The Secretary, Human Resources Development Department, Govt. of v. Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.44 of 2013 ====================================================== Chandra Kanti Devi, wife of Swaminath Prasad, resident of village Bishunpur Mahuari, P.S. Maharajganj, District Siwan .... .... Petitioner 1. The State Of Bihar 2. The Secretary, Human Resources Development Department, Govt. of Versus Bihar, Patna 3. The Director, I.C.D.S., Govt. of Bihar, Patna 4. The District Magistrate, Siwan, District Siwan 5. The District Programme Officer, Siwan 6. The Child Development Programme Officer, Maharajganj Block, District Siwan .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sanjay Kumar Singh, Adv. For the Respondent/s : Mr. Gautam Bose, AAG8 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 04-01-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “That this writ is being filed for issuance of an appropriate writ/writs, order/orders for quashing the order dated 13.8.2012 passed in Misc. Appeal Case No. 14/12-13 and order bearing memo no. 351 dated 29.2.2012 issued under the signature of respondent no.5 by which cancelled the selection of the petitioner as Anganbari Sahaika without enquire the matter and further for any other relief/reliefs for which the petitioner is entitled to the facts and circumstances of this case.”
Legal Reasoning
All these aspects have been gone into by this Court in a recent well considered judgment in the case of Manjula Kumari vs. the State of Bihar & ors., C.W.J.C.No. 2905 of 2012, and analogous cases wherein apart from the other thing it was held as follows: “A proceeding initiated by the District Programme Officer on a complaint made and pursuant to a report of the State Level Inspection Team cannot be put at par. The latter may carry a greater presumption of its correctness but it shall not be absolute. If power is vested on presumptions, the procedure must arouse greater confidence and the need shall be for more checks and balances. The presumption that power vested in high officials shall be exercised properly is not absolute.” That being so, when this Court is satisfied that the District Programme Officer, Siwan has virtually acted under the dictation of the Director, I.C.D.S. while passing the impugned order as contained in his order dated 1.2.2012 (Annexure 2) there would be no difficulty in holding that the impugned order is clearly vulnerable both on fact and in law and cannot be sustained. Thus for the reasons indicated above the impugned order, as contained in Annexure 5, is hereby quashed. Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 6 As a matter of fact even the appellate authority the Collector of the District, has also not at all considered these aspects and his only observation made while disposing of the appeal would itself indicate his mechanical application of mind wherein all that he had held reads as follows: ^^vfHkys[k esa miyC/k dkxtkrh rFkk mHk; i{k ds foK vf/koDrkvksa }kjk nh xbZ nyhyksa ls Li"V gS fd ftyk izksxzke inkf/kdkjh ds mDr ikfjr vkns’k esa fdlh izdkj ds gLr{ksi dh vko’;drk ugha gS vihy vkosnu [kkfjt fd;k tkrk gSA ys[kkfir ,oa la’kksf/kr g0@& vLi"V g0@& vLi"V 13@08@12 13@08@12 ftyk inkf/kdkjh ftyk inkf/kdkjh** Such an order in absence of any specific reason much less without considering the facts pressed by the petitioner in support of her appeal would also not fulfil the test of a valid appellate order. The appellate order, howsoever brief has to at least indicate the application of mind. Thus the impugned appellate order is equally bad and fit to be set aside.
