Smt. Shelby Basheer v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** ## **WP(C) NO. 17025 OF 2019** ## **PETITIONER/S:** SMT.SHELBY BASHEER AGED 47 YEARS W/O MUHAMMED BASHEER, RESIDING AT ARACKAKUDY HOUSE, PONJASSERY P.O.CHAMBARATHKUNNU, ERNAKULAM BY ADV SHAMEENA SALAHUDHEEN ## **RESPONDENT/S:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL| ||WELFARE DEPARTMENT, STATE SECRETARIAT,| ||THIRUVANANTHAPURAM-695 001.| |2|THE DIRECTOR OF SOCIAL WELFARE,| ||DIRECTORATE OF SOCIAL WELFARE, VIKAS BHAVAN,| ||THIRUVANANTHAPURAM-695 004.| |3|THE DIRECTOR OF WOMEN AND CHILD DEVELOPMENT,| ||POOJAPPURA, THIRUVANANTHAPURAM-695 012| |4|THE DISTRICT SOCIAL WELFARE OFFICER,| ||ERNAKULAM-682 030| |5|CHILD DEVELOPMENT PROJECT OFFICER,| ||VAZHAKULAM, ERNAKULAM DISTRICT-686 670| |6|SMT. JAYASREE P.A,| ||IDAPPILLY VEEDU, WEST VENGOLA, ERNAKULAM| ||DISTRICT-683 556.| |7|ADDL R7, SHIBY OETER,| ||AGED 52 YEARS| ||W/O.JOSE, PURAMAADAM VEEDU, MALYIDATHUM| ||THURUTHU P.O, AMBUNADU PIN-683 561| ||IS IMPLEADED AS ADDITIONAL R7 AS PER THE ORDER| ||DATED 08-06-2020 IN IA NO.1/2020| ||BY ADVS.| ||GOVERNMENT PLEADER| ||SRI.C.A.NAVAS| ||SRI.T.K.SASIKUMAR| ||SRI.JUSTINE JACOB| ||SRI.P.A.SHAJI SAMAD| ||SMT.PRAISHEEL PRAKASAM| W.P.(C) No.17025 of 2019 -2- ## **OTHER PRESENT:** GP VENUGOPAL V. **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2022, THE COURT ON 24.01.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.17025 of 2019 -3- ## **JUDGMENT** Dated this the 24[th] day of January, 2022 The petitioner was engaged as Temporary Anganwadi Worker for different spells from 2005 onwards. The petitioner is included at serial No.5 in Ext.P1 seniority list, prepared on the basis of the number of days each person had worked. The petitioner relies on Ext.P2 circular to contend that appointments from Ext.P1 list should be made on the basis of communal rotation. According to the petitioner, four persons in Ext.P1 list have been appointed in accordance with the rotation chart and she is the next person to be appointed to the Muslim quota. In the meanwhile, Ext.P3 circular has been issued, directing not to follow communal rotation while effecting appointments from Ext.P1. Based on Ext.P3, various persons including the 6[th] ## W.P.(C) No.17025 of 2019 -4- respondent, who is entitled for appointment to the 9[th] vacancy alone, were appointed. Aggrieved, the writ petition is filed seeking to quash Ext.P3 circular and Ext.P4 order appointing the 6[th] respondent. The further prayer is to appoint the petitioner as Anganwadi worker in the Muslim quota and a declaration that the respondents are bound to follow the rotation chart while making regular appointments in the Anganwadis in the State. 2. Heard Adv.Shameena Salahudheen for the petitioner, Government Pleader for respondents 1 to 5 and Adv.C.A.Navas for the 6[th] respondent. 3. Learned Counsel for the petitioner contended that in view of Ext.P2, appointments from Ext.P1 list are to be made following communal rotation and in such event, the petitioner ought to have been appointed before the 6[th] respondent. State is bound to follow the mandate of Article 16(4) of the Constitution of ## W.P.(C) No.17025 of 2019 -5- India and even otherwise, Ext.P3 can only have prospective effect. The vacancy to which the 6[th] respondent was appointed having arisen prior to the issuance of Ext.P3, the appointment ought to be made in accordance with Ext.P2. In support of this contention, reliance is placed on the decision in _**Biju v. Kerala Forest Protective**_ ## _**Staff Association [2019(2) KLT OnLine 2081]**_ . 4. Learned Government Pleader submitted that the Integrated Child Development Scheme (ICBS) under which Anganwadi workers and helpers are appointed is a centrally sponsored scheme and service conditions of the employees are prescribed by the Government of India. In Ext.R3(a), the Government opined that, Anganwadi workers and helpers being grass root functionaries and honorary workers, any attempt to introduce reservation in the selection system would compromise their honorary status under the W.P.(C) No.17025 of 2019 -6- scheme. Further, the ICDS scheme being open to all, reservation in selection of honorary workers is not applicable. It is contended that the communal rotation envisaged by Ext.P1 is applicable only for appointments from open market. The direction in Ext.P2 is with respect to the select list of candidates to be appointed from the open market and has nothing to do with the seniority list. It is explained that considering the plight of Anganwadi workers, the Government had issued various guidelines. Initially, temporary workers with six years service up to 15.12.2006 were included in the seniority list for the purpose of appointment. Later, by Ext.R3(e), workers with six months service up to 31.10.2010 were included in the list. The periodical updation of the seniority list and the different streams for appointment to the post of Anganwadi workers/helper had given rise to spate of litigations before this Court. ## W.P.