Rajasthan High Court - Jodhpur
Smt. Kaushalya Chouhan vs State Of Rajasthan ... on 15 January, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:2604-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 336/2022
Smt. Kaushalya Chouhan W/o Mahendra Singh Chouhan, Aged
About 30 Years, R/o Gram Panchayat Butiwas, Tehsil Raipur,
District Pali (Rajasthan).
----Appellant
Versus
1. State Of Rajasthan, Through The Secretary To The
Government, Women And Child Development
Department, Rajasthan Secretariat, Jaipur.
2. The Child Development Project Officer, Tehsil Raipur,
District Pali (Rajasthan).
3. The Gram Panchayat, Panchayat Samiti Butiwas, Tehsil
Raipur, District Pali (Rajasthan) Through Its Sarpanch.
4. The Deputy Director, Integrated Child Development
Services, Pali (Rajasthan).
----Respondents
For Appellant(s) : Mr. Avin Kumar Chhangani
Ms. Apeksha Chhangani
For Respondent(s) : Dr. Praveen Khandelwal, AAG with
Mr. Sunil Dutt Chawariya
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Order 15/01/2025
1. The present appeal has been filed by the appellant - Smt. Kaushalya Chouhan with the following prayer:-
"It is, therefore, humbly prayed that this special appeal may kindly be allowed and the impugned order dated 10.03.2022 (Annex.1) may kindly be quashed and set aside and the writ petition may kindly be allowed in toto."(Downloaded on 14/02/2025 at 09:44:23 PM)
[2025:RJ-JD:2604-DB] (2 of 7) [SAW-336/2022]
2. By the order dated 10.03.2022, passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.3776/2022, the writ petition filed by the petitioner - Smt. Kaushalya Chouhan (appellant herein) was dismissed finding no substance. The said order is under challenge in the present appeal.
3. Before filing S.B. Civil Writ Petition No.3776/2022, the appellant-petitioner had earlier preferred a writ petition being S.B. Civil Writ Petition No.13217/2018, questioning the validity of the recruitment on the post of Anganwadi Worker and claiming herself to be educationally better qualified than the other candidates, which was dismissed by this Court vide order dated 30.08.2018 which reads as under:-
"1. Learned counsel for the parties agree that the controversy has been decided by the Hon'ble Division Bench of this Court in Bidami Devi Vs. State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.663/2016 decided on 15.09.2016), is applicable on the same facts. The relevant portion reads as under:
"In (2007) 11 SCC 681 (State of Karnataka v. Ameerbi) the question related to whether an application by an Anganwari worker was maintainable before the State Administrative Tribunal. It does not lay down any absolute proposition of law that a writ petition was not maintainable at all under Article 226 by Anganwari worker under any circumstances. It only holds that they do not occupy a civil post under the government. In this context the observations as follows are considered relevant :-
"13. The posts of anganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and anganwadi workers but it is another thing to say that they are holders of civil post.
33. The decision, therefore, is an authority for the proposition that those employees who come within the meaning of Article 12 of the (Downloaded on 14/02/2025 at 09:44:23 PM) [2025:RJ-JD:2604-DB] (3 of 7) [SAW-336/2022] Constitution of India are not necessarily government servants. A fortiori the State in terms of a scheme may exercise control over a section of the persons working but thereby only, they do not become entitled to protection under Article 311 of the Constitution of India."
The remedy under Article 226 will however be available subject to first availing the alternative remedy as provided under the Government guidelines and circulars.
The appeal is disposed."
2. In light of the aforementioned precedent law, the present writ petition is disposed of in the same terms, with the direction to the respondents to decide the appeal of the petitioner within a period of sixty days from today. It is made clear that if any appointment on the post of Anganwadi Worker at Gram Panchayat Butiwas, District Pali is made in pursuance of advertisement in question, the same shall be governed (remain subject to) the appellate order passed by the respondents.
4. The respondents - appellate authorities, vide order dated 18.02.2022, came to the conclusion that when the marks obtained by the petitioner and the selected candidate were equal, the selected candidate, being higher in age, was required to be given the higher merit, therefore, Smt. Minakshi Kumawat was rightly selected on the post of Anganwadi Worker. Against the said order, the appellant-writ petitioner preferred the writ petition being S.B. Civil Writ Petition No.3776/2022 before this Court. The said writ petition was dismissed by the learned Single Bench vide order dated 10.03.2022 with the following observations:-
"I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.
So far as the averments made regarding issuing the advertisement during the pendency of the appeal is concerned, though it is true that such an advertisement should not have been issued by the respondents, however, the relief to the (Downloaded on 14/02/2025 at 09:44:23 PM) [2025:RJ-JD:2604-DB] (4 of 7) [SAW-336/2022] petitioner essentially would depend on the outcome of the appellate order passed by the respondents.
