petitioner(s) : Mr.S.N. Hamdani, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 66. SWP No. 3315/2015 Rozina Iqbal and others Vs State of J&K and others. For the petitioner(s) : Mr. Zeeshan Javed, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 67. SWP No. 1570/2015 Shama Begum Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 12 of 46 68. SWP No. 1594/2015 Meenu Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr P.N.Raina, Sr. Advocate with Mr J.A.Hamal, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 69. SWP No. 1714/2015 Vijay Kumari and another Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 70. SWP No. 2028/2015 Gulshan Bano Vs State of J&K and others. For the petitioner(s) : Mr. A.H. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 71. SWP No. 1792/2015 Parveen Kousar and others Vs State of J&K and others. For the petitioner(s) : Mr Ayaz Lone, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 72. SWP No. 1773/2015 Asha Devi and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 73. SWP No. 1916/2015 Shazia Begum Vs State of J&K and others. For the petitioner(s) : Mr. Z.A. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 74. SWP No. 1915/2015 Anam Bi Vs State of J&K and others. For the petitioner(s) : Mr. Z.A. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 13 of 46 75. SWP No. 1527/2015 Rafiqa Bano Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 76. SWP No. 1840/2015 Said Begum Vs State of J&K and others. For the petitioner(s) : Mr S.S.Andotra, Advocate Ms Jyoti Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 77. SWP No. 1729/2015 Sunita Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. Pawan Dev Singh, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 78. SWP No. 1748/2015 Fatima Begum Vs State of J&K and others. For the petitioner(s) : Mr. Z.A. Qazi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 79. SWP No. 3257/2015 Ishwant Shaheen Vs State of J&K and others. For the petitioner(s) : Mr. M.R. Qureshi, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 80. SWP No. 1629/2015 Swarna Kumari and another Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 81. SWP No. 1700/2015 Shaheena Begum Vs State of J&K and others. For the petitioner(s) : Mr Rahil Raja, Advocate For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 14 of 46 82. SWP No. 1734/2015 Baiso Devi and another Vs State of J&K and others. For the petitioner(s) : Mr Abhinav Sharma, Advocate For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 83. SWP No. 1828/2015 Rajni Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. Pawan Kumar Hans, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 84. SWP No. 1383/2015 Anju Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 85. SWP No. 1453/2015 Anjali Kumari and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 86. SWP No. 613/2016 Kiran Bala and others Vs State of J&K and others. For the petitioner(s) : Mr F.A.Natnoo, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG for R-1 to 7 Mr P.N.Raina, Sr. Advocate with Mr J.A.Hamal, Advocate for R-8. 87. SWP No. 1630/2016 Omi Devi Vs State of J&K and others. For the petitioner(s) : Mr. C.M. Koul, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 88. SWP No. 1691/2016 Nimo Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. Ramnee Singh, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. SWP 1222/2005 a/w connected matters Page 15 of 46 89. SWP No. 165/2017 Seema Devi and others Vs State of J&K and others. For the petitioner(s) : Mr. Gagan Kohli, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 90. SWP No. 220/2017 Rajni Devi Vs State of J&K and others. For the petitioner(s) : Mr. Parshotam Lal, Sharma, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 91. SWP No. 530/2017 Anjly Sharma Vs State of J&K and others. For the petitioner(s) : Mr J.S.Jasrotia, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 92. SWP No. 798/2017 Sakeena Begum and another Vs State of J&K and others. For the petitioner(s) : Mr. S.N. Hamdani, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 93. SWP No. 1468/2017 Zenab Begum Vs State of J&K and others. For the petitioner(s) : Mr. F.S.Butt, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. 94. SWP No. 2095/2017 Diksha Sharma and others Vs State of J&K and others. For the petitioner(s) : Mr. Vasu Dubey, Advocate. For the respondent(s) : Mr H.A.Siddiqui, Sr. AAG. Coram: Hon'ble Mr. Justice Tashi Rabstan, Judge. i. Whether to be reported in Press/Media : Yes ii. Whether to be reported in Digest/Journal : Yes SWP 1222/2005 a/w connected matters Page 16 of 46
1. Since common questions of facts and law are involved in all these petitions, therefore, I deem it proper to decide these petitions by this common judgment.
2. Through the medium of these petitions, the petitioners in all these petitions are seeking quashing of Order No.13-SMD of 2015 dated 22.04.2015 issued by Mission Director, ICDS, J&K, respondent No.3 in SWP No.1222/2015, whereby engagements of all stop gap/adhoc Anganwadi Workers and Helpers have been terminated with immediate effect. The petitoners are also seeking a direction to the respondents to allow them to discharge their duties against the posts of Anganwadi Workers and Helpers and also regularize their services on the analogy of similarly situated persons of various other departments of the State Government including the Power Development Department.
3. The facts-in-brief, as projected in these petitions, are that the petitioners being qualified came to be engaged as Anganwadi Workers/Helpers on different dates ranging from 1989 for a specific period and thereafter vide different orders they were allowed to continue till final selection is made by the competent authority. It is averred that the petitioners have been working as such in various Anganwadi Centres. It is further averred that during the period of their engagement, the petitioners were also deputed to undergo various departmental training courses, which they completed successfully. Further, it is averred that although the petitioners were discharging their duties to the best satisfaction of their concerned authorities in maintaining and managing the Anganwadi Centres, yet, all of a sudden, on the last day of Darbar Move when the offices at Jammu were being closed, Mission Director, ICDS, J&K issued Order No.13-SMD of 2015 dated 22.04.2015, impugned herein, terminating the engagements of all stop gap/adhoc Anganwadi Workers and Helpers with immediate effect. Hence, the present writ petitions.
4. Learned counsel appearing for petitioners contended that the petititoners came to be engaged by the competent authorities and the same can in no way be SWP 1222/2005 a/w connected matters Page 17 of 46 tainted with illegalities. They further contended that without adopting due course of law and following the principles of natural justice, the engagements of all the petitioners have been terminated just with one stroke of pen, which is contrary to the orders of their engagements. They further contended that in respect of all such kinds of engagements made from time to time in various other departments, the State Government has made rules and procedure for regularization of all such appointees, however, in the present case, instead of considering the case of petitioners for regularization of their services against the posts of Anganwadi Workers/Helpers, their engagements have been terminated vide the order impugned. Learned counsel appearing for petitioners further contended that the engagement orders of most of the petitioners were till the regular selection is made by the competent authority, but the respondents without initiating the selection process for regular selection against the said posts, have initiated a move vide the impugned order to replace the petitioners by another set of adhocees as per their likings, which is otherwise not permissible in view of settled legal position as laid down by the Apex Court.
