1

IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL WRIT JURISDICTION)

C.W.J.C. NO.____________/2020

In the matter of an application under

Article 226 of the Constitution of

India

AND

In the matter of:

Anita Kumari, wife of Ashok Kumar, Gender – Female, aged about

48 years, Resident of village - Bhadaura, P.S. Masaurhi (Masauri),

District – Patna, Bihar.

....Petitioner

Versus

1. The State of Bihar through the Principal Secretary, Department of

Social Welfare, Govt. of Bihar, Patna.

2. The Director, I.C.D.S., Department of Social Welfare Government

of Bihar, Patna.

3. The Commissioner, Patna Division, Patna.

4. The District Magistrate, Patna.

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5. The District Program Officer, Patna.

6. The Circle Officer, Masaudhi (Masauri), District- Patna.

7. The Child Development Project Officer (C.D.P.O.), Masaudhi

(Masauri), District-Patna.

…..Respondents

To,

The Hon'ble Mr. Justice Sanjay Karol, the Hon'ble Chief Justice of

the High court of Judicature at Patna and His Lordship's

companion Justices of the said Hon'ble Court.

The humble petition on behalf of the

petitioner above named:

Most Respectfully Sheweth:-

1. That this writ application is being filed for issuance of an

appropriate writ(s)/order(s)/direction(s) for the following

reliefs:-

i. For quashing the order contained in Service Appeal No.

53/2018 Dated 07.02.2020 issued by Respondent No. 3 (The

Commissioner, Patna Division, Patna) whereby and wherein

 3

the request dated 17.07.2018 was made by the Petitioner to

reinstate the petitioner after setting aside the order of

Respondent No. 4 (The District Magistrate, Patna) passed in

the Appeal No. 112/12 dated 03.05.2013 whereby, the

proceedings of the Appeal was brought to an end by rejecting

the Appeal petition of the petitioner and the order of the

Respondent No. 4 (The District Magistrate, Patna) in Appeal

No. 122/12 dated 03.05.2013 was confirmed by passing an

order dated 07.02.2020 in the Service Appeal No. 53/2018 by

the Respondent No. 3 (The Commissioner, Patna Division,

Patna). The order so passed is unjustified, an act of defiance

of law and not in accordance with the proportionate

punishment prescribed under the law meaning thereby the

order of removal from the post of Anganbadi Sevika is

excessive and therefore it is not sustainable from the legal

standpoint.

ii. To quash the order of Respondent No. 4 (The District

Magistrate, Patna) passed in the Appeal No. 112/12 dated

03.05.2013 filed by the petitioner challenging the order dated

01.08.2012 passed by the Respondent No. 5 (The District

Program Officer, Patna) in Memo No. 228 dated 01.08.2012

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whereby the Respondent No. 4 (The District Magistrate,

Patna) dismissed the Appeal filed by the petitioner confirming

the order passed by the Respondent No. 5 (The District

Program Officer, Patna) in Memo No. 228 dated 01.08.2012.

iii. To quash the order of Respondent No. 5 (The District

Program Officer, Patna) in Memo No. 228 dated 01.08.2012

whereby the petitioner posted as Anganbadi Sevika at Centre

No. 93 Jagdishpur, Masaudhi (Masaurhi) Patna was removed

with immediate effect on the basis of absence on 28.05.2012

without taking leave from C.D.P.O. The order of removal from

the post of Anganbadi Sevika was passed by the Respondent

No. 5 (The District Program Officer, Patna) vide Memo No.

228 dated 01.08.2012.

iv. To reinstate the petitioner for the post of Anganbadi Sevika at

Centre No. 93 Jagdishpur, Masaudhi (Masaurhi), Patna with

consequential benefits.

v. For issuance of a Writ directing the Respondents to adopt

equitable approach in terms of Article 14 of the Constitution of

India.

vi. To grant any other relief or reliefs for which the petitioner be

found entitled in the eyes of law.

