IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 783 of 2003 Shahzada Parveen & anr. petitioner State of J&K and ors. respondent !Mr. N. A. Tabasum, Advocate ^ Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 04/02/2009 :J U D G M E N T:
1. Irresponsible approach of then Programme Officer ICDS, Pulwama has
entangled the petitioners into prolonged litigation; they have suffered for no
fault.
2. The admitted position of the case is that ICDS projects which include
ICDS, Pulwama were sanctioned vide Government Order No. 129-SW of 1996
dated 14.12.1996. Seventy-nine honorary posts of Anganwadi Workers
(AWW) were created for ICDS, Project Pulwama. Committee had been
constituted for selection of the posts. The honorary posts of AWW were put to
advertisement; finally selection list was prepared wherein petitioners
respectively figured at Serial No. 14 and 2 as is clear from the copy of the
select list. The said list was approved. The Programme Officer, ICDS,
Pulwama was directed by the Chairman, Selection Committee that the
necessary orders shall be issued in favour of the candidates to be engaged on
the monthly honorarium of Rs. 800/- in case of matriculates and above and Rs.
700/- in case of non-matriculates, as is clear from the Communication no.
ICDS/Bud/PO/97/1745-46 dated 24.10.1997 consequent thereof orders in
favour of the petitioners bearing Nos. POP/ICDS/Estt-97/1059-61 and
POP/ICDS/Estt-97/1019-22 dated 01.11.1997 were issued. Later on, what
transpired is that there was discrepancy in the parentage of Petitioner No.1 and
in the name of Petitioner No. 2, Programme Officer concerned seem to have
taken up the matter, as a result thereof Director, Social Welfare has vide
communication no. DSW/ICDS-11601/98 dated 07.08.1998 asked the
Programme Officer that the petitioners were allowed to work for more than six
months but were not paid honourarium due to the error in the parentage and
name of the petitioners regarding which corrigendum reportedly had been
issued.
3. In the process what has happened is that the Programme Officer dehors
all the rules and regulations has ventured to engage respondents no. 4 and 5 as
Anganwadi Workers when they were neither in the selection list nor were
shown to have participated in the selection process. Petitioners feeling
helplessness filed the writ petition bearing SWP No. 715/1998 pursuant to
order dated 02.05.1998 passed therein petitioners were allowed to continue as
Anganwadi Workers but the honourarium was not released in their favour.
They filed contempt petition No.419/1999 consequent thereof Programme
Officer, ICDS, Pulwama responding to the letter of Director, Social Welfare
bearing No. DSW/16748-49/02 dated 05.09.2002 issued the order bearing No.
POP/ICDS/60 of 2002 dated 15.11.2002 wherein entire position of the
selection and also the engagement of private respondents have been noticed.
Their engagements have been discontinued and CDPO has been asked to allow
the petitioners to perform their duties in their respective Centers.
4. The private respondents immediately filed a separate petition bearing
SWP No.1532/2002 and pursuant to interim order dated 12.12.2002 passed by
this court, they were allowed to continue.
5. The petitioner filed the instant petition, praying therein that the
respondents may be commanded to release the honourarium in their favour
with effect from 10.11.1997 and also allot them Anganwadi Centres and to fix
their seniority with effect from 10.11.1997 alongwith their batch mates.
Further to consider them for further promotions.
6. Both the two writ petitions came for consideration together on
07.12.2005. Learned Dy. Advocate General had stated that the department is
prepared to offer the employment to both the petitioners of the two petitions
prospectively provided petitioners withdraw their respective petitions.
7. The respondents no. 4 and 5 (the petitioners of SWP bearing
No.1532/2002) accepted the offer so their petition was disposed of in terms of
communication as was produced in support of the submission by the Dy. AG
bearing No. POP/ICDS/2005/2279-80 dated 30.11.2005 addressed by
Programme Officer, ICDS Pulwama.
8. The petitioners herein refused to accept as they claim their position of
having been selected and appointed in the year 1997. The petitioners have been
made to suffer for no fault but for the fault attributable to the respondents,
more particularly by the then Programme Officer, Pulwama who without any
justification had engaged respondents 3 & 4 as Anganwadi Workers when they
never figured in the selection list. The typographical error in the parentage of
the Petitioner no.1 and in the name of the Petitioner no. 2 was committed by
official respondents regarding which corrigendum has been issued but for the
reasons best known to the Programme Office, private respondents 3 & 4 were
engaged without any basis.
9. The position of the private respondents, petitioners in SWP No.
1532/2002 is no more required to be looked into as their position and then
acceptance of offer of employment has become effective from the date of the
order i.e. 07.12.2005 whereunder their writ petition has been disposed of in
terms of the communication above referred.
10. Now moot question for consideration is as to what is the position of the
petitioners, admittedly they figured in the selection list, they claim to have
joined on 10.11.1997 which fact is also supported by the communication
bearing No. DSW/ICDS-11601/98 dated 07.08.1998, addressed by Director,
Social Welfare to Programme Officer, ICDS Project, Pulwama. It is also
admitted that after joining they have not worked in any Anganwadi Centre. It is
also admitted that petitioners after their selection were deputed for 15 days
Orientation Training Course of Anganwadi Workers from 17.11.1997 to
02.12.1997 at ICDS Project, Pulwama and were also awarded certificate like
other selected candidates as is specifically reflected in the order No.
POP/ICDS/60 dated 15.11.2002.
11. The petitioners after due selection and appointment have been deprived
of working as Anganwadi Worker by the then Programme Officer who had
engaged the private respondents 3 & 4 as Anganwadi Workers in their place.
12. In the given circumstances, no fault is attributable to the petitioners,
the
petitioners are entitled to be placed in the seniority with effect from
10.11.1997
and their seniority shall stand according to the selection list and rules
applicable with effect from the year 1997 alongwith their other selected batch
mates.
13. Since they have not worked effectively, therefore, honourarium shall not
be paid to them by the respondents as that shall be unwarranted burden on the
State Exchequer but they are required to be compensated. They can not be
made to suffer for unwarranted act of the then Programme Officer who without
any justification had engaged respondents 3 & 4 as Anganwadi Workers as
against their position.
14. The respondents shall suitably adjust the petitioners against the
available
Anganwadi Centres which they have otherwise volunteered pursuant to
Communication No. POP/ICDS-2005/2279-80 dated 30.11.2005 as was
produced by the Dy. AG before the court on 07.12.2005 as also reflected in the
order dated 07.12.2005. They shall also be entitled to be considered for
promotion, if due, at par with their selected batch mates, as figured in the
selection list.
15. The petitioners shall be paid the honourarium as against the vacancies
from the year 2005. The petitioners have lost the amount of honourarium for
the period 10.11.1997 to 2005 and have further more been dragged into the
litigation by the illegal action of the then Programme Officer, therefore,
compensatory cost to the tune of Rs. 40,000/- each shall be paid to them by the
then Programme Officer, ICDS, Pulwama who had engaged respondents 3 & 4
at the cost of the petitioners.
16. Director Social Welfare, Srinagar shall locate the then Programme
Officer, ICDS, Pulwama and recover the amount of cost awarded from his/her
salary. In case retired then be recovered from his/her property and be paid to
the petitioners. Compliance within four weeks.
17. Writ petition accordingly disposed of alongwith connected CMPs.
( Mohammad Yaqoob Mir ) Srinagar Judge, 04.02.2009 (Amjad)