HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 483 of 2015 Appellant :- State Of U.P.Thru Secy.Women & Child Devp.Lko.And Ors. Respondent :- Hem Lata And Ors. 1015(S/S)2011 Counsel for Appellant :- C.S.C. Counsel for Respondent :- Saurabh Lavania Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Shri Narayan Shukla,J.
(Per Dr D Y Chandrachud, CJ) By the impugned order of the learned Single Judge dated 20 January 2014, a decision of the State Government to cancel the selection held for the posts of Anganwadi Karyakatri, Anganwadi Sahayika and Mini Aanganwadi Karyakatri has been set aside. Against the common judgment and order delivered by the learned Single Judge in a bunch of three writ petitions1, three special appeals (including the present) have been filed by the State. Since the issues are common, they will be governed by this judgment.
On 16 December 2003 and 21 February 2007, the State Government issued two Government Orders laying down norms and guidelines for appointment of Anganwadi Workers/Helpers, stipulating qualifications and procedures for selection. The Union Government in the Ministry of Women and Child Development sanctioned 14,604 additional Anganwadi Centres and 22,186 Mini Anganwadi Centres under the third phase of the Integrated Child Development Service2 Scheme. On 30 June 2010, an advertisement was issued under the Child Development Project, Sikandarpur Karan of district Unnao by which 41 posts of Anganwadi Karyakatris, 58 posts of Anganwadi Sahayikas and 30 posts of Mini Anganwadi Karyakatris were advertised. The advertisement was issued in one newspaper namely Rashtriya Sahara. In terms of the Government Order dated 21 February 2007, a stipulation was made that selections would be conducted by a Selection Committee chaired by the Child Development Project Officer. However, it was stipulated that the Collector and District Magistrate would have to grant his prior approval before issuing appointment orders. The Chief Development Officer, Unnao, noticing certain infirmities in the selection process, directed the Sub Divisional Magistrate to conduct an inquiry. The Sub Divisional Magistrate, in a report dated 23 December 2010, found that the posts in question had not been widely advertised; in several villages, income certificates of candidates were shown as not received and applications were directly submitted in the office. However, it was found that, among those who had applied, the merit list had been prepared in accordance with the relevant Government Orders upon which a recommendation had been made by the Selection Committee. The inquiry report was examined by the District Development Officer and the Chief Development Officer and eventually, the District Magistrate endorsed the file on 27 December 2010. The Chief Development Officer had proposed that in view of irregularities which were found in the report submitted by the Sub Divisional Magistrate, the entire process was found to be suffering from infirmities. The recommendation for holding a fresh selection was hence endorsed by the Collector and District Magistrate. That gave rise to the filing of writ petitions. A counter affidavit was filed in response to the writ petitions by the State justifying the decision which was taken to cancel the selection process.
The learned Single Judge, by a judgment and order dated 20 January 2014, noted that (i) 176 applications were received against 41 vacant posts of Anganwadi Karyakatri, 49 applications were received against 30 vacancies of Mini Anganwadi Karyakatri and 69 applications were received against 58 posts of Anganwadi Sahayikas; (ii) applications were duly scrutinized in accordance with the procedure prescribed by the relevant Government Orders; (iii) it was hence not proper to hold that posts were not duly advertised and that persons residing in the local area were unable to obtain knowledge about the vacancies or the selection; and (iv) the object of publication was to ensure knowledge on the part of local residents. Since the posts were advertised in Rashtriya Sahara which has a wide circulation, the Single Judge held that it could not be said that the publication was not in a proper manner. On these grounds, the writ petition was allowed.
The norms and guidelines for the purpose of selection have been formulated in two Government Orders dated 16 December 2003 and 21 February 2007. In addition, it may be noted, the Director, Child Development and Nutrition had issued instructions on 21 January 2001 to Collectors and District Magistrates. The instructions indicate that where a selection has been held for the first time for Anganwadi Karyakatris and Anganwadi Sahayikas, it is necessary that there should be a wide circulation of the proposed selection in the area in question and that the publication should be made in local newspapers published in the area. The purpose and object of this stipulation is to ensure that equality of opportunity in matters of public employment which is a requirement of Articles 14 and 16 is observed. In the present case, the matter was inquired into by the Sub Divisional Magistrate, Unnao, on the directions of the Chief Development Officer. In his report dated 23 December 2010, the Sub Divisional Magistrate came to the conclusion that adequate publicity was not made in respect of the selection, as a result it was found that in certain areas only one application had been received and on enquiry it was found that local residents had not been able to obtain knowledge about the vacancies or the selection which was to be made. This was a pure issue of fact. Thereafter, the matter was considered by the Chief Development Officer and eventually by the District Magistrate whose approval was required in terms of the Government Order dated 21 February 2007. The proposal which was put up before the District Magistrate, specifically refers to the report of the Sub Divisional Magistrate, Sadar and the recommendation made by the Sub Divisional Magistrate for cancelling the selection and for initiating a fresh process of selection. The District Magistrate endorsed the proposal on 27 December 2010.
