Patna High Court
Kalpana Devi vs The State Of Bihar & Ors on 9 May, 2013
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.21289 of 2012
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Kalpana Devi Wife Of Sri Jageshwar Yadav Resident Of Village Kushahar Araji
Panchayat, P.S. Balua Bazar, District Supaul, The Then Anganbari Sevika Of
Anganbari Centre No. 136 Kushahar Araji Panchayat Under Child Development
Project Officer, Basantpur, District - Supaul
.... .... Petitioner
Versus
1. The State Of Bihar Through Its Secretary
2. The Director Social Welfare Department Govt. Of Bihar, Patna
3. The Divisional Commissioner Koshi Division, Sahara
4. The District Magistrate, Supaul
5. The District Programme Officer, Supaul
6. The Child Development Project Officer, Basantpur Child Development Project
Office, Supaul
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate.
For the Respondent/s : Mr. Ravindra Kr. Choubey S.C.-8
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 09-05-2013
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application
reads as follows:-
"1(i) For issuance of direction or order or writ in the
nature of certiorari for quashing the order dated
28.4.2012passed in Anganbadi Case No. 07 of 2012 by the District Programme Officer Supaul and communicated to the same to the petitioner vide memo no. 575 dated 23.5.2012 as well as appellate order dated 24.7.2012 passed by learned District Officer Supaul in Appeal Case No. 27/2012 and same was communicated to the petitioner vide memo no. 1105 dated 28.7.2012.
Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 2/7
(ii) For direction to the respondents authority (R.No.3) to disposed of the appeal bearing no. 366 of 2012 accordance with law.
(iii) For issuance of writ in the nature of mandamus to place the petitioner on its original place."
3. Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the solitary ground as with regard to the presence of less than fifteen children at the Anganbari Centre having been prescribed by the counsel for the State as a valid ground for taking steps for removal of the Anganbari Sevika under the circular issued by the Director, I.C.D.S. contained in letter no. 956 dated 14.3.2012, cannot be sustained, inasmuch as, the inspection of the centre, in question, was held on 7.2.2012 and on that day, such circular requiring minimum presence of fifteen children at the centre was not even prescribed. He has further submitted that the orders passed by the District Programme Officer and its affirmance by the Collector of the district do not show any application of mind to the facts stated in the show-cause reply and the memo of appeal respectively.
4. In this case, a counter affidavit has been filed wherein the impugned order passed by the District Programme Officer and its affirmance in appeal by the Collector has been sought to be justified on the ground that the Director, I.C.D.S. in his letter dated 956 dated 14.3.2012 (Annexure-A to the counter affidavit) has laid down that if Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 3/7 at any point of time during the functioning of the centre on any date if the presence of the children is less than fifteen, steps has to be taken for removal of the Anganbari Sevika. It has also been stated in the counter affidavit that the show-cause reply of the petitioner was taken into consideration and her plea that after inspection of the Female Supervisor, thirty-two children had turned up at the centre and were also found by the member of Panchayat Samiti in course of his inspection cannot be believed much less acted upon. Learned counsel for the State, therefore, while drawing support from the counter affidavit has submitted that there would be no requirement of any interference in the two impugned orders.
5. In the considered opinion of this Court, when it is not in dispute that the centre in which the petitioner was working as an Anganbari Sevika was subjected to sudden inspection on 7.2.2012 at 11 AM, whether the presence of twelve children only at the centre at that point of time would amount to deficiency in service of the petitioner? In this regard, it is found from the show-cause notice dated 14.4.2012 that no specific date of inspection of Priti Kumari, Female Supervisor was disclosed. In the show-cause notice, all that was stated that though the petitioner was found present in course of sudden inspection of the Female Supervisor but only twelve children were present. Surprisingly, even the time of inspection was not mentioned Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 4/7 in the show-cause notice. It has to be also kept in mind that in the show-cause notice, there was no other allegation made against the petitioner. Thus, there would be no difficulty in holding that the show- cause notice was itself completely vague and in fact when the inspection report of Priti Kumari, Female Supervisor was also not supplied to the petitioner along with the show-cause notice, she was definitely not given an opportunity for explaining her case.
