Smti Jahera Begum v. The State of Assam & Ors.

THE HON’BLE MR. JUSTICE RANJAN GOGOI For the petitioner : Shri D.A. Kayum, Advocate. For the respondents : Mr. BJ Ghosh, Govt. Advocate, Assam Mr. GM Sarkar, Advocate for Respondent No.5. Date of hearing Date of Judgment and Order JUDGMENT AND ORDER : :

17.02.2009

19.02.2009 (Oral) The challenge in the present writ petition is against an order d ated 5th January, 2009 by which the Director of Social Welfare, Government of As sam has directed the Child Development Project Officer, Krishnai-Balijana ICDS P roject to terminate the service of the petitioner and to submit a proposal for a ppointment of the Respondent No.5, whose name had appeared at Serial No.2 of the select list. The post in question is that of Anganwadi Worker in the Chandmari (Majorpara) Anganwadi Centre.

2. The pleaded case of the petitioner is that there is a revenue vi llage under the name of Kalpani Chandamari. The said village consists of two par ts - i.e. Chandamari Majorpara and Chandamari Kuchbaripara. The aforesaid villag e, according to the petitioner, falls under Kalpani Chandamari Gaon Panchayat. A ccording to the petitioner, there are two Anganwadi Centres covering the village in question i.e. Chandamari Majorpara Anganwadi Centre (New) and Chandamari Kuc hbaripara Anganwadi Centre (Old).

3. The petitioner participated in the selection for appointment in the post of Anganwadi Worker in respect of Chandamari Majorpara Centre. Accordin g to the petitioner, the said selection was held as per the guidelines circulate d by the Government by letter dated 12.3.2007. The aforesaid guidelines were, in ter alia, to the effect that to be eligible for appointment in the post of Angan wadi Worker, a candidate must be a female residing in the village(s)/locality co vered by the concerned Anganwadi Centre. According to the petitioner, she was ca lled for taking part in the interview which was held on 18.4.2007. The petitione r further states that she was placed at Serial No.1 of the merit list. However, appointment was not forthcoming on account of some complaints filed to the effec t that the petitioner was not eligible for appointment in the Anganwadi Centre i n question. However, the petitioner was appointed as a Anganwadi Worker in the c entre in question on 13.7.2007 and was asked to join within seven days. The peti tioner contends that she joined immediately and, while in service, she came to k now of an order dated 4.3.2008 passed by the Director of Social Welfare, Assam r equiring the concerned CDPO to terminate the petitioner’s service and in her pla ce to appoint the Respondent No.5. According to the petitioner, the said order o f the Director was passed on the basis of a report of enquiry submitted by the D ivisional Programme Officer, Divisional ICDS Cell, Kamrup, Guwahati. As the enqu iry in question was held behind the back of the petitioner and she was given no notice or opportunity prior to her termination and furthermore as the enquiry re port which formed the basis of the impugned order of termination, was not furnis hed to her, the petitioner instituted a writ proceeding before this Court which was registered as W.P.(C) No.1000/2008. The aforesaid writ petition was disposed of by the Court on 30.10.2008 by allowing the petitioner to continue in service . This Court, by its order dated 30.10.2008, however, directed that a fresh enqu iry be made in the matter after due notice to the petitioner.

4. According to the petitioner, she received notice from the enquir y officer i.e. Divisional Programme Officer, Divisional ICDS Cell, Kamrup, Guwah ati to take part in the enquiry scheduled to be held on 24.12.2008. On the said date the petitioner appeared before the Inquiry Officer and submitted documents in support of her case. The said documents, according to the petitioner, were in the form of a certificate issued by the Secretary of the Kalapani Chandmari Gao n Panchayat; voters’ list of 2007 and a survey report. On the basis of the repor t of enquiry submitted to the Director, the said authority had passed the impugn ed order dated 5.1.2009 for terminating the service of the petitioner and for su bmission of a proposal for appointment of the Respondent No.5. Aggrieved, the wr it petition has instituted this present writ petition challenging the order date d 5.1.2009.

5. The grounds of challenge against the order dated 5.1.2009 have b een stated by the petitioner in paragraph-17 of the writ petition. In the afores aid paragraph of the writ petition, it has been stated that the documents submit ted by the petitioner were not forwarded by the Inquiry Officer to the Director of Social Welfare so as to enable the said authority to comprehensively consider the matter. Additionally, it has been urged that the impugned order has been pa ssed by the Director upon consideration of the voters list, earlier survey repor t of Kalapani-Chandamari Anganwadi Centre and the communication dated 30.9.2008 of the Secretary of Kalapani-Chandamari Gaon Panchayat. The documents submitted by the petitioner i.e. the earlier certificate issued by the concerned Gaon Panc hayat Secretary and the earlier survey report was not considered by the Directo r at the time of passing of the impugned order dated 5.1.2009. Accordingly, the said order is contended to be vitiated in law.

