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2013 DIGILAW 749 (PAT)

Krishna Kumari v. State Of Bihar

2013-07-03

MIHIR KUMAR JHA

body2013
ORDER Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “For directing the respondents particularly respondent District Magistrate, Muzaffarpur to call the petitioner for interview for the purpose of selection on the post of Lady Supervisor under Child Welfare Department amongst the post reserved for Anganbari Sevika and the persons junior to her in the gradation list were asked to appear for counseling through newspaper.” 3. Learned counsel for the petitioner on the basis of the averments made in the writ application has submitted that the denial of opportunity to the petitioner for appearing in the interview with regard to selection on the post of Lady Supervisor is wholly unjustified, inasmuch as the petitioner’s Vidya Vinodini qualification can no longer be the basis for considering her case, inasmuch as she has already passed Intermediate Examination. According to him, when there were two classified groups, one for direct recruitment on the post of Female Supervisor and the other for selection amongst the working Anganwari Sevikas, the case of the petitioner had to be considered in terms of the advertisement by giving due credit to the petitioner for experience earned by her while working as Anganwari Sevika. 4. In this case a counter affidavit has been filed by the District Programme Officer, Muzaffarpur wherein it has been stated that though the name of the petitioner was initially included in the provisional merit list in the light of the circular of the Department dated 10.6.2010 but subsequently on 24.7.2012 in the meeting of the District Level Selection Committee it was decided to prepare the publish a new provisional merit list in the light of the letter dated 15.9.2011 of the Secretary of Social Welfare Department of the Govt. of Bihar laying down that certain qualification including Vidya Vinodini is invalid degree. It has been also clarified that not only the petitioner but eight others whose names were earlier included in the first provisional merit list were deleted in the light of the letter dated 15.9.2011 of the Secretary of Social Welfare Department. 5. In the considered opinion of this Court the decision of the respondents in deleting the name of the petitioner from the merit list is apparently incorrect and cannot be sustained either on fact or in law. 5. In the considered opinion of this Court the decision of the respondents in deleting the name of the petitioner from the merit list is apparently incorrect and cannot be sustained either on fact or in law. In this regard it has to be noted that on 5.7.2010 a total number of 141 post of Female Supervisor were to be filled up on contract basis out of which 106 post were to be filled up by direct recruitment and the rest 35 post were to be filled up from amongst the working Anganwari Supervisor. The minimum qualification laid down for the post of Female Supervisor under direct recruitment quota was graduate, whereas for the working Anganwari Sevika it was only Matriculation or equivalent. The minimum qualification laid down for the post of Female Supervisor under direct recruitment quota was graduate, whereas for the working Anganwari Sevika it was only Matriculation or equivalent. This would become more apparent from the advertisement which was issued by Muzaffarpur Collectorate which is reproduced here-in-below: lekgj.kky; eqtIQjiqj ¼ftyk vkbZ-lh-Mh-,l- dks”kkax½ lwpuk fcgkj ljdkj lekt dY;k.k foHkkx ds ladYi la[;k&1846 fnukad 10-06-2010 ,oa funs'kd vkbZ-lh-Mh-,l- fcgkj iVuk ds i=kad 1880 fnukad 15-06-2010 ds vkyksd esa lesfdr cky fodkl lsok ;kstuk eqtIQjiqj ds vUrxZr efgyk i;Zosf{kdk ds 141 fjDr inksa ds fo:) vuqca/k ds vk/kkj ij fu;kstu fd;k tkuk gSA buesa 106 in lh/kk lafonk vk/kkfjr fu;kstu ,oa 35 in dk;Zjr vkaxuokM+h lsfodk ds lafonk vk/kkfjr fu;kstu izLrkfor gSa bu inksa ds fy, flQZ efgyk mEehnokjksa ls vkWuykbZu vkosnu fofgr izi= esa vkeaf=r fd;k tkrk gSA ladYi la[;k 1846 fnukad 10-06-2010 ,oa fofgr izi= ¼ifjf'k"V 1½ csclkbZV http/icds.bih.nic.in ij Hkh miyC/k gSa foKkiu izdkf'kr gksus ls 21 fnuksa ds vUnj vkosnu i= Lohdkj fd;s tk;saxsA vkWu ykbu vkosnu i= Hkjus ds mijkUr vkosfndk fucaf/kr Mkd ls vkosnu dh ,d izfr tkfr izek.k i=] izek.k i=] vgZd ijh{kk mRrh.kZ gksus dk izek.k i=] lHkh Lrjksa ds vad izek.k i=ksa dh vfHkizekf.kr izfr;ka] vkokl izek.k i=] jktif=r inkf/kdkjh }kjk iznRr pfj= izek.k i= vkfn layXu dj Hkstuk vfuok;Z gSA lkFk gh vUnj Vsfdax nsuk vfuok;Z gksxk fd os fu;fer fu;qfDr dk nkok ugha djsxhA fucaf/kr Mkd 21-07-2010 rd ftyk izksxzke inkf/kdkjh] eqtIQjiqj dks dk;kZy; vof/k esa izkIr gks tkuk pkfg, ckn esa izkIr vkosnuksa ij fopkj ugha fd;k tk;sxkA [k.M ^d* dh lh/kh fu;qfDr gsrq 1- fu;ksftr fd;s tkus okys in dk uke& efgyk i;Zosf{kdk 2- fu;ksftr fd;s tkus okys inksa dh la[;k dksfVokj& 3- ¼d½ lkekU; & 52 ¼[k½ fiNM+h& 15 ¼x½ vU;Ur fiNM+k& 18 ¼?k½ vuqlwfpr tkfr& 17 ¼M+½ vuqlwfpr tutkfr& 01 ¼p½ fodykax& 03 dqy& 106 3- vuqca/k ij fu;kstu ds fy, vgZrk,a& ¼d½ vH;FkhZ dsoy efgyk gksA ¼[k½ Hkkjr dh ukxfjd gksA ¼x½ vkosfndk eqtIQjiqj dk LFkkbZ fuoklh gks blds fy, lEcfU/kr vuqeaMy inkf/kdkjh }kjk fuxZr vkokl izek.k i= vfuok;Z gSA 4- vfuok;Z vgZrk,a& Hkkjr ds ekU;rk izkIr fdlh fo'ofo|ky; ls LukrdA 5- okafNr vgZrk& LukrksdRrj ¼U;wure 45 izfr’kr vad½ ds lkFk mRrh.kZ mEehnokj dks cksul vafd fn;s tk;saxsA ¼d½ lekt 'kkL=] ¼[k½ lekt dk;Z] ¼x½ x`g foKku] ¼?k½ euksfoKku] ¼M+½ cky fodkl ,oa iks"k.k] ¼p½ vkgkj foKku] ¼N½ Je ,oa lekt 'kkL=A rduhdh f'k{kk dh fMxzh ¼ikSyVsdfud] ;wukuh f'k{kk vkfn½ 'kkjhfjd f'k{kk] izkP;Hkk"kk@Hkk"kk fo'ks"k ls lEcfU/kr fMxzh ¼ekuo lalk/ku fodkl foHkkx }kjk of.kZr½ efgyk i;Zosf{kdk in ij fu;kstu gsrq lfEefyr ugha gSA eSfVªd dh ijh{kk ds izkIrkadksa dk izfr'kr fudkyrs le; vfrfjDr fo"k;ksa dks ugha tksM+k tk;sxkA ek= vfuok;Z fo"k; ,oa ,sfPNd fo"k;ksa dks tksM+k tk;sxkA 6- mez lhek& 01-01-2010 dks fu;kstu dh U;wure mez lhek 21 o"kZ gksxh ,oa vf/kdre mez lhek vukjf{kr] fiNM+k oxZ] vR;Ur fiNM+k oxZ ds 40 o"kZ] vuqlwfpr tkfr ,oa tutkfr ds fy, 42 o"kZ gksxhA [k.M ^[k* vkaxuokM+h lsfodkvksa ls Hkjs tkus okys in& 1- fu;ksftr fd;s tkus okys in dk uke& efgyk i;Zosf{kdk 2- fu;ksftr fd;s tkus okys inksa dh dksfVokj la[;k& ¼d½- lkekU;& 18 ¼[k½ fiNM+h& 05- ¼x½ vR;Ur fiNM+k 06 ¼?k½ vuqlwfpr tkfr 06 dqy & 35 3- vuqca/k ij fu;kstu ds fy, vgZrk,a& ¼d½ vH;FkhZ dsoy efgyk gksA ¼[k½ Hkkjr dh ukxfjd gksA ¼x½ vkosfndk eqtIQjiqj dk LFkkbZ fuoklh gks blds fy, lEcfU/kr vuqeaMy inkf/kdkjh }kjk fuxZr vkokl izek.k i= vfuok;Z gSA 4- vfuok;Z vgZrk,a& ¼d½ U;wure eSfVªd ;k led{k mRrhZ.kA ¼[k½ p;u ds o"kZ igyh tuojh dks 10 o"kZ dk dk;ZdkyA 5- mez lhek& p;u ds o"kZ igyh tuojh dks fu;kstu dh U;wure mez lhek 21 o"kZ gksxhA vf/kdre meZ 45 o"kZ gksxhA 6- vkosnu izkIr djus dh vafre frfFk 21-07-2010 ¼vijkg~u 5]00 cts rd½ [k.M ^d* ,oa [k.M ^[k* ds fy, vzU; funs'k ,oa 'krsZa& 1- vH;FkhZ dks 'kkjhfjd ,oa ekufld :i ls LoLF; gksus pkfg,A p;u ds mijkUr lgk;d flfoy ltZu ls LokF; izek.k i= mifLFkkfir djuk gksxkA 2- vuqca/k dk ekuns; 12000@& :i;s izfrekg gksxk ,oa vuqca/k dh vof/k ,d o"kZ dh gksxhA ysfdu vuqca/k dh vof/k dh lekfIr ij lUrks"kizn fdz;k dyki ,oa in dh vko';drk ds vkyksd esa iqu% vuqca/k fd;k tk ldsxkA