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2014 DIGILAW 418 (GAU)

Pallabi Das v. State of Assam and Ors.

2014-04-08

UJJAL BHUYAN

body2014
Ujjal Bhuyan, J. -- By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of the order dated 6.8.2012 passed by Director of Social Welfare, Assam directing respondent No.4 to make proper survey of the Anganwadi centre in question, survey report prepared by respondent No.4 as well as the order dated 6.9.2012 passed by the Director, Social Welfare Department declaring that residence of the petitioner and respondent No.7 are within the jurisdictional area of the Anganwadi Centre in question, thus rejecting the claim of the petitioner for setting aside the selection and appointment of respondent No.7 as Anganwadi Worker of the Anganwadi Centre in question. 2. Facts of the case may be briefly stated. 3. Petitioner belongs to the Scheduled Caste community and is Higher Secondary pass. Petitioner is also a married lady. She is therefore eligible to be appointed as Anganwadi Worker. 4. An advertisement dated 19.9.2009 was issued by the Child Development Project Officer(CDPO), Mayang ICDS Project in the district of Morigaon (respondent No.4) inviting applications from eligible candidates for the post of Anganwadi Worker and Anganwadi Helper in the Khartolabori Nabajyoti Sangha Anganwadi Centre No.309 (Anganwadi Centre). Petitioner applied for Anganwadi Worker pursuant to the said advertisement alongwith other candidates. Interview was held on 27.10.2009. 5. Respondent No.4 published a select list dated 23.12.2009. Respondent No.7 was selected for appointment as Anganwadi Worker whereafter she was appointed. 6. According to the petitioner, as per clause(2) of the advertisement dated 19.9.2009, a candidate must be a local resident within the jurisdictional area of the Anganwadi Centre. Respondent No.7 is a resident of No.5 Village Jhargaon (Farm) under mouza Mayang and her residence is outside the jurisdictional area of the Anganwadi Centre. In fact, residence of respondent No.7 lies within the jurisdictional area of another Anganwadi Centre, namely, No.308 Jhargaon Krishi Farm Anganwadi Centre. 7. Petitioner filed WP( C) No.685/2010 before this Court challenging the selection and appointment of respondent No.7 on the ground that respondent No.7 did not fulfil the eligibility criteria for such selection and appointment since her residence is outside the jurisdictional area of the Anganwadi Centre. 7. Petitioner filed WP( C) No.685/2010 before this Court challenging the selection and appointment of respondent No.7 on the ground that respondent No.7 did not fulfil the eligibility criteria for such selection and appointment since her residence is outside the jurisdictional area of the Anganwadi Centre. This Court by order dated 2.2.2012 disposed of the writ petition by directing respondent No.2 (Director of Social Welfare, Assam) to verify the complaint of the petitioner regarding residence of respondent No.7 and to decide the said issue after giving hearing to both the parties during the verification exercise. This Court held that continuance of respondent No.7 would be subject to the result of the exercise by the Director. 8. It appears that as per direction of respondent No.2, District Social Welfare Officer, Marigaon submitted verification report regarding residential status of the petitioner and respondent No.7. According to the petitioner, as per the report of District Social Welfare Officer, the Anganwadi Centre is located at Jaha Kharbari village where the residence of the petitioner is situated whereas respondent No.7 is a resident of Jhargaon village which is not covered by the Anganwadi Centre. Instead of accepting the report of the District Social Welfare Officer, respondent No.2 passed an order dated 6.8.2012 directing the CDPO to make a proper survey of the Anganwadi Centre of the area. 9. CDPO thereafter submitted the survey register of the Anganwadi Centre. Respondent No.2 by his order dated 6.9.2012 observed that in the survey register residence of both the petitioner and that of respondent No.7 are found within the jurisdictional area of the Anganwadi Centre. Thus, claim of the petitioner was rejected and respondent No.7 has been allowed to continue as Anganwadi Worker. 10. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 11. Respondent No.4 has filed affidavit. Stand taken is that in the selection held for the post of Anganwadi Worker in the concerned Anganwadi Centre, respondent No.7 had secured highest mark and was placed in the first position. She had secured a total of 64.6 marks whereas petitioner had secured 42. 8 marks. Following the order of this Court dated 2.2.2012 and as per direction of the Director, all the relevant record alongwith the survey register of the Anganwadi Centre were submitted before the Director at the time of hearing on 26.7.2012. She had secured a total of 64.6 marks whereas petitioner had secured 42. 