Trial - Anganbari Worker

Read more

These cases per­tain to the issue regard­ing can­cel­la­tion of appoint­ment of the peti­tion­ers to the post of Angan­wadi Workers/Helpers. In major­ity of the cases, appoint­ments have been can­celled on the ground that the income of the fam­ily of the appointees was much more than the upper limit fixed in the eli­gi­bil­ity cri­te­ria and the cer­tifi­cates of income were not cor­rect. We pro­ceed to deal with this type of cases sep­a­rately in the first part of this order. Rest of the cases involv­ing dif­fer­ent issues are being dealt with in the sec­ond part.

2. It is not in dis­pute that the Angan­wadi Workers/Helpers, in these cases, were appointed on the basis of a valid Income Cer­tifi­cate, issued by a com­pe­tent author­ity, at the rel­e­vant time. But, it appears, owing to dis­pute on the income, the Appel­late Author­ity in these cases, has looked into the mat­ters, has con­ducted an inde­pen­dent inquiry and has come out with a ver­sion that the cal­cu­la­tion of income by the author­ity, who issued the cer­tifi­cate, is not proper. It has also been held by the said Appel­late Author­ity that the income is beyond the limit, pre­scribed for the eli­gi­bil­ity for the appointment.

3. One of the main con­tentions taken by the par­ties is that even assum­ing for argu­ments sake that the com­pu­ta­tion of income was not prop­erly made by the author­ity, who issued the cer­tifi­cate, there is a due process under the law by which such a cer­tifi­cate could have been can­celled. Even now, that cer­tifi­cate of income, issued by the com­pe­tent author­ity, for the pur­pose of appoint­ment, has not been cancelled.

4. Learned Senior Addi­tional Advo­cate Gen­eral sub­mits that the Angan­wadi Workers/Helpers, in these cases, had made an attempt to steal an appoint­ment, based on false cer­tifi­cates of income. Even assum­ing so, the com­pe­tent author­ity should have first taken steps to can­cel such cer­tifi­cates, based on which the appoint­ments were made. So long as the same hav­ing not been done, we find force in the sub­mis­sion made by the learned coun­sel for the peti­tion­ers that there is an irreg­u­lar­ity, if not ille­gal­ity, in the process of can­cel­la­tion of appointment.

5. In case the author­ity is of the view that the income cer­tifi­cate issued to any Angan­wadi Workers/Helpers in these cases, is not based on proper com­pu­ta­tion of income, it will be open to the com­pe­tent author­ity to take steps to can­cel the same. But it is made clear that such can­cel­la­tion shall only be, after afford­ing an oppor­tu­nity for hear­ing to the incum­bent con­cerned. So long as the can­cel­la­tion is not made by the com­pe­tent author­ity in accor­dance with law, and pro­ce­dure for can­cel­la­tion and in case notice is not given to the affected party in the enquiry, the incum­bent con­cerned shall not be deprived of their posts, to which they were appointed, based on the income cer­tifi­cates, they pro­duced at the rel­e­vant time.

6. There will be a direc­tion to the appel­late author­ity in these cases, to take appro­pri­ate steps in the cases where a dis­pute on income is involved, to get the same duly processed by the com­pe­tent author­ity, in the mat­ter of can­cel­la­tion. Nec­es­sary steps in that regard will be taken and action final­ized within a period of four months from the date of pro­duc­tion of this judg­ment to the com­pe­tent author­ity. That com­pe­tent author­ity will also afford an oppor­tu­nity to the affected party to par­tic­i­pate in that pro­ceed­ings. Sub­ject to the out­come of the action thus taken by the com­pe­tent author­ity, on the income cer­tifi­cate already issued to the incum­bent, the appel­late author­ity will take appro­pri­ate action within two months. We also make it clear that in the event of any appoint­ment being can­celled, the appel­late author­ity will also issue nec­es­sary direc­tions for the next per­son from the list, to be appointed, in case a list is avail­able. Need­less to say that until the process, as above said, is com­pleted, the incum­bents now work­ing, will be con­tin­ued. We may make it clear that the inquiry will be on the basis of the Policy/Guidelines as existed at the time of appointment.

