Smt. Vidya Devi vs State Of U.P. And 4 Others
2019 Latest Caselaw 4536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED ON 24.4.2019
 
Delivered on 15.5.2019
 

 
Case :- WRIT - A No. - 11003 of 2016
 

 
Petitioner :- Smt. Vidya Devi
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Manoj Kumar Pandey
 
Counsel for Respondent :- C.S.C.,R.N. Yadav,S.C.,Satya Prakash Mishra
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Manoj Kumar Pandey learned counsel for the petitioner, Sri R.N.Yadav Standing Counsel for the State of U.P. and Sri Satya Prakash Mishra, learned counsel for the private respondent No 5.

2. Succinctly, the facts of the present case which led to filing of the present petition for writ by the petitioner run as under:

(a) The State Government of Uttar Pradesh in order to promote primary education and to make institutional awareness in rural as well as in urban areas has enunciated a scheme namely "Bal Vikas Seva Evam Pushtahar" under the Anganbari Programme.

(b) Petitioner who possessed qualification of High School, Intermediate and Graduate (BA) was appointed in the year 2003 as "Anganbari Sahayika" at Anganbari Centre in Tamauli, District Azamgarh. She belonged to APL (Above Poverty Line) category.

(C ) Respondent no 5, who possessed qualification of only High School and belonged to BPL (below poverty line) category was also appointed as "Anganbari Sahayika at Anganbari Centre in Tamauli, District Azamgarh in the year 2006. It brooks no dispute that the petitioner was appointed prior in point of time and also possessed higher qualification vis a vis the respondent no 5.

(d) An advertisement dated 13.1.2011 and subsequently dated 1.11.2012 was published by the respondent Department for the selection of newly created post of Anganbari Karya Karti and Sahayika.

(e) Meanwhile respondent no. 6 and others had approached this Court by way of filing Writ A No 29608 of 2011 (Smt Sangeeta Yadav and others Vs State of U.P. And others) as their claims for promotion to the post of Anganbari Karyakatri were rejected vide order dated 9.5.2011. The said writ petition came to be allowed under order dated 8.10.2013. The relevant paras 3 and 4 of the said order is quoted below for ready reference.

"3. I find substance in the submission that if there are 41 vacancies of Anganbari Karyakatri, 25 per cent thereof are liable to be filled in by promotion from amongst Angan bari Sahayika.

4. IN view of above, writ petition is allowed. Impugned order dated 9.5.2011 (Annexure 5 to the writ petition) is hereby quashed. Competent authority is directed to re-consider the available vacancies and also entitlement of petitioners for promotion as per Government Order dated 6.12.2006 as amended, modified, or clarified subsequently by different orders, as the case may be, in accordance with law within one month from the date of production of certified copy of the order."

(f) After the order dated 8.10.2013, the respondent no 5 was appointed as Anganbari Karyakatri at Anganbari Kendra Tamauli by order dated 31.1.2014 on contractual basis.

g) Being aggrieved by the appointment of Respondent No 5 as "Karyakatri" the petitioner filed Writ A No 21050 of 2014 (Smt Vidya Devi Vs State of U.P. And 4 others) on the ground that despite she being eligible, more qualified and senior to respondent no 5, she was not promoted to the post of Karyakatri and in her place, the respondent no 5 was wrongly appointed.

(h) The said writ petition culminated in being disposed of under order dated 8.12.2015 passed by this Court. The relevant part of the order is quoted below for ready reference.

"Under the circumstances, I find substance in the submissions of the learned counsel for the petitioner that the petitioner has been illegally deprived by the State-respondents for promotion on the post of Anganbari Karyakatri in terms of the Government Order dated 6.12.2006.

In view of the above discussions, this writ petition is disposed of with a direction to the respondent no.2 to decide the claim of the petitioner for promotion on the post of Anganbari Karyakatri at Tamauli Centre in terms of the Government Order dated 6.12.2006, in accordance with law, expeditiously preferably within a period of six weeks from the date of presentation of a certified copy of this order, after affording opportunity of hearing to the petitioner as well as the respondent no.5.

