Jharkhand High Court
Sepali Devi vs State Of Jharkhand on 16 January, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 7804 of 2011
Sepali Devi, wife of Chhathu Singh Munda, resident of Village
Marchadih, P.O. Etramhatu, P.S. Sonahatu, District Ranchi,
Jharkhand ... ... Petitioner
Versus
1. State of Jharkhand
2. Director, Department of Social Welfare, Government of
Jharkhand, Ranchi
3. Deputy Commissioner, Ranchi
4. Deputy Development commissioner, Ranchi
5. District Programme Officer, Ranchi
6. Child Development Project Officer, Sonahatu, P.O. & P.S.
Sonahatu, District Ranchi
7. Smt. Brihaspati Devi, wife of Sri Nivaran Mahto, resident of
Village Marchadih, P.O. Etramhatu, P.S. Sonahatu, Distict Ranchi,
Jharkhand ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Diwakar Upadhyay, Advocate For the Respondents : Mr. H. K. Mahto, Advocate : Mr. Shashank Shekhar, Advocate
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10/16.01.2023
1. Heard the learned counsel for the parties.
2. This writ petition has been filed for the following reliefs: -
"a. For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of certiorari for quashing the order dated 27.08.2010 passed by the Deputy Commissioner, Ranchi in Miscellaneous Appeal Number 14(R) 28/2009-10 whereby and whereunder the respondents have passed order for selection/appointment of the respondent number-7 cancelling the appointment of the petitioner, setting aside the order dated 17.11.2008 in memo number 1212 of District Programme Officer, Ranchi.
b. For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of mandamus commanding upon the respondents to consider the case of the petitioner for appointment/selection on the post of Aanganbari Sevika as per the rules, law and guidelines as she comes within the zone of consideration and has been selected by the Gram Sabha fulfilling all the requisite qualification for appointment on the post of Aanganbari Sevika.
c. For issuance of an appropriate writ(s)/order(s)/direction(s) to the respondent authorities 2 to act upon the result declared in the Gram Sabha selecting the petitioner as Aanganbari Sevika.
AND/OR d. Pass such other writ/writs, order/orders, direction/directions as Your Lordship may deem fit and proper in the facts and circumstances of the case and in accordance with law."
Arguments of the petitioner
3. Learned counsel for the petitioner submits that the impugned order dated 27.08.2010 has been passed pursuant to order passed by this Court dated 22.06.2009 in W.P. (S) No. 177/2009, whereby the Deputy Commissioner was directed to pass a speaking order after granting an opportunity of hearing to the petitioner of the said case, Brihaspati Devi, who is the private respondent No. 7 in the present case.
4. The learned counsel submits that upon perusal of the impugned order, it is apparent that the petitioner is non-matric, but belongs to scheduled tribe category and her name was recommended by Aam Sabha for being appointed to the post of Aanganbari Sewika. He submits that so far as the private respondent is concerned, she was matriculate belonging to backward category. The learned counsel submits that while passing the impugned order, the Deputy Commissioner has recorded that the present petitioner was not belonging to the community of the majority amongst the beneficiaries and while recommending the name of the present petitioner, the guidelines in connection with Aanganwari Sewika was violated. The learned counsel submits that, at the same time, the Deputy Commissioner directed the private respondent to be appointed to the post of Aanganbari Sewika whose name was never recommended by Aam Sabha, though she had also participated in the selection process in Aam Sabha.
5. The learned counsel submits that once the approval to the name of recommended candidate by Aam Sabha was turned down, the Deputy Commissioner could not have directed for appointment of other candidate whose name was never recommended by Aam Sabha though she had participated in the selection process. The learned 3 counsel submits that the Deputy Commissioner ought to have asked for conduct of fresh Aam Sabha. The learned counsel submits that in such circumstances, the impugned order directing appointment of the private respondent as Aanganwari Sewika is illegal and not in accordance with law.
6. The learned counsel has also referred to the subsequent Aam Sabha dated 27.01.2011 and he submits that from perusal of the proceeding sheet, it appears that certain direction was issued by the Deputy Commissioner to select the private respondent in Aam Sabha although the name of the private respondent was not acceptable to Aam Sabha and her name was refused to be recommended.
