Andhra HC (Pre-Telangana)
Dudi Ch.Mahalakshmi @ Puliga Chitti ... vs The District Collector, Visakhapatnam ... on 2 January, 2014
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
WRIT PETITION No.22387 of 2007
02-01-2014
Dudi Ch.Mahalakshmi @ Puliga Chitti Kanaka Mahalakshmi..... Petitioner
The District Collector, Visakhapatnam and three others......Respondents
Counsel for the Petitioner: Sri K.V.Subba Reddy
Counsel for Respondent Nos.1 to 3: GP for Women Development
and Child Welfare
^Counsel for Respondent No.4: Sri V.V.N.Narayana Rao
<Gist:
>Head Note:
? Cases Referred:
1. 2002(4) ALD 1 (DB)
THE HONBLE SRI JUSTICE DAMA SESHADRI NAIDU
WRIT PETITION No.22387 of 2007
ORDER:
The present writ petition is filed impugning the proceedings No.1/06/2007, dated 17.08.2007, issued by the second respondent, whereby the fourth respondent was appointed as Anganwadi Worker, Gurrajupeta Village, Rayavaram Mandal, Visakhapatnam District. The petitioner has also sought a consequential direction to respondent Nos.1 to 3 to appoint her as Anganwadi Worker in the same place.
The facts, in brief, are that the petitioner possessed the basic qualification of 10th class (S.S.C.) having passed the board examinations in the year 1998. She is also said to have acquired the additional qualifications, such as a degree in Rashtrabhasha Praveen of Dakshina Bharat Hindi Prachar Sabha, Madras, having passed the said examinations in the year 1997. Initially, after working as Vidya Volunteer for two years along with the fourth respondent, the petitioner applied for the post of Anganwadi Worker of Gurrajupeta Village, Rayavaram Mandal, Visakhapatnam District. On the direction of the officials, she appeared for the interview before the selection committee on 31.07.2007, but despite the petitioners possessing all the requisite qualifications and experiences as well, the authorities selected the fourth respondent and appointed her as Anganwadi Worker through the impugned proceedings, dated 17.08.2007. Assailing the said selection, the petitioner has come before this Court by filing the present writ petition.
Sri K.V.Subba Reddy, the learned counsel for the petitioner, has contended that G.O.Ms.No.21, dated 24.08.2007, prescribed the necessary guidelines including the educational qualifications and age limit for the post in question. As per the said G.O., a candidate to be appointed for the post of Anganwadi Worker must have passed 10th class. It is asserted that indisputably the petitioner has possessed the said qualification much prior to the date of the interview, whereas the fourth respondent did not possess it, since she failed 10th class. The learned counsel has also pointed out that even prior to G.O.Ms.No.21, dated 24.08.2007, the Government issued Circular memo No.20888/K3/94, dated 09.02.1995, wherein it was specified that a candidate with 10th class education should be preferred for the said post. Thus, placing reliance on the Circular Memo, dated 09.02.1995, as well as G.O.Ms.No.21, dated 24.08.2007, the learned counsel has strenuously contended that the respondent authorities have acted arbitrarily and without justification in selecting the fourth respondent in preference to the petitioner, despite, on one hand, the fourth respondents not having the necessary qualification, and on the other, the petitioners possessing every qualification and experience that is required for the said post. Elaborating further, the learned counsel has contended that in the light of the clear statutory mandate as has been incorporated under the G.O. referred to above, the respondent authorities have no power of discretion to be exercised in favour of an unqualified person.
Thus, the learned counsel has urged this Court to set aside the appointment of the fourth respondent and consequently to direct the respondent authorities to appoint the petitioner as an Anganwadi Worker with effect from the date the petitioner was subjected to interview, or in the alternative, from the date when the fourth respondent was appointed illegally, though. The learned counsel for the petitioner, in support of his submissions, has placed reliance on the judgment of a learned Division Bench of this Court as reported in C.Muralikrishna and others vs. Telugu University, Hyd .
