Indu Kumari wife of Shri Ashok Kumar v. State of Jharkhand
2018-06-22
PRAMATH PATNAIK
body2018
DigiLaw.ai
JUDGMENT : Pramath Patnaik, J. In the accompanied writ petition, the petitioner has inter alia prayed for quashing the order of Deputy Commissioner, Koderma dated 08.05.2012 passed in favour of respondent no.5 without giving any opportunity of being heard to the petitioner. The petitioner has further prayed for quashing of the decision of the District Social Welfare Officer, Koderma (respondent no.3) contained in letter dated 24.07.2012 and directing the Child Development Project Officer, Satgawan, Koderma not to issue appointment letter to respondent no.5 and further the petitioner has prayed to hold and declare that the petitioner has been validly appointed by memo dated 26.10.2004 issued by Child Development Project Officer, Satgawan (respondent no.4) and the appointment of the petitioner has not been terminated and therefore, the respondent no.5 cannot be appointed on the post of petitioner. Further, prayer has been made to direct the respondents to pay honorarium to the petitioner for the period she has worked pursuant to her appointment by memo dated 26.10.2004 issued by the Child Development Project Officer, Satgawan, Koderma. 2. Shorn of unnecessary details, the facts in a nutshell is that the petitioner was appointed as Anganwari Sewika for the Anganwari Centre, Sarbahna vide appointment letter dated 26.10.2004 issued by the respondent no.4. In pursuance to the said appointment order, the petitioner continued to discharge her duties to the utmost satisfaction of her superior authority. During her course of services, the petitioner underwent training of Anganwari Sewika. The respondent no.5 filed W.P.(S) No.4686 of 2010 which was disposed of on 26.10.2010 directing the respondent no.5 to prefer appeal before the appellate authority i.e. Deputy Commissioner, Koderma and the said writ petition was disposed of without hearing the petitioner. In pursuance to the aforesaid direction, respondent no.5 preferred appeal before the appellate authority i.e. respondent no.2 and the same has been decided on 08.05.2012 which is impugned in this writ application. Thereafter, vide letter dated 24.07.2012, the respondent no.3 directed respondent no.4 to issue appointment letter in favour of respondent no.5. Being aggrieved by the aforesaid orders, the petitioner left with no other alternative has been constrained to knock the doors of this Court under Article 226 of the Constitution of India for redressal of her grievances. 3.
Thereafter, vide letter dated 24.07.2012, the respondent no.3 directed respondent no.4 to issue appointment letter in favour of respondent no.5. Being aggrieved by the aforesaid orders, the petitioner left with no other alternative has been constrained to knock the doors of this Court under Article 226 of the Constitution of India for redressal of her grievances. 3. Learned counsel for the petitioner has vehemently submitted that the petitioner was not a party in W.P.(S) No.4686 of 2010 and no opportunity was given to the petitioner prior to passing of the impugned order dated 08.05.2012 by the respondent no.2 therefore, the entire exercise was undertaken by the respondent no.2 without valid notice to the petitioner who was duly and validly appointed as Anganwari Sewika for Anganwari Centre vide memo dated 26.10.2004 therefore, the impugned order dated 08.05.2012 is not legally sustainable. Learned counsel for the petitioner further submits that the appointment of the petitioner has never been terminated and in that eventuality, no order of appointment to respondent no.5 could have been issued. Therefore, the appointment of the respondent no.5 was void ab-initio moreover, the respondent no.5 did not function as Sewika till 03.09.2010. Learned counsel for the petitioner further submits that it is settled position of law that observance of principle of natural justice is a concommittant of fair play, equity and justice. In the instant case, there has been breach of principle of audi alterm partem therefore, the action of respondents is violative of Article 14 and 16 of the Constitution of India. 4. Repudiating the averments made in the writ application, a counter-affidavit has been filed by respondents. In the counter-affidavit, it has been submitted that the petitioner was appointed as Anganwari Sevika in the year 2004 and continued on the said post for eight months and after some enquiry it was found that there was some irregularity in the appointment of the present petitioner on the post of Anganwari Sevika but there has been no order of termination and she was terminated only on verbal order. After being terminated the petitioner did not turn up and never preferred an appeal to the Deputy Commissioner against the verbal termination. It has further been submitted that the petitioner after being terminated never worked in Anganwari Sevika Centre and the show cause notice was issued to the petitioner vide letter dated 12.09.2007 by Child Development Project Officer, Koderma.
