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2013 DIGILAW 672 (GAU)

Moriom Nessa v. State of Assam

2013-09-11

A.K.GOSWAMI

body2013
JUDGMENT A.K. Goswami, J. 1. Heard Mr. A. Roshid, learned counsel for the petitioner. Also heard Mr. M. Dutta, learned counsel appearing for respondent No. 6 as well as Mr. BK Sharma, learned Standing counsel, Social Welfare Department. By this writ petition, the writ petitioner prays for quashing the selection and appointment of the respondent No. 6 for the post of Anganwadi Helper in respect of Ramharipara Anganwadi Centre (AWC) and to appoint the petitioner in the post. 2. At the hearing, all the counsel representing the parties submitted that, in fact, no appointment order has been issued to the respondent No. 6 till date. 3. Mr. Roshid submits that pursuant to an advertisement dated 12.03.2007 issued by the Child Development Project Officer (CDPO), Chenga ICDS Project, the petitioner, the respondent No. 6 and some others had submitted their respective applications for the post of Anganwadi Helper in respect of Ramharipara AWC. 4. The interview was held on 13.06.2007. Though the respondent No. 6 was not a resident of village Ramharipara but was a resident of village Holongapara, the respondent No. 6 was selected as Anganwadi Helper in Ramharipara AWC. 5. The grievance of the petitioner was considered by a Sub-Divisional Level Committee (in short, Committee), which, on consideration of the materials on record, opined that the respondent No. 6 is a resident of Holongapara village and therefore, she being a resident of outside the AWC area in question, was not entitled to be appointed in view of the guidelines holding the field. Though recommendation was made by the Committee for cancellation of the engagement of the respondent No. 6, the State authorities had not taken any action in the matter. 6. Mr. M. Dutta, learned counsel appearing for the respondent No. 6 submits that the Committee was directed to be constituted by this Court by an order passed on 10.12.2009 in WP(C) No. 1814/2008 and a batch of writ petitions to scrutinize the claims made in the writ petitions which were disposed of by the said common order dated 10.12.2009. The selection of the respondent No. 6 was never under challenge in any of the writ petitions and therefore, the Committee could not have usurped jurisdiction to go into the question of selection of the respondent No. 6. 7. The selection of the respondent No. 6 was never under challenge in any of the writ petitions and therefore, the Committee could not have usurped jurisdiction to go into the question of selection of the respondent No. 6. 7. As the recommendation of the Committee is void ab-initio because of inherent lack of jurisdiction, the learned counsel submits that the State respondents rightly did not pass any order with regard to the so-called recommendation of the Committee. 8. It is also contended by him that most arbitrarily, no appointment order has been issued in favour of the petitioner though selection remains unimpeached. He, however, submits that till date, the respondent No. 6 has not taken recourse to any remedy available to her regarding non-issuance of appointment order. 9. Drawing the attention of this Court to paragraph 4 of the affidavit-in-opposition, the learned counsel also submits that the writ petitioner herself is not a resident within the Ramharipara AWC. 10. Even though the Committee had recorded adverse finding in respect of residency against the respondent No. 6, the learned counsel submits that such finding is not correct and asserts that the respondent No. 6 is a resident within the AWC. 11. Mr. B.K. Sharma, learned Standing counsel, Social Welfare Department submits that the writ petitioner had not earlier challenged the selection of the respondent No. 6 by filing any writ petition. While not committing to a definite stand as to whether the Committee had jurisdiction to decide any selection not covered by the order dated 10.12.2009, the learned Standing counsel submits that, apparently, no decision was taken by the State Government with regard to the recommendation of the respondent No. 6. 12. I have heard the learned counsel for the parties and have considered the submissions. 13. A large number of writ petitions came to be disposed of by the order dated 10.12.2009. It will be most convenient to extract relevant portion of the aforesaid order dated 10.12.2009 in order to understand the constitution and scope of the Committee directed to be set up by the said order. Considering the submissions made by the learned counsel for the parties and the materials on record, I am of the considered opinion that the ends of justice will be met if a committee(s) is/are constituted by the Commissioner and Secretary to the Govt. Considering the submissions made by the learned counsel for the parties and the materials on record, I am of the considered opinion that the ends of justice will be met if a committee(s) is/are constituted by the Commissioner and Secretary to the Govt. of Assam, in the Social Welfare Department to look into the grievances of the petitioners as reflected in the individual writ petitions. It is submitted by the learned counsel for the parties that there will not be any occasion for the petitioners to file individual representation before the said Commissioner and Secretary agitating their grievances and that the individual writ petition may be treated as the representation. Since it will not be possible on the part of the Commissioner & Secretary to the Govt. of Assam in the Social Welfare Department to take the task of scrutinizing the grievances of the petitioners all by himself, it is hereby provided that he may constitute appropriate committer(s) with such members as he may deem fit and proper. In this connection, he may take into account the aforesaid suggestion advanced by the learned counsel for the parties. As to the constitution of the committee, the Commissioner and Secretary shall decide as to whether it should be only one Committee or Committees District-wise/Sub-Division-Wise. As to who should be members thereof will also be a matter to be decided by the Commissioner and Secretary applying his sound discretion. It is advisable not to include departmental officers in the Committee(s) against whom there are allegations. It is also advisable to get the assistance of the Deputy Commissioners and the SDOs of the Districts and Sub-Divisions respectively. In so far as the BTC area is concerned, members from that area shall be inducted in the Committee(s). The Committee(s) to be constituted by the Commissioner & Secretary as aforesaid shall be so constituted as expeditiously as possible but not later than 31st January, 2010. Upon such constitution of the Committee(s) same