Allowed

Munisha Kumari v. the State of Bihar and Ors.

Patna HC13 Jul 2012L.P.A/35/2011

Case brief

AI extract

What is this about?

Patna High Court held that Anganbari Sevika is not a government servant. The termination of the appellant's 11-year-old appointment was malafide and violative of natural justice. The appeal was allowed, the impugned orders quashed, and the appellant was directed to be reinstated.

What did the court decide?

Appellant to be reinstated as Anganbari Sevika forthwith; non-applicant appointed at the same center to cease from service; no arrears before July 31st.

Munisha Kumari Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.35 of 2011

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Civil Writ Jurisdiction Case No. 1099 of 2010

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With

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Interlocutory Application No.167 of 2011 With Interlocutory Application No.6811 of 2011

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In Letters Patent Appeal No.35 of 2011

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======================================================

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Munisha Kumari wife of Ganga Bishun Prasad, resident of village-Sirh, P.S-Atri, District-Gaya.

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.... .... Petitioner-Appellant

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Versus

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The State of Bihar.

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The District Magistrate, Gaya.

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The Chief Development Project Officer, Atri, District-Gaya.

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The Mukhiya, Gram Panchayat-Sirh, P.S-Atri, District-Gaya.

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…. …. Respondents-Respondents

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Sunita Kumari, W/o Arun Kumar, resident of village—Malharchak, aged about 32 years, Atari, Distt. Gaya, at present working as Anganbari Sevika at Malhachak Anganbari Center, under Gram Punchayat Sirh.

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.... .... Intervener-Respondent

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====================================================== Appearance : For the Appellant : Mr. Manish Kumar, Advocate For the Respondent State: Mr. Rajiv Kumar Singh, GP-15 For the Respondent No.5: Mr. Suresh Prasad Singh No.1, Advocate ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

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ORAL ORDER

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Patna High Court LPA No.35 of 2011 (8) dt.13-07-2012

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(Per: HONOURABLE THE CHIEF JUSTICE)

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13-07-2012 Interlocutory Application No.6811 of 2011:

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This Application for intervention has been made by one Sunita Kumari. According to the applicant, since termination of appointment of the writ petitioner-appellant as Anganbari Sevika the intervener has been appointed as Anganbari Sevika. She, therefore, seeks leave to be heard before us.

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Application is allowed.

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The applicant Sunita Kumari be impleaded as partyrespondent no.5 in the Letters Patent Appeal and the Interlocutory Application.

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Necessary correction in the cause title will be made in red ink within one week from today.

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Interlocutory Application No.167 of 2011:

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The delay of 73 days occurred in filing the Letters Patent Appeal is condoned.

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Interlocutory Application stands disposed of. Letters Patent Appeal No.35 of 2011:

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Feeling aggrieved by the order dated 7^th September 2010 made by the learned single Judge in C.W.J.C. No. 1099 of 2010, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent.

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The appellant, a resident of Village-Sirh, P.S.-Atri, District-Gaya, was in 1997 selected for appointment as Anganbari Sevika. Since her selection she was sent for training. After completion of training in December 1997, she reported for duty on 26^th December 1997 at Malharchak Anganbari Center, Block-Atri, District-Gaya. Her appointment made in December 1997, was questioned under the show cause notice dated 19^th

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Patna High Court LPA No.35 of 2011 (8) dt.13-07-2012

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February 2008. The appellant was informed that she was not the resident of the area of Malharchak Anganbari Center. It appears that the said question arose on account of some enquiry made on the floor of the Legislature. After the said show cause notice, Village-Sirh, of which the appellant is resident, not being within the area of Malharchak Anganbari Center, her appointment was cancelled by the District Magistrate, Gaya under his order dated 16^th May 2008. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 1099 of 2010. The learned single Judge has dismissed the writ petition on the ground of delay and laches and also on the ground that the Anganbari Sevikas are the agents of the State Government and are not the servants of the State Government. They are, therefore, not governed by the service Rules of the State Government. Therefore, this Appeal.