After being terminated the petitioner did not turn up and never preferred an appeal to the Deputy Commissioner against the verbal termination. It has further been submitted that the petitioner after being terminated never worked in Anganwari Sevika Centre and the show cause notice was issued to the petitioner vide letter dated 12.09.2007 by Child Development Project Officer, Koderma. It was informed by the show cause notice to the petitioner that after her reply to the show cause further appropriate proceeding will be initiated but the petitioner never replied to the show cause notice and without availing the alternate remedy of preferring an appeal to the Deputy Commissioner, Koderma filed the present writ petition, the copy of the show cause has been annexed as Annexure-A to the counter-affidavit. It has further been submitted that the petitioner was absent for more than 15 days which is not permitted as per the Rules and Guidelines prescribed by the Government Circular contained in letter dated 02.06.2006. The petitioner was served with show cause notice and Aam Sabha was held on 11.04.2006 and in the Aam Sabha out of 3 candidates for the post of Sevika one respondent no.5 was selected for the post of Sevika having the highest educational qualification among 3 candidates as evident from Annexure-C to the counter-affidavit. 5. Learned counsel for the State has reiterated the averments made in the counter-affidavit. Learned counsel for the State has submitted that there has been inordinate delay in preferring the writ application and the petitioner has not worked after undergoing the training. In that respect, learned counsel for the State has referred to 2014 (4) SCC 108 in the case of Chennai Metropolitan Water Supply And Sewerage Board And Others Vs. T. T. Murali Babu at paragraph nos.16 and 17. 6. A counter-affidavit has also been filed by respondent no.5. In the counter-affidavit, it has been submitted that in pursuance to selection by the Aam Sabha as Sewika, the respondent no.5 joined as Sewika in the Angan Bari Centre, Sarbahana on 06.11.2007. Thereafter, C.D.P.O. Satgawan ordered Mrs. Binita Kumari to hand over the charge to the respondent no.5.
6. A counter-affidavit has also been filed by respondent no.5. In the counter-affidavit, it has been submitted that in pursuance to selection by the Aam Sabha as Sewika, the respondent no.5 joined as Sewika in the Angan Bari Centre, Sarbahana on 06.11.2007. Thereafter, C.D.P.O. Satgawan ordered Mrs. Binita Kumari to hand over the charge to the respondent no.5. It has further been submitted that C.D.P.O, Satgawan submitted report to Additional Collector cum District Programme Officer, Koderma stating therein that the petitioner has not worked as a Sewika in Angan Bari Centre Sarbahana till 2007 and the centre is being run by the Sahayika as evident from Annexure-A to the counter-affidavit. It has further been submitted that the respondent no.5 along with villagers have also written a letter to C.D.P.O. Satgawan bringing the entire facts as per Annexure-B to the counter-affidavit. 7. Learned counsel for the respondent no.5 has vociferously submitted that after having left her services, the petitioner has been living with her husband which has been brought into the notice of the higher authorities thereafter, the petitioner has filed the writ petition after eight years and therefore, the petitioner has no locus standi to raise the issue after inordinate and inexplicable delay. 8. As against the submissions of the learned counsel for the State as well as counsel for the respondent no.5, learned counsel for the petitioner further submits that the impugned order dated 08.05.2012 has been passed in the year 2012 and the writ petition has been filed in the same year so there is no delay on the part of the petitioner therefore, the decision cited by the learned counsel for the State is not applicable to the case in hand. Learned counsel for the petitioner further submits that Clause 14, 15 and 16 of the guidelines/circular of Government of Jharkhand dated 02.06.2006 has neither complied with nor adhered to. 9.
Learned counsel for the petitioner further submits that Clause 14, 15 and 16 of the guidelines/circular of Government of Jharkhand dated 02.06.2006 has neither complied with nor adhered to. 9. Having heard learned counsel for the respective parties at length and on perusal of the records, this Court is of the considered view that in view of the allegations as has been disclosed in the writ application as well as counter-affidavit, the case of the petitioner and respondent no.5 needs to be decided afresh in view of the following facts and reasons:- (I) On perusal of the impugned order dated 08.05.2012 it would be apparent that no opportunity of hearing was given to the petitioner thereby visiting the petitioner with civil consequences. On the ground of principle of natural justice, the impugned order dated 08.05.2012 cannot be sustained in the eye of law since the impugned order dated 08.05.2012 is liable to be interfered with due to non-compliance of the principle of natural justice. This court refrains from discussing the merit of the matter. Therefore, interest of justice demands that writ petition is to be disposed of with a direction to respondent no.1 and 2 to decide the matter considering the respective claims of petitioner as well as respondent no.5 after giving them adequate opportunity in accordance with extant Government circular and law and the decision be taken within a period of 12 weeks from the date of receipt/ communication of the order. The decision taken thereof be communicated to the petitioner as well as respondent no.5 within the aforesaid period. 10. With the aforesaid observations and directions, the writ petition stands disposed of.