High Court's division bench sets aside decision of single judge bench in Saran Angadwadi case

In Raj Kumari Devi vs.The State of Bihar & Others (2024), Patna High Court's division bench of Chief Justice K. Vinod Chandran and Justice Nani Tagia concluded:"we set aside the judgment of the learned Single Judge and direct the appellant to be appointed. We notice that the successful candidate was impleaded as the 6th respondent who was issued notice on 12.09.2024, which was received on 30.09.2024. The said candidate has not appeared before us, despite service of notice." Besides the State of Bihar through the Secretary, Social Welfare Department, the other respondents were:Director, Social Welfare Department, District Magistrate, Saran at Chhapra, District Programme Officer, Saran at Chapra.Child Development Project Officer, Sonepur, Saran and Suman Devi. 

The Court added:"In the above circumstances, the appellant shall be granted appointment as Anganwari Sevika. We make it clear that the appointment of the appellant shall only be from the date of joining and she shall not be entitled to any back wages or honorarium; whichever is applicable, for the earlier period.What has been paid to the 6th respondent shall remain with the 6th respondent." The Court was persuaded to reach its decision by Dr. Shiv Shankar Prasad Yadav, the appellant's counsel. He drew on a judgment of the High Court in Pushplata Kumari vs. The State of Bihar and Others (2022). The L.P.A. was filed against the order of single judge in CWJC case of 2019 in October 2022.

The appellant/petitioner had challenged denial of appointment on the ground of Clause 4.9 of the Anganwadi Sevika/Sahayika Guidelines for selection, 2011 which stipulated that if a candidate’s relative is employed with the State Government, then she shall not be considered for such appointment.

The petitioner had submitted that an amendment had enhanced the limit of income of the employed family member to Rs. 15,000/- per month from Rs. 6,000/- in the year 2015. It was the submission of the petitioner that her brother-in-law who was was a Panchayat Teacher was earning only about Rs. 6,300/- per month; lesser than the minimum income of Rs. 15,000/-. The petitioner was aggrieved with the order of the District Programme Officer which was affirmed by the District Magistrate in an appeal. The appellate order found that the Aam Sabha which was considering the selection was held on October 24, 2014 prior to the amendment made on August 7, 2015.

The single judge bench of the High Court had agreed with the Appellate Authority and found that the petitioner was not qualified for appointment, since her brother-in-law was engaged as a teacher earning more than Rs. 6,000/-, as per the unamended provision which was applicable at the time of selection. The petitioner was not eligible for consideration, was his finding. 

The appellant's counsel drew the attention of the division bench of the High Court towards the decision of the Supreme Court dated January 8, 2024 in Anjum Ara vs. The State of Bihar and Others. The judgment reads: "Clause 4.9 of the 2011 Guidelines imposed a restriction on such persons whose family member or members have secured appointment with the State Government or any organization of the State. The said Clause 4.9 of the 2011 Guidelines came to be challenged before the High Court by way of CWJC No. 13210 of 2014. The High Court,vide judgment and order dated 27th September, 2022, after elaborate discussion, struck down the said Clause 4.9 of the 2011 Guidelines. The only ground on which the appellant has been non-suited was that the appellant had not challenged the said Clause 4.9 of the 2011 Guidelines before the High Court. We find that the reasoning as adopted by the learned Division Bench is totally unsustainable. When the said Clause 4.9 of the 2011 Guidelines was struck down by the High Court vide judgment dated 27th September 2022, it ceased to exist. As such, it was not necessary for the appellant to challenge the validity of the same inasmuch as the same was already held to be invalid by the very same High Court. In that view of the matter, we find that the judgments and orders passed by the learned Single Judge as well as the Division Bench are not sustainable in law." This decision of Supreme Court's division bench of Justices B. R. Gavai and Sandeep Mehta set aside the Patna High Court's decision November 28, 2022 by Justices P. B. Bajanthri , Purnendu Singh and single judge bench of Justice Madhuresh Prasad. Notably, Justice Prasad has been transferred to Calcutta High Court. 