Per contra, Sri V.V.N. Narayana Rao, the learned counsel for the fourth respondent, has vehemently opposed the claims and contentions of the petitioner, as have been canvassed by her learned counsel. To begin with, the learned counsel for the fourth respondent has stated that G.O.Ms.No.21, dated 24.08.2007, came into effect only subsequent to the appointment of the fourth respondent, and as such, the petitioner cannot take advantage of that. In other words, the learned counsel has submitted that the said G.O. has no retrospective effect, as on the face of the said instrument, no such indication either expressly or by implication is discernable.
The learned counsel for the fourth respondent has further stated that the Circular Memo, dated 09.02.1995, which perhaps has an application in determining the selection criteria for the post of Anganwadi Worker, only stated that selection of a candidate with 10th class education. The learned counsel would want us to believe that with 10th class education means it is sufficient if a person has appeared for the 10th class examinations. In other words, the stipulation does not mandate that one should pass the said examination, or at least passing of the said examination has not been made mandatory.
In the alternative, the learned counsel has also submitted that Clause 3 of the said Circular Memo indicates only the possibility of securing a candidate with 10th class qualification and that it does not mandate that only such a candidate is required to be appointed. The learned counsel has urged this Court to read Clause 3 of the said circular memo in a holistic manner. He has emphasised that the petitioner wants to take advantage of only the initial part of the said clause. Expatiating further, the learned counsel has stated that in the same clause, it has also been stated that even the candidates of 9th and 8th class qualification could be considered for the appointment, provided they met the other selection criteria. According to the learned counsel, keeping aside the aspect of 10th class, the fourth respondent has satisfied all other selection criteria as it is evident from her very selection in preference to all other candidates by the interview board, which comprised experts of the field.
The learned counsel for the fourth respondent has also submitted that the petitioner has only challenged the appointment, but not the process of selection. Referring to the grounds of judicial review, as have been established through numerous judicial precedents, the learned counsel has stated that since this Court, while exercising its power under Article 226 of the Constitution of India, does not sit in an appeal on administration decision. He has laid much stress on the fact that once there is no direct challenge laid against the selection process as having been vitiated on justiciable grounds, the writ itself does not survive for consideration, and as such, it is required to be dismissed in limine.
The learned counsel for the fourth respondent has laid much emphasising on the submission that the administrative discretion conferred upon an authority cannot lightly be interfered with. Further, in support of his other submission that, notwithstanding the prescription of a particular qualification, it lies well within the power of the authorities to appoint the persons with lesser qualification, when they are otherwise eligible by meeting the other criteria laid down for the purpose of selection. The learned counsel has placed reliance on the judgments as reported in Dr.M.S.Mudhol vs. S.D.Halegkar , Rajendra Singh vs. State of U.P. and M.Bucha Reddy vs.V.Bhagyamma .
In sum and substance, the learned counsel has tried to impress upon this Court that, since there is no allegation on the petitioners part that the selection of the fourth respondent has been vitiated by mala fides or any other procedural irregularities, the same cannot be interdicted, more particularly, after lapse of considerable time. The learned counsel has further stated that the fourth respondent was selected in the year 2007 and she has also put in more than six years service, and as such, disturbing her appointment at this stage would be inequitable and she would be left with no other source of survival. Accordingly, the learned counsel for the fourth respondent has urged this Court to dismiss the writ petition.
Sri S.Atchibabu, the learned Assistant Government Pleader for the Women Development and Child Welfare, appearing for the respondent authorities, has supported the contentions of the learned counsel for the fourth respondent to the extent of upholding the selection of the fourth respondent. The learned Assistant Government Pleader has submitted that the respondent authorities have followed the selection process scrupulously and accordingly selected the fourth respondent, since she was found more meritorious than the petitioner. The learned Assistant Government Pleader has stated that the mandatory qualification of passing 10th class was imposed only through G.O.Ms.No.21, dated 24.08.2007, and prior to that there was no such pre-condition. He has pointed out that, applying the same qualification criterion, during the same period, certain other candidates have also been selected, and they have been discharging their duties to this date. Accordingly, the learned Assistant Government Pleader has prayed this Court to dismiss the writ petition as being devoid of any merits.