shall be notified. The petitioners shall approach the said Committee(s) with their individual and authenticated writ petitions, which will be treated as their representations. As suggested by the learned counsel appearing for both the official and private respondents, they may also submit their authenticated copies of the affidavits, which have been filed in some of the writ petitions. Such authentications may be made by the parties themselves or their learned counsel. As suggested by the learned counsel appearing for both the official and private respondents, they may also submit their authenticated copies of the affidavits, which have been filed in some of the writ petitions. Such authentications may be made by the parties themselves or their learned counsel. In case of any doubt regarding authenticity, the Committee(s) will be at liberty to get the same verified through the learned State Counsel. Upon submission of the aforesaid documents, the Committee(s) as per its own modality find out the truth or otherwise of the grievances made in the writ petitions. After the aforesaid scrutiny is done, the Committee(s) shall answer all the cases by appropriate and speaking orders. Depending upon the orders so passed, the consequential action to be taken by the departmental authorities will follow. The aforesaid exercise shall be completed by the Committee(s) as expeditiously as possible but at any rate not later than 4(four) months from the date of constitution of the Committee(s). The Committee(s) will decide the issues involved as per the existing modality and guidelines. The Committee(s) will make it clear that in case of furnishing any distorted version of the related state of affairs, the officers concerned shall be liable for disciplinary proceedings. It will be open for the selected and appointed candidates who are not parties to this proceeding to submit their documents through affidavits before the said Committee(s). (emphasis supplied) 14. A minute reading of the said order would leave the Court with no room for doubt that the Committee was required to be constituted by the Commissioner and Secretary, Social Welfare Department only to look into the grievances of the petitioners as reflected in the writ petitions. 15. The constitution of the Committee was left to the discretion of the Commissioner and Secretary. The Committee was to be constituted expeditiously and not later than 31.01.2010. The writ petitioners were to approach the Committee with their writ petitions. The Committee, after considering the grievances made in the writ petitions, was to answer all questions by appropriate speaking orders. The Departmental authorities were then to pass consequential orders based on the orders passed by the Committee. 16. Mr. A. Roshid has not disputed the contention of Mr. M. Dutta that selection of the respondent No. 6 was not called into question earlier by filing any writ application. The Departmental authorities were then to pass consequential orders based on the orders passed by the Committee. 16. Mr. A. Roshid has not disputed the contention of Mr. M. Dutta that selection of the respondent No. 6 was not called into question earlier by filing any writ application. It is also not disputed by him that no other candidate had also assailed such selection and thus, none of the writ petitions that were disposed of by the order dated 10.12.2009 was connected with the selection of the respondent No. 6 as an Anganwadi Helper in Ramharipara AWC. 17. The Committee derived jurisdiction to decide the subject matters of the writ petitions. This mandate, which was given by this Court, could not be assumed by the Committee on its own and as such, I am of the considered opinion that the Committee did not have any role to play in respect of any matter which was not the subject matter of the writ petitions disposed of by the order dated 10.12.2009. It is to be borne in mind that the Committee was not constituted by the Government on its own as a forum for determination of disputes relating to selection in AWCs. 18. How the matter went to the Committee is also not very clear and Mr. Dutta submits that he was also not afforded any opportunity and the entire proceeding had taken place without any notice to him. 19. Though Mr. Dutta had contended that because of inherent lack of jurisdiction of the Committee, the State respondents consciously did not pass any consequential order based on the recommendation of the Committee, it is difficult to accept that submission. 20. In the letter dated 02.07.2011 issued by the Joint Secretary to the Government of Assam, action taken report based on the recommendation of the Committee is enclosed. So far as Chenga ICDS Project is concerned, which is the project under which the present AWC falls, no such decision is discernible. In substance, the recommendation of the Committee was not even noted and was thoroughly over-looked, betraying non-application of mind. 21. That is to say, no decision, either way, was taken by the Departmental authorities on the recommendation made by the Committee in respect of respondent No. 6. 22. In substance, the recommendation of the Committee was not even noted and was thoroughly over-looked, betraying non-application of mind. 21. That is to say, no decision, either way, was taken by the Departmental authorities on the recommendation made by the Committee in respect of respondent No. 6. 22. As the Court has already held that the recommendation of the Committee is unauthorised, the State authorities shall not act upon the said recommendation. However, having regard to the fact that a dispute has been raised by the writ petitioner, though after a considerable period of time from the date of selection of the respondent No. 6, and taking note of the fact that till now the respondent No. 6 has not been issued any appointment order because of the uncertainty looming large with regard to her residential status, I consider it appropriate to resolve the issue once for all at the earliest. Taking that view, the Director of Social Welfare is hereby directed to decide the question as to whether the respondent No. 6 fulfills residential requirements in terms of the guidelines dated 31.08.2007 by affording opportunity to both the respondent No. 6 as well as the writ petitioner. The issue whether the writ petitioner fulfills such requirement shall also be looked into. 23. This exercise shall be completed on or before 30.11.2013. Depending on the outcome of the exercise, consequential orders shall be passed. The Director of Social Welfare will see to it that the order is complied with in letter and spirit on or before the date fixed as 6(six) years have already gone by. The writ petition is disposed of with the aforesaid directions and observations. No cost.