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2011 DIGILAW 375 (GAU)

Binita Sarkar (Das) v. State of Assam

2011-04-28

ANIMA HAZARIKA

body2011
JUDGMENT Smt. Anima Hazarika, J. 1. Heard Mr. D. Das, Learned Counsel for the Petitioners and Ms. P. Chakraborty, learned standing counsel for Social Welfare Department, Assam. None appeared for Respondent No. 7. 2. By invoking writ jurisdiction of this Court under article 226 of the Constitution of India, the Petitioners have challenged the validity and legality of the advertisement dated 9.9.2009 vide Annexure 2 on the ground that no provision for reservation of post in respect of candidates for the post of Anganwadi Worker and Helper belonging to Scheduled Caste community has been made in the impugned advertisement. While putting the advertisement in question under challenge, the Petitioners contended that among the newly sanctioned Anganwadi centres, the No. 128 Das Para Anganwadi Centre is situated at Das Para area of Niz Monirchar revenue village and the centre has been named as No. 128 Das Para Anganwadi Centre. It has been further contended in the writ petition that the Das Para area is mostly populated by Scheduled Caste community and keeping in view the backwardness of the people of the said area, the government sanctioned the Anganwadi centre at Das Para for upliftment of the community. According to the Petitioners, keeping in view the population pattern of the locality for which the centre in question was sanctioned by the government as well as the statutory provision relating to the reservation policy and the government notification dated 19.9.2009 (vide Annexure 1 to the Additional Affidavit filed by the Petitioners), the Respondent-authorities ought to have reserved at least two posts of Anganwadi worker and helper sanctioned for No. 128 Das Para Anganwadi Centre. Having not done that, according to Petitioners, the impugned advertisement is liable to be set aside. 3. During the course of argument, it has been submitted by Mr. Das, Learned Counsel for the Petitioners that the Respondent No. 4 has admitted in her affidavit-in-opposition that though as per Government guidelines dated 19.9.2009 (Annexure A to the affidavit-in-opposition) the reservation policy for SC/ST/Tea Tribes should be followed for filling up the vacancies of Anganwadi worker/helper, that is not done inadvertently in No. 128 Das Para Anganwadi Centre. Das, Learned Counsel for the Petitioners that the Respondent No. 4 has admitted in her affidavit-in-opposition that though as per Government guidelines dated 19.9.2009 (Annexure A to the affidavit-in-opposition) the reservation policy for SC/ST/Tea Tribes should be followed for filling up the vacancies of Anganwadi worker/helper, that is not done inadvertently in No. 128 Das Para Anganwadi Centre. He further submits that the Respondent No. 5, i.e., the selection board has also admitted in its affidavit-in-opposition that the reservation for SC/ST could not be mentioned inadvertently and the Respondent No. 5 has tendered apology therefor which indicates that the two posts in question ought to have been filled up by candidates belonging to Scheduled Caste community. Further, having drawn the attention of this Court to the counter affidavit filed by the Respondent No. 2, Mr. Das submits that upon perusal of the statements made on oath in the counter affidavit, it would reveal that similar illegalities have been committed by the Social Welfare Department, Assam, in other Anganwadi centres also. Mr. Das submits that the counter affidavit of Respondent No. 2 is absolutely silent as to what actions have been initiated or taken against the erring officers for commission of such serious illegalities which have resulted in deprivation of legitimate rights of the candidates belonging to reserved categories. 4. On the other hand, by filing an affidavit-in-opposition, it has been contended by Respondent No. 7 that total number of votes in revenue village of Niz Monirchar is 1503 and out of 1503 voters, only 170 voters belong to Scheduled Caste community and, therefore, the Respondent-authorities have not committed any illegality by not following the reservation policy. In reply to that contentions of the Respondent No. 7, Mr. Das, Learned Counsel for the Petitioners has submitted that the population pattern of village Niz Monirchar Das Para is relevant in the instant case and not of revenue village Niz Monirchar as contended by Respondent No. 7. The centre in question has been sanctioned for Das Para area and almost all the people of Das Para belong to Scheduled Caste community. In support of his contention Mr. Das has drawn the attention of this Court to the certificate dated 10.7.2010 issued by the President of Monirchar Gaon Panchayat vide Annexure 1 to the affidavit-in-reply filed by the Petitioners against the affidavit-in-opposition filed by Respondent No. 7. 5. In support of his contention Mr. Das has drawn the attention of this Court to the certificate dated 10.7.2010 issued by the President of Monirchar Gaon Panchayat vide Annexure 1 to the affidavit-in-reply filed by the Petitioners against the affidavit-in-opposition filed by Respondent No. 7. 