Nisha Devi vs State of U.P. and Others

Sudhir Agarwal, J.—This writ petition is directed against the order dated 29.05.2012 passed by District Magistrate, Kannauj cancelling selection of petitioner Anganwadi Sahayika for Anganwadi Centre Bhoramau, Gram Sabha Kalsan, Tehsil Tirwa, District Kannauj on the ground that she is not permanent resident of said village hence her selection and appointment would be in the teeth of Government Order dated 16.12.2003. Learned counsel for the petitioner referred to the advertisement and said that in case the candidate of same village is not available, the candidate of Gram Panchayat of which the village in question is part can be considered.

Learned Standing Counsel, however, has filed counter affidavit placing on record the relevant Government order pursuant whereto the selection in question has been made, pointing out that the condition, that incumbent must belong to same village is mandatory. He refers to para 3(a), (b), (c), (d), (e) and (f) thereof and contended that there is no scope of alteration of condition that the incumbent must belong to same village otherwise the selection and appointment, even if made, would have to be cancelled.

The Government order goes to the extent that in case after selection and appointment the candidate has changed the village for any reason whatsoever, the appointment shall be cancelled.

In my view the submission of learned Standing Counsel has force. The relevant paragraphs of Government Order dated 16.12.2003 read as under:

(Vernacular matter omitted.....Ed.)

(a) First of all, a widowed woman, resident of the same village, having the requisite qualification.

(b) In case of non-availability of a widowed woman, a divorced woman who is a resident of the same village.

(c) In case of non-availability of a widowed and divorced woman, from amongst women living below poverty line. In respect of income, a certificate given by the concerned Tahsildar will only be accepted.

(d) If, from amongst the aforesaid, no candidate is available, any qualified woman above poverty line will also be considered eligible for selection to the post of karyakatri. However, she must be a resident of the same village.

(e) If, in a village where Anganwadi Kendra is to be opened, there is only one widowed or divorced or BPL woman having the requisite qualification, she will be appointed on remuneration upon the recommendation of selection committee. But if more than one widowed or divorced or BPL woman come within the eligibility zone, the selection will be done through selection committee. No interview will be held by selection committee. Merit list will be drawn up by totalling the prescribed marks on the basis of the division secured by the eligible women in High School and in course of higher education.

03 marks will be awarded to a woman on passing High School in the first division, 02 marks to a woman on passing it in the second division and 01 mark to a woman on passing it in the third division. In this very manner, 03 marks will be awarded on passing Intermediate examination in the first division, 02 marks on passing it in the second division and 01 mark on passing it in the third division. Extra marks will not be awarded to a woman having higher educational qualification. Merit list will be prepared after totalling marks of all the examinations. If more than one candidate get equal marks, priority will be given to a candidate older in age. If more than one candidate are at par with one another in respect of marks and age as well, priority will be given to a candidate having better educational qualification.

(f) It will be mandatory for Anganwadi Karyakatris and attendants to be residents of the same anganwadi area. As regards claim for being a permanent resident of that place, it will be necessary to present a certificate obtained from Tahsildar or Gram Pradhan. If a Karyakatri or attendant leaves her village after selection or begins to reside in some other village or begins to reside somewhere else in the event of marriage, her service on remuneration shall be terminated, (English Translation by the Court)

The very opening part of Government order shows that it is in supercession of all earlier Government Orders, therefore, the procedure and conditions prescribed in Government Order dated 16.12.2003 have to be followed for making selection and appointment as Angan Bari Karyakatri and/or Attendant. A combined reading of the aforesaid paragraphs of Government Order dated 16.12.2003 make it very clear that the incumbent must belong to the same village and there is no scope of expanding it to the Village Panchayat of which the concerned village is a part. The insistence on the part of learned counsel for the petitioner on the advertisement, cannot be accepted in view of the fact that selection and appointment has to be made in accordance with relevant Government order which prescribes the condition for selection and appointment and pursuant whereto recruitment process has been started.

It is well settled that in case of discrepancy between relevant provision under which selection is made and conditions actually advertised in the advertisement, it is the relevant provision which shall prevail and not the advertisement since advertisement is consequential and dependent upon the relevant provisions pursuant whereto it has been issued. In Malik Mazhar Sultan and Another Vs. U.P. Public Service Commission and Others, the Apex Court has said:

Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.

(Emphasis added)

Same view has been taken by a Division Bench of this Court Sanjay Agarwal v. State of U.P. and others, 2007(6) ADJ 272 : (2007 (5) ALJ 328).

In the present case the Government order makes it very clear that the incumbent, who does not belong to same village in which the Anganwadi Center is running, cannot be selected and appointed. It is not disputed that petitioner does not belong to the same village but the village to which petitioner is permanent resident is a part of Gram Panchayat which includes the village in which Anganwadi Center is situated. That being so, once it is admitted that petitioner is not the permanent resident of village in which Anganwadi Center is situated, in view of specific conditions contained in Government Order dated 16.12.2003, the impugned order cannot be faulted and appointment of petitioner cannot be said to be valid.

I therefore, find no merit in the writ petition.

Dismissed. Interim order, if any, stands vacated.