IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5244 of 2010 1. KUMKUM KUMARI W/O RAJEEV KUMAR SINGH R/O VILL.- DAYALPUR, P.S.- RAJA PAKAR, DISTT.- VAISHALI Versus 1. THE STATE OF BIHAR 2. DIRECTOR, SOCIAL WELFARE, WELFARE DEPARTMENT INDIRA BHAWAN, 2ND FLOOR, RAM CHARITRA PATH, PATNA-1 3. DIVISIONAL COMMISSIONER TIRHUT DIVISION, MUZAFFARPUR 4. DISTRICT MAGISTRATE, VAISHALI AT HAJIPUR 5. DISTRICT WELFARE OFFICER, VAISHALI AT HAJIPUR 6. CHILD DEVELOPMENT PROJECT OFFICER, VAISHALI AT HAJIPUR 7. MUKHIYA, GRAM PANCHAYAT RAJ DAYALPUR, DISTT.- VAISHALI 8. PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ DAYALPUR, DISTT.- VAISHALI 9. BIBHA KUMARI W/O ABHAY KUMAR SINGH R/O VILL.- DAYALPUR, P.O.- DAYALPUR, DISTT.- VAISHALI ----------- For the Petitioner :- Mr. Sunil Kumar Mandal, S.C. 15 For the State:- Mr. Bipin Kumar, Adv. ------------ 2. 25.11.2010 Heard learned counsel for the petitioner and the State. The petitioner was an applicant for the post of Aganwari Sewika. Private respondent no. 9, came to be selected in preference to the petitioner. The petitioner filed Appeal No. 5 of 2007-08, before the District Magistrate. It was allowed on 08.3.2008. Aggrieved by the same, respondent no. 9 preferred Miscellaneous (Service) Appeal No. 01 of 2009, before the Commissioner who by his order dated 5.9.2009 reversed the order of the District Magistrate. Counsel for the petitioner submits that the Centre for which appointment was to be made was not 2 specified in the advertisement. Therefore, the petitioner could not fill up certain columns. The report in this regard called for by the District Magistrate from the C.D.P.O. never came to be submitted. The claim of the petitioner was considered for Ward Nos. 13 and 14 which was 4 K.M. away. The petitioner had more marks than the private respondent and therefore the denial of appointment to her was wrong. Both the petitioner and the private respondent belonged to the same caste and ward. Counsel for the petitioner fairly acknowledges that the advertisement has not been brought on record. He further acknowledges that the recital in the order of the District Magistrate that his application was incomplete in certain aspects is factually correct. It is further acknowledged that the petitioner is not in a position to demonstrate that the application of private respondent no. 9, suffers from similar deficiencies as that of the petitioner and was nonetheless considered. This assumes importance in light of the findings of Commissioner repelling the arguments of the petitioner that the sine qua non for advertisement and selection as Aganwari Sewika was the first identification of the beneficiary area to be specified in the advertisement, only Whereafter selection is made. Since the selection was an official act under rules and guidelines, this Court unhesitantly holds that there shall be a 3 presumption under Section 114(e) of the Indian Evidence Act that all procedures were duly followed as has been held by the Commissioner. The presumption was rebuttable. It was for the petitioner to rebut the presumption. She has been unable to do so. The C.D.P.O. has submitted a report also and which has been considered by the District Magistrate. Once the petitioner is unable to satisfy the Court that she was an applicant in accordance with law, meaning thereby that her application was complete in all respects, the question of considering any allegations at her behest does not arise as she has no locus standi in the matter even if her application was wrongly considered as she alleges. In absence of an application submitted in accordance with law, there never was an application by her. The petitioner does not stand at par with an applicant whose application was complete in all respects. There lies the fundamental distinction between the petitioner and respondent no. 9. Aganwari Sewikas are not Government servants. They are agents of the Government appointed for dissemination of a Welfare scheme. Their appointments are not regulated by any statutory provisions but by guidelines. Though these guidelines do not have statutory force nonetheless it has been held that certain rudimentary principles of natural justice only shall apply as held by this 4 Court in 2004(2) PLJR 833 ( Smt.Sajjan Devi & Ors. Vs. State of Bihar & Ors.) If the relationship between the Government and the petitioner is that of a Principal and agent, she cannot claim parity in treatment even at the stage of selection with that of Government servants. Since the Principal happens to be the Government, all that this Court will examine is whether there has been fairness in procedure and if the petitioner had a grievance, have her grievances been considered or not? Violation of