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2011 DIGILAW 753 (MP)

Upma Singh v. The Commissioner, Rewa

2011-07-12

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. The petitioner has come before this Court by way of filing present writ petition under Article 226 of the Constitution of India ventilating her grievance against the order dated 24.05.2004 passed by the Commissioner, Rewa, Division Rewa, respondent No. 1, by which revision of one Smt. Sadhna Singh, the original respondent No. 4 filed against the order dated 18.11.2002 passed by the Collector, Rewa has been allowed and the said original respondent No. 4 was permitted to continue on the post of Anganwadi Worker in Anganwadi Center Gurh within the jurisdiction of Gram Panchayat, Uparwar, District Rewa, contending that the Collector, Rewa was apprised of the fact that the petitioner was rightly selected being a local resident of the area under the scheme of the State Government, and an order of appointment was to be issued in her respect. However, the resolution which was rightly sent by the Gram Panchayat Uparwar, was interfered by the authorities and though the name of the original respondent No. 4 was not included in the Panel so prepared by the Gram Panchayat, yet the order of appointment was issued in her favour. When an enquiry was conducted in an Appeal filed by the petitioner, by the Collector this fact was found that the original respondent No.4 was not the local resident of village Gurh, where the Anganwadi was to be opened and, therefore, according to the scheme made by the State Government, she was not entitled to be appointed on the said post After holding such enquiry and obtaining reports, the order of appointment of original respondent No. 4 was set aside and direction was given to appoint the present petitioner. Pursuance to this order, the petitioner was appointed on 28.12.2002 as Anganwadi Worker at Gurh and she started working but because of the order passed by the respondent No. 1 in the revision of original respondent No. 4 on 24.05.2004, the appointment of the petitioner was cancelled and the respondent No. 4 was permitted to continue on the post of Anganwadi Worker. It is further contended that the respondent No. 4 continued on the post till her death and after her death fresh proceedings were initiated for recruitment. These facts were brought to the notice of this Court by making an application LA. No. 6928/2009 by which the petitioner has sought an amendment in the writ petition. It is further contended that the respondent No. 4 continued on the post till her death and after her death fresh proceedings were initiated for recruitment. These facts were brought to the notice of this Court by making an application LA. No. 6928/2009 by which the petitioner has sought an amendment in the writ petition. It is the case of the petitioner that since, respondent No. 4 was not to be permitted to continue in the employment because of the fact that her selection was illegal, the order passed by the Commissioner is to be quashed. The order of the Collector is to be given stamp of approval by this Court and consequent to this, the person who has been appointed through fresh selection is required to be removed and the petitioner is entitled to be continued on the post of Anganwadi Worker. 2. The respondents were served and a return was filed by the original respondent No. 4 while she was alive through her counsel. The proceedings which were subsequently initiated were sought to be challenged by way of amendment in the writ petition by the petitioner. The person who was selected subsequent to the death of original respondent No. 4 on the very same post came before this Court by way of filing an application for seeking intervention to oppose the claim made by the petitioner. All these aspects have been taken note of in the order sheets and the respondent/State was specifically directed to file a return. However, it appears that the respondent/State was not willing to file any return and despite the orders of this Court has not produced any original record of selection held in the year 2000. This Court therefore, was left with no option but to hear the matter on the basis of whatever documents are available on record. 3. Learned counsel for the intervener vehemently contended that since, the original respondent No. 4 has died, the petition which was filed against her appointment and against the order of the Commissioner, respondent No. 1, is abated. The effect of the death of original respondent No. 4, according to the learned counsel for the intervener/respondent No. 7 is that nothing is to be adjudicated and the petition is liable to be dismissed. The effect of the death of original respondent No. 4, according to the learned counsel for the intervener/respondent No. 7 is that nothing is to be adjudicated and the petition is liable to be dismissed. It is contended that the intervener has been properly selected against the vacancy created on account of death of original respondent No. 4 and since, she is working on the post, no adverse order with respect to such appointment of the respondent No. 7 could be passed by this Court. It is further contended that the petitioner could have file an appeal against the order of appointment of intervener/respondent No. 7 before the competent authority but this too has not been done. Therefore, it is vehemently contended that the writ petition is liable to be dismissed on this count as well. 4. I have heard the counsel for the parties at length and have perused the record minutely. 