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2016 DIGILAW 421 (UTT)

Leela @ Leela Bisht v. State of Uttarakhand

2016-08-02

SUDHANSHU DHULIA

body2016
JUDGMENT : 1. This matter was listed on 01.08.2016 and after hearing learned counsels for the parties at length, on the request of Mr. Bhagwat Mehra, counsel for respondent No. 7 - Ms. Sushila Tripathi (petitioner in WPSS No. 468 of 2016), who submitted that he too also filed a writ petition being WPSS No. 1228 of 2016 before this Court both the matters are heard together on request of the learned counsels. As both these writ petitions relate to a common issue, both the petitions are being heard and decided by this common judgment. For the sake of convenience, however, the facts of WPSS No. 468 of 2016 are being taken into consideration for the disposal of these matters. 2. In this case, both the petitioners i.e. Smt. Leela @ Leela Bisht (in WPSS No. 468 of 2016) and Smt. Sushila Tripathi (in WPSS No. 1228 of 2016) are rival contenders for the post of Aaganbari Karyakarti for the Aaganbari Karyakarti Centre at Village Pawalgarh, Ramnagar, District Nainital. The case of the petitioner in WPSS No. 468 of 2016 is that she is a widow of one Kundan Singh, who was a Soldier in Indian Army and who died on 22.10.2014. 3. An advertisement was published in the month of September 2015 by the authority concerned for inviting applications from amongst eligible candidates for the post of Aaganbari Karyakarti for the Aaganbari Centre at Village Pawalgarh, Ramnagar, District Nainital. It is again an admitted fact that the post of Aaganbari Karyakarti is only to be filled by a woman and preference will be given to a widow, to a divorcée or one who is below the poverty line. The petitioner being a widow and the preference given to her is liable to be selected for the post of Aaganbari Karyakarti against all the other candidates and consequently, preference being given to her – Smt. Leela @ Leela Bisht, was to be appointed. It appears, meanwhile that respondent No. 7 – Smt. Sushila Tripathi (petitioner in connected petition i.e. WPSS No. 1228 of 2016) moved a representation to Hon’ble the Chief Minister, which was marked to Secretary and the concerned Secretary in turn marked it urgent and sought a proposal from the Additional Secretary on the subject. It appears, meanwhile that respondent No. 7 – Smt. Sushila Tripathi (petitioner in connected petition i.e. WPSS No. 1228 of 2016) moved a representation to Hon’ble the Chief Minister, which was marked to Secretary and the concerned Secretary in turn marked it urgent and sought a proposal from the Additional Secretary on the subject. Although the proposal, which was given, is not on record, but subsequently, an order was passed by the Secretary herself on 28.01.2016 by which it was said that as an exception, respondent No. 7 – Smt. Sushila Tripathi is appointed as Aaganbari Karyakarti for the Aaganbari Centre at Village Pawalgarh, Ramnagar, District Nainital. Since then, respondent No. 7 – Smt. Sushila Tripathi is working on the said post. This is the order, which is presently under challenge before this Court in WPSS No. 468 of 2016. 4. Mr. Harendra Belwal, learned counsel for the petitioner submits that respondent No. 7 – Sushila Tiwari has been appointed, as an Aaganbari Karyakarti, pursuant to an order dated 28.01.2016 passed by the Secretary to the Government. He further pointed out various anomalies on the appointment of respondent No. 7 and submits that in any case respondent No. 7 could not have been given appointment on the post of Aaganbari Karyakarti on the basis of the documents available before the authority concerned. 5. During the pendency of the above writ petition, respondent No. 7 too has filed a writ petition (WPSS No. 1228 of 2016). What could be the reasons for filing this writ petition before this Court is best known to her, since on the post of Aaganbari Karyakarti. the petitioner (i.e. Sushila Tripathi) is already working. She has filed the writ petition (WPSS No. 1228 of 2016) before this Court with the following prayers:- 1. To declare the action of the Respondent No. 2 in considering the candidature of the Respondent No. 3 pursuant to selection in question, for the post of Aaganbari Karyakarti, Pawalgarh District Nainital and consequent her inclusion in the merit list, as arbitrary and illegal. 2. To issue a writ order or direction in the nature of certiorari to quash the impugned merit list prepared by the Respondent No. 2 (Annexure No. 3 to the writ petition) 3. To issue any other writ order or direction which this Hon’ble Court may deem fit and necessary in the circumstances of the case. 4. 2. To issue a writ order or direction in the nature of certiorari to quash the impugned merit list prepared by the Respondent No. 2 (Annexure No. 3 to the writ petition) 3. To issue any other writ order or direction which this Hon’ble Court may deem fit and necessary in the circumstances of the case. 4. To award cost of the writ petition in favour of the petitioner. 6. The appointment of Aaganbari Karyakarti is made under a scheme and the appointment is regulated by a Government order dated 24.02.2009 whereby the Uttarakhand Government had laid down the eligibility conditions as well as the procedure for appointment of Aaganbari Karyakarti. The Appointing Authority for the post of Aaganbari Karyakarti is a Child Development Officer of the block, which is a block level post. The appointment of Aaganbari Karyakarti is being done after screening through a selection committee at block level and considering the yardstick of qualification, preference, etc. candidates are marked and thereafter given preference and appointment. This appointment is also a subject to challenge before an appellate authority, which consists of three members headed by Chief Development Officer – Chairman, A person nominated by the District Magistrate (who must be at least Class-II Officer) and District Programme Officer (who will be the member Secretary of this appellate body). 