IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.1894 of 2008. Judgment Reserved on:07.09.2010. Date of decision:19.11.2010. Kuki Devi … …Petitioner Versus State of H.P. & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Ajay Sharma, Advocate. For Respondents 1 to 5: Mr.P.K. Sharma, Additional Advocate General. Dev Darshan Sud,J. The petitioner has challenged order dated 5.9.2008, Annexure P-5, passed by the Divisional Commissioner, Kangra at Dharamshala, rejecting appeal against the appointment of respondent No.6, Smt.Sarita Devi as Anganwari worker. 2. The petitioner pleads that she had filed an application for being considered as Anganwari worker in village Nandher. Interviews were held on 27.7.2007, but to her surprise she found that respondent No.6 Smt.Sarita Devi was appointed ignoring the case of the petitioner. The allegation is that the appointment is 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 the manipulation of respondent No.5, Shri S.K. Chaudhary, Child Development Project Officer, Kangra, who is said to be related to respondent No.6 and this manipulation was the result of the connivance of respondent No.5 Shri S.K. Chaudhary with Shri Rajesh Kumar, husband of respondent No.6. It may be noted at this stage that Rajesh Kumar has not been impleaded as party to this petition to answer the charge of manipulation. 3. After rejection of her case, the petitioner represented to respondent No.2, who vide his order dated 28.2.2008 Annexure P-3, dismissed the representation/appeal preferred by the petitioner. The Deputy Commissioner notes in his order that the appointment was challenged on the ground of income of the selected candidate and bias. The Deputy Commissioner holds:- “I have heard the parties and have also perused the record produced by the CDPO relating to the impugned selection. There is nothing on record to suggest that the selection has been unfair. The allegations are general in nature and no evidence has been laid to substantiate these. … … … …” 4. Though the representation has not been filed on the record, the observation of the Deputy Commissioner that nothing has been produced on the record to substantiate the allegation of bias, cannot 3 be brushed aside. The Deputy Commissioner also holds that income as alleged has also not been proved on the record. Accordingly, the representation was rejected. 5. An appeal was preferred against this order to the Divisional Commissioner. In the grounds of appeal, a number of objections were urged besides the generality that the order is against law and is based on conjectures, it was pleaded that the husband of respondent No.6 is working as a Panchayat Sahayak in Gram Panchayat, Nandher and in these circumstances, she could not be appointed as an Anganwari Worker. It was also pleaded that the petitioner has not been given full opportunity of being heard in the case. 6. The Divisional Commissioner has considered the submissions made in some detail. He holds that on the date fixed for hearing of the appeal, the petitioner herein was present with her advocate and the record had been produced by the Child Development Project Officer. He holds that the application of the appellant was for the post of Anganwari Worker, Nandher-1. He holds that there are two Anganwari Centers in Gram Panchayat, Nandher, namely, Anganwari Centre, Baralkad and Anganwari Centre, Nadher-II. For Baralkad Anganwari Centre Smt.Birta wife of Shri Rakesh and Smt.Sarita wife of Rajesh Kumar, respondent No.6, were the only two candidates. The petitioner was neither a candidate nor appeared for interview and thus has no locus standi to challenge the appointment of 4 this respondent. He also holds on the record produced that six candidates including the petitioner had applied for being considered for Anganwari Centre, Nandher-II and was not successful at this interview. On examining the record, he finds that there are two Anganwari Centers. There is no Centre named as Nandher-I, rather there is a Centre called Baralkad. In the totality of the facts and circumstances, the Commissioner finds that for the Anganwari Centre at Nandher-II, Smt.Kuhshmala Devi wife of Shri Gurucharan Dass has been selected and the petitioner has not preferred any appeal against this order etc. He, accordingly dismissed the petition. 7. Learned counsel appearing for the petitioner submits that both the Deputy Commissioner and Divisional Commissioner were entirely wrong in not considering the case of the petitioner in its true perspective. He submits that because the husband of respondent No.6 is employed as Panchayat Sahayak, she is ineligible according to the Scheme. 