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2020 DIGILAW 441 (CHH)

Laxmi Devi v. State Of Chhattisgarh

2020-07-09

P.R.RAMACHANDRA MENON, PARTH PRATEEM SAHU

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JUDGMENT Parth Prateem Sahu, J. - Challenge in this appeal is to the order dated 05.07.2019 passed in Writ Petition (S) No.3821 of 2009 whereby the writ petition filed by the appellant challenging the order of dismissal of revision filed by him was dismissed. 2. Brief facts relevant for disposal of this appeal, are that, the Janpad Panchayat initiated proceedings for appointment of Anganbadi Worker at Anganbadi Centre, of Village Panchayat Bhavarmara. In the said process, Janpad Panchayat i.e. respondent No.7 called for list/panel of the applicants from Village Panchayat and at the end, appointed the appellant as Anganbadi Worker vide appointment order dated 13.11.2006. 3. Respondent No.4 challenged the appointment of the appellant by filing an appeal before the Additional Collector, Rajnandgaon. The Additional Collector after hearing the parties therein, allowed the appeal and set aside the appointment/selection of the appellant vide order dated 30.04.2007. The order of Additional Collector was put to challenge by the appellant before the Director Panchayat by way of filing revision, which came to be dismissed vide order dated 30.06.2009 holding the order passed in appeal to be in accordance with law. 4. Thereafter, the order of Director Panchayat was challenged by the appellant before this Court by filing Writ Petition (S) No.3821 of 2009 and learned Single Judge after hearing both the sides as well as taking into consideration the orders/guidelines/circulars issued by the State Government for appointment of the Anganbadi Workers prescribing therein the preference to be given to the 8th pass candidate, dismissed the writ petition by the impugned order. 5. Shri Siddharth Shukla, learned counsel for the appellant submits that the order/circular/guideline dated 06.01.2000 issued by the State Government mentions that a person, who is a Government servant or elected or nominated member of any Panchayat/Institution/Urban Bodies or their relatives will not be appointed as Anganbadi Worker, whereas respondent No.4 is working as Mitanin and also presently an elected Panch of Village Panchayat, Bhavarmara, therefore she is not eligible to be appointed as Anganbadi Worker. He points out that respondent No.4 was elected as Panch in the recent election of Village Panchayat i.e. of the year 2019-2020 and submits that looking to the change of circumstances and subsequent events taken place, the order passed in writ petition may be set aside and the appellant may be permitted to continue and perform her duties as Anganbadi Worker. It is further contended that the appellant is continuously working since 01.12.2006 on the post of Anganbadi Worker and thereby there exists equity in her favour to continue on the post of Anganbadi Worker. He places his reliance on the matters of Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770 and Hidayatkhan Bismillakhan Pathan v. Vaijnath and others, (2009) 7 SCC 506 . 6. Per contra, Shri Ghanshyam Patel, learned Government Advocate representing the State/respondents No.1, 2, 3 and 6 submits that the order impugned passed by learned Single Judge is in consonance with the order/guideline/circular issued by State Government on 06.01.2000, which was in force at the time of subject proceedings of the appointment of Anganbadi Worker. It is contended by him that Clause 7(1) of the circular dated 06.01.2000 specifically provides that preference to be given to the 8th pass candidate and only when the 8th pass candidate is not available, then only the candidate having higher qualification of High School pass, will be appointed. 7. Shri Rakesh Thakur, learned counsel for respondent No.4 vehemently opposes the submission made by learned counsel for the appellant and argued that as per the order/circular/guideline dated 06.01.2000, which is effective on the date of selection process, it is only respondent No.4, who was having requisite preferential qualification to be appointed on the post of Anganbadi Worker. The appellate as well as revisional authority taking into consideration the order/guideline/circular dated 06.01.2000, passed the orders in her favour. It is further contended that Mitanin is not any permanent post or a Government post. The bar imposed on a person to be appointed as Anganbadi Worker under Clause 3 of order/circular/guideline dated 06.01.2000 if she is a Government servant or elected or nominated member of Panchayat/Institution/Urban Bodies. Respondent No.4 does not come within any of these categories as mentioned in Clause 3 of the circular dated 06.01.2000. He also points out that on the date of filing of an application in the year, 2006, respondent No.4 was not holding any elected post of Panchayat, but it is only in the year 2020, she was elected as Panch of the Village Panchayat. He also points out that on the date of filing of an application in the year, 2006, respondent No.4 was not holding any elected post of Panchayat, but it is only in the year 2020, she was elected as Panch of the Village Panchayat. He submits that respondent No.4 has challenged the selection/appointment of the appellant on the post of Anganbadi Worker as in the year 2006 and therefore, the facts and status available on the date of filing appeal challenging appointment process initiated by respondent Janpad Panchayat is to be taken into consideration. He submits that the respondent No.4 is interested to work as Anganbadi worker and has filed an affidavit to this effect mentioning that she will resign from the posts. 8. We have heard learned counsel appearing for respective parties and also perused the record. 