1. Heard Sri Om Prakash Yadav, learned counsel for petitioners and learned State Counsel appearing on behalf of opposite parties.
2. Petition has been filed seeking quashing of order dated 31.10.2017 and for a direction to opposite parties to appoint petitioners on the post of Sahaiyka/Mini Anganbari Karyakatri according to their merit of selection ignoring the Government Order dated 04.09.2012.
3. Learned counsel for petitioners has submitted that an advertisement dated 13/16.05.2011 was issued for filling up of the aforesaid post in which petitioners were selected. However appointment orders were not issued in view of the Government Order dated 04.09.2012. Some of the selectees thereafter filed writ petition before this Curt which were disposed of taking a view that since selections had ensued prior to issuance of Government Order dated 04.09.2012, the same would not come in the way of grant of appointment to petitioners. Present petitioners had also filed Writ Petition No.27741 (SS) of 2016 (Seema Verma & Ors. Vs. State of U.P. & Ors.) which was disposed of by means of order dated 22.11.2016 in the light of the said decisions of this Court dated 03.03.2016 in which specifically held that since advertisement was dated prior to the issuance of Government Order dated 04.09.2012, as such the said Government Order being prospective in nature would not effect such selection. However the petition was disposed of with a direction to concerned authority to consider entitlement of petitioners for appointment on the post if there was no other legal impediment.
4. Learned counsel for petitioners submits that despite the aforesaid finding recorded by this Court and followed in order dated 22.11.2016, the representation preferred by petitioners has again been rejected vide impugned order on the same ground. Learned counsel for petitioners has also drawn attention to the order dated 09.08.2019 passed in Writ Petition No.21939 (SS) of 2019 (Tara Devi vs. State of U.P. & Ors.) in which also a similar controversy was being agitated. The order dated 09.08.2019 is reads as follows:
"Heard learned counsel for the petitioners and learned Standing Counsel.
At very outset, as it is relevant, it is to point out that it is settled principle that for judging the correctness of order, it is the contents of and reasons mentioned in order alone have to be seen. Vide Mohinder Singh Gill vs. Chief Election Commissioner (1979) 1 SCC 405. Similar view has been reiterated by the Hon'ble Apex Court in State Government, Hourless Harijan Employees vs. State of Karnataka, 2001 AIR SCW 27; Pavendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences, 2001 AIR SCW 4616; and Chandra Singh vs. State of Rajasthan, AIR 2003 SC 2889.
Keeping in view the above principles, contents of instruction spell out by the learned Standing Counsel, contents of order impugned dated 26.12.2017 as well as the judgments dated 01.11.2017 and 15.01.2014 (Annexure No.5 and 6 to the writ petition) and averments made in the writ petition supported by documents this Court is of the view that writ petition should not be kept pending and with consent of parties, Court proceeds to decide the writ petition finally.
By means of the present writ petition, the petitioner has challenged the order dated 26.12.2017 (Annexure-1 to the Writ Petition) on the ground to the effect that the rejection of claim of the petitioner with respect to the appointment on the post of Aanganwadi Karyakatri, on the basis of Government Order dated 04.09.2012 is not sustainable, as the issue with respect to impact of the Government Order dated 04.09.2012 has already been settled by this Court in the judgment dated 24.02.2016 passed in Writ Petition No.7123 (SS) of 2015 (Smt. Sarita Versus State of U.P. Thru. Prin. Secy. Bal Vikas Evam Pushtahar & Ors.), according to which the Government Order dated 04.0.2012 is prospective and cannot be applied retrospectively.
The facts as stated in the writ petition are that in pursuance to the advertisement/notification dated 13.05.2011, issued for the purposes of selection and appointment on the post of Aanganwadi Karyakatri, the petitioner applied and, thereafter, selections was held for the said post on 17.06.2011 and a select list was prepared and in the select list, the name of the petitioner finds place at serial No.2 and because of cancellation of income certificate the candidature of candidate at serial No.1 was cancelled and consequently the petitioner became entitled for appointment on the post of Aanganwadi Karyakatri.
On account of inaction of the opposite parties in providing the appointment, the petitioner approached this Court by means of Writ Petition No.808 (SS) of 2013 and the said writ petition was disposed of by the judgment and order dated 01.11.2017. The judgment of 01.11.2017 reads as under:-
"Learned counsel for petitioners, learned Standing Counsel and learned counsels of other opposite parties agree that controversy involved in abovenoted Writ Petitions is squarely covered by Judgment and order dated 24th February, 2016, passed in Writ Petition No. 7123 (S/S) of 2015, Smt. Sarita Versus State of U.P. Thru. Prin. Secy. Bal Vikas Evam Pushtahar & Ors. Order dated 24th February, 2016 reads as under :-
"Heard learned counsel for the parties.
The petitioner herein claims to be selected on the post of Aanganwadi Karyakatri in pursuance to the advertisement dated 13.05.2011. It is submitted that the said advertisement was not given effect to on account of ban imposed vide Government order dated 04.09.2012. However, the aforesaid Government order was challenged earlier by means of various writ petitions filed by similarly situated persons and in Writ petition No.11551 of 2013( Smt. Gyanwati vs. State of U.P. and others) it was held that the said Government order will not apply to the said selection which was made prior to issuance of the said Government order and the matter is pending for approval of appointment before the District Magistrate. The Government order will apply on the selection to be held after its issuance. The said judgment was followed by this Court in another Writ Petition No. 6245 (SS) of 2013 (Pramila Yadav and two others vs. Principal Secretary Bal Vikas Evam Pushtahar U.P. and others) and other connected writ petitions decided on 15.01.2014 wherein a direction was issued for considering the claim of the petitioner therein for appointment on the post in question in respective Gram Panchayats in the light of the selection made prior to issuance of the Government order dated 04.09.2012 and the advertisement impugned therein was quashed. The petitioner herein claims the benefit of the aforesaid judgment.
