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2011 DIGILAW 900 (CAL)

Mandabi Dhar v. STATE OF WEST BENGAL

2011-07-08

SAMBUDDHA CHAKRABARTI

body2011
JUDGMENT 1. BY a notification dated May 4, 2007 the Department of Women and Child Development and Social Welfare, Government of West Bengal, accorded sanction for setting up of 17,512 additional Anganwadi Centers and creation of 700 posts of Supervisors @ one Supervisor for twenty-five additional Anganwadi Centers, 17,512 posts of Anganwadi workers and 17,512 posts for Anganwadi Helpers with effect from the date of their actual joining up to February 28, 2010. The notification further stated that the Governor had been pleased to issue guidelines for setting up of these additional Anganwadi Centers according to which priority was to be given in the villages/localities predominantly inhabited by the population belonging to the ST/SC and minority Community. The notification also stated that the Governor had been pleased to direct that the candidates in the existing panels of Anganwadi Workers and Anganwadi Helpers, if any, should be appointed after observing all necessary formalities for early operationalisation of the Anganwadi Centers. It was further directed that in the event of exhaustion of the existing panels all necessary steps should be taken immediately for filling up of the remaining posts of Anganwadi Workers and Anganwadi Helpers following a departmental Memo of 2006. 2. THE writ petitioners state that the respondent No. 6, i.e., THE Child Development Project Officer, Dinhata-II, ICDS Project, Dinhata, Cooch Bihar, issued a notice dated June 18, 2007 for appointment of fifty-nine Anganwadi Helpers and four Anganwadi workers apart from twelve Anganwadi Workers for Dinhata-II Child Development Project which would be filled up from the Anganwadi Helpers by way of promotion. THE requisite qualification and conditions for appointment were laid down in the said notice. Pursuant to that the petitioners applied for the posts of Anganwadi Helpers in the prescribed form and accordingly the petitioners by letter dated July 25, 2007 were called for an interview to be held on August 9, 2007 and August 14, 2007 respectively. It is learnt from the writ petition that the Selection Committee prepared a panel of eleven candidates of Anganwadi Helpers for the concerned area. From the Final Judgment Sheet, annexed to the writ petition as Annexure P-4, the names of the writ petitioners appear in Serial Nos. 8, 9, 10, and 11 respectively and this was approved by the Chairman of the Selection Committee. From the Final Judgment Sheet, annexed to the writ petition as Annexure P-4, the names of the writ petitioners appear in Serial Nos. 8, 9, 10, and 11 respectively and this was approved by the Chairman of the Selection Committee. All these were in respect of Burirhat I Gram Panchayat under Dinhata Block- II and out of these eleven candidates seven were already appointed. The four petitioners were, however, not so fortunate. 3. THE further allegation of the writ petitioners is that by a subsequent Memo, dated August 7, 2009 the department of Women and Child Development and Social Welfare, Government of West Bengal notified that the Governor had been pleased to accord sanction for setting up of 25,018 additional Anganwadi Centers and creation of 1001 posts of Supervisors @ one Supervisors for twenty-five Anganwadi Centers, 25,018 posts of Anganwadi Workers and 25,018 posts of Anganwadi Helpers. Apart from issuing the guidelines for setting up of the additional Anganwadi Centers it was specifically mentioned that the Governor had further been pleased to direct that the candidates in the existing panels of the Anganwadi Workers and Anganwadi Helpers, if any, should be appointed immediately after observing all necessary formalities for operationalisation of the Anganwadi Centers. Annexure P-6 is the Memo issued by the respondent No. 6 whereby applications were invited from eligible candidates for filling up posts of 126 Anganwadi Helpers and 9 Anganwadi Workers by way of direct recruitment under the ICDS project in Block Dinhata-II, Cooch Bihar. 4. THE grievance of the writ petitioners is that the concerned respondents did not give appointment to the petitioners from the existing panel which was prepared on December 20, 2007 but had issued a notice for further fresh recruitment by a Memo, dated February 8, 2010. THE writ petitioners have challenged this Memo as being contrary to the earlier Government notification. THE petitioners have inter alia prayed for issue of a writ of Mandamus to cancel or rescind the notice dated February 8, 2010, annexed to the writ petition as Annexure P- 6, not to give any appointment on its basis and not to give effect to the said notice and to give appointment to the writ petitioners on the basis of the panel prepared on December 20, 2007. This writ petition was moved before this Court on May 17, 2010 when this Court had inter alia directed notice to be issued to the respondents to show cause as to why appropriate relief should not be granted to the petitioners. It was also ordered that if the respondents had already started the process of selection as per the notice dated February 8, 2010 it would be desirable to direct them to keep four posts open so that in the event the petitioners succeeded in the writ petition there shall no complication. It appears from the order that when this writ petition was moved the petitioners had submitted an Affidavit of Service in court. The matter again appeared as a Motion on June 16, 2010 and by the order passed on that date the court recorded that the order passed on May 17, 2010 was duly communicated to the concerned respondents; but in spite of the same the respondents did not appear on that date. 5. THE court made it clear that if there was no appearance on behalf of the respondents on the next date the matter would be taken up ex parte. On July 27, 2010 when the matter was next taken up a learned Advocate for the State respondents had appeared. 