Application under Articles 226 & 227 of Constitution of India. Bina Patel … v. ADM -cum- Appellate Authority Nuapada & Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11631 of 2011 Application under Articles 226 & 227 of Constitution of India. Bina Patel …… Petitioner --------------- - Versus - ADM -cum- Appellate Authority Nuapada & Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : M/s. Sushanta Kumar Joshi & R.K. Dash, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate M/s. Krushna Ch. Dash, S.N. Mishra, Advocates. [ For O.P. No.4] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th November, 2024 SASHIKANTA MISHRA, J. The petitioner was an applicant for engagement as Anganwadi worker for Colony Pada Anganwadi Center of Chandopala village of Pendraban Gram Panchayat under Komna Block in the district of Nuapada. Three Page 1 of 8 candidates submitted their candidatures, out of whom, one namely, Pramila Tand was declared as failed. In so far as the petitioner is concerned, she secured 48.33% of mark while the private opposite party No.4 secured 54.66 %. From the comparative statement prepared by the selection committee it appears that in the remarks column it was mentioned that the petitioner belongs to the Anganwadi Center, i.e. Chandopala whereas the private opposite party No.4 is ‘Out of Anganwadi Center area’. Accordingly, the petitioner was selected and engaged as Anganwadi Worker as per select list issued on 19.04.2010. The opposite party No.4 being aggrieved, filed an appeal before the Addl. District Magistrate being Misc. Appeal No. 18 of 2010. From the copy of the appeal memo, enclosed to the writ petition it appears that the selection of the petitioner
Legal Reasoning
was challenged on the ground that she does not belong to Chandopala Anganwadi Center. Moreover, she had secured less mark than the appellant. Several other grounds were also taken in the appeal. The appeal was heard in presence of counsel for both parties and by order dated 21.09.2010, the ADM allowed the appeal by setting aside the selection process Page 2 of 8 and engagement of the petitioner with direction to CDPO, Komna to issue engagement order in favour of private opposite party No.4. Being aggrieved, the petitioner has approached this Court with the following prayer. “It is therefore prayed that this Hon'ble Court may graciously be pleased to admit this writ application, call for records from Opposite party no.1 and after perusing the same set- impugned order dated aside/quash 21.09.2010 passed by the Opposite party no.1 and issue a writ of mandamus directing the C, D. P. O., Komna i, e, Opp. party no. 3 to appoint the petitioner as Anganwadi worker in respect of Colonypada in Chandapala village. Anganwadi center the And pass any other order/orders, direction/directions as this Hon’ble Court may deem just and proper; And for this act of kindness, the petitioner shall as in duty bound ever pray.” 2. Counter affidavit has been filed by the State opposite party (opposite party Nos. 1 to 3) inter alia, stating that the petitioner does not belong to the service area of the concerned AWC as well as Komna Block. It is further alleged that the petitioner had also applied for Badmaheswar Anganwadi Center under Khariar Block. Being directed by ADM Nuapada, the records of the proceeding were produced including the documents relating to the place of residence. Considering the same as well as the fact that the petitioner had secured less Page 3 of 8 mark than the opposite party No.4, the appeal was allowed. Further affidavit has been filed by the State opposite parties, inter alia, stating that after disposal of the appeal, the CDPO, Komna has issued engagement order in favour of opposite party No.4 by letter dated 25.01.2011 and she is presently continuing as Anganwadi Worker in Chandopala Anganwadi Center since 2011. 3.
Legal Reasoning
Heard Mr. S.K. Joshi, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate; and Mr. Krushna Ch. Dash, learned counsel for opposite party No.4 4. Mr. Joshi, referring to the impugned order would submit that the ADM has not taken into consideration the residence certificate produced by the petitioner along with her application. Further, the selection committee clearly found that the private opposite party No.4 is not a resident of the service area in question. Merely because the lady supervisor had not signed on each page of the survey report, the ADM disbelieved the same and allowed the appeal by setting aside the engagement of the petitioner. Page 4 of 8 5. Mr. Pattnaik, learned State Counsel submits that as per records available, the petitioner is not a resident of village Chandopala, rather she is a resident of village Badmaheswar under Khariar Block. The selection committee had committed an error in holding that the opposite party No.4 is not a resident of the service area in question. According to Mr. Pattnaik therefore, the impugned order does not warrant any interference. 6. Perusal of the comparative statement prepared by the selection committee, copy of which has been enclosed as Annexure-4, would reveal that there is a clear endorsement that the petitioner is a resident of the Anganwadi Center, Chandopala, whereas the opposite party No.4 is stated to be out of Anganwadi Center, Chandopala. On such basis, the petitioner was selected. On appeal being preferred by opposite party No.4, the selection of the petitioner was set aside. Perusal of the impugned order reveals that the ADM perused the survey report prepared by the lady supervisor but merely because the same was not signed on each page but only the last page, it was disbelieved. Moreover, the ADM found that the same was Page 5 of 8 prepared after issuance of notification for filling up the post of Anganwadi Worker and 27 days prior to such selection. The ADM thereafter, compared the marks secured by both candidates and finding the opposite party No.4 to have secured more marks than the petitioner, was persuaded to allow the appeal. The ADM however, does not appear to have taken into consideration the resident certificate produced by the petitioner at the time of submission of the application. Moreover, the endorsement made by the selection committee in the comparative statement prepared by it has also not been considered. 7. It has been stated and argued on behalf of the State that the petitioner is a resident of Badmaheswar. However, the ADM does not say so in the impugned order. Ordinarily, the opposite party No.4 having secured more marks than the petitioner, ought to be selected but then if she is not a resident of the service area, then obviously she cannot be said to have a better claim than the petitioner. These aspects have not been considered in detail by the ADM, who, not finding the survey report to be properly maintained, went on to set aside the Page 6 of 8 engagement of the petitioner. As such, the basic question as to whether the petitioner actually belongs to the service area or not has not been properly adjudicated. 8. This takes the Court to the question as to what relief can be granted in the present case. As already brought to the notice of this Court, the opposite party No.4 having been selected on the basis of the impugned order is said to be continuing as Anganwadi Worker since 2011. This Court is fully conscious of the fact that the matter relates to the year 2010. But then if the petitioner, who was the originally selected candidate, was wrongly held to be a resident of some other area, then the impugned order would become vulnerable. The orders appears to be cryptic and not specially deciding the matter in issue. 9. For all the reasons therefore, this Court feels that ends of justice would be best served if the matter is remitted to the ADM, Nuapada for hearing the appeal afresh and by specifically making endeavor to determine as to if the petitioner is a resident of the service area in question. The ADM shall grant opportunity of hearing to all necessary parties and pass Page 7 of 8 necessary orders within one month from the date of production of certified copy of this order. The engagement of opposite party No.4 shall abide by the final order to be passed in the appeal. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 18th November, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Nov-2024 18:05:30 Page 8 of 8