The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4284 of 2011 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Julekha Khatun …. Petitioner(s) -versus- State of Odisha & Ors. …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Mr. P.K. Rath-I, Adv. Mr. Ch.Satyajit Mishra, AGA Mr. A.Pr. Bose, Adv. (for O.P.6) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.11.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has challenged the impugned order dated 12.10.2010 passed in Anganwadi Appeal Case No.57/2010 by the ADM, Balasore in refusing to set aside the illegal selection of private Opp. Party No. 6 Sagarika Kar as Anganwadi Worker in Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 1 of 10 Dublagadi - 1 Anganwadi Centre made by the Child Development Project Officer, Balasore/Opp. Party No. 4. I. FACTUAL MATRIX OF THE CASE: 2. On 20.11.2009, as per the decision of the Government under Opp. party No. 1, the Opp. party No. 4 published notification for selection and engagement of Anganwadi worker in Dublagadi 1 Anganwadi centre. Pursuant to the said notification, the petitioner and Opp. Party No. 6 submitted their application. It is the case of the petitioner that she is resident of area Dublagadi 1 centre and her family members are beneficiary of BPL consumer commodities and all other facilities i.e, voter of the area and thus enclosing all the documents the petitioner has applied for such engagement. 3. The petitioner got married on 03.07.2006 and her house was damaged in natural calamities partly and petitioner could not make pucca building house due to her personal difficulties. However, she is residing in the service area with her family members, co-sharers of Dublagadi - 1 and also enjoying BPL and consumer card facilities. She has also submitted the residence certificate issued by the competent authority. 4. It is the case of the petitioner that from the bare reading of the said notification, the appointment of the petitioner comes within the zone of consideration being a nativive and inhabitant of service area of Dublagadi - I Anganwadi centre in support of which documents are sufficient to establish such fact. The Tahasildar without any authority and without giving opportunity to this petitioner, in her absence, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 2 of 10 without examining the materials available in his office, submitted a report in this connection with it and as per his letter No. 797 dated 04.05.2010 with the opinion that there is no residential building constructed over the plot. Hence challenging the same, this writ has been filed. II. PETITIONER’S SUBMISSIONS: 5. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 6. Before conducting such enquiry by the Tahasildar and the ADM, Balasore do not take into the consideration the legality and admissibility of such document. Further, the petitioner has not been provided with the opportunity to be heard and, therefore, the authorities have violated the principles of natural justice.
Decision
7. The findings arrived under the impugned order is completely contrary to law and perverse. The selection report clearly shows that the petitioner had secured the highest marks amongst the rest of the candidates. 8. The Annexure - 6 has been submitted by the Tahasildar to the Sub- Collector without giving an opportunity of hearing to the petitioner and moreover, such cancellation of any document or that of the residential certificate by the Tahasildar who is not competent under the law to take such decision is illegal, unreasonable, arbitrary and unconstitutional. 9. In fact, after going through the counter affidavit filed by the State, it Signature Not Verified reveals that the petitioner has obtained documents through RTI with Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 3 of 10 regard to residence and service area. As per letter of Tahasildar, Basta dated 02.09.2010, the Cyclone damage benefits and flood etc. which indicate the petitioner’s father-in-law Akhtar Mohammed, S/o SK. Jainul of Dublagadi has got the benefits and the compensation. 10. In course of survey by the competent persons for the programme of National Population Register in coastal village Sl. No. 120, dated 11.01.2010, they issued identity card on proper verification of house and residence of the petitioner’s husband SK. Muklesh Mohammed indicating the village Dublagadi and ward number which proves that the petitioner is a resident of Dublagadi, the service area of Anganwadi. 11. The petitioner through her authorized persons Rabi Kumar Mandal has applied under RTI Act to the Tahasildar on 12.08.2013 seeking information regarding the alleged cancellation of her residence certificate issued vide certificate by the Tahasildar, Basta. However, the Tahasildar replied vide letter No. 2317 dated 07.09.2013 that the record is not available and has been sent to Sub- Collector which earned no information. In this way, the Opp. Party has dragged the matter for years together to give undue favour to the private O.P. No. 5 to regularize the irregularities. 