7. In this case, although apparently there was a clear recommendation of the selection committee in favour of the petitioner – Smt. Leela @ Leela Bisht as against all other eligible candidates, but since respondent No. 7 – Smt. Sushila Tripathi had approached the Hon’ble Chief Minister and the Secretary of the Government, on whose directions this appointment has been made by the authority concerned. There is absolutely no doubt that such an appointment, as has been made in favour of respondent No. 7 – Smt. Sushila Tripathi cannot be sustained in any manner. There is favoritism and nepotism writ large on this appointment. It is also totally in violation of Government order dated 24.02.2009. This Court is not saying anything on the difficulties and hard times, which have fallen upon the private respondent No. 7, who may be given benefit by the Government, yet in this case, appointment of Aaganbari Karyakarti is regulated by a procedure and is to be done in terms of the Government Order dated 24.02.2009. This Court is not saying anything on the difficulties and hard times, which have fallen upon the private respondent No. 7, who may be given benefit by the Government, yet in this case, appointment of Aaganbari Karyakarti is regulated by a procedure and is to be done in terms of the Government Order dated 24.02.2009. The selection process had already been initiated and it was the petitioner – Smt. Leela @ Leela Bisht, who was liable to be given appointment of the basis of the recommendations of the committee. This Court has already held in similar matters that the post of Aaganbari Karyakarti is not a Government post or a Civil post and moreover, it is not a service under the State, therefore, the compassionate Rules of appointment known as “Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974” are not applicable in this case, as is being said and as it is reflected from the order dated 28.01.2016 that appointment is being made on compassionate ground since the mother of respondent No. 7, who was an Aaganbari Karyakarti, died while in harness. The appointment has to be done on the recommendation of selection committee and has to be strictly governed as per the Government order dated 24.02.2009 on which the selected candidates were liable to be appointed. 8. Heard Mr. Bhagwat Mehra, learned counsel for the respondent No. 7 and perused the records. One of the main objections of Mr. Bhagwat Mehra, learned counsel for respondent No. 7 – Smt. Sushila Tripathi is that the petitioner – Smt. Leela @ Leela Bisht is not a permanent resident of Village Pawalgarh. As far as this objection is concerned, the same is absolutely misconceived, as the petitioner was born and brought up at Pawalgarh in her matrimonial home. It is clear that after the death of her husband, she is residing at Pawalgarh. Moreover, the petitioner has also annexed her permanent resident certificate, voter ID, Aadhar Card and Family Register as annexure Nos. 1 to the rejoinder affidavit, which clearly demonstrate that she is a permanent resident of Pawalgarh. Therefore, this submission of the private respondent is totally misconceived. 9. The second objection of the respondent No. 7 is that a criminal proceeding is going on against the petitioner, therefore, she cannot be considered for the post of Aaganbari Karyakarti. 1 to the rejoinder affidavit, which clearly demonstrate that she is a permanent resident of Pawalgarh. Therefore, this submission of the private respondent is totally misconceived. 9. The second objection of the respondent No. 7 is that a criminal proceeding is going on against the petitioner, therefore, she cannot be considered for the post of Aaganbari Karyakarti. As far as this submission of the respondent is concerned, it appears from the perusal of the record that on an application under Section 156(3) of Cr.P.C. moved by her in-laws in which the police after investigation submitted final report in the matter before the court concerned. The allegation against the petitioner was that she had a hand in the death of her husband. Later on a protest petition, learned Magistrate has directed the police authority to reinvestigate the matter afresh. Under these circumstances, it cannot be said that the petitioner is a formal accuse in a police case. On being questioned on this aspect the counsel for the petitioner reiterates that the husband of the petitioner, who was in the Armed Forces, came to the matrimonial house of the petitioner and thereafter he had consumed poison and later on found dead outside the house of his in-laws at Pawalgarh. Since it was an unnatural death, therefore, postmortem was also conducted on the body of the deceased – Kundan Singh wherein cause of death has been shown as death due to poison. As of now, therefore, it cannot be said that on this ground alone, the candidature of the petitioner is liable to be rejected. 10. In view of the above discussion, the writ petition No. 468 of 2016 filed by Smt. Leela @ Leela Bisht stands allowed. The impugned order dated 28.01.2016 passed by respondent No. 2 by which respondent No. 7 has been appointed on the post of Aaganbari Karyakarti is hereby quashed. A mandamus is hereby issued to the authority concerned to give appointment to the petitioner on the post of Aaganbari Karyakarti in place of respondent No. 7, forthwith. 11. The writ petition (No. 1228 of 2016) stands dismissed.