5. Learned counsel for petitioners also contended that the family members of petitioners including their children are dependent on the meager amount of honorarium paid to them; therefore, terminating their engagements at this juncture would mean taking away their means of livelihood, which is otherwise contrary to the mandate of Article 21 of the Constitution of India.
6. Objections have been filed on behalf of respondents insisting therein that petitioners are temporary workers, engaged on honorarium basis and have not been appointed in terms of relevant rules and after proper competition among qualified persons, thus, have no right to continue against the said positions. It is averred that the petitioners have been engaged by the incompetent officers, without following due procedure and that no opportunity for consideration has been afforded to the similarly situated eligible candidates. Most of the petitioners SWP 1222/2005 a/w connected matters Page 18 of 46 are not from the wards/hamlets where the Anganwadi Centres are functioning. It is insisted that merely because petitioners have been continuing would not make them entitled to be absorbed in regular service. The Government has constituted a Committee for selection of Anganwadi Workers/Helpers and petitioners have not been appointed by any such Committee. Respondents maintain that they have no intention to replace petitioners by any other temporary arrangements. Respondents assert that they intend to make permanent appointments after adopting due course of law and advertising the posts in question and the petitioners herein are not being restrained to participate in the said process, if otherwise eligible.
7. I have heard learned counsel appearing for the respective parties, considered their rival contentions and perused the writ files.
8. Prior to adverting to the controversy that has percolated from the above discourse, it is apposite to say that United Nations International Children's Emergency Fund was created by the United Nations General Assembly on 11th December 1946, aiming at to provide emergency food and healthcare to children in countries devastated by World War-II. The Polish Physician, Ludwik Rajchman, is widely regarded as founder of UNICEF, who served as its first Chairman from 1946. In 1950, UNICEF's mandate was extended to address long term needs of children and women in developing countries everywhere. In 1953 it became a permanent part of United Nations System, and the words "international" and "emergency" were dropped from the organisation's name, making it simply United Nations Children's Fund, retaining the original acronym, "UNICEF".
9. In above milieu, the Government of India, way back in the year 1975, conceived and thought it appropriate to come up with a Scheme to reduce infant mortality, child malnutrition and to provide pre-school education; to advance the nutritional and health standing of children in the age-group 0-6 years; to create a SWP 1222/2005 a/w connected matters Page 19 of 46 system that tackles the proper psychological, physical and social development of the child; to fight the rate of mortality, morbidity, malnutrition and school dropout; to have all the various ministries and departments work in a coordinated fashion to achieve policy implementation and create an effective ECCE system; to support the mother and help her become capable of providing of the necessary nutritional and development needs of the child and aware of her own needs during pregnancy. The said Scheme was launched by the Government of India in 1975, named as 'Integrated Child Development Service', which is today one of the World's largest and most unique programmes for early childhood development. Its aim is to provide nutritional support, healthcare and pre-school education for children under 06 (and for pregnant or lactating mothers) in order to reduce the incidence of mortality, malnutrition and school dropout.
10. Under the ICDS Scheme, children under 06 and pregnant or lactating mothers can access services, like supplementary nutrition, immunisations, health check-ups, and referral services. In addition, children, aged 3-6, should be able to access pre-school non-formal education under ICDS. Women and adolescent girls (aged 15-45) should also be able to access nutrition and health education, providing them with advice and support to help them look after their own health, nutrition and development needs as well as that of their children and families. All these services should be available from a local ICDS (or Anganwadi) Centre by Anganwadi Workers like Shanti. These community-based women are paid an honorarium for their work. Whilst the Anganwadi Worker is responsible for running of the Anganwadi Centre, she should be backed up by Medical Officers, Auxiliary Nurse Midwives (ANM) and Accredited Social Health Activists (ASHAs) to provide specialist support (such as immunisations, ante-natal and post-natal care). The structure of ICDS is that it is a centrally funded scheme implemented through the States and Union Territories. ICDS also outlines the amount in calories that the beneficiaries should receive. It is no longer only available to below the poverty line beneficiaries; hence States are responsible to SWP 1222/2005 a/w connected matters Page 20 of 46 register all eligible beneficiaries. The Scheme receives aid from various other non-government bodies. Three of the main contributors are Cooperative for Assistance and Relief Everywhere (CARE), UNICEF and the World Food Programme (WFP).
11. Pre-school education (PSE) has come under purview of MWCD along with pre-primary education. MWCD does not specify much information about this area, simply that it will continue as planned under ICDS scheme. Non-formal education, offered as per Ministry of Human Resources (MHR), Government of India, consists of providing a learning environment to children between the ages of 3-6. Pre-School Education is supposed to be implemented through a medium of play to allow for social, emotional, cognitive and physical development of the child as well as prepare him for primary education in the formal system. ICDS team comprises Anganwadi Workers, Anganwadi Helpers, Supervisors, Child Development Project Officers (CDPOs) and District Programme Officers (DPOs). Anganwadi Worker, a lady selected from the local community, is a community based frontline honorary worker of the ICDS Programme. She is also an agent of social change, mobilizing community support for better care of young children, girls and women. Anganwadi Workers (AWWs) & Anganwadi Helpers (AWHs), being honorary workers, are paid monthly honoraria as decided by the Government from time to time. In addition to honoraria paid by Government of India, many States/UTs are also giving monetary incentives to these workers out of their own resources for additional functions assigned under other Schemes. Anganwadi Workers or Anganwadi Helpers, engaged /appointed in Social Welfare Department of J&K State, are not like those casual/seasonal/daily rated labourers and workers, who are engaged in other government departments for ordinary and normal daily routine work(s).