The learned Single Judge has virtually substituted his assessment for the finding of the authority competent to decide the issue as to whether the process of selection had been fair and whether vacancies had been duly advertised. The learned Single Judge was of the view that the Rashtriya Sahara being a national newspaper would have wide circulation. With respect, this misses the essential aspect of the matter which is emphasized in the Government Order dated 21 January 2001 to the effect that the publication should take place in a newspaper having a wide circulation in the local area concerned. The Sub Divisional Magistrate had also furnished reasons to the effect that in certain parts only one application had been received and on enquiry it was found that there was no knowledge of the process of selection. This finding was sought to be displaced by the learned Single Judge by relying upon the data contained in Annexure-9 which is the noting by which the merit list was communicated for approval of the District Magistrate on 18 August 2010. This indicated that as against 41 posts of Aanganbadi Karyakatris 176 applications had been received; against 58 posts of Sahayikas 69 applications had been received, whereas against 30 posts of Mini Aanganbadi Karyakatris 49 applications had been received. The mere fact that the number of applicants was more than the number of posts is, by itself, not indicative of whether the publicity which was required to be made of the process of selection was fair and proper. In fact, the authorities would be justified in coming to the conclusion that normally when such posts are advertised, the number of applications is much larger than what was received in the facts and circumstances of the case. The report of the Sub Divisional Magistrate was not a matter of conjecture since it was based on a due and proper inquiry. Hence, we are of the view that the learned Single Judge erred in substituting essentially the opinion of the Court for the finding which was arrived at by the report of the Sub Divisional Magistrate.
Having said this, we find from the record that the Collector and District Magistrate endorsed his acceptance of the recommendations made by the Chief Development Officer, based on the report of the Sub Divisional Magistrate. The District Magistrate could be faulted for not having independently applied his mind to all the facts and circumstances since, besides endorsing his signature, the District Magistrate has not indicated any reason of his own. The purpose of obtaining the prior approval of the Collector and District Magistrate is to ensure oversight and supervision over the entire process of selection. In the circumstances, the appropriate order would have been to direct that the matter should be looked into by the Collector and District Magistrate to arrive at a reasoned conclusion.
Thus, for the reasons which we have indicated above, we are unable to sustain the view of the learned Single Judge allowing the writ petition and setting aside the cancellation of the selection process. At the stage, when merely a select list was drawn up, no candidate as such had a vested right to appointment. At the same time, the cancellation of the selection process cannot be made arbitrarily and has to be based on cogent reasons as held by the Supreme Court in East Coast Railway Vs Mahadev Appa Rao3. In that case, it was found by the Supreme Court that the order of cancellation passed by the competent authority was not preceded even by a prima facie satisfaction about the correctness of the allegations which were made by unsuccessful candidates. In this context, the Supreme Court held that if a test is cancelled just because some complaints, howsoever frivolous, have been received, it may lead to a situation where no selection process can be finalized as those who failed to qualify, can always make a grievance against the test or its fairness.
In the present case, there is a material in the form of a report of the Sub Divisional Magistrate dated 23 December 2010. We are of the view that the Collector and District Magistrate should have applied his mind independently to that material and should have indicated at least some reasons for either accepting or not accepting the proposal. The Collector and District Magistrate having failed to do so, the appropriate course of action would be to direct a fresh examination by him.
For these reasons, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 20 January 2014. We restore the proceedings back to the Collector and District Magistrate who shall reexamine the record and decide whether or not to grant his approval to the select list, after a verification and enquiry.
In the meantime, it has been stated before the Court that appointment letters have been issued to some of the candidates albeit with the condition that it will be subject to the final result of these proceedings. Hence we clarify that the present judgment shall not disturb those appointments but the legality of the letters of appointment shall abide by the final result of the decision of the Collector.
We leave it open to the District Magistrate to consider all aspects of the matter including whether the advertisement was duly publicized in newspapers having wide circulation in the local area and in regard to the procedure followed in the selection. The Collector and District Magistrate is requested to complete the enquiry within a period of three months from the receipt of a certified copy of this order and pass a fresh order.
The special appeal is accordingly disposed of. There shall be no order as to costs.
Order Date :- 1.10.2015 VMA (Dr. D.Y. Chandrachud, C.J.) (S.N. Shukla, J.) Chief Justice's Court Civil Misc. Delay Condonation Application No. 104309 of 2015 In re :
Case :- SPECIAL APPEAL DEFECTIVE No. - 483 of 2015 Appellant :- State Of U.P.Thru Secy.Women & Child Devp.Lko.And Ors.
Respondent :- Hem Lata And Ors. 1015(S/S)2011 Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Saurabh Lavania Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Shri Narayan Shukla, J.
There is a delay of one year seven months and ten days on the part of the State in filing the special appeal against the judgment and order dated 20 January 2014 of the learned Single Judge. An application for condonation of delay, duly supported by an affidavit of the District Programme Officer, Unnao, has been filed. The affidavit explains the steps which were taken in pursuance of the order of the learned Single Judge. We find no negligence or deliberate inaction on the part of the officials of the State and hence, in the interest of justice, we condone the delay.
The application is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 1.10.2015 VMA (Dr. D.Y. Chandrachud, C.J.) (S.N. Shukla, J.)