The High Court's division bench drew on Supreme Court's decision to observe: "Hence, the disqualification is no more operative, as Clause 4.9 of 2011 Guidelines has been struck down by the High Court. It cannot also have any application before the judgment, which struck it down since the High Court does not have the power to prospectively overrule and the striking down of a clause applies from the inception of the guidelines. "

Background of Bihar Special Survey and Settlement Act, 2011

In recent times, land revenue surveys commenced in India over two and half century ago. It is based on the systems adopted in UK and Western Europe. It started with a view of collection of revenue from land. The construction of UK’s rule over India was dependent on survey and maps.  

By the acquisition of the Diwani on August 12, 1765, from the Mughal Emperor, Shah Alam, the East India Company (EIC) obtained effect the ‘Superintendency’ of all the lands, and the collection of all the revenues of Bengal, Bihar, and Orissa. 

Under the Royal Farman, dated August 12, 1765, which conferred upon the Company in perpetuity the Diwani authority over the provinces of Bengal, Bihar and Orissa, and the Articles of Agreement between the Nawab of Bengal and the Mughal Emperor dated August 19, 1765, the Company had to be security for the regular payment by the Nawab of the sum of Rs 26 lakhs a year as the royal revenue. Payment was to be made every month at the rate of Rs. 2,16,666-10-9 per month, from the dactory of Patna to Raja Shitab Roy or to whomsoever His Majesty might think proper to nominate, that he might forward the amount paid to the (Imperial) Court. In case, however, the territories of the Nawab were invaded by any foreign enemy, a deduction was to be made from the stipulated revenue in proportion to the damage that might be caused by the enemy. 

-The Royal Farman also provided that, as the Company had to maintain a large army for the protection of the provinces of Bengal, Bihar and Orissa, it was to appropriate to its own use whatever surplus might remain out of the revenues of those provinces, after remitting the sum of 26 lakhs of rupees to the Royal Sarkar and providing for the expenses o f the Nizamat. In consequence of its acquisition of the Diwani the Nawab of Moorshedabad consented to accept the annual sum of sicca rupees 53,86,13190 annually as an adequate allowance for the support of the Nizamat. The functions of the office of Diwan were to be exercised by its Resident at the Durbar who acted as the Collector of the King’s revenues under the inspection and control of the Select Committee at Calcutta. 

-The collection of revenues in the province of Bihar was placed under the immediate direction of the Chief at Patna, the Company’s Chief Representative there. He acted jointly with Shitab Roy and was subordinate to the Resident at the Durbar, to whom he had to make consignments of treasure, and to transmit monthly accounts of his office. The Resident was required to send the accounts to the Select Committee at Fort William. All the lands in Bengal and Bihar were considered as belonging to) the Crown or Sovereign of the country, who claimed, subject to what follows, a right to collect rents or revenues from all of them. But no such claim could be made in respect of any lands which were appropriated to charitable and religious purposes.The sources of the revenue o f the Company after the grant o f the Diwani were: (i) Rents of lands, (ii) Duties and Customs, (iii) Farms of exclusive privileges, and (iv) Fines and forfeitures. Rents derived from lands constituted in those days the principal source of revenue.

1767 -James Rennell appointed by EIC to survey the Bengal Presidency. Survey of India as a department of government of India established in 1767. The Survey of India was established to assist the British East India Company in carrying out survey work and to map territory for the purposes of administration, taxation, and defense. By the end of the 19th century, the survey had succeeded in mapping most of British India. It was fully involved in the process of revenue surveying till 1904.

Institution of Councils of Revenue at Moorshedabad and Patna under the direction of the Court of Directors, dated June 30, 1769.

1772 - When Shitab Roy was deprived of the office of Naib Dewan of the province of Bihar, the execution of the duties of that office temporarily devolved on the Patna Council of Revenue under an order of the Supreme Council dated at Fort William May 7, 1772. Revenue unit/department established.

1793 -East India Company fixed land revenues in perpetuity with the “Permanent Settlement” in 1793 in Bengal.

1815 -Colin Mackenzie appointed first Surveyor General of India.

1819 - Holt Mackenzie, Secretary, Board of Commissioners gave an advise for land survey, land title and tax ascertainment. 

