Soni Devi vs State Of Jharkhand And Others

Anubha Rawat Choudhary, J

Heard Mr. Arvind Kumar Choudhary, learned counsel appearing on behalf of the petitioner.

Heard Mr. Neil Abhijit Toppo, learned counsel appearing for the respondent –State.

Heard Mr. Abhinay Kumar, learned counsel appearing on behalf of the respondent no. 7.

This writ petition has been filed for the following reliefs:

“(i) For quashing the order dated 27.04.10 passed by the District Social Welfare Officer, Deoghar bearing Memo No. 319 whereby and where under the petitioner was informed with regard to cancellation of her selection as Sevika of Aanganbari center, Thutasimer (Yadav Tola), Sarath within District- Deoghar.

(ii) For cancellation of the selection of respondent no. 7 as Sevika of the aforesaid Aaganbari center vide Memo No. 303 dated 09.09.2009 as she did not even fulfill the minimum requisite qualification.

(iii) For direction upon the respondents to appoint the present petitioner as Sevika of the aforesaid center on the ground that she had been selected by the village committee on 22.08.2009 and provisional appointment letter was issued in her favour.”

The learned counsel for the petitioner submits that it is not in dispute that pursuant to public notice issued on 17.08.2009 with regard to appointment of Sevika and Sahayika for Aanganbari center within the district of Deoghar, the date of Aamsabha was fixed on 22.08.2009 in which the petitioner along with several others had participated and the petitioner was handed over a provisional appointment letter by the concerned authority on 22.08.2009. However, subsequently she was informed that her appointment has been cancelled on 09.09.2009 and consequently, she filed a representation before the Deputy Commissioner, Deoghar on 14.09.2009. Ultimately, vide memo no. 319 dated 27.04.2010, the petitioner was informed by the District Social Welfare Officer that her appointment has been cancelled and, in her place, respondent no. 7 has been appointed. The learned counsel has submitted that the appointment of respondent no. 7 is in gross violation of the rules in as much as, the respondent no. 7 does not possess the minimum qualification for appointment to the post of Aanganbari Sevika as prescribed in letter dated 02.06.2006 issued by the Government of Jharkhand. The respondent no. 7 is only 9th pass and the minimum qualification prescribed is class-10.

The learned counsel for the petitioner has also submitted that the solitary reason for cancellation of appointment of the petitioner has been that the husband of the petitioner is working as para teacher. He also submits that there are several other sevikas in the district whose husbands are working as para teacher, but their appointment have not been cancelled and they are continuing. The learned counsel submits that on the one hand, the appointment of the petitioner has been wrongly cancelled and on the other hand, the respondent no. 7 has been wrongly appointed. The counsel has referred to paragraph 7 of the aforesaid letter of Government of Jharkhand dated 02.06.2006.

The relevant clauses of letter dated 02.06.2006 (Annexure-7) for the purposes of this case are clause 4, 7(ka) and (ga) which are as under:-

Legality and validity of the impugned Memo No. 303 dated 09.09.2009

The learned counsel appearing on behalf of the State as well as respondent no. 7 does not dispute the fact that the respondent no. 7 is non-matric and has passed only class 9th. However, the respondent – State has relied upon clause 7(ka) of the aforesaid letter dated 02.06.2006 stating that the power to relax the minimum qualification has been conferred upon the Deputy Commissioner/Deputy Development Commissioner, if an appropriately qualified person amongst the beneficiaries is not available. However, the respondents have not brought on record any decision of the Deputy Commissioner/ Deputy Development Commissioner relaxing the minimum qualification for the post.

Further, the learned counsel for the respondent- State has not been able to even show any statement from the counter-affidavit that any decision was taken by the Deputy Commissioner or Deputy Development Commissioner to relax the age for appointment in terms of clause 7(ka) with respect to the appointment of the Respondent no.

However, a statement has been made that a general meeting was held on 06.09.2009 in the village and pursuant to selection in the general meeting, the private respondent no. 7 was selected.

Thus, from the records of this case it is apparent that the respondent no. 7 does not meet the requirement of minimum age as provided under clause 7(ka) and neither any decision of the Deputy Commissioner/ Deputy Development Commissioner has been brought on record relaxing the age nor any such statement has been made in the counter-affidavit that a decision was taken to relax the age.

In view of the aforesaid facts and circumstances, the appointment of respondent no. 7 as contained in Memo No. 303 dated 09.09.2009 is apparently in violation of clause 7(ka) of the aforesaid letter of the State Government dated 02.06.2006 and thus cannot be sustained in the eyes of law, which is accordingly set-aside.

Legality and validity of the impugned order contained in Memo No. 319 dated 27.04.2010

So far as the impugned order dated 27.04.2010 passed by District Social Welfare Officer, Deoghar, whereby the appointment of the petitioner has been cancelled, is concerned, it appears that the same has been cancelled only on the ground that the husband of the petitioner is a para teacher to which the learned counsel for the petitioner has submitted that no such clause is there in the aforesaid letter dated 02.06.2006 disqualifying the wife of a para teacher from being appointed as Aanganbari Sevika/ Sahayika .

However, from the perusal of the aforesaid letter dated 02.06.2006, it appears that the beneficiaries of the scheme are those who are below poverty line and those belonging to under-privileged class and as per Clause 7(Ga), the Aanganbari Sevika is to be from one amongst the beneficiaries.

Considering this aspect of the matter, it is not clear from the records as to whether the petitioner, being a wife of para teacher, ceases to be a beneficiary in terms of the letter dated 02.06.2006 and for this purpose, the petitioner should be given an opportunity to explain her financial status for which admittedly no such opportunity has been granted to the petitioner before passing the impugned order.

Accordingly, the impugned order contained in Memo No. 319 dated 27.04.2010 passed by District Social Welfare Officer, Deoghar is hereby set-aside and the respondent no. 4 is directed to give an opportunity of hearing to the petitioner and conduct any further enquiry regarding the status of the petitioner and as to whether the petitioner would come within one of the beneficiaries in terms of letter dated 02.06.2006.

The petitioner shall appear before the respondent no. 4 within a period of one month from today and upon her appearance and after giving an opportunity of hearing to the petitioner, appropriate reasoned order be passed within a period of one month thereafter.

It is made clear that setting aside of the impugned order dated 27.04.2010 will not automatically entitle the petitioner to work as Aanganbari Sevika and it will depend upon the reasoned order which may be passed by the respondent after hearing the petitioner. In case the petitioner does not approach within one month from today, the respondents may proceed for fresh selection in accordance with law.

This writ petition is accordingly disposed of.