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2011 DIGILAW 1056 (JHR)

Sushmita Kumari v. State of Jharkhand

2011-12-02

PRASHANT KUMAR

body2011
JUDGMENT This writ application has been filed for quashing the order dated 19.08.2011 passed by Respondent No.2 (Deputy Commissioner, Giridih) in Case No.11 of 2011, whereby decision taken by Respondent No.3, approving selection of petitioner for appointment on the post of Aanganwadi Sevika of Uttimtand Aanganwadi Centre has been set aside and the CDPO (Respondent No.4) was directed to convene a fresh Aam Sabha for selection and appointment of Aanganwadi Sevika. 2. It is stated that petitioner was appointed on the post of Aanganwadi Sevika of Uttimtand Anganwadi Centre with the approval of Respondent No.3, vide Order contained in Annexure 3. It is further stated that one Sangita Kumari (Respondent No.5) filed writ application in this Court, challenging the appointment of petitioner, which was disposed of by order contained in Annexure 6. Annexure 6 reveals that this Court refused to entertain aforesaid writ application of Sangita Kumari, because an enquiry is pending before the Deputy Commissioner (Respondent No.2). It then appears that Deputy Commissioner, after making enquiry, has come to the conclusion that selection of petitioner made without following the procedure, therefore, approval given by DDC is not in accordance with law. Accordingly, by impugned order dated 19.08.2011 (Annexure 7) decision of DDC, giving approval on the selection of petitioner, has been set aside and Respondent No.4 was directed to convene a fresh Aam Sabha for selection of Aanganwadi Sevika. 3. It is submitted by Sri Pandey Niraj Rai, learned counsel for petitioner that DC have no power to cancel appointment on the ground that same was made in violation of procedure laid down in the Circular issued by the State Government (Annexure 1). It is submitted that in Clause 17 of Annexure 1, it is mentioned that if an Aanganwadi Sevika appointed in violation of Rule, then the Director, Social Welfare has power to cancel such appointment. It is further submitted that against the order of Director, Social Welfare, appeal will lie before the Departmental Secretary. It is submitted that from perusal of impugned order, it is clear that Respondent No.2 set aside the decision of Respondent No.3 approving petitioner's selection, because due procedure has not been followed. According to Sri Rai, Respondent No.2 has no power to pass aforesaid order in view of Clause 17 of Annexure 1. 4. It is submitted that from perusal of impugned order, it is clear that Respondent No.2 set aside the decision of Respondent No.3 approving petitioner's selection, because due procedure has not been followed. According to Sri Rai, Respondent No.2 has no power to pass aforesaid order in view of Clause 17 of Annexure 1. 4. Learned J.C. to G.P.1 and learned counsel for Respondent No.5 submitted that petitioner's appointment is illegal because same was made in violation of Clauses 13 and 14 of Circular as contained in Annexure 1. Thus, they submit that Respondent No.2, being superior authority of Respondent No.3, has rightly set aside the appointment and asked the CDPO to convene a fresh Gram Sabha so that Aanganwadi Sevika can be appointed in accordance with law. 5. Having heard the submission, I have gone through the record of the case. Admittedly the State of Jharkhand issued a Circular laying down various procedure for appointment of Aanganwadi Sevika and also procedure for termination of their services. As per Clause 17 of Annexure 1, if an Aanganwadi Sevika appointed in violation of Rules, then Director, Social Welfare, is competent to cancel her appointment. The said Rule further provides that against the order passed by Director, Social Welfare, an appeal will lie before Departmental Secretary. Clause 16 of aforesaid Circular provides that if after appointment any Aanganwadi Sevika remain absent from services for 15 days or her service is not satisfactory, then CDPO with the approval of DDC can terminate (Chayan Mukta) her service. It further provides that against aforesaid order of termination passed by CDPO, aggrieved person can file an appeal before the Deputy Commissioner (Respondent No.2). 6. Thus, from perusal of aforesaid provisions contained in Annexure 1, it is clear that Respondent No.2 has no power to cancel any appointment, on the ground that the same was made in violation of Rule. From perusal of Annexure 7 (impugned order), it appears that Respondent No.2 set aside the order of appointment of petitioner, because same was made in violation of Rules prescribed by the State Government as contained in Annexure 1. This power he did not have, because according to Clause 17 of Annexure 1, such power vested in Director, Social Welfare. 7. From perusal of Annexure 7 (impugned order), it appears that Respondent No.2 set aside the order of appointment of petitioner, because same was made in violation of Rules prescribed by the State Government as contained in Annexure 1. This power he did not have, because according to Clause 17 of Annexure 1, such power vested in Director, Social Welfare. 7. The irregularities pointed out by learned counsel for the Respondent No.5, i.e. Gram Sabha had not recommended the name of petitioner and/or DDC gave approval after a lapse of 15 days from the date of receipt of recommendation of selection committee in violation of clause 14 of Annexure 1 will not give power to Respondent No.2 to set aside aforesaid order of appointment. The aforesaid irregularities pointed out by learned counsel for the Respondent No.5 only shows that appointment of petitioner was made in violation of procedure laid down in Annexure 1. If such irregularities are there, as pointed out by learned counsel for Respondent No.5, then proper authority to cancel the appointment is Director, Social Welfare and not the Deputy Commissioner. 8. Since, Respondent No.2 has no power to cancel the appointment of petitioner, because same was made in violation of Rule, in my view, impugned order is without jurisdiction and non-est in the eye of law. 9. In the result, this application is allowed and impugned order dated 19.08.2011 passed by Respondent No.2 (Deputy Commissioner, Giridih) in Case No.11 of 2011 is hereby quashed.