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2013 DIGILAW 502 (ORI)

Babita Pattanayak v. State of Orissa

2013-12-18

B.R.SARANGI

body2013
Judgment : Dr. B.R. Sarangi, J. Assailing the order dated 5.1.2012 passed by the Additional District Magistrate, Angul in Misc. Appeal No. 15 of 2010 under Annexure-6 directing the C.D.P.O., Banarpal to disengage the petitioner from the post of Anganwadi Worker of Santarapur Tanti Sahi Centre, the petitioner is before this Court. 2. The petitioner’s case in nutshell is that she married to one Subash Chandra Das of village Turanga in the district of Angul. But due to disturbances with her husband, she is staying in her parent’s house at Santarapur, Banarpal in the district of Angul since 10.4.2005. The C.D.P.O, Banarpal, opposite party no.4 issued an advertisement for filling up of the post of Anganwadi Worker for Santarapur “D” Anganwadi Centre in Fulapada Gram Panchayat under Banarpal I.C.D.S. Project on 15.2.2010. As the petitioner was a destitute, she applied for grant of residential certificate to the Tahasildar, Banarpal. On consideration of the same and causing an inquiry, the Tahasildar Banarpal vide Annexure-1 in Misc. Case No. 1969 of 2010 issued a residential certificate in favour of the petitioner. On the basis of residential certificate granted by the Tahasildar, the petitioner applied for engagement as Anganwadi Worker pursuant to the advertisement issued by the C.D.P.O., Banarpal. After following due procedure of selection, the petitioner was selected having secured higher percentage of marks and otherwise satisfied the requirements of the guidelines. Minarani Dash, who was one of the applicants, raised objection stating that the petitioner is a married woman and her husband’s house is at village Turanga, Angul. Pursuant to such allegation, the C.D.P.O. made an enquiry with regard to the residential status of the petitioner and came to know that the petitioner is a divorced lady and further vide letter No. 163 dated 22.3.2010 sought for a clarification from the Tahasildar Banarpal. After receiving report from the Tahasildar, Banarpal and after perusal of the enquiry report dated 29.6.2010 submitted by the C.D.P.O., the selection committee issued engagement order in favour of the petitioner on 30.6.2010 under Annexure-2 pursuant to which she joined and has been discharging the duties assigned to her till date. 3. Challenging the engagement of the petitioner, opposite party no.5 preferred an appeal before the learned Addl. District Magistrate, Angul, which was registered as Misc. Appeal No. 15 of 2010. 3. Challenging the engagement of the petitioner, opposite party no.5 preferred an appeal before the learned Addl. District Magistrate, Angul, which was registered as Misc. Appeal No. 15 of 2010. On being noticed, the petitioner appeared, filed her show cause reply and also admitted that though she was a married lady, her marriage has been dissolved. The divorce proceeding in Mat Case No. 269 of 2010 pending before the learned Civil Judge (Junior Division), Angul culminated in judgment dated 9.12.2011, dissolving the marriage between the petitioner and her husband. The Addl. Dist. Magistrate passed a perfunctory order on the basis of the presumption stating that in absence of any documentary evidence separation of the petitioner from her husband, is not believable and as after marriage of an woman, she is supposed to stay with her husband at her in-law’s house, the ADM further observed that the petitioner is staying with her husband at Turang, which is 15 kms. away from Santarapur (D) Tanti Sahi Anganwadi centre and after so saying, he has directed for disengagement of the petitioner and engagement of the opposite party no.5, who claimed to have secured 2nd position in the selection. Hence, the writ petition. 4. Mr. D.K. Sahoo-1, learned counsel for the petitioner strenuously urged that the learned Addl.District Magistrate has not appreciated the facts in proper perspective and passed the impugned order without application of mind and the entire order is based on surmises and conjectures and on a misconceived notion and therefore, she sought for interference by this Court. 