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2011 DIGILAW 39 (ORI)

Annapurna Deo v. Sub-Collector, Puri

2011-01-18

S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — The petitioner in this writ petition assails the order dated 20.3.2010 passed by the Sub-Collector, Puri, in A.W.W. Misc. Appeal No. 63 of 2007, declaring the selection and engagement of the present petitioner as Anganwadi Worker to be illegal and to issue a revised engagement order in favour of opposite party no.5 as the Anganwadi Worker with respect to Khandayatpatna Anganwadi Centre. 2.The petitioner pleads that an advertisement bearing No. 314 dated 23.4.2007 was issued by the C.D.P.O., Pipli (opposite party no.3) for filling up the post of Anganwadi Worker with respect to Khandayatpatna Anganwadi Centre. The petitioner having fulfilled all the requisite qualifications, applied for the said post alongwith others including opposite party no.5. The petitioner further pleads that the Khandayatpatna Anganwadi Centre comes under the Rupadeipur Grama Panchayat and the petitioner is also resident of village Alarpur (Matagajapur), which is a hamlet of Khandayatpatna and also comes under the said Rupadeipur Grama Panchayat. The petitioner pleads that she secured highest marks among all candidates, placed in the first position in the merit list and engaged as Anganwadi Worker in the aforesaid Anganwadi Centre by opposite party no.3 vide order No. 527 dated 19.11.2007. She further pleads that she has secured 57.66% marks while opposite party no.5 secured 48.2% marks. The petitioner joined as Anganwadi Worker on 19.11.2007 and has been continuing smoothly as such from the date of her joining without any adverse remarks against her at any point of time. She has also been sent for training from 7.1.2009 to 5.2.2009 conducted by the Nilachal Seva Pratisthan, Dayavihar, Puri. 3.Challenging the selection and appointment of the petitioner as Anganwadi Worker, opposite party no.5 preferred an appeal before the Sub-Collector, Puri (opposite party no.1) which was registered as A.W.W. Misc. Appeal No. 63 of 2007 on the ground that the petitioner belongs to village Alarpur (Matagajapur) and is an outsider as she is not a resident of village Khandayatpatna. The petitioner pleads that though the Anganwadi Centre situates in village Khandayatpatna, both the villages Khandayatpatna and Alarpur (Matagajapur) belong to one and the same Grama Panchayat and Ward and the village Alarpur (Matagajapur) is a hamlet village of Khandayatpatna. Even the Khandayatpatna Primary School is situated in the village Matagajapur. The petitioner pleads that though the Anganwadi Centre situates in village Khandayatpatna, both the villages Khandayatpatna and Alarpur (Matagajapur) belong to one and the same Grama Panchayat and Ward and the village Alarpur (Matagajapur) is a hamlet village of Khandayatpatna. Even the Khandayatpatna Primary School is situated in the village Matagajapur. The grievance of the petitioner is that though all these facts were pleaded before opposite party no.1, the said authority has not considered the same in its proper perspective and has allowed the appeal of opposite party no.5 only on the ground that the applicant should be the inhabitant of the operational area of the Anganwadi Centre as per the notification whereas the petitioner is not a resident of the operational area of the said Anganwadi Centre. The petitioner claims that merely because of not mentioning the name of village Matagajapur in the notification should not be a disqualification as far as she is concerned to get an appointment in the Khandayatpatna Anganwadi Centre. Accordingly, the petitioner prays that the order passed by opposite party no.1 as at Annexure-3 should be quashed. 4.Opposite party no.5 has filed her counter affidavit. She, inter alia, pleads that the Government of Orissa in Women and Child Development Department issued a fresh guideline for selection of Anganwadi Workers to all the Collectors on 2.5.2007 wherein it is specifically stated in Clause (1) that the applications for selection of volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Centre area from women residing in the said village/Anganwadi Centre area. Opposite party no.5 further pleads that opposite party no.3, invited applicants belonging to the village Khandayatpatna and accordingly opposite party no.5, the petitioner and others applied. She further pleads that the petitioner is not a resident of Khandayatpatna and is a resident of Matagajapur and therefore her application should have not been accepted by the authorities and such acceptance of application is arbitrary. Out of the residents of Khandayatpatna, four applicants were there out of which Sukanti Pradhan had not submitted her residential certificate, hence her application was rejected. She admitted that the petitioner had secured 57.66% marks in the qualifying Examination whereas opposite party no.5 had secured 48.2% marks and one Sitamani Parima had secured 47.6% marks. It is further pleaded that opposite party no.5 being the resident of Khandayatpatna should have been engaged as Anganwadi Worker. She admitted that the petitioner had secured 57.66% marks in the qualifying Examination whereas opposite party no.5 had secured 48.2% marks and one Sitamani Parima had secured 47.6% marks. It is further pleaded that opposite party no.5 being the resident of Khandayatpatna should have been engaged as Anganwadi Worker. However, opposite party no.3 illegally considered the application of the petitioner and engaged her as Anganwadi Worker. 