Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10580 of 2012 ====================================================== Rinku Kumari Wife of Santosh Kumar Resident of Village Murgia - Chak, Post Manjholi P.S. Fatehpur District Gaya Versus .... .... Petitioner 1. The State Of Bihar 2. The State Of Bihar, Through Chief Secretary, Govt. Of Bihar, Patna 3. The Director I.C.D.S. Welfare Department Govt, Of Bihar, Patna , Indra Bhawan, 2nd Floor 4. The District Magistrate, Gaya 5. The District Programme Officer, District Gaya 6. The District Welfare Officer, District Gaya 7. C.D.P.O Fatehpur, District Gaya 8. Mukhiya Gram Panchayat Raj Bhore Block Fatehpur District Gaya 9. The Panchayat Secretary, Bhore Gram Panchayat, Fatehpur, District Gaya 10. Divisional Commissioner, Gaya 11. Savitri Kumari W/o Manoj Kumar Resident Of Village Murgiachak Post Manjhali P.S. Fatehpur, District Gaya .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Praveen Kumar, Mr. Uday Pratap Singh, Advocates For the State : Mrs.Shashi Priya Pathak, A.C. to A.A.G.7 For the respondent no.11 : Mr. Durgesh Nandan, Advocate ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 4 16-07-2013 I have heard learned counsel for the petitioner, State and respondent no.11 and have perused the records of the case. Through this writ application, the petitioner seeks quashing of the order dated 24.3.12 (Annexure 1) passed by the Divisional Commissioner, Gaya in Anganwari Appeal No.20/2011
Facts
affirming the order dated 12.09.08 (Annexure 7) passed by the District Magistrate-cum-Collector, Gaya. 2 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 2 / 7 It has been submitted that the petitioner was selected as Anganwari Sevika for Anganwari Centre No.124 Baktaunpur, Panchayat Bhare under Fatehpur Block District Gaya and vide order dated 25.4.07 (Annexure 2) she was directed to appear for training for the purpose of her appointment on the post. From the impugned order it appears that the petitioner was selected on the post on 18.04.2007. However, subsequently, it appears that, on a complaint made by respondent no.11, selection of the petitioner was cancelled by the District Magistrate vide impugned order dated 12.09.08 (Annexure 7) on the ground that the selection has been in violation of the guidelines issued by the concerned department of the State Government contained in clause 3 (Anga) of the memo no.2783 dated 3.10.06. It has been stated in the impugned order that the guidelines clearly indicate that the wife of the Government servant would not be selected for the post of Anganwari Sevika or Sahiyaka. The petitioner, thereafter, approached this Court by filing C.W.J.C. No.16437 of 2008 which was disposed of vide order dated 04.02.2011 along with other analogous writ petitions granting liberty to the petitioners to avail their remedy of appeal/revision before the Commissioner. Thereafter, it appears that the petitioner preferred Anganwari Appeal No.20/2011 which was dismissed vide order 3 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 3 / 7 dated 24.3.12 by the Commissioner, Magadh Division, Gaya upholding the order passed by the District Magistrate. Learned counsel appearing for the petitioner has submitted that the petitioner was admittedly selected on 18.04.2007 and from Annexure 3, which is the appointment letter dated 18.05.07 issued by the Western Railway, it appears that at the time of her selection, her husband was not in service. Learned counsel further submits that the identical issue has been
Legal Reasoning
considered by a Single Bench of this Court in C.W.J.C. No.12911 of 2007. While allowing the writ petition on 06.05.2010, the learned Single Judge struck down sub clause ‘Anga’ of clause 3 of the concerned guidelines framed by the State Government in relation to functioning and appointment under the Anganbari scheme which imposes a blanket bar for appointment of relatives of the Government servant , however, a liberty was granted to the Secretary, Welfare Department, to impose a ban or a qualification which would be reasonable. No counter affidavit has been filed either on behalf of the State or the respondent no.11, though the respondent no.11 has already entered appearance by filing vaklatnama on 24.09.2012. At the time of hearing it has been submitted on 4 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 4 / 7 behalf of the respondent no.11 that paragraph 21 of the aforesaid order of this Court passed in C.W.J.C. No.12911 of 2007 clearly indicates that the order would be prospective in nature and