Zubeda Akhter vs State and Others

Hasnain Massodi, J.—The petitioner, on the strength of case set up in the petition, seeks following reliefs:-

A writ of Certiorari quashing Order No. DSWJ/ICDS/2006/07 dated 27.2.2007 alongwith Order No. DSWJ/ICDS/608/07 dated 21.4.2007

issued by respondent No. 2 in violation of SRO 16 dated 28.1.2004.

A writ of Mandamus commanding respondents to accord promotion to the petitioner to the post of Supervisor under RBA category under J&K

Reservation Act, 2004 read with SRO 294 dated 21.10.2005.

The facts relevant to disposal of the writ petition are as under:-

The petitioner, vide Order No. CDPO/P/290-93/85 dated 01.03.1985, was appointed as Anganwari Worker in Anganwari Centre Patta, Block

Pouni, District Reasi.

The petitioner after performing her duties as Anganwari Worker to entire satisfaction of the superiors for about two decades, made successive

representations for her promotion to the post of Supervisor under Reserved Backward Area (RBA) Category in terms of Jammu and Kashmir

Reservation Act, 2004 read with Jammu and Kashmir Reservation Rules, 2005

notified Vide SRO 294 of 21.10.2005. The petitioner is aggrieved that Director Social Welfare Department - Respondent No. 2 herein,

erroneously forwarded the petitioner's case for relaxation in upper age limit vide communication No. DSWJ/ICDS/2006/07 dated 27.2.2007,

assuming that the petitioner to be promoted as Supervisor, was to be below upper age limit prescribed under rules. The petitioner's case is that

once the respondent No. 2 as admitted in the aforesaid communication, found one post of Supervisor available to be filled up from Reserved

Backward Area Category, he was to order promotion of the petitioner to the post of Supervisor in accordance with rules. It is pointed out that in

terms of Jammu and Kashmir Social Welfare (Non Gazetted) Service Recruitment Rules, 1991 as amended by SRO 16 of 28.1.2004

(Recruitment Rules of 1991 hereinafter), 25% post of Supervisors in the Social Welfare Department are to be filled up from graduate Anganwari

Workers with five years of service and to the extent of 25% from matriculate Anganwari Workers with ten years of service.

The petitioner's case is that the requirement of upper age limit of 39 years for appointment by selection to the post of Supervisor does not find

mention in Recruitment Rules of 1991 amended upto date and that the respondents lacked authority to deny promotion to the petitioner on the

ground of her having crossed upper age limit. Having regard to Recruitment Rules of 1991 read with SRO 29 of 7.2.2005, the petitioner pleads,

she having passed higher secondary examination Part-I and having 20 years service as Anganwari Worker to her credit, is eligible for promotion to

the post of Supervisor in terms of Jammu and Kashmir Reservation Act, 2004 read with Jammu and Kashmir Reservation Rules, 2005 notified

Vide SRO 294 of 21.10.2005 and that recommendation for relaxation of age is in conflict with the rule position as also the practice in vogue where

under a large number of Anganwari Workers in the age group of 40 to 57 stand promoted to the post of supervisor.

The respondents in their reply while admitting almost all the factual averments made in the petition seek dismissal of the writ petition on the

ground that the post of supervisor in terms of Recruitment Rules of 1991, is not to be filled up by promotion as pleaded, from Anganwari Workers

satisfying criteria as regards length of service and academic qualification as laid down in the rules. It is insisted that the Recruitment Rules of 1991

as amended upto date provide for filling up of the post of supervisor by selection and not by promotion as claimed by the petitioner. The

respondents plead that the recruitment rules merely set apart 50% of the posts to be filled up by the Anganwari Workers satisfying the prescribed

eligibility criteria and an Anganwari Worker to be considered by the Departmental Promotion Committee for selection against the post of

Supervisor has to fulfill the requirements of age as prescribed under rules. The respondents' case is that the petitioner's with 7.5.1965 as her date

of birth, having crossed prescribed upper age limit on the date the post of Supervisor became available, could not be considered for appointment

by selection to the post of Supervisor, unless upper age limit was relaxed by the Competent Authority. The respondents in the said background

justify communication No. DSWJ/ICDS/2006/07 dated 27.2.2007 and plead that no interference, is warranted in the matter.

I have gone through the pleadings and record available on the file. I have heard learned counsel for the parties.

