Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2639 of 2012 ====================================================== Smt. Pratima Devi W/o Anil Kumar Singh R/O Village- Ghatoo, P.O.- Fakrabad, P.S.- Kudra, District-Kaimur (Bhabhua) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Commissioner, Patna Division, Patna 2. The Collector, Kaimur (Bhabhua) 3. The District Welfare Officer, Kaimur (Bhabhua) 4. The Block Development Officer, Kudra Block, Kaimur (Bhabhua) 5. The C.D.P.O., Kudra Block, Kaimur (Bhabhua) 6. The Mukhia, Ghatao, Gram Panchayt Raj, Kudra Block, Kaimur (Bhabhua) 7. Smt. Asha Kumari W/O Sri Radhe Shyam Ram R/O Village- Ghatao, P.O.- Fakrabad, P.S.- Kudra, District- Kaimur (Bhabhua) .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Arvind Kumar Sinha For the Respondent/s : Mr. Sanjay Kr No.2 Ga5 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 20-03-2013 Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "For quashing the order dated 28.09.2007 and 27.09.2011 passed in case no. 41/2007 and 27/2008 passed by learned Divisional Commissioner, Patna and the District Magistrate Kaimur(Bhabhua) as contained in Annexure-7 and 9 to this writ the petition whereby and whereunder petitioner has been terminated to the post of Anganwari Sevika and appeal preferred by her was dismissed. Further the respondents may be directed to appoint to the petitioner to the post Sevika fro village Panchayat Ghatoa within the District of Kaimur." 2 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 2 / 11 3. Learned counsel for the petitioner in support of the aforementioned prayer has basically concentrated on the aspect that the complainant respondent no. 7 being herself not eligible for appointment on the post of Anganbadi Sevika on account of her husband being a Government servant could not have questioned the selection and appointment of the petitioner on the post of Anganbadi Sevika. He has further assailed the findings recorded by the Collector of the district as with regard to the entire proceeding of selection of the petitioner on the post of Anganbadi Sevika to be vitiated on account of non-participation of the Mukhiya and the Panchayat Sachiv. According to him since the Mukhiya was not present and the Up-mukhiya had all the authority to preside over the meeting of selection committee and for this purpose he has relied on the provisions of Bihar Panchayati Raj Act-2006. 4. Learned counsel for the State on the other hand has supported the findings recorded by the Collector of the district and the Commissioner of the Division in their respective orders. In this regard he has also referred to a detailed joint inquiry report of the Sub-divisional Officer, Mohania, Block Development Officer, Kudra and Block Welfare Officer, Kudra dated 11.07.2007 as contained in Annexure-B which according to him clearly goes to show that the selection and appointment of 3
Legal Reasoning
Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 3 / 11 the petitioner was made contrary to the guidelines issued by the State Government for appointment on the post of Anganbadi Sevika. In this regard, he has also referred to the proceedings of the selection committee dated 17.05.2007 to show that out of seven persons of the selection committee four of them namely, Mukhiya , the Panchayat Secretary, Female member representing Scheduled Castes and the local Headmaster were absent and the meeting of the selection committee was convened by Up-Mukhiya. 5. In the considered opinion of this Court, the issue relating to locus standi of respondent no. 7, Asha Devi in assailing the selection and appointment of respondent no. 7 is wholly misconceived. It is not in doubt that respondent no. 7 was also an applicant for the post of Anganbadi Sevika on which the petitioner eventually was appointed. It is in that view of the matter, respondent no. 7 had filed her application on 04.06.2007 questioning the selection and appointment of the petitioner on the ground that though she had higher marks (58 per cent) but the petitioner despite having only (54 per cent) marks was selected and appointed. The plea taken by the learned counsel for the petitioner that respondent no. 7 herself was disqualified on account