Amreshwar Pratap Sahi, CJ. – These two appeals have been filed challenging the judgement of the learned single Judge dated 7th September, 2017, whereby CWJC No.7407 of 2016 filed by the appellant-Manti Kumari has been dismissed and the writ petition filed by the respondent No.8-Beauty Kumari, being CWJC No.11219 of 2016, has been allowed. The aforesaid two writ petitions arose out of a dispute of selection and appointment as an Anganbari Worker for Ward No.14, Centre No.13, Murliganj Nagar Panchayat, District-Madhepura in the year 2007. 2. The selections, which were held in the year 2007, found favour with the appellant and she came to be appointed on 21st of June, 2007. 3. The 8th respondent filed CWJC No.14132 of 2009 challenging the selection of the respondent No.10 and the said writ petition was disposed of on 9th November, 2009 by the following order: – “Heard learned counsel for the petitioner and the State. The petitioner has assailed the selection of Respondent no.10 on the post of Anganbari Sevika in preference to the petitioner. In view of the availability of appropriate remedy before the District Programme Officer, the writ application is disposed with observation that if so advised the petitioner may prefer an application before the District Programme Officer within 30 days from today. Only in that event the District Programme Officer shall be required to decide the matter after hearing all concerned including Respondent no.10 within a maximum period of three months from the date of receipt and/or presentation of the application. The writ application stands disposed.” 4. Even though the District Programme Officer was not enjoined with any such obligation to pass an order under Clause 8 of the Anganbari Sevika Sahaika Niyukti Margdarshika, 2006 (hereinafter referred to as the “2006 Guidelines”), yet it appears that in view of the orders of the High Court, the orders came to be passed by the District Programme Officer.
Even though the District Programme Officer was not enjoined with any such obligation to pass an order under Clause 8 of the Anganbari Sevika Sahaika Niyukti Margdarshika, 2006 (hereinafter referred to as the “2006 Guidelines”), yet it appears that in view of the orders of the High Court, the orders came to be passed by the District Programme Officer. In our considered opinion, this appears to have been not in consonance with Clause 8(Ka) of the 2006 Guidelines, which is extracted herein under: – ^^8- p;u lacaèkh vfu;ferrk ij dkjZokbZ & ¼d½ lsfodk@lgkf;dk ds p;u esa cjrh xbZ fdlh Hkh vfu;ferrk ds lacaèk esa vkjksi&i= ÁkIr gksus ij [kkl O;fDr }kjk ¼foèkk;d@lkaln dks NksM+dj½ vius uke@irk ds lkFk rFkk 'kiFk i= ¼uksVjh dk½ ds ekè;e ls lefiZr djus ij mDr dh tkap&iM+rky ftyk inkfèkdkjh vFkok muds funsZ'k ij vuqe.My inkfèkdkjh@ftyk dY;k.k@Áksxzke inkfèkdkjh vFkok vuqe.My inkfèkdkjh Lrj ls vU;wu Lrj ds inkfèkdkjh }kjk dh tk;sxhA** 5. According to the said Guidelines, it is only the District Collector/District Magistrate, who was the authority competent to pass an order even though he had the power to get the enquiry conducted through the District Programme Officer or the other Officers mentioned in Clause 8. The power to pass orders vested in the Collector as per Clause 10, which is extracted herein under: – ^^10- lsfodk@lgkf;dk dks p;u eqDr djuk & mijksDr dafMdk 8 ,oa 9 ds lanHkZ esa lsfodk@lgkf;dk dks p;u eqDr djus lacaèkh ÁkIr ÁLrko ij ftyk inkfèkdkjh leh{kksijkUr lacafèkr lsfodk@lgkf;dk dks viuk i{k j[kus dk ekSdk nsus ds i'pkr~ p;u eqDr djus lacaèkh eq[kj vkns'k fuxZr djsaxsA** 6. The power to sit in appeal over such an order lay with the Divisional Commissioner as per Clause 11(Ka), but simultaneously, concurrent powers were then conferred on the Secretary, Social Welfare Department, Director, Integrated Child Development Services (hereinafter referred to as the ‘I.C.D.S.’), which is contained in Clause 11(Kha). The said Clause is extracted herein under : – ^^11- p;u eqfDr ds fo:} vihyh; 'kfDr & ¼d½ ftyk inkfèkdkjh }kjk dafMdk 10 ds rgr p;u eqDr lacaèkh ikfjr vkns'k ds fo:} lac} i{k ,d ekg ds vUnj Áe.Myh; vk;qDr ds le{k vihy dj ldrs gSaA ¼[k½ dafMdk 8] 9 ,oa 10 ds lacaèk esa vk;qDr ,oa lfpo@lfpo] lekt dY;k.k foHkkx ,oa funs'kd] vkbZŒlhŒMhŒ,lŒ dks lsfodk@lgkf;dk dks lE;d~ tkapksijkUr p;ueqDr djus dk funsZ'k ftyk inkfèkdkjh dks nsus dh 'kfDr ÁnÙk gksxhA** 7.
