Smt. Meera Devi vs State Of ...
2023 Latest Caselaw 5348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 

 
Case :- SPECIAL APPEAL No. - 293 of 2020
 

 
Appellant :- Smt. Meera Devi
 
Respondent :- State Of U.P.Throu.Prin.Secy.Mahila Evam Bal Vikas Lko.And Ors
 
Counsel for Appellant :- Shrawan Kumar Verma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri S.K. Verma, learned counsel for the appellant and learned State Counsel representing the State-respondents.

2. The proceedings of this Special Appeal filed under Chapter VIII Rule 5 of the Rules of the Court have been instituted by the appellant-petitioner questioning the validity of the order dated 07.10.2020, passed by the learned Single Judge in Writ Petition No.6798(SS) of 2019 which has been dismissed by observing that there is no illegality in the order dated 10.08.2018 which was challenged by the appellant-petitioner in the said writ petition.

3. We may note that by means of the order dated 10.08.2018, which was challenged by the appellant-petitioner before the learned Single Judge, her claim for counting services rendered by her from. 08.09.1987 till 17.01.2008 on the post of Anganwari Worker for the purposes of promotion to the post of Mukhya Sevika has not been acceded to.

4. The question, thus, which falls for our consideration in this Special Appeal is as to whether services rendered by the appellant-petitioner on the post of Anganwari Worker from 08.09.1987 to 17.01.2008 are to be reckoned for the purposes of granting her promotion to the post of Mukhya Sevika in terms of Service Rules know as U.P. Bal Vikas Evam Pushtahar (Subordinate) Service Rules, 1998 (herein after referred to as ''Service Rules, 1998').

5. Undisputed facts of the case are that the appellant-petitioner was appointed on the post of Anganwari Worker at Child Development Project, Paniyara, District Gorakhpur (at present district Maharajganj). The State Government issued a Government Order on 12.04.2007 whereby it was provided that in case any vacancy on the post of Anganwari Worker is available under the Nyaya Panchayat where Anganwari Worker lives after her marriage, such Anganwari Worker shall be adjusted against the vacancy falling in the Nyaya Panchayat where she goes after marriage.

6. The appellant-petitioner made an application seeking benefit of the said Government Order dated 12.04.2007 on the ground that she was married at Lucknow and accordingly she should be adjusted against the vacancy available at Lucknow. When the prayer made by the appellant-petitioner was not being paid any heed to, she instituted Writ Petition No.6592(SS) of 2007 which was finally disposed of by this Court by means of an order dated 11.10.2007 directing the authority concerned to consider the case of the appellant-petitioner for adjustment at Lucknow in the light of the Government Order dated 12.04.2007 before any fresh appointment is made on the post of Anganwari Worker at Lucknow.

7. The Law Officer in the Directorate of Bal Vikas Sewa Evam Pushtahar, U.P. Lucknow directed the District Programme Officer, Lucknow/Maharajganj vide his letter dated 08.11.2007 to ensure compliance of the order dated 11.10.2007, passed by this Court. However, the order dated 11.10.2007, passed by this Court remained uncomplied with.

8. In the meantime, the appellant-petitioner made an application for her appointment to the post of Anganwari Worker in a vacancy available at Child Welfare Project, Aliganj, Lucknow. The appellant-petitioner pursuant to her application was selected and by means of order dated 19.12.2007 she was appointed as Anganwari Worker in the office of Child Development Project Officer, Aliganj, Lucknow.

9. It is relevant to note that before the appellant-petitioner was appointed at Lucknow, vide order dated 19.12.2007, this Court by means of the order dated 11.10.2007 had already directed the competent authority to take decision in respect of her claim for absorption or adjustment at Lucknow in terms of the Government Order dated 12.04.2007, however, despite sufficient time elapsed, the said order was not complied with. It is also to be noticed that for ensuring compliance of the order dated 11.10.2007, the Law Officer had already written a letter on 08.11.2007 to the District Programme Officer, Lucknow/Maharajganj and thereafter again a letter was issued for ensuring compliance of the said order passed by this Court by the Law Officer in the Directorate of Bal Vikas Sewa Evam Pushtahar on 24.01.2008.

10. Under the compelling circumstances, the appellant-petitioner is said to have submitted her resignation on 17.01.2007 from the post at Maharajganj and joined at Lucknow on 18.01.2008.