Heard the learned counsel for the petitioner and the learned counsel for the fourth respondent, as well as the learned Assistant Government Pleader appearing for the respondent authorities, apart from perusing the record.
The issue in the present case lies in a narrow compass. To examine whether the petitioner has been improperly omitted from consideration for the post in question, it is essential to address the following issues:
1) Whether a candidate is required to possess the qualification of 10th class i.e., passing 10th class, as a precondition to be appointed as Anganwadi Worker prior to the introduction of G.O.Ms.No.21, dated 24.08.2007? and
2) Whether the petitioner is to be non-suited on the ground that she has not questioned the selection process, but only questioned the selection per se of the fourth respondent?
In Re, issue No.1:
Indisputably, G.O.Ms.No.21, dated 24.08.2007, was brought into existence on 24.08.2007 and it does not have any retrospective effect. Accordingly, it can safely be concluded, as has been urged by the learned counsel for the fourth respondent, that insofar as the selection of the fourth respondent or the non-selection of the petitioner is concerned, what held the field was the Circular Memo, dated 09.02.1995. The said memo contains what are called the instructions regarding the selection of the candidates, as Anganwadi Workers, who hail from the same village, where the Anganwadi centre is located. It is profitable to extract Clause 3 of the said Circular Memo, which reads as follows:
To the extent possible, effort should be made to select a person with 10th class education from the same village. In the case of villagers where local women with 10th class education are not available the qualification may be relaxed to 9th, 8th and so on. It must be noted that even an illiterate local candidate can be selected instead of an educated non-local person. No non-local candidate should be selected on the plea that she has higher educational qualification or that she agreed to reside in the village or other considerations. If the above criteria are strictly followed, there should not be any need for subsequent transfer of any worker from the village form the village for which she is selected.
From the above instructions, it is evident that, to the extent possible, the authorities concerned should make efforts to select a person with 10th class qualification from the same village. It does not take much cogitation to dismiss the submission of the learned counsel for the fourth respondent that 10th class education means a mere attempt at the examinations, rather than actually passing it. Whenever a person is required to possess a particular qualification, it invariably means that he must have passed the examination, and only then can it be called an acquisition of qualification. Lest, it should lead to incongruity, nay absurdity, as any person could claim a qualification by merely attempting or appearing in the examination. Thus, as the said contention does not detain us long from having it rejected, we may proceed further to examine the other contentions raised by the respective counsel.
Indeed, there is no quarrel to the proposition advanced by the learned counsel for the fourth respondent at the Bar that any provision, rule or even an administrative instruction is required to be read in a holistic manner but not selectively. Thus, from a reading of the above extracted instruction in Clause No.3 in the Circular Memo, dated 09.02.1995, it is evident that exclusion of a person having the necessary qualification in the first place does not arise. On the other hand, what is provided therein is contingent in nature to the extent that only in the event that a local woman with 10th class education is not available, the qualification may be relaxed to 9th or 8th class and so on. It has further been indicated in the said clause that even an illiterate local candidate can be selected instead of an educated non-local person. Thus, it is evident that once a person with the necessary qualification is available, she must be preferred, rather selected, subject to other parameters. If no such qualified person is available from the same village, then the respondent authorities are at liberty to consider the other persons with lesser qualifications, but from the same village. It has not been disputed by either the official respondents or by the private respondent that the petitioner too hails from the same Village. Thus, incontrovertibly, the petitioner not only possesses the requisite qualification, but also hails from the same village.
The learned counsel for the petitioner, during the course of his submissions, has pressed into service a judgment rendered by a learned Division Bench of this Court in C.Muralikrishnas case (supra). In the said case, a particular candidate was selected and appointed as Deputy Librarian. Though the selected candidate did not possess the prescribed qualification, he was selected on the ground that he possessed the other qualifications and experience, which were superior to the ones prescribed under the Rules.
Aggrieved thereby, the rival candidate approached this Court. This Court, per the learned Division Bench, has held that the Courts have no power to override the mandatory provisions of the recruitment rules either on sympathetic considerations or on the basis of nebulous subjective human approach. If a person, though not possessing the essential qualifications, should be allowed to continue in the post merely on the basis that he has been working in the post for more than six years, such an order would amount to altering or amending the recruitment rules made in that regard, apart from it being in blatant violation of the postulates of Article 14 and the commandments of Article 16.