5. Admittedly Respondent No. 7 has referred to population pattern of revenue village Niz Monirchar and not of Niz Monirchar Das Para for which the centre in question has been sanctioned. That being the position, the contention of the Respondent No. 7 is not tenable, more so, when the Respondent Nos. 2, 4, and 5 have admitted in their respective affidavits that non-mentioning of reservation for SC/ST candidates in the impugned advertisement is a mistake on their part. 6. From the affidavits-in-opposition filed by the Respondent Nos. 2, 4 and 5 it appears that final select list has not been made and the posts of Anganwadi worker and Helper in No. 128 Das Para Anganwadi Centre are not yet filled up due to pendency of the instant writ petition in this Court. Relevant portion of para 6 of the affidavit-in-opposition filed by Respondent No. 5 is quoted hereunder: It is pertinent to mention here that the advertisements (Annexure 2 to the writ petition) was issued and published for filling up the post of Anganwadi Worker and Helper by the Respondent No. 4, i.e., Child Development Project Officer, South Salmara ICDS Project, Distt. Dhubri. Although the interview was held but the final selection was not made due to which the engagement letter has not been issued against the said Anganwadi Centre till date. 7. The commission and/or omission as alleged in the writ petition which have been admitted by the Respondent Nos. 2, 4 and 5 in their respective counter affidavits is indeed a serious one and this Court cannot remain as mute spectator to such illegal acts of a government department. On the other hand, being the Head of the Department, the Respondent No. 2 appears to be least concerned about the illegalities committed by his subordinate officers, which is an unfortunate state of affairs. 8. On the other hand, being the Head of the Department, the Respondent No. 2 appears to be least concerned about the illegalities committed by his subordinate officers, which is an unfortunate state of affairs. 8. From the materials available on record, it conclusively appears to me that the reservation policy applies in respect of filing up of the vacancies in the post of Anganwadi Worker and Helper under the Social Welfare Department and, therefore, making an advertisement for filling up of such posts without following the reservation policy is illegal and unconstitutional. It is admitted position in the instant case that the two posts of Anganwadi Worker and Helper are not filled up as yet by the Respondent-authorities. On the other hand, in the affidavit-in-opposition filed by Respondent No. 4 it has been stated on oath at para 6 as follows: 6. That with regard to the statements made in paragraphs 6, 7 and 8 of the writ petition, the deponent begs to state that as per Government guidelines vide Notification No. SWD.64/2007/Pt.II/10, dated 19.9.2009 and corrigendum No. SWD.64/2007/Pt.II/12 dated 22.9.2009 wherein it is specifically mentioned that "in case of Anganwadi Centre where the SC, ST or Tea Tribes population is more than 40% of the total population, selection should be made from the caste Tribe having more than 40% and the list should be placed at the time of interview, so that, selection can be made giving priority to that caste/tribe". But inadvertently the reservation for SC/ST candidate could not be mentioned in the advertisement and as such the deponent tenders unqualified apology before this hon'ble court. Therefore, the deponent may be allowed to re-advertise for filling up the post of Anganwadi Worker and Helper in Das Para Anganwadi Centre under this Project if the hon'ble court deem fit and proper. 9. Considering the matter in its entirety and in view of the discussion made hereinabove, the impugned advertisement cannot stand in the eye of law. I, therefore, set aside and quash the impugned advertisement dated 9.9.2009 (Annexure 2) insofar as the post of Anganwadi Worker and Helper of No. 128 Das Para Anganwadi Centre is concerned. Consequent thereto the Respondents are directed to re-advertise the said two posts following reservation policy and thereafter complete the selection process and appointment as early as possible, preferably within a period of four weeks from the date of publication of the advertisement. Consequent thereto the Respondents are directed to re-advertise the said two posts following reservation policy and thereafter complete the selection process and appointment as early as possible, preferably within a period of four weeks from the date of publication of the advertisement. The advertisement would be published within four weeks from today. The writ petition is allowed as indicated above. No costs. 10. Before parting, I am constrained to hold that the Social Welfare Department of Government of Assam failed to observe the constitutional mandates of article 16 of the Constitution, even in an insignificant Grade-IV post, more particularly so, in a department closely connected with poor rural villagers. I hope and trust that the department would take adequate measure to ensure that no such complain shall arise in future. Petition allowed.