CIVIL APPEAL 6019 of 2008 on 9 June 2007

1. The State of Jharkhand through the Principal Secretary, Social Welfare Department, Government of Jharkhand, Ranchi.Welfare Department, Government of Jharkhand, Ranchi.

2. The Deputy Commissioner, Deoghar.

3. The Deputy Development Commissioner, Deoghar.

4. The Child Development Project Officer, Sarwa, District-Deoghar.

5. The Circle Officer, Sarwa, District-Deoghar.

6. The Block Development Officer, Sarwa, Deoghar…Respondents …

CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK.

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For the Petitioner : - Mr. Rajendra Prasad, Advocate.For the Respondents: - Mrs. Chandra Prabha, S.C. IV.

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10/20.10.2016 In the instant writ application, the petitioner has, inter alia, prayed for issuance of a writ in the nature of Certiorari for quashing the impugned order as contained in Office Order issued vide Memo No. 501 dated 18[th] September, 2008 issued under the signature of the Deputy Development Commissioner, Deoghar by which the services of the petitioner working as Anganwari Sevika at the Anganwari Centre, Mungjori under Sarwa Block has been terminated and further for a dir-ection in the nature of Mandamus commanding upon the respondents to reinstate the petitioner to the post of Anganwari Sevika at Centre Mun-gjori under Sarwa Block and to pay all the honorarium for the period during which the petitioner has been kept out of service.

2. Sans details, the facts, as disclosed and delineated in the writ pe-tition, are that on 25.05.2007, a meeting was held in the Primary School at Village Mungjori Panchayat Basbutia Block-Sarwa, District-Deoghar for the selection of Anganwari Sevika/Sayika in which the members of Selection Committee and the villagers participated and the aforesaid meeting was presided over by the Block Agricultural Officer, Sarwa Block and the villagers of the Village-Mungjorio actively participated in the aforesaid meeting for selection of Anganwari Sevika/Sayika. It has been further averred that in all there were four candidates, namely, Geeta Devi, Santana Kumari, Vinita Kumar (petitioner) and Baby Devi.

After the Aam Sabha, the petitioner was unanimously selected for the post of Anganwari Sevika because she fulfilled the requisite Matricula-tion Qualification and having Annual Income of Rs.24,000/- only be-low the poverty line. Another contesting candidate Santana Kumari was not selected because her husband Panchanand Verma is a Para Teacher in the same village in a Government Primary School and their Annual Income was above poverty line. Since there was doubt on the genuine-ness of the mark sheet supplied by Santana Kumari, she was not selec-ted as Anganwari Sevika for which, the said Santana Kumari filed W.P. (S) No. 2063 of 2008, which was later on withdrawn vide order dated 29.11.2008, passed by this Court. The petitioner was provided the pro-visional selection letter by the Child Development Project Officer, mentioning therein that by the Aam Sabha convened on 25.5.2007, the petitioner has been selected for the Anganwari Sevika Centre-Mung-jori. Thereafter, the petitioner was given the appointment letter vide Memo No. 284 dated 9.6.2007 issued under the signature of Child De-velopment Project Officer, Block Sarwa, Deoghar, mentioning, inter alia, that the petitioner has been selected for the post of Anganwari Sevika for Mungjori Centre with certain conditions. The petitioner thereafter joined her duties on the post of Anganwari Sevika with effect from 10.06.2007 and satisfactorily discharged her duties to the satisfac-tion of her superior officers but surprisingly and to the utter consterna-tion of the petitioner, due to certain dispute raised by one Santana Ku-mari, later on and only with an intention to accommodate the said Santana Kumari, the services of the petitioner was terminated vide or-der as contained in Memo No. 501 dated 18.09.2008 issued under the signature off the Deputy Development Commissioner, Deoghar. The only ground mentioned in the termination letter for terminating the ser-vices of the petitioner is that she is not a permanent resident of village-Mungjori but as a matter of fact, the petitioner is a permanent resident of the said Mungjori village and she has submitted her residential certi-ficate and the caste certificate issued by the competent authority. The husband of the petitioner, namely, Binod Kumar Verma and also the father-in-law and the petitioner herself are having voting rights in the

