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2014 DIGILAW 1633 (MP)

Neelam Singh Sikarwar v. State of M. P.

2014-12-09

M.C.GARG, SHEEL NAGU

body2014
Judgment M.C. Garg, J.:- Both the writ appeals raise common question as to whether, the selection for the Aanganwadi worker can be based on geographical residence of the appellant or that only on account of the place of residence, as the appointment cannot be refused has been held by learned Single Judge vide impugned order dated 5th October, 2010 which precisely has been challenged before us by way of these writ appeals one filed by Smt. Abhilasha Sharma and other by Smt. Neelam Singh Sikarwar. For the sake of reference, we first take the writ appeal filed by Smt. Abhilasha Sharma. The facts necessary for deciding this writ narrated in para 2 of the impugned order are reproduced as under: "The respondent No. 1 Saroj Devi/(petitioner) was appointed as Aanganwadi Worker vide order dated 30-10-2007. She was posted at Aanganwadi Center, Sakatpur. The aforesaid order was kept in abeyance vide an order dated 2-11-2007. It was mentioned in the order that due to some clerical mistake the order of appointment of the petitioner was issued. Against the aforesaid order, the petitioner filed a writ petition before this Court, which was registered as Writ Petition 5272/2007 (S). This Court vide order dated 5-3-2008 allowed the petition and quashed the order. The Court also granted liberty to respondents to conduct any inquiry against the petitioner. In pursuance to the aforesaid order the appeal filed by respondent No. 4 was dismissed by the Collector vide order dated 22-4-2008. Then, respondent No. 4 filed review petition which was disposed of vide order dated 25-2-2009 passed in M.C.C. No. 255/2008. This Court passed the following observation in the aforesaid petition:-- As per the petitioner, she is the affective party and she was not made as a party in the petition. The petitioner has filed an appeal which is pending before the Collector, Shivpuri. However, it is clear from the order dated 5-3-2008 that this Court quashed the order Annexure P/1, dated 2-11-2007 on the ground that the aforesaid order was passed without hearing the petitioner. It has clearly been observed in the order that the authorities are free to pass any order after giving opportunity of hearing to the petitioner. In such circumstances, the appellate authority is free to pass appropriate order in accordance with law. This Court has already given opportunity to the respondents to pass an order after inquiry. It has clearly been observed in the order that the authorities are free to pass any order after giving opportunity of hearing to the petitioner. In such circumstances, the appellate authority is free to pass appropriate order in accordance with law. This Court has already given opportunity to the respondents to pass an order after inquiry. If the petitioner has filed any appeal and which is pending, the appellate authority may decide the same in accordance with law as early as possible. With, the aforesaid observation, this review petition is disposed of. No order as to cost." Thereafter, the Collector had decided the appeal filed by respondent No. 4 vide order dated 18-3-2010. The Collector allowed the appeal and set aside the order of appointment of the petitioner dated 30-10-2007. Against the order passed by the Collector, petitioner preferred a petition before this Court, which was registered, as Writ Petition No. 1489/2010 (S). This Court disposed of the aforesaid petition vide order dated 30-3-2010 with the following directions:-- "Keeping in view the totality of the circumstances, this Court does not find any reason to interfere in the impugned order dated 18th March, 2010 however as the petitioner is continuing to work on the post of Aanganwadi Worker she shall be permitted to continue as such for a period of sixty-days or till a final order is passed in the matter by the competent authority as directed by the Collector district Shivpuri whichever is earlier. It is needless to mention that the competent authority shall positively decide the matter in issue directed by the Collector district Shivpuri by the impugned order dated 18th March, 2010 positively within a period of sixty days from the date of receipt of a certified copy of this order. With the aforesaid, writ petition stands disposed of. No order as to cost. Certified, copy as per rules." In accordance with the directions issued by this Court the Collector passed the impugned order. In the impugned order, the Collector has observed that although the name of the petitioner has been mentioned in the voters' list of village Sakatpur and she was residing at village Sakatpur in a rented house, however, she is a resident of Gram Panchayat Bhadera and she is not a resident of village Sakatpur. In the impugned order, the Collector has observed that although the name of the petitioner has been mentioned in the voters' list of village Sakatpur and she was