At this stage of dictation of the judgment in the open Court, the learned Assistant Government Pleader passed on what are termed as proceedings, dated 03.07.1993, indicating that even a person without 10th class qualification can be appointed but with a lesser honorarium than the one give to a candidate with 10th class qualification. Accordingly, the learned Assistant Government Pleader has urged that the appointment of the fourth respondent cannot be found fault with, and those proceedings would amply support his contention that the 10th class qualification is neither mandatory nor a pre-requisite.
An interruption it may be; I have decided, in the interest of justice, to address the said issue as well. The proceedings, dated 03.07.1993, which have been passed on to me across the Bar are concerning the appointment of one Smt.B.Latamma. Evidently, these are the appointment proceedings rather than any administrative instructions or rules of binding nature to hold that such an exception has been made in the rules to the extent that even when a qualified candidate is available, she can be ignored on the satisfaction of the selection committee.
The issue raised by the learned Asst., Govt. Pleader can be addressed from another angle as well. Even in the Circular Memo, dated 09.02.1995, there is no absolute bar imposed on the selection of candidates with lesser qualifications. All that has been stated therein is that as far as possible a qualified candidate is to be secured from the same village, and only on the failure of the authorities in securing a candidate with the necessary qualification, liberty is given to them to appoint a candidate with lesser qualification, subject to her meeting the other selection criteria. Thus, I do not see any conflict between the Circular Memo, dated 09.02.1995, and the appointment proceedings of Smt. B.Latama, dated 03.07.1993.
Examining the precedents relied on by the learned counsel for the fourth respondent, we may take up for consideration the ratio laid down in Rajendra Singhs case (supra 3). In the said judgment, the Honble Supreme Court has interpreted the expression as far as possible and has held that these words are not prohibitory in nature, but they rather connote a discretion vested in the Prescribed Authority who can exercise that discretion. The issue in the said decision arises out of UP Imposition of Ceiling on Land Holdings Act, 1960. The said enactment confers certain discretionary powers on the prescribed authorities. Before taking over any area as surplus or leaving any area as ceiling area of the tenure-holder, the prescribed authority shall first take into consideration the choice indicated by the tenure-holder, and if it is not possible to act wholly upon the choice, for which there may be a variety of reasons, the prescribed authority will proceed in his own way to leave the area determined by him as the ceiling area with the tenure-holder and take over the other area as surplus area. Thus, it is only a matter of selecting or taking into consideration the area that has been suggested by the tenure-holder at the time of computation. The above analogy, I am afraid, may not apply to the facts of the present case.
The learned counsel for the fourth respondent has further placed reliance on M.Bucha Reddys case (supra) and he has urged that once discretion has been exercised by the authorities, it cannot be lightly be interfered with. It may be apposite to examine the ratio laid down in the said judgment. In fact, in para 12, a learned Division Bench of this Court has held as follows:
12. In Ashok Kumar Yadav v. Slate of Haryana, , the Supreme Court while holding that allocation of 33.3 per cent of marks for viva voce test as arbitrary, however, did not interfere with the appointments made and instead directed the Haryana Public Service Commission to give on more chance to the aggrieved candidates. In State of U,P, v, Rafiquddin, , the Apex Court declined to quash the appointments made by the UPPSC to the cadre of District Munsifs though a finding was recorded that the recruitment was contrary to the Rules.
Likewise, in Miss Shainda Hasan v. State of U.P.. , though the age relaxation given to a principal of a college was held to be illegal, the Hon'ble Supreme Court, still declined to strike down the appointment, but, however, directed the Vice-Chancellor of the Lucknow University to grant necessary approval for the appointment of the appellant therein as the Principle of the Girls College, Lucknow. In all these cases, the fact that the respective parties were working in the post for considerable time weighed with the Hon'ble Supreme Court in not interfering with the appointments.