5. Mr.Deepak Kumar, learned counsel appearing for the opposite party no.5 referring the counter affidavit filed by opposite party no.5 states that the petitioner applied for residential certificate to the Tahasildar, Banarpal concealing her marital status and therefore in Annexure-1 instead of reflecting the name of her husband, the name of her father has been indicated. Apart from the same, it is stated that in the application form as against Sl.No.15, the petitioner has indicated “no”. Therefore, the question of destitute or deserted claiming preference does not arise. The further contention raised in that there was no divorce decree from any competent authority and in absence of any documentary evidence, the appellate authority has rightly observed that there is every chance of re-Union. Therefore, the question of destitute or deserted claiming preference does not arise. The further contention raised in that there was no divorce decree from any competent authority and in absence of any documentary evidence, the appellate authority has rightly observed that there is every chance of re-Union. Therefore, he submitted that the engagement of the petitioner being bad in law, the opposite party no.5, who stood 2nd in the select list, should have got engagement in compliance to the order passed by the A.D.M., the appellate authority. 6. The matter was heard and judgment was reserved on 21.11.2013. But in course of detecting the judgment doubt arose in mind on the Court that whether the Residential Certificate granted by the Tahasildar has been cancelled in the meantime by following the provisions contained in Miscellaneous Provisions Act or any appeal has been preferred by opposite party no.5 against the same or by any of the persons. Therefore, the matter was listed on board under the heading “to be mentioned” on 05.12.2013. On query being made, it has been brought to the notice of the Court that the Residential Certificate granted by the Tahasildar vide Annexure-1 neither has been challenged by the authority nor by the candidates, who participated in the selection process of Anganwadi Worker nor by any other person. Therefore, the said certificate remains valid until and unless the same is altered by approaching the appropriate forum. In view of that, if the Residential Certificate granted by the competent authority is wholly justified, on that basis the selection process has been held and the petitioner has been selected securing higher percentage of marks. Therefore, the contention raised by the opposite party no.5 cannot render the petitioner disqualified for consideration for engagement of Anganwadi Worker. 7. To fill up the Anganwadi Worker, Government of Odisha issued a guideline where it has been specifically stated under Clause-1 that the Anganwadi Worker must be a resident of the Anganwadi Centre area. As revealed from Annexure-1, the residential certificate granted by the competent authority, petitioner belongs to the Anganwadi Centre area and she has secured higher percentage of marks than other applicants, who applied for engagement of Anganwadi Worker. As revealed from Annexure-1, the residential certificate granted by the competent authority, petitioner belongs to the Anganwadi Centre area and she has secured higher percentage of marks than other applicants, who applied for engagement of Anganwadi Worker. Contention is raised that the petitioner after getting married, ceased to be a resident of the Anganwadi Centre area, but fact remains that the marriage of the petitioner having not been successfully consummated, out of the distress, she was staying in her father’s place which is within the Anganwadi Centre area. Apart from the same, MAT Case No. 268 of 2010 was pending before the learned Civil Judge (Senior Division), Angul for divorce when the application for engagement of Anganwadi worker was taken up for consideration. If we construe that after marriage the residence of the petitioner has ceased to be her parents’ house, but for some reason or other she is not able to stay in her in-laws house and is constrained to come back to her parents house, that cannot ipso facto deprive her to make an application for engagement as Anganwadi worker at her parents place. On the materials available on record, it is found that there is dispute between the petitioner and her husband but due to interference of local gentries, the petitioner has been constrained to stay in her father’s house as a destitute lady and due to interference of local gentries there was an amicable settlement. Therefore, it cannot be presumed that the petitioner does not belong to the Anganwadi Centre area and the documents have been manufactured for the purpose of getting engagement as Anganwadi Worker. Hence, the finding arrived at by the learned Addl. District Magistrate, Angul is based on surmises and conjecture as the same are based on no evidence and no documents. 