JUDGMENT 1. - Instant petition has been filed with the grievance that despite petitioner being eligible for the post of Aaganwari Karya Karta, superseding her claim, respondent No.5 (Smt. Kamla Devi) was appointed vide order dated 27/03/06 (Ann.2) in clear violation of Circular dated 15/09/2003 (Ann.R5/7). 2. Petitioner holding qualification of Senior Secondary School Examination submitted her application for the post of Aaganwari Karyakarta in Aaganwari Centre, Garh-Medhia-Ke-Dhani, Village Panchayat-Hingota, Panchayat Samiti-Bandi Kui (district Dausa), while serving as Cook at Mid-day meal Centre in the School of Village Panchayat Hingota; wherefrom she resigned on 15/02/06 and her resignation was accepted vide communication dated 17/02/06. 3. Respondents issued Circular dated 15/09/2003 (Ann.R5/7) notifying Scheme prescribing procedure for selection & termination in respect of posts of Aaganbari Karyakarta & Sahiyaka - as per which, minimum qualification for urban area Aaganbari Karyakarta is 10th Class (Secondary School) passed while for Sahiyka - 8th Class passed and at the same time, for rural area Aaganbari Karyakarta is 10th Class passed but in case of non-availability of 10th Class qualified applicant, 8th Class qualified applicant may be considered with a rider that as and when eligible candidate is available, applicants duly selected with prescribed qualification lower than Secondary School (10th Class) would be terminated from service. Extract of Circular (Ann.R.5/7) reads ad infra: " 1- vkaxuckM+h dk;ZdrkZ@lgkf;dk ds fy, p;u dh tkus okyh efgyk xzkeh.k {ks= esa LFkkuh; xzke dh ,oa 'kgjh {ks=ksa esa mlh eksgYys@dkyksuh dh fuoklh ,oa fookfgr gksuh pkfg, rkfd izf'kf{kr efgykvksa dk M~ki vkmV ugha gks vkaxuckM+h dsUnz ds {ks= ls muds ?kj dh nwjh 1 fdeh ls vf/kd ugha gks mDr O;oLFkk vkxkeh p;u ij ykxw gksxhA 2- 'kgjh {ks=ksa esa dk;ZdrkZ dh U;wure 'kS{kf.kd ;ksX;rk 10oha ikl ,oa lgkf;dk dh 8oha ikl xzkeh.k {ks=ksa esa vkaxuckM+h dk;ZdrkZ dh ;ksX;rk ;Fkk lEHko lSd.Mjh ,oa miyC/k ugha gksus ij 8oha ikl gksuh pkfg, lgkf;dk Hkh ;Fkk lEHko 5oha ik; j[kh tkos ,oa 5oh ikl miyC/k ugha gksuh ij lk{kj efgyk Hkh j[kh tk ldrh gS xzke lHkk }kjk p;fur efgyk ds vfrfjDr mPp 'kS{kf.kd ;ksX;rk dh vU; efgyk miyC/k ugha gksus dh iw.kZ lurqf"V mijkUr gh f'kfFkyrk ij fopkj fd;k tkosA 3- efgyk ds LFkkuh; ,oa fookfgr gksus dh 'krZ esa fdlh Hkh izdkj dh f'kfFkyrk ns; ugha gksxh fu/kkZfjr 'kS{kf.kd ;ksX;rk dh efgyk miyC/k ugha gksus ij xzke esa miyC/k vf/kdre 'kS{kf.kd ;ksX;rk dh efgyk dk p;u fd;k tk ldrk gS ,slh efgyk ds p;u vkns'k esa ;g Li"V mYysf[kr fd;k tkos fd fu/kkZfjr 'kS{kf.kd ;ksX;rk dh efgyk miyC/k gksus ij mldks ekuns; lsok ls i`Fkd~ dj fn;k tkosxk blds izFke p;u vkns'k ,d o"kZ dk gksxk ,oa le; le; ij vf/kdre ,d o"kZ ds fy, vfHko`f) dh tk ldsxhA " Case set up by petitioner is that despite she submitted application for the post of Aaganbari Karykarta and holding Senior Secondary School Certificate being higher than minimum prescribed qualification of 10th Class, yet respondents arbitrarily selected & appointed respondent No.5 who is holding qualification of 8th Class, as Aaganbari Karyakarta vide order impugned. 4. However, this Court while admitting writ petition, operation of order dated 27/03/06 by which respondent No.5 was appointed, was stayed vide order dated 28/04/06. 5. Counsel for petitioner submits that once petitioner being eligible and available for consideration for the post of Aaganbari Karya Karta, there was no justification for respondents to appoint respondent No.5 who was neither eligible nor could have been considered particularly when eligible applicant like petitioner was available with higher than minimum qualification required; in such circumstances, order of appointment of respondent No.5 is wholly arbitrary and deserves to be set aside. 6. 6. In their reply, respondents-State interalia averred that since petitioner was already working as Cook in mid-day meal Centre in the same Panchayat school and has not resigned from the post of Cook; and submitted application directly to the Panchayat Samiti and not through School Head Master, her application was rightly cancelled and since there was no other applicant except respondent No.5, she was appointed as Aaganbari Karya Karta as per decision taken by Village Panchayat in its meeting held on 15/02/06. 7. However, eligibility of petitioner for the post of Aaganbari Karya Karta has not been disputed by respondents-State in their reply. 8. Respondent NO.4 has also filed reply through Secretary Panchayat Samiti, wherein it has been inter-alia averred that petitioner being eligible was considered by Gram Panchayat Hingota on her application sent by village Panchayat for the post of Aaganbari Karyakarta for Aaganbari Centre Garh-Medhia-Ke-Dhani; at the same time, without respondent No.5 being recommended, she was given appointment vide order impugned. 9. Respondent No.5 has also filed a separate reply inter-alia averring that no such application of petitioner was available at the time when consideration was made by Gram Panchayat for making appointment to the post of Aaganbari Karya Karta and when complaint was made, it was investigated through Panchayat Samiti - in course whereof, it was prima facie opined that name of petitioner appeared to have been later on included in the minutes of Gram Sabha and further observed that respondent No.5 being only applicant for Aaganbari Karya Karta, she was rightly selected and appointed vide order impugned. Respondent NO.5 in her reply also averred that the petitioner was in service as Cook at Mid-day Meal Centre on 15/02/06 - certificate whereof has been filed of 17/02/06 (Ann.R5/10). Counsel for respondent further submits that in view judgment of Apex Court in State of Karnataka v. Ameerbi (2007(1) SLR 722 ), instant petition is not maintainable and deserves to be dismissed. 