The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 21977 of 2014 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Subasini Das .… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. S.S.Das, Advocate, For Opp. Party : Mr. A.R.Dash, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August, 2024 SASHIKANTA MISHRA, J. The petitioner was appointed as an Anganwadi Worker under ICDS Project, Binjharpur in the year 1993 by the CDPO, Binjharpur. In the year 2007, the Government formulated a policy to promote graduate Anganwadi Workers to the post of Supervisors, having regard to their seniority. Since the petitioner was a Page 1 of 11 graduate Anganwadi Worker, the District Social Welfare Officer, Jajpur (O.P. No.3), vide letter dated 30.04.2008 directed the petitioner along with some other Anganwadi Workers to appear before a sub-committee on 03.05.2008 in the office of Sub-Collector, Jajpur for the purpose of assessment of their suitability for promotion to the junior grade service. Pursuant to such direction, the petitioner and others appeared, out of whom 10 persons were promoted to the post of Supervisor by letter dated 16.09.2008 and were granted the scale of pay of Rs. 4,750/- 7,500/-. Subsequently, the Government in Women and Child Development department issued a clarification regarding filling up of the post of Anganwadi Supervisors by graduate Anganwadi Workers who have completed five years of continuous of service. Accordingly, a gradation list of such Anganwadi Workers was prepared for the district of Jajpur on 29.07.2009 and was forwarded to the Government for necessary action. The name of the petitioner appeared at Sl. No.1 amongst 43 candidates. Out of the said list, the top 18 candidates were shortlisted on the basis of their seniority and Page 2 of 11 objections were invited. Ultimately, the Government decided to appoint such Graduate Anganwadi Workers as ICDS Supervisors, vide order dated 01.06.2010, passed by the DSWO, Jajpur. The petitioner was accordingly relieved from her post, on 04.06.2010, so as to join as lady Supervisor in ICDS project at Badachana. However, she was paid consolidated salary of Rs. 9,300/- only whereas the other ICDS Supervisors were granted a higher scale. Subsequently, 9 more Anganwadi Workers were promoted to the post of Supervisor in the scale of Pay of Rs.9,300/- 34,800/- with grade pay of Rs. 4,200/- . Significantly, they were non-graduates and 3 of them were junior to the petitioner. As such, the petitioner approached this court in W.P.(C). No. 22017 of 2012. This Court, by order dated 22.11.2012 directed the Opposite Party No. 2, the Collector, Jajpur to examine the case of the petitioner and to take a decision strictly in accordance with the merit of the representation after affording opportunity of personal hearing. 2. Pursuant to such order, the petitioner submitted a fresh representation on 04.12.2012 before the Collector, Page 3 of 11 Jajpur. The Collector, after hearing the petitioner passed an order on 21.03.2013 accepting in principle her claim but directed the DSWO, to obtain clarification from the Government regarding eligibility of the Anganwadi Workers appointed on contractual basis in the post of ICDS Supervisors for promotion to the said post under the existing rules and to reconsider the case of the petitioner. Being aggrieved, the petitioner has approached this Court with the following prayer:
Decision
“It is therefore prayed that this Hon’ble Court would graciously be pleased to admit the Writ Petition, call for the relevant records, issue Rule NISI, calling upon the opposite parties to show cause as to why the prayer of the petitioner shall not be allowed and if the Opp. Parties fail to show cause or show insufficient cause the said Rule be made absolute; And may be pleased to declare the promotion of the petitioner to the post of Lady supervisor to be regular in the scale of against the substantive vacancy Rs.9,300/- 34,800/- with grade of Rs.4,200/-; And may further be pleased to command the Opp.party authorities to grant all consequential service benefits including arrear salary vis-(cid:224)-vis pay-revision to the petitioner as admissible under law within a specific time frame and also release her current salary in the regular scale of pay attached to the post by treating the petitioner to have been appointed regularly with normal scale of pay instead of a contractual employee under consolidate remuneration, by issuing a writ in the nature of mandamus; And may issue any other Writ (s)/ order (s)/ direction (s) deem fit and proper under the facts and circumstances of the case; Page 4 of 11 And for the said Act of kindness the petitioner as in duty bound shall ever pray.” 3. Counter affidavit has been filed on behalf of the State Opposite Party Nos. 2 and 3. While the facts presented in the writ application have not been genuinely disputed, it is inter alia stated that the petitioner exercised her option and submitted her consent for the post of Supervisor on contractual basis with an undertaking that she will not claim regular status. As such, her subsequent claim for regular status is not tenable. 4. The petitioner has filed a rejoinder to the counter refuting the averments therein. It is stated that the Odisha Children and Women’s Welfare Service, Rules 1989 as amended in 2007 does not postulate contractual engagement but provides that the posts in junior grade shall be filled up by allotting 30 per cent of the total number of vacancies under the category of direct recruitment and the remaining vacancies are to be filled up by way of promotion as per Rule 8 from amongst the Anganwadi Workers of the district and lady village workers. There is no provision for making any contractual appointment. It is further stated that Page 5 of 11 furnishing of undertaking by the petitioner cannot be treated as a bar for her legitimate claim of being appointed on a regular basis. 5. Heard Mr. S.S.Das, learned counsel for the petitioner and Mr. A.R.Dash, learned AGA for the State. 