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Himachal Pradesh High Court · body

2017 DAILYLAW 259 (HP)

Manju Sharma v. State of Himachal Pradesh

2017-03-29

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following reliefs:- “1. the impugned orders/notification dated 5-11-2006, 10-6-2008 and 9-7-2010 may kindly be quashed and set aside. 2. the respondents no. 1 to 5 be directed to entertain and consider the application of the petitioner for the post of AWW at village Bathmana on the basis of old guidelines of Anganwadi workers and helpers prevailing at the time of first eligibility of the petitioner and fresh post be advertised against the vacancy of AWW at AWC, Bathmana inviting applications from all the eligible candidates of village Bathmana on the criteria of old rules under the ICDS Scheme so that the rights of all others who did not approach the court may also be not affected adversely. 3. the respondents be directed to produce the entire record of the case in the Honorable High Court. 4. the respondent no. 6 Smt. Geeta devi be directed to join back at AWC, Jabri in the facts and circumstances of the case. 5. any other relief which this learned court deems fit and proper in the facts of the case may also be granted in favour of the petitioner and the petition may kindly be accepted alongwith costs. 2. Case of the petitioner is that she is a resident of village Bathmana, Tehsil and District Shimla. She is matriculate and has worked as Balwari teacher in Balwari Centre, Bathmana from 01.05.2005 to 25.02.2006. Respondent No. 3 sanctioned an Anganwadi Centre in village Bathmana vide notification dated 25.10.2006 and applications were accordingly invited from the eligible candidates for filling up the said post. As per the petitioner, as she was eligible to apply for the said post of Anganwadi Worker at Anganwadi Centre, Bathmana, she submitted her candidature complete in all respects. However, respondent No. 3 refused to entertain her application and verbally informed that the said post was likely to be filled by way of transfer. It is further the case of the petitioner that with an ulterior motive to give unreasonable benefit to respondent No. 6, respondent No. 3 issued another notification dated 05.11.2006 vide which respondent No. 6 was appointed by way of transfer as Anganwadi Worker at Anganwadi Centre, Bathmana, thus, denying the petitioner and other similarly situated persons opportunity of being appointed to the said post. Further, as per the petitioner, vide notification dated 05.11.2006 addressed to Pradhan, Gram Panchyat, Jabri, the Pradhan was called upon to invite applications for filling up the post of Anganwari Worker at Anganwari Centre, Jabri, which had thereafter fallen vacant on account of respondent No. 6 having been transferred from Jabri to Bathmana, which act of the respondents according to the petitioner was arbitrary and discriminatory. As per the petitioner, she filed Original Application No. 3384/2006 before learned H.P. Administrative Tribunal but the same was dismissed for want of jurisdiction of the Tribunal. It is further the case of the petitioner that she thereafter preferred an appeal under Section 12 of the ICDS Scheme before learned Deputy Commissioner, Shimla. However, the said appeal was rejected by the authority concerned as being time barred. Thereafter, she filed an appeal before learned Divisional Commissioner, Shimla, which was also dismissed on 09.07.2010 on the ground that the authorities were not having any power to condone any delay in filing appeals in Anganwadi matters. It is further the case of the petitioner that respondent No. 6 was earlier also transferred from Anganwadi Centre Bhawana in village Ghanatti to Anganwadi Centre, Jabri, in the year 2001 on account of her marriage and since then respondent No. 6 was working at Jabri till she was arbitrarily transferred to Anganwadi Centre, Bathmana from Jabri vide impugned communication dated 05.11.2006 again on the ground of marriage. As per petitioner, distance between Bathmana and Jabri is just 2 KMs. 3. On above pleadings, the petitioner has filed the present petition challenging the impugned act of respondents of filling up the vacancy of Anganwadi Worker at Anganwadi Centre, Bathmana by transferring respondent No. 6 to the said place from Anganwadi Centre, Jabri. 4. Respondent State has filed reply to the petition, whereas respondent No. 6 has adopted the reply filed by the State. 4. Respondent State has filed reply to the petition, whereas respondent No. 6 has adopted the reply filed by the State. Respondent State vide its reply has justified its act on the ground that the adjustment of respondent No. 6 at Bathmana from Jabri is not an arbitrary act or an act of colourable exercise of powers but she was adjusted from Jabri to Bathmana, where a new Anganwadi Centre stood sanctioned in the year 2006-07 on account of her marriage and the said adjustment was made by the respondents in exercise of powers which are in consonance with the provisions contained in Para-4 of the Terms and Conditions of Services Part-II of guidelines notified by the State on 29.05.2006. On this reasoning, the respondent State has justified its act. Private resident has supported this stand of the State. 