CWP 3072/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.3072/2006 Smt. Sunita Devi Saini Versus Director, Mahila & Child Development Jaipur & Ors.. Date of Order ::: 05/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Mahesh Gupta, for petitioner Mr. Pradip Kalwania Addl. Govt. Counsel for respondents-State Mr. NK Singhal, for respondent No.5. Instant petition has been filed with the grievance that despite petitioner being eligible for the post of Aaganwari KaryaKarta, superseding her claim, respondent No.5 (Smt. Kamla Devi) was appointed vide order dt.27/03/06 (Ann.2) in clear violation of Circular dt.15/09/2003 (Ann.R5/7). Petitioner holding qualification of Senior Secondary School Examination submitted her application for the post of Aaganwari Karyakarta in Aaganwari Centre, Garh-Medhia-Ke-Dhani, Village Panchayat-Hingota, Panchayat Samiti-Bandi Kui (district Dausa), while serving as Cook at Mid-day meal Centre in the School of Village Panchayat Hingota; wherefrom she resigned on 15/02/06 and her resignation was accepted vide communication dt.17/02/06. Respondents issued Circular dt.15/09/2003 (Ann.R5/7) notifying Scheme prescribing procedure for selection & termination in respect of posts of Aaganbari Karyakarta & Sahiyaka – as per CWP 3072/06 //2// which, minimum qualification for urban area Aaganbari Karyakarta is 10th Class (Secondary School) passed while for Sahiyka - 8th Class passed and at the same time, for rural area Aaganbari Karyakarta is 10th Class passed but in case of non-availability of 10th Class qualified applicant, 8th Class qualified applicant may be considered with a rider that as and when eligible candidate is available, applicants duly selected with prescribed qualification lower than Secondary School (10th Class) would be terminated from service. Extract of Circular (Ann.R.5/7) reads ad infra: “1- आंगनबाडी कायर्कतार्/सहाियका के िलए चयन की जाने वाली मिहला मामीण क्षेऽ में ः थानीय माम की एवं शहरी क्षेऽो में उसी मोहल् ले/ कालोनी की िनवासी एवं िववािहत होनी चािहए तािक ूशीिक्षत मिहलाओ का साप आउट नहीं हो आंगनबाडी केनि के क्षेऽ से उनके यर की दरी ू 1 िकमी से अिधक नहीं हो उक् त व् यवः था आगामी चयन पर लागू होगी 2- शहरी क्षेऽो में कायर्कतार् की न् यूनतम शैक्षिणक योग् यता 10 वी पास एवं सहाियका की 8 वी पास तथा मामीण क्षेऽो में आंगनबाडी कायर्कतार् की योग् यता यथा सम् भव सैकण् डरी एवं उपलब् ध नहीं होने पर 8 वी पास होनी चािहए सहाियका भी यथा सम् भव 5 वी पास रखी जावे एवं 5 वी पास उपलब् Ú ा नहीं होने पर साक्षर मिहला भी रखी जा सकती है माम सभा Ʈारा चयिनत मिहला के अितǐरक् त उÍ च शैक्षिणक योग् यता की अन् य मिहला उपलब् ध नहीं होने की पूणर् सन् तुिषट उपरान् त ही िशिथलता पर िवचार िकया जावे 5- मिहला के ः थानीय एवं िववािहत होने की शतर् में िकसी भी ूकार की िशिथलता देय नहीं होगी िनधार्ǐरत शैिक्षणक योग् यता की मिहला उपलब् ध नहीं होने पर माम में उपलब् ध अिधकतम शैिक्षणक योग् यता की मिहला का चयन िकया जा सकता है ऐसी मिहला के चयन आदेश में यह ः पं ट उल् लेिखत िकया जावे िक िनधार्ǐरत शैिक्षणक योग् यता की मिहला उपलब् ध होने पर उसको मानदेय सेवा से पथक कर िदया जावेगा इसके ूथम चयन आदेश एक वषर् का होगा एवं समय समय पर अिधकतम एक वषर् के िलए अिभवृिƨ की जा सकेगी " Case set up by petitioner is that despite she submitted application for the post of Aaganbari CWP 3072/06 //3// Karykarta and holding Senior Secondary School Certificate being higher than minimum prescribed qualification of 10th Class, yet respondents arbitrarily selected & appointed respondent No.5 who is holding qualification of 8th Class, as Aaganbari Karyakarta vide order impugned. However, this Court while admitting writ petition, operation of order dt.27/03/06 by which respondent No.5 was appointed, was stayed vide order dt.28/04/06. Counsel for petitioner submits that once petitioner being eligible and available for consideration for the post of Aaganbari Karya Karta, there was no justification for respondents to appoint respondent No.5 who was neither eligible nor could have been considered particularly when eligible applicant like petitioner was available with higher than minimum qualification required; in such circumstances, order of appointment of respondent No.5 is wholly arbitrary and deserves to be set aside. In their reply, respondents-State inter- alia averred that since petitioner was already working as Cook in mid-day meal Centre in the same Panchayat school and has not resigned from the post of Cook; and submitted application directly to the Panchayat Samiti and not through School Head Master, her application was rightly cancelled and since there was no other applicant except respondent No.5, she was appointed as CWP 3072/06 //4// Aaganbari Karya Karta as per decision taken by Village Panchayat in its meeting held on 15/02/06. However, eligibility of petitioner for the post of Aaganbari Karya Karta has not been disputed by respondents-State in their reply. Respondent NO.4 has also filed reply through Secretary Panchayat Samiti, wherein it has been inter-alia averred that petitioner being eligible was considered by Gram Panchayat Hingota on her application sent by village Panchayat for the post of Aaganbari Karyakarta for Aaganbari Centre Garh-Medhia-Ke-Dhani; at the same time, without respondent No.5 being recommended, she was given appointment vide order impugned. Respondent No.5 has also filed a separate reply inter-alia