of she being the wife of a Government Servant, in no view of the matter could affect the questioning of selection and 4 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 4 / 11 appointment of the petitioner by respondent no. 7 specially, when from the proceedings of the meeting of the selection committee dated 17.05.2007, it is found that respondent no. 7 was not disqualified on this ground. As a matter of fact the selection committee did not consider the individual merit of all the candidates including that of respondent no. 7 and the selection of the petitioner was made in a most arbitrary manner only on the ground that earlier the petitioner had worked on the post of Sahaika and on this ground alone her appointment was made on the post of Anganbadi Sevika. 6. There is in fact no such provision in the Government guidelines which gives weightage and preference to working sahaika or ex-sahaika for being straightway appointed on the post of Anganbadi Sevika. Moreover, from perusal of resolution no. 2 and 3 dated 17.05.2007(Annexure-D) it is more than clear that the decision of selection of the petitioner on the post of Sahaika has been recorded after scoring over the earlier decision. As a matter of fact, on perusal of resolution no. 2 and 3 of the selection committee, it is more than clear even to a naked eye that selection of the petitioner on the post of Anganbadi Sevika was done in a most arbitrary and perfunctory manner. 7. This aspect of the matter gets further substantiated on account of absence of four of the seven members of the selection 5 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 5 / 11 committee namely, the Mukhiya of the Gram Panchayat, Panchayat Sachiv, female representative of the Scheduled Caste and local Headmaster, all of whom had not attended the meeting in which selection of the petitioner was made. From the perusal of the proceeding of the selection committee it is clear that only Up-mukhiya, Child Development Project Officer, Kudra and a ward member were shown to be present in the meeting but surprisingly in resolution no. 2 the presence of Sub-divisional Welfare Officer has also been recorded whose presence is not at all reflected from the attendance of the members of the selection committee which has been recorded on the first page of the proceeding dated 17.05.2007 8. It is here that the joint inquiry report of the four officials namely, Sub-divisional Officer, Mohania, Block Development Officer, Kudra and Block Welfare Officer, Kudra and Circle Inspector, Kudra dated 11.07.2007 (Annexure-A) assumes importance. From the perusal of order sheet, Annexure- B to the counter affidavit and inquiry report (Annexure-A) it is clear that there was no approved mapping prior to the selection on the post of Anganbadi Sevika and the survey contained only the signature of the Up-mukhiya. Both Mukhiya and Panchayat Secretary in their statement before the inquiry committee had categorically stated that the working of mapping and survey was 6 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 6 / 11 not done to their knowledge and with their assistance. In view of the aforementioned finding in the inquiry report when the mapping itself was not done to determine the largest population, of the beneficiary, the entire selection process of the post of post of Anganbadi Sevika as per the Government guidelines gets vitiated. Additionally, in the aforesaid joint inquiry report there is a clear mention that even the applications of all the candidates were not recorded in the candidate register and the merit list was also not prepared. Thus, when there was no consideration of the case of all the applicants and even the merit list not prepared the selection and appointment of the petitioner in isolation on the ground of her being earlier working as Anganbadi Sahaika would itself vitiate the entire selection process. 