5. On 28.12.2016, this Court had directed respondent No. 2 to file his personal affidavit within a period of ten days as to whether Anganwadi Worker can be adjusted at more than one place in lieu of marriage or not as per the guidelines. 6. In the affidavit which has been filed by respondent No. 2, pursuant to the directions issued by this Court on 28.12.2016, the following stand has been taken:- “The Guidelines/Scheme as notified on 29-05-2006, and which is applicable in the present case, do not restrict the number of times which the Anganwadi Workers may be transferred to the concerned Anganwadi Centre on ground of marriage provided matrimonial home of the Anganwadi Worker is the feeding village of the Anganwadi Centre where the Anganwadi Worker is transferred.” 7. Therefore, in this background, now the moot issue which has to be adjudicated upon by this Court is whether clause (4) of the guidelines for the engagement of Anganwadi Workers/Helpers under the ICDS scheme confers upon the respondents power to adjust by way of transfer an Anganwari Worker on her request more than once? 8. Before proceeding further, it is relevant to take note of Clause (4) of the Terms and Conditions of Services of the guidelines, which is reproduced herein below:- “4. Transfer/Adjustment of the Anganwadi Workers/Helpers (a) Under ICDS programme there is no provision of transfer of Anganwadi Workers/ Helpers as these are honorary workers. 8. Before proceeding further, it is relevant to take note of Clause (4) of the Terms and Conditions of Services of the guidelines, which is reproduced herein below:- “4. Transfer/Adjustment of the Anganwadi Workers/Helpers (a) Under ICDS programme there is no provision of transfer of Anganwadi Workers/ Helpers as these are honorary workers. However, in the case of marriage of an Anganwadi Worker or Helper, if at the place of her marriage, vacancy of an Anganwadi Workers or Helper exists she would be transferred or adjusted in that Anganwadi Centre. (b) Request for adjustment/transfer can be made to the Child Development Project Officer on plain papers with certificate of marriage. (c) Child Development Project Officer will be the competent authority to order transfer/ adjustments of Anganwadi Workers/Helpers within the project and outside project but within the District, the District Programme Officer will be the competent authority to do so. Outside district transfers/adjustments will be done with the approval of Director on the recommendation of the Distt. Programme officers of the both distts.” 9. A perusal of Clause (4) of the Terms and Conditions of Services of the guidelines supra, demonstrates that this clause envisages that under the ICDS programme there is no provision of transfer of Anganwadi Workers/Helpers as these are honorary workers. However, it is mentioned therein that in case of marriage of an Anganwadi Workers or Helpers, if at the place of her marriage, vacancy of an Anganwadi Workers or Helpers exists she would be transferred or adjusted in that Anganwadi Centre. 10. Before proceeding further, it is necessary to take note of the fact that as per the eligibility criteria laid down in the Guidelines supra, only such female candidates are eligible to apply for the post of Anganwadi Worker or Helper who either are resident of the village/ward where Anganwadi Centre is located or belong to the feedings villages/ wards of the Anganwadi area. Meaning thereby that no female candidate who is not resident of the village/ward where Anganwadi Centre is located or does not belong to the feeding village/ward of the Anganwadi area, is eligible to be considered for engagement as Anganwadi Workers/Helpers. Meaning thereby that no female candidate who is not resident of the village/ward where Anganwadi Centre is located or does not belong to the feeding village/ward of the Anganwadi area, is eligible to be considered for engagement as Anganwadi Workers/Helpers. Because engagement of Worker/Helper is contingent upon the person so engaged being resident of the village/ward concerned or feeding villages/wards of the Anganwadi area, for this reason in its wisdom it has been provided in the policy by the State that under the ICDS programme there is no provision of transfer of Anganwadi Workers/Helpers. The only exception is that in case of marriage of an Anganwadi Worker or Helper, if at the place of her marriage, vacancy of an Anganwadi Workers or Helpers exists, they would be adjusted or transferred in that Anganwadi Centre. 11. When we come to the facts of the present case, it is obvious that respondent No. 6 was initially engaged as per the said guidelines as Anganwadi Worker at Anganwadi Centre, Bhawana in village Ghanatti. Thereafter, on account of her marriage, in exercise of the powers conferred upon the authority under Clause (4) of the guidelines supra, respondent No. 6 was transferred to Anganwadi Centre, Jabri in the year 2001. When a separate Anganwadi Centre stood sanctioned in the year 2006-07 at Bathmana, respondent No.6 again applied for her adjustment in this Anganwadi Centre and the same was considered and exceeded to by the State. 