residing at village Sakatpur in a rented house, however, she is a resident of Gram Panchayat Bhadera and she is not a resident of village Sakatpur. Hence, she is not entitled to be appointed as Aanganwadi Worker and respondent No. 4 is entitled to be appointed as Aanganwadi Worker. In regard to the condition of resident of same village of an Aanganwadi Worker, the Division Bench of this Court has considered the matter in the case of Smt. Sadhana vs. State of M.P. and others, Writ Appeal No. 421 of 2007, decided on 11-7-2007 and held that name of the Aanganwadi candidate should find place in the voters' list of the village is in accordance with law and passed the following order:-- "We have considered the aforesaid submission and we find that in the Policy for appointment of Aanganwadi Workers contained in order dated 27-5-2006 of Government of M.P. Women and Child Welfare Department, one of the conditions for appointment of Aanganwadi Worker was that the name of woman candidate should find place in the voter list of village. Yet another condition in the order dated 27-5-2006 of the Government of M.P., for appointment of Aanganwadi Worker is that the woman candidate should be a resident of the Village or Ward for which she is being considered as Aanganwadi Worker. The appointment of the appellant has been set aside by the Collector and because she was not a resident of Village or Ward, but because her name did not find place in the voter list. Hence the contention of Mr. Raghuvanshi that place of residence cannot be the basis for appointment as Aanganwadi Worker because of the bar under Article 16(2) of the Constitution does not arise for decision in the case. Since inclusion, in the voter list was the requirement for appointment as Aanganwadi Worker in policy of the Government of M.P., we do not find any infirmity in the order passed by the Collector in setting aside the appointment of the appellant as Aanganwadi Worker. Mr. Raghuvanshi further submitted that the appellant has made an application for inclusion of her name in the voter list. Mr. Raghuvanshi further submitted that the appellant has made an application for inclusion of her name in the voter list. In the enquiry ordered by the Collector, this aspect may be considered by the concerned authority." It is clear from the afore quoted judgment of the Division Bench passed in Writ Appeal No. 421/07, Smt. Sadhana vs. State of M.P. and others (supra) that if name of the candidate finds place in the voters list of the village, she is entitled to be appointed as Aanganwadi Worker. The Women and Child Development Department issued a policy with regard to appointment of Aanganwadi Worker, copy of the policy has been filed as Annexure P/3 dated 27-5-2006. In the aforesaid policy the eligibility criteria for appointment has also been mentioned. One of the eligibility criteria, is the name of the woman must be recorded, in the voter list of the same village and ward. Subsequently the department issued another policy/circular dated 10-7-2007 for appointment with regard to Aanganwadi Worker. In the aforesaid policy, it has been mentioned with regard to eligibility criteria for appointment that the applicant must be resident of same village and ward". 2. As per conditions of service for Aanganwadi workers, the name of Aanganwadi worker must find place in the voters list in the village for which, there is a requirement and such requirement is in accordance with law. In this regard, a Division Bench of this Court has passed such an order in the case of Smt. Sadhana (supra), however, the learned Single Judge discarded the aforesaid requirement taking into consideration the decision rendered by another bench in the case of Savirti Singh vs. State of M.P. and others, reported in 2003 (4) MPLJ 106 wherein, it was held: "After hearing the learned counsel for both the sides, this Court is of the opinion that the view taken by the Commissioner, Rewa, on the basis of the circular of the State Government is illegal. Recently in Kailash Chand Sharma vs. State of Rajasthan, AIR 2002 SC 2877 it has been held, by the Supreme Court that residence within a District or rural areas of that District could not be a valid basis for classification for the purpose of public employment. Recently in Kailash Chand Sharma vs. State of Rajasthan, AIR 2002 SC 2877 it has been held, by the Supreme Court that residence within a District or rural areas of that District could not be a valid basis for classification for the purpose of public employment. The argument in favour of such reservation which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the fact of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Residence by itself-be it be within a State, region District or lesser area within a District-cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that District on a preferential basis. In view of the above legal position, the circular dated 27-5-1996 on which reliance has been placed by the Commissioner, suffers