Arguments of the respondents
7. Learned counsel appearing on behalf of the private respondent, on the other hand, has submitted that the petitioner did not satisfy the required qualification of matriculate and was not belonging to the majority community and therefore, the Deputy Commissioner has rightly passed the order. The learned counsel has referred to clause 11 (kha) and (ga) of Annexure-A to the counter-affidavit with regard to prescribed circular for selection of Aanganwari Sewika and has also referred to the required minimum qualification at clause 7 of the circular.
8. However, it is not in dispute even from the side of the private respondent also that the name of the petitioner was recommended by Aam Sabha for selection and at any stage, the Selection Committee present on the spot, had not passed an order of rejection, so far as the candidature of the petitioner is concerned.
9. Learned counsel appearing on behalf of the State has supported the submissions advanced on behalf of the private respondent.
Rejoinder of the petitioner
10. In response, learned counsel for the petitioner has submitted that there are certain relaxations with regard to required qualification for Schedule tribe /Schedule caste category candidate as per the circular annexed by the State in the counter-affidavit.
4Findings of this Court
11. After hearing the learned counsel for the parties and going through the materials available on record, it is not in dispute that pursuant to order dated 18.04.2007 passed by Deputy Development Commissioner, an order dated 24.04.2007 (Annexure-1) was issued by the Child Development Project Officer (C.D.P.O.) for conducting Aam Sabha and consequently, Aam Sabha was held on 26.05.2007 for appointment on the post of Aanganbari Sewika.
12. Two persons, namely, Sefali Devi (petitioner herein) as well as Brihaspati Devi (Respondent No. 7) had applied and the petitioner was declared selected and thereafter, her name was sent for approval. Even the Gram Pradhan certified that the petitioner has been selected as Aanganbari Sewika and a letter to that effect was also issued dated 06.06.2007 (Annexure-4). However, when the result was declared by the office of C.D.P.O., the private respondent was declared selected as Aanganbari Sewika.
13. Admittedly, the petitioner belongs to schedule tribe category and is non-matric and the respondent no.7 belongs to backward class category and is matriculate. The majority of beneficiaries of the concerned Aanganbari kendra belong to backward class category.
14. The following sequence of events emerge from the records including the impugned order: -
a. 26.05.2007- Aam Sabha was conducted in which petitioner as well the private respondent had participated. b. The petitioner, belonging to schedule tribe category, was selected and recommended in spite of the fact that the respondent no.7 who was the candidate from amongst the majority of beneficiaries i.e., backward class was eligible and available.
c. 26.05.2007- The name of the petitioner was sent for confirmation.
d. 01.06.2007- the District Program Officer approved the name of the respondent no.7 although the Aam Sabha had recommended the name of the petitioner.5
e. 30.11.2007- The District Program Officer, cancelled the appointment of the respondent no. 7 and approved the name of the petitioner.
f. The respondent no.7 filed a writ petition being WPS No. 6603/2007 challenging order dated 30.11.2007. In the writ petition, the grievance of the present respondent No. 7 was that her appointment has been cancelled by cryptic, mechanical and non-speaking order and also in violation of the principles of natural justice.
g. 21.01.2008- In the aforesaid background, the order of removal of respondent No. 7 dated 30.11.2007 was set- aside in the writ proceedings and the matter was remitted to the Deputy Commissioner, Ranchi to consider her explanation/reply and other aspects of the matter afresh and to pass a speaking order in accordance with law. h. 17.11.2008 -Pursuant to the order passed in W.P. (S) No. 6603/2007, speaking order was passed and the appointment of the present petitioner was approved which was followed by letter dated 17.11.2008 issued by the District Program Officer and thereafter, the petitioner continued to work.
i. 22.06.2009 -Thereafter, the private respondent No.7, filed another writ petition being W.P. (S) No. 177/2009 (Brihaspati Devi vs. State of Jharkhand & Others), and the said writ petition was disposed of vide order dated 22.06.2009 by directing the Deputy Commissioner, Ranchi to decide afresh after giving an opportunity of hearing to the parties.
j. 27.08.2010 - pursuant to order passed in W.P. (S) No. 177/2009, the present impugned order has been passed after hearing the petitioner as well as the private respondent no.7.
15. As per the impugned order, the petitioner is a non-matric schedule tribe candidate, but her name was recommended in Aam 6 Sabha and the private respondent No. 7 is matriculate belonging to backward category, but her name was never recommended although she belongs to the majority amongst the beneficiaries i.e., backward class community and was also matriculate. The Deputy Commissioner held that the guidelines of the State in the matter of appointment of Aanganbari Sewika has been violated while recommending the name of the petitioner and consequently directed appointment of the private respondent no.7 as Aanganbari Sewika.
