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2018 DIGILAW 2670 (JHR)

Sabana Khatoon v. State of Jharkhand

2018-12-06

S.N.PATHAK

body2018
JUDGMENT : 1. The petitioner has approached this Court with a prayer for a direction upon the respondents to consider the case of the petitioner for appointment to the post of Aanganbari Sevika in the village of Baramsoli in the District of Deoghar. 2. The factual exposition as has been delineated in the writ petition is that a notification was floated by the Welfare Department for appointment of Aanganbari Sevika in the Village of Baramsoli, Pahrudih, Asha, Palojori in the District of Deoghar and an Aamsabha was held on 19.02.2016. The petitioner alongwith others, fulfilling the requisite qualification, appeared for the same and upon scrutiny of the application submitted by them, it was found that only Khusman Khatoon, Sabana Khatoon and Aasma Khatoon, having requisite qualification, were eligible for appointment to the post of Aaganbari Sevika. It is further the case of the petitioner that from perusal of the marks and certificates of the said candidates, it was found by the Aam Sabha that petitioner was having First Division in the Matriculation and in Intermediate, she was having 55.57 % marks, whereas, Khusman Khatoon had passed Matriculation in Second Division and also in Intermediate, she had got 45.06 % marks only whereas, Aasma Khatton had having lesser marks than two candidates. It is specific case of the petitioner that she fulfilled all the eligibility criteria and terms and conditions for the appointment and also having higher marks than all the candidates, but she was denied appointment to the post of Aaganbari Sevika and respondent No.6 was considered for appointment and appointment letter to that extent was issued to the said respondent No.6 on the recommendation of the Village Level Committee i.e. Aam Sabha. Aggrieved by the same, the petitioner represented before the respondents but the same was not considered and as such, she has been constrained to knock the door of this Court for the redressal of her grievances. 3. Mr. Nilendu Kumar, learned counsel appearing on behalf of the petitioner submits that appointment of the respondent No.6 is dehors the rules. Though the petitioner was fulfilling the requisite qualification and having highest marks amongst all the appearing candidates, but on recommendation of the Aam Sabha, respondent No.6 has been appointed, which is illegally, arbitrary and not tenable in the eyes of law. Though the petitioner was fulfilling the requisite qualification and having highest marks amongst all the appearing candidates, but on recommendation of the Aam Sabha, respondent No.6 has been appointed, which is illegally, arbitrary and not tenable in the eyes of law. Learned counsel further argues that any appointment dehors the Rules cannot be accepted even if, it is on the recommendation of the Aam Sabha. Aam Sabha is not final authority but it has to be approved by the higher-authorities. When the appointment was itself dehors the rules, it was not approved by the higher authorities and as such, the appointment of the respondent No.6 is illegal. As the petitioner has fulfilled all the terms and conditions, having higher marks than the selected candidate, a direction be given upon the respondents for appointment of the petitioner to the post of Aaganbari Sevika in village of Brahamsoli, Palajori in the district of Deoghar. 4. Per contra, counter-affidavit has been filed. Mr. Nikhil Kr. Mehta, learned counsel appears on behalf of the respondent-State and Mr. Arvind Choudhary, learned counsel appearing on behalf of the respondent No.6. Learned counsels for the respondents jointly justify the appointment of the respondent No.6 and submits that there is no illegality or infirmity in the appointment of respondent No.6 as she was appointed on the recommendation of the Aam Sabha. Learned counsel draws the attention of the Court towards para 7 of the Counter-affidavit and submit that by adhering to the due prescribed procedures, Aam Sabha found 4 persons namely, Khusman Khatoon, Prerna Warsi, Shabana Khatoon and Aasma Khatoon to be eligible for selection as Anganbari Sevika and keeping in view that there was one vacant post in Baramsoli Anganbari Kendra, Khusman Khatoon was selected through majority of Votes and as such, as per guideline, respondent No.6 has rightly been appointed. 5. Be that as it may, having gone though the rival submissions of the parties and on perusal of the records, this Court is of the considered opinion that the case of the petitioner needs consideration. Though the petitioner was having all the requisite qualification and had obtained higher marks than the finally selected candidate, who was empaneled as an Aaganbari Sevika. Respondent No.6 was illegally appointed dehors the Rules. Though the petitioner was having all the requisite qualification and had obtained higher marks than the finally selected candidate, who was empaneled as an Aaganbari Sevika. Respondent No.6 was illegally appointed dehors the Rules. Nowhere, it has been mentioned in guidelines of appointment of Anganbari Sevika that a person having lesser marks in matriculation and also in intermediate can be appointed by the majority of votes by the Aam Sabha. It is very clear from the Rules that in case of dispute and in case where two candidates are having equal marks and qualification, then only role of Aam Sabha comes into play. The Aam Sabha has right for consideration by majority of votes only as per the rules and guidelines. In the instant case, though recommendation has been made by the Aam Sabha, the said recommendation is dehors the Rules, any appointment dehors the rules is not sustainable in the eyes of law and as such, is fit to be quashed and set aside. 6. As a sequel of the aforesaid observations and guidelines, I hereby quash and set aside the appointment of the respondent No.6. The Deputy Commissioner, Deoghar is directed to consider the matter afresh after affording opportunity of hearing to all the empanelled candidates and pass an order for appointment for the post of Aaganwari Sevika. 7. Needless to say that if it is found that petitioner has obtained higher marks than other candidates, fulfilling all the requisite qualification, letter of appointment shall be issued to her, within a period twelve weeks from the date of receipt of a copy of this order. 8. With the aforesaid observations and directions, writ petition stands disposed of.