1822 - Regulation VII framed to make property more secure and valuable because the stability of the government and its revenue were dependent upon the stability and security of property. Advice of Holt Mackenzie implemented, land tax 30% of land rental.

1833 - Regulation under William Bentinck provided for land map and registers.  

1835 -Lt. Vingate one of key officials of Engineering Core was appointed head of land survey. He was asked to prepare a report. 

1860 -Revenue Dept and established in a formal way. 

1875 -Bengal Survey Adhiniyam framed. 

1885 - Bengal (Bihar) Kashikari Adhiniyam framed.

1893 -Joint Memorial by five local associations of Bengal showing cause against the Cadastral Survey of North Bihar reached UK’s House of Commons.

1898-1920- Cadastral Survey undertaken under Bengal (Bihar) Kashtkari Adhiniyam, 1885. Cadastral Survey: The word 'cadastral' is the adjective of the word 'cadastre' which means a public records of the extent, value and ownership of land for purposes of taxation. This type of survey involves the preparation of (1) village maps showing the boundaries of groups of holdings, (2) large scale plans of survey field showing the boundaries of each holding, topographical details and all measurements, and (3) land registers giving the number, nature, tenure, area assessment and reputed ownership of each holding. This survey is repeated from time to time when changes occur in occupation and in the boundaries of fields particularly when such changes area too numerous to be dealt with the ordinary revenue staff. The term 'cadastral' has been derived from the French word 'cadastre' which means public register of ownership of parcel of land. In fiscal terms, it means a register of properties according to their value.

1904 -Each state of India made responsible for cadastral surveys in 1904. 

March 18, 1911 -The Bihar Government Estates (Khas-Mahal) Manual, 1911 farmed.

1914 -Final Report on the Survey and Settlement Operations in the District of Patna, 1907-1912 published by Bihar and Orissa Government Press under John Francis William James. 

Government of India Act established dual administration for law making by Centre and States, land and revenue was kept in the State list.

1926 -Final report on the survey and settlement operations in the Darbhanga District, 1896 to 1903 published by Superintendent, Govt. Print., Bihar and Orissa under J. H. Kerr (John Henry)

1934 - Bihar Adhibhuti sanshodhan Adhiniyam, 1934 (Bihar and Odisha) enacted. 

1935 - Land revenue is in State list under Government of India Act .

1947- Bihar Privileged Persons Homestead Tenancy Act, 1947 enacted.

1950 -Land revenue in State list, Constitution of India  

-Land Reforms Act के प्रावधानों के अनुसार जमींदारो/मध्यवर्तियों का उन्मूलन हो गया तथा उनके द्वारा रिर्टन समर्पित किये गये। उन्मूलन के प्रश्चात बिहार सरकार एकमात्र भू-मालिक हो गयी तथा राज्य के जोतदार रैयत हो गए।

The process of abolition of zamindari completed in 1956, but before the abolition, proprietary interest in land was vested in the proprietors of the estate in which the land was comprised. The estates were of three classes as follows: 

a) Permanently settled estates.

b) Temporarily settled estates

c) Government estates

The permanently settled estates used to belong to those estates, the proprietors of which took engagement with the EIC to pay the land revenue demand assessed in accordance with Regulation I of 1793 (known as Permanent Settlement Regulation). Temporarily settled estates were of two categories, firstly, these estates were the estates of those persons who for one reason or the other failed to take out engagement with the EIC for payment of land-revenue demand assessed at the time, and secondly the estates which were held revenue-free on invalid or unjustifiable titles. The lands fall under category of government lands were (a) waste land, (b) thanadari land for police station, (c) lands escheated to Government in default of legal heirs or claimants, and (d) lands forfeited for any State offence.

Prior to the Bihar Land Reforms Act, 1950, the interests in land used to be governed in accordance with the Perma­nent Settlement introduced by the East India Company way back in 1793, which had given rise to the following hierarchy of interests :

1. The Zamindar : legally a “proprietor”, but acting as an intermediary of the state in the collection of rent from tenants. The amount payable to the state was fixed in cash, in perpetuity, and was supposed to represent nine-tenths of what the zamindars received in rent from the tenants. The zamindars were, however, allowed the right to fix their own terms with tenants.