The Integrated Child Development Scheme conceived and started in the year 1975 - 76 and continued with a widened area of operation,

envisages integrated delivery of services like supplementary nutrition, immunisation, health check up, reference services, non formal education to

pre-school children and pregnant and nursing women. Health and nutrition education, under the scheme is to be extended to all women in the age

group of 15-45. The scheme in addition to improvements in health and nutritional status of children, is aimed at reduction of instances of school

dropouts and laying the foundation for proper psychological, physical and social development of the child. The Anganwari Worker is a key actor in

implementation of the scheme. The Anganwari Worker in terms of the scheme is to be a lady of 18-44 years of age from the local village,

acceptable in the local community and to be selected by a committee consisting of District Social Development Officer, Block Development

Officer, Child Development Officer, Medical Officer of the Primary Health Centre, Resident of Taluka Panchayat/Block Advisory Committee with

the District Programme Officer as its Convenor. The Anganwari Worker is under the scheme an honorary worker and does not hold a civil post.

The Apex Court in State of Karnataka and ors v. Ameer Bi and ors Civil Appeal Nos. 4953 - 4957 of 1998 has held: -

The post of Anganwari workers are not statutory posts. They have been created in terms of the scheme, it is one thing to say that there exists a

relationship of employer and employee by and between the State and Anganwari Workers but it is another thing to say that they are holders of civil

posts.

The Court holding that law laid down in State of Assam and Others Vs. Shri Kanak Chandra Dutta, , whereby a Mauzadar appointed for the

purpose of collection of revenue was held to hold a civil post was not applicable in case of an Anganwari Worker proceeded to observe:-

Anganwari Workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created.

Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the

constitutional scheme of equality as adumbrated under Article 14 and 16 Constitution of India. No process of selection for the purpose of their

appointment within the constitutional scheme existed."" In view of the settled legal position, there is no scope for disagreement with learned counsel

for the respondents that an Anganwari Worker does not hold a civil post but is an honorary worker under the Integrated Child Development

Scheme.

There can also be no disagreement with learned counsel for the respondents that the Recruitment Rules of 1991 do not create a promotional

avenue for the An-ganwari Workers and that the post of Supervisor in terms of the Recruitment Rules of 1991 is to be filled up by selection from

amongst the Anganwari Workers fulfilling the eligibility criteria laid under rules. The Recruitment Rules of 1991 merely identify the sources of

recruitment to the post of Supervisor. In terms of Rules 50% of the posts are to be filled up by direct recruitment from the eligible candidates, 25%

of the posts by selection from graduate Anganwari Workers with five years experience and 25% of the posts by selection from matriculate

Anganwari Workers with ten years of service. The petitioner against the said backdrop cannot set up a case for her promotion to the post of

Supervisor. This, however, does not clinch the matter.

The respondents admit that the petitioner having regard to her length of service as Anganwari Worker and the academic qualification to her credit,

is eligible for being selected for the post of Supervisor. Such an admission on part of the respondents is apparent from letter No.

DSWJ/ICDS/2006/07 dated 27.2.2007 and DSWJ/ICDS/608/07 dated 21.4.2007 addressed by Director Social Welfare Department

(Respondent No. 2) to the Secretary to Government, Social Welfare Department, J&K, Jammu (Respondent No. 1) wherein the petitioner is

reported to be eligible for her selection to the post of Supervisor. According to the respondents the only impediment in way of the petitioner to be

selected as Supervisor under the Recruitment Rules of 1991 as amended from time to time read with Jammu and Kashmir Reservations Act and

Rules made thereafter, is her age. Communication No. DSWJ/ICDS/2006/07 dated 27.2.2007 indicates that the petitioner was 41 years 8 months

and 25 days of age on the day she was to be considered for selection against the post of Supervisor available in District Udhampur and her age

exceeded the upper limit of 39 years prescribed for appointment in the Government service, by 2 years 8 months and 25 days. The case set up by

the respondents in opposition to the petitioner's claim may on the first blush sound convincing but pales into insignificance once the Recruitment

Rules of 1991 and Scheme under which the Anganwari Worker is engaged are given a closer look.

It is pertinent to point out that the Scheme while laying down criteria for engagement of Anganwari Worker does not adhere to the age limits

prescribed under Rules governing appointment to Government service (Civil Service Regulations). In terms of scheme as already pointed out, a

lady otherwise eligible to be engaged as an Anganwari Worker may be so engaged even where her age exceeds (up to five years) the upper age

limit prescribed under the Rules. The focus having regard to the object of the scheme is not on the age of the lady proposed to be engaged as

Anganwari Worker but her roots in the local village and acceptability in the local community. The rule makers while setting apart in the Recruitment

Rules of 1991.50% post of the Supervisors for Graduate and Matriculate Anganwari Worker with five and ten years' experience respectively, are

presumed to have been alive to the fact that having regard to the age limits laid down under the Scheme, an Anganwari Worker eligible under the

Recruitment Rules of 1991 for selection against the post of Supervisor, must have crossed the upper age limit by the date consideration for

selection is granted to her. The rule makers thus can be safely presumed to have exempted the eligible Anganwari Workers from the rigor of upper

age limit prescribed under Rules. Any view contrary to the above presumption is bound to render the reservation of 25% post of Supervisors for

matriculate Anganwari Workers with ten years service anomalous. In other words, if, only such of the matriculate Anganwari Workers with ten

years experience, who have yet to attain 39 years age, are held to be eligible for selection against the post of Supervisor, a large number of

Anganwari Workers, otherwise, eligible shall be excluded from consideration and the very purpose of the scheme frustrated.