6. THE court had directed copies of the earlier two orders to be served upon the learned Advocate appearing for the state. THE Court had further made it clear that in the event no instructions were given to the learned Advocate for the State by the next date which was fixed on July 27, 2010 the matter would be taken up and decided ex parte. By order dated August 17, 2010 the Court directed the learned Advocate for the State to bring on record the instructions that he has received through an affidavit within a period of 10 days. Petitioners were given opportunities to file reply within a period of 10 days thereafter. THE matter was next taken up on February 10, 2011. The learned Advocate for the petitioners submitted that he had not received any copy of the affidavit till then. The State respondents were again directed to file their Affidavit-in- Opposition, if not already filed, positively within a period of 10 days from the date of the order and the petitioners were given liberty to file their Reply within 10 days thereafter. The State respondents were again directed to file their Affidavit-in- Opposition, if not already filed, positively within a period of 10 days from the date of the order and the petitioners were given liberty to file their Reply within 10 days thereafter. The matter was further directed to appear as a listed motion in the monthly list of March 2011. The learned Advocate for the petitioners were directed to inform the gist of the order to the learned Advocate for the State. 7. ON March 18, 2011 the matter appeared as a Motion before me and again none appeared for the State respondents and none prayed for any adjournment for the State. Mr. Roy Karmakar, the learned Advocate for the petitioners had submitted that pursuant to the earlier order the learned Advocate-on-record for the petitioners had communicated the gist of the order passed on that date and a copy of the said letter was filed and was taken on record. Mr. Roy Karmakar further contended that no copy of the affidavit pursuant to successive earlier orders had been served upon him. In such view of the matter no further opportunity was required to be given to the State respondents to file Affidavit-in-Opposition to the allegations of the writ petitioners. Under such circumstances, the petitioner was heard and the hearing was concluded. 8. THUS, the allegations in the writ petition remain absolutely uncontroverted. The State respondents were given repeated opportunities to show cause as to why reliefs should not be granted to the writ petitioners and to file their Affidavit-in- Opposition. The State respondents not only did not file any affidavit the learned Advocate for the state was also not present despite being served with the requisite notice by the learned Advocate for the writ petitioners. It is true that the writ petitioners figured serially 8, 9, 10 and 11 respectively in the Final Judgment Sheet of Anganwadi Helpers under the concerned block jurisdiction in respect of the selection in the year 2007. And selection to all those posts was approved by the Chairman of the Selection Committee. It is true that the writ petitioners figured serially 8, 9, 10 and 11 respectively in the Final Judgment Sheet of Anganwadi Helpers under the concerned block jurisdiction in respect of the selection in the year 2007. And selection to all those posts was approved by the Chairman of the Selection Committee. It is also true that the concerned department while issuing the notification, dated August 7, 2009 recording sanction for additional Anganwadi Workers and Anganwadi Helpers had specifically mentioned the direction given by the Governor that candidates in the existing panels of the Anganwadi Workers and Anganwadi Helpers, if any, should be appointed immediately after observing all formalities. 9. SINCE out of the eleven selected candidates only the writ petitioners were not appointed it was incumbent upon the respondents authorities to consider the case of the writ petitioners in terms of the earlier notification, provided the panel was alive on the date of the publication of the notification, dated August 7, 2009. I, therefore, send the matter back to the respondent No. 6 to take a fresh decision in the matter and to consider the case of the petitioners and to give them appointment upon compliance of all formalities, if the petitioners are otherwise eligible and are otherwise entitled to be appointed to the concerned posts. This order is being passed subject to a further condition that the case of the writ petitioners shall be considered only if the panel prepared on December 12, 2007 a copy of which has been annexed to the writ petitioner Annexure P-4 was kept alive on the date of the notification, dated August 7, 2009. The entire exercise shall be completed within a period of four weeks from the date of the communication of this order. The time frame so fixed is mandatory. 10. THE writ petition is thus disposed of. But in the facts and circumstances of the case there shall be no order as to costs. Urgent Xerox certified copy, if applied for, will be supplied within seven days from the date of the application.