Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 151 (BOM)

Sangita Ulhas Gadilkar v. State of Maharashtra

2012-01-20

S.V.GANGAPURWALA

body2012
Judgment Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioner was appointed after following due selection process as Anganwadi Sevika. The respondent No.5 being aggrieved by the selection and appointment of the petitioner, approached the Divisional Commissioner, Nashik by filing Appeal purportedly U/s 155 of the Bombay Village Panchayat Act, 1958 ( For short, 'Act of 1958'). The Divisional Commissioner, Nashik allowed the said Appeal by invoking powers U/s 267-A of the Maharashtra Zilla Parishad and Panchayat Samities Act, 1961 (For short, 'Act of 1961'). The petitioner filed Writ Petition No.6272 of 2010 before this Court. The said order was set aside and the matter was remitted back to the Divisional Commissioner, Nashik. The respondent No.2 was directed to decide the proceedings before him including the question about the jurisdiction of the Divisional Commissioner U/s 267-A of the Act of 1961. After the remand, the Divisional Commissioner, Nashik confirmed the earlier order and directed to adopt re-selection process. The said Judgment is assailed in the present Writ Petition. 3. Mr. S.S. Jadhavar, the learned counsel for the petitioner strenuously contends that the appointment of the petitioner was legal and proper and after following due process of law. The respondent No.5 was working in private Balwadi and as such the ground raised by the respondent No.5 that she should be directly appointed is without any substance. The learned counsel further contends that the Divisional Commissioner, Nashik U/s 267-A of the Act of 1961 does not have jurisdiction to set aside the appointment and the selection process. 4. Mr. N.B. Narwade, the learned counsel for respondent No.5 submits that the Divisional Commissioner, Nashik has jurisdiction U/s 267-A of the Act of 1961 to consider the legality and validity of the selection and the appointment of Anganwadi Sevika. The learned counsel relies on the order passed by the Division Bench of this Court in W.P. No.1527 of 2007 dated 31/07/2007 and contends that the Division Bench of this Court in similar set of facts had observed that the Divisional Commissioner can consider the matter regarding the appointment of Anganwadi Sevika. The learned counsel further contends that the Divisional Commissioner has rightly come to the conclusion about the claim of the present respondent. 5. Mr. S.B. Pulkundwar, the learned Assistant Govt. The learned counsel further contends that the Divisional Commissioner has rightly come to the conclusion about the claim of the present respondent. 5. Mr. S.B. Pulkundwar, the learned Assistant Govt. Pleader for State submits that the Division Bench of this Court has already held that the Divisional Commissioner can decide about the legality of the appointment and can issue fresh directions in this regard. 6. With the assistance of the learned counsel, I have gone through the provisions and the order passed by the Division Bench of this Court in W.P. No.1527 of 2007. 7. Section 267-A of the Act of 1961 reads as under, : "267-A : Commissioner's power of suspending execution of unlawful order of resolution of Zilla Parishad or Panchayat Samiti, etc. (1) If the Commissioner is satisfied that it is necessary in the public interest so to do, he may be order in writing under his signature suspend the execution of any order or resolution, or prohibit the doing of any act, by a Zilla Parishad, or its Committee or Panchayat Samiti which, in his opinion, is unlawful; and it shall be the duty of the Zilla Parishad or its Committee or the Panchayat Samiti, as the case may be, to comply with such order. (2) If, in the opinion of the Commissioner, the execution of any order or resolution of a Zilla Parishad or its Committee or Panchayat Samiti or the doing of anything by a Zilla Parishad or its Committee or Panchayat Samiti is inconsistent with the instructions or directions given or issued under sub-section (1) of Section 261, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof and it shall be the duty of the Zilla Parishad or its Committee or Panchayat Samiti, as the case may be, to comply with the order of the Commissioner." 8. The Division Bench of this Court in W.P. No.1527 of 2007 vide its order dated 31/07/2007 while considering the bunch of Writ Petitions filed by the unsuccessful candidates against the persons who were selected for the post of Anganwadi Sevika in different villages, has after quoting the provision U/s 267-A of the Act of 1961, observed as under : "3. The Division Bench of this Court in W.P. No.1527 of 2007 vide its order dated 31/07/2007 while considering the bunch of Writ Petitions filed by the unsuccessful candidates against the persons who were selected for the post of Anganwadi Sevika in different villages, has after quoting the provision U/s 267-A of the Act of 1961, observed as under : "3. On perusal of the record of each matter, we are of the considered view that proper remedy for the petitioners would be under the provisions of