same Mungjori Village and the voter identity cards have been issued by the competent authority after full verification. Although the petitioner’s father-in-law settled at his in-laws place since long because of the fact that his wife had no brother and the father-in-law of the petitioner got all the property of his in-laws and he settled there since substantial length of period. The husband of the petitioner has studied since his childhood in village Mungjori itself because of the fact that they have got no property elsewhere and they are permanent resident of village Mungjori itself. All the revenue receipts and Jamabandi receipts are also running in the name of petitioner’s father-in-law which clearly go to show that the petitioner is a permanent resident of village Mungjori because she has been married to the son of Tufani Verma, who happens to be the father-in-law of the petitioner. Only with an intention to ac-commodate some other candidate, the appointment of the petitioner has been terminated by manipulating documents and records with mala fide intention which cannot be sustained in the eyes of law. The termination of the services of the petitioner, when she is permanent resident off Mungjori Village under Sarwa Block of Deoghar District amounts to infringement of her fundamental rights as contained in Articles 14 and 16 of the Constitution of India. The impugned order issued by the Deputy Development Commissioner, Deoghar on the basis of wrong and incorrect report of the Circle Officer, is wholly mala fide, arbitrary and in flagrant violation of the principles of natural justice. The im-pugned order of termination of the petitioner has been issued only with an intention to accommodate another candidate, namely, Santana Ku-mari, who was not selected on the earlier occasion alongwith this peti-tioner and who wields immense political and administrative clout.

Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.3.Heard Mr. Rajendra Prasad, learned counsel for the petitioner and Mrs. Chandra Prabha, learned S.C. IV for the Respondent-State.

4. Counter affidavit has been filed on behalf of the respondents,re-pelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that on 25.05.2007, a meeting was held in the Primary School at Village Mungjori Panchayat Basbu-tia Block-Sarwa, District-Deoghar for the selection of Anganwari Sevika/Sayika in which the members of Selection Committee and the villagers participated and the aforesaid meeting was presided over by the Block Agricultural Officer, Sarwa Block and the villagers of the Village-Mungjorio actively participated in the aforesaid meeting for se-lection of Anganwari Sevika/Sayika. However, the petitioner did not fulfill the criteria for appointment on the post of Sevika. She was not permanent resident of village Mungjoria. The present writ application is not maintainable either in law or in the facts of the case and the same is fit to be dismissed in limine.

5. Learned counsel for the petitioner has vehemently submitted that Annexure-7 has been passed by the Dy. Development Commissioner, who is not the competent Authority. Learned counsel for the petitioner further submits that the action of the respondents authorities in termin-ating the services of the petitioner is against the Departmental Guidelines, Rules and Regulations of the Department. Learned counsel for the petitioner further submits that the departmental guidelines are only to ensure that the incumbent of the office of the Anganbari Sewika should be resident of village, where the centres are established and this criteria and eligibility is wholly fulfilled and complied by the petitioner being resident of village Mungjori, but the Respondents-authorities only with mala fide intention and to show favour to some other candid-ates have illegally cancelled the appointment of the petitioner, which is violative of Article 14 and 16 of the Constitution of India.