7. Com­ing to the other cases, issues involved per­tain to eli­gi­bil­ity con­di­tions other than income. In some cases issue raised is as to the com­pu­ta­tion of income, based on the fam­ily sta­tus. Fam­ily sta­tus is to be decided, based on the cut off date, namely 1.1.2004. The Pari­var Reg­is­ter is the basic and con­clu­sive evi­dence with regard to the fam­ily sta­tus. There­fore, com­pu­ta­tion of income should be on the basis of the mem­bers of the fam­ily, entered in the Pari­var Reg­is­ter, as on 1.1.2004 and not on any other cer­tifi­cate. We find that in some of the cases, for the only rea­son that the fam­ily had not been sep­a­rated as on 1.1.2004, the can­di­dates were dis­qual­i­fied. The sep­a­ra­tion of the fam­ily as on 1.1.2004, is not a pre req­ui­site con­di­tion to make a per­son eli­gi­ble for appoint­ment. The eli­gi­bil­ity cri­te­rion, as appear­ing in the Guide­lines, at 4(e) reads as follows:

“Those belong­ing to a fam­ily which was legally sep­a­rated as a sep­a­rate fam­ily as per pro­ce­dure laid down in the Pan­chay­ati Raj Act and Rules before 1st Jan­u­ary, 2004″ Clause 4(f) also has to be read, in con­junc­tion with clause (e), which reads:

“Those whose annual income does not exceed Rs.8000 per annum, to be certified/countersigned by an offi­cer not below the rank of Tehsildar.”

8. Sep­a­ra­tion of the fam­ily is specif­i­cally men­tioned in clause 4(e), only for the pur­pose of com­pu­ta­tion of income, and if not it will cer­tainly be a patently unrea­son­able pro­vi­sion for mak­ing a per­son eli­gi­ble to apply for the post of Angan­wadi Workers/Helpers. Income is the cri­te­rion and that was sought to be explained as per clause 4(e). Oth­er­wise, for the only rea­son that the fam­ily is not sep­a­rate even if the income is far below Rs.12,000/-, an appli­cant would not be enti­tled to make an appli­ca­tion. That cer­tainly is not the object of the pre­scrip­tion of the cri­te­rion, as extracted above.

9. Another con­tention raised is as to the com­pu­ta­tion of income. Com­pu­ta­tion of income and the fam­ily sta­tus are to be deter­mined as on the date of the appli­ca­tion for appoint­ment. Though, a con­tention is raised that the date of appoint­ment should be the rel­e­vant date, it is now well set­tled propo­si­tion of law that qualification/eligibility, in the mat­ter of appoint­ment, has to be deter­mined as on the last date of appli­ca­tion or the cut off date indi­cated in the adver­tise­ment as per rules, scheme or guide­lines, applic­a­ble in the mat­ter of recruit­ment and not the date of appointment.

10. Another dis­pute per­tains to the feed­ing area. Clause 4(a) of the Guide­lines pro­vides for the same, which reads as follows:

“Res­i­dent of the vil­lage (in case of Rural Area)/ward (in case of Urban Area) where Angan­wadi Cen­tre is located or belongs to the feed­ing villages/wards of the Angan­wadi area.”

11. A con­tention is raised by some of the peti­tion­ers that the feed­ing area has to be under­stood as the sur­vey area. We are afraid the con­tention as per the pol­icy as it stood at the rel­e­vant time can not be accepted. The pol­icy at that time only pre­scribed that the per­son should be the res­i­dent of the village/ward, depend­ing upon the rural or the urban area, as the case may be, where the cen­tre is located. It is suf­fi­cient if the appli­cant belongs to the feed­ing villages/wards of the Angan­wadi area. The eli­gi­bil­ity has to be under­stood as on the date of the appli­ca­tion, in terms of the pol­icy, which ruled the field at the rel­e­vant time. Need­less to say, that in case there is no can­di­date avail­able from the respec­tive feed­ing areas, pre­scribed under clause 4(a), it is open to the author­i­ties to exer­cise its power under Clause 11 of the Pol­icy Guide­lines for appro­pri­ate relaxation.

12. For sep­a­ra­tion from the fam­ily, the rel­e­vant date is 1.1.2004 and it should be reflected in the Pari­var Reg­is­ter that as on that date, the fam­ily stood sep­a­rated in case income is com­puted on the basis of sep­a­rate family.

13. Another ques­tion to be decided is whether the appoint­ments are to be gov­erned by the Pol­icy of 2007 or the Pol­icy noti­fied in 2009. It is now set­tled law that the Pol­icy, which ruled the field at the time of sub­mis­sion of the appli­ca­tion, should be the Pol­icy, that has to be made applic­a­ble for con­sid­er­ing the eli­gi­bil­ity, in terms of income, or in terms of the feed­ing area, or in terms of the fam­ily sta­tus or any other con­di­tion in respect of the vacan­cies avail­able at that time.