11. The appointment to the post of Mukhya Sevika is governed by the Service Rules, 1998, according to which, 50% posts of Mukhya Sevikas are to be filled in from amongst Anganwari Workers who are having High School pass or any equivalent qualification to their credit. As per Rules such High School passed Anganwari Workers are to be considered for promotion to the posts of Mukhya Sevikas who have completed 10 years of continuous service on the first day of recruitment year and have not attained the age of 45 years. Service Rules, 1998 also provides that selection for promotion of Anganwari Worker to the post of Mukhya Sevika shall be conducted by a Selection Committee and the Selection Committee shall prepare a merit list of the eligible candidates by awarding 10 marks for 10 years eligibility service and thereafter the candidate concerned has to be given 1 mark for each completed year of service subsequent to completion of 10 years. Rules also provide that every such candidate shall be awarded 3 marks for having passed High School or any higher examinations in first division, 2 marks if the candidate has passed said examinations in second division and 1 mark if the candidate has passed the said examinations in third division.

12. Accordingly, in view of the scheme of the Service Rules, 1998 regulating promotion of Anganwari Workers to the posts of Mukhya Sevikas, the length of service rendered by an Anganwari Worker assumes importance as the same plays significant role not only in determining the eligibility but also in determining the merit for the purposes of selection for promotion.

13. Admittedly, the appellant-petitioner had worked ever since her appointment on the post of Anganwari Worker at Gorakhpur (now Maharajganj) from 08.09.1987 till 17.01.2008 whereafter she joined at Lucknow on 18.01.2008. Had her claim for adjustment in terms of the provisions contained in Government Order dated 12.04.2007 and also in compliance of the order dated 11.10.2007, passed by this Court in Writ Petition No.6592 (SS) of 2007 been considered, she would have by now not only been promoted to the post of Mukhya Sevika but would have been given the benefit of her continuation on the post of Anganwari Worker from 08.09.1987 till 17.01.2008 resulting in higher merit position in terms of the provisions contained in Service Rules, 1998 relating to preparation of the merit where marks are to be awarded for each completed year service rendered by an Anganwari Worker for the purposes of her promotion.

14. The appellant-petitioner being aggrieved by non-inclusion of her services rendered by her at Maharajganj for the purposes of promotion to the post of Mukhya Sevika, instituted Writ Petition No.10514(SS) of 2018 which was disposed of by this Court by means of order dated 12.04.2018 directing the authority concerned to consider and pass appropriate order on the representation preferred by the appellant-petitioner, dated 07.03.2018 by reasoned and speaking order. It is in purported compliance of this order dated 12.04.2018 passed by this Court in Writ Petition No.10514(SS) of 2018 that the order dated 10.08.2018 was passed by the Director, Bal Vikas Sewa Evam Pushtahar, U.P., Lucknow which was challenged by the appellant-petitioner in Writ Petition No.6798(SS) of 2019.

15. The Director while rejecting the claim of the appellant-petitioner has admitted all the facts, however, it has been observed by him that had the appellant-petitioner been adjusted in terms of the Government Order dated 12.04.2007, she would have been entitled for the benefit of counting her services rendered by her at Maharajganj from 08.09.1987 till 17.01.2008, however, since the appellant-petitioner has been appointed a fresh at Lucknow by means of appointment order dated 19.12.2007 pursuant to which she submitted her joining on 18.01.2008 and such exigency is not covered by the Government Order dated 12.04.2007, hence her services rendered at Maharajganj cannot be counted for the purpose of considering her claim for promotion to the post of Mukhya Sevika.

16. The aforesaid reasons assigned by the Director while passing the order dated 10.08.2018, in our considered opinion, reflects complete arbitrariness on his part.

17. As already observed above, the facts of the case are not in dispute. The appellant-petitioner before her appointment at Lucknow had been praying for being given the benefit of Government Order dated 12.04.2007 and had been seeking her adjustment at Lucknow for the reason that after her marriage, she had shifted to Lucknow where the vacancy was available. Had the adjustment of the appellant-petitioner at Lucknow been ordered within a reasonable time, she would have got the benefit of the services rendered by her at Maharajganj for the purposes of her promotion to the post of Mukhya Sevika. It is also worthwhile to notice that for the purpose of her adjustment at Lucknow after her marriage, the appellant-petitioner had instituted Writ Petition No.6592(SS) of 2007 and though this Court had issued direction to the competent authority on 11.10.2007 for considering her claim before she submitted her joining on 18.01.2008 at Lucknow pursuant to her appointment order on 19.12.2007, however, the authorities concerned did not ensure compliance of the said order dated 11.10.2007 instead allowed time to pass creating compelling circumstances for the appellant-petitioner under which she submitted her joining on 18.01.2008 at Lucknow pursuant to the appointment order dated 19.12.2007.

