Sheeja I v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 1449 OF 2022** ## **PETITIONER/S:** SHEEJA.I AGED 37 YEARS D/O IBRAHIMKUTTY, AGED 37 YEARS, RESIDING AT KADAKAMPALLI VADAKKATHIL, MOTTAYKKAL, THEVALAKKARA VILLAGE, THEVALAKKARA P.O., KARUNAGAPALLY, KOLLAM - 690524., PIN - 690524 BY ADVS. NIRMAL V NAIR M.ANEESH AJAI BABU RAHUL S.NATH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, THIRUVANANTHAPURAM695001., PIN - 695001 2 STATE MISSION DIRECTOR KERALA NATIONAL HEALTH MISSION, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF KERALA, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035., PIN - 695035 3 DISTRICT PROGRAM MANAGER (NHM) AROGYA KERALAM, DISTRICT TRAINING CENTRE, OPP. BISHOP GEROME NAGAR, TB CENTRE, II FLOOR, TALUK KECHERY P.O., KOLLAM - 691001, PIN - 691001 4 MEDICAL OFFICER PRIMARY HEALTH CENTRE, THEVALAKKARA VILLAGE, THEVALAKKARA P.O., KARUNAGAPALLY, KOLLAM - 690524., PIN - 690524 5 THEVALAKKARA GRAMA PANCHAYAT THEVALAKKARA PANCHAYAT OFFICE, THEVALAKKARA P.O., KOLLAM - 690524, REPRESENTED. BY ITS SECRETARY., PIN - 690524 6 PRESIDENT, THEVALAKKARA GRAMA PANCHAYAT THEVALAKKARA PANCHAYAT OFFICE, THEVALAKKARA P.O., KOLLAM - 690524. , PIN - 690524 7 SECRETARY WP.(C) No.1449 of 2022 -2- THEVALAKKARA PANCHAYAT OFFICE, THEVALAKKARA P.O., KOLLAM - 690524, PIN - 690524 8 JAYAPRABHA ASHTAPATHI, MOTTAKKAL, THEVALLAKKARA VILLAGE, THEVALLAKARA P.O., KOLLAM - 690524., PIN - 690524 BY ADVS. BIJITH S.KHAN PRIYA SHANAVAS ## **OTHER PRESENT:** GP VENUGOPAL V **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **23.03.2022, THE COURT ON 28.03.2022 DELIVERED THE FOLLOWING:** WP.(C) No.1449 of 2022 -3- ## **JUDGMENT** Dated this the 28[th] day of March, 2022 The challenge in this writ petition is against the selection of the 8[th] respondent as the Accredited Social Health Activist ('ASHA' for short) worker in Ward No.20 of Thevalakkara Grama Panchayat. The impugned selection was conducted pursuant to Ext.P12 notification. The petitioner had also participated in the interview and when the final score sheet was published, the 8[th] respondent got 1[st] rank and petitioner, the 2[nd] rank. Thereupon, the Panchayat Committee passed Ext.P18 resolution deciding to appoint the 8[th] respondent, in spite of the dissent expressed by four members. **==> picture [381 x 13] intentionally omitted <==** respondent's selection and appointment is primarily on the ground that the selection was WP.(C) No.1449 of 2022 -4- made without considering the petitioner's preferential claim. In support of the contention, reliance is placed on Ext.P10 direction issued by the District Programme Manager, detailing the procedure and the eligibility criteria for selection of Asha Workers. One of the criteria in Ext.P10 is that, persons who have prior experience as Asha worker and have completed 5 modules of training should be given preference. In Ext.P12 notification also, the above eligibility criteria is incorporated. Exts.P1 to P9 are produced in evidence to show that the petitioner had earlier worked as Asha worker and has completed 5 modules of training. 3. Learned Counsel for the petitioner contended that, in spite of persons with prior experience and requisite training being entitled for preference, the interview board had not taken WP.