Patna High Court
Sunita Kumari vs The State Of Bihar & Ors on 6 May, 2010
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
CIVIL WRIT JURISDICTION CASE No.12911 OF 2007
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In the matter of an application under Article 226 of the Constitution of India.
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Sunita Kumari, Anganwari Sewika, wife of Shri Jitendra Kumar, village Rasalpur
Mahugain, PS Wazirganj, District Gaya - petitioner.
Vs.
1. The State of Bihar through the Secretary, Welfare Department, Bihar,
Patna.
2. The Director, I.C.D.S. Directorate, Social Welfare Department, Patna.
3. The Commissioner, Magadh Division, Gaya.
4. The District Magistrate, Gaya.
5. The District Programme Officer, Gaya.
6. The Children Development Project Officer (C.D.P.O.), Wazirganj, Dist.
Gaya.
7. Smt. Sanju Kumari, wife of Shri Pramod Kumar, village Rasalpur Mahugain,
PS Fatehpur, Wazirganj, PO Tarwan, District Gaya - Respondents.
For The Petitioner : Mr. Abhay Kumar Singh with Mr. Amit Kumar Mishra,
Advocates.
For The State : Mr. Braj Kishore Prasad Sinha, G.P.II.
For respondent no. 7 : Dr. Pankaj, Advocate.
P R E S E N T
Hon'ble Justice Smt. Sheema Ali Khan.
S.A.Khan,J. The prayer is to set aside the order, dated 24.8.2007
contained in Annexure 7 by which the petitioner has been removed
from the post of Aangan Bari Sevika in lieu of the selection made on
8.3.2007. The second question which arises in this case is whether the eligibility criteria laid down in the guide lines promulgated by the Welfare Department on 3.10.2008 with respect to the qualification and eligibility contained in clause 3 (Anga) is unjust, unfair and arbitrary and hit by Article 14 of the Constitution of India. In fact this writ petition was admitted mainly to decide this issue.
2. Certain facts are admitted by all the parties before this court. An Aam Sabha was held on 8.3.2007 for the purpose of selecting Aangan Bari Sevika of village Rasalpur Mahugain under 2 Wazirganj block within the district of Gaya. The petitioner was at serial no. 1 whereas respondent no.7 was at serial no.2 in the merit list. Prior to the selection of the petitioner a report was called for from the Child Development Project Officer (C.D.P.O.) as well as from the Mukhiya of the village. The report indicates that the petitioner‟s father-in-law was working in the Gaya Municipal Corporation as a Lower Division Clerk and was living at Gaya. The report also indicates that there was a partition in the family and the petitioner and her husband lived separately in the village. The report of the Mukhiya was submitted to the C.D.P.O. whereas the C.D.P.O. submitted his report to the Subdivisional Officer Sadar, Gaya. Thereafter, the petitioner was sent for training and was selected vide Annexure 4, dated 13.7.2007 and was appointed as Aangan Bari Sevika.
3. After the selection of the petitioner a complaint was filed against her appointment. The District Magistrate issued letter no. 1761, dated 20.8.2007 by which he had fixed the date of hearing of the complaint against the selected candidates of the different villagers in which the candidates along with the C.D.P.O. were to be present. The date fixed for hearing the complaint of Fatehpur, Wazirganj and Tenkuppa blocks was 23.8.2007. As it happened the District Magistrate issued another notice preponding the date of hearing to 22.8.2007 at 9 AM at his office at Gaya. Notices were issued to the C.D.P.O. and he was asked to inform the petitioner regarding the change of date for hearing the complaint. It is admitted that the petitioner could get the notice of the said date of hearing only in the 3 evening of 22.8.2007 and as such he was obviously not present in the office of the District Magistrate at 9 AM on 22.8.2007. It is also a matter of record that the C.D.P.O. was not present himself on 22.8.2007 because of late receipt of the notice regarding the change of date. These facts are also reflected in the order terminating the petitioner, dated 28.10.2007.
4. In the aforesaid back ground learned counsel for the petitioner submits that as far as the order, dated 22.8.2007 is concerned, the petitioner obviously did not get the notice and there was violation of principle of natural justice. The petitioner did not have the opportunity to explain her position with respect to the complaint made against her. Counsel for the petitioner also refers to the procedures to be adopted for hearing the complaint. According to Clause 8 of the guide lines laid down for the appointment of Aangan Bari Sevika it has been specifically said that the complaint received from unknown sources are not to be considered at all. The complaint filed alleges that the father-in-law of the petitioner is a Government servant and as such she is not entitled for appointment as Aangan Bari Sevika. The actual complaint was also subject matter of enquiry and it was found that the signature of the person who had filed the complaint did not tally with the signature of the person concerned. It is, therefore, contended that the complaint filed with respect to petitioner‟s appointment ought not to have been considered by the District Magistrate. The fact, however, remain that it is not disputed that the father-in-law of the petitioner is a semi-Government employee 4 and as such this submission on behalf of the petitioner has to be rejected by this court.
