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2008 DIGILAW 1133 (JHR)

Lilawati Devi v. State of Jharkhand

2008-09-18

D.K.SINHA, GYAN SUDHA MISRA

body2008
Order This appeal has been preferred by the appellant Smt. Lilawati Devi against the order dated 14.8.2006 passed in W.P.(S) No. 188 of 2006 by which the writ petition was dismissed holding therein that the order dated 26th July, 2004 granting promotion to the petitioner on the post of Anganbari Sewika was not fit to be sustained as her initial appointment as Sahayika itself was illegal since she was not duly qualified. Thus the order dated 21.10.2005 issued by the Deputy Commissioner, Garhwa whereby selection of the petitioner on the post of Sevika had been cancelled, was upheld by the learned Single Judge. 2. Challenging the order passed by the learned Single Judge, it was submitted that the appellant had been initially appointed as Anganbari Sahayika by order dated 13.8.1997 and thereafter on completion of her training on the said post in Angan Bari Training Centre, Dumardag, Hanchi, she was recommended for confirmation. In the meantime, a writ petition W.P.(S) No. 3628 of 2005 was filed before this Court by one Smt. Asha Devi, challenging the order dated 26th July, 2004 by which the petitioner/appellant herein was appointed as Anganbari Sewika which was a promotional post. A Bench of this Court disposed of the same and the matter was remitted to the competent authority to consider whether the promotion granted to the appellant/petitioner as Anganbari Sewika was fit to be sustained. At the stage of enquiry, it was held that the initial appointment of the petitioner/appellant on the post of Sahayika was itself not sustainable as she was not a matriculate and her initial appointment itself was illegal and hence the order of promotion also was not fit to be sustained. 3. The petitioner/appellant herein, therefore, filed a writ petition before this Court challenging the order passed by Deputy Commissioner, Garhwa, by which the order of promotion was cancelled and along with the same her initial appointment as Sahayika was also set aside by the authority. It was, therefore, contended that even if it were to be held that the appellant was not rightly granted promotion on the .post of Anganbari Sewika, her initial appointment as Anganbari Sahayika could not have been set aside by the authority concerned. It was, therefore, contended that even if it were to be held that the appellant was not rightly granted promotion on the .post of Anganbari Sewika, her initial appointment as Anganbari Sahayika could not have been set aside by the authority concerned. It was further argued that even if it were to be contended that her initial appointment itself was also illegal, the same could not have been done without issuing show-cause notice to the petitioner officially at a stage when her case for promotion was considered and an order of promotion was also granted. 4. The counsel for the respondents/ State also could not refute the position that the appellant had initially been appointed as Anganbari Sahayika which is reflected from the impugned order by which the promotion of the appellant was cancelled and he further could not controvert the fact that no show-cause notice was issued to the petitioner before canceling her initial appointment. 5. We find substance in the argument to the effect that even if the competent authority being the Deputy Commissioner, Garhwa found that the promotion granted to the petitioner was not fit to be sustained, the fact remains that at the said stage, the initial order of appointment, which was made in the year 1997, could not have been set aside in the same proceeding which had been initiated to consider her case for promotion. To clarify the position further, it may be observed that there appears to be substance in the argument that even if the promotion of the petitioner was not fit to be sustained, the order of her initial appointment on which she was discharging her duties for more than 8 years, could not have been cancelled. It is further noted that the order of initial appointment made in the year 1997 was quashed while considering the case of the petitioner for promotion without even granting any opportunity of hearing to the appellant meaning thereby that even if her case for promotion could not be sustained, both the orders granting promotion and the order of her initial appointment could not have been quashed and set aside simultaneously specially in absence of any opportunity' of hearing or show-cause to her. 6. 6. We, therefore, find sufficient reason to set aside the order passed by the learned Single Judge as also the order dated 21.10.2005 passed by the Deputy Commissioner, Garhwa in so far as her initial appointment on the post of Anganbari Sahayika is concerned. But in so far as her claim for promotion on the post of Anganbari Sewika is concerned, we refrain from interfering with that part of the order of the Deputy Commissioner by which her promotion was set aside for the reasons assigned by the Deputy Commissioner as also on the basis of the argument advanced by the counsel for the petitioner who submitted that even though her promotion could have been set aside by the Deputy Commissioner, Garhwa her appointment on the post of Anganbari Sahayika could not have been set aside. We further deem it appropriate to add that Smt. Asha Devi, who had assailed the appointment of the appellant, herself had filed an affidavit in this Court that she is not interested in claiming any appointment on the post of Anganbari Sahayika as she has found better opportunity of employment, but even if she had insisted not to surrender her claim on the post, the fact remains that the appellant's appointment on the post of Anganbari Sahayika could not have been interfered with by the Deputy Commissioner for the reasons stated herein-above. Thus the appointment of the petitioner/appellant on the post of Anganbari Sahayika shall not be disturbed. Consequently, this appeal is partly allowed.