Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 682 (PAT)

Kanti Devi v. State Of Bihar

2005-08-03

BARIN GHOSH

body2005
Judgment 1. Every Tola comprising of the population of 1000 is entitled to have one Anganbadi Sevika and one Anganbadi Sahayika. There may be a village where there is only one Tola. There may be villages where there are more than one Tola. The object of appointing Anganbadi Sevikas and Anganbadi Sahayikas is to ensure preprimary education to the children of the villages. Before 1998 there was no Gram Panchayat in the State of Bihar, but Anganbadi Sevikas as well as Anganbadi Sahayikas were to be appointed. The Government thus issued a guideline for such appointments. 2. It must be kept in mind that neither Anganbadi Sevika nor Anganbadi Sahayikas are employed. They are authorised to render voluntary services. Their engagement can be brought to an end only on the ground of irresponsibility. However, they are not entitled to a notice to disengage them and that is specifically a part of the scheme for appointing such Anganbadi Sevikas as well as Anganbadi Sahayikas. 3. After Panchayat Raj was established in the State of Bihar, a new circular was issued whereby parts of the previous circular were amended. Inasmuch as the volunteers are to be appointed for the purpose of imparting pre-primary education to iittle children of the villages, it had althrough out been thought that the people whose children would be so taught should under the guidance of appropriate authority be the best persons to select such volunteers. In the 2001 circular it has been provided that such selection shall be made at the level of the Gram Panchayat but the selection shall be at the Tola level, which was also the mandate of the previous circular. 4. In Bagaha Prakhand, there are 24 panchayats and there are 297 Kendras which suggest that there are 297 Tolas. For these Kendras, Anganbadi Sevikas and Anganbadi Sahayikas were selected. Subsequently, as authorised, the District Magistrate through the Sub-Divisional Officer caused an enquiry to be made in relation to selection of such Anganbadi Sevikas and Anganbadi Sahayikas. The Sub-Divisional Officer investigated selection in relation to 14 Panchayats and found that each such 14 Panchayats has followed the same pattern of selection. He pointed out five defects in the selection. Subsequently, as authorised, the District Magistrate through the Sub-Divisional Officer caused an enquiry to be made in relation to selection of such Anganbadi Sevikas and Anganbadi Sahayikas. The Sub-Divisional Officer investigated selection in relation to 14 Panchayats and found that each such 14 Panchayats has followed the same pattern of selection. He pointed out five defects in the selection. One of the major defects pointed out by him was that these selections were done on a date fixed by the Panchayat at the Panchayat Office and that the selection was not done at Tolas and accordingly in respect of the person selected for a particular Tola, it is not known whether the people residing therein had agreed by majority to such selection. The District "Magistrate then directed the Child Development Project Officer (CDPO) to cancel such selection and to select new volunteers. In terms thereof the CDPO issued a notice and thereby did away the engagements of all such selected volunteers including those of the petitioners. The petitioners contend that the report of the SubDivisional Officer pertains to only 14 Panchayats but by the orders impugned the engagements in all other Panchayats have also been terminated. It was contended that the same could not be done. It. was next contended that even after the inspection was carried out by the Sub-Divisional Officer, selection took place and at least those selections could not be set at naught based on an anterior report. In the report, five points of irregularity have been highlighted, and amongst them the irregularity already mentioned above was also highlighted. 5. Learned counsel for the petitioners submits that the petitioners belong to all 24 Panchayats. It is surprising, however, that nowhere it has been stated in the petition that in any of the Panchayats the selection took place at the Village level or at the Tola level as is the requirement. It has also not been stated that the selections, which took place after the report, were conducted at the Village or Tola level. The same infirmity, as was pointed out by the Sub-Divisional Officer, was permitted to perpetuate even after the report was submitted. The irregularity, as mentioned above, goes to the root of the selection. It has also not been stated that the selections, which took place after the report, were conducted at the Village or Tola level. The same infirmity, as was pointed out by the Sub-Divisional Officer, was permitted to perpetuate even after the report was submitted. The irregularity, as mentioned above, goes to the root of the selection. The basic object and purpose of bringing the selection at Tola level is to ensure that the person to be engaged is selected by the people whose children would be taught by the selected person. This having not been done, despi a clear cut direction to the effect, vitiates the selection itself. 6. A report has been submitted by the CDPO but in that she has not at all mentioned that such a requirement is there and that the selection had been made upon compliance of such direction. It is unfortunate that she is not aware of the guidelines and the basic principles behind making those guidelines. 7. Be that as it may, the learned counsel for the petitioners is correct that the District Magistrate could not recommend cancellation of the selection of the volunteers, nor could the engagement of the volunteers be brought to an end as was done by Annexure-1 and Annexure-1/A to the writ petition. This is also known to the respondents and accordingly they have modified the order and permitted the already engaged persons to continue until fresh selection is made. This modification has been brought on record in the counter affidavit itself. 8. The petitioners were selected enmass and not on the mandate of the local people for local centers as they should have been selected. This error is sought to be rectified by permitting the local people to choose their Anganbadi Sevlkas and Anganbadi Sahayikas, The petitioners are also entitled to offer themselves for the services. By reason of the changed stand taken by the respondents I.e. to permit the petitioners to work until they are replaced by properly selected persons, the petitioners have not suffered at all, nor any of their legal right, which can be protected by taking recourse to Article 226, has been affected, for the engagement of the petitioners did not vest any right in their favour as they had been and are continuing to be volunteers, having no right in the engagement. 9. 9. Learned counsel for the petitioners cited a judgment of the Supreme Court for the proposition that before the engagement of a person is done away with, he is entitled a notice thereof. In that case.the Supreme Court was not dealing with volunteers. The Supreme Court was dealing with the people appointed in Government posts. A person who is appointed in a Government post acquires a right in the post. He cannot be removed from that post without giving an opportunity of hearing to him and that is the constitutional mandate contained in Article 311 of the Constitution of India. Such a mandate is not applicable to a person who has been engaged purely on voluntary basis. 10. It was urged on behalf of the learned counsel for the petitioner that an anterior report cannot be used to upset a fact which has come into being subsequent to that report. There cannot be any quarrel to that proposition, but that principle in the instant case is not applicable for the Sub-Divisional Officer in his report pointed out that each Panchayat is making gross mistake in selecting Anganbadi SevIkas and Anganbadi Sahayikas enmass and not by confining such selection at Tola or Centre or Village level and that finding has not been questioned. 11. In those circumstances, there is nothing further to be done in the writ petition for the fact that Annexure-1 and Annexure-1/A have been diluted by the modification thereto brought on record in the counter affidavit and as such the writ petition is disposed of without any order as to costs.