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2015 DIGILAW 630 (GAU)

Hafijan Begum v. State of Assam

2015-05-26

UJJAL BHUYAN

body2015
JUDGMENT Heard Mr. I. H. Saikia, learned Counsel for the petitioner and Mr. B. K. Sarma, learned Standing Counsel, Social Welfare Department. Also heard Mr. R. Islam, learned counsel for respondent No. 5. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.03.2008 passed by the Child Development Project Officer (CDPO), Barkhetri ICDS Project in the district of Nalbari cancelling the engagement of the petitioner as Anganwadi Worker. Petitioner further seeks quashing of engagement of respondent No. 5 as Anganwadi Worker in the Sutar Kuchi Mathowri Supa Anganwadi Centre (Anganwadi Centre hereafter) in place of the petitioner. 3. Case of the petitioner is that pursuant to an advertisement issued in the month of March, 2007, a selection process was undertaken for engagement of Anganwadi Worker in the Anganwadi Centre which is under the CDPO, Barkhetri ICDS Project (respondent No. 4). Following the selection held petitioner was selected and consequently engaged as Angawadi Worker in the said Anganwadi Centre on 17.07.2007. While the petitioner was serving as Angawadi Worker, she was served with a copy of order dated 28.03.2008 passed by the respondent No. 4 cancelling her engagement. On enquiry, she could come to know that respondent No. 5 was engaged as Anganwadi Worker in her place. 4. Being aggrieved the present writ petition was filed. 5. This Court by order dated 10.04.2008 issued notice and stayed the order dated 28.03.2008 and the consequential engagement of respondent No. 5. 6. Respondent No. 5 filed an application for vacation of the aforesaid interim order dated 10.04.2008 which was registered and numbered as Misc. Case No. 1679/2008. This Court by order dated 27.06.2008 vacated the interim order dated 10.04.2008 on condition that engagement of respondent No. 5 would be subject to the result of the writ petition. 7. Thereafter by order dated 08.08.2011 the case was admitted for hearing. 8. Today, the case is listed in the hearing column and, accordingly, it is taken up for hearing. 9. Though seven years have gone by since institution of the present proceeding, Social Welfare Department has not filed any affidavit. However, respondent No. 5 has filed counter affidavit as well as an additional counter affidavit. 10. 8. Today, the case is listed in the hearing column and, accordingly, it is taken up for hearing. 9. Though seven years have gone by since institution of the present proceeding, Social Welfare Department has not filed any affidavit. However, respondent No. 5 has filed counter affidavit as well as an additional counter affidavit. 10. Learned counsel for the petitioner submits that no notice was issued to the petitioner prior to cancellation of her engagement though the cancellation order indicted that the engagement was cancelled as per clause 2 of the letter of appointment which says that there may be change in the selection of Anganwadi Worker/Anganwadi Helper on the basis of findings of enquiry on complaint made, if any. No copy of such complaint or findings of enquiry were furnished to the petitioner before the cancellation order was passed. Therefore, the impugned cancellation order is in violation of the principles of natural justice and is required to be set aside. He further submits that petitioner could subsequently obtain a copy of the enquiry report dated 14.02.2008 from the miscellaneous application filed by respondent No. 5 and as per the enquiry report, the residence of the petitioner is stated to be at a distance of 1½ Km. from the Anganwadi Centre. This enquiry report was submitted by the Programme Officer, Divisional ICDS Cell, Kamrup who also recommended engagement of respondent No. 5 after cancelling the engagement of the petitioner. Learned counsel for the petitioner submits that finding recorded in the enquiry report is completely incorrect as the residence of the petitioner is within the operational area of the Anganwadi Centre. As per certificate issued by the Gaonbura, residence of the petitioner is right next door to the Anganwadi Centre at a distance of less than 250 mtr. Further, the Programme Officer has jurisdiction to suggest engagement of somebody else in place of petitioner. 11. Mr. Sarma, learned Standing Counsel fairly submits that since the Department has not filed any affidavit, he is not in a position to make any effective submission in the case. He, however, submits that only a copy of the said enquiry report dated 14.02.2008 has been made available to him by the Department. 12. Mr. 11. Mr. Sarma, learned Standing Counsel fairly submits that since the Department has not filed any affidavit, he is not in a position to make any effective submission in the case. He, however, submits that only a copy of the said enquiry report dated 14.02.2008 has been made available to him by the Department. 