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2014 DIGILAW 1146 (JHR)

Mandodari Devi v. State of Jharkhand

2014-11-24

SUJIT NARAYAN PRASAD

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ORDER : The petitioner, being aggrieved by the order dated 3.9.2009 (Annexure-5), passed by the Deputy Development Commissioner, Giridih terminating the service of the petitioner as Anganwari Sevika, has approached this Court. 2. The brief facts, as has been argued on behalf of the petitioner, is that the petitioner had been appointed as Anganwari Sevika vide order dated 9.3.2005. There was specific condition in her appointment letter that her service can be cancelled by giving 15 days prior notice. However, without complying with the said condition, the service of the petitioner had been taken away vide order dated 3.9.2009 by the Deputy Development Commissioner, Giridih, whereas, under Clause 16 of the Government Rule, the power for removing an Anganwari Sevika has been vested with the Child Development Project Officer with prior approval of the Deputy Development Commissioner. The Deputy Commissioner has been made the appellate authority. It has been submitted that the Deputy Development Commissioner has got no power to remove an Anganwari Sevika, as such the impugned order has been passed without jurisdiction. 3. On the other hand, learned counsel for the respondents has submitted that the petitioner has been removed from service on the allegations of serious irregularities, as have been mentioned in the impugned order. The allegations have been made that the said Anganwari Centre always remains closed the petitioner is not sincere in discharging her duty as an Anganwari Sevika. However, he has not disputed the fact that the Child Development Project Officer has got jurisdiction to pass the order of removal of an Anganwari Sevika. 4. Heard the parties, perused the record. 5. Admittedly, the petitioner had been appointed as Anganwari Sevika on 9.3.2005. There is specific condition in her appointment letter that before cancellation of her appointment, 15 days prior notice will be given. The petitioner has made specific statements in Paragraph 13 of the writ petition. “13. That the petitioner states and submits that the impugned order/letter dated 3/9/09 by which the services of the petitioner has been terminated is totally illegal and arbitrary as the same is violative to the principles of Natural Justice as the petitioner was not given 15 days prior notice and no show cause has been issued as to why the services of the petitioner be not terminated, which is a condition as mentioned in the appointment letter of the petitioner dated 9/3/2005.” 6. The State-respondents have filed counter affidavit, specific reply to the above quoted statements has been given in Paragraph 18 of the counter affidavit, but not denied the aforesaid statements made by the petitioner in Paragraph 13 as quoted above. 7. It has been submitted that under Clause 16 of the Government Instruction dated 2.6.2006, the Child Development Project Officer has been vested with the power to cancel the selection of an Anganwari Sevika with prior approval of the Deputy Development Commissioner. 8. From perusal of the impugned order, it appears that the Deputy Development Commissioner, Giridih has passed the said order terminating the service of the petitioner and communicated the same to the Child Development Project Officer. Admittedly, the impugned order has been passed by the Deputy Development Commissioner, who has got no jurisdiction to pass such order as per the executive instruction dated 2.6.2006. In recent judgment, a Division Bench of this Court in the case of Kanchan Devi Vs. State of Jharkhand reported in 2014 (4) JLJR 2 has held that the Deputy Development Commissioner has got no power to cancel the appointment of an Anganwari Sevika. However, there is provision of filing appeal before the Deputy Commissioner. In view of the law laid down in the case of Kanchan Devi, supra, an alternative remedy will not come in the way of exercising the power by this Court under Article 226 of the Constitution of India, if there is miscarriage of justice and gross violation of the fundamental rights of a citizen. 9. Since the impugned order has been passed by the Deputy Development Commissioner, who has got no jurisdiction to pass such order, the same is not sustainable. The impugned order dated 3.9.2009 (Annexure-5) is, hereby, set aside. 10. The matter is remanded to the Child Development Project Officer to consider the same afresh and take appropriate decision in accordance with law after hearing the parties, within a reasonable period, preferably within a period of six weeks from the date of receipt/production of a copy of this order and communicate the same to the petitioner in writing. 11. This writ petition is disposed of in the terms indicated herein above.