Divisional Commissioner Does Not Have Jurisdiction To Set Aside Appointment Of Anganwadi Sevika, Recommended By Committee Under ICDS Scheme: Bombay HC (FB) [Read Judgment]

Justices SV Gangapurwala, RV Ghuge and AS Kilor of Aurangabad bench answered the issue before them after a Single bench framed the said issue in a judgement dated January 20, 2012 and sought reference to a larger bench by the Chief Justice.

Case Background

The writ petition was filed by 27-year-old Sangita Gadilkar, who was appointed Anganwadi Sevika pursuant to the applications invited by a Child Development Project Officer under the Integrated Child Development Scheme (ICD Scheme), Parner taluka, Ahmednagar district.

Thereafter, Sunita Adhav, who is respondent no.5 in Sangita's petition, raised a grievance before the Divisional Commissioner, Nashik on September 19,2009 challenging Sangita's appointment on the ground that she herself was working in a Balwadi in a village for about four years and she was eligible to be given a preference in appointment by virtue of the Government Resolution dated March 12, 2008. Another ground raised was that the petitioner did not belong to village Majampur, taluka Parner, District Ahmednagar and was not eligible to be appointed. The Divisional Commissioner allowed the appeal and set aside the petitioner's selection with a further direction to conduct a fresh selection process.

The petitioner had challenged Divisional Commissioner's decision dated May 31, 2010 before the High Court and interim relief was granted by judgment dated February 11, 2011, wherein the impugned order dated May 31, 2010 was quashed and set aside and the matter was remitted for a rehearing before the same Commissioner. The said authority was directed to decide whether, it had the power to entertain an appeal under Section 267­A of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

In an order dated May 25, 2011, the Divisional Commissioner allowed the appeal holding that under Section 267A of the said Act he had power and such an appeal was maintainable before him in view of in view of clause 5 of the Government Resolution dated August 5, 2010.

Thus, the petitioner filed a writ petition challenging the Divisional Commissioner's decision which came up before a single judge of the High Court.

Judgement

Petitioner's contention before the single judge was that clause 5 of the Government Resolution dated August 5, 2010 provides for the remedy to raise a grievance against the selection of an Anganwadi Sevika, before the Chief Executive Officer of the concerned Zilla Parishad and not before the Divisional Commissioner.

The Single Judge then relied upon an order dated July 31, 2007 delivered by the Division Bench of Bombay High Court in Shalu Deepak Bachhav vs State of Maharashtra and others and connected a group of writ petitions. While concluding that Divisional Commissioner does not have the power to invoke Section 267­A, the Single Judge referred to the view taken by Division Bench in Shalu Deepak.

Section 267A pertains to Commissioner's powers of suspending the execution of an unlawful order or resolution of the Zilla Parishad or the Panchayat Samiti. It is in public interest that the Commissioner can suspend the execution of any order or resolution or prohibit the doing of any act by the Zilla Parishad or it's Committee or the Panchayat Samiti, only if he concludes that the same is unlawful or is inconsistent with the instructions or directions given or issued under Section 261(1) of the said Act.

After examining the GR dated August 31, 1999, and subsequent GR dated November 11, 1999 the full bench concluded the following-

(a) There is no appointment order issued by the Zilla Parishad to the Anganwadi Sevika/ Madatnis.

(b) The eight members committee prescribed by the Government Resolution dated 11.11.1999, is the appointing authority of the Anganwadi Sevika/ Madatnis. Their appointments are not on any permanent vacant posts and are purely honorary.

(c) The committee constituted for selecting such candidates, issues the order of appointment through the Child Development Officer, for and on behalf of the committee.

(d) There is no question of the Zilla Parishad taking a decision to appoint or pass a resolution to appoint an Anganwadi Sevika/Madatnis.

(e) As there is no order issued or resolution passed by the Zilla Parishad, Section 267­A of the said Act, notwithstanding Section 261(1), would not be attracted.

"Considering the above, we are of the view that the Divisional Commissioner cannot exercise the powers under Section 267­A of the said Act for suspending or interfering with any order of appointment of an Anganwadi Sevika or Madatnis issued by the selection committee through the Child Development Project Officer."

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