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Learned advocate Mr. Manish Kumar has appeared for the appellant. He has submitted that at the relevant time the appellant was selected for appointment as Anganbari Sevika at Malharchak Anganbari Center after following due procedure and that she was the only applicant for the appointment in question. Her service could not have been terminated unceremoniously, 11 years after appointment, for askance.

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Appeal is contested by the State Government and the respondent no.5. Learned advocate Mr. Rajeev Kumar Singh has appeared for the State Government. He has submitted that the appellant not being the resident of the area of the concerned center, she does not attend the Anganbari Center nor does she ever open the Anganbari Center.

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Learned advocate Mr. Suresh Prasad Singh No.1 has

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Patna High Court LPA No.35 of 2011 (8) dt.13-07-2012

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appeared for the respondent no.5. He has submitted that since the cancellation of the appointment of the appellant, the respondent no.5 has been appointed as Anganbari Sevika. He has submitted that the appellant had not been operating the Anganbari Center. Her appointment was illegal and void ab initio . The same has rightly been cancelled by the District Magistrate.

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We do agree with the learned single Judge that the Anganbari Sevikas are not the servant of the Government; nor are they governed by the service conditions of a Government servant. Nevertheless, before cancelling her appointment as Anganbari Sevika minimal of the principle of natural justice was required to be followed. In the present case, although it has been argued that the appellant had not been functioning properly, she did not open or operate the Anganbari Center regularly; none of the allegations is reflected in the show cause notice. Under the show cause notice the appellant was called upon to comment upon that her village Sirh was not situated within the area of Malharchak Anganbari Center. The cancellation of her appointment was also made on that ground alone. The State Government cannot now be allowed to raise a plea that the appellant did not perform her duty well.

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Pending the Appeal, under order dated 7^th April 2011 made by this Court, the appellant was called upon the make a fresh representation before the District Magistrate. On such representation made by the appellant the District Magistrate has again considered the matter and under order dated 9^th September 2011 rejected the claim made by the appellant. The District Magistrate has categorically recorded that the appointment of the appellant was contrary to the guidelines issued on 13^th June 1998.

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Patna High Court LPA No.35 of 2011 (8) dt.13-07-2012

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It was, therefore, bad and illegal.

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We are absolutely at loss. There is no gainsaying that the appellant was selected in 1997; she was sent for training in 1997; after completion of training she joined the duty in 1997. Her appointment made in 1997 could not have been examined/tested on the guidelines issued on 13^th June 1998; months after her appointment. To us it appears that cancellation of the appointment of the appellant as being illegal and termination of her service smack of malafides. Besides, the appellant has approached this Court within a year and half of the date of cause of action. The delay was not such which would entail dismissal of writ petition on the ground of delay and laches, more particularly, when we have recorded a finding that cancellation of her appointment and termination of her service were on extraneous reasons.

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For the aforesaid reasons, we allow this Appeal. The impugned order dated 7^th September 2010 made by the learned single Judge in C.W.J.C. No. 1099 of 2010 is set aside. C.W.J.C. No. 1099 of 2010 is allowed. The impugned order dated 16^th May 2008 made by the District Magistrate, Gaya and the order dated 9^th September 2011 made by the District Magistrate, Gaya are quashed and set aside. It is held that the appellant has a right to continue as Anganbari Sevika at Malharchak Center. The appellant will be reinstated as Anganbari Sevika, Malharchak Center forthwith but not later than 31^st July 2012. Although for the interregnum period the appellant will not be entitled to arrears of salary or wages or honorarium. In case the respondent authorities fail to reinstate the appellant as Anganbari Sevika by 31^st July 2012 as directed, commencing from 1^st August 2012, the

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Patna High Court LPA No.35 of 2011 (8) dt.13-07-2012

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appellant will be entitled to wages or the honorarium as Anganbari Sevika.

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As a necessary corollary to reinstatement of appellant in service, the appointment of the respondent No.5 as Anganbari Sevika at Anganbari Center, Malharchak being consequential shall stand terminated.

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It is clarified that this order shall not preclude the State Government from taking any action against the appellant if she has failed or she fails to perform her duty as an Anganbari Sevika.

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(R.M. Doshit, CJ)

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(Ahsanuddin Amanullah, J)

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Pawan/-

Munisha Kumari v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Munisha Kumari v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

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