from constitutional infirmity. The instructions contained in this circular that a person of the same village should be appointed as Aanganwadi Worker is legally not sustainable. It is against the provision, in Article 16(2) of the Constitution of India. The petitioner could not be discriminated on the ground that she is resident of village Bharhut and not of village Dadari. As far as public employment is concerned, the classification on the basis of residence in a region or locality or village is constitutionally impermissible." Relying upon the aforesaid judgment of the Hon'ble Apex Court in the case of Kailash Chand Sharma, 2002 SCC (L and S) 935, learned Single Judge has held that a condition which makes the residence of the incumbent in a particular locality i.e. on the basis of geography is violative of Articles 15 and 16 of the Constitution of India and therefore, allowed the petition filed by respondent No. 1 Smt. Saroj Devi. This order affects appointment of respondent No. 1 Smt. Abhilasha Sharma (in that case) who is appellant before us and who has filed this writ appeal. 3. This order affects appointment of respondent No. 1 Smt. Abhilasha Sharma (in that case) who is appellant before us and who has filed this writ appeal. 3. It has been argued on behalf of the appellant that the aforesaid view taken by the learned Single is not correct, in view of the judgment of this Court in Writ Appeal No. 637 of 2012 decided on 12th October, 2012. In this case in respect of the appointment of Aanganwadi, a Division Bench has taken a view that since the appointment of Aanganwadi workers requires residence of the local village wherein, the Aanganwadi is to be looked after, it was said that such appointment cannot be said to be arbitrary. The observation made are reproduced herein below: "On perusal of the record, it is apparent that the Commissioner by passing the order in the matter of appointment of Aanganwadi Worker found that the condition of local resident of a village wherefrom the appointment is directed cannot be said to be arbitrary. Learned counsel appearing on behalf of the appellant has raised an objection before the writ Court that such condition is arbitrary in the matter of appointment. The learned Single Judge referring the Division Bench judgment passed in Writ Appeal No. 421/2007, Smt. Sadhana vs. State of M.P. and others and also referring the judgment in the case of Upma Singh vs. Commissioner, Rewa, 2011 (4) MPLJ 501 directed that in the matter of appointment of Aanganwadi Worker the condition so imposed of a local resident cannot be said to be arbitrary in the terms and conditions of the employment and looking to the work which is to be discharged by such persons. Shri Sharma, learned counsel appearing on behalf of the petitioner has strenuously urged that the residence of the appellant is not too far but it is nearby to the village for which the appointment has been directed. In such circumstances the condition of local resident though of a different village but it is nearby the petitioner cannot be denied appointment while she is in merit. After hearing learned counsel appearing on behalf of the parties and looking to the finding so recorded, appreciating the provisions of law and two Division Bench judgments of this Court, we are of the considered opinion that the condition so imposed for the post of Aanganwadi Worker of a local resident is not arbitrary. After hearing learned counsel appearing on behalf of the parties and looking to the finding so recorded, appreciating the provisions of law and two Division Bench judgments of this Court, we are of the considered opinion that the condition so imposed for the post of Aanganwadi Worker of a local resident is not arbitrary. In such circumstances, the argument so advanced by the learned counsel for the petitioner is devoid of any substance. In view of the foregoing, we do not find any substance in this appeal, hence it is dismissed." 4. As the similar view has also been taken by another Bench of this Court in the case of Smt. Basanti Suryawanshi vs. State of M.P. and others, 2012 (2) MPLJ 331 : 2012 (1) MPHT 101 . The relevant discussion is as under: "10. Integrated Child Development Project has been formulated by the Government of India and the same is being implemented through the State Government. The said project has been formulated with an object to ensure development of the children belonging to underprivileged class of the society in rural area and to provide employment to women of local area living below the poverty line. The job of an "Aanganwadi" worker is not a full-time employment, but is a part-time one on a fixed honorarium basis. An "Aanganwadi' worker who is possessed of matriculation pass certificate is entitled to receive a fixed honorarium of Rs. 400/- per month whereas a non-matric "Aanganwadi" worker is entitled to receive a sum of Rs. 350/- per month. The object of imposing the restriction contained in clause (3) of the instructions dated 