The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 13650 of 2007 An application under Sections 226 and 227 of the Constitution of India. -------------- Smt. Nirmala Behera@Devi ...… Petitioner -Versus- The State of Orissa and Others ..…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : M/s. A. K. Mishra-2 M.K. Mallick, Advocates For Opp. Parties : Mr. S.N. Patnaik, Addl. Government Advocate Mr. P.K. Sejapada, Advocate (For O.P.No.5) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 5th July, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this writ petition with the following prayer:- “it is therefore prayed that this Hon’ble Court may graciously be pleased to admit this writ application and notices be issued to the O.Ps and the sides, appropriate after hearing both Page 1 of 11 b) writ/writs be issued with following direction such as a) irregular/illegal one and In view of the Annexure-9 the selection of the name of O.P. No.5 and her appointment in the post of ASHA under Pataberana Anganwadi Center, Pataberana under Lodhatuna Block, be the declared as appointment order be called for and quashed. To the O.Ps to take steps for appointment of the petitioner as ASHA under Pataberan Anganwadi pataberana, Center, Sarangadharpur, Nayagarh without any further delay. pass further order/orders, direction/directions as deems fit and proper under the fitness of the facts and circumstances of the case. And for this act of kindness the petitioner as in duty bound shall every pray.” other such and c) And 2.
Legal Reasoning
The facts of the case are that in the third week of December 2006, process was initiated for selection of ASHA under Pataberana Anganwadi Center within Lodhatua Gram Panchayat in the district of Nayagarh. The petitioner along with nine other women offered their candidatures. On 17.12.2006, the ANM, Lodhatua Sub- Center convened a meeting for selection of ASHA, which was attended by the members of SHG, Ward Members etc. All the members of the SHG proposed the name of the Page 2 of 11 petitioner but without any justified reason, selection was made by drawing of lots and upon the behest of one Adhikari Sahoo. By adopting such process, the present opposite party No.5 was selected for engagement. Being aggrieved, the petitioner approached the Collector by submitting a representation on 23.12.2006 followed by representations to the Chief District Medical Officer (CDMO), Nayagarh on 23 02.2007 and also met the Collector in his Grievance Cell on 17.03.2007. Since no action was taken she approached this Court in W.P.(C) No.5588 of 2007. By order dated 04.05.2007, this Court disposed of the writ petition directing the Collector to conduct inquiry by calling for the records of the Selection Committee within three months. The matter remained pending till 06.09.2007 when she was informed that the process of ASHA selection was done as per government norms in a fair manner and that the petitioner was a party to it. It is the petitioner’s case that she is the most suitable candidate and her name was proposed and accepted in the meeting. Moreover, a lottery system was Page 3 of 11 adopted behind her back and opposite party No.5 was selected despite not being recommended by the members. The information submitted to the petitioner under the RTI Act was also false. Moreover, the selection was made in a manner contrary to the guidelines. 3. The Chief District Medical Officer (Opposite Party No.3) has filed counter stating that the members of the SHG unanimously resolved to select the opposite party No.5 as ASHA. In the meeting held on 18.12.2006, two names were suggested by the members and since there was no unanimity among them, lottery was drawn as per Clause-VI of the guidelines whereby the name of opposite party No.5 being eligible for selection was picked and she was engaged. 4. The petitioner has filed a rejoinder refuting the averments of the counter. It is stated that the opposite party No. 5 was aged 22 years at the time of selection but the guidelines prescribed that the candidates should be of the age group of 25-45 years. Moreover, there were apparent irregularities in the procedure adopted for Page 4 of 11 selection, many outsiders were present during the Selection Committee meeting. That apart, the opposite party No.5 has committed fraud. 5. The opposite party No.5 has filed a counter stating that her date of birth has been recorded as 20.06.1980 in the transfer certificate dated 09.02.2008 issued by the Headmaster of Nigamananda Bidyaniketan from where she had completed Class-VIII and promoted to Class-IX. The petitioner has filed a rejoinder to the counter filed by the opposite party No.5 alleging that the transfer certificate is a manufactured one having been issued after the process of selection. Moreover, it contains several discrepancies which suggests that it was manufactured only to justify the illegal selection of opposite party No. 5. 6.
