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2009 DIGILAW 1265 (JHR)

Sangita Gupta v. State of Jharkhand

2009-09-10

D.G.R.PATNAIK

body2009
JUDGMENT I.A. No. 2354 of 2009 in W.P.(S) No. 4509 of 2007 has been filed on behalf of the petitioners praying for deleting the name of the petitioner no. 1 who has died. In view of the above, name of the petitioner no. 1 Sangita Gupa is deleted from the cause title. I.A. is disposed of. Since the issues involved in both the writ application are the same, they have been heard together and are being disposed of by this common order. Heard Shri Binod Kumar Dubey, learned counsel for the petitioners and JC to SC-II for the respondent State. 2. Challenge in both the writ applications is to the order dated 17.5.2007 (Annexure-6) issued by the District Programme Officer, Hazaribagh (Respondent No. 4), by which a direction was issued to the CDPO, Chauparan, Hazaribagh (Respondent No. 5) to conduct a fresh selection process for appointment of Aanganwari Sewikas at village Machale Angan Bari Centres and other adjoining centres. 3. Learned counsel for the petitioners submits that the petitioners were admittedly appointed on the post of Aanganwari Sewikas and they were allowed to work for more than 10 months. The petitioners however, were taken by surprise on being informed of the impugned order (Annexure-6) passed by the Respondent No. 4 whereby a direction was given to the Respondent No. 5 for holding a fresh Aam Sabha for appointment of Aanganwari Sewika for the same centres in spite of the fact that the petitioners were already working on the post pursuant to their earlier selection. Learned counsel submits that the aforesaid direction apparently amounts to cancellation of the petitioners’ appointment and the same could not have been issued without affording the petitioners a reasonable opportunity of being heard and to justify their selection. Learned counsel adds further that even otherwise, the Respondent No. 4 had no authority to issue any such direction to the CDPO for holding a fresh Aam Sabha for the purpose of selection and appointment of Aanganwari Sewika for the same centre which had already been concluded more than 10 months ago by selection and appointment of the petitioners. 5. Learned counsel adds further that even otherwise, the Respondent No. 4 had no authority to issue any such direction to the CDPO for holding a fresh Aam Sabha for the purpose of selection and appointment of Aanganwari Sewika for the same centre which had already been concluded more than 10 months ago by selection and appointment of the petitioners. 5. To buttress his argument, learned counsel would refer to the judgments of this court passed in the case of Nilima Mandal vs. The State of Jharkhand and others [W.P.(s) 4561 of 2006] and in the case of Pushpa Kumari and others vs. The State of Jharkhand and others [W.P.(S) No. 3156 of 2007] and another judgment in the case of Smt. Sharda Devi and others vs. The State of Jharkhand and othes [ 2001 (1) JLJR 237 ]. 6. Per Contra, learned counsel for the respondent State, by referring to the several paragraphs of the counter-affidavit and to the annexure thereto, would want to clarify that though the petitioners were appointed after their selection to the post of Aanganwari Sewika, but even as would be manifest from the appointment letter (Anenxure-2), such appointment was made conditional subject to the final approval of the competent authority namely, the Deputy Commissioner. The petitioners were never served with the final order of appointment and in the meantime, it was detected that the very selection process as adopted by the Aam Sabha at which the petitioners were selected and appointed, was illegal, in as much as, the prescribed mandatory procedure was not complied with. Learned counsel explains that as per the procedure laid down, candidates who belong to the majority community inhabiting the village, would only be eligible for their selection subject to other conditions as applicable. It was found that neither of these petitioners belong to the majority community of the villages where the Angan Bari Centres are located and as such, their selection and appointment itself was improper and therefore, a decision was taken to hold a fresh Aam Sabha for the purpose of selection and appointment of Aanganwari Sewika in the aforesaid centres. It was found that neither of these petitioners belong to the majority community of the villages where the Angan Bari Centres are located and as such, their selection and appointment itself was improper and therefore, a decision was taken to hold a fresh Aam Sabha for the purpose of selection and appointment of Aanganwari Sewika in the aforesaid centres. Learned counsel adds that pursuant to the direction issued by the District Programme Officer (Respondent No. 4), the CDPO (Respondent No. 5) has held a meeting of Aam Sabha and candidates have been selected by unanimous resolution of the Aam Sabha and the appointed Aanganwari Sewikas are already functioning. 7. Notwithstanding the explanation offered by the counsel for the respondents, it is not denied that the impugned order (Annexure-6) has been passed by the authority who is not competent to pass such orders. From the very nature of the impugned order, there cannot be any dispute that the consequent effect of compliance of the order would be an automatic cancellation of the appointment of the petitioners. The petitioners could not have been subjected to suffer such civil consequences without being offered adequate opportunity of being heard since admittedly, their appointment was made pursuant to their selection by the Aam Sabha and they have been allowed to work continuously for more than 10 months. 8. In the light of the above facts and circumstances, and finding merit in the present writ application, I dispose of these applications with a direction to the Deputy Commissioner, Hazaribagh (Respondent No. 2) to conduct an inquiry into the matter within two months from the date of receipt/production of a copy of this order, after giving adequate opportunity to the petitioners of being heard and take an appropriate decision on the issues raised, in accordance with law. However, the appointment of the fresh candidate made in the subsequently held Aam Sabha, shall be subject to the result of the inquiry conducted by the Deputy Commissioner, Hazaribagh (Respondent No. 2). Let a copy of this order be given to the learned counsel for the respondent State.