ifj;kstuk lekIr gkus ij vuqca/k Lor% lekIr gks tk;sxkA vuqca/k ds vk/kkj ij fu;ksftr efgyk ljdkjh lsod ugha ekuh tk;sxh vkSj ljdkjh lsod gsrq vuqekU; fdlh Hkh lqfo/kk dh os gdnkj ugha gksxhA 3- ;ksxnku ds rhu ekg ds vUnj nksifg;k okgu pykuk lh[kus dh vfuok;Zrk gksxhA 4- p;u mi;qZDr ladYi esa fufgr izko/kkuksa ds vkyksd esa es/kk vad ds vk/kkj ij gksxkA ftyk inkf/kdkjh] eqtIQjiqj** 6. A bare reading of the aforementioned advertisement, therefore, itself would go to show that the petitioner and others working Anganwari Sevika had to fulfil the minimum qualification of Matriculation or its equivalent as also having ten years of experience. There is no dispute that the petitioner was appointed as an Anganwari Sevika on 11.1.1991 and thus, on 5.7.2010 she had completed more than 19 years of service as an Anganwari Sevika. In fact even though the petitioner was initially appointed as an Anganwari Sevika with her qualification of Vidya Vinodini, she had subsequently appeared and passed Intermediate Examination in the year 1993 in 1st division. Thus, on the date the petitioner became an applicant for the post of Female Supervisor she was already an Intermediate and had, therefore, more than the minimum qualification of Matriculation or its equivalent. 7. The respondents in fact had correctly included the name of the petitioner in the provisional merit list which was prepared on 24.7.2012 on the basis of guidelines which were issued on 10.6.2010 i.e. prior to issuance of the advertisement. The said guideline issued by the State Government on 10.6.2010 in no uncertain terms had made it clear that for 25% post reserved for Anganwari Sevika a merit list was to be prepared by awaring marks for additional qualification of Intermediate, Graduation or Post-graduation in addition to the marks fixed for experience. The said guideline issued by the State Government on 10.6.2010 in no uncertain terms had made it clear that for 25% post reserved for Anganwari Sevika a merit list was to be prepared by awaring marks for additional qualification of Intermediate, Graduation or Post-graduation in addition to the marks fixed for experience. The relevant portion of the Government guidelines dated 10.6.2010 so far it relates to filling up the post of Female Supervisor from Anganwari Sevika is quoted hereinbelow: ^^vkaxuokM+h lsfodk ls fu;qfDr& vkaxuokM+h lsfodk ds fy, 25 izfr'kr d.kZkfdar inksa gsrq izkIr vkosnu i=ksa dh leh{kk ftyk Lrjh; p;u lfefr }kjk dh tk;sxh] rFkk fuEufyf[kr jhfr ls bu vH;FkhZ dh ,d ;ksX;rk lwph vkj{k.k ds fu;eksa ds rgr dksfVokj rS;kj dh tk;sxhA izR;sd vH;FkhZ dks 10 o"kZ dh fujarj lsok ds fy, 10 vad vkSj mlds i'pkr lsok ds izR;sd vuqorhZ iw.kZ oxZ ds fy, 1&1 vad fn;s tk;saxsA ;g lsok dsoy mlh vof/k ds fy, ns; gksxh ftl vof/k ds fy, ekuns; fn;k x;k gksA jk"Vªh; iqjLdkj ,oa jkT; iqjLdkj izkIr vkaxuokM+h lsfodk dks dze'k% 10 ,oa 5 vad vfrfjDr fn;s tk;saxsA 'kS{kf.kd ;ksX;rk ds vkyksd esa izR;sd vH;FkhZ dks mPprj ijh{kk ¼b.Vj@Lukrd@LukrdksRrj½ esa izFke Js.kh ;k f}rh; Js.kh ;k r`rh; Js.kh izkIr djus ds fy, vyx&vyx dze'k% 10 cksul vad ;k 5 cksul vad ;k 3 cksul vad vfrfjDr fn;s tk;saxsA mijksDr vk/kkj ls izkIr vadksa ds dqy ;ksx ds vk/kkj ij vafre ;ksX;rk lwph rS;kj dj vkj{k.k dksfV ds vuqlkj fjDr inksa ds vkyksd esa lokZf/kd es?kk vad okyh lsfodkvksa dh fu;qfDr dh tk;sxhA ;fn nks lsfodkvksa dks leku es/kk vad izkIr gksrs gSa rks vf/kd vk;q okyh lsfodk dks mij j[kk tk;sxkA** 8. The plea of the respondents that subsequently a clarification was issued on 15.9.2011 under which the petitioner became disqualification is also of no avail. First of all the said instruction was