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2014 DIGILAW 789 (JHR)

Kanchan Devi v. State of Jharkhand

2014-07-24

AMITAV K.GUPTA, R.BANUMATHI

body2014
JUDGMENT Per Amitav K. Gupta, J. The instant Letters Patent Appeal is directed against the order and judgment dated 21.09.2013 passed in W.P.(S) No.6261 of 2011 whereby the learned Single Judge has allowed the aforesaid writ petition, preferred by the respondent No.8 namely, Kunti Devi of the present appeal. 2. The brief facts as narrated in the writ petition is that the respondent No.8, Kunti Devi was selected by the Aam Sabha on 18.01.2007 and a provisional selection letter was issued to her by the Child Development Programme Officer (C.D.P.O), Itkhori, Chatra and the appointment letter was issued by the said authority on 13.06.2008; that on 20.08.2011, the appointment of respondent No.8 was cancelled on the ground that she did not belong to the Posshak Chhetra (Feeder Area) comprising of village Lambodih, Prithvipur and Madhavpur for the Aaganbari Kendra at Madhavpur (Annexure – 3); that a show cause dated 05.09.2009 was issued to her by the District Social Welfare Officer, Chatra to explain as to why her appointment should not be cancelled for submitting wrong residential certificate to which Kunti Devi submitted her reply, however, considering the reply, and a notice dated 03.03.2010 was issued by the Child Development Programme Officer, Itkhori in response to which, she has submitted a reply dated 24.05.2010, but her appointment was cancelled on 20.08.2011. Against the said order, she had preferred the aforesaid writ. 3. Learned counsel appearing on behalf of the appellant has submitted that after cancellation of appointment of respondent No.8 by an order dated 20.08.2011, a fresh Aam Sabha was convened and the appellant was selected by the Aam Sabha as a Aaganbari Sevika at Madhavpur Aaganbari Centre for which a provisional selection letter was issued to her on 27.09.2011 (Annexure – 10) subsequently, an appointment letter was issued to the appellant on 10.01.2012 (Annexue – 12). 4. It is contended by the learned counsel for the appellant that the respondent No.8 had suppressed the material facts that the residential certificate, which was issued to her, was only for the educational purposes and this was informed by the Circle Officer, Itkhori vide letter dated 20.12.2008, addressed to the Child Development Programme Officer, Itkhori. It has further been argued that the respondent No.8 did not disclose the fact in the writ that the appellant herein was already appointed as Aaganbari Sevika. It has further been argued that the respondent No.8 did not disclose the fact in the writ that the appellant herein was already appointed as Aaganbari Sevika. It is argued that respondent No.8 is not a resident of the village Lambodih rather she is a resident of Halmatta and she has only constructed a cowshed at village Lambodih, which was only for the purpose of getting certificate for educational purposes. 5. The learned counsel for the appellant has also submitted that as per Government’s Circular, the Aaganbari Sevika has to be a permanent resident of the village or Tola (neighborhood); that admittedly, the Aaganbari Centre was situated at village Madhavpur, district, Chatra and the said certificate was issued on the basis of the record of rights of the appellant whereas the residential certificate of the respondent No.8 was issued only for educational purposes. Since the respondent No.8 was not a permanent resident of village Lambodih, one of the feeder area of the Aaganbari Kendra at Madhavpur, accordingly, the Circle Officer, Itkhori informed the Child Development Programme Officer (C.D.P.O), Itkhori that the certificate of respondent No.8 was issued only for educational purposes. On the said basis, the residential certificate was found to be wrong and was not in consonance with the Government’s Circular (Annexure – B of the supplementary affidavit). Thus, after serving a show cause, an opportunity of hearing, appointment of respondent No.8 as Aaganbari Sevika was cancelled by the Deputy Development Commissioner, Chatra and the learned Single Judge failed to appreciate this fact and has allowed the writ application solely on the ground that the services were terminated by the Deputy Development Commissioner, Chatra, who is not competent to terminate the services of the Aaganbari Sevika, but in fact it should have been considered and appreciated that the appointment of writ petitioner No.8 was in violation of the Government’s Circular, which prescribes the criteria for appointment as Aaganbari Sevika. On the above ground, it has been argued that the impugned order and judgment be set aside and the instant appeal be allowed. 6. On the above ground, it has been argued that the impugned order and judgment be set aside and the instant appeal be allowed. 