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2. That the issues of seminal importance involved in this writ

application are as follows:-

i. Whether the order of Respondent No. 3 (The Commissioner,

Patna Division, Patna) rejecting the Appeal application of the

petitioner and confirming the order of the District Magistrate,

Patna passed in Appeal No. 122/2012 dated 01.08.2012 is

unjustified and an act of defiance of law?

ii. Whether the order of Respondent No. 4 (The District

Magistrate, Patna) passed in the Appeal No. 112/2012 dated

03.05.2013 whereby the Respondent No. 4 (The District

Magistrate, Patna) dismissed the Appeal filed by the petitioner

confirming the order passed by the Respondent No. 5 (The

District Program Officer, Patna) is excessive in eyes of law?

iii. Whether the order of D.P.O dated 01/8/12 removing the

petitioner from the post of Anganbari Sevika is excessive in

eye of law?

iv. Whether the District Magistrate, without considering the merit,

confirms the order passed by the District Program Officer,

Patna?
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v. Whether the order of Respondent No. 5 (The District Program

Officer, Patna) in Memo No. 228 dated 01.08.2012 was in

violation of principle under natural justice?

vi. Whether the petitioner can be remove from her post only on

the ground that she was found absent at Centre on

28.05.2012?

vii. Whether the Impugned Order violates the principles of

equality and non-arbitrariness enshrined in Article 14 of the

Constitution of India?

3. That the petitioner is a citizen of India and resides within the

territorial jurisdiction of this Hon’ble Court and is amenable to the

writ jurisdiction of this Hon’ble Court.

4. That it is humbly submitted that the petitioner was selected as

Anganbadi Sevika by Aam Sabha at the Centre No. 93, Jagdishpur,

Masaudhi, Patna in the year 1995 and since then she is

discharging her duties honestly with the full satisfaction of

respondents.

5. That it is pertinent to mention that she was allotted Centre No. 93

to contact and manage the Centre properly which points out that

her work was up to the mark subsequent of which she was

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allotted the additional Centre No. 91 in absence of the Anganbadi

Sevika of that centre by the respondents.

6. That it is humbly submitted that the centre of the petitioner was

inspected by the District Level Committee on 22.10.2011 wherein

the lowest grade, that is, grade - E was awarded which reflects

the gross irregularities at the centre. The petitioner was asked to

submit the reply in response to the show cause notice as to why

she should not be removed from the post of Anganbadi Sevika.

A photo copy of the letter dated

28.05.2012 is being annexed

herewith and marked as Annexure

– 1 to this writ petition.

7. That it is pertinent to mention here that Lady Supervisor Anju

Kumari supervised the centre of the petitioner on 15.04.2011 at

11:15 AM and put the remark on the Inspection Register that

T.H.R were distributed among 23 beneficiaries in presence of her.

C.D.P.O Masaurhi also marked report on the Inspection Register.

A photo copy of the remarks made

by Lady Supervisor and C.D.P.O on

Inspection Register is being annexed

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herewith and marked as Annexure

– 2 to this writ petition.

8. That it is further submitted that pursuant to the letter dated

28.05.2012 issued by the District Program Officer, Patna the

petitioner filed explanations in response to the show cause notice

on 09.06.2012 denying the charges/allegations labeled against her

and made request to reinstate her and conduct the centre again.

A photo copy of the explanations in

response to the show cause notice

presented by the petitioner on

09.06.2012 is being annexed

herewith and marked as Annexure

– 3 to this writ petition.

9. That it is further submitted that the petitioner gave representation

dated 20.07.2012 in response to the Letter No. 493 dated

28.05.2012 before the District Program Officer, Patna stating

therein that she was suffering from abdominal pain and was

vomiting as well as a consequence of which she was unable to

present at the centre on 28.05.2012.

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A photo copy of the representation

dated 20.07.2012 is being annexed

herewith and marked as Annexure

– 4 Series to this writ petition.

10. That it is apparent that the petitioner was absent on the spot on

28.05.2012 due to her poor health and the District Program

Officer, Patna has removed her from the post of Anganbadi Sevika

only on the ground that she was absent for one day only, that is,

on the date 28.05.2012 which is completely unjustifiable, arbitrary

and contrary to the law established.

11. That it is further submitted that the distribution register has been

maintained properly by the petitioner which proves that there

were no latches on the part of the petitioner in discharging her

duties at the centre.

A photo copy of the Distribution

register is being annexed herewith

and marked as Annexure – 5 to

this writ petition.

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12. That it is stated that the petitioner was removed from the post of

Anganbadi Sevika stating the reason that she was absent from the

centre on date 28.05.2012 without the grant of leave from

C.D.P.O by issuing a letter under the signature of District Program

Officer, Patna vide Memo No. 228 dated 01.08.2012.

A photo copy of the Memo No. 228

dated 01.08.2012 is being annexed

herewith and marked as Annexure

– 6 to this writ petition.

13. That it is stated that the petitioner assailed the order dated

01.08.2012 passed by the District Program Officer, Patna by way

of filing Appeal vide Appeal No. 122/2012 before the District

Magistrate, Patna which was dismissed by the District Magistrate,

Patna on 03.05.2013 confirming the order passed by the District

Program Officer, Patna.