issued specifically in case of West Champaran District and was not to be made application for Muzaffarpur District. That apart even if the gist of that clarification issued by the Government on 15.9.2011 is taken into its true prospective it could have debarred only such of the Anganwari Sevika who had their qualification limited to Matriculation or its equivalent. That apart even if the gist of that clarification issued by the Government on 15.9.2011 is taken into its true prospective it could have debarred only such of the Anganwari Sevika who had their qualification limited to Matriculation or its equivalent. This would become more clear from the letter of the Secretary to the Social Welfare Department dated 15.9.2011 which is quoted hereinbelow: ^^fcgkj ljdkj lekt dY;k.k foHkkx ¼vkbZ0 lh0 Mh0 ,l0 funs'kky;½ lafpdk la[;k&01@LFkk0&vkbZ0lh0Mh0,l0&1068@2011 ¼[k.M½2369@fnukad 15@9@11 izs"kd] lanhi iks.Mjhd] lnL;] lekt dY;k.k foHkkxA lsok esa] ftyk inkf/kdkjh] if'peh pEikj.kA fo"k;& lafonk ij vk/kkfjr efgyk i;Zosf{kdkvksa dh fu;qfDr esa e/;ek dks eSVªhd ds led{k ekU;rk nsus ds laca/k esA izlax& vkidk i=kad 500 fnukad 23-08-2011 egk'k;] mi;qZDr fo"k;d izklafxd i= ds lanHkZ esa dguk gS fd foHkkxh; ladYi la[;k 1846 fnukad 10-06-2010 }kjk fuxZr ekxZnf'kZdk dh dafMdk& (IV) ¼d½ esa fd;s x;s izko/kkuqlkj ekuo lalk/ku fodkl foHkkx] fcgkj iVuk ds vkns'k Kkikad 3152 fnukad 26-08-08 }kjk LoSfPNd laLFkkuksa ls iznRr le:i fMxzh efgyk i;Zosf{kdk in ij fu;kstu gsrq lfEefyr ugha fd;k x;k gSA d`i;k ekxZnf'kZdk ds izko/kkuksa ds vuqlkj dkjZokbZ dh tk;A fo'oklHkktu g0@& ¼lanhi ikS.Mjhd½ lfpo** 9. From reading of the aforementioned Government letter dated 15.9.2011 it would be clear that the Government had decided not to recognize the qualification on certain institutions or certain qualification themselves and Vidya Vinodini was one of them. The petitioner, however, was not claiming her appointment on the post of Female Supervisor on the basis of her being a Vidya Vinodini, rather she was an applicant for the said post on the basis of her being an Intermediate which she had passed from Bihar Intermediate Education Council in 1st division. 10. In this regard this Court has also taken into consideration the letter of the Bihar Intermediate Education Council dated 17.11.1983 whereby and whereunder the decision of Intermediate Council was communicated to the Vice Chancellor of Prayag Mahila Vidyapeeth that the Intermediate Council had recognized the equivalence of qualification of Vidya Vinodini and other examinations of Prayag Mahila Vidyapeeth. In fact it was on the basis of this decision of the Bihar Intermediate Education Council dated 17.11.1983 that the petitioner was allowed to appear in the Intermediate Examination conducted by the Bihar Intermediate Education Council in the year 1993 and had passed the Intermediate Examination in 1st division. In fact it was on the basis of this decision of the Bihar Intermediate Education Council dated 17.11.1983 that the petitioner was allowed to appear in the Intermediate Examination conducted by the Bihar Intermediate Education Council in the year 1993 and had passed the Intermediate Examination in 1st division. Once the petitioner had passed the Intermediate Examination conducted by the Bihar Intermediate Education Council she could no longer be given any tag or discredit of having her qualification of Vidya Vinodini. 