8. The claim for engagement of the petitioner as Anganwadi worker is solely based on the residential certificate granted by the competent authority, namely, the Tahasildar, Banarpal. The said certificate issued by the Tahasildar has neither been challenged by the opposite party nor by the authority by preferring appeal before the appropriate forum under the Miscellaneous Provisions Act as provided in the relevant provision of the statute. The said certificate issued by the Tahasildar has neither been challenged by the opposite party nor by the authority by preferring appeal before the appropriate forum under the Miscellaneous Provisions Act as provided in the relevant provision of the statute. Therefore, the certificate which has been granted by the Tahasildar after causing an inquiry under Annexure-1 is conclusive proof of the fact that the petitioner belongs to the Anganwadi Centre area in question and is otherwise eligible to make an application in view of the guidelines issued by the Government. Since the certificate issued by the competent authority has not been challenged or cancelled, the engagement of the petitioner pursuant to such certificate cannot be found fault with. The finding arrived at by the learned Addl. District Magistrate under Annexure-6 dated 5.1.2012 that had the petitioner been separated from her husband, she could have mentioned in column-15 that she is a deserted lady and it cannot be disbelieved that she might have made a verbal story of separation with a view to get the post of Anganwadi worker is only out come of non-application of mind and is absolutely based on no materials but based only on speculation. It may be that non-mentioning of deserted lady in column 15 of the application for engagement of Anganwadi worker is due to the fact that MAT Case No. 268 of 2010 was pending before the learned Civil Judge (Senior Division), Angul for adjudication and the petitioner was expecting to have reunion but that having failed and decree of divorce having been granted pursuant to Annexure-8, the speculation made by the learned Addl. District Magistrate in the order dated 5.1.2012 under Annexure-6 is absolutely based on surmises and conjectures. Thereby, the said order is not sustainable. 9. The fact that in the selection proceeding, the petitioner has secured higher percentage of marks than that of opposite party no.5 is admitted. As stated, the opposite party no.5 stood second. Admittedly, before issuance of the engagement order the status of the petitioner was challenged by another candidate, namely, Minarani Dash and which was enquired into by the C.D.P.O., who after enquiry was satisfied that the petitioner is a destitute lady and is remaining in her father’s house, thereafter engagement order was issued in her favour. Admittedly, before issuance of the engagement order the status of the petitioner was challenged by another candidate, namely, Minarani Dash and which was enquired into by the C.D.P.O., who after enquiry was satisfied that the petitioner is a destitute lady and is remaining in her father’s house, thereafter engagement order was issued in her favour. Therefore, by no stretch of imagination, can it be said that the engagement of the petitioner is bad, rather it is well within the guideline issued by the State Government and within the competency of the authorities who issued such engagement order. 10. Apart from the same, the observation of the learned Addl. District Magistrate that in absence of documentary evidence, separation of Babita Pattnaik from her husband Subash Dash is not believable is also not correct in view of the agreement under Annexure-7 entered into between the petitioner and her husband on the interference of the local gentries to resolve the difference between the petitioner and her husband, wherein it was decided that the petitioner would remain with her parents as there was no chance of reunion. Therefore, the finding so arrived at by the learned Addl. District Magistrate is absolutely baseless and out come of non-application of mind. The further finding that the petitioner is staying with her husband at Turang, which is 15 kms away from Santarapur (D) Tanti Sahi Anganwadi Centre and the criteria of residential status for engagement of Anganwadi worker of the centre is defeated is also bereft of any basis. There was no material before the Addl. District Magistrate to come to such conclusion; rather he has proceeded on the basis of speculation. Apart from the same, the residential certificate granted by the Tahasildar having not been challenged before the appropriate forum till date has reached finality and therefore, the order dated 5.1.2012 passed by the Addl. District Magistrate under Annexure-6 is not sustainable. 11. In view of the aforesaid facts and circumstances, the impugned order dated 5.1.2012 under Annexure-6 is accordingly quashed and the writ petition is allowed. No order as to cost. Petition allowed.