The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 34394 of 2023 (An application under Article 226 & 227 of the Constitution of India) --------------- Susmita Das Mohapatra ...… Petitioner -Versus- State of Odisha and others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. D. K. Pattnaik For Opp. Parties : Mr. S.N.Pattnaik Advocates. Additional Government Advocate _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 16th May, 2025 The petitioner has approached this court with the following prayer: “It is, therefore, humbly prayed this Hon’ble Court may graciously be pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why the appropriate writ/writs shall not be issued quashing the order of selection dtd. 06.10.2023 passed by the Page 1 of 9 Opp. Party No.5 and further be pleased to appoint the petitioner in the post of ASHA from the date the release all Opp. Party No.7 selected and consequential and financial benefits arising out of same within a stipulated time and on perusal of causes shown if any or upon insufficient causes shown, make the said rule absolute and may pass any appropriate order as deemed just and proper. And for this act of kindness the petitioner shall, as in duty bound ever pray.” 2.
Legal Reasoning
Facts of the case, briefly stated, are that pursuant to an advertisement issued by the CDM & PHO-cum- District Mission Director, Balasore (Opposite Party No.4) for selection of ASHA Karmis, the petitioner submitted her application for selection as such for the village of Muliada and Pathuria. The selection committee found her the most suitable candidate and accordingly she was provisionally selected as per list published on 04.05.2023. She was called upon by the selection committee to produce a declaration by the villagers that she is a resident of the village. She submitted such declaration signed by several villagers. On 06.10.2023, the selection committee published a notification rejecting the candidature of the petitioner on the ground that she is not a daughter-in-law of the village and Opposite Party No.7 was selected. The petitioner submitted a representation indicating that though married, she has been residing in her father’s house, being separated from her husband. Without affording Page 2 of 9 any opportunity of hearing, her selection was cancelled, and Opposite Party No.7 was illegally selected. It is the further case of the petitioner that in her application form, she mentioned that she had been separated from her husband. 3. The stand of the Opposite Parties is that the selection was made in terms of the guidelines. 15 applications were received including that of the petitioner. The ANM and Anganwadi Worker physically visited the house of the every candidate for verification of original documents on 04.05.2023. On scrutiny, it was found that the petitioner was in the first position on merit but she had not submitted proof of marriage but submitted an undertaking to submit the same within seven days. In the meantime, the Opposite Party No.7, who was placed at Sl. No. 2 of the provisional selected list, lodged complaint regarding submission of marriage certificate of the petitioner. Accordingly, the Superintendent, Basta CHC sought for clarification from CDM and PHO. The CDM and PHO clarified that as per the revised guidelines it is mentioned that the candidate must be a woman (married/widow) of that village with documentary proof. Accordingly, the selection committee rejected the petitioner’s Page 3 of 9 name as she was unable to show her marriage/divorce proof. The petitioner was granted time and opportunity to produce document with regard to her claim of being divorced but she did not. As such, her status was that of a daughter of the village who got married and was residing outside the village. In comparison, Opposite Party No.7 is a married lady and residing in the same village for which, she was selected. 5. Be it noted that during pendency of the writ application, the petitioner filed copy of the judgment passed by the Judge, Family Court, Balasore in CP No. 288 of 2023 granting her decree for dissolution of her marriage.