(C) No.17025 of 2019 -7- Based on the judgments rendered in those writ petitions, direction were issued to prepare a consolidated seniority list of temporary workers/helpers. Ext.P1 is the list prepared by the 6[th] respondent in terms of the direction and approved by the 4[th] respondent. The seniority list having been prepared based on the number of days each person had worked as temporary worker/helper, any reservation for the purpose appointment, will result in the seniority being upset. The petitioner has no vested right under Ext.P2 and consequently, none of her rights is taken away by Ext.P3. 5. Learned Counsel for the 6[th] respondent submitted that, the 6[th] respondent had completed 389 working days whereas the petitioner had completed only 280 working days, as revealed from Ext.P1. Based on seniority, the 6[th] respondent was appointed as permanent Anganwadi worker on 13.06.2019 and has taken charge as Anganwadi ## W.P.(C) No.17025 of 2019 -8- teacher at Centre No.V in Ponjassery in Vengola Panchayat. As regards the contention that appointment from Ext.P1 should be on the basis of communal rotation, the argument of the Government Pleader, that, rotation cannot be applied to seniority list, is adopted. 6. In reply, learned Counsel for the petitioner contended that the earlier appointment from Ext.P1 list were made following communal rotation and hence, the respondents are bound to follow the same procedure, at least with respect to vacancies that had arisen before the issuance of Ext.P3. 7. As rightly pointed out by the learned Government Pleader, Anganwadi Workers/helpers are grass root functionaries appointed for implementation of the Integrated Child Development Scheme sponsored by the Central Government. In Ext.R3(a), the Central Government has made it clear that ICDS being open to all, no ## W.P.(C) No.17025 of 2019 -9- reservation in selection of honorary workers is applicable. The work being voluntary in nature and payment in the form of honorarium, petitioner cannot rely on Article 16(4) to contend that the respondents are bound to follow reservation policy. It is pertinent to note that the seniority in Ext.P1 is fixed on the basis of the number of working days. Therefore, appointment based on communal reservation will result in seniority being overlooked and thereby, the very purpose of the list being defeated. Moreover, careful scrutiny of Ext.P2 shows that the direction therein is with respect to the select list of open market candidates. For that reason also, petitioner cannot rely on Ext.P2 to contend that appointments from Ext.P2 should be based on communal reservation. Even accepting that the earlier appointments from Ext.P1 list was made on communal basis, the petitioner cannot demand that the mistake should be repeated in her case also. W.P.(C) No.17025 of 2019 -10- Being so, the appointment of the 6[th] respondent, which is based on seniority, has to be upheld. In the result, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.17025 of 2019 -11- ## **APPENDIX OF WP(C) 17025/2019** PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE ORDER NO SW 3-| |---|---| ||1423/19 DATED 29.5.2019 ISSUED BY THE| ||4TH RESPONDENT ALONG WITH THE APPROVED| ||SENIORITY LIST| |EXHIBIT P2|A TRUE COPY OF THE CIRCULAR NO ICDS| ||B3/13209/18 3.6.2019 ISSUED BY THE 3RD| ||RESPONDENT| |EXHIBIT P3|A TRUE COPY OF THE CIRCULAR NO ICDS| ||B4/13209/18 DATED 3.6.2019 ISSUED BY| ||THE 3RD RESPONDENT| |EXHIBIT P4|A TRUE COPY OF THE APPOINTMENT ORDER| ||NO 250/19 DATED 13.6.2019 OF THE 6TH| ||RESPONDENT WITH OUT COPY| |EXHIBIT P5|TRUE COPY OF THE EXPERIENCE| ||CERTIFICATES ISSUED BY THE 5TH| ||RESPONDENT FOR THE PERIODS FROM 2013| ||JUNE TO 2019 JUNE.| |EXHIBIT P5|TRUE COPY OF THE EXPERIENCE| ||CERTIFICATES ISSUED BY THE 5TH| ||RESPONDENT FOR THE PERIODS FROM 2005| ||TO 2012| |EXHIBIT P7|A TRUE COPY OF THE APPLICATION MADE BY| ||THE PETITIONER UNDER THE RTI ACT| ||BEFORE THE VAZHAKULAM PANCHAYATH| |EXHIBIT P8|TRUE COPY OF THE REPLY FOR THE REQUEST| ||SUBMITTED BY THE PETITIONER ALONG WIT| ||SENIORITY LIST| |RESPONDENT EXHIBITS|| |EXHIBIT R 6(A)|TRUE COPY OF THE RELEVANT PAGE OF| ||INSPECTION BOOK OF ANGANVADY| |EXHIBIT R 6(B)|TRUE COPY OF THE APPLICATION DATED NIL| ||UNDER THE RTI ACT| |EXHIBIT R 6(C)|TRUE COPY OF THE REPLY DATED 15.6.2019| |EXHIBIT R3(a):|TRUE COPY OF LETTER NO.1-5/2011-CD-1| ||DATED 03/06/2011.| |EXHIBIT R3(b):|TRUE COPY OF REPRESENTATION DATED| ||26/09/2012.| |EXHIBIT R3(c):|TRUE COPY OF REPRESENTATION DATED| -12- ## W.P.(C) No.17025 of 2019 01/04/2016. EXHIBIT R3(d): TRUE COPY OF G.O.(P) NO.42/2007/SED DATED 06/01/2007. EXHIBIT R3(e): TRUE COPY OF G.O.(MS) NO.79/2010/SWD DATED 10/11/2010. EXHIBIT R3(f): TRUE COPY OF G.O.(MS) NO.689/2018/SJD DATED 27/11/2018. EXHIBIT R1 A TRUE COPY OF GOU LETTER DATED 3.6.2011 EXHIBIT R1 A TRUE COPY OF CIRCULAR EXHIBIT R1 A TRUE COPY OF G.O.(RT) NO689/2018.SJD,DATED 27.11.2018