6. The learned counsel appearing on behalf of the respondent No.8 i.e. the writ petitioner, has contended that the said order and judgment is in accordance with the law and on the facts available on record; that the Kunti Devi is a resident of village Lambodih and the residential certificate was issued to her by the Circle Officer, Itkhori as per Annexure – 4 and the Mukhiya of the Panchayat has also stated that she is a permanent resident of village Lambodih which is a feeder area (Poshak Chhetra) for appointment of the Aaganbari Sevika at Madhavpur , where the Aaganbari Kendra was established. It has further been contended that the Aam Sabha was convened on 18.01.2007 and respondent No.8 along with other woman candidates participated and she was selected for appointment by the Aam Sabha and accordingly, an appointment letter dated 13.06.2008 was issued to her, as per Annexure – 2/1, by the office of the Child Development Programme Officer (C.D.P.O), Itkhori, District-Chatra; that the cancellation of the appointment by the Deputy Development Commissioner, Chatra is not in accordance with law and he has relied on the decision reported in 2001 (1) J.L.J.R. 237 in the case Smt. Sharda Devi Vs. State of Bihar & Ors and on the decision reported in 2013 (3) J.L.J.R. 497 in the case of Smt. Tara Devi Vs. State of Jharkhand & Ors. It is urged that in the said cases the order for removal of Aaganbari Sevika was passed by the Deputy Development Officer and the said order was quashed. 7. Having heard learned counsel for the parties and on going through the record, it is not disputed that by Circular dated 02.06.2006 issued by the Ministry of Social Welfare, Woman and Child Development Department, Government of Jharkhand, wherein guidelines for selecting Aaganbari Sevika has been laid down, whereby it has been prescribed that the Aaganbari Sevika must be a permanent resident of the said village in which Aaganbari Kendra is situated and if the Aaganbari Kendra is situated in a village situated in the neighbourhood (Tola) then the appointee should be the resident of the said Tola or neighbourhood so that she can be available amidst the beneficiaries. The residential certificate dated 09.01.2007 has been issued by the office of the Circle Officer, Itkhori, in which, it has been mentioned that the respondent is a resident of village Lambodih and reference has also been made to the record of rights. The Mukhiya of the village has also issued certificate, as per Annexure – 5, wherein it has been mentioned that the respondent No.8 is residing along with her husband, Binod Yadav and family for the past 15 to 20 years. It is not disputed that the village Lambodih, Prithvipur and Mahdavpur are the Poshak Chhetra (Feeder Area) for the Aaganbari Kendra at Madhavpur. The respondent No.8 was selected by the Aam Sabha dated 18.01.2007 in the presence of the Child Development Programme Officer (C.D.P.O), Itkhori and other members and the Resolution of the said meeting has also been signed by the scores of person of the village. It is evident that the respondent No.8 along with five others had filed an application for appointment as Aaganbari Sevika and after scrutinizing the documents, the respondent No.8 was provisionally selected and a provisional selection letter dated 18.01.2007 was issued to her under the signature of the then Child Development Programme Officer (C.D.P.O), Itkhori and thereafter an appointment letter dated 13.06.2008 was issued to her. Admittedly, she has been working as Aaganbari Sevika since 2007. It is noticed that between the issuance of provisional selection letter dated 18.01.2007 and permanent appointment letter dated 13.06.2008, there was a period of more than one and half years and no adverse report was submitted regarding submission of a wrong residential certificate and in fact she continued to work on the post till 2011, which is more than four and half years whereafter, her appointment was cancelled by the Deputy Development Commissioner, Chatra. It is necessary to take note of this fact that the appellant was arrayed as an opposite party in the writ and notice was issued to her but for reasons best known to her she did not appear to contest the aforesaid writ petition. It is necessary to take note of this fact that the appellant was arrayed as an opposite party in the writ and notice was issued to her but for reasons best known to her she did not appear to contest the aforesaid writ petition. Admittedly the Aam Sabha is the selecting authority of the Aaganbari Sevika and it has been held in the case of Smt. Sharda Devi and Smt. Tara Devi (Supra), as cited by the learned counsel for the respondent No.8 that such power is vested in the Selection Committee, which alone can issue order and make such recommendation of removal of a Aaganbari Sevika by the Child Development Programme Officer. The Deputy Development Commissioner has no jurisdiction to issue such order. 8. Thus, the facts of the present case comes within the purview of the aforesaid judgment. Accordingly, we find no merit in the present appeal and the present appeal is, hereby, dismissed and the impugned order dated 21.09.2013 is affirmed.