Arguments
Learned counsel for the petitioner has submitted that the Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 2 impugned order terminating the service of the petitioner from the post of Anganwari Sahaika is bad both on fact and in law and in this regard he has drawn attention to the show cause notice, as contained in Annexure 3, which discloses that the petitioner was asked to submit her explanations within 24 hours as to why her appointment should not be cancelled in view of the observations made in the enquiry report of the State Level Inspecting Team. He has in this regard emphasized on the aspect that from Annexure 3 itself it would be clear that the copy of such enquiry report was not enclosed alongwith the show cause notice and the petitioner was therefore literally coerced to file her show cause reply within 24 hours without her giving an effective opportunity. He has also submitted that if there was already an order passed by the Director, I.C.D.S. asking the District Programme Officer, Siwan to terminate the service of the petitioner, the rest of the action taken by the District Programme Officer including issuance of the aforesaid show cause notice was a mere gimmick or formality. Learned counsel for the State is not in a position to dispute the aforesaid factual aspects as is also fully borne out from Annexures 2 and 3 to the writ application itself. In the considered opinion of this Court while there can be no two views that Anganwari Sevikas/ Sahaikas have to Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 3 discharge their duty and fulfil the assigned task but then their removal cannot be made on mere ipsi dixit. On 6th January if it was a cold wave prevailing in the locality the children could not have turned up and the explanation of the petitioner that though the children had been sent back to their home on account while she had remained at the centre when the inspecting team had visited and was required infact capable of being verified by the inspecting team as also the District Programme Officer but nothing of this sort was done. Moreover, the main allegation that THR was being supplied in lesser quantity was itself a vague allegation and in absence of specification the petitioner could not have furnished any effective reply to this part of charge in the show cause notice. As a matter of fact when the enquiry report itself was also not enclosed with the show cause notice served on the petitioner she was really handicapped in giving her show cause reply, which in any event could have been no avail inasmuch as the District Programme Officer in the impugned order has virtually surrendered his power and jurisdiction as an appointing authority while terminating the services of the petitioner on the dictation of Director I.C.D.S. while passing a cryptic order which reads as follows:- ^^lekgj.kky; floku …ftyk izksxzke ’kk[kk‰ &%%vkns’k%%& Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 4 funs’kd] vkbZ0lh0Mh0,l0] fcgkj iVuk ds i=kad 384 fnukad 01-2-12 ls izkIr jkT;Lrjh; Vhe ds fujh{k.k izfrosnu ds vuqlkj lgkf;dk Jherh pUnzdkUrh nsoh vkaxuokM+h dsUnz la[;k 95 dsUnz lapkyu esa vfu;ferrk cjrh gSA mlds ckn ml dsUnz dh vkaxuokM+h lgkf;dk Jherh pUnzdkUrh nsoh ls Li"Vhdj.k ekax dh x;hA lE;d fopkjksijkUr budk Li"Vhdj.k Lohdk;Z ugha ik;k x;kA vr% Jherh pUnzdkUrh nso lgkf;dk vkaxuokM+h dsUnz la[;k 95 ifj;kstuk egjktxat dks vfHkys[k la[;k ------@11&12 eas v/kksgLrk{kjh }kjk ikfjr vkns’k ds vkyksd esa rRdky izHkko ls p;ueqDr fd;k tkrk gSA g0@& vLi"V ftyk izksxzke inkf/kdkjh flokuA Kkikad 351 @ izks0 fnukad 29-2-12 izfrfyfi& cky fodkl ifj;kstuk inkf/kdkjh egjktxat dks lwpukFkZ ,oa vuqikyukFkZ izsf"krA izfrfyfi & lacaf/kr lsfodk dks lwpukFkZ iz g0@& vLi"V ftyk izksxzke inkf/kdkjh flokuA Kkikad 351 @izks0 fnukad 29-2-12 izfrfyfi& funs’kd ICDS fcgkj iVuk dks mids lafpdk la0 ICDS/35020/11-2012/380 fn0 1-2-12 ds vkyksd esa lknj lwpukFkZA g0@& vLi"V ftyk izks0 ink0 floku** sf"krA This Court infact having underlined the printed format order in which the impugned order has been passed will have no difficulty in holding that not only the District Programme Officer Siwan had passed the order on the dictation of the Director of I.C.D.S. but had also gone to acknowledge the same in the memo portion of the order. The manner in which the cyclostyled/printed format has been prepared and is being used for terminating the services of Anganbari Sevika/Sahayika in the district of Siwan would leave nothing for speculation that it is the Directorate of Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 5 I.C.D.S. which is calling the shots in the veil of District Programme Officer.
Decision
In the result, both the impugned orders, as contained in Annexures 5 and 6, are hereby quashed and the matter is remitted back now to the Director, I.C.D.S. who himself will now issue a show cause notice to the petitioner giving the full details as also a copy of the enquiry report. The petitioner will thereafter file her show cause reply and the Director, I.C.D.S. will pass the necessary order keeping in view the aforesaid observations and directions Patna High Court CWJC No.44 of 2013 (2) dt.04-01-2013 7 given by this Court read with those in the case of Manjula Kumari (supra). This exercise must be completed within a period of six months from the date of receipt/ production of a copy of this order. It is, however, made clear that till the Director, I.C.D.S. would pass his final order the petitioner will not be entitled for being reinstated in service but in the event it is found that her earlier removal was bad, she will not only be allowed to rejoin her post but also paid her salary/ remuneration which she stood deprived on account of the impugned order passed in this case. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J) surendra/-