6. Per contra, Learned S.C. IV, appearing for the respondent State has vociferously submitted that the petitioner has no case to invoke the writ jurisdiction of Hon’ble Court nor any law point is involved so as to seek indulgence of this Court under Article 226 of the Constitution of India. Learned counsel for the Respondent-State further submitted that the selection letter issued in the name of the petitioner was provisional with the condition that if any document is found unsatisfactory at the time of verification, she will be terminated and since the petitioner is not a permanent resident of Village Mungjoria, she was terminated from the post of Sevika. Learned counsel for the Respondent-State further submitted that moreover, the Deputy Commissioner, Deoghar sought for clarification from the Circle Officer, Sarwan regarding issuance of residential certificate in the name of Smt. Vinita Devi wife of Binod Verma of village-Mungjoria and in compliance to the letter, the Circle Officer submitted report that Vinita Devi wife of Binod Verma is a permanent resident of Village Panchudih and Binod Verma is a son of Sri Tufani Verma. Learned counsel for the Respondent-State further submitted that from the report of the Circle Officer, Sarwan, it is clear that one Manbharan Verma is a permanent resident of Mungjoria and Tufani Verma is son-in-law of aforesaid Manbharan Verma. Learned counsel for the Respondent-State further submitted that the C.D.P.O. Sarwan also enquired the matter and submitted report to the District Social Welfare Officer, Deoghar, she also mentioned in the report that the petitioner is not a permanent resident of Village-Mungjoria. Learned counsel for the Respondent-State further submitted that the petitioner’s name in the voter list of village-Mungjoria does not mean that she is permanent resident of the village. Learned counsel for the Respondent-State further submitted that although the petitioner’s father-in-law resides at his Sasural at Village-Mungjoria but he is permanent resident of Village Panchudih. Learned counsel for the Respondent-State further submitted that the petitioner’s father-in-law is not a Jamabandi raiyat of Village-Mungjoria and he merely resides and cultivates the land of his father-in-law. Learned counsel for the Respondent-State further submitted that from the report of the C.O., Sarwan, it is clear that the petitioner is not permanent resident of village Mungjoria, hence she was terminated by the order of the Deputy Commissioner, Deoghar. Learned counsel for the Respondent-State further submitted that the Deputy Commissioner has passed a reasoned order keeping in mind the provisions of circular and guideline issued from the Social Welfare Department, Govt. of Jharkhand. Learned counsel for the Respondent-State further submitted that in view of the facts and circumstances stated hereinabove, the instant writ petition is devoid of any merit and is liable to be dismissed in limine.

7. A rejoinder to the counter affidavit has been filed by the petitioner, wherein, it has been, inter alia, submitted that the services of the petitioner has been illegally terminated vide impugned order dated 18.09.2008 on wrong premise. The Circle Officer has given Income Certificate as well as Caste Certificate in favour of the petitioner, wherein, she has been shown as resident of Village-Mungjori (Annexure-1 and Annexure-5 to the writ petition). The Identity card issued by the Election Commission of India clearly shows that the petitioner is a voter of Village Mungjori, District-Deoghar and the same is annexed as Annexure-6 to the writ petition. The husband and father in law of the petitioner have also been shown as Resident of Village Mungjori, District-Deoghar. The job card issued to the father in law of the petitioner namely Toofani Verma and the husband namely Binod Verma of the petitioner under the Centrally Sponsored Schemes clearly shows that the father in law of the petitioner is resident of Mungjori, Block Sarwan, District-Deoghar. The Transfer Certificate (Annexure-9 to the rejoinder) of the husband of the petitioner namely Binod Verma duly issued by the Head Master of Govt. High School, Sonaraitarhi, Deoghar also shows that the husband of the petitioner is a Resident of Village Mungjori, Deoghar and therefore, the petitioner who is wife of Binod Verma naturally and undoubtedly is resident of village Mungjori. The Residential Certificate (Annexure-10 to the rejoinder) issued on 08.06.2007 to the husband of the petitioner by the Circle Officer, Sarwan also goes to show that the husband is Resident of Village Mungjori, District-Deoghar. The Respondent-authorities on a hyper-technical ground that the father-in-law of the petitioner is not a Jamabandi Raiyat of Village Mungjori has cancelled the appointment of the petitioner as Anganbari Sevika of village Mungjori Centre, which cannot be sustained in the eyes of law. Since the father-in-law of the petitioner got gifts at village Mungjori and therefore, he settled down in village Mungjori having substantial land for cultivation etc. as a result of which his son Binod Verma is also brought up in village Mungjori itself and his wife i.e. the petitioner naturally resides at village Mungjori only having her hearth and home in the same village. The underlying principle and reason for selecting Anganbari Sewika being Resident of particular village is only to ensure that the centres functioning smoothly and no absenteeism takes place.

