Poonamlata Upadhyay vs Jaya Dwivedi

K.K. Trivedi, J.—This writ petition was filed challenging the order dated 17.9.2009 by the Commissioner, Shahdol Division, Shahdol allowing the appeal of the respondent No. 1 and directing removal of the petitioner from the post of Aganwadi Worker and appointment of the respondent No. 1 in her place.

When the writ petition was listed before this Court on 27.11.2009, on a caveat filed by the respondent No. 1, the notice of writ petition was delivered to learned counsel for the respondent No. 1. It was supposed that the return of the writ petition would be immediately filed as no interim relief was granted by this Court at that time. However, since the return was not filed by the respondent No. 1, on a prayer made by the learned counsel for the respondent No. 1, two weeks'' time was further allowed on 8.8.2011. Despite allowing the aforesaid time, return has not been filed by the respondent No. 1, opposing the claim made by the petitioner.

The sole contention raised in the present writ petition is that the initiation of process of selection for appointment on the post of Aganwadi Worker was done by passing a resolution by the Gram Panchayat. Thereafter, proposal was sent to the competent authority and immediately the applications were invited. Since on the date of initiation of process of selection the scheme of the year 2006 made by the State Government for appointment of Aganwadi Worker was in vogue, selection of the persons was rightly done and the petitioner was appointed on the post of Aganwadi Worker in concerned Aganwadi.

Being aggrieved by such appointment of the petitioner, the respondent No. 1 filed an appeal before the Collector, Shahdol, which appeal was considered and decided on 3.5.2008 holding that since the benefit of marks for experience for working as ''Didi'' for a period of three years was made available only by scheme dated 10.7.2007 amended on 29.8.2007, the respondent No. 1 was not entitled to grant of benefit of such marks on account of experience because she has not completed requisite years of service when the selection was initiated under the old scheme.

Against the order of Collector, an appeal was preferred by the respondent No. 1 before the Commissioner, Shahdol Division, Shahdol, which appeal has been allowed and the order of appointment of the petitioner has been set aside, instead it is directed by the second appellate authority that the respondent No. 1 be appointed as Aganwadi Worker. Hence, this writ petition is required to be filed.

It is contended by learned counsel appearing for the petitioner that since the initiation of process of recruitment was much before coming into force of circular dated 10.7.2007 by which a new scheme for appointment on the post of Aganwadi Worker was made, as per the well settled law, the process of recruitment already initiated prior to coming into force of the said scheme was to be completed under the old scheme. In the old scheme, though there was provision for grant of benefit of experience but requisite years of service was not completed by the respondent No. 1 she was not entitled to any additional marks. After considering these aspects, the selecting authority has rightly selected the petitioner on merits, as she was found more meritorious than the respondent No. 1 in terms of the old scheme and in appeal of the respondent No. 1 the order was rightly passed by the Collector dismissing such a claim of the respondent No. 1. There was no occasion to interfere in the order passed by the first appellate authority by the second appellate authority and as such the order impugned is bad in law.

Per contra, it is contended by the learned counsel for the respondent No. 1 that since the final selection was done when the new scheme dated 10.7.2007 became applicable, the respondent No. 1 was entitled to grant of benefit of experience and on due consideration of these aspects the second appellate authority i.e. the Commissioner, Shahdol Division, Shahdol has rightly allowed the appeal of the respondent No. 1. In fact the respondent No. 1 was more meritorious than the petitioner and thus has rightly been appointed after removal of the petitioner from service.

After considering the rival submissions made by the learned counsel for the parties, it is clear that the respondent No. 1 was not entitled to 10 marks for experience as she had not completed the requisite years of service as ''Didi'' according to the scheme of the year 2006. Even if the process was initiated under the said scheme, the respondent No. 1 was required to show that on the date of making application she had completed five years of service as ''Didi'' to get the benefit of 10 marks. Apart from this, as has been claimed by the petitioner, the process was initiated much before coming into force of scheme dated 10.7.2007 and, therefore, the said scheme was not at all applicable in the selection. This fact is not controverted by the respondent No. 1 in any manner though specifically pleaded in the writ petition. From a document available on record, it is clear that the resolution was passed by the Gram Panchayat way back even before coming into force of the scheme dated 10.7.2007 in respect of initiation of process of recruitment on the post of Aganwadi Worker. Thus, there was no application of scheme dated 10.7.2007 or the amended provision made thereunder or any later circular issued by the State Government.

Trite it is that if the selection process is started, any amendment made in the recruitment rules or scheme after initiation of said process would not be applicable in the matter of selection which has to be completed in terms of the unamended provisions or in terms of the scheme which was in vogue on the date when the selection process was initiated. In the case of A.A. Calton Vs. Director of Education and Another, , the Apex Court has categorically held that if the process of recruitment is initiated under the unamended provision, even if amendment later is made in the recruitment rules, the process of selection is to be completed under the unamended provisions. This law is further reiterated in the case of Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, .

The reason as to why such a prescription is made or the law is laid down is that in case certain persons not eligible under the unamended provision had not applied for recruitment, would start claiming the recruitment after the amendment, if they become eligible under amended provision and it will not be possible to complete the recruitment process in one time. That being so, the stand taken by the respondent No. 1 that she was entitled to grant of merit marks for experience in terms of the scheme of recruitment made on 1.7.2007 was not to be accepted by the second appellate authority. No justified reason is shown as to why the order passed by the first appellate authority was required to be set aside. Only considering the availability of the benefit of merit marks on account of subsequent scheme, the appeal of the respondent No. 1 was allowed by the Commissioner, Shahdol Division, Shahdol by the impugned order.

In view of the aforesaid discussion, the order impugned cannot be sustained as it runs contrary to the law laid down by the Apex Court. Accordingly, the writ petition is allowed. The order dated 17.9.2009 is hereby quashed. The order of appointment of the petitioner is affirmed. She be reinstated in service immediately.

The writ petition is allowed and disposed of. There shall be no order as to costs.