Santosh Kumar vs State Through Social Welfare Department And Others

Vide Advertisement Notification dated 01.01.2011 issued by the respondent No.6, the applications were invited from eligible female candidates for

engagement as Anganwadi Helpers on honorarium basis for various Anganwadi Centres of ICDS Project Vijaypur, District Samba which included the

post of Anganwadi Helper in Anganwadi Centre Mahal Shah Kothey. The eligibility conditions prescribed in the Advertisement Notification, inter alia

provided as under:-

(i) Minimum qualification shall be middle pass;

(ii) Preference shall be given to the lady who belongs to BPL family or is amongst poorest of the poor in the hamlet.

Indisputably, the selection of Anganwadi Helpers at the relevant point of time was governed by Government Order No.07-SW of 2010 dated

18.01.2010. The criteria for selection of Anganwadi Helpers, as prescribed in the aforesaid Govt. Order, also provided for the preference to be given

to the candidates from BPL category in the following order of priority:-

(a) Widow;

(b) Divorcee;

(c) Orphan; and

(d) Any candidate from amongst the poorest of the poor in the Revenue Village.

The Government order (supra) also provided for filing of an Appeal and Revision by the aggrieved candidate(s).

The petitioner as well as respondent No.7, applied for the post of Anganwadi Helper in the Anganwadi Centre concerned. On the basis of the

higher merit, the petitioner, was selected and engaged as Anganwadi Helper. Feeling aggrieved, the respondent No.7 filed an Appeal before the

Deputy Commissioner, Samba alleging inter alia that the petitioner could not have been selected in the face of availability of the respondent No.7, a

candidate belonging to BPL category. In nutshell, the plea taken by the respondent No.7 before the Deputy Commissioner, Samba was that she

belonged to BPL category and, therefore, had a preferential right of appointment against the post and the petitioner, even if, she had better merit could

not have been selected and engaged. The Appeal was considered by the Deputy Commissioner, Samba, the appellate authority, under Govt. Order

No. 07-SW of 2010 dated 18.01.2010 and after hearing both the parties, it came to be decided in favour of respondent No.7. The selection and

engagement of the petitioner as Anganwadi Helper was declared bad and the Nodal Officer, ICDS Project, Samba was directed to consider the case

of the respondent No.7 and pass appropriate orders as per the standing instructions of the Government on the subject. The petitioner filed Revision

Petition before the Divisional Commissioner, Jammu which upon consideration was also dismissed and the order the Deputy Commissioner, Samba

was upheld. The petitioner is aggrieved of both the orders one passed by the appellate authority and other by the revisional authority and seeks to

challenge the same inter alia on the following grounds:-

(i) That both the forums below have failed to appreciate that the petitioner too was a candidate belonging to BPL category and her such status had

been certified by the Sarpanch of the area and endorsed by the Block Development Officer, Vijaypur. In view of her better merit, she was entitled to

be selected and was, thus, rightly selected by the respondent No.6.

The official respondents, i.e., respondents 1 to 6 as also respondent No.7 have filed their separate objections and have opposed the writ petition

vehemently contending that the petitioner had failed to submit any certificate from the competent authority to demonstrate that she was also a

candidate belonging to BPL category and the certificate issued by the Sarpanch and countersigned by the Block Development Officer, Vijaypur was

not admissible for the reason that the family of the petitioner had not been notified by the competent authority to be one belonging to BPL category.

Heard learned counsel for the parties and perused the record.

The petitioner as well as respondent No.7 both claim that they belong to BPL category and therefore, the selection to the post of Anganwadi

Helper was required to be made on the basis of the inter se merit. Whereas the record shows that it was respondent No.7 who alone demonstratively

proved before the Forums below that she belongs to BPL category, for, the name of her husband figured at S.No. 7173 of the BPL list issued by the

Government. Admittedly, the list of BPL families prepared by the Government on the basis of the latest census did not include the name of the

petitioner or her family. She, however, relied upon a certificate issued by Sarpanch, Mahal Shah Kothey and endorsed by the Block Development

Officer, Vijaypur, perusal whereof only indicates that the Sarpanch, Mahal Shah Kothey on the basis of her personal examination of the condition of

the husband of the petitioner had recommended that the name of the family of the petitioner should also be included in the category of BPL. The

Block Development Officer, Vijaypur, has only endorsed the opinion of the Sarpanch, Mahal Shah Kothey. Admittedly, no competent authority has

issued any certificate in this regard nor the family of the petitioner is included in the list of BPL families prepared by the Government on the basis of

the data contained in the latest census. Both the Forums below, i.e., Deputy Commissioner, Samba (the appellate authority) and the Divisional

Commissioner, Jammu (revisional authority) have not accepted the contention of the petitioner that she belongs to BPL family.