12. The Constitution of India guarantees right to equality through Articles 14 to 18. Equality is one of magnificent cornerstones of Indian democracy. The SWP 1222/2005 a/w connected matters Page 21 of 46 doctrine of equality before law is a necessary corollary of Rule of Law that pervades the Indian Constitution. The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the Preamble of our Constitution. Article 14 outlaws discrimination in a general way and guarantees equality before law to all persons. In view of a certain amount of indefiniteness attached to the general principle of equality enunciated in Article 14, separate provisions to cover specific discriminatory situations have been made by the subsequent Articles. Thus, Article 15 prohibits discrimination against citizens on such specific grounds as religion, race, caste, sex or place of birth. Article 16 guarantees to the citizens of India equality of opportunity in matters of public employment. Article 17 abolishes untouchability and Article 18 abolishes titles, other than a military or academic distinction. [ See: Indra Sawhney v. Union of India AIR 1993 SC 477; Ashutosh Gupta v. State of Rajasthan (2002) 4 SCC 34; Natural Resources Allocations, In Re Special Reference no.1 of 2012, (2012) 10 SCC 1 (77)]. The Supreme Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath (2009) 5 SCC 1, has said that the Constitution lays down provision both for protective discrimination as also affirmative action. In this series of constitutional provisions, Article 14 is the most significant. It has been given a highly activist magnitude in recent years by the courts and, thus, it generates a large number of court cases. In recent days, Article 16 has also assumed great significance. Article 14 is the genus while Articles 15 and 16 are the species. Articles 14, 15 and 16 are constituents of a single code of constitutional guarantees supplementing each other. It may be noted that right to equality has been declared by the Supreme Court as a basic feature of the Constitution. The Constitution of India is wedded to the concept of equality. The Preamble to the Constitution emphasizes upon the principle of equality as basic to the Constitution. This means that even a Constitutional amendment offending the right to equality will be declared invalid. Neither Parliament nor any State Legislature can transgress the principle of equality. A SWP 1222/2005 a/w connected matters Page 22 of 46 Constitution Bench of the Supreme Court has in M. Nagaraj v. Union of India (2006) 8 SCC 212, declared in no uncertain terms that equality is a basic feature of the Constitution and although the emphasis in the earlier decisions evolved around discrimination and classification, the content of Article 14 got expanded conceptually and has recognised the principles to comprehend the doctrine of promissory estopped, non-arbitrariness, compliance with rules of natural justice eschewing irrationality etcetera. If there is no affectation of a vested right, question of applicability of Article 14 would not arise. Such an absolute proposition is inconsistent with recognition by the Supreme Court in or in many of its earlier judgements in relation to promissory estoppel and legitimate expectation which are not only much short or indefeasible right but were evolved to protect a person from unfair and arbitrary exercise of power. Article 14 of the Constitution of India bars discrimination and prohibits discriminatory laws. It is now proving as a bulwark against any arbitrary or discriminatory state action. (Vide: State of Kerala v. Peoples Union of Civil Liberties, Keral State Unit (2009) 8 SCC 46; Food Corporation of India v. Kamdhenu Cattle Feed Industries AIR 1993 SC 1601; Asha Sharma v. Chandigarh Admin (2011) 10 SCC 86].
13. In the present case, petitioners have been engaged on ad hoc basis and allowed to continue to work as Anganwadi Workers and Helpers. Continuation of petitioners to work so, for more than ten years and even in some cases more than fifteen to twenty years, has created an interest, legal right and claim, as also generated job security in them inasmuch as they, almost, have crossed maximum age limit prescribed for seeking employment elsewhere muchless quest for greener pastures.
14. However, the Mission Director, ICDS, J&K, with single stroke of pen terminated the engagement of all stop gap/ad hoc Anganwadi Workers/Helpers with immediate effect vide order impugned without verifying the case of each SWP 1222/2005 a/w connected matters Page 23 of 46 and every petitioner to know whether any one of them has been engaged as per eligibility criteria or not. Further, respondents, without making any alternative arrangement, terminated the engagement of all these petitioners with single stroke of pen. Accordingly, on 30.04.2015, to a specific query from this Court, learned counsel appearing for respondents made a statement at the Bar that the Anganwadi Centres, in which all these petitioners were working, had not been closed and were still existing; rather, it was stated that respondents were contemplating selection process on permanent basis. This important aspect of the matter needs to be looked into broader perspective. Selection and engagement agasint positions of Anganwadi Workers and Helpers is onerous and cumbersome process. Firstly, advertisement notice(s) are to be issued throughout length and breadth of the State, inviting applications in all those habitations/hamlets, where petitioners are/were working as AWW/AWH. Secondly, selection process is to be set into motion. Thirdly, fundamental prerequisites for making selections are to be followed and complied with in letter and spirit. Lastly there are chances that the conclusions of such selection process(es) can end into litigation(s) and cross litigation(s), which will again take great deal resources for its squaring off. For and during this period, the respondents require the services of both AWWs and AWHs because the Anganwadi Centres are stated to have not been closed when the order impugned terminating the engagements of petitioners was issued. Be that as it may, it deduces from the above that respondents, as a matter of fact, intended to replace petitioners by another set of stop gap/ad hoc AWWs/AWHs. As such, in the given circumstances, this Court vide order dated 30.04.2015 restrained the respondents from replacing petitioners with any other temporary arrangement/ substitute. This Court also directed respondents to allow petitioners to continue in the Anganwari Centres where they had been working in terms of their engagement / extension orders.
15. Now the question arises for consideration is: whether the petitioners have been engaged/appointed as per the eligibility criteria and they have no right to be SWP 1222/2005 a/w connected matters Page 24 of 46 absorbed on regular basis against the positions held by them, even if some of them have been continuing for the last more than ten to twenty years.
16. Admittedly, respondents do not dispute engagement of petitioners against available positions of AWWs and AWHs and many of them have been continuing on the said positions for last more than ten to twenty years. It has also not been disputed by the respondents that engagement of petitioners came to be extended from time to time. Even, engagement orders of some of petitioners reveal that their engagements are till the final selection is made by the competent authority.
