Smt. Rachna Dixit vs State of M.P. and Others

Hon''ble Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioner has challenged order dated 31.8.2009 (Annexure P/2) and the appellate order (Annexure P/1) dated 22.6.2010. So far factual backdrop is concerned, there is no dispute between the parties. The learned counsel for the parties while arguing agreed that singular question needs to be decided is whether preference given to respondent No. 5 being a widow was in accordance with law or not. To elaborate, it is not in dispute that minimum qualification for the post of Aganwadi Worker is higher secondary/Inter and the petitioner and respondent No. 5 are having said minimum qualification. The respondents have chosen to give preference to respondent No. 5 by giving her preference as per clause B-2.

Learned counsel for the petitioner advanced singular contention that the question of giving preference would arise when both the candidates are having same eligibility and merit. When both the conditions are fulfilled, then only benefit of preference can be given.

Per contra, learned Govt. Advocate relied on the note-sheet Annexure R/1 and stated that Annexure P/2 is passed in consonance and in obedience of Annexure R/1. She submits that being a widow, respondent No. 5 was rightly given preference despite the fact that on merit she is below the present petitioner.

Learned counsel for respondent No. 5 supported Annexure P/1 and P/2 and relied on the policy Annexure P/10 dated 10.7.2007 wherein there is a decision to provide 10 additional marks to the widow/ deserted/divorced woman.

I have heard learned counsel for the parties and perused the record.

Dealing with the last contention of Shri Shrivastava, learned counsel for respondent No. 5, as a first one, it is gathered that recruitment process started much before issuance of Annexure P/10 and respondent No. 5 herself submitted her candidature on 22nd June, 2006. On the date of advertisement and submission of candidature, admittedly, policy, Annexure P/3, dated 27.5.2006 was in vogue, and therefore, any subsequent policy will not hold the field. This is settled in law that rules of game cannot be altered after selection process begins, and therefore, reliance on Annexure P/10 is of no assistance to respondent No. 5.

The singular question remains to be decided is whether the preference given by the official respondents to respondent No. 5 being a widow is in accordance with policy and law. In the opinion of this Court, in clause B-2, the respondents have chosen to employ the words that if more than one woman candidates are having same qualification and merit, then preference may be given in the manner prescribed. Thus, the department itself has chosen to provide two criteria i.e. eligibility and merit. The intention, in the considered opinion of this Court, is to provide preference when both the candidates are equally eligible and having same merit. For example if both the candidates are higher secondary and having 58 per sent marks, then the widow will secure a march by getting the preference as per clause B-2. However, the word ''merit'' cannot be divorced from the entire context in which it is used in aforesaid clause B-2. I find support from the judgment of Supreme Court reported in State of U.P. and Another Vs. Om Prakash and Others, . The Apex Court opined as under in the said matter :-

In the instant case, the requisite academic qualification for the post of homeopathy as prescribed in the advertisement was a recognized degree in Homeopathy or a recognized diploma in Homeopathy. A proviso has been added that preference will be given to degree holders. This would mean that a recognized diploma in homeopathy prescribed in the advertisement is also a required minimum educational qualification with which they are entitled to complete with those candidates possessing the degree. The word ''preference'' would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-a-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability.

Thus, in view of the language and intention of the scheme and on account of the judgment of Supreme Court aforesaid, I have no hesitation to hold that the respondents have committed an error in granting preference to respondent No. 5 who is admittedly less meritorious than petitioner herein. Accordingly, order Annexure P/2 cannot be permitted to stand and is accordingly set aside. The respondents are directed to reconsider the case of the petitioner and if she is found otherwise eligible, she be given appointment in lieu of respondent No. 5. It is made clear that Annexure P/1 will not come in the way of the petitioner for the purpose of aforesaid exercise. The petition is allowed. No costs.