In the aforesaid backdrop, it is difficult to hold that the decision of the appellate authority upheld by the revisional authority is bad in the eyes of law.

The official respondents have produced the record of selection, which does not contain anything worth the name to indicate the manner in which the

process of selection has been conducted. The record file submitted to this Court contains copies of the writ petitions and the objections filed thereto

and one original application form submitted by one Neeta Devi. How was the merit of the candidates evaluated and how was preference between

BPL and Non-BPL candidates worked out, is not forthcoming from the records. The expression „preference‟ as understood in the service

jurisprudence would mean that if the two candidates are evenly placed and have equal merit in the selection, the candidate belonging to the category

entitled to preference would be selected. There is distinction between “preference†and “priorityâ€. The Hon‟ble Supreme Court in the

judgment rendered in the case of State of UP and another v. Om Prakash and others reported in (2006) 6 SCC 474 held as under:-

“This Court has consistently held that when selection is made on the basis of merit assessed through the competitive examination and interview,

preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be

preferred. It does not mean en bloc preference irrespective of inter se merit and suitability……â€​

In view of the clear legal position on the point in issue as also looking to clause (e) of the selection criteria of Anganwadi Helpers as laid down in

the Govt. Order No.07-SW of 2010 dated 18.01.2010, it is abundantly clear that the candidate belonging to the BPL category would be preferred over

the candidate belonging to non-BPL category and would be given the appointment as Anganwadi Helper only if the merit of the two is equal in all

respects. However if the competing candidates belong to BPL category then the „widow‟ will have priority over ‘divorcee’ and

‘divorcee’ will have priority over the ‘orphan’ and similarly ‘orphan’ will have the priority over the candidates from amongst

poorest of the poor in the Revenue Village. At this stage, it would be profitable to reproduced clause (e) as under:-

CLAUSE(e)

“e. Preference shall be given to the candidates from BPL category in the following order of priority:-

(a) Widow;

(b) Divorcee;

(c) Orphan,

(d) Any candidates from amongst poorest of the poor in the Revenue Village.

Clause (f) would help in understanding the meaning and import of expression “preferenceâ€​ and the same is also reproduced here under:-

CLAUSE(f)

“f. In case of tie-up for selection of Anganwadi Helper, preference shall be given to the “Most deservingâ€​ among the deserving candidates.â€​

From the above, it is, thus, clear that in case there is tie of merit between the candidates belonging to BPL category and the candidate belonging to

other category (APL), the candidate belonging to BPL category shall be preferred in the matter of appointment. If the candidates in a selection are

BPL category candidates only then irrespective of their merit, the appointment would be made in the order of priority indicated in the clause (e)

reproduced above. Similarly, if there is tie between the candidates belonging to APL, the preference will be given to the “Most deservingâ€. If the

Govt. Order No.07-SW of 2010 dated 18.01.2010 is understood in the aforesaid context, and applied to the instant selection, the respondent No.7 will

have prior right of appointment over the petitioner provided the merit of the two in the selection is “tiedâ€. As noted above, neither from the

pleadings of the parties nor from the record produced by the official respondents, I could find the merit position of the petitioner and respondent No.7.

From the perusal of the record produced, it appears that the selection has been made either without maintaining any record or the record has been

destroyed/misplaced after the selection. In such situation, this Court is in predicament as to how to render justice in the matter. The sheer negligence

and callousness of the official respondents in carrying out the selection in question has wasted the precious time of the Court.

In these circumstances, this Court is compelled to direct the respondents to consider the candidature of the petitioner and respondent No.7 yet

again and determine their inter se merit on the basis of the norms that were applicable at the time of issuance of Advertisement Notice. If upon such

process having been undertaken, it is found that both the petitioner as also the respondent No.7 are equally placed in the merit and respondent No.7

who admittedly belongs to BPL category would be offered the appointment else the candidate with better merit shall be appointed. Ordered

accordingly. Let fresh exercise as directed above, be undertaken and completed by the official respondents within a period of eight weeks from the

date certified copy of this order is served upon them.

Disposed of as above along with connected CM(s).