HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.41 of 2009 Smt. Sakuntala Devi … Appellant Versus State of Uttarakhand & others ...Respondents Mr. Sanjay Bhatt, Advocate for the appellant. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State/respondent nos.1 to 3. Mr. Vinay Kumar, Advocate for respondent no.4. Dated : September 14th 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Hon’ble Barin Ghosh, C.J. (Oral) By the Government Order dated 3rd August, 2007 the manner of selection, amongst others, of Anganwari Workers has been prescribed. In the said order it has been provided that if a person gets first division at class V or class VIII or class X or class XII or graduation or post graduation level, he would be awarded three points, whereas if she obtains second division at those levels she would be awarded two points and if she obtains third division she would be awarded one point. In terms of the policy contained in the order dated 3rd August, 2007 only those living under below poverty line could be selected for appointment as Anganwari Workers. On 30th August, 2007 in addition to those living below poverty line, people belonging to families having an income of less than ` 18,000/- in rural areas and income of less than ` 21,206/- living in urban areas became entitled to 2 be appointed as Anganwari Workers. The petitioner and the private respondent offered themselves to be appointed as Anganwari Worker of a particular centre. They disclosed that both of them have passed class X examination in second division and class XII (Intermediate) examination also in second division. As a result, both of them got four marks each. They, therefore, became equal to each other. In terms of the policy dated 3rd August, 2007, in such circumstances, the person who obtained better marks in those examinations should be selected. At class X level the petitioner obtained 340 marks out of 600 marks, whereas the private respondent obtained 316 marks out of 600 marks. At the same time, in class XII (Intermediate) examination petitioner got 244 marks out of 500 marks and the private respondent got 245 marks out of 500 marks. The petitioner, therefore, got better merit than the private respondent and as such according to the policy of the Government dated 3rd August, 2007 she should have been selected. However, she was not selected and accordingly, she approached this Court by filing a writ petition. The said petition was disposed of by permitting the petitioner to make a representation with a direction upon the District Magistrate to consider and decide the representation in accordance with law. The petitioner accordingly, made a representation and the same was decided against the petitioner on the ground that financially petitioner is better of than the private respondent and also that the petitioner was working as ASHA. The petitioner challenged the said decision by filing a writ petition which has been dismissed by the judgment and order under appeal and hence the 3 petitioner/appellant is before us. The learned judge while rendering the judgment and order under appeal concluded the matter by holding that comparable financial standard is one of the standards prescribed in the Government Order dated 3rd August, 2007. We have not been able to locate the same in the policy contained in the said order, nor the counsel appearing on behalf of the State and private respondent could bring the same to our notice. In such view of the matter the conclusion would be that, in terms of the policy of the Government, once a person is eligible for being considered, because he or his family is financially better of than the other person is no consideration for not selecting him. According to the said policy, if two persons have earned equal marks in their educational qualifications, their respective merits are to be determined on the basis of marks obtained by them in those examinations and the better thus adjudged should be selected. Neither the policy dated 3rd August, 2007, nor the alteration thereof affected on 30th August, 2007 prevents a person, otherwise eligible to be selected, from being selected on the ground that she was working at the relevant time as ASHA. In such view of the matter it was beyond the competence of the District Magistrate to incorporate something in the policy, which is not there, to deny a rightful claim of a person in accordance with the policy. 2. We are, therefore, of the view that while the judgment and order under appeal is not sustainable, the same being contrary to what has been provided in the policy of the 4 government, the order of the District Magistrate impugned in the writ petition is also not sustainable for the same was passed on the ipse dixit on the part of the District Magistrate. Accordingly, the appeal is allowed and the order under appeal is set aside. The writ petition too is allowed and the order of District Magistrate impugned in the writ petition is quashed. We should have dealt with the matter finally at this stage, but we are constrained to refer back the matter to the District Magistrate only in view of the fact that the counsel for the private respondent has urged before us that in terms of the alteration to the policy affected on 30th August, 2007, the petitioner was not entitled to be considered for appointment since she had no document contemplated in the policy to suggest that she belong to a family earning less than ` 18,000/-per annum. 3. The District Magistrate is directed to reconsider the matter, strictly in the light of the policy and not to do something not permissible by the policy, after hearing the petitioner and the private respondent within a period of one month from the date of service of a copy of this order upon him. (V.K.Bist, J.) (Barin Ghosh, C.J.) 14.09.2010 Arti