The instructions received by the learned standing counsel are not satisfactory and complete.
Considering the aforesaid facts, without adjudicating the claim of the petitioner on merits, the writ petition is disposed of with liberty to the petitioner to submit a representation before the District Magistrate, Ambedkar Nagar raising his claim for appointment as aforesaid who may look into the matter as per the relevant Rules and pronouncements referred to hereinabove and take a decision thereon within a period of six weeks from the date a certified copy of this order is produced before him. The benefit of this order shall be available to the petitioner only if the posts have not already been re-advertised and filled up i.e. the same are still vacant and the petitioner is similarly situated to the petitioners of the writ petition referred to hereinabove.
The writ petition is disposed of in the aforesaid terms."
Hence, all above writ petitions are also disposed of in terms of order dated 24-02-2016 passed in Writ Petition No. 7123(S/S) of 2015. Petitioners of these writ petitions shall also be entitled for beneifts as provided by order dated 24-02-2016."
The submission of the learned counsel for the petitioner is that the opposite party No.2/District Magistrate, Ambedkar Nagar has in fact not consider the observations and directions made in the judgment dated 01.11.2017, which in fact are based on the judgment dated 24.02.2016 and according to the same, the Government Order dated 04.09.2012 would not be applicable on the selection held prior to issuance of Government Order, and in the impugned order the reliance has been placed on Government Order dated 04.09.2012 although the selection was made prior to Government Order dated 04.09.2012 and accordingly, the impugned order dated 26.12.2007 is unsustainable and liable to be interfered by this Court.
It reveals from the judgment dated? 01.11.2017 and 24.02.2016 that the ban was imposed vide Government Order dated 04.09.2012 would not affect in any way, if the selection has been made prior to the ban imposed by the Government Order dated 04.09.2012.
In the present case admittedly the selection was made prior to issuance of Government Order dated 04.09.2012, whereby ban was imposed on appointment, and being so the said Government Order ought not to have relied upon in rejecting the candidature of petitioners.
Learned counsel for the petitioner also placed the order of appointment of Smt. Chandrakala wife of Sunil Kumar resident of Husenpur Girant, District-Ambedkar Nagar issue by Bal Vikash Pariyojana Adhikari Baskhari, District-Ambedkar Nagar/opposite party No.5 dated 20.11.2018 and on the basis of the order of appointment, the submission of the learned counsel for the petitioner is that the petitioner and Smt. Chandrakala both are similarly situated and name of both the candidates find place in the select list prepared and signed by opposite party No.5 and thus the order dated 26.12.2018 being violative to Article 14 of the Constitution of India is unsustainable. The said select list is on record as Annexure No.7 to the writ petition.
It is evident from the said select list that the name of petitioner finds place at serial No.2 and the name of Smt. Chandrakala appears at serial No.8. It is clear that both the candidates namely Geeta Devi (petitioner) and Smt. Chandrakala are similarly situated, both names find place, in the same select list and in the case of petitioner her candidature has been rejected vide order dated 26.12.2017 and in the case of Smt. Chandrakala, she has been appointed on the post of Aanganwadi Karyakatri.
This approach of the opposite party is unconstitutional as well as arbitrary. Moreover, the opposite party No.3 has completely ignored the observations and directions made in the judgment dated 01.11.2017 passed in the writ petition (filed by the petitioner) No. 808 of 2013.
Considering the entirety of the fact, the order dated 26.12.2017 is liable to be interfered by this Court and accordingly, the impugned order dated 26.12.2017 is quashed.
The matter is remanded back to the opposite party No.4 for reconsidering the matter of the petitioner in the light of observations made hereinabove and the above referred judgments by reasoned and speaking order. The exercise be completed within one month from the date of production of certified copy of this order.
The writ petition is disposed of. "
5. A perusal of impugned order clearly indicates that the same has been passed contrary to directions issued by this Court dated 22.11.2016 in the writ petition filed by petitioners earlier. Once this Court has already held that Government Order dated 04.09.2012 would be inapplicable in the case of petitioners who had applied in pursuance of preceding advertisement issued in 2011, it was not open to opposite parties to have recorded a converse finding.
6. In view of aforesaid, the petition is being disposed of at the admission stage itself by issuance a writ in the nature of certiorari quashing the order dated 31.10.2017. Opposite party no.5 i.e. Child Development Project Officer, Bal Vikas Pariyojana Tanda, Ambedkar Nagar is directed to reconsider the matter in the light of observations made hereinabove and the observations made in the order dated 09.08.2019 in the case of Tara Devi (supra). Petitioners are granting liberty to file fresh representation before opposite party no.5, i.e. Child Development Project Officer, Bal Vikas Pariyojana Tanda, Ambedkar Nagar along with copy of this order. In case such representation is made, the same is to be decided by speaking and reasoned order within a period of four weeks from date a copy of this order is produced before the said opposite party who shall keep in mind the observations made hereinabove as well as in the order dated 09.08.2019 in the case of Tara Devi (supra.).
7. In view of aforesaid, the petition stands disposed of.
Order Date :- 26.11.2019 Subodh/-