Smt. Anuradha vs State of U.P. and Others

Dilip Gupta, J.—The petitioner along with others had submitted an application for appointment as Aangan Badi Karyakarti. When she was not selected and respondent No. 6-Smt. Lalita was selected, the petitioner filed Writ Petition No. 43776 of 2006 which was disposed of with the following observations:

Contention of the petitioner is that her candidature for the post of Aanganwari Karyakatri has been arbitrarily ignored and undue favour has been extended to Km. Lalita, who does not fall within the poverty line.

Such grievance of the petitioner can be very well examined by the District Magistrate, Kanpur Nagar.

In this view of the fact, liberty is given to the petitioner to make fresh representation alongwith certified copy of this order within three weeks from today before District Magistrate, Kanpur Nagar, who shall take appropriate decision in accordance with law, preferably within period of six weeks from the date of production of certified copy of this order after affording opportunity of hearing to Km. Lalita. Whatever decision is taken, same be communicated to petitioner forthwith.

With these observations, writ petition is disposed of.

The District Magistrate, Kanpur Nagar thereafter passed the order dated 30th March, 2007 supporting the appointing of respondent No. 6. This order was assailed by the petitioner in Writ Petition No. 22233 of 2007 which was disposed of on 26th July, 2010 with the following observations:

Heard learned Counsel for the petitioner and learned Standing Counsel for the respondent Nos. 1 to 4.

The respondent No. 5 was issued notice and it has been reported by the Office that neither the acknowledgment nor the undelivered cover has been returned back. This report is of the year 2007. An interim order was passed in this regard on 11.5.2007 and the same has been continued from time to time. It is, therefore, evident that the respondent No. 5 in spite of having been put to notice, has not chosen to contest the writ petition.

A counter-affidavit has been filed on behalf of the respondent - State indicating therein that since the petitioner''s income was fluctuating in the Certificates that were furnished, therefore, the impugned order does not require any interference. The impugned order recites that since the petitioner and the respondent No. 5 are both below the poverty line and since the respondent No. 5 is elder in age, her claim, therefore, has been accepted. The finding recorded in the impugned order and the facts stated in para 5 of the counter-affidavit are, therefore, in contradiction to the contents of the impugned order. There is yet another aspect of the matter which the petitioner has categorically stated in para 18 of the writ petition that the respondent No. 5 is the daughter of an Assistant Development Officer, who was in service and whose income was approximately Rs. 60,000/- per annum. This fact has not been disputed in the counter-affidavit. Para 10 of the counter-affidavit simply recites that the same needs no reply for want of knowledge. This stand of the respondent is absolutely irresponsible in nature. The District Magistrate and the person filing the counter-affidavit should have first verified the aforesaid fact and then should have filed counter-affidavit before the Court. In view of the aforesaid discrepancies as pointed out by the learned Counsel for the petitioner, the impugned order is unsustainable. Accordingly, the impugned order dated 30.3.2007 is quashed. The writ petition is allowed.

The matter is remitted back to the District Magistrate, Kanpur Nagar, to reexamine the claim of the petitioner and pass appropriate orders in accordance with rules within 3 months from the date of production of a certified copy of this order before him.

The District Magistrate, Kanpur Nagar has now passed the order dated 30th October, 2010 again approving the appointment of respondent No. 6-Km. Lalita. All that has been stated is that since both Lalita and Anuradha got same marks and both of them were below poverty line as their income was Rs. 1200/- and Rs. 1500/-per month respectively, respondent No. 6 was selected as she was elder in age.

Learned Counsel for the petitioner submitted that the petitioner had been repeatedly making a positive assertion that respondent No. 6 is not below the poverty line and this Court in the judgment and order dated 26th July, 2010 passed in Writ Petition No. 22233 of 2007 also noticed the averments made in paragraph 18 of the writ petition by the petitioner that Smt. Lalita is the daughter of Assistant Development Officer whose income was approximately Rs. 60,000/- per annum to which no reply was filed in the counter affidavit, yet without considering this fact, the appointment of respondent No. 6 has again been sustained.

The matter is serious as it was incumbent upon the District Magistrate to have at least considered the said objection that respondent No. 6-Lalita was not below the poverty line which had repeatedly been raised by the petitioner and which has also been taken note by the High Court in the aforesaid judgment but the District Magistrate, for the reasons best known to him, has totally ignored this aspect.

The District Magistrate, Kanpur Nagar, therefore, shall file his personal affidavit to explain as to what persuaded him to ignore this important aspect in the impugned order. Such affidavit must be filed within two weeks.

Learned Standing Counsel shall communicate this order to the District Magistrate, Kanpur Nagar.

List this petition on 15th December, 2010.