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2015 DIGILAW 206 (ORI)

Sumitra Swain v. State of Orissa

2015-03-26

S.N.PRASAD

body2015
JUDGMENT Petitioner being aggrieved with the order dated 20.8.2010 passed by the Additional District Magistrate, Cuttack in Anganwadi Appeal No.63 of 2010 by which engagement of the petitioner as Anganwadi worker in Talabania Anganwadi Centre has been cancelled on the ground that the petitioner was not residing in a rented house for the relevant period. Brief facts of the case is that in terms of advertisement dated 30.10.2009 for engagement of Anganwadi Worker in respect of Talabani Anganwadi Centre under ICDS Project, Cuttack city petitioner and others along with opposite party no.6 had made applications for consideration of their candidature. Petitioner, on the basis of her residential certificate which was issued by the competent authority under the relevant provision of law showing her as resident of that area where the Centre is located, was considered and selected. After her engagement a complaint has been made before the appellate authority by the opposite party no.6 that as per guideline candidate of such candidatures should have been considered who are permanent residence of that area. Petitioner since was residing in a rented house was not eligible to be considered for engagement as Anganwadi Worker. The appellant authority has passed order on 20.8.2010 and come to conclusion that the petitioner since was residing in a rented house, who happens to be an outsider, her selection was cancelled. Learned counsel for the petitioner has submitted referring to the guideline dated 2.5.2007 wherein provision has been made at clause-1 that “ 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. Referring to the provisions of the guideline submission has been made that since only requirement under the guideline is that candidates being residents of that area either permanent or temporary will be considered for candidature. Petitioner being residing in a rented house for last three years and to that effect residential certificate has been issued by the competent authority under the guideline, which has not been cancelled by the competent authority. Under the relevant provision of law, the appellate authority ought to have considered the said residential certificate but order has been passed without consideration of the same. Under the relevant provision of law, the appellate authority ought to have considered the said residential certificate but order has been passed without consideration of the same. Learned counsel for the petitioner has relied upon the judgment of Division Bench of this Court in the case of Smt. Sarojini Sahoo -vs- State of Orissa and others reported in 2014(II) OLR 65 and the judgment of Single Bench of this Court in Babita Pattanayak -vs- State of Orissa and others reported in 2014(I) OLR 427 in support of her contention. Learned counsel for the opposite party no.6 submitted that intent of the conditions mentioned in the guideline regarding residence is that candidates who are residing permanent in that area can be better position to render their service for smooth and better function of the centre and if an outsider candidate resides on a rented house, there is every possibility of not providing better administration of the said Centre. Learned counsel for the opposite party no.6 has submitted that engagement is made on the basis of residing in the rented house for last three years and if the worker would vacate the said rented house and resides in another centre, better service cannot be provided by the concerned worker. After hearing learned counsel for the parties at length and after perusal of the documents on record, the fact which is not in dispute is that petitioner has made an application for consideration of her candidature on the basis of residential certificate issued vide Misc.Case No.2147 of 2009 which has not been issued by the Tahasildar vide his letter No.5318 dated 28.5.2010 on the ground that the petitioner is residing in rented house within the service area of Anganwadi Centre since three years. Relying upon the provisions of the guideline which speaks that a candidate who is residing in the Centre area and the petitioner since has been provided a residential certificate to that effect and as such case of the petitioner was considered and she was engaged but subsequently disengagement order was passed considering the petitioner is an outsider since the petitioner was residing during the relevant time in a rented house. Submission has been made that no where in paragraph 7 of the guideline dated 2.5.2007 relevant provision has been discussed, for better appreciation paragraph-7 is being reproduced below: “In the scheduled area ST/ST candidates shall be selected as Anganwadi Workers having educational qualification as provided under para-3 above. In case no suitable ST/SC candidate is available in the area served by the Anganwadi Centre, then a suitable ST/SC candidate may be selected from the same Gram Panchayat. If no ST/SC candidate is available within the GP also, then a non-ST/SC candidate may be selected from the area for a period of five years.” On perusal of paragraph-7 of circular dated 2.5.2007 with circulars dated 8.3.2011 and 2.3.2012 issued by the Government of Orissa, Revenue and Disaster Management Department. Said circulars provides for issuance of residential certificate if a person is residing in a locality for a period of two years, but subsequently it has been relaxed for one year. Other judgment rendered by this Court in Babita Pattanayak -vs- State of Orissa and others (supra) has also referred to the same guidelines. On perusal of the contents in para-7 of the judgment rendered by the Division Bench in which learned counsel for the petitioner has given much emphasis, in my view this clause has also to be gone through by the appellate authority on the ground of applicability of the provisions of relevant circular dated 8.3.2011 and 2.3.2012 since these circulars have been issued by the Revenue and Disaster Manager Department of the Government of Orissa for consideration of candidature of candidates for engagement of Anganwadi Worker. On the basis of the reasons given above, I find, it would be in the interest of justice, to remit back before the appellate authority to take a fresh decision in this regard after giving a specific finding regarding applicability of the circulars dated 8.3.2011 and 2.3.2012 with respect to the guideline as has been provided in circular dated 2.5.2007 for selection of Anganwadi Worker. A decision in this regard shall be taken by the appellate authority within a reasonable period, preferably within a period of eight weeks from the date of receipt of copy of this order. With the aforesaid observation, writ petition is accordingly disposed of. Issue urgent certified copy.