Renu Devi v. The State Of Bihar & Ors.

Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 2 affirmed by the District Magistrate in appeal as also the Commissioner in review. The Appellant was selected and appointed as Anganbari Sevika but came to be terminated on a complaint by respondent no. 8. The learned Single Judge rejected the challenge for lack of jurisdiction in the District Programme Officer opining that the matter had been considered by the District Magistrate and the Commissioner also. Admittedly the appellant had lesser marks than respondent no. 8. The Collector and Commissioner had opined in favour of respondent no. 8 on the question of her residence. Orders had been passed for fresh mapping whereafter the eligible could be considered afresh in accordance with law. Learned counsel for the Appellant contended that the original order for termination passed by the Distr5ict Programme Officer was without jurisdiction in view of the order in LPA No. 863 of 2009 interpreting the guidelines and holding that the former was empowered only to remove for deficiency in service after appointment. Matters for termination of appointment were the jurisdiction of the District Magistrate alone even under the Government Guidelines/Instruction dated 25.07.2008. Reliance was placed on (1976) 3 SCC 327 (Baradakanta Mishra vs. High Court or Orissa) to submit that an order without jurisdiction was Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 3 void. It was next contended that the private respondent no. 8 was ineligible to be considered both on grounds of residence and the employment of her husband. It was lastly submitted that there had been no irregularity in the appointment as Ram Chandra Nagar did not form part of the mapping area of Batwan Anganwari Kendra. Counsel for the State submitted that fresh mapping had been ordered whereafter the eligible could be considered afresh in accordance with law. Anganwari Sevikas are appointed as agents of the State Government for dissemination of a welfare scheme to make certain social facilities available to expectants mothers and deprived children. The appointment is not in government service. The criteria and yardstick applicable to those in government service for appointment and termination shall not be applicable. The relationship being one of principal and agent, but because the principal happens to be the State Government, judicial review has to be confined to fairness in action, decision making and reasoned order. The respondents are not lacking on these aspects. The appointment, termination are all regulated by administrative guidelines. It shall not have the rigors of statutory Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 4 provisions. Flexibility including deviations at times are also inherent in administrative guidelines. In (1990) Suppl. SCC 440 (Narendra Kumar Maheshwari vs. Union of India) it has been observed as follows:- to even where “107. ……. Guidelines are issued by governments and statutory authorities in various types of situations. ….. In this context, there is only a very limited scope for judicial review on the ground that the guidelines have not been followed or have been deviated from. …….The scope for such challenge will necessarily be very narrow and restricted and will depend to a considerable extent on the nature and extent of the deviation. ……A court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their avowed object to protect. Per contra, the court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public justify or necessitate such interest warrant, deviations in a particular case. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and circumstances of any particular fact or situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.” implicitly permissible discrimination As part of the social welfare scheme and policy an Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 5 Anganwari Sevika is elected from amongst the dominant populace of the beneficiary area. The avowed purpose is that the Sevika must feel the pain of those she serves. The C.D.P.O. reported that Ram Chandra Nagar fell within the beneficiary area of the Batwan Anganwari Kendra. Inadvertently, it could not be added to the former at the time of consideration for determining the dominant populace in the mapping register. The mapping resister was itself unavailable. If Ram Chandra Nagar formed part of the Batwan Anganwari Kendra inadvertently left out we see no reason to interfere with the order for fresh mapping after its inclusion to determine the dominant populace. In LPA No. 863 of 2009 (Prabha Kumari Devi vs. State of Bihar) it was held that the District Programme Officer under the guidelines was competent to order termination only for alleged deficiencies in discharge of duties. Termination on issues of appointment could be ordered by the District Magistrate alone. But, for us to interfere with the order for termination on that ground would result in leaving out a beneficiary area which is bound to be included for determining the dominant populace for dissemination of the welfare scheme. In other words, if we interfere with the order of the District Programme Officer we shall be creating an illegal situation where a particular area which Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 6 otherwise is required to be included in the mapping area shall be left out. In (1999) 8 SCC 16 (Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar) it was held at paragraphs 12 and 13 as follows: the earlier `` 12. Therefore, the question is whether the order of the Member of Board of Revenue should be quashed on this ground. If the order is set aside, the result would be that the notice directing the appellant to refund the additional amount of compensation assessed at ten times of the net income would have to be quashed. In other words, reassessment of compensation made by giving ten times of the net income would revive. If under the law the appellant is not entitled to get compensation more than three times of the net income it would amount to restoring an illegal order. 13. In Gadde Venkatesware Rai v. Govt. of A.P. this Court considered the action of the State Government the Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if the High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power.” The reliance by the Appellant on Baradakanta Mishra (supra) is not applicable to the facts of the present case as it does not deal with the situation for revival of another illegal order after Patna High Court LPA No.502 of 2013 (4) dt.19-08-2013 7 setting aside an order as opined by us. For reasons discussed, we find no reason to interfere with the order under Appeal. The Appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) Md. Ibrarul/-