5. Firstly, the objection raised by the intervener/ respondent No. 7 with respect to the maintainability of the present writ petition is required to be addressed. Admittedly, when the writ petition was filed, the respondent No. 4 was alive and was holding the post of Anganwadi Worker at Anganwadi Center, Gurh. Her appointment was challenged by the petitioner in a regular appeal before the Appellate Authority within time and the said appointment was set aside. In a revision filed before the respondent No. 1, Commissioner Rewa, Division Rewa, the original respondent No. 4 was given an order of protection inasmuch as her revision was allowed and the order of the Collector, Rewa was set aside by the Revisional Authority, respondent No. 1. However, pursuance to the order passed by the Collector, the petitioner was already appointed on the post of Anganwadi Worker at Gurh and she had started working. She was removed from post only because of the order passed by the respondent No. 1 in the revision filed by the original respondent No. 4. This petition is directed against that order of the Commissioner, Rewa, Division Rewa and in case, it is found that the Revisional Authority committed an error of law in deciding the revision of original respondent No. 4 in her favor and setting aside the order of Collector, Rewa issued in favour of the petitioner then of course, the writ petition would be allowed. The result of allowing the writ petition would be the selection and appointment of original respondent No. 4 as was found illegal by the Collector, Rewa will be set aside and the result would be the petitioner would continue on her post of Anganwadi Worker at Gurh. There would be no question of initiating fresh proceedings for recruitment afresh after the death of respondent No. 4 since she could not be there as a legal appointee and there being no vacancy, the post being occupied by the petitioner, the selection of respondent No. 7, intervener could not have taken place at all. Thus, such an objection of the respondent No. 7 is to be rejected out rightly at thresh hold. 6. The other aspects is that the petitioner was contesting against the original respondent No. 4 right from very beginning as soon as the said respondent was appointed as Anganwadi Worker. Not only a regular appeal was filed by the writ petitioner before the respondent No. 2, Collector, Rewa but also the favorable order was issued in respect of the petitioner, consequence where of she was appointed as Anganwadi Worker at Gurh. But for the order of the Commissioner, Rewa there was no reason for removal of the petitioner from services and as such there was no question of making fresh proceedings for recruitment of a new Anganwadi Worker. 7. In view of this also if subsequent proceedings of selection which were also called in question in the present writ petition and a consequential order of appointment issued in respect of intervener/respondent No. 7 was not challenged in an appeal, it cannot be said that the petitioner has not resorted to statutory remedy available under the scheme of filing an appeal against the order of appointment and, therefore, she is not entitled to claim any relief in the writ petition. Such a baseless plea of respondent No. 7 is not to be accepted. The petitioner was not contesting against the intervener/respondent No. 7 against her selection. On the other hand, she was already given an order of appointment on the very same post, pursuance to the order of Collector, Rewa passed in Appeal of the petitioner for which subsequent proceedings were initiated for recruitment. Therefore, on such grounds also the petitioner cannot be thrown over board. On the other hand, she was already given an order of appointment on the very same post, pursuance to the order of Collector, Rewa passed in Appeal of the petitioner for which subsequent proceedings were initiated for recruitment. Therefore, on such grounds also the petitioner cannot be thrown over board. The fact remain that respondent No. 7 in fact stepped in the shoes of original respondent No. 4 on account of her appointment on the post which fallen vacant on account of death of original respondent No. 4. 