Bula Dey vs The State of West Bengal

Sahidullah Munshi, J.—This writ petition has been filed praying for an order, commanding the respondents not to give any further effect to the impugned memo being No. 172/ICD/Qns dated 21st June, 2007 issued by the Child Development Project Officer being Annexure P-6 of the writ petition. By the said memo the Child Development Project Officer, Dubrajpur ICDS, Birbhum, informed the petitioner that as she suppressed her higher qualification while appearing at the viva voce test for the post of Anganwadi worker under Dubrajpur ICDS project, although, graduates were ineligible for the said post, by the said letter she was asked why administrative steps would not be taken against her. The petitioner has stated that she belonged to Other Backward Classes and in pursuance of a notification vide memo No. 175 ICD/QNB dated 11th July, 2006 issued by the Child Development Project Officer, Dubrajpur ICDS project inviting application for Anganwadi Karmee and Sahayika, she submitted an application in prescribed format. Copies of the notification and the guidelines to fill up the application for Anganwadi Karmee have been annexed as Annexures P-3 and P-4 respectively to the writ petition. One of the conditions have been mentioned in the guidelines that the candidates having graduated were not eligible for the post. It has been stated that the Child Development Project Officer, Dubrajpur ICDS project, Birbhum, vide his memo No. 162/ICD/Qns dated 14th June, 2007 intimated the petitioner that she was appointed for the post of Anganwadi worker under Dubrajpur ICDS project, Birbhum at Sishu Vidyapith, ward No. 14. After receiving the appointment letter dated 14th June, 2007 the petitioner was served with a memo being No. 172/ICD/QNS dated 21st June 2007 issued by the Child Development Project Officer, Dubrajpur ICDS project, Birbhum, whereby she was threatened that administrative steps would be taken against her for her non-disclosure of higher qualification during the viva voce test for the aforesaid post. It has been alleged that the Principal of Krishnachandra College, Hatempur, Birbhum, reported to the Child Development Project Officer that the petitioner graduated from that college. It was intimated that by suppressing her higher qualification she appeared in the selection test for the post of Anganwadi worker, although, graduates were ineligible for the post. It is stated that, although, concerned respondent issued appointment letter to the petitioner but in view of the aforesaid memo dated 21st June, 2007 the petitioner was not allowed to join her duty. The learned advocate for the petitioner submits that, although, higher qualification was a bar at the relevant time but subsequently, Government has withdrawn the said bar. He submits that apart from the withdrawal by the Government this Hon''ble Court has also held that higher qualification is no bar for the Anganwadi Karmee. Learned advocate has stated in his writ petition that a similarly circumstanced lady, namely, Sanchita Sen''s appointment as an Anganwadi worker was terminated having had pressed higher qualification but on a challenge to the same by an order dated 16th May, 2012 passed in W.P.10240(W) of 2012, this Hon''ble Court quashed the order of termination and her appointment was revived. A copy of the said order has been annexed by the writ petitioner as Annexure P-7. The said order refers to a Special Bench decision in the case of Rina Dutta and Others Vs. Anjali Mahato and Others, . This Hon''ble Court held-

"Having heard the learned counsel for the parties, we first take up the preliminary consideration urged on behalf of the writ petitioners that the appellants and other private respondents had suppressed the material fact that they were graduates. It is true that the Scheme of 1985, under which the advertisement was issued, provided that the advertisement should state that information or furnish false information particularly regarding her age, residence and educational status, her appointment may be terminated at any time. However, this was not mentioned in the advertisement and the matriculates are eligible to apply and that the graduate women are not meant for this post. This sentence in the advertisement could hardly be considered as a prohibition against graduate women applying for the post nor can it be treated as a ground to disqualify or penalize a graduate woman for not having mentioned her graduate qualification in the application."

From the decision as above it appears that non-mentioning of the higher qualification does not disqualify or penalize a graduate woman for the concerned post. The learned advocate for the petitioner has also relied on a judgment in the case of Madhuri Roy and Others Vs. State of West Bengal and Others, . By citing the said judgment the learned advocate draws the attention of the Court to paragraph 11 which says that the State Government being the employer can make a rule providing disqualification for candidate possessing higher qualification than the prescribed qualification. But since the reasonableness of such guidelines has been challenged the State Government being the employer should justify why the said restriction mentioned in the advertisement should be regarded as a valid restriction. This Hon''ble Court observed that the State Government subsequently modified its earlier guidelines relating to qualification of Anganwadi Karmee and in the modified guidelines it has been made clear that all graduates and higher qualified candidates would be eligible for the post of Anganwadi Karmee and further it has been mentioned that there will be no bar on educational qualification for a candidate applied for a post of Anganwadi worker. Para 11 of the said judgment is quoted below:

"The State Government being the employer can make a rule providing disqualification of candidates possessing higher qualification than the prescribed qualification. In the present case, said provision as specifically mentioned in the guidelines, has been challenged by the appellants on the ground of reasonableness. Therefore, the State Government being the employer should justify why the aforesaid restriction mention in the advertisement and the appointment letter should be regarded as a valid restriction. As a matter of fact, the State Government subsequently modified its earlier guidelines relating to the qualification of Anganwadi Karmee. In the modified guidelines it has been made clear that all graduate and higher qualified candidates would be eligible for a post of Anganwadi Karmee. It has also been specifically mentioned that there will be no bar on educational qualification for a candidate applied for a post of Anganwadi Worker."

The Hon''ble Division Bench while deciding the aforesaid case also took note of the decision of the Special Bench passed in Rina Dutta & Ors. (supra). The learned advocate has also relied on another judgment in the case of Bharati Ghorai Vs. The State of West Bengal, . In the said judgment while dealing with the termination of a Anganwadi worker on the ground of suppression of her educational qualification this Court held that termination of the appointment of the petitioner as Anganwadi worker was not sustainable in the eye of law. In reply, the learned advocate for the respondent submits that he does not make any objection with regard to the higher qualification and he admits that at present there is no bar on higher qualification but he submits that at the relevant point of time in 2007 neither the Special Bench decision saw the light of the day nor was there any withdrawal of the bar from the end of the State. Therefore, according to him, the petitioner suffers from the defect of suppression of material fact at the relevant time when the viva voce test was held and on that ground the writ application should be dismissed.

Having heard the submissions made by the learned advocates appearing for the respective parties and upon consideration of the materials on record I hold that it will be too technical to hold that the petitioner has made suppression of material fact while appearing for the selection test in 2007 by not mentioning that she had already graduated. Since there is no restriction and/or bar for a higher qualified candidate to opt for the post of Anganwadi worker in the present day and since this has been approved by this Hon''ble Court that this bar will not disqualify a candidate it will be just and proper for the State respondents not to give any effect or further effect to the impugned memo dated 21st June, 2007 (Annexure P-6) and since the petitioner was given appointment letter by a memo No. 162/ICD/QNS dated 14th June, 2007, the petitioner should be allowed to join her post on the basis of the said appointment letter.

In view of the observation made hereinabove the impugned memo No. 172/ICD/QNS dated 21st June, 2007 cannot be sustained in law and is liable to the set aside and the same is hereby set aside.

The respondent authorities, particularly the Child Development Project Officer, respondent No. 4, shall allow the petitioner to work as an Anganwadi worker under Dubrajpur ICDS Project, Birbhum at Sishu Vidyapith, Ward No. 14 and to allow her to join the said post without any further delay.

The writ petition is allowed.

There will be no order as to costs.

In view of the order passed as above, the C.A.N. being No. 3033 of 2014 stands disposed of.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.