18. We also note that there was no reason for the authority concerned as to why the appellant-petitioner could not have been adjusted at Lucknow as the Government Order dated 12.04.2007 clearly mandates that in case any vacancy at a place where Aaganwari Worker is married is available, she shall be adjusted against such vacancy. Though, she had been claiming her adjustment at Lucknow and the order in this regard had also been passed to consider her case, the State-authorities have completely failed to make available the benefit of the Government Order dated 12.04.2007 to the appellant-petitioner which caused serious prejudice to her.

19. It is altogether a different matter that appellant-petitioner pursuant to her application for appointment at Lucknow was selected and accordingly she was appointed at Lucknow on 19.12.2007. Her claim for adjustment at Lucknow in terms of the Government Order dated 12.04.2007 was pending before she was appointed and accordingly, we are of the opinion that her claim for adjustment ought to have been considered by the respondents prior to her appointment at Lucknow pursuant to the selection in which she had participated.

20. Even otherwise, we do not find any rationale in denying the appellant-petitioner the benefit of counting the services rendered by her at Maharajganj prior to her fresh appointment at Lucknow. She was appointed and continued to serve against the same post on which she has subsequently been appointed at Lucknow. The purpose of grant of benefit of the past services for the purposes of promotion to the next higher post of Mukhya Sevika is to adhere to a particular mode of determination of merit of the candidate where marks are awarded for each year spent in service on the post of Anganwari Worker.

21. We do not see any reason why the services rendered by the appellant-petitioner at Maharajganj are not to be counted for the purposes of promotion to the post of Mukhya Sevika, merely because she has been appointed a fresh at Lucknow. It is the same post for which the experience is to be counted in terms of the provisions contained in the Service Rules,1998. On her appointment at Lucknow, the post of the appellant-petitioner has not changed.

22. For the discussions made above, in our considered opinion, fresh appointment of the appellant-petitioner will not be a factor which should be taken into account by the respondents for the purposes of not reckoning her services rendered at Maharajganj so far as preparation of her merit for promotion to the post of Mukhya Sevika in terms of Service Rules, 1998 is concerned.

23. The right of the appellant-petitioner firstly of being considered for adjustment at Lucknow in terms of the Government Order dated 12.04.2007 and secondly, by not counting her services rendered at Maharajganj for the purposes of preparing her merit position in relation to grant of promotion to the post of Mukhya Sevika, has been denied to her in the most arbitrary, illegal and unsustainable manner by the respondents.

24. When we examine the judgment and order passed by the learned Single Judge, which is under challenge before us in this Special Appeal, what we find is that the arbitrariness on the part of the respondents which has resulted in serious prejudice to the rights of the appellant-petitioner appears to have escaped the attention of the learned Single Judge. Learned Single Judge has, while agreeing with the reasons given by the Director in his order dated 10.08.2008, not taken into consideration the aforesaid relevant aspects of the matter and hence, we do not find ourselves persuaded to be in agreement with the order passed by the learned Single Judge.

25. For the reasons disclosed above, the Special Appeal deserves to be allowed.

26. Resultantly, this Special Appeal is allowed and the order dated 07.10.2020, passed by the learned Single Judge in Writ Petition No. 6798(SS) of 2019 is hereby set aside.

27. Respondents are directed to consider the claim of the appellant-petitioner for promotion to the post of Mukhya Sevika giving her the benefit of her entire services rendered at Maharajganj from 08.09.1987 to 17.01.2008 on the post of Anganwari Worker and while reckoning the merit for the purpose of promotion in terms of the Service Rules, 1998, the said period shall also be counted.

28. The promotion of the appellant-petitioner shall be considered by the respondents and final decision thereon shall be taken within a period of two months from the date of production of certified copy of this order, in the light of the observations made and findings given above in this judgment and order.

29. There will be no order as to costs.

Order Date :- 17.2.2023

Sanjay