6. I have heard Mr. DA Kayum, learned counsel for the petitioner an d Mr. G.M. Sarkar, learned counsel appearing for the Respondent No.5. I have hea rd Mr. BJ Ghosh, learned Government Advocate, Assam. I have perused the records in original which have been placed before the Court by the learned Government Ad vocate pursuant to the order of passed by the Court.

7. At the very outset, it must be put on record that the report of the enquiry which was submitted on 2nd January, 2009 to the Director of Social W elfare and which has been relied upon while passing the impugned order dated 5.1 .2009 had not been furnished to the petitioner. A copy of the said report was, t herefore, directed to be furnished to the learned counsel for the petitioner, wh ich was so done, as recorded in the Court’s order dated 17.2.2009. Though the re port of enquiry relied upon was not furnished to the petitioner prior to the imp ugned order dated 5.1.2009, I have not considered it appropriate to set aside th e impugned order on the aforesaid ground alone. To justify interference on the a foresaid ground, the petitioner has to establish a case of prejudice being cause d on account of non-furnishing of the report of the enquiry dated 2.1.2009. The above view taken by the Court could find support from the judgment of the Apex Court in Managing Director, ECIL, Hyderabad -Vs.- B. Karunakar, reported in 1993 (4) SCC 727, wherein, though on a slightly different context, the Apex Court has held that the non-furnishing of the report of the enquiry shall not ipso-facto vitiate a proceeding or an order passed therein. A perusal of the report of enquiry submitted to the Director, So 8. cial Welfare by the Programme Officer, Divisional ICDS Cell, Kamrup, Guwahati wo uld go to indicate that the documents stated in paragraph-17 of the writ petitio n were filed by the petitioner before the Inquiry Officer. The said documents we re taken into account by the Inquiry Officer in submitting his report along with other documents which were placed before him in the enquiry. In this regard, th e Inquiry officer clearly and categorically held that the voters’ list submitted by the petitioner did not establish her case that she was a resident of the loc ality serviced by the Anganwadi Centre in question though the same had indicated that the petitioner and her family members were included in the Kalpani Chandam ari Revenue Village. As already noticed, there were two Anaganwadi Centres servi cing the population of the said village. In so far as the certificate issued by the Gaon Panchayat Secretary is concerned, the report of enquiry indicates that there was a subsequent communication dated 30.9.2008 from the Secretary of the G aon Panchayat i.e. Kalapani Chandamari Gaon Panchayat stating that the Secretary had given wrong information in the certificate dated 25.09.2008 issued to the p etitioner regarding the details of her residence. The aforesaid facts were duly taken into account by the Inquiry Officer. In so far as the third document submi tted by the petitioner is concerned, i.e. the earlier report of survey, a readin g of the enquiry report would go to show that the same was considered along with the records and registers of Kalpani (Kuchbaripara) Anganwadi Centre. In this r egard, the Inquiry Officer also relied on a report dated 24.12.2008 submitted by the Circle Supervisor and Statistical Assistant of Krishnai-Balijana ICDS Proje ct to the effect that the family of the petitioner is not covered by the Chandam ari (Majorpara) Anganwadi Centre as per survey record of the said centre. All th e aforesaid facts or at-least the relevant part thereof also find reflection in the order dated 5.1.2009 of the Director of Social Welfare.

9. The petitioner having come up with a specific case that the reco rds filed by her before the Inquiry Officer were not considered and the report o f the enquiry having clearly demonstrated that the said records were in-fact con sidered, the Court will have to hold that non-submission of the report of the en quiry to the petitioner at a stage prior to the impugned decision did not cause any prejudice to the petitioner. At the same time, the contents of the report of the enquiry dated 2.1.2009 and the reflection of the major findings thereof in the impugned order dated 5.1.2009 leaves the Court satisfied that the present is not a fit case for interference with the impugned order dated 5.1.2009.

10. The writ petition, consequently, is without any merit or substan ce and it is, accordingly, dismissed. However, having regard to the facts and ci rcumstances of the case, I make no order as to costs.