Neelam vs State of Himachal Pradesh

Rajiv Sharma, J.—Selection process for filling-up the post of Anganwari Worker for Anganwari Centre, Heeling, Tehsil Bharmour, District Chamba, H.P., commenced in the year 2007. Interviews were held on 27.7.2007. The petitioner and respondent No.4 also participated in the selection process. The petitioner was selected for the post of Anganwari Worker at Anganwari Centre, Heeling. The appointment of the petitioner was challenged by respondent No.4 before the Additional District Magistrate, Chamba on the ground that the petitioner did not belong to the feeding area of Anganwari Centre, Heeling. The Additional District Magistrate, Chamba, heard the appeal and set aside the selection of the petitioner. The petitioner filed an appeal before the Divisional Commissioner, Kangra. He held that the petitioner is not eligible to be selected as Anganwari Worker. The respondent No.4 was also declared ineligible. He remanded the case back to the Deputy Commissioner, Chamba to conduct thorough inquiry about the financial status of petitioner and respondent No.4. The petitioner filed CWP No. 3278 of 2009 before this Court, which was decided on 2.7.2010. The Appellate Authority was directed to decide the appeal afresh. Consequently, the Additional District Magistrate, Chamba has passed fresh orders on 20.1.2012, whereby he has come to the conclusion that the petitioner did not belong to the feeding area of Anganwari Centre, Heeling. Mr. Anup Rattan, Advocate, has strenuously argued that the petitioner belongs to Village Heeling and not Village Lamu. He then argued that the petitioner''s husband is a shepherd and he visits the house after 6-7 days. According to him, reservation on the basis of the residence is illegal and arbitrary.

Mr. Vivek Singh Thakur, learned Additional Advocate General has supported order dated 20.1.2012.

We have heard learned counsel for the parties and have also gone through the pleadings carefully.

The petitioner was married with one Shiam Singh on 8.8.2006. Shiam Singh belongs to Village Lamu. The interviews were held on 27.7.2007. It is not borne out from the record that the petitioner at the time of submitting the application has stated about her marital status. The Additional District Magistrate, Chamba, on the basis of the report furnished by the Naib Tehsildar, Holi, and certificates issued by the Pradhan Gram Panchayat Kuwarshi, Pradhan Gram Panchayat Lamu, has held that the petitioner belongs to Village Lamu and not Village Heeling. The Additional District Magistrate Bharmour, had also earlier conducted an inquiry qua this fact, who found that the petitioner was married to Shiam Singh, son of Sh. Roshan Lal of Village Lamu, Tehsil Bharmour, District Chamba. Lamu is not the feeding village for Anganwari Centre Heeling. A candidate must be a resident of Village where the Anganwari Centre is to be opened or belongs to the feeding villages. The petitioner has failed to bring on record tangible evidence to establish that even after her marriage, she is residing in Village Heeling. It has also come on record that the petitioner has registered her marriage in the Pariwar Register at Gram Panchayat Tangroti along with her husband at Sr. No. 72, falling under Development Block Nagrot Bagwan, Tehsil and District Kangra, H.P. She also gave birth to a child at zonal Hospital, Dharamshala on 15.7.2002 and the name of her child is duly registered in the family register of her husband, Shiam Singh. Since the petitioner belongs to village Lamu, she could not be considered for appointment as Anganwari Worker at Anganwari Centre Heeling.

Mr. Anup Rattan, Advocate, has strenuously argued that there cannot be any reservation on the basis of residence. The petitioner is precluded from laying challenge to this condition incorporated in para 4 of the Scheme, notified on 11.4.2007. The petitioner should have challenged this condition before she participated in the selection process. The petitioner has challenged this condition only after she has been found not to be a resident of any of feeding villages for Anganwari Centre, Heeling.

According to the norms, prescribed in ICDS Manual (para 5.23), an Anganwari Worker is to be selected from the village/local community. She should be a person acceptable to the local community. Special care has to be taken in the selection of Anganwari worker so that she can effectively serve the pre-school children, pregnant women and nursing mothers.

Their Lordships of Hon''ble Supreme Court in Union of India (UOI) and Others Vs. S. Vinodh Kumar and Others, have held as under:-

It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.

Their Lordships of Hon''ble Supreme Court in Dhananjay Malik and Others Vs. State of Uttaranchal and Others, have held that when the candidates participate in the selection process without any demur, they are estopped from challenging the selection criteria. If they think that the advertisement and selection process were not in accordance with the Rules, they should have challenged the advertisement and selection process without participating in the selection process. Their Lordships have held as under:

It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.

In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.

Their Lordships of Hon''ble Supreme Court in Amlan Jyoti Borooah Vs. State of Assam and Others, have held that a candidate, who had subjected himself to a faulty selection process, could not question it later on. Their Lordships have held as under:

Appellant concededly did not question the appointment 169 candidates. It is idle to contend that he was not aware thereof. If he was to challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000.

Appellant was aware of his position in the select list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. Appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also on the premise that no new vacancy could have been filled up from the select list.

Appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so.

Their Lordships of Hon''ble Supreme Court in Manish Kumar Shahi vs. State of Bihar and ors. (2010) 12 SCC 576 have held as under:

We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner''s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.

Their Lordships of Hon''ble Supreme Court in Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others, have held that a candidate, who appeared in interview knowing selection criteria that too without protest at any stage, cannot turn back to state that procedure adopted for selection was wrong and without jurisdiction. Their Lordships have held as under:

When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.

We leave this question open to be decided in an appropriate case. Accordingly, the writ petition is dismissed, being devoid of any merit, so also the pending application(s), if any.