@JUDGMENTTAG-ORDER
Shri Anand Pathak, J.—The present writ petition under Article 226 & 227 of the Constitution of India has been filed by the petitioner challenging the order dated 18/01/2011 (Annexure P/1) passed by the Commissioner, Chambal Division, Morena in case No.18/2010-2011/Appeal (vk0ck0) as well as the order dated 30/10/2010 passed by the Additional Collector, District Morena in case No.109/2009-10/Appeal.
2. The matter pertains to appointment of petitioner on the post of Anganwadi Worker at Anganwadi center, Ratanpura, Tehsil, Porsa, District Morena.
3. The respondents/State has earlier issued guidelines dated 10/07/2007 (Annexure P/7) in respect of selection and appointment of Anganwadi Workers and Assistant in the State of Madhya Pradesh. The said scheme under Clause v-1 provided the essential qualifications for appointment of an Anganwadi Worker. As per the said guidelines, the minimum qualification prescribed for an Anganwadi worker in the urban and rural areas is Higher Secondary (10+2 Board or 11th passed). As per Clause v-2 of the said guidelines, the total marks to be awarded to a candidate is 100 marks while determining the merit list. The additional qualification or the circumstances as contemplated in the said clause prescribed different marks for different circumstances/exigencies like; if a candidate is a graduate then he would get 10 marks and if a candidate is a member of family belonging to below poverty line then he would get 10 additional marks. In other words, minimum educational qualification of 12th class was prescribed for the post of Anganwadi Worker and additional qualifications as prescribed contain additional marks.
4. As per the said guidelines, advertisement was issued on 6th August, 2009 (Annexure P/6) in a newspaper for appointment of Anganwadi Worker and Assistant for which 17/08/2009 was prescribed as last date for submission of the application forms. In response to the said advertisement, petitioner and respondent No.2 have applied for the post of Anganwadi Worker however, at that time the petitioner possessed the degree of B.A. IInd year but before last date of submission of application form i.e. 17/08/2009, an important development has taken place in the form of declaration of result of B.A. final year pertaining to the petitioner on 14/08/2009. The relevant document in respect of declaration of result has been placed by the petitioner as part of Annexure P/3 at page 17. Therefore, as per the said guidelines, according to the counsel for the petitioner, the petitioner became entitled for getting additional 10 marks for being a graduate.
5. The Project Officer, Integrated Child Development Services (ICDS), Porsa District-Morena had declared provisional result vide Annexure P/8, wherein respondent No.2 stood at S.No.1 in the merit list with 45.30 marks wheres, petitioner stood at S.No.5 with 36.90 marks but because of the fact that petitioner has attained graduation on 14/08/2009 before last date of submission of the application form i.e., 17/08/2009, therefore, she represented before the District Level Committee constituted as per the guidelines of the State apprising them about her status as graduate . The said committee, on due scrutiny found submissions of the petitioner (in respect of declaration of her result of B.A. final year on 14/08/2009) worth consideration. Thereafter, the Project Officer, ICDS had issued the appointment order to the petitioner on 20/04/2010 (Annexure P/10).
6. The said order of appointment was put to challenge by respondent No.2 by way of filing the appeal before the Collector, District-Morena and the Collector has passed the impugned order dated 30/10/2010 (Annexure P/2) setting aside the appointment of the petitioner and directing to appoint respondent No.2 in place of petitioner on the post of Anganwadi Worker.
7. Being aggrieved by the said order, petitioner preferred an appeal before the Commissioner, Chambal Division, District-Morena. The Commissioner while considering the contention of the petitioner has passed an interim order dated 08/11/2010 (Annexure P/11) and granted stay over the order of the Collector, impliedly the petitioner was allowed to continue to work on the post of Anganwadi Worker. Later on, after hearing both the parties, final order has been passed on 18/01/2011 (Annexure P/1) wherein the Commissioner, Chambal Division has rejected the appeal preferred by the petitioner and affirmed the order dated 30/10/2010 passed by the Collector, District-Morena.
8. The impugned orders have been passed mainly on two grounds; First, she did not possess the qualification of graduation at the time of submission of her form and secondly, on the ground that petitioner does not belong to family below poverty line (BPL card holder).
9. Being aggrieved by the same, the petitioner has approached this Court seeking quashment of the order dated 30/10/2010 passed by the Collector, District-Morena and order dated 18/01/2011 passed by the Commissioner, Chambal Division, District-Morena.
10. According to counsel for the petitioner, although the petitioner has submitted the application form before 14/08/2009 but immediately after submission of her form, result of B.A. final has been declared and therefore, she became entitled to be called and considered as graduate before 17/08/2009 and also became entitled to receive 10 additional marks for being a graduate. However, mark-sheet of B.A. final was received by the petitioner on 19/08/2009. If the additional 10 marks would has been added in the total marks received by the petitioner then she would has been rose to S.No.1 in the merit list with 46.30 marks and would have been entitled for the post of Anganwadi Worker. According to the petitioner, in fact the District Level Committee had earlier found her as a graduate and had awarded 10 additional marks in her total marks thus, rightly revised the list and placed the petitioner at S.No.1 in the merit list, but the same was changed by the authorities in impugned orders.
