IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12267 of 2007 JYOTI KUMARI wife of Shyam Narayan Singh, resident of Village Mahamadpur, P.O. Bhujhar, P.S. Haspura, District Aurangabad. Versus 1.THE STATE OF BIHAR. 2.The Director I.C.D.S. Directoriate Social Welfare Department Govt. of Bihar, Patna. 3.The District Magistrate, Aurangabad. 4.The Sub-Divisional Officer, Daudnagar District Aurangabad. 5.The Block Development Officer Haspura District Aurangabad. 6.The Child Development Scheme Officer Haspura, District Aurangabad. 7.The Mukhiya Dhusary Panchayat, Haspura Block, District Aurangabad. 8.The Panchayat Secretary, Dhusar Panchayat Huspura Block, District Aurangabad. 9.Basanti Kumari, wife of Surendra Prasad resident of Village Mohamadpur, P.O. Bhujhar P.S. Haspura, District Aurangabad. ----------- 4 4/8/2009 Heard counsel for the State and Respondent no. 9 No one however appears for the petitioner. Earlier also when this case was listed on 27.7.2009 at the instance of respondent no.9 by way of pressing the interlocutory application for vacating the order of stay dated 24.03.2008 operating against her, the counsel for the petitioner had remained absent but this Court did not vacate the stay order and had directed for its disposal on merit. This Court, however, has perused the earlier order dated 24.3.2008 as also has gone into the entire facts and circumstances of this case from which it is found that the petitioner while assailing the appointment of respondent no.9 and consequently justifying her own appointment on the post of Angan 2 Bari Sevika has basically raised two issues, namely:- (i)The petitioner has secured more marks in matriculation in comparison with respondent no.9 and as such she being more meritorious ought to have been appointed ; (ii)The petitioner was edged out from the zone of consideration on the ground that she was daughter of a dealer in public distribution system which status however did not continue with her on account of her subsequent marriage and severance of her relationship with her father. This Court from the materials on record brought by the respondent-State and respondent no.9 would find that the petitioner had appeared in 1995 annual secondary examination and she had secured 482 marks out of 800 and therefore her percentage will be 60.3%, whereas, respondent no.9 had appeared in 1991 secondary examination and had secured 579 marks out of 900 which would make 64.3%. Thus, first issue raised by the petitioner of she having secured higher marks than respondent no.9 must fail and is accordingly answered against the petitioner. The only other issue raised by the petitioner in her writ application as with regard to her status as daughter-in-law of the village and thereby ceasing to continue as a daughter of a public distribution system dealer after marriage on the first blush seems to be attractive but now when Hindu Succession Act itself has 3 undergone amendment in the year 2005 recognizing the right of a daughter as a coparcener, it will be difficult for this Court to hold that she would be completely severing her relationship from her father. So as to be denied the status of being a daughter of a person beneficiary of a public part. That apart, the government policy to select the person amongst the lowest starta of the society for a sanguine purpose under social welfare scheme undertaken by the government is definitely in favour of the persons whose father or father-in-law or any relative had not been fortunate to get the some privilege. Thus, it is in this backdrop that the government policy as with regard to disqualification clause on the post of Angan Bari Sevika, as introduced by the guidelines issued by the State Government needs to be taken into consideration laying down the terms of eligibility/conditions for engagement as Angan Bari Sevika reads as follows:- ^^d- vkWxuckM+h lsfodk dh U;wure ”S{kf.kd ;ksX;rk izosf”dk mRrh.kZ gS A flQZ vuqlwfpr tkfr@vuqlwfpr tu tkfr ds lsfodkvksa ds fy, U;wure ;ksX;rk izosf”dk vuqrh.kZ gS A [k&vkWxuckM+h lsfodk dh mez]p;u gsrq vkgwr vke lHkk dh o"kZ ds izFke tuojh dks U;wure 18 o"kZ rFkk vf/kdre 40 o"kZ gksxh A Xk&vkWxuckM+h lsfodk ml Vksyk@xkWo@eksgYyk dh LFkk;h fuoklh gksxh] ftl Vksyk@xkWo@eksgYyk esa vkWxuckM+h dsUnz vofLFkr gks] ;kfu mls vkWxuckM+h dsUnz dh lsok {ks= dk fuoklh gksuk vfuok;Z gS A /k&vkWxuckM+h lsfodk Vksyk@xkWo@eksgYyk dh cgq gksxh A dqokWjh yM+fd;ksa dk p;u bl in ds fy, ugha fd;k tk;sxk A lsfodk ,oa 4 mlds ifr dk uke mDr Vksyk@xkWo@eksgYyk ds fy, cus ernkrk lqph esa gksuk pkfg, A ernkrk lwph esa uke ugha gksus dh fLFkfr esa lsfodk ,oa mlds ifr dks mDr Vksyk@xkWo@eksgYyk ds fuoklh ds fy,] pquko vk;ksx dk QksVks izek.k i= v/;u gsrq vkosnu tek djus ds fnu rd vapykf/kdkjh }kjk fuxZr vkoklh; izek.k i= tks N% ekg iwoZ ls igys dk fuxZr u gks] nsuk vfuok;Z gksxk A M+&yksd lsodksa @eqf[k;k] iapk;r lfefr ds lnL;@okMZ lnL;@ ftyk ifj"kn ds lnL; vkfn Lo;a ;k muds fj’rsnkj@ fofHkUu ljdkjh lkefxz;ksa ds fodzsrkvksa @tSls tu forj.k iz.kkyh fodzrk] /kqeUrq fdjklu rsy ds fodzrk vUrjfoHkkxh; Mkd[kkuk dehZ bR;kfn@ ljdkjh ,oa v)Zljdkjh lsodks ds fj’rsnkj ;Fkk] csVh@iRuh@iq=o/kw@ikS=o/kw dk p;u bl in ds fy, ugh fd;k tk;sxk A Pk&lsfodk ,oa lgkf;dk vkil esa fdlh izdkj ls laca/kh@fjLrsnkj ugh gksxsa] ;Fkk lkl&ogq uun&HkkHkh] cgu ,oa Hkrhth vkfn A N&fo/kok mEehnokj @llqjky@ek;dk esa jg jgh gks@ dks vius ifr dk e`R;q izek.k i= rFkk iqufoZokg ugh djus laca/kh eqf[k;k@okMZ lnL; @”gjh {ks=@ dk izek.k i=] vuqyXud d esa tek djuk vfuok;Z gksxk A blh izdkj ifjR;drk mEehnokj dks Hkh vius ifjR;drk gksus dk eqf[k;k@okMZ lnL; @”gjh {ks=@ ls izkIr izek.k i= vuqyXud [k esa tek djuk gksxk A Tk&vkWxuckM+h lsfodk ds :Ik esa p;fur gksus okyh efgyk dks ”kjhfjd ,oa ekufld :Ik ls LoLF; gksuk pkfg;s ,oa mls dksbZ xaHkhj Nwr dh chekjh ugha gksuh pkfg;s A p;fur lsfodk dks ,d lIrkg ds vUnj bl vk”; dk izek.k i=] ljdkjh fpfdRld }kjk fuxZr] izLrqr djuk gksxk] rHkh mUgsa euksu;u i= fuxZr fd;k tk;sxkA (Underlining for emphasis) From the government policy it would be clear that the whole intention was to select the persons having on no earlier 5 connection to be associated directly or indirectly with the privilege as a government servant or receiving favour by the government including being a dealer of public distribution system. This Court would therefore read clause “Anga” eliminating relatives including daughter, wife, daughter-in-law, grand daughter-in-law from the zone of consideration in the light of the sanguine purpose to be achieved for selecting the most suitable daughter-in-law of that particular tola, village or mohalla. Obviously, when the government had put a ban on any sort of relatives of public servant i.e, dealers of public distribution system or even the employees of intra departmental post office or semi government establishment, the object was clear that even if Angan Bari Sevika will be daughter-in-law of the villager she must not be either daughter, wife, daughter-in-law or grand daughter-in-law of the aforementioned specified categories whose relatives would not be appointed as Angan Bari Sevika. It is well settled that the scheme undertaken by the government has to be read/interpreted for the purpose it was evolved and no court is supposed to go into constitutionality unless it is grossly arbitrary or in teeth of Article 14 of the Constitution. This Court would find that the bar created for selection on the post of Angan Bari Sevika by eliminating the relatives of public servant, P.D.S. dealer, post office employees, Government of Semi Government employees is absolutely in keeping with the following object of the Angan Bari Sevika as 6 prescribed in the government policy, namely:- Ekuuh; loksZP; U;k;ky;] ubZ fnYyh }kjk lesfdr cky fodkl lsok ;kstuk ds loZO;kihdj.k djus ds dze esa fcgkj jkT; ds ”s"k iz[kaMksa esa vfrfjDr cky fodkl ifj;kstuk ,oa vkWxuckM+h dsUnzksa dh Lohd`fr ds QyLo:Ik ;kstuk ds lkjHkwr rF;ksa vkSj fn”kk funsZ”ksa dks ewRrZ :i nsus xjhch js[kk ls uhps jgus okyksa esa lcls vf/kd xjhc vkSj detksj oxZ dh efgykvksa] fd”ksjh ckfydkvksa ,oa cPpksa ds iks"k.k ,oa lekftd Lrj dks mij mBkus ds n`f"Vdks.k ls vkWxuckM+h dsUnzksa dh LFkkiuk] mldh lsfodk@lgkf;dkvksa ds p;u esa ikjnf”Zrk ykus ds fy, lesfdr cky fodkl lsok ;kstuk vUrxZr vkWxuckM+h lsfodk@lgkf;dk ds p;u laca/kh ekxZnf”Zdk cukuk vko’;d gks x;k gSA (Underlining for emphasis) The concept of the government therefore in its policy is to uplift the women belonging to most poor and weaker section of the society for which the government has also provided a bar for appointment of certain category of public servants as also the P.D.S. dealers. Such qualification obviously in the light of the object sought to be achieved in the policy as quoted above cannot be termed to be arbitrary or in teeth of Article 14 of the Constitution. Reference in this connection may be made to the judgment of the Apex Court in the case of „Delhi Development Authority & Anr Vs. Joint Action Committee, Allottee of SFS Flats & Ors‟ reported in (2008) 2 SCC 672, wherein the Apex Court as with regard to judicial review of executive order by way of policy decision has held as follows:- “An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or 7 substitute one by the other but it will not be correct to contend that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. Broadly, a policy decision is subject to judicial review on the following grounds:- (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegate has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy.” That being so, once it is an admitted position that the petitioner‟s father is a dealer of public distribution system, she must be held to be disqualified for selection and engagement as Angan Bari Sevika. Both the points therefore having been answered against the petitioner this writ application must fail and is accordingly dismissed and consequently the interim order dated 24.3.2008 would also stand vacated. Abhay Kumar (Mihir Kumar Jha, J.)