5.It is further pleaded by opposite party no.5 that she filed an appeal before opposite party no. 1, which was allowed and the illegal engagement order issued in favour of the petitioner was cancelled. Therefore, opposite party no.5 prays that there is no merit in the writ petition and the same may be dismissed. 6.The petitioner has filed a rejoinder affidavit, inter alia, pleading that she belongs to village Alarpur (Matagajapur) and the Anganwadi Centre situates in the village Matagajapur which is a hamlet of Alarpur revenue village and although in the notification the name of the Anganwadi Centre is reflected as Khandayatpatna, the said Anganwadi Centre is functioning at Matagajapur. It is further pleaded that both Matagajapur and Khandayatpatna are the hamlets of Alarpur Revenue village. It is further pleaded that as the Khandayatpatna Anganwadi Centre is covering the area of Matagajapur, hence it cannot be said that the petitioner does not belong to the village where the Anganwadi Centre situates. She applied for information under the Right to Information Act and has been informed by opposite party no.3 that Khandayatpatna Anganwadi Centre consist of Khandayatpatna, Pradhan Sahi, Matagajapur, Matagajapur Bhoi Sahi and Balighai hamlet villages. The said information supplied under the Right to Information Act has been annexed as Annexure-4 to the rejoinder affidavit. 7.It is noted at the outset that no counter affidavit has been filed by opposite party no.5 disputing the averments made by the petitioner in the rejoinder. So, there is no specific denial of assertions that the information supplied by opposite party no.3 that Khandayatpatna Anganwadi Centre consist of the aforementioned villages including Matagajapur. In other words such plea has not been controverted. Thus, this Court comes to the conclusion that Khandayatpatna Anganwadi Centre includes the Matagajapur hamlet village of Alarpur in the operational area. So, there is no specific denial of assertions that the information supplied by opposite party no.3 that Khandayatpatna Anganwadi Centre consist of the aforementioned villages including Matagajapur. In other words such plea has not been controverted. Thus, this Court comes to the conclusion that Khandayatpatna Anganwadi Centre includes the Matagajapur hamlet village of Alarpur in the operational area. Thus, the residual question that remains to be decided in this case is whether in the absence of specification in the advertisement that the applicants of Matagajapur residence can also apply for being selected and engaged as Anganwadi Worker in the Khandayatpatna Anganwadi Centre shall make the application of the present petitioner invalid on the ground of nativity. 8.The Supreme Court in State of Karnataka & Ors. V. Ameerbi & Ors; (2007) 11 Supreme Court Cases 681 has held that the post of Anganwadi Workers are not statutory posts. The Anganwadi Workers do not carry out any functions of the State. They do not hold post under any statute. Their posts are not created. The Supreme Court further held that the recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the Constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. Thus, the service law is not strictly applicable to the case of selection and engagement of Anganwadi Worker. It is true that in the advertisement, area of Matagajapur has not been specifically included. However, it also true that Khandayatpatna Anganwadi Centre includes in its operational area, the hamlet of Matagajapur. So the exclusion of the Matagajapur area shall not take away the rights of a resident of Matagajapur as the service area of the Anganwadi Centre covers Matagajapur also. 9.It is also not disputed that the present petitioner has got more marks in the qualifying examination than opposite party no.5. In the meantime three years have elapsed and the petitioner has undergone training and has been discharging the duties of an Anganwadi Worker without any allegation of misconduct etc., this Court comes to the conclusion that findings recorded by opposite party no.1 that the petitioner being resident of Matagajapur is not eligible for applying to be engaged as Anganwadi Worker is incorrect and requires interference of this Court. Accordingly, the writ petition is allowed, the order dated 20.3.2010 passed by opposite party no.1 in A.W.W. Misc. Appeal No. 63 of 2007 is hereby quashed. No costs. The writ petition and the Misc. Case are accordingly disposed of. Petition allowed.