procedures shall undoubtedly invite the attention of the Court even to the appointment of the Agent. If procedures have not been followed and the decision/action suffers from absurdity, illegality or illogical, the Court may again interfere. In other words, there shall be a limit and a restriction to interference by the Court in exercise of powers under Article 226 with appointment of Aganwari Sewika. The scrutiny which the Court shall make with regard to appointment of Government servants shall not be the same standard of scrutiny by which the Court shall examine the appointment of an Aganwari Sewika, except to the extent indicated above. In the case of Smt. Sajjan Devi (Supra) a Division Bench of this Court has held at Paragraph 12 and 13 as follows:- “12. The Scheme has been made to provide help to the poor and downtrodden 5 persons covered by the Scheme as stated above. Engagement is made only by holding an interview and no payment of salary is being made nor the appointment is being made against any post in the Government service. Honorarium is paid for performing the duties for a particular period. In case, their services are not found satisfactory, they can be removed from the post of Aganbari Sewika. Term of appointment clearly shows that they are not engaged in Government service nor are they holding any post in the Government service, having umbrella of protection under Article 311 of the Constitution of India. In case, it is found that they are not performing duties, for which they were engaged, then in terms of the engagement letter they can be removed. They cannot claim initiation of a regular departmental enquiry prior to their disengagement. 13. Thus, the post of Aganbari Sewika is not a post in the Government service and as such the private respondents cannot claim protection under Article 311 of the Constitution of India.” Rejecting the contention that Aganwari workers held civil posts the Supreme Court in, (2007) 11 SCC 681 (State of Karnataka v. Ameerbi) has held as follows:- “13. The posts of anganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and anganwadi workers but it is another thing to say that they are holders of civil post. 20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Article 14 and 16 of the Constitution of India. No process of selection 6 for the purpose of their appointment within the constitutional scheme exists. We do not think that the said decision has any application in the instant case. 29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment……….” In the present case, the petitioner questioned her non- selection before the District Magistrate where she was given due opportunity. There is no grievance on behalf of the petitioner that the recitals in the order of the District Magistrate that her application was defective was incorrect. The petitioner was duly heard before the Commissioner also. The petitioner does not question the findings of the Commissioner affirming that part of the finding of the District Magistrate that the petitioner’s application was incomplete. The petitioner has been unable to demonstrate before this Court that the application of respondent no. 9, suffered from any vice or was incomplete unlike that the petitioner. If the application of respondent no. 9 was correct in all respects and the petitioner was never an applicant in accordance with law when she submitted an incomplete application, issues vis-à-vis the petitioner and private respondent loose their relevance thereafter. The Locus Standi of one like the petitioner, either a non applicant or alternatively a rejected candidate to 7 question the appointment of the respondent has been considered. In (2007) 8 SCC 644 (Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corpn.) holding at Paragraph16 as under:- “16. As noted hereinearlier, Respondents 2 and 3 who had filed the writ petition before the High Court, challenging the appointment of the appellant were themselves unsuccessful in the examination, even through they claimed that they had passed the written examination but failed in the interview. Since the names of Respondents 2 and 3, who were the writ petitioners before the High Court, did not figure in the merit list, in our view, it was not open to them to challenge the said selection list and the appointment of the appellant before the High Court.” The Court, therefore, is satisfied in the nature of the relationship of Principal and Agent, the procedures followed, the discussion in the impugned order, that there is no occasion for the Court to make any further enquiry and interfere any further on issue of facts with regard to appointment of a Principal and Agent. The writ application stands dismissed. P. Kumar ( Navin Sinha, J.)