Section 267-A of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 ( hereinafter referred to as, ' the said Act ' ), whereby the Commissioner of the concerned district is empowered to suspend the execution of unlawful order or resolution of the Zilla Parishad or Panchayat Samiti, etc." "4. In one of the matter, learned counsel for the petitioner raised doubt whether the Commissioner would have power to terminate the appointment on the ground that it was unlawful. However, the provisions of Section 267-A(1) of the said Act read thus : "267-A :-Commissioner's power of suspending execution of unlawful order of resolution of Zilla Parishad or Panchayat Samiti, etc. (1) If the Commissioner is satisfied that it is necessary in the public interest so to do, he may be order in writing under his signature suspend the execution of any order or resolution, or prohibit the doing of any act, by a Zilla Parishad, or its Committee or Panchayat Samiti which, in his opinion, is unlawful; and it shall be the duty of the Zilla Parishad or its Committee or the Panchayat Samiti, as the case may be, to comply with such order." "Therefore, it is quite clear that the Commissioner has power not only to suspend the execution of any order or resolution, but has also power to prohibit the doing of any act by Zilla Parishad or its Committee or Panchayat Samiti, if in his opinion it is found to be unlawful." "5. Under the circumstances, the Commissioner, needless to mention, should go into the disputed facts involved in all the matters, so as to determine whether the orders passed in this regard against the petitioners and selected concerned respondents were lawful or unlawful, and if those are found to be unlawful, he certainly have right to remedied the wrong by issuing necessary directions. We further direct that the commissioner, if the orders are found to be unlawful in these matters, would be at liberty to consider the claims of the petitioners if those are found to be legitimate. The petitioners are directed to make application in this regard to the Commissioner under the said provisions within two weeks from the date of this order. The Commissioner to determine the enquiries under the said provision within a period of eight weeks from the date of this order." 9. The appointment of Anganwadi Sevika is made by a Committee constituted under the Integrated Child Development Scheme (For short, 'said Scheme'). The said Committee is headed by local M.L.A.. The Child Development Project Officer is a Member Secretary. It is the said selection Committee, which invites applications from the eligible candidates to fill in the post of Anganwadi Sevika/Madatnis and the selection is done by the said selection committee, which is independent of the Zilla Parisahd and constituted solely under the said Scheme. It is as per the selection made by the said committee, the appointment order is issued by the Zilla Parishad. Section 267-A of the Act of 1961 has its operation in a limited sphere. 10. In the present case, the selection is done by a Committee which is constituted not by the Zilla Parishad but under the said Scheme promulgated by the Government. The said selection process would not be controlled by the Zilla Parishad. The appointment orders are to be made pursuant to the merit list of the candidates submitted by the Selection Committee. A candidate who gets the highest mark, is to be recommended for appointment by the Selection Committee and thereafter the appointment is made. The said process of selection would not be within the realm of Section 267-A of the Act of 1961. 11. The Division Bench of this Court while passing the order in W.P. No.1527 of 2007 dated 31/07/2007 has not considered this aspect and has relied on Section 267-A of the Act of 1961 only and formed an opinion. 12. Section 267-A of the Act of 1961 will have to be read vis-a-vis the selection process involved in the appointment of Anganwadi Sevika/Madatnis under the said Scheme. 13. Propriety requires that the issue arising in this petition should be heard by the Division Bench / Larger Bench of this Court. 12. Section 267-A of the Act of 1961 will have to be read vis-a-vis the selection process involved in the appointment of Anganwadi Sevika/Madatnis under the said Scheme. 13. Propriety requires that the issue arising in this petition should be heard by the Division Bench / Larger Bench of this Court. Even otherwise, it will be more advantageous if the said issue is resolved by the Division/Larger Bench of this Court. 14. In my view, the following issue arises for consideration of the Larger Bench : "Whether the Commissioner U/s 267-A of the Maharashtra Zilla Parishad and Panchayat Samities Act, 1961 has jurisdiction to set aside the appointment of Anganwadi Sevika/Madatnis made pursuant to the recommendation of the Selection Committee constituted under the Integrated Child Development Scheme?" 15. The Registrar ( Judicial ) is directed to place the papers of the Writ Petition along with copy of the order before the Hon'ble the Chief Justice in accordance with Rule 7, Chapter 1 of the Bombay High Court (Appellate Side) Rules, 1960.