Srinagar: The High Court of J&K and Ladakh has ruled that appointment of a candidate to an office, post or position would be a nullity in the eye of law if the person appointed or engaged against such post lacks the basic eligibility qualification prescribed for the post.
The ruling was recorded in an appeal by one Fehmida against the Social Welfare Department for rejecting her application for the post of Anaganwari helper despite possessing the requisite qualifications.
The department had on the recommendations of the Sarpanch of the village, Kondabal, Ganderbal, appointed a widow, Mehmooda, also a below poverty line candidate despite not possessing the requisite qualification of 8th pass.
The appointment order had been agitated by Fehmida, the “qualified” lady from the village. But the concerned deputy commissioner and later on a single judge bench of the High Court had upheld the appointment of the widowed Mehmooda.
A division bench of the High Court comprising Justices Sanjeev Kumar and Puneet Gupta after hearing the appeal recorded that the issue of preference (for widow, etc), can only be applied once the candidates belonging to the preferred category hold the basic eligibility.
“This aspect of the matter has not been considered by the Writ Court. We are at a loss to find any material on record, on the basis whereof, the Writ Court could have come to the conclusion that even the appellant was not eligible,” said the bench.
It added the appellant, as it appears, has been held ineligible by the Deputy Commissioner and by the Writ Court on the ground that she does not belong to the BPL category.
It ruled “appointment of a candidate to an office, post or position would be a nullity in the eye of law, if the person appointed/engaged against such post lacks the basic eligibility qualification prescribed for the post”.
The bench further added “an appointment, which is a nullity in the eye of law, cannot be validated only on the ground that the person so appointed has continued on the post/position for a pretty long time, more particularly when the continuation of such candidate in service is in pursuance of the interim orders passed by the Court/Tribunal or some other competent authority”.
It said the appellant Fehmida, who had been fighting her battle in the courts of law for the last more than 15 years, who was entitled to be engaged as Anganwari helper, was denied the engagement, so as to confer wrongful benefit upon the Respondent No.6, Mehmooda.
It is a different matter that a litigation launched by the appellant lady to enforce her right took almost 15 years to attain finality before this court.
The court further observed that it would be totally unfair and highly inequitable to tell the appellant herein that, though, she has succeeded in the litigation and is found entitled to engagement, yet she will not be given such engagement, for the reason that under the court orders, the Respondent No.6 has continued for 15 years.
It remarked “equities are not only meant for one party. The court needs to balance the equities and to ensure that justice is meted out to both the parties”.
Consequently, the engagement of the Respondent No.6, Mehmooda as Anganwari helper was quashed.
The bench directed the respondent authorities to proceed to select and engage the next meritorious and eligible candidate in the panel within two months.
The bench, however, left it to the government to adjust the Respondent No 6, Mehmooda, against an available post of Anganwari helper in some centre, provided there is no candidate with 8th Pass qualification available in the concerned hamlet.
