Soni Kumari vs State of Jharkhand

In the captioned writ application, the petitioner has inter alia prayed for quashing order dated 29.12.2011 whereby appeal filed by respondent no. 7 has been

allowed and respondent no. 7 has been directed to be re-appointed on the post of Sevika cancelling the appointment of petitioner; for direction upon the respondents

to reconsider the matter and allow the petitioner to continue as a sevika for the Angan Bari Centre, Pokhardiha Beech Tola, Koderma.

The facts, which are necessary for adjudication of the writ application, in brief, that on 25.08.2009 a meeting of Aam Sabha was held at village Pokhardiha Beech

Tola under the chairmanship of Child Development Project Officer-respondent no. 6 for selection of Sevika and Sahayika, in which, name of Mrs. Mamta Kumari-

respondent no. 7 was recommended for selection on the post of Sevika. Pursuant thereto, respondent no. 7 underwent practical training for a period 01.09.2009 to

03.09.2009. But the selection of respondent no. 7 on the post of Angan Bari Sevika was protested by some of the villagers by submitting protest petition dated

01.09.2009 before the Deputy Commissioner, Koderma, whereupon enquiry was made by the respondents-authorities resulting into cancellation of appointment of

respondent no. 7 on the post in question and petitioner was recommended for selection on the post. Aggrieved thereof, respondent no. 7 preferred appeal before the

Deputy Commissioner, Koderma by filing Misc. Case No. 1 of 2011, which was allowed vide order dated 29.12.2011 whereby respondent no. 7 was directed to be re-

appointed and appointment of petitioner was cancelled.

Heard Mr. Afaque Ahmad, learned counsel for the petitioner; Mr. Soumitra Baroi, Associate Counsel to learned G.P VI for the respondent-State and Mr. Rak

Lakhan Yadav, learned counsel for the respondent no. 7.

Referring to Clause 7 of the letter dated 02.06.2006 issued by the Secretary, Social Welfare, Women and Child Development Department, Govt. of Jharkhand, which

dealt with the eligibility condition of the Anganbari Sahayika and Sevika, learned counsel for the petitioner submitted that it clearly stipulates that candidates having

higher qualification should be given preference and further candidate must belong to the Tola, in which, Anganbari Centre is situated. But ignoring these facts that

petitioner belonging to Pokhardiha Beech Tola, where the Anganbari Centre is situated and respondent no. 7 does not belong to that Tola rather she belongs to

Pachim Tola and further petitioner possesses higher qualification than that of respondent no. 7; merely on the ground that name of respondent no. 7 has been

recommended by Aam Sabha, the appointment of petitioner was cancelled and respondent no. 7 was re-appointed. Learned counsel for the petitioner further

submitted that on the complaint made by villagers against the recommendation of the name of respondent no. 7, whereupon a thorough enquiry was made and it was

found that respondent no. 7 does not belong to Pokhradiha Beech Tola where Anganbari Centre is situated and accordingly, petitioner’s name was sent for

recommendation. Pursuant thereto, the petitioner was appointed on the post in question and continued to discharge her duties but after passing of impugned order

respondent no. 7 was re-appointed. Learned counsel for the petitioner further submitted that Deputy Commissioner has no authority to cancel the appointment of the

petitioner as the said authority is not empowered as per rule and the power of cancellation is vested with the Director, Social Welfare, Women and Child Development

Department, Govt. of Jharkhand, Ranchi in case of deviation from the rules and not with the respondent no. 2-Deputy Commissioner. In support of his submission,

learned counsel for the petitioner referred to the decision rendered in the case of Sushmita Kumari Vs. State of Jharkhand & Ors as reported in 2012 (1) JCR (Jhr) 294.

Learned counsel for the respondents-State canvasing his argument on the strength of counter affidavit filed by respondent no. 3 to 6, submitted that appointment

of respondent no. 7 has been made on the recommendation of Aam Sabha, who is competent authority to select Anganbari Sevika. Learned counsel for the

respondents-State further submitted that impugned order has been passed after perusing all relevant documents and after hearing both the parties at length. So far

question of residential status of petitioner vis-Ã -vis respondent no. 7 is concerned, in the impugned order it has been mentioned that in the Aam Sabha held on

25.08.2009 it was unanimously decided to include both the Tola i.e. Purvi and Paachami Tola as one Poshak Chetra; hence residential status of respondent no. 7

cannot be questioned as she fulfils the criteria as laid down in letter dated 02.06.2006 of the Department. So far higher qualification is concerned, it has been

submitted that as per the law laid down in L.P.A. No. 204 of 2009 (Sumati Devi Vs. State of Jharkhand & Ors) higher qualification is not a ground to set aside the

appointment of candidate, who has been legally selected by the Aam Sabha.

