Saurabh Shyam Shamshery, J. - (1.) Heard Sri Manoj Kumar Pandey learned counsel for the petitioner, Sri R.N.Yadav Standing Counsel for the State of U.P. and Sri Satya Prakash Mishra, learned counsel for the private respondent No 5.
(2.) Succinctly, the facts of the present case which led to filing of the present petition for writ by the petitioner run as under: (a) The State Government of Uttar Pradesh in order to promote primary education and to make institutional awareness in rural as well as in urban areas has enunciated a scheme namely "Bal Vikas Seva Evam Pushtahar" under the Anganbari Programme. (b) Petitioner who possessed qualification of High School, Intermediate and Graduate (BA) was appointed in the year 2003 as "Anganbari Sahayika" at Anganbari Centre in Tamauli, District Azamgarh. She belonged to APL (Above Poverty Line) category. (C ) Respondent no 5, who possessed qualification of only High School and belonged to BPL (below poverty line) category was also appointed as "Anganbari Sahayika at Anganbari Centre in Tamauli, District Azamgarh in the year 2006. It brooks no dispute that the petitioner was appointed prior in point of time and also possessed higher qualification vis a vis the respondent no 5. (d) An advertisement dated 13.1.2011 and subsequently dated 1.11.2012 was published by the respondent Department for the selection of newly created post of Anganbari Karya Karti and Sahayika. (e) Meanwhile respondent no. 6 and others had approached this Court by way of filing Writ A No 29608 of 2011 (Smt Sangeeta Yadav and others Vs State of U.P. And others) as their claims for promotion to the post of Anganbari Karyakatri were rejected vide order dated 9.5.2011. The said writ petition came to be allowed under order dated 8.10.2013. The relevant paras 3 and 4 of the said order is quoted below for ready reference. "3. I find substance in the submission that if there are 41 vacancies of Anganbari Karyakatri, 25 per cent thereof are liable to be filled in by promotion from amongst Angan bari Sahayika. 4. IN view of above, writ petition is allowed. Impugned order dated 9.5.2011 (Annexure 5 to the writ petition) is hereby quashed. Competent authority is directed to re-consider the available vacancies and also entitlement of petitioners for promotion as per Government Order dated 6.12.2006 as amended, modified, or clarified subsequently by different orders, as the case may be, in accordance with law within one month from the date of production of certified copy of the order." (f) After the order dated 8.10.2013, the respondent no 5 was appointed as Anganbari Karyakatri at Anganbari Kendra Tamauli by order dated 31.1.2014 on contractual basis. g) Being aggrieved by the appointment of Respondent No 5 as "Karyakatri" the petitioner filed Writ A No 21050 of 2014 (Smt Vidya Devi Vs State of U.P. And 4 others) on the ground that despite she being eligible, more qualified and senior to respondent no 5, she was not promoted to the post of Karyakatri and in her place, the respondent no 5 was wrongly appointed. (h) The said writ petition culminated in being disposed of under order dated 8.12.2015 passed by this Court. The relevant part of the order is quoted below for ready reference. "Under the circumstances, I find substance in the submissions of the learned counsel for the petitioner that the petitioner has been illegally deprived by the State-respondents for promotion on the post of Anganbari Karyakatri in terms of the Government Order dated 6.12.2006. In view of the above discussions, this writ petition is disposed of with a direction to the respondent no.2 to decide the claim of the petitioner for promotion on the post of Anganbari Karyakatri at Tamauli Centre in terms of the Government Order dated 6.12.2006, in accordance with law, expeditiously preferably within a period of six weeks from the date of presentation of a certified copy of this order, after affording opportunity of hearing to the petitioner as well as the respondent no.5. It is further directed that if the petitioner is found entitled for promotion/appointment on the post of Anganbari Karyakatri, then she shall be appointed in place of respondent No.5. The order of promotion passed by State-respondent in favour of respondent no.5 shall abide by the decision to be taken by respondent no.2 pursuant to the directions aforementioned. The writ petition is disposed of with the aforesaid directions. " (I)In pursuance of order dated 8.12.2015, the District Magistrate, Azamgarh considered the representation of the petitioner. However, the same was rejected by order dated 25.1.2016. The relevant part of the order is quoted below for ready reference. (j)The said order dated 25.1.2016 is impugned in the present petition for writ. The relevant prayers made in the petition are as follows: (I)a writ, order or direction in the nature of certiorari to quash the impugned order dated 22.1.2016 passed by respondent no 2. (II)a writ, order or direction in the nature of mandamus commanding and directing the respondent no 2 to promote the Petitioner on the post of Agan Bari Karyakatri at any appropriate centre under 25% quota as provided in the government order dated 6.12.2006. (III)a writ, order or direction in the nature of mandamus commanding and directing the respondent no 2 to promote the petitioner as Agan Bari Karyakatri in village Tamauli, Block Palhani, District Azamgarh in place of Respondent no 5.
(3.) The relevant Government Orders which prescribed procedure for selection of posts in question are as follows; (I) Government order dated 16.12.2003. This order provides selection procedure for appointment of Anganbari Karyakatri/Sahayika. Minimum educational qualification for appointment of Anganbari Karyakatri was High School, and for Anganbari Sahayika was class V pass. However for Anganbari Sahayika, preference would be given to women who are class VIII pass. This GO further provides that priority would be given amongst the women possessing minimum qualification, firstly to widow women, secondly to divorced women, thirdly to women living below poverty line,fourthly to woman living above poverty line. However, all should be resident of village where appointment has to be made. The GO also provides procedure to determine merit and about constitution of selection committee. (ii) Government order dated 6.12.2006: This GO provides that 25 percent of post of Anganbari Karyakatri would be reserved for such Sahayikayon who have completed five years of satisfactory service and who possessed required minimum educational qualification of High School as prescribed for Anganbari Karya Karti and they have not completed age of 50 years. (iii) Government Order dated 4.9.2012: This GO has been issued in supersession of all earlier GOs issued on the subject. According to this GO, preference should be given firstly amongst the Sahayika already working and having minimum educational qualification (High School) and having completed five years as Sahayika; secondly, women from BPL, thirdly widow women belonging to BPL, fourthly divorced women belonging to BPL. The GO further provides that in case there are more than one candidate in one criteria, then a merit list has to be prepared as prescribed in clause 5 of the said GO. Clause 6 of the GO provides constitution of Selection Committee.;