17. Although, in the objections filed, the respondents have admitted that the petitioners, being temporary workers, were engaged on honorarium basis, yet the stand of respondents is that they have not been appointed as per the procedure laid and after proper competition among qualified persons. In the affidavit filed by State Mission Director, ICDS, J&K, in terms of order dated 26.03.2018, passed by this Court, it is stated that the position of AWWs was to be filled up in pursuance of SRO 287 dated 26.9.1991. The method of recruitment for the position of AWWs, as indicated in Schedule-VI of SRO 287, has been reproduced in the Affidavit. It is also asserted that by virtue of SRO 325 of 2006 an amendment was made in the Schedule-VI, which relates to method of recruitment of AWWs. An important facet that is to be seen and appreciated is that the amended method of recruitment provides that the procedure for recruitment of AWWs shall be devised by the Government. For ready reference it is important to reproduce relevant part of the Affidavit hereunder:
"It is submitted that by virtue of SRO 325 dated 10.6.2006 an amendment in scheduled-VI w.e.f. 30.12.2004 was effected by providing method of recruitment as under:
Class Category Designation Grade Minimum Method of qualification for recruitment direct recruitment 1 2 3 4 5 6 2 III C Anganwari Consolidated Matric pass and 100% by direct Workers Rs.1300 p.m. above recruitment from SWP 1222/2005 a/w connected matters Page 25 of 46 amongst the women who are:
(i) in the age group of 21-45, relaxable up to the maximum of 10 years in case she is otherwise eligible;
(ii) from the same village/ community;
(iii) able to serve effectively the children, pregnant mothers and women in the age group of 15-44 years of the project area
(iv) able to work with women and children on the Scheduled Tribes and other weaker sections of the community.
Provided that the procedure for such recruitment shall be devised by the Government From the above reproduced passage, it is unequivocally clear that the procedure for recruitment of AWWs was to be formulated and devised by the Government as the same was yet to be formulated or devised. This albeit has a clinching effect on and square off the whole controversy in hand, yet much more is coming to fore from the pleadings of the parties that is valuable to be deliberated upon here. Paragraph 04 of the Affidavit filed by State Mission Director, ICDS, J&K, is profitable to be reproduced infra:
"4- After 2010 all the selections have been made in terms of selection criteria laid down by the Government. The said Govt. order was issued in 2010 is already part of the reply/writ petition being Govt. Order No.7-SW of 2010 dated 18.1.2010."
Above reproduced paragraph 04 of the Affidavit proves to be Achilles' heel in the stand taken and case set up by respondents against petitioners' case. What is deducible from the perusal of above paragraph 04 is that respondents admit that it is only "after 2010" that "all the selections" for the positions of SWP 1222/2005 a/w connected matters Page 26 of 46 AWWs or for that matter AWHs, "have been made in terms of selection criteria laid down by the Government". At another place, State Mission Director, ICDS, J&K, after reproducing Schedule-VI, viz. method of recruitment, amended vide SRO 325, has claimed that vide Government "Order no.75-SW of 2008 dated 5.3.2008 Block Level Committees were constituted to finalize the selection of Anganwari Workers after proper advertisement". This again denotes and connotes that prior thereto there had been no Block Level Committees constituted or for that matter there had been no selection process being conducted for engagement of AWWs and AWHs. This is one aspect of the matter.
Another facet of the matter is that respondents do not dispute engagement of petitioners, albeit on stop gap/ad hoc basis, prior to the year 2010 and their continuation for more than ten to twenty years. Once that being the position, respondents, after extracting the work from petitioners for more than a decade, cannot be heard saying that petitioners' engagement was on the basis of stop gap/ ad hoc and therefore, petitioners have no right to claim continuation or regularization on the positions of AWWs and AWHs. Such plea or action of respondents would amount to exploitation of citizens of India/petitioners, who gave their youth in working and discharging their duties in respondent department and when they turned grey, respondents showed them exit. Such act is arbitrary and unconstitutional as well.
18. Anyhow, when this matter was listed for hearing on 29.04.2017, it was brought to the notice of this Court that in the minutes of the meeting held on 27.08.2010 under the chairpersonship of the Minister for Social Welfare, it was decided that the Anganwadi Workers, who have attained minimum period of three years and also fulfilling the eligibility norms, besides have rendered their services to the satisfaction of department, shall be absorbed as regular Anganwadi Workers. Accordingly, this Court vide order dated 29.04.2017 directed the respondents to furnish copy of minutes of the meeting held on 27.08.2010.
SWP 1222/2005 a/w connected matters Page 27 of 4619. Accordingly, compliance report came to be filed on 20.07.2017 averring therein that copy of minutes of the meeting held on 27.08.2010 is not available with the answering respondents because the State Mission Directorate was created vide Cabinet Decision No.62/05/2014 dated 24.02.2014 followed by Government order No.50-SW of 2014 dated 26.02.2014.
20. Learned counsel appearing for respondents while filing the compliance report had forgotten that he had also been appearing on behalf of Social Welfare Department, so he ought to have produced copy of minutes of the meeting held on 27.08.2010 under the chairpersonship of the Minister for Social Welfare, rather than to take a plea that the same was not available with the State Mission Directorate, which was created vide Cabinet decision dated 24.02.2014, which was nothing but an escape route not to produce copy of minutes of the meeting.
21. Further, order dated 29.04.2017 was never restricted to State Mission Directorate; rather it was for all respondents, more particularly for respondents 1&2, i.e. Commissioner/Secretary to Government, Social Welfare Department, and Director Social Welfare Department. Once the learned counsel had also been appearing on behalf of Social Welfare Department, he was debarred from taking such a clumsy plea, which only leads to the conclusion that the respondents willfully intended not to produce copy of minutes of the meeting before this Court, which related to the policy decision regarding regularizing the engagement of those Anganwadi Workers on regular basis who had completed three years of service on 27.08.2010. However, along with the compliance report, the respondents also placed on record a copy of Communication No.POD/ICDS/Estt/10/2689-97 dated 20.11.2010 addressed to Child Development Project Officers of Doda by the District Programme Officer, ICDS, Doda, under the caption "minutes of meeting held under the Chairpersonship of the Minister for Social Welfare held at Jammu on 27.08.2010, which is suffice to further wane the stand of respondents taken in opposition to the case of SWP 1222/2005 a/w connected matters Page 28 of 46 petitioners. Relevant portion letter no.POD/ICDS/Estt/10/2689-97 dated 20.11.2010 is, therefore, imperative to be reproduced hereunder:
"Please refer to the subject captioned above wherein point No.4 of said minutes of meeting pertains to the temporary workers already engaged and in this connection it was ordered that the Anganwadi workers who have attained minimum period of 3 years and have rendered their services to the Department satisfactorily fulfilling the eligibility norms be absorbed as a regular Anganwadi worker and all Anganwadi Centres where the temporary worker is engaged for a period less than three years, it be advertised forthwith.