2. The Tenure-holder: “primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing rents or bringing it under cultivation by establish­ing tenants on it, and includes also the successors-in-interest of persons who have acquired such a right” (Bihar Tenancy Act of 1885).

3. The Occupancy Raiyat : a rent-paying holder of land having the right of occupancy on the land held by him “for the purpose of cultivating it by himself, or by members of his family or by hired servants or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right” 

4. The Non-occupancy Raiyat: a rent-paying holder of land not having the right of occupancy on land temporarily in his possession.

5. The Under-raiyat: a rent-paying holder of land having temporary possession of a holding under a raiyat.

6. The Mazdur: a wage labourer having no right in land. 

Bihar Land Reforms Act, 1950, popularly called the Zamindari Abolition Act, abolished intermediary tenures. At the time of zamindari abolition in Bihar, there were 205,977 revenue-paying, permanently settled estates, representing 90 percent of the total area of the state.19 It did not  bring under-ryots, the actual cultivators of land, in contact with the state. The zamindaris were abolished in three phases, the last phase beginning on April 1, 1956. This phase was characterized by absentee landlordism. The Zamindari Abolition Act allowed ex-landlords to retain land in their khas possession. The blanket provision was not in consonance with the national guidelines which indicated that zamindars should be allowed to resume land up to three times the economic holding. The Patna High Court held the view that “khas possession” includes constructive possession i.e. possession through hired servants. It was only in the year 1964 that the Supreme Court overruled this view and held that ‘khas possession’ connotes only personal possession. 

The rights of intermediaries in Gair Mazarua Khas land were abolished under the Bihar Land Reforms Act, 1950 and all such lands were vested in the Government. Gair Mazarua Khas Land means cultivable land retained by ex- intermediaries and not settled with raiyats. The government has issued instructions from time to time to revenue officers to examine all cases of unsettled Gair Mazarua Khas land and to settle such land with persons of eligible categories, such as scheduled caste, scheduled tribes, backward classes and the landless persons at fair and equitable rent. 

Gair Mazarua Aam land means uncultivated land for public use as grazing ground, play.

1953 - The Bihar Government Estates (Khas-Mahal) Manual, 1953 framed.

1954- Bhoodan Yagna Act, 1954 enacted. 

1956 -Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956 enacted. बिहार जोत समेकन एवं खण्डकरण निवारण अधिनियम, 1956. 

1960s -The Revisional Survey of land started after the abolition of zamindari in 1950 but not 12 districts of Bihar were covered. “Revisional Survey” means survey operations initiated and conducted on the basis of the blue print map of the cadastral survey in order to update the land records.

1961- भू-हदबंदी अधिनियम, 1961 enacted.

1974-बिहार साहूकार अधिनियम, 1974 enacted

2009-बिहार भूमि विवाद अधिनियम, 2009 enacted 

-In Abhay Shankar Sinha vs The State Of Bihar (2009), the Patna High Court dealt with "Khas Mahal" land. It recalled that in Bhola Ram Chaudhary and others vs. State of Bihar (1989), it observed:-"Let us therefore examine whether Khas Mahal was/is intermediary. What is, therefore, Khas Mahal ? The word “Khas Mahal” is nothing but what is known in English as "Government Estate". That is defined in the Khas Mahal as follows:-

    "Meaning of Government estates":- The term Government estates is used to mean estates under the direct management of Government whether these are the property of Government or are the estate of private individuals brought under the direct management of Government. It may also mean any land which is the property of Government and as such would include estates owned by Government which have been let in farm and leased for periods and also the waste lands but would not include lands belonging to other departments of Government, e.g. road-side lands, so long as they are not relinquished by the department concerned to the Collector for management. This manual unless it so appears from the context, deals with the principles, policy and procedure for Khas management of estates under the direct management of Government.’

From the above there can be no difficulty in appreciating that Khas Mahal is nothing but Government Estate. It is the Estate of the Government. Since it is Estate of the Government, it cannot be a Zamindari. Not being a Zamindari a Khas Mahal cannot vest in the State of Bihar. It has always been in the State of Bihar itself." 

