Mala Devi vs State of U.P. and others

Sanjay Misra, J.

These are two special appeals involving the same controversy and hence are connected and are being disposed of by a common judgement.

We have heard Sri Ashok Khare learned senior counsel on behalf of the appellant, Sri Swapnil Kumar appearing on behalf of respondent no. 4 and learned standing counsel who has put in appearance on behalf of respondent no. 1 to 3.

The special appeal no. 773 (defective) of 2008 has been preferred against the judgement dated 16.11.2007 passed by learned Single Judge in writ petition no. 8064 of 2005 Smt. Babita Singh vs. State of U.P. and others whereas the special appeal no. 1386 of 2008 has been preferred against the order dated 25.08.2008 whereby the recall/review application made by the appellant in the aforesaid writ petition has been rejected.

The special appeal no. 773 (defective) of 2008 has been reported to be beyond time. Learned counsel for the appellant has submitted that after passing of the order dated 16.11.2007, she had filed a recall/review application on 05.12.2007 since she was not arrayed as a party in the writ petition and upon coming to know about the order dated 16.11.2007, the application had been filed within thirty days. It is stated that the said application was ultimately decided by the writ court on 25.08.2008 whereafter, the order dated 25.08.2008 as well as the order dated 16.11.2007 have been challenged. As such, the explanation given by learned counsel for the appellant for delay in filing the special appeal no. 773 (defective) of 2008 appears to be sufficient and there is no serious objection to condonation of delay by learned counsels who have put in appearance on behalf of the respondents. In view of the aforesaid circumstances, the delay in filing the appeal is condoned. Office is directed to give a regular number to the appeal.

The controversy which has been argued by learned counsel for the appellant is that when the writ petition of Smt. Babita Singh was considered and allowed only on the ground that the cancellation of her appointment as Anganbari Karyakarti had been passed in violation of the principles of natural justice the appellant who was not party to the writ petition could not be removed. According to him, the appellant was admittedly placed at Sl. 3 of the select list and the appointment of Smt. Babita Singh was primarily on the ground that the candidates at Sl. 1 and 2 had been disqualified and the appellant was not given appointment because her domicile certificate die not accompany the application form. It is stated that the appointment of Smt. Babita Singh who was at Sl. 4 was made due to the aforesaid reason. Upon the complaint made by the appellant before the District Magistrate, an enquiry was got conducted and an enquiry report dated 15.10.2004 was submitted before the District Magistrate wherein it was clearly recorded that the appellant is a resident of the village in question and in her application form she has mentioned that she is filing the residential certificate as an enclosure. However, when the form was opened, such residential certificate was not found with the application form and the enquiry officer has opined that he need not comment about the absence of such residential certificate. According to him, it was on the basis of the aforesaid enquiry report that the District Magistrate found that the petitioner was qualified and eligible for being appointed as an Anganbari Karyakarti and being placed at Sl. 3 of the select list above Smt. Babita Singh, she was entitled to be given appointment. Learned counsel has submitted that once the petitioner had been given appointment by virtue of her being placed at Sl. 3 of the select list, then the appointment of Smt. Babita Singh who was placed lower to her in the select list was rightly cancelled since the appellant was entitled by virtue of being higher in the select list. According to learned counsel for the appellant, the cancellation order dated 09.02.2005 insofar as Smt. Babita Singh is concerned has been set aside by the learned Single Judge on the ground of violation of the principles of natural justice and to such reasons given in the order, he does not have any dispute. However, according to him, when the order was set aside, the matter ought to have been sent back to the competent authority insofar as admittedly, the appellant Smt. Mala Devi Srivastava was placed higher in the select list than Smt. Babita Singh. He therefore contends that when her recall application was rejected, such aspect was not considered by the learned Single Judge and hence prays that the aforesaid orders requires to be set aside.

On the contrary, Sri Swapnil Kumar has argued that Smt. Babita Singh was given appointment when the candidates at Sl. 1 to 3 had been disqualified and therefore there can be no reason to cancel her appointment only because of an enquiry report dated 15.10.2004. According to him, the cancellation order dated 09.02.2005 was passed without complying with the principles of natural justice, without giving any notice or seeking her explanation and therefore, it was rightly set aside by the learned Single Judge and Smt. Babita Singh was entitled to all the consequential benefits which arose to her after quashing of the order of cancellation.

We have considered the submission of learned counsel for the appellant and perused the records. The fact which cannot be disputed is that Smt. Mala Devi Srivastava (the appellant) was not given appointment on the ground that her residential certificate was not available along with the form. It was only when Smt. Mala Devi Srivastava was ousted from consideration that Smt. Babita Singh who was at Sl. 4, below the appellant, was given appointment. However, the record indicates that the District Magistrate got an enquiry conducted and in the enquiry, it has come out that Smt. Mala Devi Srivastava was a resident of the village in question and that was not to be taken as a ground for rejecting her candidature for appointment as Anganbari Karyakarti. Consequently, when Smt. Babita Singh was appointed and her appointment was cancelled in violation of the principles of natural justice, in our considered view, the matter requires to be remitted back to the District Magistrate for consideration of the claim of the aforesaid two candidates for appointment. Smt. Babita Singh could therefore not claim to be entitled to all consequential benefits by virtue of quashing of her order of cancellation dated 09.02.2005. For the aforesaid reasons, we are satisfied that the order of the learned Single Judge dated 16.11.2007 as also the order dated 25.08.2008 whereby the recall/review application has been rejected requires to be set aside. It is accordingly set aside. The matter is remitted back to the District Magistrate, Kaushambi for considering the respective claims made by the appellant Smt Mala Devi Srivastava and the respondent Smt. Babita Singh after giving them a reasonable opportunity of hearing and to pass orders in accordance with law within a period of two months from the date a certified copy of this order is produced by the parties before the District Magistrate, Kaushambi.

The respondent no. 4 Smt. Babita Singh shall be permitted to continue to work as Anganbari Karyakarti till decision of the representation or for a period of two months whichever is earlier and it shall be subject to final decision taken by the District Magistrate, Kaushambi.

Both the special appeals stand allowed. No order is passed as to costs.