High Court
Case Details
WP(C) 3984/2012 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI Heard Mr. A Roshid, learned counsel for the petitioner. Also heard Mr. M Dutta, learned counsel appearing for respondent No. 6 as well as Mr. BK Sharma, learned Standing counsel, Social Welfare Department. By this writ petition, the writ petitioner prays for quashing the select 2. ion and appointment of the respondent No. 6 for the post of Anganwadi Helper in respect of Ramharipara Anganwadi Centre (AWC) and to appoint the petitioner in t he post. 3.
Legal Reasoning
At the hearing, all the counsel representing the parties submitted that, in fact, no appointment order has been issued to the respondent No. 6 till date .
Legal Reasoning
Mr. Roshid submits that pursuant to an advertisement dated 12.03.2007 is 4. sued by the Child Development Project Officer (CDPO), Chenga ICDS Project, the p etitioner, the respondent No. 6 and some others had submitted their respective a pplications for the post of Anganwadi Helper in respect of Ramharipara AWC. 5. The interview was held on 13.06.2007. Though the respondent No. 6 was no t a resident of village Ramharipara but was a resident of village Holongapara, t he respondent No. 6 was selected as Anganwadi Helper in Ramharipara AWC. 6. The grievance of the petitioner was considered by a Sub-Divisional Level Committee (in short, Committee), which, on consideration of the materials on re cord, opined that the respondent No. 6 is a resident of Holongapara village and therefore, she being a resident of outside the AWC area in question, was not ent itled to be appointed in view of the guidelines holding the field. Though recomm endation was made by the Committee for cancellation of the engagement of the res pondent No. 6, the State authorities had not taken any action in the matter. 7. Mr. M Dutta, learned counsel appearing for the respondent No. 6 submits that the Committee was directed to be constituted by this Court by an order pass ed on 10.12.2009 in WP(C) No. 1814/2008 and a batch of writ petitions to scrutin ize the claims made in the writ petitions which were disposed of by the said com mon order dated 10.12.2009. The selection of the respondent No. 6 was never unde r challenge in any of the writ petitions and therefore, the Committee could not have usurped jurisdiction to go into the question of selection of the respondent No. 6. 8. As the recommendation of the Committee is void ab-initio because of inhe rent lack of jurisdiction, the learned counsel submits that the State respondent s rightly did not pass any order with regard to the so-called recommendation of the Committee. 9. It is also contended by him that most arbitrarily, no appointment order has been issued in favour of the petitioner though selection remains unimpeached . He, however, submits that till date, the respondent No. 6 has not taken recour se to any remedy available to her regarding non-issuance of appointment order. 10. Drawing the attention of this Court to paragraph 4 of the affidavit-in-o pposition, the learned counsel also submits that the writ petitioner herself is not a resident within the Ramharipara AWC. 11. Even though the Committee had recorded adverse finding in respect of res idency against the respondent No. 6, the learned counsel submits that such findi ng is not correct and asserts that the respondent No. 6 is a resident within the AWC. 12. Mr. BK Sharma, learned Standing counsel, Social Welfare Department submi ts that the writ petitioner had not earlier challenged the selection of the resp ondent No. 6 by filing any writ petition. While not committing to a definite sta nd as to whether the Committee had jurisdiction to decide any selection not cove red by the order dated 10.12.2009, the learned Standing counsel submits that, ap parently, no decision was taken by the State Government with regard to the recom mendation of the respondent No. 6. 13. I have heard the learned counsel for the parties and have considered the submissions.
Decision
14. A large number of writ petitions came to be disposed of by the order dat ed 10.12.2009. It will be most convenient to extract relevant portion of the afo resaid order dated 10.12.2009 in order to understand the constitution and scope of the Committee directed to be set up by the said order. (cid:28)Considering the submissions made by the learned counsel for the parties and the materials on record, I am of the considered opinion that the ends of justice wi ll be met if a committee(s) is/are constituted by the Commissioner and Secretary to the Govt of Assam, in the Social Welfare Department to look into the grievan ces of the petitioners as reflected in the individual writ petitions. It is sub mitted by the learned counsel for the parties that there will not be any occasio n for the petitioners to file individual representation before the said Commissi oner and Secretary agitating their grievances and that the individual writ petit ion may be treated as the representation. Since it will not be possible on the part of the Commissioner & Secretary to the Govt. of Assam in the Social Welfare Department to take the task of scrutinizin g the grievances of the petitioners all by himself, it is hereby provided that h e may constitute appropriate committee(s) with such members as he may deem fit a nd proper. In this connection, he may take into account the aforesaid suggestio n advanced by the learned counsel for the parties. As to the constitution of th e committee, the Commissioner and Secretary shall decide as to whether it should be only one Committee or Committees District-wise/Sub-Division-Wise. As to who should be members thereof will also be a matter to be decided by the Commission er and Secretary applying his sound discretion. It is advisable not to include departmental officers in the Committee(s) against whom there are allegations. It is also advisable to get the assistance of the Deputy Commissioners and the SDO s of the Districts and Sub-Divisions respectively. In so far as the BTC area is concerned, members from that area shall be inducted in the Committee(s). The Committee(s) to be constituted by the