10. I have considered contentions of Counsel for the parties and with their assistance, examined the material on record. Counsel for respondent further submits that in view judgment of Apex Court in State of Karnataka v. Ameerbi (2007(1) SLR 722 ), instant petition is not maintainable and deserves to be dismissed. 10. I have considered contentions of Counsel for the parties and with their assistance, examined the material on record. As regards objection raised about maintainability of the petition, suffice is to say that judgment of Apex Court in State of Karnataka v. Ameerbi (supra) is of no assistance in the facts of instant case for the reason that question arose for consideration before Apex Court was as to whether Aaganbari Workers are holder of civil post under the State being appointed under integrated Child Development Scheme floated & funded by Central Government and applications of such Aaganbari Workers filed before Tribunal under Central Administrative Tribunal Act, 1985 is maintainable or not. Apex Court finally observed that since they did not hold civil post, their applications filed before Tribunal was not maintainable. Whereas in instant case, question for consideration is not as to whether they are holder of civil posts or not; and is that once respondents have introduced Scheme through Circular (Ann.R5/7) laying down procedure for selection and termination for appointment to the post of Aaganbari Karya Karta & Sahiyka, it was expected from the State Government & its functionaries to make appointment in terms of Circular and so also in consonance with Arts.14 & 16 of the Constitution; and if action of State Government appears to be in violation of the Scheme, it can be interfered with by this Court U/Art.226 of the Constitution. Hence preliminary objection about maintainability stands overruled. 11. Now adverting to merits, from minutes of Gram Sabha held on 15/02/06 (Ann.R.5/2) clearly shows that there were only two applications submitted for the post of Aaganbari Karya Karta - reference whereof has been made in item No.1 & 2; and since petitioner was working as Cook at Midday meals Centre of the Panchayat, name of respondent No.5 was placed at S.No.1 in select list - as a consequence whereof was given appointment vide order dated 27/03/06. It also remained uncontroverted that petitioner held qualification of 12th Class (Senior Secondary School Certificate). 12. In terms of Circular dated 15/09/03 (Ann.R 5/7), as per which selections are to be made, there is no such rider that those who are working elsewhere are not eligible to participate. It also remained uncontroverted that petitioner held qualification of 12th Class (Senior Secondary School Certificate). 12. In terms of Circular dated 15/09/03 (Ann.R 5/7), as per which selections are to be made, there is no such rider that those who are working elsewhere are not eligible to participate. At the same time, as regards present petitioner, it has been specifically averred that she tendered her resignation on 15/02/06 which was accepted in the same meeting held on 15/02/06 - a copy of which was sent to the School, received by its Head Master on 17/02/06 and from 18/02/06 in her place, one Smt. Safedi Saini was appointed to perform duties of Cook at Mid-day Meals Centre of the Panchayat. Thus, very premise on which respondents rejected candidature of petitioner that she was serving as Cook, is either way not sustainable from the material on record. That apart, as regards reasons assigned by respondents that petitioner has not submitted application through Head Master of the School where she was serving as Cook, suffice it to say that there was no such requirement under Scheme (Ann.R.5/7). 13. From material on record it appears that their application was duly considered by respondents in Gram Sabha held on 15/02/06 and without any reasonable justification, respondent No.5 holding lower than minimum qualification prescribed for the post, which can be relaxed only if applicants of requisite minimum qualification of 10th Class are not available, still was appointed. In the facts of instant case, despite the petitioner with higher qualification than minimum qualification prescribed under Circular (Ann.R.5/7), being available, respondents cannot be said to be justified in depriving her from fair consideration for appointment impugned; and in such circumstances, very appointment made of respondent No.5 superseding right of petitioner vide order impugned is not legally sustainable and deserves to be set aside.Consequently, writ petition succeeds and is hereby allowed. Order dated 27/03/06 (Ann.2) pertaining to appointment of respondent No.5 is hereby quashed and set aside. Respondents are directed to consider the petitioner for appointment to the post of Aaganbari Karya Karta. Respondents shall make compliance within three months. No order as to costs.Writ Petition Allowed *******