As such it is enjoined upon all CDPOs to furnish the list of all such Anganwadi workers who fall under the above mentioned both categories to this office on or before 26.11.2010 for further necessary action failing which concerned officer shall be responsible."
22. Perusal of above quoting of communication No.POD/ICDS/Estt/10/2689- 97 dated 20.11.2010, thus, in unequivocal terms divulges that in terms of the decision arrived at in the minutes of the meeting at Point No.4, process had also been issued in the year 2010 itself for absorption of those Anganwadi Workers on regular basis, who had completed minimum period of three years. Therefore, in terms of said decision, those of the petitioners, who had completed three years' service as on 27.08.2010, were also required to be absorbed on regular basis. But, what happened thereafter is not forthcoming.
23. It was in the year 2015, that Commissioner/Secretary to Government, General Administration Department issued a Government Order No.384-GAD of 2015 dated 17.03.2015, whereby engagements/ arrangements made by different departments etc. against sanctioned posts were directed to be ceased with immediate effect, relevant portion whereof is reproduced hereunder:
"b) all the engagements/arrangements made by the different Departments/Public Sector Undertakings/Boards/Autonomous Bodies under any scheme against sanctioned posts without any selection procedure, even on contractual basis, shall cease to exist with immediate effect."SWP 1222/2005 a/w connected matters Page 29 of 46
24. Thus, in consequence to issuance of order dated 17.03.2015, Mission Director, ICDS, J&K issued Order No.13-SMD of 2015 dated 22.04.2015, impugned herein, terminating the engagements of all stop gap/ad hoc Anganwadi Workers and Helpers with immediate effect.
25. Since order dated 17.03.2015 issued by the General Administration Department of the State Government (supra) was general in nature and meant for all State Government Departments etc., as such this Court vide order dated 29.04.2017 directed the respondents to disclose whether Government Order No.384-GAD of 2015 dated 17.03.2015 has also been implemented by other departments/Public Sector Undertakings/Boards/Autonomous Bodies, thereby bringing to an end with immediate effect all engagements/arrangements, even on contractual basis, made under any scheme against sanctioned posts without any selection procedure. Accordingly, compliance report came to be filed by the respondents averring therein that so far as implementation of Order No.384-GAD of 2015 dated 17.03.2015 by other departments is concerned, the respondents are not aware about the same. However, it was argued on behalf of learned counsel for petitioners that neither other departments of the State Government nor any Public-Sector Undertakings/Boards/Autonomous Bodies disengaged services of any person on the basis of order dated 17.03.2015, which argument has not been controverted by learned counsel for respondents; meaning thereby the respondents have also admitted this position.
26. Now the question arises for consideration is: whether other departments of the State Government/Public Sector Undertakings/Boards/Autonomous Bodies had also implemented Order No.384-GAD of 2015 dated 17.03.2015, thereby bringing to an end all engagements/arrangements, even on contractual basis, made under any scheme against sanctioned posts without any selection procedure, as has been done in the present case in respect of all stop gap/ad hoc Anganwadi Workers and Helpers in terms of same order dated 17.03.2015.
SWP 1222/2005 a/w connected matters Page 30 of 4627. It is to be seen here that when Government Order No.384-GAD of 2015 dated 17.03.2015 came to be issued by the General Administration Department, another Government Order No.43-F of 2015 dated 17.03.2015 also came to be issued by the Finance Department on the same date itself, thereby withdrawing with immediate effect the authority to engage casual/seasonal labourers to various departments, as delegated by different Government orders from time to time.
28. Since vide Order No.384-GAD of 2015 dated 17.03.2015, all the engagements / arrangements made by different departments under any scheme against sanctioned posts/positions, without any selection procedure, came to be ceased with immediate effect, and, by another Order No.43-F of 2015 dated 17.03.2015 the authority to engage casual/seasonal labourers to various departments, delegated under various Government orders, came to be withdrawn with immediate effect, therefore, it was thought apt to come out of this imbroglio arising out of both these orders, and as a sequel thereto, the State Government came up with Notification/SRO 520 of 2017 dated 21.12.2017 notifying Jammu & Kashmir Casual and Other Workers - Regular Engagement Rules, 2017, providing succour to all casual, seasonal and other workers (CSLW) engaged up to 17.03.2015 making them eligible for regular engagement under these Rules subject to the condition that a CSLW must be a permanent resident of the State of Jammu & Kashmir; possesses minimum qualification of 8th standard or above; on the date of his/her initial engagement, his/her age was within the minimum and maximum age limit as prescribed for appointment in Government service; must have completed ten years of continuous working; his/her work and conduct is satisfactory and no disciplinary proceedings are pending against him/her and, lastly, he/she must be continuing in the department as on date.
29. It would also be relevant to reproduce hereunder Rule 2(c), Rule 2(j), Rule 3(1) and Rule 4 of Jammu & Kashmir Casual and Other Workers - Regular Engagement Rules, 2017 (for short, Rules of 2017):
SWP 1222/2005 a/w connected matters Page 31 of 46"2(c) "CSLW" means a casual, seasonal or other worker who has been engaged through an appointment order otherwise on daily rated basis for rendering casual/seasonal services in a department."
"2(j) "Other Workers" mean a/an:-
i. "Daily Rated Worker" engaged through an appointment order or otherwise on daily rated basis post imposition of ban viz. 31.01.1994, for rendering daily wage services in a Department.
ii. "Hospital Development Fund (HDF) & Local Fund Workers" engaged through an appointment order or otherwise on consolidated honorarium and paid from Hospital Development Fund/Local Funds, for rendering services in a Department.
iii. "Left-out Ad hoc/Contractual/Consolidated Worker" engaged through an appointment order or proper Government authorization on ad hoc/contract or consolidated basis for rendering service in a Department who does not fulfil the eligibility criteria prescribed under the Jammu and Kashmir Civil Services (Special Provision) Act, 2010, for regularization.
iv. "NYCs and Land Donors" to be engaged as per procedure laid down under Rule 11 of these rules.
v. "Seasonal Worker" engaged through an appointment order or otherwise engaged on need basis for rendering seasonal services in a Department."
