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2013 DIGILAW 1094 (JHR)

Veena Devi v. State of Jharkhand

2013-09-24

APARESH KUMAR SINGH

body2013
ORDER Heard learned counsel for the parties. 2. The petitioner is aggrieved by the order dated 26.08.2009, Annexure-6, passed by the Deputy Development Commissioner, Dhanbad, by which her appointment as Anganbari Sevika has been rejected on the ground that she has moved under above poverty line category. As per the departmental guidelines, a candidate of above poverty line category is not entitled for such appointment. 3. Earlier the petitioner had occasioned to move this Court in WPS. No.1424 of 2008 against her discharge from service as Anganbari Sevika. In the said writ petition the petitioner has assailed the earlier order of discharge from service dated 12.02.2008 as being arbitrary and in violation of the principle of natural justice after five months of appointment to the said post. By the said impugned order dated 12.02.2008 the petitioner was discharged from service. The said discharge apparently was made after an inquiry on receipt of complaint regarding the selection process. The learned Single Bench of this Court, in such circumstances, after hearing the parties, quashed the order of discharge on the ground that there were no documents to indicate that the said inquiry was conducted in presence of the parties. The respondents authorities were allowed liberty to conduct a fresh inquiry into the complaint against the petitioner after giving adequate opportunity of hearing in respect of her selection and appointment to the post of Anganbari Sevika. The said inquiry was directed to be completed within a period of three months from the date of receipt of the order. Thereafter, the respondents initiated an inquiry proceeding in which the petitioner was noticed to appear. The proceedings of the said inquiry are enclosed as AnnexureA/1 to the counter affidavit filed on behalf of the respondents. The respondents had also adjourned the matter during course of inquiry on repeated time being sought for or in the absence of the petitioner for giving her enough opportunity. Further notices were also issued on 19.06.2009, which is AnnexureA/1 to the counter affidavit indicating therein that the petitioner should participate in the said inquiry, failing which it would be taken that she has to take no defence. It was also followed by another notice dated 01.07.2009. 4. It is the case of the petitioner that her husband's name is reflected in the list of the persons shown in BPL Category. It was also followed by another notice dated 01.07.2009. 4. It is the case of the petitioner that her husband's name is reflected in the list of the persons shown in BPL Category. As per the extracts of the list annexed to the supplementary affidavit filed on 30.03.2010, the name of the husband of the petitioner is at Survey List No.7807, Annexure8 to the supplementary affidavit. It is the contention of the petitioner that even from the impugned order, Annexure-6, it appears that the Deputy Development Commissioner had considered that her name was there in the BPL list but she has moved under APL Category, however, the same can not be a ground to reject her appointment. 5. The respondents, on the other hand, have stated that even at the time of her initial appointment itself the another candidate, namely Janki Devi made a complaint, which was inquired into on 14.11.2007, Annexure-A to the supplementary counter affidavit filed on 17.10.2011. It was found that the petitioner was having a qualification of intermediate in third class while the complainant having a qualification of intermediate in second class, but both of them could not be said to be under below poverty line. The husband of the petitioner having a tractor, motorcycle and other business and complainant also belongs to an influential family. Therefore, her name could be removed from the BPL Category. 6. Counsel for the respondent by relying upon Annexure-A to the first supplementary counter affidavit filed on 20.09.2011, submits that under the criteria laid down therein, there is automatic exclusion from BPL list when the family of an incumbent is found having Jeep, farm equipments such as tiller, thresher, harvester etc. or is drawing salary over Rs.10,000/ per month. 7. In such circumstances, counsel for the respondents submits that in the said inquiry conducted after passing of the order in WPS No.1424 of 2008, the petitioner was given enough opportunity to defend herself but she remained absent or kept on seeking adjournment. Thereafter the impugned order has been passed, as the respondent No.6, Deputy Development Commissioner, Dhanbad found that the petitioner has no legal right to be appointed as Sevika as she does not belong to BPL Category. In such circumstances, the impugned order is found to be justified. 8. Thereafter the impugned order has been passed, as the respondent No.6, Deputy Development Commissioner, Dhanbad found that the petitioner has no legal right to be appointed as Sevika as she does not belong to BPL Category. In such circumstances, the impugned order is found to be justified. 8. Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Sumati Devi Vs. State of Jharkhand & Ors., reported in 2009(4) JLJR 626 to submit that the power to remove a Sevika from such appointment is allowed to the Selecting Body i.e. Aam Sabha, which decides as per majority of votes. In such circumstances, the respondents are not justified to discharge her and deny the appointment to the petitioner on the post of Sevika. 9. I have heard learned counsel for the parties and gone through the relevant materials on records including the impugned order. The selection of the petitioner as Anganbari Sevika was later on inquired into on the complaint made by another candidate soon after her engagement in the year 2007. In the said inquiry itself the respondents came to a conclusion that the husband of the petitioner was having a tractor, motorcycle and other business as well. However, the discharge of the petitioner on that ground was interfered with by the learned Single Bench of this Court in WPS No.1424 of 2008 on the ground that the same has been done without giving the adequate opportunity to the petitioner and a fresh inquiry was directed to be held. In such circumstances, the respondents initiated a fresh inquiry. The minutes of the said inquiry proceedings are contained in AnnexureA/1 to the counter affidavit. 10. Perusal of the said minutes of the said inquiry proceeding shows that the petitioner was given a number of opportunity and notices were issued upon her a number of times such as on 17.6.2009, 19.6.2009 and 01.7.2009 , which is also evident from Annexure A Series to the counter affidavit filed on 18.08.2011. 11. The petitioner has relied upon a BPL list annexed to the supplementary affidavit to show that the name of her husband was shown at Serial No.7807. The said list relates to the year 2002 to 2007 as per statements made in para3 of the said supplementary affidavit. 11. The petitioner has relied upon a BPL list annexed to the supplementary affidavit to show that the name of her husband was shown at Serial No.7807. The said list relates to the year 2002 to 2007 as per statements made in para3 of the said supplementary affidavit. However, the allegation made against the petitioner that her husband was having a tractor, motorcycle and was also having other business has not been refuted by the petitioner in the pleadings on record. The guidelines for automatic exclusion from BPL list lay down that if the incumbent family is found to have three or four wheels motorized vehicle, farm equipments i.e tractor, power tiller, thresher, harvester etc. or is drawing a salary over Rs.10,000/per month he/she is to be automatically excluded from BPL list. The scheme upon which the engagement of Anganbari Sevika is made provides that such incumbents are required to fulfill criteria of being under BPL Category. 12. In such circumstances, therefore, the facts, which have been brought on record against the petitioner, show that her husband had enough material resources to exclude her from the category of BPL list. In such circumstances, therefore, the stand reflected in the impugned order can not be said to be without any basis or reasons. The petitioner, having been found to be belonging to APL Category, is not entitled to appointment as Anganbari Sevika. 13. In such circumstances, the petitioner having failed to fulfill the criteria for such engagement, has no legal right to claim appointment to the post of Anganbari Sevika. The judgment rendered by the Division Bench of this Court and relied upon by the petitioner is, therefore, of no help to the petitioner as she has failed to fulfill the eligibility criteria for such appointment as not being in BPL Category. 14. This writ petition is, accordingly, dismissed. 15. I.A. No.1968 of 2011 also stands dismissed. Petition and I.A. dismissed.