Dismissed

Nishee Kumari v. the State of Bihar and Ors.

Patna HC6 Feb 2017CWJC/2335/2008

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging the cancellation of the petitioner's appointment as an Aanganbari Sevika. The court upheld the cancellation on the ground that the petitioner was the daughter of a government servant, applying the relevant guidelines of 2006 despite arguments regarding residency and subsequent amendments. The appeal against the District Magistrate's and Commissioner

What the court decided

AI extract

Nishee Kumari Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.2335 of 2008

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=========================================================== Nishee Kumari, Wife of Santosh Kumar Choudhary, Resident of Village – Kishanpur Tabka, Police Station – Bibhutipur, District – Samastipur.

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.... .... Petitioner

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Versus

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The State of Bihar

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Commissioner, Darbhanga Division, Darbhanga.

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District Magistrate, Samastipur.

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District Welfare Officer, Samastipur.

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Mukhiya, Gram Panchayat-Rajtabka, Bibhutipur, District-Samastipur.

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Kumari Ram Maya, Wife of Jaidev Jha, Resident of Village-Kishanpur Tabka, Police Station – Bibhutipur, District – Samastipur.

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.... .... Respondents =========================================================== Appearance : For the Petitioner : Mr. Manish Kumar, No. 2, Advocate. Mr. Gajendra Kumar Singh, Advocate. For the Respondents : Mr. Dhurendra Kumar, AC to GP 5. For the Respondent No. 6 : Mr. Durga Nand Jha, Advocate.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT Date: 06-02-2017

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Heard Mr. Manish Kumar, No. 2 learned counsel for the petitioner, Mr. Dhurendra Kumar, AC to GP 5 and Mr. Durga Nand Jha, Advocate for the respondent no. 6.

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2 . The petitioner filed this writ petition for quashing the order dated 16.08.2007 as contained in Memo No. 1774 issued under the signature of District Magistrate, Samastipur by which the selection of the petitioner on the post of Aanganbari Sevika of Kendra No. 221, Kishanpur Tabka, Bibhutipur was cancelled. The petitioner further prayed to quash the order dated 30.11.2007 passed in Case No. 66 of 2007, by which the Commissioner, Darbhanga Division, Darbhanga

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confirmed the order of District Magistrate, Samastipur.

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3 . A notice inviting application for appointment of Aanganbari Sevika of Kendra No. 221 of Kishanpur Tabka, Bibhutipur was invited. The petitioner was married to one Santosh Kumar Choudhary and she was living in her Sasural situated in village Kishanpur Tabka, Bibhutipur. The petitioner fulfilled all the requirements for the post of Aanganbari Sevika and applied along with the relevant documents. The meeting of the selection committee and Aam Sabha took place on 10.05.2007 under the chairmanship of Deputy Mukhiya, Child Development Project Officer and other took part in the proceeding and prepared the merit list. In the merit list name of the petitioner was figured at serial no. 1. The petitioner was sent to undergo training and thereafter the petitioner was engaged as an Aanganbari Sevika. After the appointment of the petitioner on 22.08.2007 for Kendra No. 221, the petitioner joined her post on 30.08.2007. The petitioner receipt letter as contained in Memo No. 1588 dated 06.08.2007 and asked the petitioner to appear in hearing on 16.08.2007 in the chamber of the District Magistrate, Samastipur. The letter also disclosed that an enquiry was held with regard to the selection of the petitioner on the post of Aanganbari Sevika and the Sub-Divisional Officer, Samastipur held the enquiry. The petitioner filed her reply stating that her father was a government servant, but she

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was married with an agriculturist and in similar cases, the daughter of a government servant was appointed in the district of Darbhanga, but after hearing the petitioner and others the District Magistrate, Samastipur set aside the appointment of the petitioner as Aanganbari Sevika of Kendra No. 221 vide order dated 16.08.2007.

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4 . The petitioner, thereafter, preferred an appeal on 01.10.2007 before the Commissioner, Darbhanga. The Commissioner, Darbhanga vide his order dated 30.11.2007 dismissed the appeal of the petitioner stating that there was no reason for interference with the order dismissing the petitioner.

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5 . Learned counsel for the petitioner submits that Clause3(M-) of Letter No. 2783 dated 03.10.2006 issued by the Director, ICDS of Social Welfare Department, Government of Bihar deals with the conditions of the appointment of candidates on the post of Aanganbari Sevika and Sahayika. Clause-3(M-) puts a ban that a relative of a public servant and government servant such as daughter, wife, daughter-inlaw, grand daughter-in-law shall not be appointed on the post of Aanganbari Sevika.

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6 . Learned counsel for the petitioner further submits that admittedly the petitioner is the daughter of the government servant, but she was married to an agriculturist and she was living in her Sasural at far away the place from her parents’ house. In a similar case this Court

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in case of Vimal Kumari vs. State of Bihar reported in 2017 (1) PLJR paragraphs 13 and 14 of the aforesaid judgment says as follows:

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“13. The petitioner states that she got

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married in the year 1992. She has also mentioned that her parental home is in the district of Vaishali and though her father was a Government school teacher at the relevant time but since after her marriage in the year 1992, she has moved to her matrimonial home in the district of Muzaffarpur. Undisputedly neither the husband of the petitioner nor her fatherin-law holds any Government post or any other post which would disqualify her from such appointment as found in clause 3( M- ). The question is whether in the circumstances where admittedly the father of the petitioner held a Government post in the district of Vaishali, the said circumstance would be a disqualification for the petitioner to apply in the district of Muzaffarpur where she is residing with her husband since after her marriage in 1992.

