Khalida Akhter vs State of J&K and Others

Mohammad Yaqoob Mir, J.—Respondent No. 4 - District Programme Officer (ICDS), Pulwama, vide advertisement notice, has invited

applications from eligible female candidates for engagement as Anganwadi Workers on honorarium basis for Anganwadi Centers in various

Mohallas of Punch Constituencies/wards of ICDS Project Pulwama/Pampore/Keller/Shopian/Kakapora/Tral in District Pulwama and Shopian.

Last date for receipt of the applications was 27.04.2008. Amongst others, petitioner being a handicapped person, had also applied for being

considered for engagement as Anganwadi Worker in Anganwadi Center, Buchoo Bala of Panchayat/ward Buchoo.

Selection Committee comprising of District Social Welfare Officer (Convener), Child Development Project Officer (Member Secretary), Block

Medical Officer (Member) and Block Development Officer (Member), on proper assessment of all candidates, who had applied for being

engaged as Anganwadi Worker in Anganwadi Center Buchoo Punch/Ward No. 262-A, have prepared the merit list. Petitioner, noticing her

position to be inferior in merit has laid claim for being engaged as being physically handicapped. Sensing that she may not get favourable

consideration on such count has filed the instant writ petition projecting that being 40% handicapped person, in terms of Reservation Rules, she

may be directed to be engaged until then restraint order may be issued as against selection of any other person.

Vide detailed order dated 15.03.2011, it has been observed by this Court that Anganwadi Worker is not a civil post under the Government.

Reservation Act and Rules made thereunder, may not be attracted. In case same are required to be applied then Government has to take a policy

decision. In order to ensure that uniform treatment is meted to all the eligible candidates, Government needs to take a policy decision as to whether

Reservation Act and Rules are to be made applicable to the Anganwadi Workers as well. Respondent No. 1 was directed to file affidavit in the

light of the observations made.

In the reply affidavit filed on 31.05.2011, it has been specifically pleaded that Reservation Act and Rules are not applicable to the Anganwadi

Workers because Anganwadi Worker is not a civil post and the Government has not framed any policy for engagement of Anganwadi Worker.

The Government order No. 07 SW of 2010 dated 18.01.2010 lays down criteria for selection of Anganwadi Workers, same does not provide

any reservation vis-a-vis Anganwadi Workers/Helpers.

Learned counsel for the petitioner would contend that as per the Government order No. 128 SW of 2008 dated 24.03.2008, it has been

ordered that for reserved category candidates there is no educational qualification bar for their selection, however, while making selection

weightage shall be given regarding aptitude, personality and performance in viva-voce.

The Government order No. 07 SW of 2010 dated 18.01.2010 has been issued in supersession to all previous orders issued from time to time

where-under criteria has been prescribed for making selection for Anganwadi Worker/Helper, which does not provide for any reservation, but

same may not apply to the selection process of the year 2008 when the Government order No. 128 SW of 2008 dated 24.03.2008 was in vogue,

but again same order does not specifically provide how the reserved category candidates are to be given preference.

It is rightly pointed out by learned counsel for respondent No. 6 that for Buchoo, only one post of Anganwadi Worker is to be filled, even if

Reservation Act and Rules would be applicable, still petitioner has no claim because reservation for handicapped persons has to be 3% on

horizontal basis, out of which 1% would go to the physically disabled person, therefore, post being only one, there is no scope for filling it from the

reserved category. In support of this contention learned counsel has relied on the judgment reported in Chakradhar Paswan Vs. State of Bihar and

Ors, , Para 16 is relevant to be quoted:-

It is quite clear after the decision in Devadasan's case that no reservation could be made under Art. 16(4) so as to create a monopoly.

Otherwise, it would render the guarantee of equal opportunity contained in Arts. 16(1) and 16(2) wholly meaningless and illusory. These principles

unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for

recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Art. 16(4), pre-

supposes the availability of at least more than one post in that cadre.

Para 19 of the judgment reported in State of Karnataka and Others Vs. K. Govindappa and Another, , is also relevant to be quoted:-

In this regard, Mr. Hedge has explained the difference between ""post"" and ""cadre"" and that the two expressions could not be equated with

each other. He has also explained that the expression ""cadre"" was not synonymous with ""service"" and that merely because there were single posts

in the different disciplines taught in the college, it did not mean that each post constituted a separate cadre within the cadre of Lecturers. While

there can be no difference of opinion that the expressions ""cadre"", ""post"" and ""service"" cannot be equated with each other, at the same time the

submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply

the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter-changeability of posts in the different

disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article

16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against

100% reservation as envisaged in Article 16(1) of the Constitution.

Learned counsel for the petitioner referred to one of the selection list issued by Child Development Project Officer (ICDS) Project, Kellar,

wherein for Anganwadi Center Greece Mohalla, a physically handicapped candidate with 30% disability has been selected but it is not clear as to

whether there was any other candidate otherwise meritorious, the said candidate is shown to have secured 52.14 marks, that apart one wrong

cannot be followed by another.

Admitted position as emerged from the records is that, the petitioner is handicapped person, but the question is as to whether on such basis

she can be selected to the exclusion of other meritorious candidates more particularly respondent No. 6, who is meritorious i.e., she has secured

48 points whereas petitioner has secured 36 points.

While summing up, it has to be made clear that so far Government has not taken any policy decision nor has framed any guidelines for

extending the benefit of reservation in case of engagement of Anganwadi Workers. As a matter of policy it is for the Government to make

additions/alterations to the Scheme, so as to evolve a formula of giving representation to the reserved categories.

The Anganwadi Worker not being a civil post, therefore, Reservation Act and Rules are not applicable. Anganwadi Workers, working under

the ICDS Programme, are not governed by any Statute. Anganwadi posts have been created in terms of the Scheme. Para-13 of the judgment

rendered by Hon'ble Apex Court in case State of Karnataka and Others Vs. Ameerbi and Others, is relevant to be quoted:-

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.

The petitioner is a handicapped person for which 3% horizontal reservation is permissible under Reservation Rules which are not applicable

even otherwise if would have been applicable still there is only one post, how could 3% reservation be carved out.

Petitioner has no case to claim superior right of engagement as Anganwadi Worker under reserve category unless otherwise posses superior

merit so as to be taken in general category.

Viewed thus, there is no merit in this writ petition which deserves dismissal. Respondents-authorities shall finalize the process by engaging

deserving meritorious candidate as against only one post of Anganwadi Worker to be supplied in Anganwadi Center Buchoo. Same shall be done

within a period of three weeks from the date copy of the order is served upon them.

Record, as produced by learned Dy. AG, is returned back to him. Disposed of as above along-with connected CMP.