"3. Application of these Rules (1) These rules shall apply to all CSLWs and other workers as defined in clause (c) and (i) of Rule 2 of these rules, who have been:
(a) engaged upto 17.03.2015, i.e., when powers to make such engagements were withdrawn vide Government Order No.43-F of 2015 dated 17.03.2015 read with corrigendum issued vide No.A/Misc/2015/391 dated 20.03.2015
(b) engaged after 17.03.2015 upto coming into force of the rules, in accordance with the procedure laid down vide Circular No.A/Misc/2015/364 dated 17.03.2015 issued by the Finance Department."
"4. Eligibility for Regular Engagement (1) A CSLW shall be eligible for regular enegagement under these rules on fulfillment of the following conditions that:-
(i) he/she is a permanent resident of the State of Jammu & Kashmir as is defined under Section 6 of the Consditution of Jammu & Kashmir.SWP 1222/2005 a/w connected matters Page 32 of 46
(ii) he/she possesses minimum educational qualification of 8th standard or above.
(iii) on the date of his/her initial engagement, his/her age was within the minimum & maximum age limit as prescribed for appointment in Government service.
(iv) he/she must have completed ten years of continuous working:
Provided a seasonal worker must have completed 120 months of working in a department, in aggregate, in consecutive years with at least 6 months, in a year continuously irrespective of the total number of years in which he/she completes 120 months of seasonal service.
(v) his/her work & conduct is satisfactory & no disciplinary proceedings are pending against him/her.
(vi) he/she must be continuing in the department as on date.
(2) The provisions of Article 35-A of the J&K CSRs shall apply to a CSLW in respect of the determination and verification of age.
(3) The concerned Administrative Department shall have the powers to grant relaxation in the age/qualification for regular engagement of a CSLS on case to case basis."
30. Rule 2(c), thus, indubitably enshrines that CSLW does not denote only casual and seasonal workers either engaged through an order of appointment or without such appointment order on daily rated basis for rendering casual/seasonal services in a department, but "other workers" also come and fall within the umbrella and ambit of "CSLW". Who are "other workers", is imperative to be seen elsewhere in the Rules of 2017. It is Sub-Rule (j) of Rule 2 of the Rules of 2017 that signifies, who "other workers" are.
31. Thus, Sub-Rule (j) of Rule 2 of the Rules of 2017, in broader viewpoint, emphasises and accentuates that "other workers" include those persons/workers, who have been either formally or properly engaged, or even those who have not been formally or properly engaged as the daily rated workers, even if they have been working in a department after imposition of ban on such engagement or appointment in terms of SRO 64 of 1994, after 31st January 1994, are entitled to be regularised. Not only the "other workers" comprise of daily rated workers SWP 1222/2005 a/w connected matters Page 33 of 46 engaged/appointed or otherwise, after 31st January 1994, but the Seasonal Workers also, who have rendered the seasonal services in a Department, come and fall under the benefit of the regularisation. Even "Left-out Ad hoc/Contractual/Consolidated Worker" engaged through an appointment or proper Government authorization on ad hoc/contract or consolidated basis for rendering service in a department, who does not fulfil eligibility criteria prescribed under J&K Civil Services (Special Provisions) Act, 2010 for regularisation, will also be considered under the Rules of 2017.
32. Further, it is to be seen here that Jammu & Kashmir Casual and Other Workers - Regular Engagement Rules, 2017 came to be notified in the year 2017 and in terms said rules, all CSLWs engaged upto 17.03.2015 under Clause (a) of Rule 3(i) were to be regularized subject to fulfilling of eligibligy conditions provided in Rule 4 thereof; meaning thereby Order No.384-GAD of 2015 dated 17.03.2015, whereby the engagements/arrangements made by different departments etc. against sanctioned posts were directed to be ceased with immediate effect, were never implemented or given effect to, except the Social Welfare Department, and all such engagements despite passing of said order were allowed to continue till the Rules of 2017 came to be notified, whereby it has been provided to regularize their services subject to fulfilling of eligibility conditions. I am saying so because if the engagements of all such persons had been terminated with immediate effect in terms of Order No.384-GAD of 2015 dated 17.03.2015, then there would have been no fun in notifying Rules of 2017.
33. Whereas, in the present case, it is the specific case of respondents in their objections that the engagements of petitioners herein in the Social Weflare Department came to be terminated with immediate effect in compliance to Govt. Order No.384-GAD of 2015 dated 17.03.2015. Now there is other side of the coin also, i.e., in other departments of the State Government/Public Sector Undertakings/Boards/Autonomous Bodies, the engagements of similarly situated SWP 1222/2005 a/w connected matters Page 34 of 46 persons were never terminated despite issuance of Order No.384-GAD of 2015 dated 17.03.2015, rather in their case the Government has taken a complete U- turn, i.e., it has come up with the Rules of 2017 in order to regularize the services of such persons in terms of the eligibility conditions without notifying these posts in public domain so as to give other eligible candidates also to compete for the same. In their case the Government has also not taken the stand that such persons have also not been appointed in terms of relevant rules and after proper competition among qualified persons, or that they have been appointed by incompetent officers, or merely because such persons have been continuing would not make them entitled to be absorbed in regular service.
34. It is very strange that on the basis of same Government Order No.384-GAD of 2015 dated 17.03.2015 relating to different Departments of the State Government/Public Sector Undertakings/Boards/Autonomous Bodies, on one hand respondents have terminated the engagement of all stop gap/ad hoc Anganwadi Workers working in the Social Welfare Department, whereas, on the order hand, instead of terminating the engagement of all similarly situated persons working in other Government Departments on the basis of said order, the Government has allowed them to continue without any reasoning and then come up with the Rules of 2017 with the sole aim to regularize their services. Further, in the case of petitioners herein, it is not the stand of respondents that they were not qualified/eligible for being engaged against the posts-in-question.
35. Since Jammu & Kashmir Casual and Other Workers - Regular Engagement Rules, 2017 also apply to the petitioners herein and they are also continuously working for the last so many years, though now on the strength of order dated 30.04.2015 passed by this Court, as such they are also required to be meted out with the same treatment as has been given to similarly situated persons working in other departments/Public Sector Undertakings/Boards Autonomous Bodies etc. Denying same treatment to the petitioners is nothing but a clear case SWP 1222/2005 a/w connected matters Page 35 of 46 of gross discrimination. The respondents cannot have two different yardsticks for same set of employees working in different departments. Therefore, the action of respondents is not only illegal and unconstitutional but discriminatory as well. The State Government cannot allow hostile discrimination within a class of persons in one department only and allow different treatment to the persons of same class in other departments.
