Application under Articles 226 & 227 of Constitution of India. AFR Smt. Anasuya Biswal v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11021 of 2018 Application under Articles 226 & 227 of Constitution of India. AFR Smt. Anasuya Biswal @ Behera .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner :Mr. Sourya Sundar Das, Sr. Advocate with M/s. S.K. Mishra, P.K. Rout & B.P. Pradhan, Advocates. For Opp. Parties : Mr. S.N. Pattnaik Addl. Government Advocate M/s. Debraj Mohanty, Abhilash Mishra & B.P. Panda, Advocates (for O.P. No.7) _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 5th July, 2024 SASHIKANTA MISHRA, J. The petitioner in the present writ application seeks to challenge the order dated 09.05.2018 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Page 1 of 9 No. 9 of 2016. As per the said order, the appeal preferred by the petitioner’s challenge of her non-selection and selection of opposite party No.7 as Anganwadi Worker of Kardapal-2 Anganwadi Centre was rejected. 2. Pursuant to advertisement issued by the C.D.P.O., Biramaharajpur inviting applications for engagement of Anganwadi Workers, the petitioner as well as opposite party No.7 along with others submitted their applications. Both fulfilled the eligibility criteria. A select list was prepared showing the inter se merit list of the candidates. The petitioner secured 61.93 % marks while the opposite party No.7 secured 53.13%. Despite securing higher marks, the petitioner’s candidature was rejected on the ground that she did not belong to the service area. The petitioner preferred the aforementioned appeal inter alia asserting that she is a permanent resident of village Kardapal from the date of her marriage and her name duly finds place in the voter list prepared in the year 2014 and 2017. Further, the residential certificate issued by the Tahasildar also showed her to be a permanent resident of village Kardapal. Despite Page 2 of 9 such evidence, the ADM rejected the appeal of the petitioner on the ground that her name does not find place in the survey report. The petitioner claims that said survey report should not have been accepted as it was prepared by the mother-in-law of opposite party No.7 and was therefore, definitely biased. On such facts, the petitioner has approached this Court with the following prayer: to why the select
Decision
“It is, therefore, humbly prayed that this Hon’ble Court may graciously be pleased to :- (i) Admit the writ petition; (ii) Call for the records, (iii) Issue Rule NISI calling upon the opposite parties to show cause as list dated 08.05.2016 under Annexure-3 and the order of the appellate authority dated 09.05.2018 Annexure-5 shall not be quashed; (iv) If the opposite parties do not show cause or show inefficient cause, issue a writ in the nature of certiorari or any other appropriate writ/writs, list dated order/orders thereby quashing select 08.05.2016 under Annexure-3 and the order of the appellate authority dated 09.05.2018 under Annexure-5; (v) other appropriate writ/writs, order/orders, direction/ directions thereby declaring the appointment of opposite party No.7 as against the post of Anganwadi Worker in respect of Kardapal-2 Anganwadi Center as illegal, arbitrary and not sustainable in the eye of law. (vi) Issue a writ in the nature of Mandamus or any other appropriate writ/writs, order/orders, direction/ directions directing the opposite parties to consider the case of the present petitioner for appointment as against the post of Anganwadi Worker in respect of Anganwadi Center and she may be appointed as Anganwadi Worker and consequently as such service benefits as may be admissible to the said post may Issue any Page 3 of 9 be extended to the petitioner within a reasonable time to be stipulated by this Hon’ble Court; and (vii) Pass such other order/order, direction/directions as this Hon’ble Court may deem fit and proper. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 3. The CDPO (opposite party No.4) filed a counter affidavit, inter alia, justifying the impugned order on the ground that in the survey report it was mentioned that the petitioner was found absent during conduct of survey and only three members were found to be residing in the house of her father-in-law. Her candidature was therefore, rightly rejected. 4. The selected candidate (opposite party No.7) also filed a counter affidavit stating therein that the petitioner is not only not a resident within the service area of the Anganwadi Centre but is residing at Sambalpur with her family. Her son is studying in a school at Sambalpur as evident from the School Admission Register and other information obtained under the RTI Act. 5. Heard Mr. S.S. Das, learned Senior Counsel along with Mr. B.P. Pradhan, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate; and Page 4 of 9 Mr. A. Mishra, learned counsel appearing for the opposite party No.7. 