12. Mr. R. Islam, learned counsel appearing for respondent No. 5 has strenuously argued by making reference to the documents on record that residence of a candidate within the operational area of an Anganwadi Centre is the prime eligibility requirement. In the absence of a suitable candidate from within the operational area, the authority would have the discretion to reduce the minimum academic qualification from matriculation. Referring to the enquiry report, he submits that the enquiry officer had visited the Anganwadi Centre and the petitioner was fully aware of such enquiry conducted by the enquiry officer. On the date of the enquiry, she conveniently remained absent. He, therefore, submits that since the petitioner did not have the basic eligibility, namely, having her residence within the operational area of the Anganwadi Centre which has been established in the enquiry, her engagement as Anganwadi Worker became untenable. Therefore, the authority was justified in cancelling her engagement. He has also referred to a communication dated 10.08.2007 of the Social Welfare Department to contend that in case of removal, dismissal or discharge of any Anganwadi Worker and Anganwadi Helper, there should be proper justification necessitating such course of action which must have the prior approval of the Director of Social Welfare, Assam. He submits that in this case enquiry was conducted which disclosed proper justification for cancellation of engagement and prior approval of the Director was obtained before order of cancellation was issued. Therefore, cancellation of engagement of petitioner is justified. Finally, he submits that respondent No. 5 is working as Anganwadi Worker since 2008 for about 7 years as on today. At this stage, if her engagement is interfered with, it will cause serious prejudice to the respondent No. 5. 13. Submissions made have been considered. I have also perused the materials on record. 14. There is no dispute that petitioner was initially engaged as Anganwadi Worker following her selection. It is also not disputed that an enquiry was conducted by the Programme Officer who submitted enquiry report dated 14.02.2008. 13. Submissions made have been considered. I have also perused the materials on record. 14. There is no dispute that petitioner was initially engaged as Anganwadi Worker following her selection. It is also not disputed that an enquiry was conducted by the Programme Officer who submitted enquiry report dated 14.02.2008. However, a perusal of the impugned cancellation order dated 28.03.2008 would reveal that the engagement of the petitioner was cancelled as per condition No. 2 of the order of appointment. Condition No. 2 says that there may be change/reshuffle in the selection of the Anganwadi Worker/Anganwadi Helper on the basis of findings of enquiry or complaint, if any, in this regard. 15. From the documents on record, it is evident that enquiry was conducted on the residential status of the petitioner following some complaints made. However, neither a copy of the complaint nor a copy of the enquiry report was made available to the petitioner before cancellation of her engagement. 16. Though engagement of Anganwadi Worker or Anganwadi Helper may not be a regular service under the State, nonetheless by virtue of engagement as Anganwadi Worker or Anganwadi Helper, certain pecuniary benefits are extended to the appointees in the form of honorarium though the quantum of such honorarium may not be a large amount. Cancellation of such engagement will therefore entail adverse civil consequences on the appointees in the form of withdrawal of such pecuniary benefits. In such circumstances, it is essential that minimum principles of natural justice should be adhered to before such drastic action is resorted to. Considering the service status of the Anganwadi Worker or Anganwadi Helper it may not be necessary to hold full fledged proceedings before cancellation of such engagement but atleast the holder of such engagement should be put on notice and given an opportunity of showing cause to the charges brought against her prior to such cancellation. In the absence of a prior notice or opportunity of hearing such cancellation would be rendered bad in law and cannot be sustained. It is not a case where application of the “useless formality theory” would be attracted or non-observance of the rules of natural justice can be overlooked because it cannot be said for sure that even if opportunity of hearing was given to the petitioner it would not have made any material difference to final decision. 17. It is not a case where application of the “useless formality theory” would be attracted or non-observance of the rules of natural justice can be overlooked because it cannot be said for sure that even if opportunity of hearing was given to the petitioner it would not have made any material difference to final decision. 17. That being the position, the impugned order is vitiated on account of violation of the principles of natural justice. Contention of learned counsel for the respondent No. 5 that since she has been working for 7 years following vacation of the interim order, her engagement should not be disturbed at this stage does not carry much conviction. It goes without saying that this Court while vacating the interim order had clearly observed that appointment of respondent No. 5 would be subject to the outcome of the writ petition. When engagement of respondent No. 5 itself was under the scrutiny of the Court all this while, duration of her engagement cannot be put up as a defence to negate the basic infirmity which has vitiated the cancellation of engagement of the petitioner. 18. Accordingly and having regard to the above, impugned order dated 28.03.2008 cancelling the engagement of the petitioner and the consequential engagement of respondent No. 5 dated 28.03.2008 are hereby set aside and quashed. 19. Consequently, engagement of the petitioner as Anganwadi Worker would stand revived. However, it will be open to the respondents to take necessary steps in accordance with law, if so advised. 20. Writ petition is allowed. 21. No costs.