A perusal of the order would indicate that based on the stipulation in the Circular, the appellate authority came to the conclusion that when the marks obtained by the petitioner and the selected candidate were equal, the selected candidate being higher in age was required to be given the higher merit and was rightly selected. It is not in dispute that the Circular dated 9/11/2016 provides for such a stipulation.
So far as the validity of said stipulation is concerned, though the learned counsel attempted to question the validity of the stipulation, however, could not suggest any other mean to determine the merit between the two candidates having equal marks and also could not make good his challenge to the said Circular.
In view of the above, as the order passed by the appellate authority cannot be faulted, issuing of advertisement also cannot be faulted on any ground. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed"
5. Aggrieved against the order dated 10.03.2022, passed by the learned Single Judge, the writ petitioner preferred the present appeal.
6. Learned counsel for the appellant submits that during the pendency of the consideration of the appeal, the respondents have gone ahead and issued fresh advertisement on 23.11.2021 on the post of Anganwari Worker, which fell vacant on the demise of Smt. Minakshi Kumawat (contesting private respondent in S.B. Civil Writ Petition No.13217/2018, earlier filed by the appellant-writ petitioner). The said selected candidate Smt. Minakshi Kumawat expired before issuance of the advertisement dated 23.11.2021. Therefore, instead of issuing fresh advertisement, the appellant - writ petitioner should have been offered the appointment on the said post of Anganwari Worker.
(Downloaded on 14/02/2025 at 09:44:23 PM) [2025:RJ-JD:2604-DB] (5 of 7) [SAW-336/2022]
7. Dr. Praveen Khandelwal, learned Additional Advocate General appearing for the respondents, on the other hand, submitted that the advertisement dated 23.11.2021 has already culminated into selection of fresh Anganwari Worker. The matter does not require any interference by this Court at this stage when the appointments have been made and the recruitment has already been completed.
8. We have heard learned counsel for the appellant as well as learned Additional Advocate General and perused the material available on record.
9. This Court, after hearing learned counsel for the parties, finds that the respondent without disposing the appeal filed by the writ petitioner, issued the advertisement dated 23.11.2021 for filling up the vacancies arose on account of death of Minakshi whose selection was challenged in the appeal.
10. The direction of this Court in the previous writ petition i.e. S.B. Civil Writ Petition No.13217/2018 vide order dated 30.08.2018 shows that a direction was given to dispose of the appeal within 60 days from the date of order and it was made clear that any appointment on the post of Anganwari Worker in the Gram Butiwas, District Pali, which was made in pursuance of the advertisement in question shall remain subject to the order passed by the respondents in the appeal. Unfortunately, instead of disposing of the appeal prior to the issuance of fresh advertisement, the respondents - appellate authorities have disposed of the appeal on 18.02.2022, which is subsequent to the fresh advertisement dated 23.11.2021.
(Downloaded on 14/02/2025 at 09:44:23 PM) [2025:RJ-JD:2604-DB] (6 of 7) [SAW-336/2022]
11. The writ petitioner preferred the writ petition, challenging the appellate order dated 18.02.2022 as well as the fresh advertisement dated 23.11.2021. While challenging the subsequent advertisement, the petitioner had not made the candidates party to the writ, who were selected in pursuance of the second/fresh advertisement. Thus, this Court cannot set aside such advertisement without the fresh selected candidates as party to the proceeding.
12. The order passed by the appellate authority shows that it simply mentions the procedure adopted in selecting Minakshi. As per the details given by the appellate authority, the writ petitioner and Minakshi have got equal marks. Since, Minakshi was of more age than the petitioner, the respondents have selected Minakshi in terms of the circular No.प.11(3)10/Mo/ICDS/ 2011/150819. The same reason was not assigned while dismissing the appeal except the reference of such circular. Further, the writ petitioner had not challenged the circular No.प.11(3)10/Mo/ICDS/ 2011/150819 which prescribes the mode of selection in case both the candidates have got equal marks and it simply mentions the issuance of fresh notification/advertisement in pursuance of death of Minakshi Kumawat.
13. We feel that at this belated stage, we cannot interfere in the subsequent advertisement on account of accrual of third party rights. However, we direct the respondent-authorities to consider the case of the appellant-writ petitioner in the event of a vacancies arose for the post of Anganwari Worker in Gram Butiwas, District Pali in future strictly in accordance with law. (Downloaded on 14/02/2025 at 09:44:23 PM)
[2025:RJ-JD:2604-DB] (7 of 7) [SAW-336/2022]
14. The special appeal is accordingly disposed of (MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J 79-Ramesh/-
(Downloaded on 14/02/2025 at 09:44:23 PM) Powered by TCPDF (www.tcpdf.org)