5. Referring to sub-clause (3) of clause 8 it is submitted that there is a procedure laid down regarding the manner in which an enquiry has to be conducted with respect to the complaint received. Sub clause (3) envisages that if there is official complaint against the appointed candidate, the enquiry officer will call upon the appointed candidate to bring and produce all documents and then pass a speaking order with respect to the complaint against the candidate.
6. The order impugned, dated 22.8.2007 indicates that the petitioner and the C.D.P.O. were not present at the time of hearing whereas respondent no.7 was present before the District Magistrate. The petitioner‟s service as Aangan Bari Sevika was terminated and the District Magistrate has also directed that the Mukhiya who was concerned with the appointment of Aangan Bari Sevika to file a show cause explaining the circumstances under which the petitioner was appointed.
7. This court does not see any difficulty in setting aside the order, dated 22.8.2007 passed by the District Magistrate terminating the petitioner‟s service as Aangan Bari Sevika on the ground is that it is against the principles of natural justice, as the guide lines itself speaks that a fair opportunity should be given to the concerned candidate so that she can explain the circumstances under which her appointment was made. The glaring illegality in the impugned order is rendered by the fact that the petitioner was not 5 given adequate notice regarding the change of date of hearing. To issue a notice on 20.8.2007 and expect that it would be served within one day to the C.D.P.O. as well as the petitioner who resides at a village and not within the municipal boundary of Gaya is indeed expecting too much and is unreasonable and obviously the norms of natural justice are violated by issuance of such a short notice.
8. Therefore, this court has no difficulty in quashing the order impugned dated 22.8.2007 by which it has been held that the petitioner‟s appointment is illegal because her father-in-law was working in a Semi Government organization and a direction has been given that the next person, i.e. respondent no.7 should be appointed as Aangan Bari Sewika. The petitioner and respondent no.7 would, therefore, have the remedy of appearing before the District Magistrate, Gaya with all the concerned documents and the District Magistrate is directed to pass an order afresh, after considering all the documents produced on behalf of the petitioner and respondent no.7 and in accordance with the guide lines within a period of three months from the date of receipt / production of a copy of this order.
9. The main question in this writ application is whether the guide lines issued by the Welfare Department are unreasonable and unjust. The object of the guide lines are that the Supreme court in order to mitigate the difficulties and the unavailability of benefit to the extremely poor women, adolescent girl and children living below the poverty line has directed that the schemes should be framed for appointment of Aangan Bari Sevika and Aangan Bari Helper 6 (Sahaika) for the purpose of uplifting such women / adolescent girl and children and providing them with basic education and basic nutrition. It is for this purpose that the scheme has been framed and in order to achieve the objects of the scheme the Aangan Bari Sevika and Helpers are appointed. Certain qualifications have been laid down in the guide lines for appointment of Aangan Bari Sevika and helpers. It is required that they should have the qualification of matric pass, if they belong to the upper class and even if they are matric fail and belong to Scheduled caste or scheduled tribe, the candidature of Scheduled caste and Scheduled tribe women would be considered. The age limit has also been defined from 18 to 40 years for the said appointment. It is also provided that while making appointment of Aangan Bari Sevika / helpers, the appointing authority should take into consideration the population of the village and make the appointment of such persons who hail from amongst the majority caste of the inhabitants of a particular village. The main challenge is to the provisions contained in sub-clause (Anga) of clause 3 of the guide lines. I am quoting herein clause 3 which is relevant for this purpose and reads as follows :