Legal Reasoning
6. Heard Mr. D.K.Pattnaik, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned AGA for the State. 7. Be it noted that notice of the writ application was issued to the private Opposite Party No.7 (selected candidate) by special messenger but she refused to accept the same for which such notice was held to be sufficient. 8. Mr. D.K.Pattnaik would argue that the guidelines issued by the Government on 04.05.2022 provides that the candidate must be a woman and must be married or a widow. The petitioner was married but was separated from Page 4 of 9 her husband though a formal decree of divorce had not been granted at the time of selection. The petitioner, therefore, submitted undertaking but could not produce copy of the judgment as the case had not concluded by then. However, fact remains that she was living separately from her husband and was residing in her parents’ house, which was certified by the villagers. Moreover, having secured the highest mark, the petitioner’s candidature could not have been rejected purely on technical grounds. 9. Mr. S.N.Pattnaik, learned AGA on the other hand, would argue that the guidelines mandate that the candidate must be a resident of a village. In the instant case, the petitioner had married a person outside the village but claimed that she was separated from her husband and was residing in her paternal village. Though opportunity was granted to her, she could not produce any proof of such claim. As such, the selection committee cannot be blamed for rejecting her candidature. 10. After hearing the parties, this Court feels it proper to first refer to the guidelines governing the selection and engagement of ASHA. Reference to the revised guidelines Page 5 of 9 issued by the Mission Directorate, National Health Mission, Odisha on 04.05.2022 reveals that the following eligibility criteria have been laid down. The following eligibility criteria are to be followed for the selection of a new ASHA. a) She must be a woman (married/widow). b) In case of rural area, she must be a resident of the village and in case of slum/urban arca, she must be a resident/ordinarily residing in the slum/adjacent slum/ward (for non-slum urban areas) from which she is proposing to be selected ID Card/Ration Card/BPL as ASHA. Voter card/Electricity bill etc. will be used as a proof for the place of residence. c) Age limit: I. The candidate should be in the age group of 25 to 45 years. II. However, in case of non-availability of candidates of 25 years, the lower age limit may be relaxed to 21 years. d) Educational qualification: to select a I. The educational qualification for selection of ASIIA is class-X. II. In case of non-availability of class-X candidates in the concerned village/slum/urban area, it may be relaxed to class-VII pass. e) In case of non-availability of candidate on both the criteria (age and educational qualification), in the second notification, relaxation of age will be considered candidate having educational qualification of class-X or above, f) After relaxation of age, if no class-X pass candidate is available in the villages/slum /ward then the educational qualification will be relaxed to class-VII pass g) Further, in case of non-availability of class-VII pass candidate, notification will be made again to invite application from candidates having minimum literacy standard (ability to read and write in Odia). In such case, a formal skill test for 50 marks (@ 25 marks for reading and writing in Odia language and 25 marks for oral/interview test) is to be conducted among the candidates applied for Page 6 of 9 the position of ASIA. The skill test of the candidates is to be conducted by the concerned BPM in rural areas and by CPM/APM / Asst. Manger, CP / PHM in urban areas in the community in presence of members like members of GKS/MAS/WSHG/CBO and general public. The marks secured in the skill test out of 50 marks will be taken as the base for preparing the provisional merit list. h) Again, if no literate candidate is available in the village even after relaxation of age (from 25 to 21) and educational qualification (from class-X to minimum literacy standard), the committee may select any woman (within the preferable age group) from that village/slum who is interested to work as ASHA. However, all the documents related to selection process in such cases are to be preserved for future reference. i) Sufficient documentary evidence is to be made available and preserved at block / city /town level is (institution where conducted) for all future references. the selection process It is not disputed that the petitioner was married. She claimed to have been separated from her husband and that she was residing in her father’s house. The resident certificate issued in her favour by the ahasildar mentions that she is a resident of Muliada village. Though it has been Ṭ stated that the petitioner having married is not a resident of the village yet nothing specific has been mentioned in this regard. For instance, if not Muliada then of which place the petitioner is a resident has not been expressly stated. The petitioner’s specific stand is that though married she is not residing with her husband at his place but is residing with her father in her paternal village, which is Muliada. If this Page 7 of 9 much alone is accepted, then the petitioner, being a resident of the village and a married woman, certainly fulfils the eligibility criteria. Her candidature was however, rejected because she could not produce proof of her status as a separated woman. The guidelines do not prescribe any such requirement. Be that as it may, the fact that the petitioner’s marriage has since been dissolved, though subsequent to the selection, goes along way to prove the stand taken by her from the beginning. On the other hand, the stand of Opposite Party authorities that having failed to produce any document with regard to divorce (at the relevant time), her status can be considered as a daughter of the village who got married and residing outside the village, is completely absurd, fallacious and therefore, unacceptable. The status of the petitioner as a married person can only be changed by pronouncement of the order of the competent Court which, in the instant case, is the decree of divorce granted by the Family Court. She cannot be presumed to be residing outside the village for such reason. The concerned authorities have failed to appreciate the facts attending the case vis-(cid:224)-vis the guidelines in the proper perspective. Significantly, in the Page 8 of 9 letter seeking clarification from CDM & PHO, the superintendent of CHC, Basta clearly stated that if the widow mark ‘is deducted her from total securing than she is also eligible for final selection’. This implies that the petitioner was the most eligible among all candidates. 11. From the foregoing narration, it is evident that rejection of the petitioner’s candidature on the ground that she is not a daughter-in-law of the village is entirely contrary to the guidelines and therefore, cannot be sustained. 12. In the result, the writ application is allowed. The impugned order under Annexure-5 is hereby quashed. The Opposite Party authorities are directed to issue order of engagement in favour of the petitioner without any further delay and in any case, not later than four weeks 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: 16-May-2025 15:27:39 Page 9 of 9