8. Lastly, the principle of lis pendens is squarely applicable in such a case. As has been explained hereinabove, but for the order passed by the respondent No. 1 in favor of original respondent No. 4, there was no occasion to file the present writ petition before this Court, available to the petitioner. She was already appointed as Anganwadi Worker at Gurh, pursuance to order passed by the Collector, Rewa in her appeal. If the writ petition was once filed against the order of the Commissioner by which the appointment of petitioner was disturbed as Anganwadi Worker at Gurh and such writ petition was entertained, notices were issued to the respondents, nothing could have been done by the respondents except waiting for a decision on the writ petition of the petitioner or seeking at least liberty to make appointment against vacancy which occurred on account of untimely death of original respondent No. 4 during pendency of the petition. However, the fresh proceedings were done by the official respondents and a recruitment was done on the post of Anganwadi Worker at Gurh. If the order impugned of the Commissioner in this writ petition is set aside the result as has been explained hereinabove would be continuance of the petitioner on the post of Anganwadi Worker at Gurh, where she was already given order of appointment on 28.12.2002 (Annexure P-12) of the petition. In such circumstances, no occasion was there to make recruitment on the post of Anganwadi Worker at Gurh and in that situation, the intervener, respondent No. 7 would not have been given any appointment at all. In such circumstances, no occasion was there to make recruitment on the post of Anganwadi Worker at Gurh and in that situation, the intervener, respondent No. 7 would not have been given any appointment at all. If such erroneous actions were initiated by the Official respondents knowing fully well that the petition was pending before this Court, no right is conferred on the intervener, respondent No. 7 to say that the order passed in this writ petition would not be binding on her. Settled position of law is that the moment a writ petition or litigation is entertained the principles of" lis pendens" became applicable automatically and any act done subsequent to bringing the litigation in the Court is always subject to the final outcome of the litigation. In view of this also it cannot be said that the order passed by this Court would not be binding on the intervener, respondent No. 7. 9. Having considered the legal position in the peculiar facts and circumstances of the case, now I will proceed to decide the controversy involved. A perusal of the order passed by the Collector in the Appeal of the petitioner contained in Annexure P-11, clearly indicates that the report was asked, as to, who was the local resident of the particular area where the Anganwadi was to be established. The information in this respect was specifically given that only three applications were received, one from the petitioner herein, other one from Smt. Chanda Devi and third one from Smt. Duasiya. The applications were considered by the Gram Panchayat and as the name of the petitioner was at serial No. 1, the resolution was passed and sent for appointment of petitioner on the post of Anganwadi Worker in the Anganwadi Center, Gurh. The name of the original respondent No.4 was never included in the same for the simple reason that it was found that she was not a local resident of the area of Gurh. On the other hand, she was residing in village Uparwar. The fact remains that the name of the original respondent No. 4 was proposed for her appointment in Anganwadi Center at Uparwar and not at Gurh. 10. It will be more appropriate to consider what were the instructions of the State Government with respect to such appointments. The scheme made by the State Government for appointments of Anganwadi Worker is placed on record. 10. It will be more appropriate to consider what were the instructions of the State Government with respect to such appointments. The scheme made by the State Government for appointments of Anganwadi Worker is placed on record. The scheme as was applicable in the year 2000 was circulated vide memo dated 27.05.1996 (Annexure P-7) filed with the petition. The essential conditions which were mentioned were that a lady seeking appointment on the post of Anganwadi Worker should not be less than 18 years of age and should not be above 44 years. The said candidate must have passed matriculation examination. It was very categorically stated that for selection specific conditions were to be fulfilled, such as the candidate must be a resident of the very same village/ Panchayat/ Ward, where Anganwadi was to be established and her name must have been recorded in the voter list of that village, (emphasis supplied). 11. Thus, the main criteria was not only the age and qualification but was essentially local residence. It cannot be said that such a condition cannot be imposed for the purpose to initiate, organize and constitute Anganwadis in a smaller areas. The object of the scheme is to provide educational and Social information to the women living in the area as also provide care and look after to the children of the area. It is essential that a local resident of the area is given preference because not only she is known to the women folk but also able to look after the children by giving more time to the work assigned. Thus, if such a condition is mentioned in a particular scheme it cannot be said that any discrimination is done on the basis of residence of a candidate and as such the same is volatile of the provisions of the Constitution of India or the equality Clause enshrined in the Constitution of India. This being so, it was necessary to prove that the