Learned counsel appearing for respondent no. 7 submitted that respondent no. 7 was selected by the Aam Sabha, who is the competent authority as per law to

select Anganbari Sevika and Sahayika and further respondent no. 7 fulfills all the eligibility criteria to be appointed on the post in question. In appeal filed against

cancellation of her appointment, the learned D.C. has dealt with all the points raised by the petitioner and has passed a reasoned and speaking order, which needs no

interference by this Court.

From the pleadings available on record, it is admitted fact that in the Aam Sabha held on 25.08.2009, the name of respondent no. 7 was recommended and

accordingly she joined the post of Anganbari Centre as Sevika. But, a complaint was made before Deputy Commissioner, Koderma by villagers including the

petitioner that the petitioner possesses higher qualification and further she belongs to the Poshak Chetra, as per Rule but ignoring these facts name of respondent

no. 7 has been recommended. Whereupon, enquiry was done and respondent no. 4- D.D.C referring to letter dated 02.06.2006, in particular, Clause 7 (ka), which says

candidate having higher qualification shall be given preference, and Clause 7 (ga), which says that candidate must belong to the Tola where Anganbari Centre is

situated, the authorities recommended the name of the petitioner for selection on the post in question and the appointment of respondent no. 7 was cancelled.

Aggrieved thereof, the respondent no. 7 preferred appeal being Misc. Appeal No. 1 of 2011 before the respondent no. 3-Deputy Commissioner, Koderma, which

was allowed cancelling the appointment of petitioner and respondent no. 7 was re-appointed on the post in question.

At this juncture, learned counsel for the petitioner referring to Clause 17 of the letter dated 02.06.2006 submitted that Deputy Commissioner has no authority to

cancel the appointment of Sevika or Sahayika and further appeal lies before the Departmental Secretary.

For ready reference, to decide the merit of the matter as also authority to decide appeal, it would be apt to refer Clause 1, Clause 7 ¼d ,oa x½, 16 and clause 17

of the letter dated 02.06.2006 as also the relevant portion of proceeding of Aam Sabha dated 25.09.2009, which are quoted herein below:

“1.mi;qZDr fo""k; ds lEcU/k esa dguk gS fd foHkkxh; ladYi la[;k & 430 fnukad 05@05@2006 }kjk layXu fooj.kh ds vuqlkj jkT; esa dqy 6683 u;s vkaxuckM+h

dsUnzksa dks LFkkfir djus dh Lohd`fr iznku dh xbZ gSA mYys[kuh; gS fd vkaxuckM+h dsUnzksa dh LFkkiuk lkekU; {ks=ksa esa 1000 dh tula[;k ij rFkk vkfnoklh

{ks=ksa esa 700 dh tula[;k ij dh tk ldrh gSA iqjkuh 152 ifj;kstukvksa esa vkaxuckM+h dsUnzksa dh LFkkiuk o""kZ 1991 dh tux.kuk rFkk ubZ 52 ifj;kstukvksa esa 2001

dh tux.kuk ds vk/kkj ij dh xbZ gSA dkykarj esa tula[;k esa o`f) gksus] dsUnz LFkkfir djus ds ekinaM esa la'kks/ku gksus rFkk vukPNkfnr xkao@Vksys dks vPNkfnr

djus ds mn~ns'; ls vfrfjDr vkaxuckM+h dsUnzksa dh LFkkiuk dk izLrko Hkkjr ljdkj ds le{k fopkjk/khu FkkA le;d~ fopkjksijkar Hkkjr ljdkj us >kj[k.M jkT; ds fy, 6683 u;s

vkaxuckM+h dsUnzksa dh LFkkiuk dh Lohd`fr iznku dh gSAâ€​

7(d) vkaxuckM+h lsfodk dh U;wure 'kS{kf.kd ;ksX;rk izosf'kdk mÙkh.kZ gSA flQZ vuqlwfpr tutkfr@vuqlwfpr tkfr dh lsfodkvksa ds fy, U;wure ;ksX;rk izosf'kdk

vuqÙkh.kZ gSA lq;ksX; Js.kh dh vf/kdre 'kS{kf.kd ;ksX;rk okys mEehnokj dks izkFkfedrk nh tk;sxhA ijUrq tgk¡ mik;qDr@mi fodkl vk;qDr ;g eglwl djsa fd viokn