no party in concluded transaction of appointment to said posts can take the benefit of the order. It is, thus, contended that the petitioner cannot be extended benefit of that order. That apart, learned counsel has drawn attention of this Court towards Annexure 3 which has been considered by the District Magistrate as well as the appellate authority, while passing the impugned orders, to demonstrate that the selection of the petitioner by the Railway Recruitment Cell was already made on 23.03.2007 and, thereafter, the appointment letters were issued on 16.05.2007. In above view of the matter, it is contended that the petitioner’s husband having already been selected for the post of Gangman/Trackman, her appointment would be barred by the guidelines which has been mentioned above. Learned counsel appearing for the State has submitted that the impugned orders having been passed in view of the existing guidelines cannot be faulted with. However, upon consideration of rival contention this Court finds force in the submission made on behalf of the petitioner. It is well settled that the preparation of selection list by 5 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 5 / 7 recommendatory authority for appointment on certain posts is not a guarantee of appointment. Unless the appointing authority issues appointment letters after acceptance of the recommendation, appointment cannot be deemed to have been made. Admittedly that has been done on 16.05.2007 vide Annexure 3 which date of issue of appointment letter. In above view of the matter, in my opinion, both the District Magistrate, Gaya as well as Commissioner, Magadh Division have committed error in holding that the petitioner’s husband was appointed on 23.03.2007 itself as the appointment letter was actually issued on 16.05.2007. That apart, admittedly the petitioner was selected on 18.04.2007 and her selection was cancelled vide order dated 12.09.08 (Annexure 7) at the time when aforesaid writ petition bearing C.W.J.C. No.12911 of 2007 was already under consideration of this Court. The petitioner, thereafter, moved before this Court by filing C.W.J.C. No.16437 of 2008 that had remained pending till its disposal vide Annexure 8 dated 04.02.2011 granting liberty to approach the Commissioner by filing appeal/revision. Thereafter, the petitioner approached the Commissioner and the impugned order dated 24.3.12 as contained in Annexure 1 was passed. However, during the pendency of earlier writ petition itself the order dated 06.05.2010 was passed 6 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 6 / 7 by another learned Single Judge of this Court in C.W.J.C. No.12911 of 2007 striking down the relevant part of sub clause ‘Anga’ of clause 3 of the guidelines framed by the Government. In above view of the matter, since at the relevant point of time this matter was pending before this Court, it cannot be held that the petitioner’s case would not be covered by such decision as it cannot be considered to be a concluded transaction. Therefore, this Court, being in full agreement with the decision dated 06.05.2010 passed in C.W.J.C. No.12911 of 2007, holds that in view of the aforesaid decision the concerned sub clause 3 would not have been applied in the case of the petitioner by the Divisional Commissioner while passing the impugned order as contained in Annexure 1 after having been struck down specially when amendment brought in 2012 in the concerned guidelines clearly indicates in clause 4.9 that wife, daughter-in-law and any relative of such persons only who have been posted in any Government or semi-Government organization in the concerned District would not be qualified for selection on the post of Anganwari Sewika. That apart, I have already held that petitioner’s appointment cannot be treated to have happened on a date after the date of appointment of her husband. Accordingly, in view of the aforementioned facts and 7 Patna High Court CWJC No.10580 of 2012 (4) dt.16-07-2013 7 / 7 circumstances of the case it is held that the petitioner’s case is not covered under the bar imposed in view of the facts and circumstances of the case as mentioned above and also in view of the law laid down by a Single Bench of this court vide order dated 06.05.2010 passed in C.W.J.C. No.12911 of 2007. As a result, this writ application succeeds. The impugned orders as contained in Annexure 1 and Annexure 7 are set aside. As a consequence the petitioner would be fit to be appointed upon her selection as Anganwari Sevika. Sanjay-II/- (Dr. Ravi Ranjan, J)