The Collector was approached after the District Programme Officer passed the order on 19th April, 2010 rejecting the claim of the Respondent No.8. The Collector, vide order dated 14th of July, 2011, reversed the order dated 19.04.2010 but, at the same time, issued directions for holding fresh selections. 8. The respondent No.8 appears to have straightaway approached this Court by filing CWJC No.13648 of 2011 challenging the said order of the Collector without impleading the appellant as a party therein. The said writ petition was dismissed on 15th October, 2011 by the following judgment: – “Heard learned counsel for the parties. Petitioner is aggrieved by the order passed by the District Magistrate, Madhepura (annexure- 10) by virtue of which the entire selection made on the post of Anganbari Sevika for the Centre concerned has been held to be bad and direction has been issued to the District Programme Officer, Madhepura to hold a fresh exercise for selection of Anganbari Sevika for Nagar Panchayat- Murliganj in Ward No. 14 Tola Panchgachhiya. Submission of counsel is that the claim of the petitioner should have been considered and a direction ought to have been issued for her appointment if appointment of the selected candidate is bad. Submission of the counsel would have merited consideration provided the direction of the District Magistrate was limited to the illegality of selection of candidate in question. Since infirmity in the entire selection process itself has been discussed and taken note of, then the entire selection is vitiated and the Collector has done no wrong by directing that a fresh exercise is required to be done instead of settling down for second or third applicant. In view of above no interference is warranted with the order of District Magistrate. The District Programme Officer, Mahdpura must carry out the order of District Magistrte at the earliest by strictly following the procedure laid down in the guidelines for such selection within the shortest possible time. This writ petition is disposed of with the observation that petitioner has liberty to participate in the fresh exercise if she does not suffer from any legal infirmity.” 9. The appellant was aggrieved by the directions given by the Collector/District Magistrate for holding fresh selections and, therefore, keeping in view the provisions of Clause 11 of the 2006 Guidelines, she filed an appeal before the Commissioner of the Division.
The appellant was aggrieved by the directions given by the Collector/District Magistrate for holding fresh selections and, therefore, keeping in view the provisions of Clause 11 of the 2006 Guidelines, she filed an appeal before the Commissioner of the Division. Thus, two remedies were availed against the same order dated 14.07.2011 of the District Magistrate; one by respondent No.8 by filing a petition before this Court without impleading the appellant and the second by the appellant by filing an appeal before the Commissioner. 10. It may be mentioned at this stage that the Guidelines of 2006 were rescinded and a fresh set of guidelines were introduced in the year 2010, that were brought into effect from 14th June, 2010. In the said Guidelines, the power to take appropriate action was entrusted to the District Magistrate, who had to get the enquiry made through the District Programme Officer/Sub-Divisional Officer or Additional Collector and then pass orders. Against the order of the Collector, an appeal was preferable before the Divisional Commissioner within thirty days. The Commissioner was required to pass a reasoned and speaking order and such order was to be treated as final under the 2010 Guidelines.