Lo:i fdlh ekeys esa ykHkkfUor oxZ dh fu/kkZfjr 'kS{kf.kd ;ksX;rk dh efgyk ugha fey jgh gS] rks ml fLFkfr esa lacaf/kr mik;qDr dks NwV nsus ds fy, izkf/kd`r fd;k tk

pqdk gSA 7¼x½ vkaxuckM+h lsfodk ml xk¡o dh LFkk;h fuoklh gksuh pkfg,] ftl xk¡o esa vkaxuckM+h dsUnz vofLFkr gksA ;fn vkaxuckM+h dsUnz fdlh xk¡o

ds Vksys esa vofLFkr gks rks mls mlh Vksys dk fuoklh gksuk pkfg, rFkk ykHkkfUorksa ds chp ls gh gksuh pkfg,A 16- vkaxuckM+h lsfodk@lgkf;dk }kjk vius

dÙkZO;ksa ds larks""kizn fuokZg ugha fd;s tkus] muds }kjk vfu;ferrk cjrs tkus] chekjh rFkk vU; dkj.kksa ls 15 fnuksa ls vf/kd vuqifLFkr jgus ij muls Li""Vhdj.k iwNdj

cky fodkl ifj;kstuk inkf/kdkjh mi fodkl vk;qDr ds iwoZ vuqeksnu ds i'pkr~ gh p;u eqDr djsaxsA p;u eqfDr dk vkns'k cky fodkl ifj;kstuk inkf/kdkjh fuxZr djsaxsA p;u

eqfDr ds vkns'k ds fo:) vihy mik;qDr ds ikl fd;k tk ldsxkA

17- funs'kd] lekt dY;k.k fu;eksa ls fopyu gksus dh fLFkfr esa lsfodk vkSj lgkf;dk dk p;u jn~n dj ldsaxsA bl vkns'k ds fo:) vihy foHkkxh; lfpo ds ikl fd;k tk;sxkA

Extracts of proceeding of Aam Sabha “----------- ljdkj ds fu;ekuqlkj u;s vkaxuckM+h dsUnz dh LFkkiuk izfr ,d gtkj dh tula[;k ij dh tkrh gSA vr% vkelHkk esa

iks[kjMhgk chp Vksyk vkaxuckM+h dsUnz ds fy, iks""kd {ks= ds :i esa iks[kjMhgk iwoZ ,oa if'pe Vksyk dks Hkh 'kkfey djus dh vke lgefr cuh --------- Â

From plain reading of Clause (1), it appears that in general area, which is the subject matter of present writ application, Anganbari Centre is to be made for the

population of 1000, hence, Purvi and Pachmi Tola of the village Pokhardiha was included to make one Poshak Chetra, which fact also finds mention in the proceeding

of Aam Sabha, on which, the petitioner also put his signature. Hence, the residential status of respondent no. 7 cannot be doubted for consideration on the post in

question. So far, eligibility criteria undoubtedly, respondent no. 7 was possessing minimum eligibility qualification and majority of villagers in the Aam Sabha

recommended her name; hence as per the law laid down in the case of Sumati Devi (supra) since the respondent no. 7 is continuing on the post in question and her

name was recommended by Aam Sabha, to meet the equity of justice the impugned order needs no interference by this Court.

From plain reading of said clauses, in particular clause 16 and 17, it further appears that in the circumstances of the case, neither Deputy Commissioner nor Deputy

Development Commissioner has authority to cancel the appointment and appeal against cancelation of such appointment lies before the Departmental Secretary.

Hence, in the circumstances the decision taken in the Aam Sabha dated 25.08.2009 being confirmed by the respondents-authorities only sustains. Furthermore, the

name of the petitioner at no point of time has been recommended by the Aam Sabha.

For the reasons, this Court finds no reason to interfere with the impugned order. Accordingly, the writ application stands dismissed.