3 vk¡xuokM+h lsfodkvksa ds p;u ds fy, vgZrk;sa@'kÙksZa%&
(d) vk¡xuokM+h lsfodk dh U;wure 'kS{kf.kd ;ksX;rk izosf'kdk mÙkh.kZ gSA flQZ vuqlwfpr tkfr@vuqlwfpr tu tkfr ds lsfodkvksa ds fy, U;wure ;ksX;rk izosf'kdk vuqÙkh.kZ gSA ([k) vk¡xuokM+h lsfodk dh mez] p;u gsrq vkgwr vke lHkk dh o"kZ ds izFke tuojh dks U;wure& 18 o"kZ rFkk vf/kdre& 40 o"kZ gksxhA 7
(x) vk¡xuokM+h lsfodk ml Vksyk@xk¡o@egYyk dh LFkk;h fuoklh gksxh] ftl Vksyk@xk¡o@egYyk esa vk¡xuokM+h dsUnz vofLFkr gks] ;kfu mls vk¡xuokM+h dsUnz dh lsok {ks= dk fuoklh gksuk vfuok;Z gSA (?k) vk¡xuokM+h lsfodk Vksyk@xk¡o@egYyk dh cgq gksxhA dqok¡jh yM+fd;ksa dk p;u bl in ds fy, ugha fd;k tk;sxkA lsfodk ,oa mlds ifr dk uke mDr Vksyk@xk¡o@egYyk ds fy, cus ernkrk lwph esa gksuk pkfg,A ernkrk lwph esa uke ugha gksus dh fLFkfr esa lsfodk ,oa mlds ifr dks mDr Vksyk@xk¡o@egYyk ds fuoklh ds fy, pquko vk;ksx dk QksVks izek.k i= ;k p;u gsrq vkosnu tek djus ds fnu rd vapykf/kdkjh }kjk fuxZr vkoklh; izek.k i= (tks N% ekg iwoZ ls igys dk fuxZr u gks) nsuk vfuok;Z gksxkA (M-) yksd lsodksas (eqf[k;k] iapk;r lfefr ds lnL;@okMZ lnL;@ftyk ifj"kn ds lnL; vkfn Lo;a ;k muds fj'rsnkj)] fofHkUu ljdkjh lkefxz;ksa ds foØsrkvksa (tSls tu forj.k iz.kkyh foØsrk] ?kqeUrq fdjklu rsy ds foØsrk (Dealer)] vUrjfoHkkxh;
Mkd[kkuk dehZ (Intra-departmental Post Office Employee bR;kfn) ljdkjh ,oa v)Zljdkjh lsodksa ds fj'rsnkj ;Fkk] csVh@iRuh@iq=o/kw@ikS=o/kw dk p;u bl in ds fy, ugha fd;k tk;sxkA
(p) lsfodk ,oa lgkf;dk vkil esa fdlh izdkj ls laca/kh@fj'rsnkj ugha gksaxs] ;Fkk lkl&cgq] uun&HkkHkh] cgu ,oa Hkrhth vkfnA (N) fo/kok mEehnokj (llqjky@ek;dk esa jg jgh gks) dks vius ifr dk e`R;q izek.k i= rFkk iqufoZokg ugha djus laca/kh eqf[k;k@okMZ lnL; ('kgjh {ks=) dk izek.k i=] vuqyXud „d‟ esa tek djuk vfuok;Z gksxkA blh izdkj ifjR;Drk mEehnokj dks Hkh vius ifjR;Drk gksus dk eqf[k;k@okMZ lnL; ('kgjh {ks=) ls izkIr izek.k i= vuqyXud „[k‟ esa tek djuk gksxkA
(t) vk¡xuokM+h lsfodk ds :i esa p;fur gksus okyh efgyk dks 'kkjhfjd ,oa ekufld :i ls LoLFk gksuk pkfg;s ,oa mls dksbZ xaHkhj Nwr dh chekjh ugha gksuh pkfg;sA 8 p;fur lsfodk dks ,d lIrkg ds vUnj bl vk'k; dk izek.k i=] ljdkjh fpfdRld }kjk fuxZr] izLrqr djuk gksxk] rHkh mUgsa euksu;u (Nomination) i= fuxZr fd;k tk;sxkA
10. From reading the clause 3 Anga it would appear that there is a bar imposed to the appointment of persons who are related to the Mukhiya, member of a Panchayat Samiti, member of the Board, member of Zila Parishad etc. or their relations. Apart from this there is also a bar in appointment of Aangan Bari Sevika if they are related to the holders of licence under the public distribution system, dealers of kerosene oil and persons working in intra-departmental Post Office etc. and also such persons who are related to persons in Government service, e.g. daughter, wife, daughter-in-law, grand daughter-in-law.
11. Counsel for the petitioner challenges sub-clause (Anga) of clause 3 and submits that the provisions made therein is unreasonable and arbitrary and they bear no nexus with the object of the scheme. This court has been called upon to decide whether the sub-clause Anga of clause 3 of the guide lines for appointment of Aangan Bari Sevikas is justifiable, reasonable and in accordance with the provisions of Article 14 of the Constitution of India.
12. The fundamental right of equality under Article 14 has been so construed as to make the concept of reasonableness and non-arbitrariness prevade the "entire constitutional scheme as a golden thread running through the whole of the fabric of the Constitution."
13. The bar imposed in the guide lines is in fact hit by Article 14 of the Constitution. There may be a reasonable 9 classification for making certain law. In order to pass the test of reasonable classification, two conditions must be fulfilled, namely (i) that the classification must be founded on intelligible definition which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved.
