Mukhtari Khatoon vs State Of Jharkhand And Others

The appellant who was the writ petitioner is aggrieved by the writ Court’s order that she is not entitled for the salary/honorarium for the post of Anganbari Sewika.

The case set up by the appellant was that she was appointed as Anganbari Sahayika in Anganbari Centre at Pipradih-II [Code No.36] in the year 2006. On 24th July 2020, Lakhi Devi who was working as Anganbari Sewika relinquished the responsibility of Anganbari Sewika which was assigned to her and then the work of Anganbari Sewika was assigned to the writ petitioner.

Mr. Aditya Raman, the learned State counsel refers to clause 18 of the letter dated 2nd June 2006 issued by the Department of Social Welfare, Women and Child Development to submit that the Anganbari Sahayika is mandated to administer the Centre in absence of Anganbari Sewika. The submission made on the basis of clause 18 is that the appellant is not entitled for difference in honorarium to the post of Anganbari Sahayika and Anganbari Sewika. To put it simple, the objection raised by the respondents is that the honorarium paid for the post of Anganbari Sewika cannot be paid to her even though the writ petitioner had worked as Anganbari Sewika.

The writ Court has simply taken note of the stand taken by the State of Jharkhand in the counter-affidavit and dismissed the writ petition.

The writ Court has made the following observations:

“4. In the counter affidavit, filed by the respondent-State, it has been admitted that the petitioner has been given the charge to work as Anganbari Sewika and it has also been mentioned that the petitioner had applied and was selected by the Gram Sabha but, it was found that the process of selection was irregular as there were other candidates who possessed the higher educational qualification than that of the petitioner.

Be that as it may, admittedly, the petitioner was not finally selected to the post of Anganbari Sewika nor her selection, which was made by the Gram Sabha was approved by the appropriate authority. The admitted fact remains that the petitioner is an Anganbari Sahayika, and as the Anganbari Sewika stopped functioning, she was merely given the additional charge. This cannot be a ground to seek salary/honorarium for the post of Anganbari Sewika.

Thus, I find no merit in this writ application. Accordingly, this writ application is dismissed.”

The writ Court seems not to have considered this aspect of the matter that even though the appellant was not selected as Anganbari Sewika or her selection by the Gram Sabha was not approved by the competent authority, for more than 3 years she has been discharging the functions of Anganbari Sahayika as well as Anganbari Sewika.

After hearing the learned counsels appearing for the parties, we are of the opinion that the State being a model employer must demonstrate fairness in its actions. While this is not disputed by the respondents that the appellant has been working also on the post of Anganbari Sewika, for no justifiable reason she has been denied salary payable to the post of Anganbari Sewika which is a higher post. The respondents have misconstrued clause 18 of the instructions contained in letter dated 2nd June 2006 and denied the benefit of higher pay to the appellant. The respondents have not even indicated whether after the writ Court’s order any fresh selection process for appointment on the post of Anganbari Sewika has been initiated. There is no reason why the appellant should not be paid honorarium for the post of Anganbari Sewika on which post she has been working continuously since 24th July 2020 till regular appointment of Anganbari Sewika is made. Therefore, we direct the Deputy Commissioner, Bokaro to take a decision whether the salary of the higher post [refer, “Arindam Chattopadhyay & Ors. v. State of West Bengal & Ors.” (2013) 4 SCC 152 and “State of Punjab & Anr. v. Dharam Pal” (2017) 9 SCC 395] or officiating allowance as provided under Rules 58 and 103 of the Jharkhand Service Code shall be payable to the appellant.

In the result, modifying the writ Court’s order dated 20th October 2022, the present Letters Patent Appeal is allowed, in the aforesaid terms.