9. The appointment of the appellant as Anganbadi Worker dated 13.11.2006 was challenged by respondent No.4 by filing an appeal before the Additional Collector, which came to be allowed on 30.04.2007. The Additional Collector in its order allowing the appeal specifically held that total five applications were received by Village Panchayat in the selection process of the Anganbadi Worker. Out of five, applications of three candidates were rejected as they were found to be ineligible on the ground that they were relative of the elected members of the Village Panchayat. The Additional Collector further held that in presence of respondent No.4, who is only 8th class pass, the appellant who is having higher qualification and at Sl.No.2 in merit, respondent No.7 selected/appointed the second meritorious candidate leaving apart the first meritorious candidate in the list and allowed the appeal. 10. Perusal of Annexure P/1, which is order dated 30.06.2009 passed by Director Panchayat, the ground raised by the appellant before the revisional Court is only that she is more meritorious candidate to be appointed on the post of Anganbadi Worker being possessing more qualification than respondent No.4. No other ground was raised. Revisional authority upheld the order of Additional Collector passed in appeal and dismissed the revision. 11. No other ground was raised. Revisional authority upheld the order of Additional Collector passed in appeal and dismissed the revision. 11. In writ petition also, the appellant has raised his contention challenging the impugned order on the ground that the appellant is possessing higher qualification and the preference to be given to the 8 th class pass candidate for appointment on the post of Anganbadi Worker was omitted in the subsequent circular issued in the year 2008. Once the qualification criteria was changed during the pendency of revisional proceedings then the petitioner being selected/appointed and discharging her duties is entitled to retain the post of Anganbadi Worker. No other point was raised in the writ petition. 12. The bar imposed in order/circular for appointment on the post of Anganbadi Worker dated 06.01.2000 is with regard to the Government servant or elected or nominated members of the Panchayat, Institution or Urban Bodies. Respondent No.4 on the date of selection process was neither a Government servant nor elected member of Village Panchayat, Urban Body or any Institution. 13. The learned Single Judge has done comparative analysis of the relevant Clauses and eligibility conditions of both the orders/circulars issued for appointment of Anganbadi Worker and discussed in paragraph No.5 onwards in the impugned order which is extracted below :- "5. Having heard the contentions put forth of either side and on perusal of records, it would be relevant at this juncture to refer the conditions stipulated for appointment of Anganbadi Worker as per the policy dated 27.05.1996. Clause 1A(6) is relevant clause which for ready reference is being reproduced hereinunder :- 6. Perusal of the record would further show that the said condition specifically has again being modified by the State Government vide circular dated 06.01.2000, wherein the aforementioned clause 6 have been modified as under :- 7. It is this modified policy which was prevalent on the date of appointment of the petitioner i.e. on 13.11.2006. It appears that Chief Executive Officer did not refer to the said modified policy on 06.01.2000 while issuing the appointment. 8. It is this modified policy which was prevalent on the date of appointment of the petitioner i.e. on 13.11.2006. It appears that Chief Executive Officer did not refer to the said modified policy on 06.01.2000 while issuing the appointment. 8. These aspect was infact dealt with by the appellate authority i.e. Additional Collector and again by the Director, Panchayat in the Revision petition and both of them have accepted the fact that it was the policy dated 06.01.2000 which was prevalent and not the previous policy and therefore had held that the appointment of the petitioner to be bad in law. 9. Having considered the facts and circumstances of the case, particularly, taking note of the policy decision prevalent on the date of appointment, it clearly reflects that it is the policy of 06.01.2000 which was applicable and which was supposed to be invoked by the authorities. This aspect has been dealt with by the appellate authority and the revisional authority. No strong case has been made out by the petitioner with which it could be said that finding of the appellate authority as well as revisional authority are either bad in law or in any manner perverse. The petitioner neither has been able to produce before the Court that on the date of appointment this policy dated 06.01.2000 had further been modified before the appointment order was issued. 10.Given the facts, this Court does not find any merits so far as the writ petition is concerned and writ petition thus fails and is accordingly rejected affirming the order passed by Additional Collector dated 30.04.2007 and the order passed by Revisional Authority i.e. Director, Panchayat dated 30.06.2009." 14. Looking to the facts and circumstances of the case as well as order/circular applicable on the date of appointment of Anganbadi Worker, which is subject matter of dispute in appeal, we do not find any infirmity in the rationale given by learned Single Judge while dismissing the writ petition. 15. In view of the above submission made by learned counsel for the appellant that the preferential treatment to the 8th class pass candidate cannot be given over the candidate possessing higher qualification is not sustainable and is hereby rejected. 16. 