6. This Court has also examined the show-cause reply filed by the petitioner on 28.4.2012 wherein she has stated that the inspection of Priti Kumari on 7.2.2012 was held at 10.35 AM and since the centre had started functioning only from 10 AM, the children were in the process of arriving at the centre. She had also explained that the food to be served to the children was to be prepared between 12.15 AM to 1.30 PM as per the direction issued by the authority. She had further claimed that soon after the inspection of Priti Kumari, Female Supervisor, thirty-two children had arrived and they were also given food as prescribed. The District Programme Officer, Supaul, however, after considering the show-cause reply of the petitioner had held that the petitioner was trying to belie the report of Priti Kumari. This part of the findings of the District Programme Officer seems to be contrary to the stand taken by the petitioner in her show-cause reply, inasmuch as, she had never questioned the Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 5/7 inspection held by the Female Supervisor and all that she had said was that subsequently thirty-two children had arrived at the centre.
7. It is true that the show-cause reply is not very happily worded but, then, if the show-cause notice itself did not contain the time of inspection of Priti Kumari, the Female Supervisor nor even the date of such inspection was disclosed, it cannot be said that the petitioner's show-cause reply was fit to be rejected.
8. That apart, the main reason for terminating the service of the petitioner is that the presence of number of children was less which went to show that the petitioner was not interested in doing her job. It is here that the findings of the District Programme Officer is not supported by any circular or guideline laying down the number of children as on the date of inspection which in the impugned order is said to be 7th of February, 2012. Nothing has been brought on record by the respondents to show that as on 7.2.2012, presence of less than fifteen children could have automatically led to be conclusion of Anganbari Sevika to be a proof of not efficiently discharging the duty.
9. In the counter affidavit reliance has been placed on an instruction issued by the Director, I.C.D.S. on 14.3.2012 wherein apart from other things, it was laid down that if at any point of time during the prescribed hours of any of the centre, the number of children without any reasonable cause is found to be less than fifteen, Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 6/7 steps should be taken for removing the Anganbari Sevika. This prescription of fifteen children having been brought by the circular of the Director, I.C.D.S. only on 14.3.2012, the same could not have been made applicable in respect of the inspection held at the centre of the petitioner on 7.2.2012.
10. The order passed by the Collector of Supaul district in appeal in fact also does not deal with this aspect. The appellate authority in fact has not considered anything and has rejected the appeal of the petitioner by one line order that in course of hearing, the petitioner did not produce any new fact. Such approach of the appellate authority cannot be approved by this Court. Both in the show-cause reply as also in the memo of appeal, the petitioner had raised the issue of presence of twelve children at the time of inspection of the Female Supervisor and had further explained that the number of children had gone up to thirty-two. The Collector, therefore, was required to look into this part of the defence of the petitioner who, as noted above, had dismissed the appeal by one line order. Such non-speaking and perfunctory order has been held to be bad by this Court in the case of Manjula Kumari & Anr. Vs. State of Bihar & Ors. reported in 2012(3)BLJ 159.
11. In any event, if there was no prevailing circular of the State Government or the Director, I.C.D.S. prescribing minimum Patna High Court CWJC No.21289 of 2012 dt.09-05-2013 7/7 presence of fifteen children on the date of inspection, the petitioner could not have been straightway removed unless there were some other deficiencies in the performance of the duty of the petitioner.
12. Thus, for the reasons indicated above, this Court would find that the impugned orders contained in Annexure Nos. 1 & 2 are bad. They are, accordingly, quashed and the petitioner is directed to be reinstated in service. It is, however, made clear that the petitioner will not be entitled for any back wages for the period she had remained out of service.
(Mihir Kumar Jha, J) Patna High Court Dated the 9th May 2013 N.A.F.R./Rishi