Against the order of the Collector, an appeal was preferable before the Divisional Commissioner within thirty days. The Commissioner was required to pass a reasoned and speaking order and such order was to be treated as final under the 2010 Guidelines. Clauses 8.1 to 8.4 are extracted herein under: – ^^8- p;u lacaèkh vfu;ferrk ij dkjZokbZ%& 8-1 lsfodk@lgkf;dk ds p;u esa fdlh Ádkj dh vfu;ferrk ik;s tkus ds fy, lacafèkr cky fodkl ifj;kstuk inkfèkdkjh ,oa ftyk Áksxzke inkfèkdkjh iw.kZ :i ls mÙkjnk;h gksaxsA ;fn tkap ds Øe esa lR; ik;k tkrk gS fd cky fodkl ifj;kstuk inkfèkdkjh ,oa ftyk Áksxzke inkfèkdkjh }kjk tku&cw>dj p;u ÁfØ;k esa vfu;ferrk cjrh x;h gS rks muds fo:} dBksj vuq'kklfud dkjZokbZ dh tk;xhA 8-2 p;u lacaèkh vfu;ferrk dh f'kdk;r ÁkIr gksus ij ftyk inkfèkdkjh }kjk ftyk Áksxzke inkfèkdkjh@vuqeaMy inkfèkdkjh@vij lekgrkZ Lrj ds inkfèkdkjh ls bldh tkap djk;saxsA tkap 'kiFk ifjokn i= ÁkIr gksus dh frfFk ls 45 fnuksa ds vUnj iwjh dj yh tk;sxhA tkap inkfèkdkjh tkap ds mijkUr tkap lekIr gksus dh frfFk ls ikap fnuksa ds vUnj ftyk inkfèkdkjh dks viuk Áfrosnu lkSisaxsA ftyk inkfèkdkjh }kjk ifjokn ls lacafèkr tkap Áfrosnu ÁkIr gksus dh frfFk ls 30 fnuksa ds vUnj lacafèkr i{kksa dks lqudj viuk eq[kj vkns'k ifjr djsaxsA 8-3 ;fn ftyk inkfèkdkjh }kjk lquokbZ ds i'pkr~ ;g ik;k tkrk gS fd p;u esa xaHkhj vfu;ferrk cjrh x;h gS rks ftyk inkfèkdkjh oSls lsfodk ds p;u dks jn~n dj ldsaxs rFkk iSuy ds f}rh; loksZPp vad ikus okys vH;FkhZ dks p;u djus dk funsZ'k nsaxsA ftyk inkfèkdkjh ds vkns'k ds fo:} 30 fnuksa ds vUnj ÁeaMyh; vk;qDr ds le{k vihy nk;j fd;k tk ldsxkA 8-4 ÁeaMyh; vk;qDr lacafèkr i{kksa dks lqudj 60 fnuksa ds vUnj eq[kj vkns'k ikfjr djsaxsA bl ekeys esa mudk vkns'k vafre gksxkA muds vkns'k ds fo:} dksbZ vihy nk;j ugha gksxhA** It is these guidelines which were in force in supersession of the 2006 Guidelines, when the appellant filed her appeal before the Divisional Commissioner. 11. The Divisional Commissioner rejected the appeal filed by the appellant on 04th of August, 2011, which order is appended as Annexure 7 to the Writ Petition No.7407 of 2016. 12. The appellant felt aggrieved and filed CWJC No.14378 of 2011.
11. The Divisional Commissioner rejected the appeal filed by the appellant on 04th of August, 2011, which order is appended as Annexure 7 to the Writ Petition No.7407 of 2016. 12. The appellant felt aggrieved and filed CWJC No.14378 of 2011. Unfortunately, the said writ petition was disposed of on 05th of October, 2012 with the observation that the Director, I.C.D.S. shall proceed to decide the appeal of the appellant within one month without noticing the aforesaid Guidelines of 2010, that were already in force and that made the order of the Commissioner final. 13. In between, it appears that after the judgement of the High Court dated 15th October, 2011, fresh selections were held and the respondent No.8-Beauty Kumari came to be selected on 18th December, 2014 and appointed as Anganbari Worker in which selections, the appellant admittedly did not participate. 14. The direction issued by the High Court on 5th October, 2012 for deciding the appeal by the Director, I.C.D.S. was questioned by the State of Bihar by filing a review application in the said writ petition and which is stated to have been rejected on 8th of January, 2015 being Review No.46 of 2013. The said order has been brought on record as Annexure C to the counter affidavit of respondent No.11 in CWJC No.11219 of 2016. 15. It appears that on account of the direction issued on 5th October, 2012 by the High Court, orders came to be passed by the Director, I.C.D.S. on 31st December, 2015, whereby the fresh selection and appointment of the respondent No.8.-Beauty Kumari on 18.12.2014 was set aside and a direction was issued to the District Programme Officer, Madhepura to hold a fresh selection within 45 days. 16. The appellant being aggrieved again by the direction of holding fresh selections filed CWJC No.7407 of 2016 and Beauty Kumari aggrieved by the setting aside of her selection filed CWJC No.11219 of 2016. It is these two writ petitions, which were heard by the learned single Judge together, giving rise to the impugned judgement dated 7th September, 2017, which is under appeal before us. 17. Learned counsel for the appellant contends that the Director, I.C.D.S. has erroneously proceeded to decide the appeal without considering the errors pointed out in the order of the Collector dated 14th July, 2011, which is perverse.