8. The record was called for by this Court. So far as the allegations of manipulation are concerned, they do not appear to be substantiated. The application of the petitioner is for Gram Panchayat, Nandher-II. In the application on record it is clearly mentioned that it is for Nandher-II. The application Annexure P-2, which is purportedly a copy of the original application filed, mentions that Nandher is 5 one of the places where the post of Anganwari Worker is lying. She is a permanent resident of Nandher and may be considered for this post. Having seen the original application, I cannot persuade myself to hold that this has been interpolated with. 9. There is no interpolation in the interview record of Nandher-II which shows that there were six candidates who appeared in the interview for this Centre and the petitioner was not successful. In the proceedings before the Deputy Commissioner Smt.Kuki Devi wife of Manoj Kumar, Shri Manoj Kumar son of Shri Dharam Chand, Sushila Kumari daughter of Shri Girdhari Lal, Smt.Veeta Devi wife of Rakesh Kumar, Smt.Asha Rani wife of Sushil Kumar and Smt.Asha Rani wife of Shri Satish Kumar, had objected to the appointment of the petitioner. Before the Divisional Commissioner, all the others did not prefer any petition as is apparent from the order. All these persons, namely, Smt.Sushila Kumari daughter of Shri Girdhari Lal, Smt.Asha Rani wife of Sushil Kumar and Smt.Asha Rani wife of Shri Satish Kumar, were candidates for being selected to the Anganwari Centre at Nandher. Smt.Veerta Devi wife of Rakesh Kumar was candidate for Baralkad, where the petitioner had been selected. Infact she and respondent No.6 were the only two candidates who had applied for selection from Baralkad Centre. 6 9. The application of Smt.Sarita Devi shows that she had filed application mentioning Baralkad as a Centre for which she should be considered. 10. From the perusal of the record I do not find any manipulation which would indicate that the petitioner’s case has been excluded. The addition Nandher-II, which has been made, appears to be in the handwriting of the petitioner herself. 11. On the question whether the husband of respondent No.6, who was working as a Panchayat Sahayak, is Government servant, there is no pleading except for the allegation that he has been appointed there. Before coming to this conclusion as to whether it is a statutory post or not, there should have been ample pleadings or some indications to show as to whether the post is actually under the State. Merely because he is Sahayak with the Panchayat would not by itself constitute his holding such a post. Although, in State of Gujarat and another vs. Raman Lal Keshav Lal Soni and Others, AIR 1984 SC 161, Supreme Court holds that Panchayat Service constituted under Section 203 of the Gujarat Panchayats Act is a Civil Service of the State. In the present case this cannot be accepted because of insufficient pleadings. In State of Karnataka and others vs. Ameerbi and Others, (2007)11 SCC 681, the Supreme Court was adjudicating as to whether Anganwari Workers constituted civil post under the State. The Supreme Court held in the negative, by 7 holding that these posts were under a scheme. Considering the entire case law cited before their Lordships and more especially the decision in State of Assam vs. Kanak Chandra Dutta, AIR 1967 SC 884 the Court held:- “19. Applying the said principles of law, it was held that a Mauzadar holds a civil post under the State as : (i) the State has the power and the right to select and appoint him; (ii) he is subordinate to public servant; (iii) he receives remuneration by way of a commission and sometimes a salary; (iv) there exists a relationship of a Master and a Servant; (v) he holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached; (vi) the office falls vacant on the death or removal of the incumbent; (vii) he is a responsible officer exercising delegated powers of Government; (viii) he is appointed revenue officer.” In this case I do not find ample material or pleading to establish this facet. 12. On the second aspect, the record of selection shows that the petitioner’s case, who had applied for the post of Anganwari Worker in Nandher-II, was considered but had not been able to succeed. In the totality of the facts and circumstances of the case, I 8 do not find any merit in this writ petition which is accordingly rejected. November 19, 2010 (Dev Darshan Sud) (aks) Judge.