14. Yet another con­tention has been raised as to whether the author­ity which decided an appeal, namely the Appel­late Author­ity (Divi­sional Com­mis­sioner), was com­pe­tent to enter­tain a review. It is set­tled law that unless a statu­tory author­ity is con­ferred with the spe­cific power to review, that author­ity can­not enter­tain a review, since that power is to be expressly con­ferred. Such a power is not con­ferred in the guide­lines on the appel­late author­ity. There­fore, it is made clear that the Appel­late Author­ity, under the Guide­lines, does not have any power to enter­tain review.

15. Another con­tention per­tains to the power of del­e­ga­tion of the Appel­late Author­ity. It is now set­tled law that a del­e­gate can­not make sub del­e­ga­tion. The power con­ferred on the del­e­gate is the power, that is con­ferred under the guide­lines. There­fore, the framers of the guide­lines, namely the Gov­ern­ment, is com­pe­tent to con­fer the power that is con­ferred on the Appel­late Author­ity, on any other author­ity as well. In other words, con­fer­ment by the Gov­ern­ment of the power to be exer­cised on the Addi­tional Dis­trict Mag­is­trates would be valid. Merely, because it was not men­tioned so in the guide­lines and since the Gov­ern­ment has in fact con­ferred the power on the Addi­tional Dis­trict Mag­is­trate, the action taken by the Addi­tional Mag­is­trates can­not be faulted. The Appel­late Author­ity has not made any sub del­e­ga­tion. It is the gov­ern­ment itself which con­ferred the power of appel­late author­ity, on a dif­fer­ent func­tionary, namely the Addi­tional Dis­trict Mag­is­trate. We also make it clear that in case there is no such valid noti­fi­ca­tion by the gov­ern­ment, on the well set­tled prin­ci­ple that a del­e­gate can­not make sub del­e­ga­tion, any power exer­cised by the sub del­e­gate, is illegal.

16. Another con­tention is as to who is com­pe­tent to file the appeal. We find from the guide­lines that an aggrieved can­di­date alone is com­pe­tent to pre­fer the appeal under Clause 12 of the Pol­icy Guide­lines. Strangers have no say in the mat­ter. There­fore, a valid selec­tion can be chal­lenged only by a can­di­date, who par­tic­i­pated in the selection.

17. Another con­tention per­tains to the trans­fer of Angan­wadi Workers/Helpers. It is clear from Clause II (4) the Pol­icy Guide­lines, deal­ing with the terms and con­di­tions of ser­vice, that trans­fer of Angan­wadi Workers/Helpers, is not per­mis­si­ble, except in the event of mar­riage of Angan­wadi Workers/Helpers and in that event alone if there is a vacancy, any such worker/helper can be adjusted in that place.

18. Another legal con­tention to be tack­led is as to the juris­dic­tion of the Appel­late Author­ity. It is seen from the 2007 Pol­icy that an aggrieved can­di­date was enti­tled to pre­fer an appeal before the Deputy Com­mis­sioner and a per­son aggrieved by the order of the Deputy Com­mis­sioner, was enti­tled to pre­fer fur­ther appeal before the Divi­sional Com­mis­sioner. The pro­vi­sion regard­ing sec­ond appeal before the Divi­sional Com­mis­sioner has been taken away only in respect of the appoint­ments made as per the Pol­icy framed in Octo­ber, 2009. There­fore, in respect of all selec­tions con­ducted as per 2007 Pol­icy, a can­di­date aggrieved, was enti­tled to pre­fer an appeal before the Deputy Com­mis­sioner and a per­son aggrieved by the order of the Deputy Com­mis­sioner, was enti­tled to pre­fer an appeal before the Divi­sional Commissioner.

19. Another legal con­tention is as to whether the Appel­late Author­ity has power to con­done delay in fil­ing appeal. The Guide­lines pro­vide a period of 15 days for fil­ing an appeal. Being a statu­tory author­ity, in terms of the Pol­icy Guide­lines, the Appel­late Author­ity does not have the power under Sec­tion 5 of the Lim­i­ta­tion Act. No power is con­ferred also in the guide­lines for con­do­na­tion of delay. There­fore, he can­not enlarge the time, by con­don­ing delay in fil­ing the appeal. In other words, if an appeal is not filed within the pre­scribed time, it has only to be dis­missed, since the Appel­late Author­ity has no power to con­done the delay in fil­ing the appeal.

20. There will be a direc­tion to the Appel­late Author­ity to con­sider the cases afresh, in the light of the above clarifications/directions/observations and take appro­pri­ate action within a period of six months, as directed hereinabove.

21. All the writ peti­tions are dis­posed of, so also all mis­cel­la­neous applications.

Trial - Anganbari Worker