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2007 DIGILAW 613 (PNJ)

Jasvir Kaur v. State Of Punjab

2007-03-22

JAGDISH SINGH KHEHAR, S.D.ANAND

body2007
Judgment S.D.Anand, J. 1. It is apparent from the record that the grievance of the petitioner, vis-a-vis the appointment of respondent No. 6 to the post of Anganwari Worker, is based on the fact that she was more meritorious and the latter (respondent No. 6) had been wrongly appointed. The plea is contested by the respondents who have joined issue by filing independent written statements. One joint written statement was filed by respondent Nos. 1 and 4: while yet another was filed by respondent No. 2. As noticed in order dated 11.5.2006, respondent No. 6 adopted the written statement filed on behalf of respondent Nos. 1 and 4. The plea put forward on behalf of the respondents is that though both the candidates (i.e. the petitioner and respondent No. 6) were equal in terms of merit, preference in the matter of appointment was given to respondent No. 6 as she was older in her age. 2. It is beyond the pale of controversy that, as between the two equally meritorious candidates, the one older in age would be entitled to preference. 3. The merit-related position of all the candidates (petitioner and respondent No. 6 included) considered, in the context, is evident from a perusal of the chart placed on file as Annexure R-l/T, which is enclosed with this judgment and which would be deemed to be a part thereof. 4. The following proposition of law requiring consideration emerges from the pleadings of the parties and also the points canvassed before us. Respondent No. 6 did not indeed have any experience as Anganwari Worker. As against it, the petitioner did have experience as Anganwari Worker, for the period 10.12.2001 to 18.9.2002 and 17.10.2002 to 13.10.2003 on the authority of an earlier appointment which came to be invalidated at a later point of time. The challenge preferred by the petitioner and those similarly circumstanced like her to their termination was declined by this Court. 5. The plea urged on behalf of the respondent that the experience gained by the petitioner on an appointment which came to be invalidated by the Competent Authority, cannot be considered to be an experience validly gained by the incumbent of that post. A plea to that effect appears in para 2 of the written statement filed by respondent Nos. 1 and 4. 6. A plea to that effect appears in para 2 of the written statement filed by respondent Nos. 1 and 4. 6. It is, thus, the conceded that if the experience gained by the petitioner is held to be against a valid appointment, she would have to be considered to be more meritorious if counted in terms of marks. It may be noticed that the party averring invalidity of the appointment has not indicated that the appointment of the petitioner to the post of An-ganwari Worker came to be invalidated on point of essential ineligibility or it had to be invalidated on account of an irregularity committed by the competent Authority in the course of the process of appointment. If it is a case in which an ineligible candidates is appointed to the post and the appointment is invalidated, that appointee cannot be heard to draw any sustenance from the experience gained against a post for which he was not eligible. However, if the appointment gets invalidated for any other reason, there is no law which could deny the benefit of experience so gained by the appointee. In the present case, it was for respondent Nos. 1 and 4 to indicate and elaborate the reason on account of which the appointment of the petitioner came to be invalidated. The onus was squarely upon those respondents only to aver and prove that fact. In the absence thereof, no inference can be drawn that there was any want of eligibility in the petitioner on account of which she could not have been appointed to the post of Anganwari Worker. That being so, the petitioners claim for the grant of marks for the experience gained as Anganwari Worker is valid. 7. There can be no dispute with the proposition that the Rules do provide for according of priority to an older candidate in the matter of appointment. However, that could be so if both the candidates are of equal merit. On account of giving of benefit of experience to the petitioner, her ranking in terms of marks would be higher than respondent No. 6. Thus, the rule requiring the according of priority to an older candidate would not come into play. 8. For the reasons noticed above, this writ petition shall stand allowed. The impugned order, appointing respondent No. 6 to the post of Anganwari Worker, shall stand quashed. Thus, the rule requiring the according of priority to an older candidate would not come into play. 8. For the reasons noticed above, this writ petition shall stand allowed. The impugned order, appointing respondent No. 6 to the post of Anganwari Worker, shall stand quashed. Respondent No. 4 is directed to appoint the petitioner as Anganwari Worker of village Dharmgarh. As the fate of this litigation turns on interpretation of a Rule, both the parties shall bear their own costs of cause.