It is further directed that if the petitioner is found entitled for promotion/appointment on the post of Anganbari Karyakatri, then she shall be appointed in place of respondent No.5. The order of promotion passed by State-respondent in favour of respondent no.5 shall abide by the decision to be taken by respondent no.2 pursuant to the directions aforementioned.

The writ petition is disposed of with the aforesaid directions. "

(I) In pursuance of order dated 8.12.2015, the District Magistrate, Azamgarh considered the representation of the petitioner. However, the same was rejected by order dated 25.1.2016. The relevant part of the order is quoted below for ready reference.

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(j) The said order dated 25.1.2016 is impugned in the present petition for writ. The relevant prayers made in the petition are as follows:

(I)a writ, order or direction in the nature of certiorari to quash the impugned order dated 22.1.2016 passed by respondent no 2.

(II)a writ, order or direction in the nature of mandamus commanding and directing the respondent no 2 to promote the Petitioner on the post of Agan Bari Karyakatri at any appropriate centre under 25% quota as provided in the government order dated 6.12.2006.

(III)a writ, order or direction in the nature of mandamus commanding and directing the respondent no 2 to promote the petitioner as Agan Bari Karyakatri in village Tamauli, Block Palhani, District Azamgarh in place of Respondent no 5.

3. The relevant Government Orders which prescribed procedure for selection of posts in question are as follows;

(I) Government order dated 16.12.2003. This order provides selection procedure for appointment of Anganbari Karyakatri/Sahayika. Minimum educational qualification for appointment of Anganbari Karyakatri was High School, and for Anganbari Sahayika was class V pass. However for Anganbari Sahayika, preference would be given to women who are class VIII pass. This GO further provides that priority would be given amongst the women possessing minimum qualification, firstly to widow women, secondly to divorced women, thirdly to women living below poverty line,fourthly to woman living above poverty line. However, all should be resident of village where appointment has to be made. The GO also provides procedure to determine merit and about constitution of selection committee.

(ii) Government order dated 6.12.2006: This GO provides that 25 percent of post of Anganbari Karyakatri would be reserved for such Sahayikayon who have completed five years of satisfactory service and who possessed required minimum educational qualification of High School as prescribed for Anganbari Karya Karti and they have not completed age of 50 years.

(iii) Government Order dated 4.9.2012: This GO has been issued in supersession of all earlier GOs issued on the subject. According to this GO, preference should be given firstly amongst the Sahayika already working and having minimum educational qualification (High School) and having completed five years as Sahayika; secondly, women from BPL, thirdly widow women belonging to BPL, fourthly divorced women belonging to BPL.

The GO further provides that in case there are more than one candidate in one criteria, then a merit list has to be prepared as prescribed in clause 5 of the said GO.

Clause 6 of the GO provides constitution of Selection Committee.

4. A counter affidavit has been filed on behalf of respondent nos 3 and 4 (District Programming Officer District Azamgarh and Bal Vikas Pariyojna Adhikari Tehsil Dodar, Block Palhari, District Azamgarh. Relevant paragraphs of the counter affidavit are quoted below for ready reference.

"4. That in reply to the contents of paragraph No.3 of the writ petition, it is stated that the petitioner is not eligible to be promoted on the post of Anganbari Karyakatri in view of the government order dated 6.12.2006. Further, it is stated, the petitioner is not eligible for promotion due to the reason as she is above from the BPL (Below Poverty Line )category, therefore, the selection of Smt Sangeeta Yadav has been done because she is in the category of below poverty line.

X x x x x x x x x

8.That the contents of paragraph No 16,17 & 18 of the writ petition are wrong hence denied. It is stated that in compliance of the order dated 8.12.05 passed in writ petition no 21050/2014 and in view of the government order dated 16.12.2003 & 06.12.06, the petitioner and the respondent no 2 were given opportunity of hearing and as such after hearing both the parties and perusing the records the respondent no 2 has passed the order dated 22.01.16 which is in accordance with rules and therefore suffers no illegality or perversity.