9. Added to it when four of the members of the selection committee as per the Government guidelines were also not present in the meeting held on 17.05.2007, the illegality in the selection of the petitioner on the post of Anganbadi Sevika becomes absolutely apparent and this Court therefore on perusal of the joint inquiry report which was submitted in view of the direction given by the collector of the district would find that the entire selection process leading to selection and appointment of the petitioner was vitiated both on fact and in law. 10. The whole issue in fact has been examined threadbare 7 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 7 / 11 by the Collector of the district in the impugned order which was passed after giving notice to all the concerned including the petitioner and the Collector of the Kaimur district has recorded his finding in the impugned order dated 28.09.2007, relevant portion whereof reads as follows:- bl ekeys esa ifjokn dRrkZ Jherh vk”kk dqekjh ifr Jh jk/ks”;ke jke xzke ?kVko gSa] ftuds }kjk vkjksi yxk;k x;k gS fd de izkIrkad okys vH;FkhZ dk p;u fd;k x;k gS ,oa iks’kd {ks= rFkk tkfr ckgqY;rk dk fu/kkZj.k ugha fd;k x;k gS A eqf[k;k Jh vthr dqekj flag }kjk crk;k x;k fd os ,oa iapk;r lfpo ml vke lHkk esa ugha Fks ftlesa lsfodk dk p;u gqvk gS A iapk;r lfpo }kjk crk;k x;k fd mUgsa ch0ih0,y0 dk;Z esa layXu fd;k x;k Fkk blfy, os vke lHkk esa mifLFkr ugha gks lds Fks A p;fur lsfodk }kjk crk;k x;k muls vf/kd vad okyh efgykvks esa ls dqN efgyk iks’kd {ks= ls ckgj dh Fkh rFkk dqN efgyk cSBd esa mifLFkr gh ugh gqbZ Fkh blfy, eqf[k;k ds ugha jgus ds dkj.k mi eqf[k;k dh v/;{krk esa vk;ksftr vke lHkk esa loZlEefr ls mldk p;u fd;k x;k gS vkSj og vkt rd dk;Zjr gS A cky fodkl ifj;kstuk inkf/kdkjh }kjk izfrosfnr fd;k x;k gS fd ftruk vkosnu i= muds ikl miyC/k Fkk mlesa ls ek= nks vkosfndk vke lHkk esa mifLFkr Fkh A ftleas ls vf/kd vad okyh efgyk dks iks’kd {ks= ls ckgj dk gksus ds dkj.k mudk p;u ugha gqvk vkSj Jherh izrhek nsoh dks ;ksX; ikdj vke lHkk }kjk loZlEefr ls p;u fd;k x;k gS A izfrfu;qDr tkap ny }kjk tkap ds dze esa ik;k x;k gS fd eSfiax vke lHkk dh cSBd vk;ksftr dj ugha rS;kj dh x;h gS rFkk vke lHkk ls ikfjr Hkh ugha gS blfy, jn~n fd;k tk; A ftyk Ldzhfuax dfefV }kjk Hkh bl p;u dks ekxZnf”kZdk ds vuq:Ik ugha ikdj jn~n djus dh vuq”kalk dh x;h gS A mi;qZDr fooj.k rFkk dh x;h leh{kk ds mijkUr eSa bl fu’d’kZ ij igwWaprk gwWa fd vkaxuckM+h dsUnz ?kVko III esa lsfodk ds in ij Jherh izrhek nsoh ifr Jh vfuy dqekj flag xzke ?kVko iz[k.M dqnjk dk fd;k x;k p;u fu;ekuqdwy ugha gS A cky fodkl ifj;kstuk inkf/kdkjh }kjk euekus <ax ls eqf[k;k ,oa iapk;r lsod ds vuqifLFkr jgus ds ckotwn mi eqf[k;k dh v/;{krk esa vke lHkk vk;ksftr dj vius euksuqdwy Jherh izrhek nsoh ifr vfuy dqekj flag dk p;u dj fy;k x;k gS A dk;Zokgh iqfLrdk ds voyksdu ls Li’V gksrk gS fd vke lHkk gsrq fnukad 27-04-2007 dks frfFk fu/kkZfjr djus dh lwpuk fuxZr dh x;h Fkh ijUrq ml fnu vke lHkk esa 8 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 8 / 11 dksbZ fu.kZ; ugha gqvk rks iqu% fnukad 17-05-2007 dks fcuk fdlh dh v/;{krk esa vk;ksftr vke lHkk esa Jherh izrhek nsoh dk p;u dj fy;k x;k ftudk vad es?kk lwph esa uhps Fkk A eSfiax vke lHkk ,oa iapk;r lfefr ls ikfjr ugha gS A vr,o p;u dh bl izfdz;k esa ljdkjh izko/kkuksa dk vuqikyu ugha fd;k x;k gS A tkap ny ,oa ftyk Ldzhfuax dfefV }kjk Hkh bl p;u dks fu;e ds foijhr ikdj jn~n djus dh vuq”kalk dh x;h gS A vfHkys[k esa miLFkkfir lHkh izfrosnuksa ds voyksdu rFkk eqf[k;k] iapk;r lfpo ?kVko iapk;r rFkk Jherh izrhek nsoh p;fur lsfodk dk lquus ds mijkUr ;g Li’V gksrk gS fd cky fodkl ifj;kstuk inkf/kdkjh ,oa mi eqf[k;k ds }kjk euekus <ax ls lsfodk dk p;u fd;k x;k gS A vr% foHkkxh; ifji= la[;k&----------- fnukad 03-10-2006 }kjk fuxZr ekxZn”kZu esa foLrkfjr izko/kku ds vkyksd esa lsfodk Jherh izrhek nsoh dk ukekadu i= jn~n fd;k tkrk gS rFkk mls okil eqf[k;k iapk;r ?kVko dks Hkstrs gq, funs”k fn;k tkrk gS fd os ljdkjh funs”k@ ekin.M ds vkyksd esa lgh ,oa lqik= mEehnokjksa dk p;u djsa A cky fodkl ifj;kstuk inkf/kdkjh dqnjk dks funsZ”k fn;k tkrk gS fd og ekxZnf”kZdk dh dafMdk 6 esa foLrkfjr izko/kkuksa ds vkyksd esa lsfodk ds p;u gsrq fu/kkfjr izfdz;k dk ikyu djrs gq, u;s fljs ls p;u dh izfdz;k iw.kZ djsa A cky fodkl ifj;kstuk inkf/kdkjh dqnjk dks ;g Hkh funsZ”k fn;k tkrk gS fd bl vkns”k dh izkfIr ds lkFk eqf[k;k xzke iapk;r ?kVko ls leUo; dj foHkkxh; ekxZ nf”kZdk esa of.kZr izko/kkuksa dk v{kj”k% ikyu djrs gq, iapk;r Lrjh; p;u lfefr ds }kjk p;u dh izfdz;k dks ewrZ :Ik nsa A 11. The aforesaid order passed by the Collector of the Kaimur district was further affirmed by the Commissioner of Patna Division, wherein, he had also noted the stand of the Child Development Project Officer, Kudra as with regard to availability of one more candidate namely, Renu Kumari having 51.5 per cent marks as against the petitioner having only 48 per cent marks. 