-In his book ‘Imagining India’, Nandan Nilekani refers to Bank’s economist, Hernando de Soto's book 'The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else' to argue that national ID system would be a big step for land markets to facilitate right to property and undoing of abolition of right to property in 1978 in order to bring down poverty! In the post-capitalist and post-socialist era, such assumptions of triumph have been found to be deeply flawed. In fact, even the title of the books sounds weird in the post-financial crisis era.

2010-बिहार कृषि भूमि (गैर कृषि प्रयोजनों के लिए सम्परिवर्तन) अधिनियम, 2010 enacted

2011- बिहार भूमि दाखिल खारिज अधिनियम, 2011 enacted

December, 22, 2011-Bihar Gazette publishes The Bihar Special Survey and Settlement Act, 2011

The Act has 4 chapters and 28 sections in the original form.

The Act is aimed at preparation and maintenance of to-date record of rights for revenue and land resource management, Computerisation of land records in uniform way to address gap between computer data and to-date ground realities

Conclusive ascertainment of current title, possession and classification of lands - for agricultural credit, subsidy, relief and insurance related activities

-Section 3 empowers the government to issue notification for carrying out special survey, and settlement in a part of the whole of State

-Section 5-Self declaration of land holders-Amin and Kanoongo to prepare a genealogical table of the land holders and yaddast register after Secttion 3 notification-a land holder may submit a self declaration with respect to land held by him/her before the Assistant Settlement Officer-Settlemet Officer will issue a verification certificate   

-Section 7 (5) provides for identification & demarcation of public lands, Government lands, lands treated as common property resource and the like-to record it in the Record of Rights

-Section 12 provides for Publication of record of rights

-Section 13 provides for Consolidation operations after special survey and settlement under the Bihar Consolidation & Holding & Prevention of fragmentation Act, 1956.

-Section 14 provides for maintenance of records in digital form.

-Section 20 Act overrides all other laws (section 20) 

-Section 21 makes state a party in Certain cases"

-Section 23 states that only Patna High Court and Supreme Court can entertain any suit or proceeding r/w Section 12

-Section 28-power to make Rules

-Section 25-technical guidelines 

July 12, 2012-Rules framed & published with technical guidelines 

March 28, 2014 -In Maya Devi vs. The State of Bihar, the Patna High Court held that an entry as to land being Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind in the cadastral survey over 100 years old with regard to nature of land is not an entry for all times in future but an entry with regard to existing state of affairs then. The petitioners cannot be evicted by the State in any manner nor can just compensation for acquisition be denied to them till such time the dispute is resolved and till the title of the State is declared.

September 4, 2017 - Bihar Gazette publishes the Bihar Special Survey & Settlement (Amendment) Act, 2017

February 27, 2019 -  Bihar Special Survey & Settlement Rules amended. 

March 27, 2019 -Bihar Gazette publishes Amendment Act, 2019. Bihar Special Survey & Settlement Technical guidelines amended. 

November 2019-Section 56 of NITI Aayog's Model Conclusive Land Titling Act states: Compulsory use of biometric identification-The Authority may, by notification from time to time in this regard, appoint a date from which it shall provide compulsory use of one or more than one particular personal identification system such as biometric authentication, Iris diagram or finger-print,or any other such method for establishing the identity of any person, for the purpose of any transaction or transfer of any Immovable Property recorded in the Register of Titles.

Section 65 (2) (m) of the Model Act under Power of the State Government to make Rules states: "use of biometric authentication including AADHAR or other identification."

-NITI Aayog shared this Model Act and the Mahatashtra Land Titling Act to the States. 

September 2020 -The special survey work under phase-1 started in September 2020 at 5228 villages, 207 camps spread over 89 circles in 20 districts while under phase-2, work started in July 2021 at 4,668 villages, 197 camps in 90 circles spread over 20 districts. “Under phase -3, survey will start in around 10,000 villages in 114 circles covering 18 districts,” the ACS said during his presentation. In Bihar, the last cadastral survey, a process to ascertain land boundaries of through manual survey, was held 1911, during the British rule. In the last one century, a few revisional surveys have been held.