9. That it is further submitted that the respondent no 5 belongs to the category of B.P.L and also she qualifies all the requirements and provisions laid down in the said government orders, as such her selection has been made on the post of Anganbari Karyakatri. Therefore, in this regard, the order passed by respondent no 2 in accordance with the provisions of the government orders and as such is in accordance with law and suffers no illegality.

10. That the contents of paragraph No 19 of the writ petition are wrong hence denied. It is stated that the petitioner has demanded promotion on the basis of seniority in view of the government order dated 06.12.06. However, it is relevant to mention that in the said government order no provision has been mentioned for giving preference of seniority for promotion. It is relevant to mention that vide order dated 06.12.06 the provision have been laid down in regard to the selection of promotion of Aganwadi Sahaiyaka to Anganbari Karyakatri in the concerned Bal Vikas Pariyojana programme. It is further stated that in accordance with the provision of the said government order, the government order dated 06.12.13 has been amended. Therefore in view of the both the government order there is no provision laid down for giving preference in regard to seniority for promotion of Anganbari Karyakatri.

11.That the contents of paragraph No 20 to 33 of the writ petition are wrong hence denied. It is stated that for the promotion/selection for the post of Anganbari Karyakatri has been laid down in the government order dated 1612.03. it is stated that as per the said provisions preference will be given to those candidate for selection on the post of Anganbari Karyakatri who belong in the category of B.P.L. In this regard the candidates have to avail the Income Certificate from the concerned Tehsildar. It is relevant to menion here that the petitioner was given an income certificate of Rs 30000/- as annual income, however, the respondent no 5 was issued income certificate of Rs 19800/- as annual income, both the candidate had annexed there income certificate along with their applications which were submitted in the office for selection of Anganbari Karyakatri. However after perusing the record, the respondent no 2 had selected respondent no 5 who was found eligible for the post of Anganbari Karyakatri, and as such her selection was made. Therefore, it is submitted that order dated 25.1.2016 has been passed in accordance with the government orders and as such suffers no illegality."

5. Respondent No 5 also filed counter affidavit whereof paras 13 and 14 being relevant are quoted below.

"13. That in fact the State Govt. superseding all the Govt. orders issued in regard to the appointment of Agan Bari Karykartri and Agan Bari Sahayikaa Govt. order was issued on 4.9.2012 giving the guidelines to appointment of Agan Bari Karyktri and Agan Bari Sahayika this very important fact had not been brought in notice of Hon'ble Court at the passing of order dated 8.12.2015. A Photostat copy of the order dated 4.9.2012 issued by the State Govt in regard to appointment of Agan Bari Sahayika and Agan Bari Karyaktri is being filed herewith and marked as Annexure No counter affidavit 7 to this affidavit.

14. That the District Magistrate passed the order impugned dated 25.1.2016 whereby dismissed the representation filed by petitioner taking into account the facts that respondent no 5 is possessed of the certificate of B.P.L alongwith other qualifications and so far regard to the petitioner is concerned she is not possessed of the certificate of B.P.L issued by Tehsildar therefore the order impugned is correct with all respect and liable to be affirmed by this Hon'ble Court by dismissing the instant writ petition."

6. The petitioner has filed Rejoinder affidavit to the counter affidavit filed on behalf of respondents 3 and 4. Paras 4 and 9 of the rejoinder affidavit being relevant are quoted below.