12. The respondents have justified their act of adjusting respondent No. 6 twice on account of her marriage firstly at Anganwadi Centre, Jabri and thereafter at Anganwadi Centre, Bhatmana, on the ground that initially she was adjusted at Anganwadi Centre, Jabri, on account of her marriage as village Bathmana was feeding village of Anganwari Centre, Jabri and thereafter, she was adjusted at Bathmana itself as a new Anganwadi Centre was sanctioned for the said place itself in the year 2006-07. 13. In my considered view, this act of the respondent authority of adjusting respondent No. 6 by invoking Clause (4) of the guidelines from Jabri to Bathmana is both arbitrary as well as an act of colourable exercise of powers. 13. In my considered view, this act of the respondent authority of adjusting respondent No. 6 by invoking Clause (4) of the guidelines from Jabri to Bathmana is both arbitrary as well as an act of colourable exercise of powers. No doubt, Cause (4) confers upon the authority power to adjustment of the Anganwadi Workers on account of her marriage but this clause does not confer arbitrary powers on the authority to invoke the said clause more than once or again and again in order to adjust/accommodate Anganwadi Worker on account of her marital status. Once the discretionary power of adjustment stood exercised by transferring respondent No. 6 from Bhawana in village Ghanatti to Jabri as per clause (4) on account of marriage of respondent No. 6, it was not open to the respondent authority to have had readjusted her at Bathmana on the pretext that the said adjustment was also as per clause (4) as a new Anganwadi Centre stood open at Bathmana itself. This issue can be looked into from another aspect also, if Bathmana was the place where in fact respondent No. 6 had the right to be adjusted on account of her marriage as per clause (4) of the policy then the only conclusion which can be drawn is this that her initial adjustment at Jabri by the respondent by invoking clause (4) of the guidelines supra, was wrong and not inconformity with the clause of the guidelines. However, without further dwelling on this aspect of the matter, in my considered view, the second adjustment of respondent No. 6 from Jabri to Bathmana is not sustainable in the eyes of law as when the authority had once exercised the discretionary power for adjusting of respondent No. 6 on account of her marriage from Bhawana to Jabri it was not open to invoke Clause (4) again and re-adjust respondent No. 6 from Jabri to another Centre as has been done in the present case. In fact if this is permitted, then it will defeat the very purpose for which this concession was given to a married lady and it will confer unfettered power upon the authority concerned. 14. Accordingly, the impugned act of the respondent authority of transferring/adjusting respondent No. 6 from Anganwadi Centre, Bathmana, is held to be an arbitrary act and an act of colourable exercise of power. 15. 14. Accordingly, the impugned act of the respondent authority of transferring/adjusting respondent No. 6 from Anganwadi Centre, Bathmana, is held to be an arbitrary act and an act of colourable exercise of power. 15. During the course of arguments, it was urged by learned counsel for the respondents that this Court need not to go into the merits of the case as the petitioner had the right to file appeal if she was aggrieved by the policy of respondent No. 6 and she failed to avail this remedy within the period of limitation. In my considered view, this contention of the respondents also deserves to be rejected. This is for the reason that the appeals which are envisaged in the guidelines are on account of party being aggrieved by the engagement of Anganwadi Worker after a process for engagement of such Anganwadi Worker has been initiated by the authority and pursuant to the said process, an engagement has been made. Therefore, right to file an appeal is conferred upon an aggrieved party who is dissatisfied with the engagement of a person engaged as Anganwadi Worker. In my considered view, in the present case, the petitioner in fact was misguided to file appeal both before the Deputy Commissioner as well as Divisional Commissioner under the provisions of the guidelines. This is for the reason that the grievance of the petitioner was not qua engagement of an Anganwadi Worker appointed pursuant to a process undertaken in this regard by the authorities concerned, but her grievance was that a process initiated for engagement of Anganwadi Worker at Bathmana was throttled on account of arbitrary act of the respondent authority i.e. of filling up the vacancy in issue by wrongly transferring respondent No.6 from Anganwadi Centre, Jabri to Anganwadi Centre Bathmana. Therefore, as there is no merit in the contention of the respondents, the same is accordingly rejected. 