November 5, 2021 -The ongoing special survey for updating land records being carried out in a phased manner across Bihar will be completed by December 2023, state’s revenue and land reforms department informed chief minister at a review meeting. Additional chief secretary (revenue and land reforms department) briefed the CM on the status of the special survey underway in different parts of the state. The special survey work under phase-1 started in September 2020 at 5228 villages, 207 camps spread over 89 circles in 20 districts while under phase-2, work started in July 2021 at 4,668 villages, 197 camps in 90 circles spread over 20 districts. “Under phase -3, survey will start in around 10,000 villages in 114 circles covering 18 districts”. 

May 9, 2023 -Bihar Gazette Notification May 9, 2023 and relevant text of the Section 7 of Aadhaar Act which says, Aadhaar Number is voluntary but news reports in Bihar say, it is mandatory! The fifth sentence in the last paragraph of the Bihar Gazette notification dated May 9, 2023 clearly says, "Aadhaar authentication" is "on voluntary basis". It has to be voluntary because of Sections 7 of the Aadhaar Act 2016. The second para of Sections 7 of the Aadhaar Act 2016 implies that Aadhaar is not mandatory for anything. It shows that due to some communication gap or ignorance of relevant legal provisions, there is misreporting of facts regarding Aadhaar being mandatory. 

July 2024 - CM seeks completion of Special Survey by July 2025. Special survey commences in 45,000 villages to digitize land data with a one-year time frame for completion.

-Union Budget unveiled plans for 'Bhu-Aadhaar' unique IDs for rural land parcels and digitization of urban land records by 2027.

September 2024- Bihar revenue and land reforms department minister is reported to have said that people should not panic as no deadline has been fixed for submitting self-declaration either online or offline to join the process. Earlier, the landowners had to submit self-declaration within a month of the declaration of Bihar special land survey.

The cadastre is managed by the state government.  Generation and maintenance of the cadastral records is different in different states. The current cadastral maps in all states and union territories are usually based on a graphical representation. 

-Bhu-Aadhar : Unique Land Parcel Identification Number (ULPIN)

Unique Land Parcel Identification Number (ULPIN) is part of the Digital India Land Records Modernization Programme (DILRMP). It is a 14-digit identification number accorded to a land parcel based on the longitude and latitude coordinates of the land parcel and depends on detailed surveys and geo-referenced cadastral maps. ULPIN is a Single, Authoritative Source of Truth for information on any parcel of land or property to provide Integrated Land Services to the citizens as well as all stakeholders. The Unique Land Parcel Identification Number (ULPIN) system is based on international standard which complies, with Electronic Commerce Code Management Association (ECCMA) standard and Open Geospatial Consortium (OGC) standard.

Generation of ULPIN- There is a formula to generate and assign ECCMA (Electronic Commerce Code Management Association) Standard prescribed 14 digit Unique ID “Property Natural Identifier Unit” (PNIU) using the parcel Geo Referenced coordinate of vertices

This computationally generated Unique ID would be organically dependent on Parcel vertices expressed in Lat/Long coordinates “property Natural Identifier Lot” (PNIL) and Unique ID (PNIU) would spatially be pointing to the surface of the parcel.

For all the special land survey documents and technical guidelines refer  to https://dlrs.bihar.gov.in/compendium.pdf 

Dr. Gopal Krishna

The author is a lawyer and a bilingual philosophy and public policy researcher. He has given expert testimony before the Indian, European and German Parliamentary Committees in the matter of national and international legislations on the land acquisition, national identification, hazardous waste trade, corporate code of conduct, civil liability for nuclear damage, consumer protection and biological diversity. E-mail:forcompletejustice@gmail.com

Supreme Court set aside Patna High Court judgement for violating Articles 14, 16 of Indian Constitution

In Anjum Ara Vs. State of Bihar, Supreme Court's bench of Justices B.R. Gavai and Sandeep Mehta observed that "The impugned judgments and orders dated 28th November 2022 in LPA No. 1853 of 2016 in CWJC No. 17585 and dated 23rd August 2016 in CWJC No. 17585 of 2015, passed by the High Court of Judicature at Patna are quashed and set aside." The judgement was authored by Justice Gavai. It was delivered on January 8, 2024. The former judgement in Anjum Ara Vs. State of Bihar was authored by Justice P. B. Bajanthri as part of a Division Bench comprising of Justice Purnendu Singh. It was delivered on November 28, 2022. The latter judgement in Anjuam Ara Vs. State of Bihar was authored by the Single Judge Bench of Justice Ajay Kumar Tripathi. It was delivered on August 23, 2016.

