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2016 DIGILAW 810 (CAL)

Shweta Dey v. State of West Bengal

2016-10-05

DEBI PROSAD DEY

body2016
Debi Prosad Dey, J. : 1. In terms of the advertisement dated 20th October, 2009 for the recruitment of Anganwadi workers under the Child Development Project, Mathabhanga-II ICDS Project, the petitioners applied for the said post and the petitioners were accordingly recruited for the post of Anganwadi workers. It was mentioned in the said advertisement that the graduates or post-graduates will not be considered for the post of Anganwadi workers for the project under reference and in case of suppression of educational qualification by the applicant, their appointment would be cancelled immediately. Admittedly, the petitioners possess higher qualification but being unemployed graduates in a desperate need for employment they had applied to such post suppressing their actual qualification. The authorities admittedly enquired into the matter and being aware of such qualification of the present petitioners terminated the services of the petitioners by memo no. 25/ICDS/MTB-2 dated 24th January, 2010 following the circular no. 8050(17) dated 4th April, 1985 and 288(SW) dated 25th October, 2006. The petitioners have filed this writ petition stating interalia that the project of ICDS is a Central Government Scheme in which the minimum prescribed educational qualification is Madhyamik or equivalent and the State Government is not competent to question the candidature of any candidate with higher qualification from being considered for appointment to the post of Anganwadi workers. The circular to that effect issued by the state of West Bengal as well as the order of termination issued by state respondents are all contrary to the provisions of the Constitution of India and infringed the fundamental rights guaranteed to the petitioners by Article 14 and 21 of the Constitution of India. 2. Despite giving specific opportunity the state respondents did not file any affidavit in opposition and in absence of any affidavit in opposition it may safely be stated that the contention of the petitioners has been virtually admitted by the state respondents. Admittedly, petitioner no. 1 to 8 applied for the post of Anganwadi worker and after going through the process of recruitment, they were appointed to the post of Anganwadi worker by respondent no. 4. 3. Learned Advocate appearing on behalf of the petitioners contended that the state of West Bengal has subsequently issued notification being no. Admittedly, petitioner no. 1 to 8 applied for the post of Anganwadi worker and after going through the process of recruitment, they were appointed to the post of Anganwadi worker by respondent no. 4. 3. Learned Advocate appearing on behalf of the petitioners contended that the state of West Bengal has subsequently issued notification being no. 2791-SW/3S- 267/2012 and whereby the Anganwadi workers who were terminated from service on 5th August, 2012 for suppressing higher qualification at the time of their appointment were permitted to rejoin their respective post on the strength of the departments G.O. no. 72-SW dated 4th January, 2013 vide annexure R-1. It is therefore crystal clear from such notification of the Government of West Bengal department of woman and Child Development and Social Welfare that the Government has realised the defect in the notification and thereafter permitted for reengagement of all those Angarwadi workers who were terminated from service on 5th August, 2012. 4. Learned Advocate for the petitioners has also referred a unreported decision being FMA no. 3462 of 2013 (Smt. Shyamali Bankura Vs. The State of West Bengal and Ors.) wherein the Division Bench of this Court set aside the notification containing the stipulation that suppression of higher qualification will render the service of the petitioner for termination. Reliance has been placed upon the decision of Rina Dutta and ors. Vs. Anjali Mahato & Ors. reported in 2010(3) Calcutta Law Times 232 wherein the Special bench specifically held as follows:- “When a particular qualification is laid down in an advertisement relating to a distinct class of candidate, the candidate, the candidate possessing a qualification higher than that advertised can ordinarily not be dis-qualified but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification but the burden would be on the employer to justify such a rule”. 5. Learned Advocate for the State does not state anything against the proposition of law laid down by the Division Bench of this Court and did not pray for any time for filing affidavit in opposition. 6. Learned Advocate for the State however contended that the order passed by this Court would be adhered to by the concerned authorities. 7. 5. Learned Advocate for the State does not state anything against the proposition of law laid down by the Division Bench of this Court and did not pray for any time for filing affidavit in opposition. 6. Learned Advocate for the State however contended that the order passed by this Court would be adhered to by the concerned authorities. 7. Learned Advocate for the State also contended that the State of West Bengal has withdrawn the condition regarding suppression of higher qualification in matters of appointment of the Anganwadi workers. In that view of this case it may also be stated that the State authorities have accepted the cases of the petitioners and the stipulation of any such condition in the advertisement and subsequent termination of Anganwadi workers are contrary to the rights guaranteed under the Constitution of India. 8. In FMA no. 288 of 2015 (State of West Bengal and Ors. Vs. Bharati Ghorai & Ors.) the Division Bench of this Court held as follows:- “One other important fact should also be mentioned herein regarding subsequent modification of the guidelines relating to the higher qualifications of Anganwadi Workers by the State Government. The State Government subsequently modified the guidelines and made it clear that all the graduate and higher qualified candidates would be eligible for the post of Anganwadi Workers. The State Government realised that the restrictions imposed earlier were unreasonable and therefore, subsequently modified the same by declaring that all graduates and higher qualified candidates would be eligible for the post of Anganwadi Workers. 9. This Court, therefore, cannot ignore the subsequent decisions of the State Government whereby the graduate and higher qualified candidates were declared eligible for the post of Anganwadi Workers by modifying the earlier guidelines. In view of the subsequent modified guidelines graduate candidates were admittedly declared eligible for appointment as Anganwadi Workers and the State Government should not have terminated the services of the graduate Anganwadi Workers upon considering the present modified stand. 10. Pursuant to the earlier guidelines, appointments of the graduate candidates as Anganwadi Workers were liable to be cancelled which does not mean that those appointments has to be cancelled under any circumstances. 10. Pursuant to the earlier guidelines, appointments of the graduate candidates as Anganwadi Workers were liable to be cancelled which does not mean that those appointments has to be cancelled under any circumstances. The competent authority failed to take note of the aforesaid relevant facts before cancelling the appointments of the respondents-writ petitioners although the competent authority of the State Government realized the defects in the earlier restrictions and modified its guidelines and declared the graduate candidates eligible for the post of anganwadi Workers.” 11. It is crystal clear that the petitioners were admittedly recruited by the authorities after going through the process of recruitment. Admittedly, the petitioners suppressed their higher qualification at the time of their recruitment. The state of West Bengal has duly considered the said matter and has issued notification by reengaging the Anganwadi workers who were terminated on 5th August, 2012 having higher qualification than that of prescribed qualification in the advertisement. The Division Bench of our High Court in the aforesaid judgment has clearly stated that imposition of such condition regarding suppression of higher qualification is contrary to the rules of reasonableness and accordingly set aside the concerned notifications. 12 .On the basis of self-same analogy the petitioners are also entitled to be reengaged as Anganwadi workers. 13. The writ petition is thus disposed of in terms of the following order. The impugned order of termination being memo no. S/MTB-2 dated 24th January, 2011 issued by Child Development Project Officer of Mathabhanga-II ICDS Project terminating the services of the petitioners, is thus set aside with a direction to reengage the petitioners as Anganwadi workers in terms of their earlier appointment issued by respondent no.4. The petitioners however will not be entitled to get any salary for the period from the date of their termination to the date of their reappointment since they actually did not perform any duties during such period. The respondent no.4 is thus directed to reinstate the petitioner forthwith from the date of receipt of the certified copy of this judgment and shall take appropriate steps in accordance with law to follow the direction of this Court. 14. No order as to costs. 15. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible