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2019 DIGILAW 99 (PAT)

Mini Kumari v. State of Bihar

2019-01-15

ARVIND SRIVASTAVA, JYOTI SARAN

body2019
ORDER Heard Mr. Purushottam Kumar Jha, learned counsel appearing for the appellant, Mr. Kinkar Kumar, learned Standing Counsel-9 appearing for the State and also Mr. Rajeev Ranjan, learned counsel appearing for respondent No.6. 2. Feeling aggrieved by the judgment and order dated 12.02.2015 passed by the learned Single Judge in C.W.J.C. No. 1332 of 2014 whereby the writ petition was dismissed, the appellant-writ petitioner is before this Court. 3. The facts of the case lies in a very narrow compass. A selection process was initiated for filling up the post of Aanganwari Sewika for Madhopur Western Tola, Anganwari Centre in the district of Bhagalpur for which a Aam Sabha was held on 19.01.2011 in which the private respondent was selected for appointment to the post of Aanganwari Sewika despite coming second in the merit list by assigning reason that because the brother of the husband of the petitioner-appellant held a post of Mukhiya, she was disqualified for her appointment. Feeling aggrieved, the appellant-writ petitioner, filed a complaint before the District Programme Officer, Bhagalpur, a copy of which is enclosed at Annexure-1 to the writ petition, and because no order was passed thereon, she approached the District Magistrate, Bhagalpur in Miscellaneous Petition No. 116 of 2010-11. The District Magistrate, Bhagalpur on examination of the issues raised by the appellant-writ petitioner upheld the complaint to disqualify the private respondent for the post and directed the Child Development Project Officer, Nathnagar to proceed for appointment in accordance with law. Thereafter, the appellant-writ petitioner was appointed on the post of Aanganwari Sewika on 08.06.2013 vide Annexure-4 to the writ petition. It was now the turn of the private respondent to move in appeal against the order of the District Magistrate which was filed before the Commissioner, Bhagalpur giving rise to Miscellaneous (Anganwari) Appeal Case No. 23 of 2013-14. The order of the Commissioner is impugned at Annexure-7 to the writ petition and the Commissioner taking note of the issue raised by the private respondent in her appeal regarding the brother of the husband of the appellant-writ petitioner holding the post of a public representative i.e. Mukhiya disqualified her to hold the post and along side also held that the private respondent was also not qualified for the post for the same reason and a direction was given to the authority concern for moving afresh for appointment. 4. 4. Feeling aggrieved by the order of the Commissioner, Bhagalpur Division, impugned at Annexure-7, the writ petition was filed which has been dismissed by the order impugned passed by the learned Single Judge, the appellant-writ petitioner is before this Court. 5. We have heard learned counsel appearing for the parties and we have perused the records and the reasons for striking down the appointment of the appellant-writ petitioner is that the brother of her husband held a post of Mukhiya, a public representative, and thus, the appellantwrit petitioner being his relative was disqualified for appointment. 6. Mr. Jha, learned counsel appearing for the appellant-writ petitioner has straightway drawn the attention of this Court to the guidelines issued on 14.06.2010 which were in force when the process of selection was initiated and in a particular reference to the prohibition present at paragraph 4.6 thereof, he submits that although a daughter-in-law of a public representative has been held disqualified for such post and insofar as the dealers under Public Distribution System are concerned, the wife, the daughter-in-law and any other relative of a dealer under the Public Distribution System have also been held disqualified for such post but the appellant-writ petitioner does not fall in either category. He submits that the term “relative” was not clarified rather the clarification for the first time has been made by issuance of fresh guidelines on 04.11.2011 to include the wife of the younger brother as well. He submits that since the clarification was issued by the department subsequent to the initiation of the selection process, it is the 2010 guidelines on which the claim of eligibility needs to be tested and not by the modified guidelines which was issued in 2011. 7. Mr. Kinkar Kumar, learned S.C.-9 while not disputing this position has submitted that since the term “relative” is much present in the 2010 guidelines for disqualification on this count, the clarification issued by the department on 04.11.2011 merely clarifies the position and the opinion of the Commissioner is in tune with this clarification. 8. We have heard learned counsel appearing for the parties and we have perused the records. It is not in contest that the 2010 guidelines which was in force when the selection was made in January, 2011. 8. We have heard learned counsel appearing for the parties and we have perused the records. It is not in contest that the 2010 guidelines which was in force when the selection was made in January, 2011. The 2011 guidelines came into force only on the issuance of the memo dated 04.11.2011 i.e. much after completion of the process in question. Paragraph 4.6 of the 2010 guidelines run as under; – ^^4-6 tuÁfrfufèk;ksa dh cgw fj'rsnkj bl in ds fy, v;ksX; gksaxhA fofHkUu ljdkjh lkefxz;ksa ds foØsrkvksa ¼TkSls tu forj.k Á.kkyh foØsrk] ?kqeUrq fdjklu rsy ds foØsrk½ dh iRuh@cgq@fj'rsnkj bl in ds fy, v;ksX; gksaxsA** 9. The plain reading of the guidelines would show that it is only the daughter-in-law of a public representative who is held disqualified to hold the post and the other categories are in reference to the dealers under the Public Distribution System. No doubt the word ‘relative’ accompanies the classification “daughter-in-law” but in the nature of vagueness accompanying such relationship, it cannot be extended to include each and every relative of a public representative. Perhaps, it is realizing the vagueness in the disqualification clause that the Department of Social Welfare while issuing the guidelines on 04.11.2011 clarified as to which relationship would be covered by the term “relative” but then neither this clarification can be applied retrospective to a selection completed nor the guidelines have a retrospective application. 10. Mr. Kinkar Kumar, learned S.C.-9 is correct that the guidelines is clarificatory in nature but then this only strengthens the argument advanced by Mr. Jha that the clarification would not cover the concluded transactions. Mr. Kinkar Kumar, learned S.C.-9 further informs on instruction that a fresh selection process for the post of Aanganwari Sewika has been initiated and for which Aam Sabha is fixed for 29th of this month. 11. In such view of the matter, there was no occasion for the Commissioner, Bhagalpur Division to interfere with the appointment of the appellant-writ petitioner as Aanganwari Sewika for Madhopur Western Tola, Anganwari Centre, Ward No.3 in the District of Bhagalpur vide appointment letter dated 08.06.2013, at Annexure-4, more particularly when the District Magistrate, Bhagalpur had examined the matter threadbare and did not record any adverse opinion. The opinion of the Commissioner, Bhagalpur Division, which was impugned before the learned Single Judge is contrary to the 2010 guidelines and perhaps was recorded by the Commissioner in ignorance of this relevant aspect. 12. For the discussions above, we are persuaded by the argument of Mr. Jha to set aside the judgment and order of learned Single Judge dated 12.02.2015 passed in C.W.J.C. No. 1332 of 2014 and the same is, accordingly, set aside. In consequence, the order dated 26.09.2013 of the Commissioner, Bhagalpur Division, impugned at Annexure-7 to the writ petition, is held illegal and contrary to the 2010 guidelines which was in force and did not cover disqualification of the wife of younger brother of a public representative for such appointment which order is, accordingly, set aside. The appellant-writ petitioner is reinstated on her post of Aanganwari Sewika. All consequential action undertaken by the concerned respondent authorities for fresh appointment of Aangawari Sewika is, accordingly, set aside. The writ petition is allowed. 13. In the result, the present Letters Patent Appeal is allowed with the direction above.