6. It is contended by Mr. Das that the revised guidelines issued by the Government in Women and Child Development Department on 02.05.2007 provide that a candidate being permanent resident of the village in which the Anganwadi Centre is located is eligible to be engaged as Anganwadi Worker. The petitioner was issued with a resident certificate by the Tahasildar showing her to be a permanent resident of village Kardapal. Said certificate was never challenged nor cancelled and therefore, is valid. The ADM has ignored the resident certificate and relied upon a survey report, which being prepared by the mother-in-law of opposite party No.7 is a biased document. Since the petitioner admittedly secured more marks than the opposite party No.7 in the selection process, her non-selection cannot be justified. 7. Mr. S.N. Pattnaik, learned Addl. Government Advocate submits that the guidelines provides that a candidate residing in the same village or service area of the Page 5 of 9 Anganwadi Worker can apply. So when more than one candidates are found to be residents of the same village then obviously a candidate residing within the service area of the Anganwadi Worker in question has to be preferred. In this regard, the survey conducted by the office of the CDPO becomes highly relevant, considering which the candidature of the petitioner was rightly rejected. 8. Mr. A. Mishra, learned counsel appearing for the selected candidate (opposite party No.7) has argued that the petitioner may be a resident of Karadapal village as per the resident certificate but does not reside within the service area of the centre. In fact, she has been residing at Sambalpur with her husband and son. Therefore, her challenge to the selection process is unacceptable. 9. The facts of the case being as narrated above this Court finds that as per clause-1 of the revised guidelines dated 02.05.2007, applications are to be invited from Women residing in the same village/Anganwadi Centre area. Thus, ordinarily either of the conditions is to be fulfilled. In the instant case there is no dispute that the petitioner was Page 6 of 9 issued with a permanent resident certificate by the Tahasildar showing her as permanent resident of village Kardapal. However, in the survey conducted as per the instructions of the CDPO it was found that the petitioner was not residing in the village as in the house in question only her father-in-law, mother-in-law and sister-in-law were residing. This can be interpreted to mean that she may have been a resident of the village at the time of issuance of the certificate but had possibly moved out thereafter for which she was not found in the village when the survey was conducted. It would be relevant to note that the resident certificate was issued on 23.05.2015. The advertisement appears to have been issued on 11.05.2015, the last date for submission of application being 25.05.2015. The survey report, copy of which has been enclosed to the counter affidavit of opposite party No.4 as Annexure-C/4, bears the date 15.05.2015. More importantly, being directed by this Court, the Tahasildar, Birmaharajpur conducted a joint field enquiry with R.I. Murusundhi at village Kardapal to ascertain the residential status of the petitioner. During Page 7 of 9 such enquiry, it was found that neither Anasuya Biswal nor her husband were present in the house of Tikei Charan Biswal (father-in-law of the petitioner). Further the statement was obtained from the then Anganwadi Helper, who had conducted the survey to the effect that the petitioner was not residing in the village during the survey conducted by her in 2015. The survey report prepared by Anganwadi Helper has been objected to by the petitioner as being biased as the same was prepared by the mother-in- law of opposite party No.7 but then the survey report having been accepted by the concerned authority, i.e. the CDPO at the relevant time and subsequently found to be factually correct in the joint enquiry conducted by the Tahasildar and the R.I., such plea can only be rejected. Reading of the impugned order reveals that the ADM has taken note of the survey report to arrive at the finding that the petitioner was no longer residing in the village. In the subsequent Government order dated 01.03.2008, it has been laid down that Anganwadi Worker should be resident of the Anganwadi Centre area. Only if a suitable candidate is not Page 8 of 9 available in the Anganwadi area, a candidate of the village could be considered. 10. This Court therefore, finds that no infirmity or illegality whatsoever in the impugned order so as to be persuaded to interfere. From what has been narrated hereinbefore, this Court is led to concur with the findings of the appellate authority. 11. In the result, this Court finds no merit in the writ application, which is therefore, dismissed. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 5th July, 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: 09-Jul-2024 19:45:48 Page 9 of 9