Judgment:
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 1 and 2 to permit the petitioner to join duty as Child Welfare Worker as per the order of appointment issued by the first respondent in Na.Ka.No.255/A1/2007, dated 14.9.2007.
ORDER
1. The petitioner has filed the present writ petition seeking for a direction to the respondents to permit her to rejoin duty as a Child Welfare Worker as per the order of appointment issued by the first respondent on 14.9.2007.
2. The writ petition was admitted on 22.11.2007. On notice from this court, the second respondent has filed a counter affidavit, dated 8.3.2012 and an additional counter affidavit, dated 16.4.2012. This court by an order dated 15.3.2012 had directed the original records to be produced. Accordingly, original records were produced and perused by this court.
3. It is seen from the records that an order of appointment, dated 14.9.2007 was given by the Dharmapuri District Collector appointing several persons as Child Welfare Workers in various centres. The name of the petitioner was found a place in Serial No.4 as Mrs.R.Sathya, W/o.Ramanathan having been appointed on temporary basis in the Kovilur Senrayanhalli centre (Kovilur Panchayat) in the same panchayat on the basis of the seniority. Subsequently, by an order dated 06.10.2007, it was informed that when the original certificate of the petitioner was examined, it was found that she was younger to one Kalaivani, W/o.Arumugam. Therefore, an amended order was issued.
4. According to the said Kalaivani, the third respondent herein, she sent a representation to the District Collector stating that when an interview was conducted, she found that the petitioner was younger to her in age. Therefore, she should be given preference in the employment. Pursuant to the direction issued by the District Collector, the petitioner as well as the third respondent was asked to come for an hearing along with records. Accordingly, they had appeared. According to the petitioner, her date of birth was 19.3.1985 and that the date of birth of the third respondent was 12.4.1984, i.e., she is 11 months younger to the third respondent. It is based upon this, the third respondent was selected.
5. In the counter affidavit filed by the Child Development Project Officer, Karimangalam, in paragraphs 8 and 11 it was averred as follows :
8.I submit that the first respondent respectfully submits that the petitioner was appointed by this office by virtue of the letter Na Ka No.255/A1/07 dated 14.08.2007 is correct. But after the appointment I received the complaint from Mrs.Kalaivani that she is senior by age (D.O.B. 12.04.1984) that the petitioner Mrs.Sathya (D.O.B. 19.03.1985) both petitioner and Mrs.Kalaivani are residing in the same village namely Poonarthanahalli. But as per age the petitioner is junior to Kalaivani.
11. I respectfully submitted that before ever the District Collector cancelled the appointment order of the petitioner the District Programme Officer ICDS had by his letter Na.Ka.no.255/A1/07 dated 04.10.2007 had directed the petitioner complainant Kalaivani to appear before the District Programme Officer, Dharmapuri on 08.10.2007 and produced their merits and testimonials to decide the suitable candidates for said post for Anganwadi worker both the petitioner and complainant Kalaivani appeared before District Programme Officer 08.10.2007 in perseverance of letter sent by District Programme Officer both Sathya and Kalaivani appeared on 08.10.2007 before District Programme Officer Dharmapuri and comparative merits were enquired and finally it was decided to appointment Kalaivani for the Anganwadi Worker post instead of Sathya. Since Kalaivani was found to be elder in age that Sathya by all these events Sathya very well known why her appointment order was cancelled and why she was not allowed to join the duty.
6. In the additional counter affidavit, it was stated that they were unable to find out whether the third respondent had attended the original interview as the booklet was misplaced since their office was shifted to some other place. Having filed the additional counter affidavit stating that the original file was missing, after the judgment was reserved, a printed notebook in which an entry was made for the first time was circulated before this court, in which it was shown that the third respondent had also attended the interview on the relevant date in the centre at Karimangalam. But the original file sent to the District Collector containing the names of persons who had attended the interview showed that the name of Kalaivani was found missing, thereby giving room to a doubt that she never attended the interview and subsequent to the interview she had sent a representation. In fact, at page 267 of the file, the proceedings of the District Collector showed that after getting permission from the District Collector, an interview was conducted on 03.10.2007 and in which case, the name of Kalaivani, i.e., the third respondent, was found the first place. It was stated that she belonged to the next panchayat, i.e., Bickanahalli Panchayat. In fact, the letter sent by the third respondent does not even refer to any complaint made by the third respondent. On the contrary, a verification of the original records allegedly led to the District Collector to find out that the third respondent was older than the petitioner. Therefore, the ICDS Project Officer was allowed to conduct and enquiry with the petitioner. This give room to a further doubt whether Kalaivani had ever attended the interview on the relevant date. If she had not attended the interview, the question of the subsequent interview or enquiry or selection of third respondent will not arise.
7. The question of giving preference should have been considered at the time when the panel had recommended the name. Obviously the petitioners name was recommended and not the name of the third respondent. Therefore, the question of reviewing the said order subsequent to the completion of the interview and appointment being made in favour of the petitioner will not arise. The entire exercise of the respondent smacks the foul play and this court cannot be a party to such an attempt made by the first and second respondents to manipulate the records so as to select the third respondent as an eligible candidate especially when she had not attended the interview. There is no preference given in respect of the age of the candidate.
8. In the absence of the power of review, the appointing authority cannot review his own order especially when the order of appointment has been given in favour of the petitioner. In this context, it is necessary to refer to a judgment of the Supreme Court in Union of India v. Bikash Kuanar reported in (2006) 8 SCC 192 and in paragraphs 14 and 16, it was observed as follows :
14.When a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. A presumption arises in regard to the correctness of the official act. The party who makes any allegation of bias or favouritism is required to prove the same. In the instant case, no such allegation was made. The selection process was not found to be vitiated. No illegality was brought to our notice. In this view of the matter, we are of the opinion that the said Pitamber Majhi by reason of higher marks obtained by him in the matriculation examination also cannot be said to be a better candidate than the respondent herein. In this view of the matter, we do not find any fault with the impugned judgment of the High Court.
16. Indisputably, the respondent has fulfilled all the essential terms and conditions for the appointment to the said post. The respondent alone had submitted all necessary and required documents before the date prescribed by the appellants. It may also be pertinent to mention that at the time of selection the respondent was the only one who had the experience of working continuously on the said post for a period of one-and-a-half years. Perhaps, all these factors cumulatively persuaded the authorities concerned to select the respondent to the said post.
9. In the present case, since the petitioners selection was not under challenge in the manner known to law and the third respondent not having a proof that she had attended the interview and the second respondent attempted to produce some spurious documents for acceptance by this court, which cannot be done at this stage especially when the affidavit sworn to by the respondents stated that documents were missing and documents produced does not show that it was maintained in the course of the official transaction, this court is constrained to set aside the order of appointment made in favour of the third respondent. Accordingly, the order of appointment granted in favour of the third respondent is set aside. The first and second respondents are hereby directed to appoint the petitioner as Child Welfare Worker with all consequential benefits. The writ petition will stand allowed with costs of Rs.5000/- (Rupees five thousand only) to be borne by first and second respondents.