It may have to be observed that their Lordships have made those observations in the context that the appointment of the petitioner therein as headmistress has remained unchallenged for a long time. Thereafter wards, though an aggrieved person has laid a challenge against it, subsequently, it was withdrawn as having been settled out of Court. Later on, the aggrieved person chose to question the appointment after more than a decade. Under those circumstances, their Lordships have held that a candidate could not be disturbed at a late hour of the day and in that context, the proposition extracted in the above paragraph has been enunciated by the learned Division Bench of this Court. As such, I cannot persuade myself to accept the contention of the learned counsel for the fourth respondent that there is any invariable legal principle law laid down by the learned Division Bench of this Court that once an appointment is made, be it illegal, it cannot be disturbed even by the affected person by approaching the Court. The issue of belated approach is always a mixed question of law and fact; the length of delay being a question of fact and the desirability of condoning it, a question of law, albeit based on the very fact situation. In any event, in this case, there is no delay on the part of the petitioner. The impugned proceedings were issued on dated 17.08.2007, and soon thereafter, the petitioner approached this Court. The delay in adjudication of the lis cannot be to the prejudice of the petitioner, unless it is attributable to her.
In Dr.M.S.Mudhols case (supra), the appointment of the incumbent was questioned after 13 years on the premise that he did not possess the qualification. The person, who laid the challenge, has stated that he too did not possess the qualification yet, he possessed a better qualification among the unqualified persons. While considering the contention whether the petitioner possessed a better qualification but not the qualification that has been prescribed, it has been held that in the first place the writ petition suffered from incurable laches, and in the second place, it does not fall within the judicial consideration to fix the relative merits of unqualified candidates. Accordingly, their Lordships have refused to interfere or interdict the appointment of a person who possessed the qualification lesser than that has been prescribed, on mere challenge laid against it.
Thus, regrettably all the three precedents that have been relied on by the learned counsel for the fourth respondent do not come to the rescue of the fourth respondent.
Though the learned counsel for the fourth respondent has laid heavy stress on the contention that once discretion has been conferred on the authorities, any exercise of the said discretion cannot easily be interdicted by this Court, especially while exercising discretion of judicial review under Article 226 of the Constitution of India. He has further submitted that the evaluation of the relative merits of the candidates is to the subjective satisfaction of the selection committee, and it does not call for interference, simply on the premise that one candidate has possessed better qualification than the other one, who has been selected. This proposition of law does not admit of any disputation. But, the question that falls for consideration is whether the respondent authorities have been conferred with any discretion at all, in the first place. If any discretion has been conferred, the question is whether the authorities have discharged the discretion by meeting the parameters that have been laid on the touch tone of fairness.
In my considered opinion, once a qualified candidate is available, the question of exercising any discretion by the respondent authorities does not arise. Once a threshold qualification has been prescribed and it is possessed by a candidate, there is no need to consider all other rival candidates, who in the first place do not have the said threshold qualification, even in the name of evaluation of relative merits of the candidates. In the present instance, without any fear of contradiction, this Court is inclined to hold that in terms of the Circular Memo, dated 09.02.1995, once the respondent authorities have secured a candidate with requisite qualification, then the selection of a candidate with lesser qualification does not arise. On a perusal of the counter-affidavit filed by the second respondent, I do not gather any reasons justifying the selection and appointment of the fourth respondent in preference to the petitioner.
Accordingly, this Court has no other option than declaring the appointment of the fourth respondent as illegal, and thereby giving a consequential direction to appoint the petitioner in her place.
For the foregoing reasons, proceedings No.1/06/2007, dated 17.08.2007, issued by the second respondent, are hereby declared as illegal and arbitrary, and as a natural corollary, the appointment of the fourth respondent is hereby set aside. As a further consequential measure, the respondent authorities are directed to appoint the petitioner as Anganwadi Worker of Gurrajupeta Village, Rayavaram Mandal, Visakhapatnam District, by giving the benefit of past service notionally from the date of appointment of the fourth respondent i.e., 17.08.2007, but without any financial benefit for the past service.
With the above observations and directions, the Writ Petition is allowed. There shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in this writ petition, shall stand disposed of as infructuous.
__________________________ (DAMA SESHADRI NAIDU, J) 02nd January, 2014