11. It is submitted by learned counsel for the petitioner that the petitioner has submitted her Ration Card (Antodaya Ration Card, 2003) along with the rejoinder (Annexure P/13) wherein the details of the family including name of petitioner finds place. The said rejoinder was not replied by respondents by way of filing additional return thus, submissions of the petitioner went un-rebutted in respect of her status as a member of the family living below poverty line (BPL Card holder). Once the ration card has been issued by the same office/authority then they cannot doubt her status as BPL card holder.
12. Petitioner relied upon the judgments rendered by the Hon''ble Supreme Court in the matter of Bhupenderpal Singh & Ors. v. State of Punjab & Ors. as reported in 2000 (4) Supreme 645 and in the matter of Mohd. Sartaj and Another v. State of U.P. and Others as reported in 2006 (2) SCC 315.
13. Per contra, respondent/State have filed reply and contested the case of the petitioner on the ground that at the time of filing of the application form, petitioner was not a graduate and therefore, she could not be considered and treated as graduate. The District Level Committee although, earlier entertained the objection of the petitioner, which was not in its domain therefore, the recommendation of the District Level Committee was rightly turned down by the Collector, District-Morena in the impugned order, subsequently, affirmed by the Commissioner, Chambal Division.
14. Respondent No.2/contesting respondent while filing the reply, has drawn the attention of this Court to the application form filled by the petitioner (Annexure R-2/II), which according to counsel for respondent No.2 nowhere indicates that the petitioner is a graduate. Therefore, according to respondent No.2, petitioner cannot be treated as graduate, as the application form dated 12/08/2009 does not contain the particulars of B.A. final or graduation of the petitioner. Respondent No.2 raises the ground that the mark-sheet has been issued to the petitioner on 19/08/2009 i.e., two days after the cut-off date of submission of the form (17/08/2009), therefore, the qualification of the petitioner has to be construed from the date of issuance of mark-sheet and earlier declaration of the result on 14/08/2009 (even if it is declared) does not entitle the petitioner to be treated as graduate. Further submission of the respondent No.2 is that the charge of the post of Anganwadi Worker has been handed over to respondent No.2 by the petitioner herself and therefore, respondent No.2 is working at present on the said post hence the interim order dated 08/11/2010 has no significance.
15. Respondent No.2 has also doubted the status of the petitioner as member of the family living below poverty line because according to her, the Tahsildar has cancelled the Ration Card of the petitioner at the time of consideration of her selection.
16. Learned counsel for respondent No.2 relied upon the order dated 15/01/2009 passed by this Court in W.P. No. 3187 of 2008 (Reena Tomar v. State of M.P. and Others) seeking parity viz-a-viz her case.
17. Heard counsel for the parties and perused the record.
18. It is an admitted fact that the advertisement of appointment of Anganwadi Workers was issued on 04/08/2009 wherein last date for submission of the form was prescribed as 17/08/2009. The allocation of marks for additional qualification was also prescribed in the guidelines. Perusal of same makes it clear that 10 marks were to be awarded to a candidate who happened to be a graduate and 10 marks were to be awarded to a candidate belonging to a family living below poverty line. As far as, question of petitioner as member of family living below poverty line is concerned, the petitioner has annexed Annexure P/13 with the rejoinder (Ration Card) which shows the status of petitioner as member of family possessing BPL card. If the petitioner did not belong to a family below poverty line, then how ration card (Annexure P/13) for a family living below poverty line has been issued in the year 2013, was not addressed by authorities while passing the impugned order.
19. No documents or pleadings in rebuttal of the same has been preferred by respondent/State or by the contesting respondent No.2. In absence of any rebuttal, the same has taken to be admitted, therefore, no ground remains in respect of authenticity of the petitioner as member of BPL card holder and 10 additional marks cannot be excluded for the same.
20. The core question involved in the present case is; Whether 10 marks can be awarded to the petitioner for her graduation (B.A.) in the present facts and circumstances of the case or not ?
21. The last date of submission of application form was 17/08/2009 whereas advertisement was issued on 04/08/2009. Responding to the said advertisement petitioner has applied on 12/08/2009 and showed her educational qualification as B.A. IInd year as she rightly mentioned so because on 12/08/2009, she was not a graduate and on the said date, her result of B.A. final has not been declared. Soon after filing of her application form on 12/08/2009 but certainly before 17/08/2009 her result has been declared on 14/08/2009 wherein she got successful in passing B.A. final, elevating her status as a graduate. Even otherwise, mark-sheet was received by the petitioner on 19/08/2009 i.e., two days after the last date of submission of form but certainly before selection. The guidelines (Annexure P/7) nowhere prescribed the last date for such exigencies.