9 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 9 / 11 12. The submission of learned counsel for the petitioner that in absence of Mukhiya, Up-mukhiya could have convened and presided the meeting of the selection committee because the Gram Panchayat Act 2006 authorizes Up-mukhiya to discharge the function of Mukhiya in his absence, also cannot be accepted, inasmuch as, there is a special procedure envisaged for selection and appointment on the post of Anganbadi Sevika in which a seven member committee headed by Mukhia has been given the power to complete the process of selection. Moreover, it is not only the case of absence of mukhiya who has to preside the meeting of the Selection committee but even the Panchayat Secretary was absent on account of his being assigned the duty of preparation of the list of persons below poverty line(BPL). Additionally, the two other members of the selection committee were also not allowed to participate in the meeting held on 17.05.2007 and thus even the corum of the selection committee was not complete, inasmuch as, four out of seven persons were absent. 12. In the light of aforesaid discussion there would be also no difficulty for this Court in holding that the entire process of selection and appointment of the petitioner was vitiated from inception on account of non preparation of the issue of mapping and its being approved by the Gram Sabha. It is on record that 10 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 10 / 11 the issue of mapping of the Gram Sabha was taken up on 24.07.2007 but no decision was taken on the mapping on that date and in the next meeting dated 17.05.2007 there is no trace of preparation or approval of the map. In the absence of approved mapping, the selection and appointment of Anganbadi Sevika cannot be done, inasmuch as, it is only on the basis of mapping that the majority of the population from which such Anganbadi Sevika has to be appointed is required to be determined. According to the joint inquiry report there were in all 16 applicants out of which 7 were of the backward category, 2 were of the general category, 4 were of scheduled caste category and 3 were of the most-backward category but without considering the inter se merit of all the 17 candidates the petitioner was appointed only on the basis of her being working on the post of Sahaika. This is simply not permissible in terms of the guidelines issued by the State Government for appointment on the post of Anganbadi Sevika. 13. It has to be also kept in mind that though the copy of counter affidavit filed by respondent nos. 2 to 5 enclosing copy of the joint report of the four officials as also the proceedings of the selection committee dated 17.05.2007 and the report of the selection committee dated 30.07.2007 was served on the counsel for the petitioner but the same has not been 11 Patna High Court CWJC No.2639 of 2012 (3) dt.20-03-2013 11 / 11 controverted by the learned counsel for the petitioner and as such this Court will have no difficulty in holding that the impugned order passed by the Collector of Kaimur district based on the consideration of the aforementioned documents, does not suffer from any error either on fact or in law. 14. The objection to the complaint of respondent no. 7 on the ground of she being ineligible for the post of Anganbadi Sevika because of her being wife of a Government Servant also in the facts of this case will make no material difference because it not that respondent no. 7 has been selected and appointed on the post of Anganbadi Sevika rather in the impugned order, a direction has been issued by the Collector of Kaimur district while setting aside the order of selection and appointment of the petitioner that fresh selection should be undergone after inviting application from all eligible candidates. 15. Thus for the reasons indicated above, this Court does not find any merit in the application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Prakash/Ranjan