12. The petitioner has proved that she is a resident of service area of Anganwadi centre, Dublagadi-1 under Bahabalpur G.P., further clarifying that her thatched house damaged in the cyclone and flood as certified by the Tahasildar and question of residential building is not a condition precedent to get engagement as Anganwadi worker and the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 4 of 10 Opp. Parties ignored the materials and hence the appellate court as well as the appointing authority has committed error in fact and law, hence the impugned order is liable to be set aside. III. SUBMISSIONS OF OPPOSITE PARTY NO.3 & 4/ STATE: 13. Per contra, learned Counsel for the Opp. Parties/ State intently made the following submissions: 14. The Additional District Magistrate, Balasore, the Appellate Authority has properly adjudicated the Anganwadi Appeal Case No.57 of 2010 filed by the petitioner and passed an appropriate orders on 12.10.2010 in the said Appeal Case after affording due opportunities to all the parties. 15. The Opp. Party No.6 (Smt. Sagarika Kar) has been rightly selected for the post of Anganwadi Worker in respect of Dubulagadi-I Anganwadi Center as per the Govt. Guidelines by the selection committee. Accordingly, the C.D.P.O. Sadar, Balasore has notified her name including the name of ten others as selected for the post of Anganwadi Workers in different Anganwadi Centers vide order No.1177/CDPO dated 24.5.2010. Thus, she has performed her duties as per Govt. guidelines. Subsequently, Opp.Party No.6 (Smt.Sagarika Kar) has joined the post of Anganwadi Worker on 27.5.2010 which has been accepted by the competent Authority and she has been continuing in the said post. 16. The petitioner managed to obtain the residential certificate on 05.11.2009 by arranging the false R.I. report and self affidavit that her residential house is situated over the Sarad Kisam land (Chak No.1) Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 5 of 10 pertaining to Plot No.1 area Ac.0.04 out of Ac.1.21 under Khata No.115 recorded in the name of her father-in-law in the said service area where the premium/conversion fees of Rs.1221.00 was paid to the Govt. on 03.11.2009 in OLR-8(A) Case No.240 of 2009. This certificate was issued just after two days of payment of premium/conversion fees and before correction of classification in the Record-of-Right. 17. While the issuance of this certificate was challenged, the Revenue Supervisor, Basta, made the field enquiry and reported on 28.4.2010 that there was no house/dwelling house over the land. In fact, the above land was cultivated land. The residential building/dwelling house of the petitioner is actually situated over Plot no.2853, Area Ac.0.31 under Khata No.371 with the classification of Gharabari in the village of Bahabalpur as per the Not-final settlement record. Further, the said dwelling house is situated in the border of village Bahabalpur which is adjacent to the revenue village of Dubulagadi. Being convinced with the field enquiry report of the Revenue Supervisor the Tahasildar, Basta has cancelled the Residential certificate of the petitioner on 03.5.2010 which was issued in her favour on 05.11.2009. The Residential Misc. Certificate Case record bearing No.3106 of 2009 corroborates the above fact in details. Hence, the claim of the petitioner as the resident in the service area of Dubulagadi-I Anganwadi Center is false and fabricated. 18. The cancellation order dated 03.5.2010 of Tahasildar, Basta in residential Misc. Case No.3106 of 2009 has not yet been set aside by the higher competent authority. The petitioner is not the resident in the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 6 of 10 service area of Dubulagadi-I Anganwadi Center. Actually, she is a resident of village Bahabalpur as her residential house is situated over the lawful land of her father- in-law in the said village. 19. Though, the Tahasildar, Basta informed the petitioner to submit the said residential certificate issued in her favour earlier in his court on 03.5.2010. According to the field enquiry report of the Revenue Supervisor for cancellation of the said certificate, the petitioner has not attended and submitted the same for which he has cancelled the Residential Certificate. 20. It is a fact that the family members of the petitioner have managed to obtain the BPL Card, the Photo Identity Card etc. in the address of the village Dubulagadi instead of Bahabalpur taking the privilege of their residential house situated in the border of the village Bahabalpur. These documents prepared in the wrong address could not establish that they are the residents of village Dubulagadi. So, the petitioner’s plea of taking advantage in this score is not supported by law. 21. The Sub- Collector, Balasore has sought for the inquiry report from the Tahasildar, Basta on the allegation filed by Smt.Sagarika Kar(Opp.Party No.6) against the residential certificate issued on 05.11.2009 in favour of the petitioner. Accordingly, the Tahasildar, Basta has submitted his inquiry report vide his letter No.797 dated 04.5.2010 wherein he has stated that the dwelling house of the petitioner is situated near the border of Village Bahabalpur which is adjacent of village Dubulagadi. The Tahasildar, Basta has submitted the genuine inquiry report after thorough field verification conducted by his Revenue Supervisor. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 7 of 10 22. The A.D.M., Balasore (the Appellate Authority) need not require to conduct field enquiry while adjudicating/hearing the Anganwadi Appeal Case No.57 of 2010 as the required papers/documents submitted by the Tahasildar, Basta, C.D.P.O., Sadar, Balasore, petitioner and Opp.Party No.6 were sufficient to pass the orders. The Revenue Supervisor has submitted his enquiry report along with the statement of the villagers of Dubulagadi and Bahabalpur before the Tahasildar, Basta. The Tahasildar, Basta vide his order dated 28.4.2010 has informed the petitioner and directed to attend and submit the residential certificate issued in her favour earlier along with other relevant documents on 03.5.2010. 23. The Tahasildar, Basta has cancelled the residential certificate of the petitioner vide his orders dated 03.5.2010 in Residential Misc. Certificate case No.3106 of 2009 on valid ground as narrated in the foregoing paragraphs. The said cancellation orders of the Tathasidar, Basta has neither been set aside by the Sub- Collector, Balasore, the Appellate Court nor by any other competent court. The selection committee has rightfully selected the Opp.party No.6 as Anganwadi Worker of Dubulagadi-I Anganwadi Center as per the Govt. guideline communicated by the W & C.D. Department, Orissa. IV. COURT’S REASONING AND ANALYSIS: 24. The petitioner has challenged the selection of the notification of the Opp. Party No.6 vide order No.1177/CDPO dated 24.5.2010 of the C.D.P.O. Sadar, Balasore in Anganwadi Appeal Case No.57 of 2010 before the A.D.M. Balasore the Appellate Authority. The A.D.M. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 8 of 10 Balasore, the Appellate Authority, has adjudicated this case and scrutinized all the documents filed by all the parties. Finally, he came to the conclusion that the petitioner has no residential building in the service area of Dubulagadi-I Anganwadi Center during the process of selection as her residential certificate has been cancelled by the Tahasildar, Basta for which he has rejected the appeal filed by the petitioner. 25. Opp. Party No.6 and others have submitted their applications as per the notification No.512 dated 20.11.2009 of the C.D.P.O. Balasore. The petitioners managed to obtain the residential in the service area of Dubulagadi-I Anganwadi Center on 05.4.2009 vide residential Misc. Certificate No.3106 of 2009 which has been cancelled by the Tahasildar, Basta on 03.5.2009 after proper enquiry in the matter. So, the petitioner’s claim that she is a resident of the said service area during the process of selection is not at all based on fact. 26. Moreover, the petitioner managed to obtain the residential certificate on 05.11.2009 by arranging the false R.I. report and self-affidavit that her residential house is situated over the Sarad Kisam land (Chak No.1) pertaining to Plot No.1 area Ac.0.04 out of Ac.1.21 under Khata No.115 recorded in the name of her father-in-law in the said service area where the conversion fees of Rs.1221.00 was paid to the Govt. on 03.11.2009 in OLR-8(A) Case No.240 of 2009. This certificate was issued just after two days of payment of premium/conversion fees and before correction of classification in the Record-of-Right. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 Page 9 of 10 27. Learned Counsel for the Opposite Parties has clarified that the Revenue Supervisor, Basta, made the field enquiry and reported on 28.4.2010 that there was no house/dwelling house over the land. Rather, the above land was cultivated land. The residential building/dwelling house of the petitioner is actually situated over Plot no.2853, Area Ac.0.31 under Khata No.371 with the classification of Gharabari in the village of Bahabalpur as per the Not-final settlement record. Further, the said dwelling house is situated in the border of village Bahabalpur which is adjacent to the revenue village of Dubulagadi. Being convinced with the field enquiry report of the Revenue Supervisor the Tahasildar, Basta has cancelled the Residential certificate of the petitioner on 03.5.2010 which was issued in her favour on 05.11.2009. The Residential Misc. Certificate Case record bearing No.3106 of 2009 corroborates the above fact in details. Hence the claim of the petitioner as the resident in the service area of Dubulagadi-I Anganwadi Center is false and fabricated. 28. Considering the aforesaid discussions, this Court is not inclined to entertain the prayer of the Petitioner. Accordingly, this Writ Petition is dismissed. Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Feb-2024 17:29:46 (Dr. S.K. Panigrahi) Judge Page 10 of 10