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14. In my opinion any such disqualification would run counter to the object for which the provision has been stipulated. It is the object which is

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sought to be achieved under the provisions, which has to be a guiding factor. In other words the provision under consideration has to be interpreted with the object so sought to be achieved. As I have mentioned at the outset, the provision of clause 3( M- ) is put to test in its application in the case of married daughters and clause 3( x ) requires her to be a resident of the tola/village/mohalla concerned. Had it been a case where the parental home of the petitioner as well as her matrimonial home, both would have been situated in the district of Muzaffarpur perhaps then the circumstance that the father of the petitioner held a Government post, would have been an issue of disqualification because in the said case the petitioner as a daughter was a permanent resident of the district of Muzaffarpur and even after marriage she continued to be in the same district. In my opinion the context in which the daughter has been disqualified under clause 3( M- ) of “the guidelines of 2006” inter alia on grounds that she is not related to a Government servant has to be read in conjunction with the primary requirement of the applicant being a

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permanent resident of the Tola/Village/Mohalla, in which the Centre is established and cannot be disassociated with the said requirement as suggested by Mr. Trivedi. The reason is only married woman who can apply for the post.”

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7 . Learned counsel for the petitioner further submits that the word ‘daughter’ has been deleted from Clause-3(e) in a subsequent letter issued by the Social Welfare Department, Government of Bihar and, therefore, the order of the petitioner on the ground that she appears to be a daughter of the government servant is illegal.

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8 . The State-respondents as well as private respondent no. 6 also filed counter affidavit and in sum and substance stated that according to Clause-3(e), the petitioner was not having requisite qualification for appointment on the post of Aanganbari Sevika and accordingly, her appointment was cancelled. Respondent no. 6 in her counter affidavit further stated that the petitioner is not only daughter of the government servant, but also she belongs to a joint family in which her mother-in-law is a pensioner and two brothers-in-law (Dewar) are teacher and assistant engineer. Clause-3(e) expressly debarred such relatives of a government servant or a person holding public post to be appointed on the post of Aangnabari Sevika.

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9 . Learned counsel for the respondents further submits that

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the word ‘daughter’ has been deleted is discriminately after a judgment passed by this Court in Sunita Kumari Vs. The State of Bihar and Others, reported in 2010 (3) PLJR Page 68 , but the appointment made prior to 2010 was upheld by this Court in CWJC No. 5358 of 2008 and the cancellation of selection of a daughter of a government servant has been held validly by a Division Bench of this Court in LPA No. 296 of 2014, in Nutan Kumari Vs. State of Bihar and others reported in 2016 (4) PLJR Page 155 .

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10 . Clause-3(e) says as follows:

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^^3-¼M+½ yksd lsodksa ¼eqf[k;k] iapk;r lfefr ds lnL;@okMZ lnL;@ftyk ifj’kn~ ds lnL; vkfn Lo;a ;k muds fj”rsnkj½ fofHkUu ljdkjh lkefxz;ksa ds fod z srkvksa ¼tSls tu forj.k iz.kkyh fodzsrk] ?kqeUrq fdjklu rsy ds fodzsrk ¼Dealer½] vUrjfoHkkxh; Mkd[kkuk dehZ ¼Intra-departmental Post Office Employee bR;kfn ½ ljdkjh ,oa v)Zljdkjh lsodks ds fj”rsnkj ;Fkk] csVh@iRuh@iq=o/kw@ikS=o/kw dk p;u bl in ds fy, ugha fd;k tk;sxk A**

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11 . From the averment made by the petitioner in the writ petition itself it appears that, of course, her husband is an agriculturist but her husband has got four brothers, her mother-in-law is a pensioner. The respondent no. 6 has specifically stated that two brothers-in-law of the husband of the petitioner are in government servant. They are teacher and assistant engineer. Therefore, in view of the provisions as contained in Clause-3(e) the petitioner was not

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having requisite qualification and her candidature is not fit to be appointed on the post of Aanganbari Sevika. Even, if, she is married to an unemployed person, she does not cease to be a daughter of a government servant, as her father was working as a teacher. Besides this, many family members such as brothers of the husband of the petitioner are in government service even then the petitioner was selected for the post of Aanganbari Sevika and the Collector after enquiry and hearing the petitioner appears to have rightly cancelled the appointment of the petitioner. On the date of appointment, the petitioner was not holding the qualification. The Division Bench of this Court in a similar case has held that in LPA No. 296 of 2014 in Nutan Kumari Vs. State of Bihar and others reported in 2016 (4) PLJR Page 155 on the date of appointment the petitioner was not holding valid qualification to be appointed on the post of Aanganbari Sevika and subsequently amendment in Clause-3(e) does not make the appointment or cancellation of appointment of the petitioner valid.

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12 . Having considered the facts aforesaid, I do not find any merit in this writ application. Accordingly, the same is dismissed.

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(Prabhat Kumar Jha, J.)

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KKSINHA/-

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AFR/NAFR	NAFR
CAVDATE	NA
Uploading Date	17.02.2017
Transmission Date

Nishee Kumari v. the State of Bihar and Ors.

Case brief

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Nishee Kumari v. the State of Bihar and Ors.

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