averring that no such application of petitioner was available at the time when consideration was made by Gram Panchayat for making appointment to the post of Aaganbari Karya Karta and when complaint was made, it was investigated through Panchayat Samiti – in course whereof, it was prima facie opined that name of petitioner appeared to have been later on included in the minutes of Gram Sabha and further observed that respondent No.5 being only applicant for Aaganbari Karya Karta, CWP 3072/06 //5// she was rightly selected and appointed vide order impugned. Respondent NO.5 in her reply also averred that the petitioner was in service as Cook at Mid-day Meal Centre on 15/02/06 – certificate whereof has been filed of 17/02/06 (Ann.R5/10). Counsel for respondent further submits that in view judgment of Apex Court in State of Karnataka Vs. Ameerbi (2007(1) SLR 722), instant petition is not maintainable and deserves to be dismissed. I have considered contentions of Counsel for the parties and with their assistance, examined the material on record. As regards objection raised about maintainability of the petition, suffice is to say that judgment of Apex Court in State of Karnataka Vs. Ameerbi (supra) is of no assistance in the facts of instant case for the reason that question arose for consideration before Apex Court was as to whether Aaganbari Workers are holder of civil post under the State being appointed under integrated Child Development Scheme floated & funded by Central Government and applications of such Aaganbari Workers filed before Tribunal under Central Administrative Tribunal Act, 1985 is maintainable or not. Apex Court finally observed that since they did not hold civil post, their applications CWP 3072/06 //6// filed before Tribunal was not maintainable. Whereas in instant case, question for consideration is not as to whether they are holder of civil posts or not; and is that once respondents have introduced Scheme through Circular (Ann.R5/7) laying down procedure for selection and termination for appointment to the post of Aaganbari Karya Karta & Sahiyka, it was expected from the State Government & its functionaries to make appointment in terms of Circular and so also in consonance with Arts.14 & 16 of the Constitution; and if action of State Government appears to be in violation of the Scheme, it can be interfered with by this Court U/Art.226 of the Constitution. Hence preliminary objection about maintainability stands over- ruled. Now adverting to merits, from minutes of Gram Sabha held on 15/02/06 (Ann.R.5/2) clearly shows that there were only two applications submitted for the post of Aaganbari Karya Karta – reference whereof has been made in item No.1 & 2; and since petitioner was working as Cook at Mid- day meals Centre of the Panchayat, name of respondent No.5 was placed at S.No.1 in select list - as a consequence whereof was given appointment vide order dt.27/03/06. It also CWP 3072/06 //7// remained uncontroverted that petitioner held qualification of 12th Class (Senior Secondary School Certificate). In terms of Circular dt.15/09/03 (Ann.R 5/7), as per which selections are to be made, there is no such rider that those who are working elsewhere are not eligible to participate. At the same time, as regards present petitioner, it has been specifically averred that she tendered her resignation on 15/02/06 which was accepted in the same meeting held on 15/02/06 – a copy of which was sent to the School, received by its Head Master on 17/02/06 and from 18/02/06 in her place, one Smt. Safedi Saini was appointed to perform duties of Cook at Mid-day Meals Centre of the Panchayat. Thus, very premise on which respondents rejected candidature of petitioner that she was serving as Cook, is either way not sustainable from the material on record. That apart, as regards reasons assigned by respondents that petitioner has not submitted application through Head Master of the School where she was serving as Cook, suffice it to say that there was no such requirement under Scheme (Ann.R.5/7). From material on record it appears that their application was duly considered by respondents in Gram Sabha held on 15/02/06 and CWP 3072/06 //8// without any reasonable justification, respondent No.5 holding lower than minimum qualification prescribed for the post, which can be relaxed only if applicants of requisite minimum qualification of 10th Class are not available, still was appointed. In the facts of instant case, despite the petitioner with higher qualification than minimum qualification prescribed under Circular (Ann.R.5/7), being available, respondents cannot be said to be justified in depriving her from fair consideration for appointment impugned; and in such circumstances, very appointment made of respondent No.5 superseding right of petitioner vide order impugned is not legally sustainable and deserves to be set aside. Consequently, writ petition succeeds and is hereby allowed. Order dt.27/03/06 (Ann.2) pertaining to appointment of respondent No.5 is hereby quashed and set aside. Respondents are directed to consider the petitioner for appointment to the post of Aaganbari Karya Karta. Respondents shall make compliance within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p8/3072CW06-5Fb-Al.doc