candidate was, not only age wise, education wise eligible but also was eligible on account of her residence in the local area. This being so, it was necessary to prove that the candidate was, not only age wise, education wise eligible but also was eligible on account of her residence in the local area. The documentary evidence is produced with the writ petition to indicate that the petitioner and two others were considered by the Gram Panchayat, Uparwar for appointment in Anganwadi of village Gurh and the candidature of original respondent No. 4 was not considered in the said meeting held on 30.07.2000 because she was the local resident of village Uparwar and no* that of village Gurh. This being so, the petitioner was at serial No. 1 and the recommendation was strongly made that she should be appointed as Anganwadi Worker at Gurh Center. The resolution of the Gram Panchayat Annexure P-5 to the writ petition, was in fact, reflecting the wish of the local people as the Gram Panchayat is said to be representative of the local people. Therefore, as against this the candidature of the original respondent No.4 for her appointment at Anganwadi Center, Gurh was not to be considered at all by any authority nor any order of appointment was required to be issued in her respect. 12. This being so, after holding the enquiry the Collector, Rewa was correct in setting aside the illegal appointment of original respondent No. 4 on the post of Anganwadi Worker in Center Gurh and commanding that the petitioner should be appointed on the said post out of the Panel recommended by the Gram Panchayat, Uparwar. 13. As has been stated, pursuance to this order the petitioner was already appointed on the post of Anganwadi Worker at Gurh by the competent authority on 28.12.2002 vide Annexure P-12 to the writ petition. There was no occasion for challenging such an order but a revision was filed before the Commissioner, Rewa Division Rewa, who came to the conclusion that since, the recommendation of the name of original respondent No. 4 was made, the Collector was not required to interfere in such order of appointment of original respondent No. 4. There was no occasion for challenging such an order but a revision was filed before the Commissioner, Rewa Division Rewa, who came to the conclusion that since, the recommendation of the name of original respondent No. 4 was made, the Collector was not required to interfere in such order of appointment of original respondent No. 4. However, the Commissioner, Rewa Division Rewa grossly fell in error in not examining the scheme made by the State Government, the reasoning assigned by the Collector as to why appointment of original respondent No. 4 was bad and opposed to the scheme of the State Government and wrongly held that the Collector travel beyond the jurisdiction in interfering with the order of appointment of original respondent No. 4. The Commissioner, further fell in error in holding that as per the scheme, the widow lady was to be given preference over and above other candidates. 14. Such findings recorded by the Commissioner are unjustified and perverse and do not make out a case for disturbing the reasoned order of the Collector passed in the Appeal of the petitioner. Firstly, it was not examined by the Commissioner that the name of the original respondent No. 4 was not in the Panel of persons recommended for appointment in the Anganwadi Center at Gurh. Her name was for the Anganwadi Center at village Uparwar. Consequently, a widow is to be given preference only if, all the applicants have equal standard of eligibility. The preference is not to be given merely because of a status of a lady. This being so, the findings recorded by the Commissioner in disturbing well reasoned order of Collector, Rewa cannot be given stamp of approval by this Court. 15. Accordingly, the writ petition succeeds and is hereby allowed. The order of respondent No. 1, Commissioner, Rewa dated 24.05.2004 (Annexure P-1) is hereby quashed and the order of the Collector, Rewa passed in the Appeal of the petitioner on 18th November, 2002 (Annexure P-11) is hereby affirmed. Consequently, the order of appointment of the petitioner dated 28.12.2002 (Annexure P-12) is also affirmed. The order of respondent No. 1, Commissioner, Rewa dated 24.05.2004 (Annexure P-1) is hereby quashed and the order of the Collector, Rewa passed in the Appeal of the petitioner on 18th November, 2002 (Annexure P-11) is hereby affirmed. Consequently, the order of appointment of the petitioner dated 28.12.2002 (Annexure P-12) is also affirmed. The petitioner, who is out of the employment because of the continuance of original respondent No. 4 till her death and thereafter because of illegal order of appointment of intervener/ respondent No. 7 which has been issued treating a vacancy on the post on account of death of respondent No. 4, is entitled to be reinstated on the post of Anganwadi Wroker at Gurh. The petitioner be reinstated in service immediately and be given the charge of the post without any loss of time. 16. The writ petition succeeds and is allowed. However, looking to the peculiar facts of the case there shall be no order as to costs.