22. Here in the present case, the petitioner held qualification of B.A. before the cut off date of submission of the application form. Even otherwise, her mark-sheet has been issued on 19/08/2009, a date much before consideration for selection therefore, she was validly possessing the graduation degree at the time of selection or at the time of consideration for selection.
23. The question whether the candidate must have prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res integra. In the catena of the decisions, the Hon''ble Supreme Court has held that the candidate must possess the mandatory qualifications on the particular date specified in the Rule or the advertisement.
24. The Hon''ble Supreme Court in the matter of Bhupinderpal Singh & Ors. v. State of Punjab & Ors. as reported in 2000 (4) supreme 645 has held that eligibility qualification for selection/appointment of the post should be determined on the last date/cut-off date of receiving application.
25. The question raised in this controversy is also available in the judgment rendered by the Hon''ble Supreme Court in the case of Shankar K. Mandal and Others v. State of Bihar and Others as reported in (2003) 9 SCC 519. After relying upon the earlier judgment of the Supreme Court in the case of Ashok Kumar Sharma v. Chander Shekhar as reported in (1997) 4 SCC 18, Bhupinderpal Singh v. State of Punjab as reported in (2000) 5 SCC 262, Jasbir Rani v. State of Punjab as reported in (2002) 1 SCC 124 and in the matter of Alka Ojha v. Rajasthan Public Service Commission as reported in (2011) 9 SCC 445, it is laid down by the Supreme Court, that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. Thereafter, it is stated that if there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. Finally, it is laid down by the Supreme Court that if there is no such date appointed either in the recruitment rules or in the advertisement then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
26. The Coordinate Bench of this Court in the matter of Ashish Singh v. State of M.P. and Others as reported in 2011 (2) MPLJ 324 has also taken the same view.
27. The aforesaid three principles as laid down by the Supreme Court for determining the cut-off date and if the aforesaid principles are applied in the present case, it would be seen that neither in the policy nor in the advertisement the cut-off date is appointed.
28. That being so, the cut-off date has to be determined as last date by which applications were to be received by the competent authority and the said date would be 17/08/2009 as is evident from the advertisement and if that be so then on 17/08/2009, the petitioner was a graduate because her result of B.A. final has been declared on 14/08/2009.
29. In the present case, the mandatory/prescribed qualification in respect of educational qualification was Higher Secondary which petitioner already possessed on the last date of submission of application form therefore, the petitioner possess the mandatory qualification as on 17/08/2009. Only question in respect of additional qualification remains in the present case because the petitioner is seeking the help of her graduation degree for getting 10 additional marks. From the result of the petitioner, once it is established that she passed the B.A. final then, she is entitled to be treated as a graduate and to get the benefit of graduation by way of additional 10 marks, as on 17/08/2009.
30. The grant/conferral of degree is procedural or ministerial work. The substantive right has accrued to the petitioner once the result has been declared on 14/08/2009 and that result proved to be genuine one. It is not the case of the respondents that petitioner did not qualify B.A. final, or the result declared on 14/08/2009 pertaining to the petitioner was false or misstatement. In absence of such exigency, it is established that petitioner acquired qualification before the last date of submission of application.
31. Even otherwise, the petitioner stood as more educationally qualified and meritorious then respondent No.2 because of her graduation degree, therefore, her efforts to be more educated cannot be sacrificed at the alter of non-justifiable grounds.
32. The purpose of issuing provisional list itself suggest that no irregularity may creep in the selection procedure and no prejudice may cause to any candidate.
33. Another aspect needs consideration is that once the order of stay dated 08/11/2010 has been passed by the Commissioner, Chambal Division, Morena, in the appeal preferred by the petitioner, then instead of allowing petitioner to continue to work, respondent/State has acted arbitrarily in taking the charge from the petitioner on 11/11/2010 and handed it over to respondent No.2. The said act of the respondents/State is in violation of the stay order granted by the Commissioner, Chambal Division, District Morena as appellate authority.
34. The judgment relied upon by respondent No.2 does not help the cause of respondent No.2 in any manner. The said judgment operates in different factual realm.
35. Thus, in totality of the circumstances, the petitioner succeeds and the writ petition is hereby allowed. The impugned order dated 18/01/2011 (Annexure P/1) passed by the Commissioner, Chambal Division, Morena in case No.18/2010-2011/Appeal (vk0ck0) as well as the order dated 30/10/2010 passed by the Additional Collector, District Morena in case No.109/2009-10/Appeal are hereby set aside.
36. Respondents are directed to reinstate/reappoint the petitioner on the post of Anganwadi Worker while removing respondent No.2 from the said post.
37. No order as to costs.
