- (1.) THIS writ petition seeks to challenge the selection of respondent no.5-Seema on the post of Aangan Bari Karyakarta made by the Gram Sabha. Contention of learned counsel for the petitioner is that petitioner was working as Aasha Sahayogini and normally the honorarium for such post is Rs.500 per month only, whereas the emoluments that are paid for Aangan Bari Karyakarta is more than Rs.3,000 per month. She has therefore applied for appointment on the post of Aangan Bari Karyakarta. She is a graduate with 51.38% marks in B.A. Examination, whereas respondent no.5 who has been appointed on that post is having only 43% marks in B.A. Examination. The Gram Sabha in the proceedings drawn on 29.03.2010 though recorded that the petitioner was better qualified, but did not select her only because she was already working on the post of Aasha Sahayogini. It is submitted that mere appointment of the petitioner on the post of Aasha Sahayogini does not make her disqualified for appointment to the post of Aangan Bari Karyakarta. Learned counsel referred to the guidelines contained in Circular of the Government dated 15.9.2003 especially Instruction no.6 thereof and argued that in that para, it is clearly mentioned that the candidate with higher educational qualification shall be preferred for appointment. Even though in the present case both the petitioner and respondent no.5 had the similar qualification of B.A., but when question arises of merit, the appointment should have been made on the basis of competitive merit of the marks secured by the candidate in the B.A. Examination.
(2.) SHRI H.C. Saini, learned counsel for the respondent no.5 has opposed the writ petition and argued that Instruction no.6 merely provides that candidate with higher educational qualification shall be preferred. In the present case, the educational qualification of both petitioner and respondent no.5 is similar and therefore merely because the petitioner had secured 51.38% as against 43% secured by respondent no.5, it cannot be treated as her higher educational qualification. Counsel submits that Gram Sabha has in its wisdom decided to select the respondent no.5 because she was unemployed, whereas the petitioner was employed as Aasha Sahayogini, therefore, the action of the Gram Sabha cannot be said to be unjust or otherwise illegal as it is guided by a certain instruction as per the Circular dated 15.9.2003. Shri Krishna Verma, learned Deputy Government Counsel opposed the writ petition and submitted that Gram Sabha has the discretion to select the candidate, who fulfills eligibility criteria and the respondent no.5 fulfilled all such criteria. She was a graduate like the petitioner and, therefore, it cannot be said that a person with lower educational qualification has been selected. On hearing learned counsel for the parties and perusing the material on record, I find that the basic qualification that has been indicated in the Circular of the Government dated 15.09.2003 is secondary school and in absence of secondary school, the candidate with eighth standard pass can also be selected. But when the candidate with higher educational qualification is available, according to those instructions, one who is having higher educational qualification shall be given preference. Although, it is true that in Instruction no.6 the phraseology used is 'higher educational qualification', but then in the case of conflict of merit and when there is no clear instruction in the situation like this, the respondent ought to have adopted the criteria of selecting someone with better merit. The respondents in the alternative could have given weightage to the marks secured in the secondary and senior secondary examination, but in the present case, appointment has been made only because the petitioner was working on the post of Aasha Sahayogini, but that does not mean that she has become disqualified to be selected on the post of Aangan Bari Karyakarta. However, the respondent no.5 could as well compete against the post of Aasha Sahayogini consequent upon selection of petitioner on Aangan Bari Karyakarta. In the circumstances, the selection of respondent no.5 cannot be sustained, which is accordingly declared illegal. The Gram Sabha shall, however, be entitled to undertake fresh selection on the post of Aangan Bari Karyakarta in accordance with law, which process be completed within three months from the date copy of this order is produced before them. The writ petition is accordingly allowed.;