(C) No.1449 of 2022 -5- that criteria into consideration while awarding marks. Relying on the decision in _**Surinder Singh**_ _**v. Union of India and others [(2007 (11) SCC 599)**_ learned Counsel contended that the object of prescribing preferential qualification is to select the best candidate with experience. Attention is drawn to Ext.R5(a) final score sheet to demonstrate that the 8[th] respondent had been deliberately given higher marks, while the petitioner's preferential claim based on her past experience as Asha Worker and the training undergone was neglected. It is hence contended that the appointment of the 8[th] respondent should be set aside and the respondent directed to conduct the interview afresh. 4. Learned Counsel for the 5[th] respondent Panchayat submitted that the interview and the selection was conducted in a fair and transparent WP.(C) No.1449 of 2022 -6- manner. The interview board consisted of the Medical Officer, Panchayat President, the Ward Member and Ward Junior Public Health Nurse. The final score sheet was published based on the consolidated marks obtained by the candidates. There is a difference of 11 marks between the petitioner and the 8[th] respondent, which indicates that the 8[th] respondent is the better suited candidate. Moreover, preferential claim cannot be the sole criteria for selection and appointment. In support of the contention, reliance is placed on the decision of the Apex Court in _**Bibhudatta Mohanty v. Union of India and others [(2002) 4 SCC 16]**_ . 5. Learned Counsel for the 8[th] respondent submitted that the 8[th] respondent was selected purely based on her better performance in the interview. Moreover pursuant to Ext.P10 decision, WP.(C) No.1449 of 2022 **==> picture [16 x 8] intentionally omitted <==** the 8[th] respondent had joined duty and any interference with her selection and appointment at this point will cause undue prejudice to her. 6. The fact that the petitioner has previous experience as Asha Worker and has undergone requisite training, is not in dispute. Neither the Panchayat or even the 8[th] respondent has a contention that the 8[th] respondent has either previous experience or has undergone training. The contention of the petitioner that her preferential claim was not taken into account while awarding the marks for interview is also not refuted. On the other hand, the Panchayat's contention is that, preferential claim cannot be the sole basis for selection. In this context, the following extract from _**Surinder Singh**_ assumes relevance; **==> picture [311 x 10] intentionally omitted <==** WP.(C) No.1449 of 2022 -8- _shows that the appointment of the appellant was set aside taking the view that he was selected solely on the ground that amongst all the candidates he was the seniormost in age and that was an extraneous consideration. The High_ _Court agreed with the reasoning of the Tribunal.”_ Therefore, having notified that applicants with past experience and training will be given preference, the preference for which the petitioner is entitled cannot be brushed aside or wished away. In _**Bibhudatta Mohanty,**_ the Apex Court held is that, where any rule or guidelines provides preference with reference to higher qualification, that would only mean that all other requirement is being equal the person possessing higher qualification will be preferred and higher qualification cannot be the sole criteria for preference in selection and WP.