14. In this contest I may refer to the case of Baliram Prasad vs. Union of India, AIR 1997 SC 637. The petitioner of that case was aggrieved, amongst other reasons, by the action of the respondents, as they had denied him a job for working in the same Post Office as Extra Department Branch Post Master on the ground that his cousin brother was working on a lower post of Extra Department Delivery Assistant. The authorities had taken a decision which reads as follows :
"Employment of near relatives in the same office to be avoided. Instances have come to light where near relatives have been appointed to work as E.D. BPM, E.D., D.A. or E.D. Mail carrier in the same office. As this is fraught with the risks of fraud etc., this should be avoided."
15. The Apex court observed "that there can be appropriate procedures adopted for detecting such frauds and bringing the guilty to book or even for effectively checking such tendencies by having appropriate vigilance machinery. But to refuse to appoint a more meritorious candidate only on the ground that his cousin brother was working in the same Post Office would, in our view, be totally an arbitrary exercise of power which cannot be countenanced on the touchstone of Article 14 of the Constitution of India." 10
16. In a case recently decided by the Supreme court in the matter of B.S.N.L. vs. Bhupendra Minhas, (2008) 11 SCC 273, the court was called upon the decide whether the clause to grant contracts by inviting tenders containing the disqualification clause which disentitled an intending tenderer to submit tender whose near relative is working in any units of the appellant B.S.N.L. is justified. The Supreme court held that the courts would not interfere with administrative policy decision except on the ground that such decision is "arbitrary, discriminatory, malafide, or actuated by bias." Ultimately, considering the objections for imposing the ban, which was a relative working for B.S.N.L. may influence the decision making process, the Apex court held that a person who is working on a Class III or Class IV can hardly be in a position to do so. It can certainly be provided "that other things being equal, preference will be given to those whose relatives are not in employment in any unit." Thus the Supreme court by the aforesaid decision kept in mind the object to be achieved to introducing a particular condition.
17. This court may approach this clause by making a distinction between sub clause Anga of Clause 3. It may be noted that whereas the Ist and 2nd part of the clause deal with such persons who are elected representatives, or belong to Government or Semi Government organizations and by virtue of the posts they hold necessarily reside in the village / block. A bar to appointment of relatives of such persons may to some extent be justified as they may exercise influence and by virtue of the post they hold in the selection 11 process and / or influence the functioning of Aangan Bari Sevika‟s appointed at the village level / block level. To illustrate Mukhiya and members of Panchayat Samiti are very much part of the selection process, as Aangan Bari Sevikas are appointed in Aam Sabha held by the Mukhiya and, therefore, the clause that has been inserted may, be justified on the principle that justice should not only be done, but appear to have been done.
18. This court not only finds that there is no nexus between sub clause „Anga‟ of clause 3 with the objects of the scheme, but also notices whereas, there appears to be some justification for condition Clause 3 (Anga) referred to above which also creates a bar to the appointment of relations of certain category of employees the last part of Sub clause Anga of Clause 3 bears no nexus with the first part of the Clause. The blanket bar created at clause 3 (Anga) prohibiting appointment of relative working in Government service is not justifiable. Such a total bar to the appointment of Aangan Bari Sevika/Helper is hit by Article 14 of the Constitution of India. Undoubtedly the Government has the power to frame guidelines to regulate the functioning and appointment of Aangan Bari Sevikas / Helpers, but the guidelines must be passed in manner which bear nexus with the object sought to be achieved.
19. In fact if this bar was restricted to relations holding permanent Government posts in the village, such as teacher in village school, or a permanent posting of any sort in the village, it would be in consonance with the first and second part of clause 3 „Anga‟, which 12 this court finds is a reasonable classification, but a total ban to appointment of a person as Aangan Bari Sevika is not a reasonable classification. To take an example, if a relative is working, say in State of U.P. or as in the present case, where the father-in-law is working in the Municipal Corporation at Gaya, can hardly be treated to be a reasonable ground for disqualifying a candidate.
20. I, therefore, strike down part of sub clause „Anga‟ of clause 3 of the guidelines framed by the Government in relation to functioning and appointment under the Anganbari scheme which imposes a blanket bar for appointment of relatives of the Government servant and direct the Secretary, Welfare Department, to impose a ban or a qualification which is reasonable and within the ambit of Article 14 of the Constitution.
21. This order is restricted to the petitioner and will be prospective and no party in concluded transactions of appointment to said posts can take the benefit of the order.
22. This writ application is allowed. The order may be communicated to the Secretary, Welfare Department, Government of Bihar, Patna.
Patna High Court, (Sheema Ali Khan, J.) May, 6th 2010, AFR / Haque.