36. Article 14 of the Constitution runs as follows : "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". This provision corresponds to the equal protection clause of 14th Amendment of the U.S. Constitution which declares: "No State shall deny to any person within its jurisdiction the equal protection of the laws". Where a particular mode is prescribed for doing an act and there is no impediment in adopting such a procedure, the deviation to act in different manner that does not disclose any discernible principle which is reasonable in itself, shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. Same situation is circumnavigating in present case as well because the decision taken by respondent department which has been culminated in impugned order does not furnish any reason, muchless cogent or material one, for issuance thereof. Regard being had in this context to the decisions rendered by the Supreme Court in the cases of Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 1245; Mohd. Shaheb Mahboob v. Dy. Custodian AIR 1961 SC 1657; Bannari Amman Sugars Ltd v. CTO (2005) 1 SCC 625.
37. Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights. These rights supplement each other. Article 16, which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16 (1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a SWP 1222/2005 a/w connected matters Page 36 of 46 nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.
38. The Supreme Court in the State of Gujarat and anr. etc. v. Shri Ambica Mills Ltd. Ahmedabad etc., AIR 1974 SC 1300, has said that the equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And the very idea of classification is that of inequality. In tackling this paradox, the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is what does the phrase 'similarly situated' mean? The answer to the question is that we must look beyond classification to the purpose of law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of law. The purpose of a law may be either elimination of a public mischief or the achievement of some positive public good. Petitioners, in the present case, had been working as Anganwadi Workers/Helpers on ad hoc basis, for more than ten years to fifteen years and as a sequel thereto a right accrued in them to continue in respondent department till their services are regularised.
39. It would also be relevant to reproduce hereunder the relevant portion of judgment rendered by the Apex Court in State of Haryana and Others etc vs Piara Singh and others etc AIR 1992 (SC) 2130. The relevant and apropos portion of the said decision having wide range and impact on the present controversy as well, is advantageous to be reproduced infra:
"Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes SWP 1222/2005 a/w connected matters Page 37 of 46 call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc / temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.SWP 1222/2005 a/w connected matters Page 38 of 46
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work- charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/ temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
40. The Supreme Court in State of Karnataka & ors v. M. L. Kesari & ors, AIR 2010 SC 2587, has observed:
"The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general one-time regularization exercise, to find out whether there are any daily wage casual/ ad hoc employees serving the Zila Panchayat and if so whether such employee (including the respondents) fulfil the requirements mentioned in para 53 (Para 44 of AIR of Umadevi. If they fulfil them their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 SWP 1222/2005 a/w connected matters Page 39 of 46 because of the pendency of these cases, then their cases shall have to considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of Para 53 (Para 44 of AIR) of Umadevi, their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts. This appeal is disposed of accordingly."
41. Having considered rival contentions advanced by learned counsel for parties and after perusing the record on the file, it is an admitted position that petitioners were working as Anganwadi Workers/Helpers, though on stop gap/ad hoc basis, but for more than ten years in respondent department. In this context the Supreme Court in the case of Uma Devi (supra) has made an exception, which also squarely applies to the present case, that those who continued to work for ten years or more, their regularization should be considered as a one time measure, in the following lines:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this SWP 1222/2005 a/w connected matters Page 40 of 46 judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
42. The question of regularisation in any service including government service may arise in two contingencies. Firstly, if on any available clear vacancies, which are of a long duration, appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that incumbents concerned have continued to be employed for a long period of time with or without any artificial break, and their services are otherwise required by the institution which employs them. A time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation, in which the question of regularisation may arise would be when initial entry of employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of exigency of administrative requirement for waiving such irregularity in the initial appointment and the irregular appointment may be regularised and security of tenure may be made available to incumbent concerned. Way back in the year 1979, a three Judge Bench of the Supreme Court in B.N. Nagarajan v. State of Karnataka, 1979 SC 1976, has held that regularisation does not necessarily connote permanence and that these terms are calculated to condone any procedural irregularities and are meant to cure only such defects as are contributable to the methodology followed in making the appointment and that they should no be construed as to convey an idea of the nature of tenure of appointments, must be read with context of the effect of orders of regularisation SWP 1222/2005 a/w connected matters Page 41 of 46 vis-à-vis the statutory rules relating to probation, seniority, and recruitment. Regularisation of casual labour is a Constitutional goal and question of regularisation in service must be examined keeping in mind historical as well as Constitutional perspective. The principle of similarity in status and right of casual labour/worker engaged on daily wage basis with persons employed ad hoc basis from State of Haryana v. Piara Singh (supra), where the Supreme Court has observed that such persons continuing over a number of years have a right to their cases for regularisation and authorities are under an obligation to consider their cases for regularisation in a fair manner, keeping in view the principles enunciated by the Supreme Court.
43. A Division Bench of this Court in LPA No.224/2012, decided on 13.08.2013, in similar set of circumstances while dismissing the appeal filed by the State, has held:
"16. It is not the case of the State that the benefit of Government Order No.94-PDD of 2006 was a result of any mistake, resulting into accidental discrimination arising from oversight, which the State was ready to rectify when the aforementioned set of beneficiaries under the Government Order (supra) were brought in place after the SRO 149 of 1973 had ceased to exist.
17. We are of the opinion that the action of the official respondents was clearly discriminatory when the benefit of SRO 149 of 1973 was refused in the case of the petitioners while the said benefit was made available to similarly circumstanced employees of the Power Development Department and Public Works Department of the State by virtue of Government Order No.94-PDD of 2006."