A photo copy of the order dated

03.05.2013 passed by the District

Magistrate, Patna is being annexed

herewith and marked as Annexure

– 7 to this writ petition.

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14. That it is further submitted that the petitioner moved to Court of

Divisional Commissioner, Patna vide Service Appeal No. 53/2018

assailing the order of removal of petitioner from the post of

Anganbadi Sevika passed by the District Program Officer, Patna

which was subsequently affirmed and the said Appeal was

dismissed by the District Magistrate, Patna vide order dated

03.05.2013 passed in Appeal No. 122/2012.

15. That it is pertinent to mention that in the Appeal filed by the

aggrieved petitioner before the Court of Divisional Commissioner,

Patna vide Service Appeal No. 53/2018 whereby and wherein the

request dated 17.07.2018 was made by the Petitioner to reinstate

the petitioner after setting aside the order of the District

Magistrate, Patna passed in the Appeal No. 112/12 dated

03.05.2013 whereby, the proceedings of the Appeal was brought

to an end by rejecting the Appeal petition of the petitioner and the

order of the District Magistrate, Patna in Appeal No. 122/12 dated

03.05.2013 was confirmed by passing an order dated 07.02.2020

in the Service Appeal No. 53/2018 by the Commissioner, Patna

Division, Patna.

A photo copy of the order dated

07.02.2020 passed in Service Appeal

 12

No. 53/2018 by the Court of

Divisional Commissioner, Patna is

being annexed herewith and marked

as Annexure – 8 to this writ

petition.

16. That it is humbly submitted that the removal of petitoner from the

post of Anganbadi Sevika on account of absence on 28.05.2012,

that is, for only one day is perfunctory, arbitrary, unjustifiable and

contrary to the law established, whereas, in fact the petitioner was

suffering from abdominal pain as well as vomiting due to which

the petitioner could not mark her presence and thus was absent at

the Centre on date 28.05.2012.

A photo copy of the medical

prescriptions of the doctor are being

annexed herewith and marked as

Annexure – 9 Series to this writ

petition.

17. That it is relevant to state there was neither any adverse remark

against the petitioner by the superior authority nor she was found
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absent prior to 28.05.2012 since the year of her joining in 1995 to

the year 2012.

18. In this regard the Hon’ble High Court of Judicature at Patna in

Amita Kumari v. State of Bihar & Ors., CWJC No. 10872 of 2017

has held as follows:-

“Having considered the rival submissions of the parties, I am of

the view that the punishment of dismissal for one day absence is
highly unpragmatic and extremely harsh.”

19. That it is humbly submitted that in a similarly situated case of one

day absence, the dismissal order was set aside by this Court

relying upon a judgment reported in 2011(3) PLJR 140 (Punam

Kumari vs. The State of Bihar ) on the ground that in absence of

accompanying circumstances reflecting continued breach by the

petitioner in running the centre, a mere single day absence is not

sufficient enough for imposition of extreme penalty of dismissal.

20. That the Hon’ble High Court of Judicature at Patna in Smt. Lalita

Devi vs The State Of Bihar & Ors CWJC No.16926 of 2013 has held

as follows:-

“7…..Even it be assumed for a moment that the centre was found

closed on the date of inspection, the punishment awarded by way of
cancellation of her appointment appears to be unduly harsh and
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unjustified. Reference in this regard may be made to the case

of Punam Kumari vs. the State of Bihar and others, reported in PLJR
2011 (3) 140.”
Therefore it is humbly submitted that in absence of such

rationale reason having being recorded by the competent authority

the impugned order of removal of the petitioner from her post is

liable to be quashed and set aside by this Hon’ble Court. It is a

well entrenched concept that when the manner of exercising

power is laid down such power is to be exercised in the manner

prescribed therein or not to be exercised at all.

21. That it is stated that in view of the aforementioned facts and

circumstances that the impugned Order is arbitrary, malafide and

in colorable exercise of the power as well as in the teeth of the law

laid down in this regard.

22. That the petitioner has got no suitable and efficacious or

alternative remedy available other than to move before this

Hon'ble Court for the relief (s) prayed for in this petition.

23. That the petitioner has not filed earlier any Writ petition for the

relief (s) prayed for in this Petition.