Legal Reasoning
Heard Mr. A.K.Mishra, learned counsel for the petitioner, Mr. A.R Dash, learned Addl. Government Advocate for the State and Mr. P.K. Sejapada, learned counsel appearing for the Opposite Party No. 5. Page 5 of 11 7. Mr. Mishra would argue that the selection of ASHA was completely contrary to the guidelines as outsiders were present. Secondly, the Opposite Party No.5 being aged 22 years was not eligible for appointment. Mr. Mishra further argues that the opposite party No.5 has played fraud by producing a fake transfer certificate to justify her illegal selection after the selection process. Mr. Mishra finally argues that there was no occasion to select ASHA by drawing of lots as all the members of SHG had suggested the name of the petitioner. 8. Mr.A.R. Dash, learned Addl. Government Advocate would argue that in the earlier writ petition filed by the petitioner, this Court directed the Collector to conduct inquiry after examining the records. The Collector after examining the relevant records found nothing wrong in the process of selection, rather the same was found to be in consonance with the prescribed guidelines. 9. Mr.P.K. Sejapada would argue that the allegations made by the petitioner are baseless as would be evident from the fact that the Headmaster of the concerned school Page 6 of 11 had issued the transfer certificate and also admitted issuing the certificate in his letter dated 05.04.2008 under the RTI Act to the petitioner. Since there was no unanimity among the members selection was made by adopting lottery method as provided in the guidelines. 10. Reference to the guidelines issued as enclosed under Annexure-A/3 to the counter filed by the State reveals that the eligibility condition is that the candidate, being a woman, should be in the age group of 25-45 years with educational qualification up-to Class -VIII. Clause 6(vi) of the guidelines provides as follows:- “vi. There would be a meeting for selection of ASHA at each Anganwaid Center convened by the ANM. In the meeting the ANM, Angawadi Worker, President and Secretary of all the Self Help Group of Women within the Anganwadi Center and Ward Members will attend the meeting. Each Self Help Group for Women will submit one name for selection of ASHA. Then there would be discussion on the most eligible candidate for appointment as ASHA. If there is unanimity on one person then the same person should be selected. If there is no unanimity then selection of ASHA would be done through a procedure of drawing the lot from among the names in present of Ward Members and representatives of Self Help Groups. The Ward Members present in the meeting will not suggest any name for selection of ASHA. The names Page 7 of 11 should be suggested only by the Self Help Groups for Women. The proceedings of the meeting will be recorded by the ANM and the same would be signed by all those who will attend the meeting. 11. Thus, selection by draw of lots is provided when no unanimity is reached among the members. It has been argued that some outsiders had attended the meeting, namely, one Adhikari Sahoo. Copy of the resolution passed by the Selection Committee however does not contain the name of said Adhikari Sahoo as being one of the members present. It further reveals that finally two candidates were nominated and after discussion both of them expressed their interest. As such, on the suggestion of the members it was decided to select one person by draw of lots. Thus primarily, there does not appear to be any illegality or even irregularity in the process adopted by the Selection Committee. 12. The petitioner has however come up with specific case of lack of eligibility of the opposite party No.5 inasmuch as it is claimed that she was aged 22 years. The opposite party No.5 has attempted to rebut such allegation by producing a copy of transfer certificate Page 8 of 11 issued by the Headmaster of Nigamananda Bidyaniketan where in her date of birth, as recorded in the admission register, is said to be 20.06.1980. The selection having taken place on 18.12.2006, she was obviously within the age group of 25 to 45 years. It has been strenuously argued by Mr. Mishra, learned counsel for the petitioner that the transfer certificate is a fake having been issued on 09.02.2008, which is much after the completion of the selection process. The transfer certificate was issued only after the petitioner submitted an application under the RTI Act on 15.02.2008 whereupon it was issued antedating it to 09.02.2008 but the same was supplied to the petitioner only on 05.04.2008. Moreover, the folio number is also doubtful inasmuch as the same is to be assigned in the ascending order, so if Folio No.10/125786, being a transfer certificate was issued on 12.03.2005 and Folio No.10/125827 also being a transfer certificate was issued on 05.04.2005, how could an earlier Folio number such as, 10/125710 be assigned to the transfer certificate issued in favour of the opposite party No.5 on 09.02.2008. Page 9 of 11 Mr. Mishra, learned counsel for the petitioner referring to these discrepancies forcefully argues that the transfer certificate was fraudulently obtained only to justify the illegal selection of the opposite Party No.5. 13. This Court observes that in the earlier writ application direction was issued to the Collector to conduct inquiry after calling for records of the Selection Committee. The Collector does not appear to have complied with the above direction. The medical officer in charge of Sub-UGPHC Raisunagarh has only intimated in general terms in his letter dated 06.09.2007 that the procedure of ASHA selection was done as per the government norms. Obviously, this is not what this Court in its order passed in the earlier writ petition had intended or directed. From the contentions raised as referred above, it is evident that there are reasonable doubts as to the fulfillment of eligible condition by the opposite party No.5. If found to be true, it would be a case of selection of an ineligible candidate, which being contrary to the guidelines, can never be accepted. Page 10 of 11 14. For the foregoing reasons therefore, this Court is of the considered view that the Collector, Nayagarh should comply with the direction of this Court as contained in the order dated 04.05.2007 passed in W.P.(C) No.5588 of 2007 in letter and spirit by causing a proper inquiry into the matter. Apart from examining the correctness of the procedure adopted by the Selection Committee, the Collector shall also examine the contentions raised by the petitioner with regard to the genuineness of transfer certificate issued by the Headmaster, Nigamananda Bidyaniketan on 09.02.2008 in favour of the opposite party No.5, if necessary by examining the relevant records of the school. The whole exercise should be concluded within a period of two months. It goes without saying that the Collector shall grant opportunity of hearing to all necessary parties and pass a reasoned order under intimation to all concerned including the petitioner. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer B.C. Tudu Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Jul-2024 20:19:29 ……..………………….. Sashikanta Mishra, Judge Page 11 of 11