6. Mr. Das would argue that the so called undertaking given by the petitioner, at the time of her joining as ICDS Supervisor, has no sanctity as the employer being in a dominant position, such undertaking is automatically rendered an unenforceable contract. Mr. Das further argues that the rules do not provide for any contractual appointment. The mode of appointment as per the rules is either by direct recruitment or promotion. Moreover, persons junior to the petitioner and also similarly placed as her have been granted the regular scale which amounts to discrimination. Mr. Das finally argues that the Collector, while disposing of the representation, has accepted the genuineness of the claim of the petitioner but stopped short of issuing necessary directions. 7. Mr. A.R.Dash would argue that the petitioner herself submitted an option not to claim regular appointment for Page 6 of 11 which she cannot turn around subsequently and make such a claim. 8. This Court finds that the facts of the case are not disputed. There is also no dispute that in the gradation list, the petitioner was placed at Sl. No.1. and 18 persons were appointed as ICDS Supervisors. The Odisha Children’s and Women’s Welfare Rules is relevant for the purpose. Rule 6 provides the method of recruitment to Junior grade of service which includes the post of Supervisor. In so far as promotion is concerned, Rule 8 is relevant and is quoted herein below: 8. “Procedure of filling up vacancies in Junior Grade of Service by promotion. In order to be eligible for appointment to the cadre of Junior Grade of service by selection an Anganwadi Worker must have (i) passed at least the High School Certificate (H S C) or equivalent examination from Board of Secondary Education; Orissa or equivalent Board/Council, and (ii) rendered, on the first day of January of the recruitment year, minimum of 10 years of service as such; and (b) a Lady Village Worker (LVLW) must have rendered on the first day of January of the recruitment year, a minimum of 10 years of service as such. (2) A list of eligible candidates shall be prepared in accordance with sub-rule (3) Page 7 of 11 and placed before the Selection Committee for consideration. (3) (a) The appointment to the Junior grade service shall be made by way of selection from Anganwadi Workers on the basis of seniority. If selection Committee finds any candidate not suitable, the same shall be recorded in the proceeding of the meeting. (b) The eligible Lady Village Level Workers shall be considered for appointment by way of selection on the basis of their service records with due regard to seniority and suitability as per provisions of the Orissa Civil Services (Criteria for Promotion) Rules, 1992” A bare reading of these provisions makes it abundantly clear that there is no provision for any contractual appointment of ICDS Supervisors either by way of direct recruitment or by way of promotion. In fact, the Collector after considering the facts of the case and the Rules as inter alia held as follows: “The DSWO, Jajpur has not challenged the eligibility of the present petitioner for promotion to the post of ICDS Supervisors as per the eligibility criteria provided under the Rule which leads to the assumption that the present petitioner is eligible for promotion to the post of ICDS Supervisor.” In view of such finding of the Collector and the provisions made in the rules referred above, this Court has no doubt Page 8 of 11 that the petitioner ought to have been promoted as ICDS Supervisor on regular basis. There is no plausible explanation forthcoming from the side of the State for engaging the petitioner on contractual basis and thereby paying her less salary than what she should have been entitled to had she been promoted on regular basis. Further, this Court also finds that the post of Supervisor was created by the Government on regular basis as per order dated 17.02.1997 of the Government in WCD Department, copy of which has been enclosed as Annexure-12 to the additional affidavit filed by the petitioner. There is thus no reason for the petitioner to be appointed on contractual basis. This Court further observes that the Collector having held as referred to above, ought to have issued necessary orders to the CDPO, to regularly appoint the petitioner against the promotional post instead of directing her to seek clarification from the Government. This is being said for all the more reason that the post in question was duly created on regular basis and the rules do not permit any contractual engagement. Page 9 of 11 9. Coming to the ground taken by the State that the petitioner was bound by the undertaking submitted by her, this Court finds that the same does not carry much weight inasmuch as it is well settled that an undertaking submitted by a party against his own interest can have no sanctity in law. Moreover, if such undertaking is obtained by the employer, who is in a dominant position the same can be ignored. Reference in this regard may be had to the judgment of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd & Etc v Brojo Nath Ganguly & Anr.1 10. It is stated at the bar that the petitioner has in the meantime retired on attaining the age of superannuation. Therefore, having held as above, the only relief that can be granted at this stage to the petitioner is by directing the concerned authority to pay her the regular scale of the pay from date she was entitled to hold the same on regular basis till the date of her retirement. 11. The writ application is disposed of directing the Opposite Party No.1 and 2 to pass necessary orders to 1 1986 AIR 1571 Page 10 of 11 grant regular salary to the petitioner in the scale of pay of Rs. 9,300/- 34,800/- with grade pay of Rs. 4,200/- with all subsequent pay revision as may have occurred from the date she was appointed as Anganwadi Supervisor on contractual basis till the date of her retirement. Such payment shall obviously be made by deducting the amount paid to her towards contractual remuneration. Since the petitioner has already retired, necessary orders shall be passed within two months from the date of production of certified copy of this order by the petitioner. ……..………………….. (Sashikanta Mishra) Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 20-Aug-2024 17:25:00 Page 11 of 11