15. In view of the above submission made by learned counsel for the appellant that the preferential treatment to the 8th class pass candidate cannot be given over the candidate possessing higher qualification is not sustainable and is hereby rejected. 16. The second ground raised by learned counsel for the appellant that in equity she may be permitted to continue on the post of Anganbadi Worker, more so, when respondent No.4 contested the election of Panch of Village Panchayat of the year 2019-20 and also got elected, thereby she became ineligible to be appointed on the post of Anganbadi Worker in view of Clause 3 of circular dated 06.01.2000 and further, admittedly, she is working as Mitanin. The appointment of Mitanin cannot be said to be an appointment on the any Government post. 17. The bar to be appointed in Clause 3 is to be looked into on the date of submission of application for the post of Anganbadi Worker i.e. in the year 2006. The respondent on the said date was eligible and was not suffering with ineligibility as per Clause 3 of the order/circular dated 06.01.2000. In the said circular it only mentions that :- Any Government servant and elected or nominated members of Panchayat Raj/Institutions/Urban Bodies or their relatives will not be appointed. 18. Post of Mitanin is not Government post but it is only a name given to the worker engaged as ''health volunteer'' on honorarium and therefore, it will not come under 1st part of Clause 3. The case of appellant is that the respondent contested election of 2019-20 and got elected will not make her ineligible for the selection process which took place in the year 2006. The plea of equity will not come to the rescue of the appellant when the respondent No.4 promptly filed appeal asserting her right and challenging appointment of appellant successfully and the order of appeal was affirmed in her favour in subsequent order and in writ petition. The respondent had filed her affidavit that she will resign from both post of Panch and Mitanin. 19. The case law relied upon by the learned counsel for appellant in support of his argument i.e. case law of Pasupuleti (supra) will be of no help to the appellant. The respondent had filed her affidavit that she will resign from both post of Panch and Mitanin. 19. The case law relied upon by the learned counsel for appellant in support of his argument i.e. case law of Pasupuleti (supra) will be of no help to the appellant. The aforementioned case law relied upon by the learned counsel for the appellant is with regard to the proceedings of eviction from the rented non-residential accommodation wherein during the pendency of proceedings before different Courts, the landlord in that case, has acquired another accommodation and it was held that subsequent acquisition of any accommodation is having material bearing on the right to evict in view of the inhibition written into Section 10(3)(iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The facts of the case relied upon by learned counsel for the appellant Pasupuleti (supra) is on different facts there the nature of proceedings is for eviction of tenant from the non-residential accommodation. The case law of Hidayatkhan (supra) relied upon by learned counsel for the appellant is also on different facts. In that case, subject of dispute is with regard to the election of the member in the public trust and not any appointment/recruitment proceedings. 20. Here, in the case at hand, the selection process for appointment of eligible and meritorious candidates as Anganbadi Worker is to be made in accordance with order/rule/guideline formulated by the employer or the State Government. Admittedly, under the policy/circular dated 06.01.2000, the bar imposed on appointment of the Anganbadi Worker of any candidate is only when she is a Government servant, elected or nominated members or relatives of the elected or nominated members of Panchayat Raj/Institution/Urban Bodies. There is no such case of the appellant that on the date of selection process itself, respondent No.4 was ineligible or barred on account of any reason mentioned under Clause 3 of the circular/guideline issued by State Government dated 06.01.2000, but her case is that respondent No.4 contested the election in the year 2019-20. 21. We are exercising the appellate jurisdiction and for that purpose, we have to consider whether there is any infirmity, illegality or any perversity in the order passed by the learned Single Judge while passing of the impugned order. 22. 21. We are exercising the appellate jurisdiction and for that purpose, we have to consider whether there is any infirmity, illegality or any perversity in the order passed by the learned Single Judge while passing of the impugned order. 22. Respondent No.4 is contesting her case since 2006 vigilantly and diligently and she cannot be deprived of the fruits of the proceedings initiated by her successfully before three different forums challenging the appointment of the appellant to be contrary to the circular/guideline/policy of the State Government. It is the appellant by challenging the order in revision and before this Court and obtaining interim order in her favour enjoyed the post. In case like the present one, where illegality has been committed by any authority in the recruitment/ selection process, then that cannot be continued to be perpetuated in case where meritorious candidate at Sr. No.1 is interested in her selection/appointment on the said post and willing to perform her duties. In the instant case, respondent No.4 has submitted her affidavit mentioning that she will resign from both the posts. Respondent No.4 looking to her merit is having the option to chose the job and she opted to work on the post of Anganbadi Worker. 23. In view of above, we do not find any merit in the appeal, which is liable to be and is hereby dismissed.