8. A supplementary affidavit has also been filed on behalf of the petitioner on 17.11.2014, wherein, it has been, inter alia, submitted that in view of the letter issued by the Circle Officer Sarwan dated 20.05.2006 vide Annexure-4 of the writ petition, the Circle Officer, Sarwan has issued residential certificate vide Serial No. 27/07/2007 dated 24.05.2007 to this effect that the petitioner is living in Village Mungjoria after her marriage. The Circle Officer, Sarwan has issued the residential certificate to the husband of the petitioner Binod Verma that he is a resident of Village Mangjori, which has been filed and marked as Annexure-10 to the writ petition. The Voter List and Unique Identification Authority of India of mother-in-law of Akashi Devi and father-in-law were issued, in which their resident has been shown in Village Mungjoria and the Xerox copy of the voter list and Adhar Cards are filed herewith and marked as Annexures-12, 12 A and 12 C. Akashi Devi, mother-in-law of the petitioner is living in village Mungjoria and cultivating the land, which she got from her father since he has no male issue and his properties were divided between two sisters as his legal heir and legal representative. The mother-in-law of the petitioner applied for loan from the State Bank of India, Sonaramthadi Branch in which the Circle Officer has recommended for loan since she has got the share off land of their ancestors and the Xerox copy of the application is filed and marked as Annexure-13. The Government is realizing the rent from the mother-in-law for the land of Village Mungjoria and the mother-in-law is also paying the electricity Bill to the J.S.E.B. and the Xerox copies of the rent receipt, Telephone Bill, Electricity Bill are annexed and marked as Annexure-14 series.

9. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -

(i) The services of the petitioner has been illegally terminated vide impugned order dated 18.09.2008 on wrong premise. The Circle Officer has given Income Certificate as well as Caste Certificate in favour of the petitioner, wherein, she has been shown as resident of Village-Mungjori (Annexure-1 and Annexure-5 to the writ petition). The Identity card issued by the Election Commission of India clearly shows that the petitioner is a voter of Village Mungjori, District-Deoghar and the same is annexed as Annexure-6 to the writ petition. The husband and father in law of the petitioner have also been shown as Resident of Village Mungjori, District-Deoghar. The job card issued to the father in law of the petitioner namely Toofani Verma and the husband namely Binod Verma of the petitioner under the Centrally Sponsored Schemes clearly shows that the father in law of the petitioner is resident of Mungjori, Block Sarwan, District-Deoghar. The Transfer Certificate (Annexure-9 to the rejoinder) of the husband of the petitioner namely Binod Verma duly issued by the Head Master of Govt. High School, Sonaraitarhi, Deoghar also shows that the husband of the petitioner is a Resident of Village Mungjori, Deoghar and therefore, the petitioner who is wife of Binod Verma naturally and undoubtedly is resident of village Mungjori.

(ii) The impugned order is thoroughly non-speaking and cryptic order and hence, deserves to be quashed and set aside.

A non-speaking order cannot be converted into a reasoned order by way of counter affidavit. It ought to be kept in mind by the respondent State that the order especially for termination of services of the Government employee, who is serving since long, there must be a reasoned order. If the reasons are not given in the impugned order, it cannot be supplied in the counter affidavit, otherwise, all void, illegal and nonspeaking orders will be converted into valid and speaking orders. (v) It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC

405 in paragraph 8 as under:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.”

In view of the aforesaid decision also, a non speaking order remains a nonspeaking order, even reason has been given in the counter affidavit. If there is no show cause notice and no inquiry has been conducted and no opportunity of heard has been given to the petitioner, what are the complaints and what are the allegations was even not known to the petitioner, otherwise, the petitioner would have given reply of all these allegations.

10. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned order as contained in Office Order issued vide Memo No. 501 dated 18[th ]September, 2008, issued under the signature of the Deputy Development Commissioner, Deoghar, is hereby quashed and set aside and the respondents are directed to pass appropriate orders within a period of one month on the reinstatement of the petitioner, since in the meantime, eight years have elapsed, nothing has been brought to the notice of the Court of any new appointee. If any, new incumbent has been appointed in place of the petitioner, the respondents-authorities shall pass order after affording opportunity of hearing to the present incumbent in accordance of law.

11. With aforesaid observation and direction, the writ petition stands disposed of.

(Pramath Patnaik, J.)