The Court observed, "we find that the judgments and orders passed by the learned Single Judge as well as the Division Bench are not sustainable in law." It also set aside the order dated July 30, 2015 passed by the Appellate Authority in Bihar and directed that the appellant be reinstated forthwith. 

The Supreme Court heard the appeal challenging the judgment and order dated 28th November 2022 passed by the Division Bench of the High Court of Judicature at Patna in Letters Patent Appeal(LPA) No. 1853 of 2016 in Civil Writ Jurisdiction Case (CWJC) No. 17585 of 2015, thereby dismissing the appeal filed by the present appellant.

The facts are as under: On October 17, 2012, District Programme Officer, Katihar published a notice for selection of Anganwari Workers/Sevika. Pursuant to the said notice, the present appellant as well as respondent No. 8 herein applied for the said post in the selection process. The appellant has secured 80.60, whereas respondent No. 8 has secured 48.60 marks. The appellant was appointed to the post of Anganwari Sevika on July 2, 2013. Being aggrieved and dissatisfied with the order of appointment issued in favour of the appellant, respondent No.8 submitted a representation before the District Programme Officer, Katihar praying for cancellation of the order of appointment dated July 2, 2013 issued in favour of the appellant. She also prayed for a direction to issue an order of appointment in her favour. The same came to be rejected by the District Programme Officer, Katihar vide order dated November 13, 2014. Being aggrieved thereby, respondent No. 8 preferred an appeal before the Appellate Authority–Court of Joint Commissioner-cum-Secretary, Regional Transport Authority, Purnea. The Appellate Authority, vide order dated July 30, 2015, allowed the appeal filed by respondent No.8 while setting aside the order of appointment dated July 2, 2013 issued in favour of the appellant. Being aggrieved thereby, the appellant filed a writ petition being CWJC No. 17585 of 2015 before the High Court of Judicature at Patna.

The Single Judge, vide order dated August 23, 2016, dismissed the said writ petition. Being aggrieved thereby, the appellant filed LPA No.1853 of 2016 in CWJC No. 17585 of 2015 before the learned Division Bench of the High Court. The same was also dismissed vide the impugned order. 

The appellant's counsel submitted that the only ground on which the appellant was held to be disqualified was that her father was a Panchayat Teacher and he was drawing a salary of Rs.6,000/- per month. It is submitted that Clause 4.9 of Anganwari Sevika Guidelines, 2011, which imposed certain restrictions, was found to be in violation of Articles 14 and 16 of the Constitution of India by the High Court vide order dated September 27, 2022 passed in CWJC No. 13210 of 2014. This was ignored by the  Division Bench of the High Court.

The Supreme Court observed: "7. We find that both the learned Single Judge and the Division Bench have grossly erred in dismissing the writ petition as well as LPA filed by the appellant. 8. Clause 4.9 of the 2011 Guidelines imposed a restriction on such persons whose family member or members have secured appointment with the State Government or any organization of the State. The said Clause 4.9 of the 2011 Guidelines came to be challenged before the High Court by way of CWJC No. 13210 of 2014. The High Court, vide judgment and order dated 27th September 2022, after elaborate discussion, struck down the said Clause 4.9 of the 2011 Guidelines. 9. The only ground on which the appellant has been non-suited was that the appellant had not challenged the said Clause 4.9 of the 2011 Guidelines before the High Court. We find that the reasoning as adopted by the learned Division Bench is totally unsustainable."

It observed: "10. When the said Clause 4.9 of the 2011 Guidelines was struck down by the High Court vide judgment dated 27th September 2022, it ceased to exist. As such, it was not necessary for the appellant to challenge the validity of the same inasmuch as the same was already held to be invalid by the very same High Court." 

But the Court concluded that "the appellant would not be entitled to wages for the period during which she was out of employment, she would be entitled to continuity in service for all other purposes."