8 marks. Following the order of this Court dated 2.2.2012 and as per direction of the Director, all the relevant record alongwith the survey register of the Anganwadi Centre were submitted before the Director at the time of hearing on 26.7.2012. However, the register was found not maintained in proper manner. Therefore, Director by order dated 6.8.2012 directed proper survey of the area covered by the Anganwadi Centre. Subsequent survey register was prepared and authenticated by the Supervisor, CDPO, President of the Gaon Panchayat and the concerned Gaonburah. As per survey register, both the petitioner and respondent No.7 belong to the same village i.e. Jhargaon and residence of both lie within the area of the Anganwadi Centre. 12. Affidavit has also been filed by respondent No.7. Allegation made by the petitioner in the writ petition that she is not a local resident of the area covered by the Anganwadi Centre has been denied by her. She has stated that she is a resident of village Jhargaon which is within the jurisdiction of the Anganwadi Centre. In the selection held, all her certificates were scrutinized which show that respondent No.7 also belongs to the Scheduled Caste community and her residence is within the jurisdictional area of the concerned Anganwadi Centre. She has made detailed averments to show that her residence is located within the area covered by the Anganwadi Centre. In the selection held, she had secured more marks than the petitioner and that petitioner is trying to secure her appointment after removing respondent No.7 by raising the false plea of being an outsider. 13. I have heard Mr.A.Sarma, learned counsel for the petitioner, Mr. B.K.Sarma, learned Standing Counsel, Social Welfare Department and Mr. B.K. Purkayastha, learned counsel appearing for respondent No.7. 14. Submissions made are on pleaded lines and therefore a detailed reference to the submissions made, is considered not necessary. 15. Short point for consideration is whether impugned order dated 6.9.2012 calls for any interference by this Court while exercising jurisdiction under Article 226 of the Constitution of India. 16. Before attempting to answer the said question, it may be apposite to note the undisputed features of the lis. Firstly, the dispute is regarding selection and appointment of Anganwadi Worker in the Anganwadi Centre in question. 16. Before attempting to answer the said question, it may be apposite to note the undisputed features of the lis. Firstly, the dispute is regarding selection and appointment of Anganwadi Worker in the Anganwadi Centre in question. Secondly, both the petitioner and respondent No.7 belong to Scheduled Caste community. Thirdly, in the selection held, respondent No.7 had secured more marks than the petitioner i.e. 64.6 as against 42.8. The only area of dispute is the claim of the petitioner that residence of respondent No.7 does not fall within the jurisdictional area of the Anganwadi Centre and as per the condition of advertisement, respondent No.7 is not eligible for selection and appointment as Anganwadi Worker in the Anganwadi Centre. When the petitioner had approached this Court earlier with the same grievance, this Court directed respondent No.2 to verify the complaint of the petitioner and thereafter to take a decision. Continuance of respondent No.7 as Anganwadi Worker was made subject to the out come of the exercise to be carried out by the Director. Relevant portion of the order of this Court dated 2.2.2012 reads as under :- “ 5. Considering the above and the factual nature of the controversy, the Director, Social Welfare (respondent No.2) is ordered to verify the petitioner's complaint to determine whether the respondent No.5 is a resident within the jurisdictional area of her appointed Anganwadi Centre. A hearing be afforded to the petitioner and the respondent No.5 during the verification exercise. The continuance of respondent No.5 will be subject to the result of the enquiry by the Director, Social Welfare. Petitioner may furnish a copy of this Court's order within 7 days and the Director will complete the exercise within 8 weeks thereafter. “ 17. Respondent No.2 thereafter directed the District Social Welfare Officer to submit verification report which was accordingly submitted. The matter was heard thereafter. Since the survey register was found to be not maintained in proper way, respondent No.4 was directed by the Director vide order dated 6.8.2012 to make a proper survey and thereafter to get the survey authenticated by the concerned authorities, such as, the Circle Supervisor, President of the Gaon Panchayat and Government Gaonburah. Relevant portion of the order dated 6.8.2012 reads as under :- “ Perused the enquiry report furnished by the District Social Welfare Officer, Morigaon. Relevant portion of the order dated 6.8.2012 reads as under :- “ Perused the enquiry report furnished by the District Social Welfare Officer, Morigaon. From the report it has been observed