It is, therefore, prayed that Your Lordship

may graciously be pleased to admit this

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petition, calling upon the respondents to

show cause as to why the relief(s) as

prayed for in this petition may not be

granted/allowed, and on such cause being

shown and after hearing the counsel’s for

the parties be further pleased to allow the

relief (s) as sought for in this petition by

allowing this petition and make the rule

absolute.

AND/OR

Pass such other order(s) as may deem fit

and proper in this case.

And for this, the petitioner shall ever pray.

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AFFIDAVIT

I, Anita Kumari, wife of Ashok Kumar, Gender – Female, aged about 48

years, Resident of village - Bhadaura, P.S. Masaudhi (Masauri), District –

Patna, Bihar do hereby solemnly affirm and state as follows:

1. That I am petitioner in the present case and as such am well

acquainted with the facts and circumstances of this case.

2. That I have gone through the contents of this petition and have

fully understood the same.

3. That the statement made in Paragraph no

s._______________________________are true to my knowledge

and those made in paragraph

nos._____________________________are true to my information

derived from the records of this case and rest are by way of

submission before this Hon'ble Court.

4. That the Annexures are true /Xerox copies of their respective

originals.
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IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL WRIT JURISDICTION)

C.W.J.C. NO.____________2020

Anita Kumari, wife of Ashok Kumar, Gender – Female, aged about

48 years, Resident of village - Bhadaura, P.S. Masaurhi (Masauri),

District – Patna, Bihar. ....Petitioner

Versus

1. The State of Bihar through the Principal Secretary, Department of

Social Welfare, Govt. of Bihar, Patna.

2. The Director, I.C.D.S., Department of Social Welfare Government

of Bihar, Patna.

3. The Commissioner, Patna Division, Patna.

4. The District Magistrate, Patna.

5. The District Program Officer, Patna.

6. The Circle Officer, Masaudhi (Masauri), District- Patna.

7. The Child Development Project Officer (C.D.P.O.), Masaudhi

(Masauri), District-Patna

...Respondents

SYNOPSIS
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Relief :-

i. For quashing the order contained in Service Appeal No.

53/2018 Dated 07.02.2020 issued by Respondent No. 3 (The

Commissioner, Patna Division, Patna) whereby and wherein

the request dated 17.07.2018 was made by the Petitioner to

reinstate the petitioner after setting aside the order of

Respondent No. 4 (The District Magistrate, Patna) passed in

the Appeal No. 112/12 dated 03.05.2013 whereby, the

proceedings of the Appeal was brought to an end by rejecting

the Appeal petition of the petitioner and the order of the

Respondent No. 4 (The District Magistrate, Patna) in Appeal

No. 122/12 dated 03.05.2013 was confirmed by passing an

order dated 07.02.2020 in the Service Appeal No. 53/2018 by

the Respondent No. 3 (The Commissioner, Patna Division,

Patna). The order so passed is unjustified, an act of defiance

of law and not in accordance with the proportionate

punishment prescribed under the law meaning thereby the

order of removal from the post of Anganbadi Sevika is

excessive and therefore it is not sustainable from the legal

standpoint.
 19

ii. To quash the order of Respondent No. 4 (The District

Magistrate, Patna) passed in the Appeal No. 112/12 dated

03.05.2013 filed by the petitioner challenging the order dated

01.08.2012 passed by the Respondent No. 5 (The District

Program Officer, Patna) in Memo No. 228 dated 01.08.2012

whereby the Respondent No. 4 (The District Magistrate,

Patna) dismissed the Appeal filed by the petitioner confirming

the order passed by the Respondent No. 5 (The District

Program Officer, Patna) in Memo No. 228 dated 01.08.2012.

iii. To hold and quash the order of Respondent No. 5 (The

District Program Officer, Patna) in Memo No. 228 dated

01.08.2012 whereby the petitioner posted as Anganbadi

Sevika at Centre No. 93 Jagdishpur, Masaudhi (Masaurhi)

Patna was removed with immediate effect on the basis of

absence on 28.05.2012 without taking leave from C.D.P.O.

The order of removal from the post of Anganbadi Sevika was

passed by the Respondent No. 5 (The District Program

Officer, Patna) vide Memo No. 228 dated 01.08.2012.

iv. To reinstate the petitioner for the post of Anganbadi Sevika at

Centre No. 93 Jagdishpur, Masaudhi (Masaurhi), Patna with

consequential benefits.
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v. To hold and declare for issuance of a Writ directing the

Respondents to adopt equitable approach in terms of Article

14 of the Constitution of India.

vi. To hold and declare to grant any other relief or reliefs for

which the petitioner be found entitled in the eyes of law.