27-5-1996 is to employ a woman living below the poverty line, as she would be more conversant with the culture and behavioural aspect of the children belonging to underprivileged class of the society. Clause (3) of the instructions ensure that while providing employment to a woman living below the poverty line, object of the scheme is fulfilled that is to say to provide free access, to the children belonging to weaker sections of the society to 'Aanganwadi' centre and at the same time, the financial condition of the family of such a woman is ameliorated. Thus, there is an intelligible differentia which distinguishes the persons that are grouped together from others which are left out of the group i.e. the candidates who have their near relatives in Government service or in the employment of the local bodies and those whose near relatives are not employed either in Government service or in any local bodies. The intelligible differentia has a reasonable nexus with the object sought to be achieved i.e. to provide free access to children belonging to weaker sections of the society to 'Aanganwadi' centre. The requirement in clause (3) of the instructions dated 27-5-1996 (Annexure P-12) has been incorporated by taking into account the requirements of particular employment and peculiarities of societal sectors and, therefore, the same cannot be said to be either discriminatory, arbitrary or violative of Articles 14 and 16 of the Constitution of India." It will be appropriate to take notice of the judgment of the Apex Court in State of Karnataka and others vs. Ameerbi and others, reported in (2007) 11 SCC 681 , where it had the occasion to consider the question as to whether, the Anganwadi worker functioning under the scheme floated by the State of Karnataka which is similar to the scheme prevailing in the State of M.P. Are holders of civil post or not. 5. The Apex Court in paragraph 13 and more emphatically in paragraphs 20 and 38 of its judgment has answered the question in negative. 6. For convenience and ready reference, the said three paragraphs in the decision of Ameerbi (supra) are reproduced herein below: "13. The posts of Aanganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and Aanganwadi worker but it is, another thing to say that they are holders of civil post. 20. Aanganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional schemes exists. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional schemes exists. We do no think that the said decisions has any application in the instant case. 38. It is also not a case where the doctrine of parity of employment can be invoked. It is true that nomenclature of a term of payment is not decisive but the substance is as was held in Jaya Bachchan vs. Union of India but the question has to be determined having regard to the issue involved. We are concerned herewith with only one question viz. whether, the respondents are holders of any civil post. We are, having regard to the materials on record, of the view that they are not". In view of the aforesaid, it cannot be said that the requirement of residence in a particular village where the Aanganwadi is situated, is unconstitutional. Thus, the order of learned Single Judge holding that for appointment of Aanganwadi worker, requirement of his/her having residence in a specific village is contrary to Articles 15 and 16 of the Constitution of India cannot be upheld for the simple reason that requirement of such person would depend upon the residence of the applicant in a village where, there is requirement of Aanganwadi worker. As such, the writ appeal is allowed and the impugned order dated 5-10-2010 is hereby set aside with no orders as to the costs. 7. Now, coming to the case of Smt. Neelam Singh Sikarwar, we find that so far as the said appellant is concerned, for the reasons stated above, while holding that the condition to appoint a person resident of the local village where the Aanganwadi is required to be looked after, the judgment delivered in Writ Petition No. 4490 of 2009 (S) that is the case of Smt. Neelam Singh Sikarwar, is also set aside. However, in that case, since it was the case of the appellant that the appellant was resident of the local village where, the Aanganwadi was to be situated before her marriage and she after her marriage with Balram on 11th May, 2004 has started residing in the same village. However, in that case, since it was the case of the appellant that the appellant was resident of the local village where, the Aanganwadi was to be situated before her marriage and she after her marriage with Balram on 11th May, 2004 has started residing in the same village. Consequently, the writ appeal filed by the Smt. Neelam Singh Sikarwar being Writ Appeal No. 664 of 2010 is also allowed and the impugned order by learned Single Judge in Writ Petition No. 4490 of 2009 (S) is set aside. The Collector will pass appropriate orders with respect to the appointment of Aanganwadi worker in both the cases as observed above.