It is pertinent to point out that provision in the Scheme for engagement of Anganwari Worker within the age group of 18-44 years is not without

purpose. The object is to engage a lady who has crossed 39 years of age but because of her commitment, compassion, expertise and her

acceptability in the community, is well suited to play the role envisioned under the Scheme. It needs no emphasis that an Anganwari Worker having

regard to the laudable objects of the Scheme is expected to be equipped with missionary zeal to reach out to the marginalized, unattended and

disempowered sections of the society. If such of the ladies who volunteer to work as Anganwari Workers but have crossed 39 years of age, have

their career development channels permanently blocked, they may despite their aptitude and experience very well stay away from the programme

otherwise socially oriented making it difficult for the promoters of the Scheme to achieve the desire targets.

It is well settled law that a provision of law/rule, is to be given purposive interpretation i.e. an interpretation that advances the object underlying the

rule and not one that frustrates or defeats such object. The Recruitment Rules of 1991 as these relate to the criteria and mode and manner

prescribed for appointment to the post of Supervisor are to be held to provide that the Anganwari Workers fulfilling the eligibility criteria as regards

length of service and academic qualification are to be considered for selection to the post of supervisor irrespective of upper age limit for

appointment in Government service, prescribed under rules.

Another aspect of the scheme must attract our attention in the context of present controversy. In terms of Ministry of Social Welfare MSW No.

19-9/85-CD (II) dated 13.8.1985, the period of work put by a candidate as Anganwari Worker is to be deducted from her age for the purpose

of determining her eligibility for the post of Supervisor, on the ground of age. It would be advantageous to extract the communication hereunder:-

3.2.23 The AWWS fulfilling the educational qualifications for directly recruited supervisors may be considered. The following guidelines should be

followed in considering the eligibility of AWWS for direct recruitment to the post of Supervisor in ICDS project:

(i) Experience of work as AWW should be treated as additional useful experience.

(ii) Wherever any age limit has been prescribed for candidates for the posts of Supervisors, period of work put in by a candidate as AWW should

be deducted from her age for the purposes of determining her eligibility on ground of age.

(iii) For this purpose it is clarified that the actual period subject to a maximum period of 15 years put in by a candidate as a AWW as a

Mukhyasevika will be 45 years.

The above discussion apart, it appears that the respondents over the years have appointed Anganwari Workers otherwise satisfying the eligibility

criteria as regards length of service and academic qualification as laid down in the rules, who had crossed the upper age limit without forwarding

their case(s) for relaxation in age. The record available on the file reveals that Ms. Sneha lata, Anganwari Worker of Anganwari Centre, ICDS

Project, Reasi, District Udhampur vide Order No. DSWJ/ICDS/5933-36/05 dated 18.8.2005, Ms. Kanta Devi, Anganwari Worker of

Anganwari Centre, ICDS Project, Reasi, District Udhampur vide Order No. DSWJ/ICDS/5945-48/05 dated 18.8.2005 and Ms. Purna Devi

(SC) Anganwari Worker of Anganwari Centre, ICDS Project, Reasi, District Udhampur vide Order No. DSWJ/ICDS/ 9686-89/05 dated

8.10.2005 have been selected as Supervisors on the dates they had crossed upper age limit. The averment made and ground urged has been left

uncontroverted by the respondents. The record thus substantiates the petitioner's case that the petitioner has been singled out for a treatment not

given to the similarly situated colleagues.

From the above discussion, it emerges that an Anganwari Worker satisfying the eligibility criteria as regards length of service and academic

qualification prescribed under Recruitment Rules of 1991 as amended up-to-date, is eligible to be considered for appointment by selection against

the post of Supervisor against the quota prescribed under Rules.

Viewed thus, the writ petition is allowed and the respondents are directed to place the petitioner's case for selection against the post of Supervisor

before the Competent Authority under Rules. The authority competent to take a decision in the matter, having regard to the inordinate delay in

according consideration to the petitioner's case for selection and appointment against the post of Supervisor, shall take a decision in the matter

within 15 days from the date copy of the order is served on the respondents.

Disposed of.