"4. That the contents of paragraph no 4 of the counter affidavit is misconceived and vehemently denied. It is stated that the petitioner is eligible the post of Aganbari Karyaktri in view of the Government Order dated 061.12.2006, in which it has been specifically mentioned 25% vacant seat of Anganbari Karyakatri was to be filled lp among the existing Sahayika, it is relevant to mention here respondent no 2 has passed that the ilelgal order and wrong observation of the provision of the promotion of Sahayika on the post of Anganbari Karyakatri on the basis of Below Poverty Line (BPL) and Annual Income Certificate present before concerned Authority during selection period of Sahayika. Therefore, petitioner has been illegally deprived by the state respondent for promotion on the post of Anganbari Karyakatri in term of the government Order dated 06.12.2006. Petitioner is also belong BPL category."

x x x x x x x x x

9. That the contents of paragraph no 10 of the counter affidavit is misleading and hence denied. It is stated that State respondent no 2 wrongly applied the selection process provision of Government Order dated 16.12.2003 in case of petitioner. It is relevant to mention here petition was appointed in the year 2003 as Anganbari Sahayika at Anganbari Centre Tamauli in the same centre the respondent no 5 was also appointed as Sahayika in the year 2006, petitioner being eligible and senior to respondent no 5 she was not promoted by the respondent authority due to wrong observation of Government Order dated 6.12.2006, if provision of Government Order silent regard to seniority concerned respondent apply General Rule according to law."

7. Learned counsel for the petitioner submitted that-

(I) It is not in dispute that the petitioner is senior to Respondent no 5 as well as more qualified than respondent no.5.

(II) The appointment of respondent no 5 was made on the post of Anganbari Karyakatri vide order dated 31.1.2014 which was purportedly passed in pursuance of order dated 8.10.2013 passed by this Court in Writ Petition No 29608 of 2011 is an illegal order as no such direction was given by the court as the order dated 8.10.2013 had directed only to "reconsider the available vacancies and also entitlement of petitioner for promotion".

(III) The order dated 8.12.2015 passed by this Court in unambiguous words has directed the respondent no 3 that "It is further directed that if the petitioner is found entitled for promotion/appointment on the post of Anganbari Karykatri, then she shall be appointed in place of respondent no 5. The order of promotion passed by State respondent in favour of respondent no 5 shall abide by the decision to be taken by respondent no 2 pursuant to the directions aforementioned." However the respondent no 2 has not followed the aforementioned direction and decided the representation on the basis of self determined priority. The respondent no 2 has not determined whether the petitioner is entitled for promotion and as such the order passed by the respondent is not just and proper, and therefore the impugned order is liable to be set aside.

(IV) Both the petitioner and respondent are working as Sahayika, and as such no priority can be fixed amongst them and only criteria is to check essential minimum qualification and five years experience and therefore, seniority is the only criteria left for determination.

(V) Petitioner also belonged to BPL category and in support of his submission he drew attention to a certificate issued by Village Development officer to the effect that BPL Card No 124156 has been lost.

8. Per contra, learned counsel for the respondent no 5 has contended that-

(I) Appointment of respondent on the post of Anganbari Karyakatri dated 31.1.2014 has not been challenged by the petitioner and therefore, no mandamus can be issued for removal of the respondent no 5 from the said post.

(ii) Respondent no 5 belonged to BPL category and as per the GOs aforesaid, she is entitled for the preference ahead of petitioner who is not from BPL category. Rather she is from APL category. There is no reference in the GO dated 6.12.2003 that seniority is one of the criteria for preference in the appointment of Anganadi Karyakatri.

(iii) Presently GO dated 4.9.2012 is in force for appointment on the post of Anganbari Karyakatri. However, the same has not been brought to the notice of this Court while hearing the earlier writ petition.

9. The learned counsel for the respondents 3 and 4 has submitted that (a) petitioner is not eligible for appointment on the post of Anganbari Karyakatri as she is not in BPL category. Rather she is from APL category and (b) respondent no. 5, who belongs to BPL category has rightly been appointed as Anganbari Karyakatri and GO dated 6.12.2006 and 6.12.2003 has rightly been followed.

10. I have considered the submissions made across the bar and perused the record. My consideration is as follows-

(a) There is no dispute that petitioner was appointed as Anganbari Sahyika in the year 2003 and respondent no 5 in the year 2006, therefore, the petitioner is senior to respondent no 5. Both possess minimum qualification required for the post of Anganbari Karyakatri (for 25% reserved post for Anganbari Sahayaika) which is High School and have five years of satisfactory service as well as both have not completed 50 years of age.