that , the 309 No.Khartolabori N.J. Sangha Anganwadi Centre is located at Jhargaon Khartolabori village under Jhargaon Gaon Panchayat at Ward No.5. The Centre is now running at a temporary building within the surveyed area. The residence of Smt. Sabitri Das, the respondent No.5 is in Jhargaon Village, and Smt. Pallabi Das, the petitioner resides at Jhargaon Khartolabori Village. Both the village is covered under ward No.5. The Child Development Project Officer has produced the survey register of the concerned Anganwadi Centre, where the name of the petitioner Smt. Pallabi Das has been figured at Page-62 and name of the respondent Smt. Sabitri Das has been figured at Page-80.The petitioner, Smt. Pallabi Das could not produce any authenticate document in support of her claim. The survey register produced by the CDPO is found not maintain in proper way.The CDPO is directed to make a proper survey of the 309 No. Khartolabori Nabajyoti Sangha Anganwadi Centre area through the concerned Circle Supervisor and authenticate the same with due signature from the concerned Govt. Gaonburah, President of the concerned Gaon Panchayat and the concerned Circle Supervisor. The survey register with due authentication from the above officials and with countersignature from the CDPO may be furnished to this Directorate on or before 29th August, 2012. Final order in the matter of WP( C) No.685/2010 shall be passed immediately after receipt of the survey register.” 18. Following the above order of the Director dated 6.8.2012, respondent No.4 submitted fresh survey register. On perusal of the same, Director held that residence of both petitioner and respondent No.7 are within the jurisdictional area of the Anganwadi Centre. Therefore, claim of the petitioner was rejected. Respondent No.7 has been allowed to continue as Anganwadi Worker of the Anganwadi Centre. The Director in the impugned order dated 6.9.2012 held as under :- “ Verified the Survey Register of Khartolabori Nabajyoti Sangha Anganwadi Centre submitted by the Child Development Project Officer, Mayong ICDS Project. Observed that, the entries of the Survey Register have been authenticated by the Gaonburah of 1 No.Jhargaon Lat, the President, Jhargaon Gaon Panchayat, the area Supervisor and the Child Development Project Officer, Mayong ICDS Project. Observed that, the entries of the Survey Register have been authenticated by the Gaonburah of 1 No.Jhargaon Lat, the President, Jhargaon Gaon Panchayat, the area Supervisor and the Child Development Project Officer, Mayong ICDS Project. In the Survey register the name of the petitioner has been found figured at page-62 against House No.351(30) and the name of the respondent has been found figured at page-80 against House No.485(41). In view of the above, I am in opinion that the residence of the petitioner Smt. Pallabi Das and the respondent Smt. Sabitri Das are within the jurisdictional area of Khartolabori Nabajyoti Sangha Anganwadi Centre. Hence, the claim of the petitioner could not be accepted. The respondent No.5 Smti. Sabitri Das may be allowed to continue in the service of Anganwadi Worker at the concerned Anganwadi Centre.” 19. A perusal of both the orders dated 6.8.2012 and 6.9.2012 would show that in both the orders it was recorded that residence of respondent No.7 is within the jurisdictional area of the Anganwadi Centre. However, in the first hearing, the survey report was found unauthenticated. Therefore, a fresh survey report was called for which was authenticated by the Gaonburah of the village, President of the Gaon Panchayat, Supervisor and the CDPO. A finding of fact has been recorded that petitioner's residence appears at page 62 of the survey register against House No.351(30) and that of respondent No.7 at page 80 against House No.485(41). Residence of both petitioner and respondent No.7 have been held to be within the jurisdictional area of the Anganwadi Centre. 20. This is a finding of fact recorded by the Director after verification of record including the survey register. Both the parties were also heard during the verification process by the Director. Challenge made by the petitioner to the aforesaid finding is based entirely on factual foundation which in turn is highly disputed by the respondents. In such circumstances, this Court is of the view that when the Director having passed an order after verification of record and after hearing the parties and thereafter having recorded a finding of fact, the same should not be interfered with by the writ Court. 21. This Court therefore finds no good ground to interfere either with the survey report or with the impugned order dated 6.9.2012 passed by the Director. 22. Writ petition is dismissed. 23. 21. This Court therefore finds no good ground to interfere either with the survey report or with the impugned order dated 6.9.2012 passed by the Director. 22. Writ petition is dismissed. 23. Record produced by the learned Standing Counsel is returned back.