Commissioner & Secretary as aforesaid shall be so constituted as expeditiously as possible but not later than 31st Jan uary, 2010. Upon such constitution of the Committee(s) same shall be notified. T he petitioners shall approach the said Committee (s) with their individual and a uthenticated writ petitions, which will be treated as their representations. As suggested by the learned counsel appearing for both the official and private res pondents, they may also submit their authenticated copies of the affidavits, whi ch have been filed in some of the writ petitions. Such authentications may be ma de by the parties themselves or their learned counsel. In case of any doubt rega rding authenticity, the Committee(s) will be at liberty to get the same verified through the learned State Counsel. Upon submission of the aforesaid documents, the Committee(s) as per its own moda lity find out the truth or otherwise of the grievances made in the writ petition s. After the aforesaid scrutiny is done, the Committee(s) shall answer all the c ases by appropriate and speaking orders. Depending upon the orders so passed, th e consequential action to be taken by the departmental authorities will follow. The aforesaid exercise shall be completed by the Committee(s) as expeditiously a s possible but at any rate not later than 4 (four) months from the date of const itution of the Committee(s). The Committee(s) will decide the issues involved as per the existing modality an d guidelines. The Committee(s) will make it clear that in case of furnishing any distorted version of the related state of affairs, the officers concerned shall be liable for disciplinary proceedings. It will be open for the selected and appointed candidates who are not parties to this proceeding to submit their documents through affidavits before the said Co mmittee(s). (cid:29) (emphasis supplied) 15. A minute reading of the said order would leave the Court with no room fo r doubt that the Committee was required to be constituted by the Commissioner an d Secretary, Social Welfare Department only to look into the grievances of the p etitioners as reflected in the writ petitions. The constitution of the Committee was left to the discretion of the Comm 16. issioner and Secretary. The Committee was to be constituted expeditiously and no t later than 31.01.2010. The writ petitioners were to approach the Committee wit h their writ petitions. The Committee, after considering the grievances made in the writ petitions, was to answer all questions by appropriate speaking orders. The Departmental authorities were then to pass consequential orders based on the orders passed by the Committee. 17. Mr. A Roshid has not disputed the contention of Mr. M Dutta that selecti on of the respondent No. 6 was not called into question earlier by filing any wr it application. It is also not disputed by him that no other candidate had also assailed such selection and thus, none of the writ petitions that were disposed of by the order dated 10.12.2009 was connected with the selection of the respond ent No. 6 as an Anganwadi Helper in Ramharipara AWC. 18. The Committee derived jurisdiction to decide the subject matters of the writ petitions. This mandate, which was given by this Court, could not be assume d by the Committee on its own and as such, I am of the considered opinion that t he Committee did not have any role to play in respect of any matter which was no t the subject matter of the writ petitions disposed of by the order dated 10.12. 2009. It is to be borne in mind that the Committee was not constituted by the Go vernment on its own as a forum for determination of disputes relating to select ion in AWCs. 19. How the matter went to the Committee is also not very clear and Mr. Dutt a submits that he was also not afforded any opportunity and the entire proceedin g had taken place without any notice to him. 20. Though Mr. Dutta had contended that because of inherent lack of jurisdic tion of the Committee, the State respondents consciously did not pass any conseq uential order based on the recommendation of the Committee, it is difficult to a ccept that submission. 21. In the letter dated 02.07.2011 issued by the Joint Secretary to the Gove rnment of Assam, action taken report based on the recommendation of the Committe e is enclosed. So far as Chenga ICDS Project is concerned, which is the project under which the present AWC falls, no such decision is discernible. In substanc e, the recommendation of the Committee was not even noted and was thoroughly ove r-looked, betraying non-application of mind. 22. That is to say, no decision, either way, was taken by the Departmental a uthorities on the recommendation made by the Committee in respect of respondent No. 6. 23. As the Court has already held that the recommendation of the Committee i s unauthorised, the State authorities shall not act upon the said recommendation . However, having regard to the fact that a dispute has been raised by the writ petitioner, though after a considerable period of time from the date of selectio n of the respondent No. 6, and taking note of the fact that till now the respond ent No. 6 has not been issued any appointment order because of the uncertainty l ooming large with regard to her residential status, I consider it appropriate to resolve the issue once for all at the earliest. Taking that view, the Director of Social Welfare is hereby directed to decide the question as to whether the re spondent No. 6 fulfills residential requirements in terms of the guidelines date d 31.08.2007 by affording opportunity to both the respondent No. 6 as well as th e writ petitioner. The issue whether the writ petitioner fulfills such requireme nt shall also be looked into. 24. This exercise shall be completed on or before 30.11.2013. Depending on t he outcome of the exercise, consequential orders shall be passed. The Director o f Social Welfare will see to it that the order is complied with in letter and sp irit on or before the date fixed as 6 (six) years have already gone by. 25. vations. No cost. The writ petition is disposed of with the aforesaid directions and obser