16. The circular, which has been heavily relied upon by the learned counsel for the respondents annexed with the counter-affidavit, clearly provides at clause 11 (Kha) that the selection process before the Aam Sabha for Aanganbari Sewika/Sahayika will consider for only those candidates who have the requisite qualification; Aam Sabha shall recommend the name either unanimously or through majority. Upon such selection process, the recommended candidate will be issued provisional appointment letter by Aam Sabha. Clause 11 (ga) provides that if the Aam Sabha does not recommend such candidate having requisite qualification, then the Selection Committee on the spot will reject such name and would request the Aam Sabha to consider other names. It also provides that if Aam Sabha does not recommend candidate having requisite qualification, then the Selection Committee shall take its own decision, but the Selection Committee will give reasons as to why the recommendation of Aam Sabha is not acceptable. The constitution of Selection Committee itself has been provided under clause-9 of the aforesaid circular no. 585 dated 02.06.2006 (Annexure-A to the counter-affidavit) which consist of C.D.P.O. as the Chairman and a number of other members. Thus, the procedure for selection of Aanganwari Sewika has been elaborately dealt in the aforesaid circular and it clearly provides that the name of ineligible candidate can neither be considered nor be recommended and in case, such name is recommended, appropriate decision will be taken by the Selection Committee by a reasoned order as to why the recommendation of the Aam Sabha is not acceptable/valid.
7It is also important to note that as per the aforesaid circular, the Aanganbari Sewika is required to belong to the majority amongst the beneficiaries and minimum qualification is matric pass, but there is relaxation for schedule caste and schedule tribe candidate and they could be non- matriculate.
Further, as per the said circular, the question of appointment of candidate belonging to category, other than belonging to the majority amongst the beneficiaries, arises only when appropriate eligible candidate belonging to the majority amongst the beneficiaries is not available. In such circumstances priority is required to be given in following sequence: -
SC/ST Extremely Backward Class Backward Class Minority General Category.
Thus, as per the circular, as long as an eligible candidate belonging to the majority amongst the beneficiaries is available, there is no question of appointment of a person belonging to any other class/category.
17. In the present case, the respondent no.7 admittedly belongs to the majority amongst the beneficiaries and was eligible in all respect, the Deputy Commissioner, in the impugned order has held that the petitioner belonging to other category i.e., schedule tribe was not eligible to be appointed as Aanganbari Sewika for the concerned center and consequently directed that the respondent no.7 be appointed as Aanganbari Sewika.
18. This Court is of the considered view that the reason assigned by the Deputy Commissioner while holding that the petitioner was not eligible was in consonance with the circular of the State Government.
The circular clearly provides that the question of appointment from other category arises only when an eligible candidate belonging to the majority amongst the beneficiaries is not available. In the present case, the respondent no.7 was the available eligible candidate belonging to 8 the majority amongst the beneficiaries and therefore there was no question of approval of the appointment of the petitioner belonging to other category i.e., schedule tribe. The proceedings of the Aam Sabha also shows that only two candidates had participated in the selection process for Aanganbari Sewika i.e., the petitioner and the respondent no.7. The Selection Committee had recommended the name of the petitioner only under the pressure of villagers although the villagers were told and informed by the selection committee that the name of the respondent no.7 was to be recommended as the respondent no.7 belonged to the majority amongst the beneficiaries. Thus, the recommendation of the name of the petitioner by Aam Sabha/Selection Committee, instead of recommendation of the name of the respondent no.7, was contrary to the circular No. 585 dated 02.06.2006. In view of the aforesaid findings, this Court does not find any illegality or perversity in the impugned order passed by the Deputy Commissioner, Ranchi which holds that the petitioner was not eligible for consideration in the selection process and holding that the respondent no.7 was eligible for appointment not only in terms of the required qualification but also in terms of the fact that she belonged to the majority of the beneficiary community. Consequently, the Deputy Commissioner has rightly set-aside the order dated 17.11.2008 contained Memo No. 1212 of District Programme Officer, Ranchi and directed for appointment of the respondent no. 7 as Aanganbari Sewika for the concerned Aanganbari Kendra.
19. This writ petition is accordingly dismissed.
20. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Mukul