11. Thus, even if the Government clarificatory letter dated 15.9.2011 had excluded certain qualification including Vidya Vinodini for the post of Female Supervisor the same could have been made applicable only in the cases of such Anganwari Sevika who had not passed any higher examination and had remained working on the post of Anganwari Sevika on the basis of there being holder of the qualification of Vidya Vinodini alone. The petitioner, however, had passed Intermediate Examination in the year 1993 and therefore, when she had already completed 19 years of service as Anganwari Sevika she could not have been debarred from being considered for the post of Female Supervisor. In fact her name was rightly included in the 1st provisional merit list and ought to have not been deleted without following spirit of the Government instruction dated 15.9.2011. 12. By-now it is well settled that it is the terms of the advertisement which would govern the process of appointment. In the present case such advertisements were issued on 15.7.2010 in terms of the resolution of the Social Welfare Department dated 10.6.2010 and that was not required to be varied only on the basis of the aforementioned clarificatory letter. As a matter of fact there were six post reserved for Scheduled Caste candidates amongst 35 post of Female Supervisor to be filled from Anganwari Sevika and the petitioner on the basis of her qualification of Intermediate as also 19 years of her experience was at serial no.2 as is clear from the provisional merit list, contained in Annexure 5, inasmuch as only Gunjan Kumari of the Scheduled Caste category was above her. As a matter of fact the petitioner was placed at serial no.30 of the consolidated merit list of 174 candidates and was well covered in all respect for 35 post of Female Supervisor to be filled up from Anganwari Sevika. As a matter of fact the petitioner was placed at serial no.30 of the consolidated merit list of 174 candidates and was well covered in all respect for 35 post of Female Supervisor to be filled up from Anganwari Sevika. The exclusion of the name of the petitioner from the merit list, therefore, is wholly unjustified either on fact or in law. 13. In the result, this writ application is allowed and the respondents are directed to consider the case of the petitioner for appointment on the post of Female Supervisor within a period of two months from the date of receipt of this order inasmuch as she is a better candidate than any of the other Scheduled Caste candidates included and selected in the second provisional merit list while deleting the name of the petitioner, namely, Rambha Kumari, Kumari Madhavi, Punam Kumari, Sushma Kumari, Punam Devi and Neelam Kumari Devi as would be apparent from perusal of the provisional merit list, as contained in Annexure 5. The total points obtained by the petitioner being 89.80 as also shown in the second provisional merit list, contained in Annexures “C” and “D”, wherein she has also been awarded 10 marks for her Intermediate Examination, her name ought to have been placed at serial no.16 below one Krishna Kumari of OBC II category securing 90.00 marks and above Meena Kumari securing 89.67 marks. As a matter of fact there being 18 post for general category and the petitioner’s position being at serial no.16 she could have very well be taken as a general candidate as was also done in the case of Kumari Madhavi, who was placed at serial no.13 of the second panel dated 2.8.2012, as contained in Annexure “C”. 14. It also goes without saying that on appointment of the petitioner on the post of female Supervisor she will also be entitled for her all consequential benefits including her seniority amongst the lady supervisor and pay protection in accordance with the observations and directions given hereinabove in this order.