(c ) No procedure has been prescribed by Government order dated 16.12.2003 for appointment of Anganbari Karyakatri among the already working Anganbari Sahayika. This G.O only provides minimum qualification and procedure for preferences while appointing Anganbari Karyakatri and Anganbari Sahayika.

(d) Government order dated 6.12.2006 for the first time provided 25% reservation for Anganbari Sahayika out of the posts of Anganbari Karyakatri with minimum qualification of High School, five years satisfactory service and Anganbari Sahayika has not completed 50 years of age. Seniority is not made a criteria for such selection among the Anganbari Sahayika. The GO dated 6.12.2006 does not refer consideration of preference amongst the Anganbari Sahayika on ground of being divorced women, widow women, women belonging to BPL category, Women belonging to APL category etc.

(e) Government Order dated 4.9.2012 has been issued in supersession of earlier issued GOs on the subject. The advertisement for the post of Anganbari Karyakatri was issued on 1.11.2012. Therefore appointment made in pursuance of said advertisement shall be governed by GO dated 9.9.2012 only.

(f) According to GO dated 4.9.2012 for appointment on the post of Anganbari Karyakatri, first, preference should be given to Sahayika who are eligible for consideration being High School pass and completed five years of satisfactory service as Sahayika and are working in Centre situated in the same Gaon Sabha in the case of rural areas and in the same ward in the case of urban area. The GO dated 4.9.2012 has not prescribed length of service as a criteria of consideration for selection, which means that for the purpose of selection for the post of Anganbari Karyakatri, no preference could be given to petitioner only on the ground she had worked more than respondent no 5 as Anganbari Sahayika.

(g) Clause 5 of the GO dated 4.9.2012 provides as under:

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Petitioner and respondent belonged to one category being High School pass, five years of satisfactory service as Angan Bari Sahayika and not completed 50 years of age. Therefore, merit list as per procedure prescribed above ought to have been prepared and appointment should have been made according to said merit list. However, in the present case, no such exercise has been undertaken.

(h). The GO dated 4.9.2012 admittedly was not placed before the coordinate Bench and therefore, the Bench has not taken note of it, while disposing of the writ petition No 21050 of 2014 by order dated 8.12.2015 and the direction was made directing the disposal of the representation in the light of GO dated 6.12.2006. The respondent State should have been more circumspect to present correct facts before the Court.

(I) The impugned order dated 25.1.2006 passed by Collector, Azamgarh has not considered the GO dated 4.9.2012 in his order. Secondly though the impugned order rightly noted that there is no preference based on length of experience, however, wrongly applied the preference criteria as prescribed in GO dated 16.12.2003. The Collector, Azamgarh has also failed to notice procedure of preparing merit list as provided in clause (5) (da) of the said G.O. that in a case where there are more than one eligible candidate in one category as in the present matter as both the petitioner and respondent no 5 had equal eligibility criteria for 25% reserved seats for consideration for the post of Anganbari Karyakatri from Anganbari Sahayika, a merit list should be prepared according to procedure prescribed therein. Therefore, impugned order is liable to be quashed.

(j) It is settled principle of law that if something is required to be done in a particular manner, it should be done in that manner or not at all. Therefore, the impugned order is not sustainable even in view of GO dated 612.2003 and 6.12.2006.

10. In view of the above mentioned consideration, the present petition for writ is liable to be allowed in following terms.

(1) The impugned order dated 25.1.2016 passed by Collector Azamgarh is set aside.

(2) The respondents 1 to 4 are directed to prepare merit list in terms of Government order dated 4.9.2012 and give appointment as per the merit list so prepared amongst the petitioner and the respondent no 5 within a period of four weeks from the date, a certified copy of the order is presented before them.

(3) The appointment of respondent no 5 on the post of Anganbari Karyakatri will be subject to the out come of the direction no 2.

11. The writ petition aforesaid is allowed and decided in terms of the above directions.

Order Date :-15.5.2019

MH