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List of important dates and events

Year 1995

The petitioner was selected as Anganbadi Sevika by Aam Sabha at

the Centre No. 93, Jagdishpur, Masaudhi, Patna in the year 1995

and since then she is discharging her duties honestly with the full

satisfaction of respondents.

15.04.2011:-

(Annexure – 1)

Lady Supervisor Anju Kumari supervised the centre of the petitioner

on 15.04.2011 at 11:15 AM and put the remark on the Inspection

Register that T.H.R were distributed among 23 beneficiaries in

presence of her. C.D.P.O Masaurhi also marked report on the

Inspection Register.

22.10.2011:-

(Annexure – 2)

The centre of the petitioner was inspected by the District Level

Committee on 22.10.2011 wherein the lowest grade, that is, grade

- E was awarded which reflects the gross irregularities at the

centre. The petitioner was asked to submit the reply in response to

the show cause notice as to why she should not be removed from

the post of Anganbadi Sevika.

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09.06.2012:-

(Annexure – 3)

The petitioner filed explanations in response to the show cause notice

on 09.06.2012 denying the charges/allegations labeled against her

and made request to reinstate her and conduct the centre again.

20.07.2012:-

(Annexure – 4 Series)

The petitioner gave representation dated 20.07.2012 in response

to the Letter No. 493 dated 28.05.2012 before the District Program

Officer, Patna stating therein that she was suffering from

abdominal pain and was vomiting as well as a consequence of

which she was unable to present at the centre on 28.05.2012.

01.08.2012:-

(Annexure – 6)

The petitioner was removed from the post of Anganbadi Sevika

stating the reason that she was absent from the centre on date

28.05.2012 without the grant of leave from C.D.P.O by issuing a

letter under the signature of District Program Officer, Patna vide

Memo No. 228 dated 01.08.2012.

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03.05.2013 :-

(Annexure – 7)

The petitioner assailed the order dated 01.08.2012 passed by the

District Program Officer, Patna by way of filing Appeal vide Appeal

No. 122/2012 before the District Magistrate, Patna which was

dismissed by the District Magistrate, Patna on 03.05.2013

confirming the order passed by the District Program Officer, Patna.

07.02.2020:-

(Annexure – 8)

The commissioner, Patna Division, Patna rejected the Appeal

petition of the petitioner and the order of the District Magistrate,

Patna in Appeal No. 122/12 dated 03.05.2013 was confirmed by

passing an order dated 07.02.2020 in the Service Appeal No.

53/2018 by the Commissioner, Patna Division, Patna.

HENCE THIS WRIT APPLICATION

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IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL WRIT JURISDICTION)

C.W.J.C. NO.____________2020

Anita Kumari, wife of Ashok Kumar, Gender – Female, aged about

48 years, Resident of village - Bhadaura, P.S. Masaurhi (Masauri),

District – Patna, Bihar. ....Petitioner

Versus

1. The State of Bihar through the Principal Secretary, Department of

Social Welfare, Govt. of Bihar, Patna.

2. The Director, I.C.D.S., Department of Social Welfare Government

of Bihar, Patna.

3. The Commissioner, Patna Division, Patna.

4. The District Magistrate, Patna.

5. The District Program Officer, Patna.

6. The Circle Officer, Masaudhi (Masauri), District- Patna.

7. The Child Development Project Officer (C.D.P.O.), Masaudhi

(Masauri), District-Patna.

…..Respondents
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Subject: Service Matter

INDEX

PAGE
S. NO. PARTICULARS
NOS.
An application under Article 226 of the 1-
01.
Constitution of India with Affidavit.
Annexure-1: A photo copy of the letter dated
02.
28.05.2012.
Annexure-2: A photo copy of the remarks made

by Lady Supervisor and C.D.P.O on Inspection

03.
Register.

Annexure- 3: A photo copy of the explanations in

04. response to the show cause notice presented by the

petitioner on 09.06.2012.
Annexure-4: A photo copy of the representation

05. dated 20.07.2012.

Annexure- : A photo copy of the Distribution

06. register.

Annexure-6: A photo copy of the Memo No. 228

07. dated 01.08.2012.

08. Annexure–7: A photo copy of the order dated

 26

03.05.2013 passed by the District Magistrate,

Patna.

Annexure–8: A photo copy of the order dated

07.02.2020 passed in Service Appeal No. 53/2018

09.
by the Court of Divisional Commissioner, Patna.

Annexure–9: A photo copy of the medical

10.
prescriptions of the doctor.
11. VAKALATNAMA