44. Another important facet of the matter that needs discourse here, is Jammu and Kashmir Social Welfare (Subordinate) Service Recruitment Rules, 2009, notified vide SRO 335 dated 22nd October 2009. Section-C to Schedule-II of the Rules of 2009, deals with constitution of J&K Social Welfare Non-Gazetted Service recruitment to the services, maintenance of seniority and allied matters. The post of Supervisor is borne on the service. The Rules of 2009 prescribe mode SWP 1222/2005 a/w connected matters Page 42 of 46 and method of recruitment for filling up the post of Supervisor in Social Welfare Department of J&K. 50% posts of Supervisors are to be filled up by direct recruitment. 25% posts of Supervisors are to be filled up by selection from amongst Graduate Anganwadi Workers who have rendered 05 years' service; and 25% posts of Supervisors are to be filled up for selection from amongst Matriculate Anganwadi Workers who have rendered not less than 10 years' service as such. Petitioners here in this case have been working in respondent department prior to coming into being of SRO 335 (Rules of 2009). At the relevant point of time when petitioners had been engaged in respondent department as Anganwadi Workers/Helpers, J&K Social Welfare (Non-Gazetted) Service Recruitment Rules, 1991, were in vogue. In such circumstances, Rules of 1991 had role to play vis-à-vis engagement, seniority, promotion or otherwise of petitioners as Anganwadi Workers / Helpers. Schedule VI to the Rules of 1991 deals with posts of CDS wing and lays down minimum qualification for direct recruitment and method of recruitment for the post of Supervisor and other Posts (Anganwadi worker in the Wing). The Rules of 1991 have been substituted by Jammu and Kashmir Social Welfare (Subordinate) Service Recruitment Rules, 2009, notified vide SRO 335 dated 22nd of 2009. However, the Rules of 1991 are also relevant to the present controversy. The Rules of 1991 provide that 50% of posts of Supervisors were to filled up by direct recruitment. 25% posts of Supervisor had to be reserved for selection from amongst Anganwadi workers who rendered five years' service as such and were Graduates. 25% of posts of Supervisors had to be reserved for selection from amongst Matriculate Anganwadi Workers, who had rendered not less than ten years' service as such. Insofar as Anganwadi Workers are concerned, those were to be filled up 100% by direct recruitment and the candidate (woman) applying therefor should have at least the qualification of Middle Pass and above in the age group of 21-45 and was to be selected within the village/ local community and the appointment was to be made strictly in accordance with the procedure laid down in ICDS Manual.
SWP 1222/2005 a/w connected matters Page 43 of 46Seniority of the service, as per Rule 9 of the Rules of 1991, titled "Maintenance of Seniority", was to be maintained in terms of J&K Civil Service (Classification, Control and Appeal) Rules, 1956. The Rules of 1991 also come to rescue of present petitioners.
45. In the background of the Rules of 2017 as also Rules of 1991, petitioners, in present case, have been engaged on ad hoc / stop gap basis. Respondents' stand is that petitioners have not been engaged or appointed in accordance with rules governing the field of engagement of Anganwadi Workers/Helpers. This saying of respondents, pales into insignificance owing to benefits percolating from the Rules of 2017, or for that matter any other welfare Rule or Scheme, invented and devised by the J&K State Government for safety and betterment of such or like workers. The Rules of 2017 are, on the face thereof, meant for inclusion of all those workers, who have been left out or who could not make mark for their inclusion to be absolved / regularised under and in terms of earlier beneficial Rules, Schemes and Legislations. In such circumstances, it would be apposite for respondent State to include present petitioners in consideration zone either under the Rules of 2017 or under any other Rules, Schemes or Legislations that take care of such workers, who could not be earlier considered for regularisation.
46. There is another aspect of the matter also, which cannot lose sight of. A perusal of order impugned itself reveals that the same has been passed without assigning any reason or affording any opportunity of hearing to the petitioners. Thus, the respondents have failed to even comply with the basic principle of natural justice before terminating their engagement orders with single stroke of pen. The Apex Court in Shridhar Son of Ram Dular vs Nagar Palika, Jaunpur, AIR 1990 SC 307, has held that it is an elementary principle of natural justice that no person should be condemned without hearing. It has been further held that the order of appointment conferred a vested right in the person to hold the post and that right could not be taken SWP 1222/2005 a/w connected matters Page 44 of 46 away without affording an opportunity of hearing to him. Any order passed in violation of principles of natural justice is void. In the instant case too, the order impugned has been passed without affording any opportunity of hearing to the petitioners herein.
47. Further, a Constitution Bench of the Apex Court in S.N. Mukherjee vs Union of India, AIR 1990 SC 1984, has held that the administrative authority while passing the order is bound to record the reasons. If no reasons have been recorded, there will be a clear presumption in law that it is an order of non-application of mind without assigning any reason. Therefore, on this score too, the order impugned deserves to be quashed.
48. Therefore, based on foregoing discourse and reasons, I deem it proper to allow all the writ petitions on hand. Accordingly, the same are allowed and Order No.13-SMD of 2015 dated 22.04.2015 issued by Mission Director, ICDS, J&K, qua the petitioners, is quashed. Respondents are directed to extend the benefit of SRO 520 of 2017 dated 21.12.2017 notifying the Jammu & Kashmir Casual and Other Workers - Regular Engagement Rules, 2017, or for that matter any other Scheme, in favour of petitioners and consider them for regularization of their services against the positions of Anganwadi Workers/Helpers in terms of the eligibility conditions as contained in Rule 4 of Rules of 2017, thereby giving them the effect of regularization from the date each one of them has completed ten years of service as Anganwadi Worker/Helper. While considering the case of petitioners herein for regularization of their services, the respondents would also take into consideration the policy decision taken by them in the minutes of the meeting held on 27.08.2010 under the chairpersonship of the then Minister for Social Welfare Department, for regularizing the services of those Anganwadi Workers who have attained minimum period of three SWP 1222/2005 a/w connected matters Page 45 of 46 years. In the event, if it is found that some of the petitioners do not fulfill the required norms for regularization as on 17.03.2015 in terms of the eligibility conditions of Rules of 2017, in such event they shall be permitted to work as Anganwadi Workers/Helpers till regular selection is made. Respondents are further directed to forthwith release the unpaid wages in favour of petitioners, if not already released. Let the directions be complied with, within a period of eight weeks from today and a compliance report to this effect be filed before the Registry of this Court. Connected miscellaneous petitions, accordingly, stand disposed of.
Jammu (Tashi Rabstan)
23.05.2018 Judge
(Anil Sanhotra)
SWP 1222/2005 a/w connected matters Page 46 of 46