Patasi Devi vs Gomati Devi

This special appeal arises out of the judgment dated 9.4.2014 passed by learned Single Judge, by which he has allowed the writ petition and while setting aside the appointment of the respondent no. 6 dated 31.10.2013, gave liberty to the petitioner to file a representation before the Child Development Project Officer, Osian within a period of 15 days to reconsider the case of the petitioner for the post of Aanganwari Worker, while ignoring the subsequent circular dated 12.7.2013.

The respondent was selected for appointment as Aanganwari Worker by the Gram Panchayat Bethwasiya in accordance with the then existing preferential qualifications. When the matter for issuing the appointment order was pending before the Child Development Project Officer, a new circular dated 12.7.2013, by which the qualifications were modified, was issued. Learned Single Judge found that the cancellation of selection of Smt. Gomati Devi, the respondent and the appointment of Smt. Patasi Devi, treating her qualifications in accordance with the circular dated 12.7.2013, was wrong, inasmuch as, the selection was already made by the Gram Panchayat. At the time of providing appointment, the existing circular was rightly considered by the Gram Panchayat because the subsequent circular dated 12.7.2013, was not in existence at that time.

Learned counsel for the appellant has relied on the judgment of the Supreme Court in State Bank of India and Another Vs. Raj Kumar, in which it was held that compassionate appointment is a concession and not a right. The claim of compassionate appointment is traceable only to specific scheme claimed by the employer. The applicant did not have any right whatsoever outside the scheme. The appointment under the scheme can be made only if the scheme is in force and not after it is abolished or withdrawn. When a scheme is abolished, any pending application seeking appointment under the abolished scheme will also cease to exist, unless it is saved.

In our view, the judgment in State Bank of India & anr. V/s. Raj Kumar (supra) is not applicable to the facts of the present case. In the case in hand, the selection was already made before the new circular was issued modifying the eligibility. The Gram Panchayat had recommended the appointment of Smt. Gomati Devi in accordance with the existing circular and on which only formal order of her appointment was to be issued.

It is not denied that Smt. Gomati Devi was qualified and had preferential right to appointment in accordance with the circular, which was prevalent prior to 12.7.2013. Her selection could not be changed by the Child Development Project Officer on the ground of subsequent modification in the eligibility by circular dated 12.7.2013. The scheme is still continuing and the appointments are being made regularly.

Learned counsel for the appellant submits that Smt. Patasi Devi was also selected as her name was recommended alongwith the name of Smt. Gomati Devi for appointment and before the appointment could be made, the qualifications were modified by a subsequent circular. We do not find any merit in the argument, inasmuch as, forwarding of name of appellant-Smt. Patasi Devi alongwith the name of Smt. Gomati Devi, who was first selected to be appointed, would not give her any right over and above the rights of Smt. Gomati Devi, who was selected and was awaiting appointment under the then prevalent circular.

The special appeal has no merit and is dismissed. The application for vacation of interim order also stands disposed of.