(C) No.1449 of 2022 -9- appointment. In the instant case, no one has a contention that the petitioner did not satisfy the other requirements. If so, her preferential claim should definitely have been taken into account. The Panchayat having failed to do so, the process of selection stands vitiated. Consequently, the 8[th] respondent's appointment has to be set aside and fresh selection ordered. In the result, the writ petition is allowed. The appointment of the 8[th] respondent to the post of Asha Worker based on Ext.P10 notification is set aside. The Panchayat is directed to commence the process of selection to the notified post from the stage of interview afresh, after giving due intimation to all applicants. While conducting the selection, preference should be given to candidates having past experience and training. The fresh selection, as directed above, WP.(C) No.1449 of 2022 -10- shall be completed and the selected candidate appointed within two months of receipt of a copy of this judgment. If the 8[th] respondent is now working as Asha Worker, she shall be permitted to continue provisionally, until the fresh selection is over and the selected candidate appointed. Sd/- **V.G.ARUN JUDGE** Scl/ WP.(C) No.1449 of 2022 -11- ## **APPENDIX OF WP(C) 1449/2022** ## PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE SSLC CERTIFICATE| |---|---| ||DATED NIL OF THE PETITIONER| |Exhibit P2|A TRUE COPY OF THE VOTER’S IDENTITY| ||CARD OF THE PETITIONER| |Exhibit P3|A TRUE COPY OF THE RATION CARD OF THE| ||PETITIONER’S FAMILY ISSUED IN THE| ||NAME OF HER MOTHER| |Exhibit P4|A TRUE COPY OF THE IDENTITY CARD DATED| ||28-9-2008 ISSUED TO THE PETITIONER| |Exhibit P5|A TRUE COPY OF THE CERTIFICATE DATED| ||NIL ISSUED TO THE PETITIONER FOR| ||SUCCESSFUL COMPLETION OF MODULE NO. I| ||BY THE 3RD RESPONDENT| |Exhibit P6|A TRUE COPY OF THE CERTIFICATE DATED| ||NIL ISSUED TO THE PETITIONER FOR| ||SUCCESSFUL COMPLETION OF MODULE NO. II| ||BY THE 3RD RESPONDENT| |Exhibit P7|A TRUE COPY OF THE CERTIFICATE DATED| ||NIL ISSUED TO THE PETITIONER FOR| ||SUCCESSFUL COMPLETION OF MODULE NO.| ||III BY THE 3RD RESPONDENT| |Exhibit P8|A TRUE COPY OF THE CERTIFICATE DATED| ||NIL ISSUED TO THE PETITIONER FOR| ||SUCCESSFUL COMPLETION OF MODULE NO. IV| ||BY THE 3RD RESPONDENT| |Exhibit P9|A TRUE COPY OF THE CERTIFICATE DATED| ||NIL ISSUED TO THE PETITIONER FOR| ||SUCCESSFUL COMPLETION OF MODULE NO. V| ||BY THE 3RD RESPONDENT| |Exhibit P10|A TRUE COPY OF THE CIRCULAR NO. DPMSU-| ||KLM/1267/ASHA (CO-| ||ORDINATOR)/2018/DPMSU DATED 5-9-2018| ||ISSUED BY THE 3RD RESPONDENT| |Exhibit P11|A TRUE COPY OF THE LETTER DATED 22-5-| ||2021 ADDRESSED TO THE 6TH RESPONDENT| ||BY THE MEMBER OF WARD NO. 20 OF THE| WP.(C) No.1449 of 2022 -12- ||5TH RESPONDENT PANCHAYAT| |---|---| |Exhibit P12|A TRUE COPY OF THE ADVERTISEMENT| ||PUBLISHED IN MALAYALA MANORAMA DAILY| ||DATED 21-10-2021| |Exhibit P13|A TRUE COPY OF THE APPLICATION DATED| ||23-10-2021 SUBMITTED BY THE PETITIONER| |Exhibit P14|A TRUE COPY OF THE REQUEST DATED 25-| ||11-2021 SUBMITTED BY SRI. SHYJU.I| ||BEFORE THE PUBLIC INFORMATION OFFICER| ||OF THE 5TH RESPONDENT PANCHAYAT| |Exhibit P15|A TRUE COPY OF THE LETTER NO. C8-| ||8357/2021 DATED 2-12-2021 ISSUED BY| ||THE PUBLIC INFORMATION OFFICER OF THE| ||5TH RESPONDENT| |Exhibit P16|A TRUE COPY OF THE REPLY DATED 18-12-| ||2021 ISSUED BY THE 4TH RESPONDENT| |Exhibit P17|A TRUE COPY OF THE FINAL SCORE SHEET| ||FOR THE POST OF ASHA WORKER DATED NIL| |Exhibit P18|A TRUE COPY OF THE DECISION NO.2/1| ||DATED 5-11-2021 OF THE 5TH RESPONDENT| ||PANCHAYAT| |Exhibit P19|A TRUE COPY OF THE ORDER NO. DPMSU-| ||KLM/1267/ASHA (CO-| ||ORDINATOR)/2018/DPMSU DATED 29-12-2021| ||ISSUED BY THE 3RD RESPONDENT| |RESPONDENT EXHIBITS|| |Exhibit R5(A)|TRUE COPY OF THE FINAL SCORE SHEET FOR| ||THE POST OF ASHA WORKER DATED NIL|