16. Another objection of the respondent authority is that as the petitioner had not applied for the post, therefore, she had no locus to file and maintain this petition. This objection also has no merit and same thus deserves to be rejected. It is not the case of the respondents that pursuant to the advertisement issued for the engagement of Anganwadi Worker at Anganwadi Centre, Bathmana, the petitioner was not fulfilling the criteria which was contemplated in the guidelines in force at the relevant time. This objection also has no merit and same thus deserves to be rejected. It is not the case of the respondents that pursuant to the advertisement issued for the engagement of Anganwadi Worker at Anganwadi Centre, Bathmana, the petitioner was not fulfilling the criteria which was contemplated in the guidelines in force at the relevant time. Besides, in the present case, applications were invited for engagement of Anganwadi Worker at Anganwadi Centre, Bathmana, vide communication dated 25.10.2006 as per which applications could be submitted by 15.11.2006. It is a matter of record that before 15.11.2006 vide impugned communication dated 05.11.2006 (Annexure P-3) the communication vide which applications were invited for Anganwadi Centre, Bathmana, was withdrawn on the ground that respondent No. 6 stood adjusted at the said Centre and the applications were thereafter invited for Anganwadi Centre, Jabri. Meaning thereby that the petitioner was having her right to have had applied for the said Centre upto 15.11.2006 but the communication inviting applications stood rescind before the last date by which the applications were to be received. In this view of the matter, the contention of the respondents that the petitioner does not has a locus to file and maintain the petition, also stands rejected. 17. During the course of hearing on 24.03.2017, Director, Directorate of Women and Child Development, had made a statement in the Court that as vacancy of Anganwadi Worker at Anganwadi Centre, Jabri, was still available, the Department had no difficulty in re-appointing the private respondent at the said place and Mr. Sanjeev Bhushan, learned Senior Counsel appearing for respondent No. 6, had on instructions submitted that private respondent was not averse to be reverted back to Anganwadi Centre, Jabri but then the respondent authority must ensure that she should not be disturbed from Jabri on account of the pressure of the villagers. 18. Be that as it may, in view of the fact that this Court has come to the conclusion that the act of adjustment of respondent No. 6 from Jabri to Bathmana was an act of arbitrary exercise of power by the respondent authority, communication dated 05.11.2006 (Annexure P-3) vide which earlier communication dated 25.10.2006 was rescinded, is quashed and set aside and the adjustment of respondent No. 6 from Jabri to Bathmana is held to be bad. Respondent No. 6 shall rejoin her duties at Anganwadi Centre, Jabri forthwith and respondent authority shall ensure that respondent No. 6 is permitted to perform her duties in accordance with law at Anganwadi Centre, Jabri. 19. Writ is accordingly allowed. Communication dated 05.11.2006 (Annexure P-3) is quashed and set aside. Orders dated 10.06.2008 (Annexure P-6) and 09.07.2010 (Annexure P-7) are also quashed and set aside having been passed by authorities without jurisdiction. Respondents No. 2 and 3 are directed to forthwith commence the process to fill up the post of Anganwadi Worker in Anganwadi Centre, Bathmana, under the ICDS Project in Mashobra Development Block, District Shimla. It is further directed that the process to fill up the said post shall be initiated by respondents No. 2 and 3 as per the guidelines for the engagement of Anganwadi Workers on honorary basis under the ICDS Scheme run by Social Justice and Empowerment Department as were in force at the time when communication dated 25.10.2006 (Annexure P-1) was issued, by inviting applications from eligible candidates. Keeping in view the fact that the impugned communication was issued on 05.11.2006 rescinding communication dated 25.10.2006 vide which applications were invited for engagement as Anganwadi Worker in Anganwadi Centre, Bathmana. This direction is being passed to do substantive justice to the petitioner because the process which was initiated on 25.10.2006 was rescinded vide communication dated 05.11.2006 and thereafter, guidelines for engagement for Anganwadi Workers have undergone changes. It is further clarified that in case no person is found eligible to be offered the said post under the process so initiated under the old guidelines then the respondents shall be at liberty to fill up the said post by inviting afresh applications as per the existing guidelines. 20. Writ petition is disposed of in the above terms with cost assessed at Rs.5,000/-, which shall be paid to the petitioner by the respondent State with liberty to the State to recover the same from the erring officers/officials. Miscellaneous Applications pending, if any, also stand disposed of.