17. Learned counsel for the appellant contends that the Director, I.C.D.S. has erroneously proceeded to decide the appeal without considering the errors pointed out in the order of the Collector dated 14th July, 2011, which is perverse. It is, therefore, urged that the learned single Judge committed an error in not adverting to this aspect and erroneously proceeded to dismiss the writ petition of the appellant. 18. On the other hand, the learned single Judge has also held that the selection of respondent No.8 was valid. This has also been assailed by the learned counsel contending that if the order of the Collector dated 14th July, 2011 is invalid, then any consequential selection of respondent no.8 has to fall through. It is also submitted that the order passed by the Director, I.C.D.S. was in conformity with the directions issued on 5th October, 2012 by the High Court and, therefore, the conclusion drawn by the learned single Judge that the Director, I.C.D.S. had no jurisdiction to proceed in the matter, is contrary to the direction issued by a Coordinate Bench. For this also, it is urged that the impugned judgment deserves to be set aside. 19. We may at the outset examine the issue relating to the power of the Director, ICDS in this regard. 20. Learned counsel for the State of Bihar has rightly pointed out that while issuing the direction on 5th October, 2012, this Court did not examine as to whether the Director had any authority to intervene in the matter or not, for which reliance has been placed on the Guidelines framed in the year 2010, the extracts whereof have been quoted herein above. 21. We are entirely in agreement with the arguments advanced by the learned counsel for the State of Bihar inasmuch as the Director, ICDS had no jurisdiction to entertain any such appeal and the directions issued by the High Court on 5th October, 2012 giving liberty to approach the Director, ICDS, was contrary to the Guidelines of 2010. In such circumstances, the order of the Director, ICDS was invalid as he was completely coram non judice in terms of the 2010 Guidelines.
In such circumstances, the order of the Director, ICDS was invalid as he was completely coram non judice in terms of the 2010 Guidelines. It is true that the Director could not have refused to pass orders as he was bound by the order dated 5.10.2012 moreso when the review filed by the State of Bihar being Review No.46 of 2013 was rejected by the Court on 8.1.2015, yet this Bench is not bound to approve the judgement of the learned single Judge which otherwise cannot confer jurisdiction on the Director that stood expressly taken away under the 2010 Guidelines. 22. That being the position of the provisions, under which the decision ought to have been made, we further find that the appellant even though had not been made a party to the writ petition filed by the respondent No.8, namely, Writ Petition No.13648 of 2011, the appellant had come to know of the order dated 15.10.2011 passed at least in the year 2015 itself. The said judgement was final against the authorities even though it may not have been binding on the appellant. In view of the directions dated 15th October, 2011, it was no longer open to the Collector or any other authority to have proceeded in the matter. The writ petition appears to have been dismissed at the outset, but since the appellant had come to know of the said directions in the year 2015, the appellant ought to have either prayed for recall of the order or filed an intra-Court appeal challenging the same, but the appellant did not choose to do it and to the contrary, pursued the matter before the Director, ICDS, which entire proceeding was without authority in law. 23. Consequently, the net outcome is that the judgement dated 15th October, 2011 was allowed to become final even by the conduct of the appellant and an unavailable and incorrect remedy before the Director, ICDS was being pursued which was contrary to the 2010 Guidelines. Thus, for both the reasons recorded herein above, the subsequent selections of the respondent No.8 dated 18th of December, 2014 cannot be held to be invalid and, therefore, the conclusion drawn by the learned single Judge does not warrant interference in an intra-Court appeal. 24. We, therefore, do not find any merit in these two appeals. The same are, accordingly, rejected.