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2016 DIGILAW 1267 (ORI)

Rajashree Rout v. State of Odisha

2016-12-21

B.K.NAYAK, K.R.MOHAPATRA

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JUDGMENT : K.R. Mohapatra, J. Petitioners in W.P.(C). No. 32170 of 2011 have filed the present Review Petition seeking review of order dated 28.02.2012 (Annexure-1) passed in aforesaid Writ Petition upholding the action of the Collector, Keonjhar (Opposite Party No. 2) in engaging contractual Lady ICDS Supervisors following the provisions of the Orissa Reservation of Vacancies Act, 1975 (for short, ‘ORV Act’). 2. Bereft of unnecessary details, the fact relevant for proper adjudication of the Review Petition is that the petitioners are continuing as Anganwadi Workers under different Anganwadi Centers of Keonjhar district. All of them possess +3 graduation degree. Their names find place in the gradation list of graduate Anganwadi workers of the district at Sl. No.12, 13, 25, 27, 28 and 29 respectively. Pursuant to a decision of the State Government in the Department of Women and Child Development, letter dated 29.07.2009 was communicated to all Collectors of the State of Odisha to fill up 237 posts of Integrated Child Development Scheme ( for short, ‘ICDS’) Supervisors created vide Office Order No. 9263 dated 04.10.2008 and 90 posts created vide Department letter No. 2089 dated 25.10.2008, on contractual basis from amongst the graduate Anganwadi Workers having experience of more than five years. Accordingly, the Collectors were directed to obtain option of such graduate Anganwadi Workers for engagement as ICDS Supervisors on contractual basis. The petitioners along with others gave their options for being absorbed as contractual ICDS Supervisors. It is pertinent to mention here that in letter dated 04.10.2008 (supra), the Women and Child Welfare Development Department had made it clear that ORV Act and Rules need not be followed in filling up of the posts on contractual basis, but principles of reservation should be followed to ensure that the eligible Anganwadi Workers of different categories get appointment (Annexure-1 to the Writ petition). However, vide Government resolution no. 27614 dated 14.08.2009 in S.T. & S.C. Development Department of the Government took a conscious decision that even for contractual engagements of Group-‘C’ and Group-‘D’ posts, reservation of SC and ST categories shall be ensured in the same manner and to the same extent as is done for regular appointment (Annexure-2 to the Review Petition). Subsequently, vide resolution dated 08.02.2010 of the ST and SC Development Department, the said Resolution No. 27614 dated 14.08.2009 was revoked. Subsequently, vide resolution dated 08.02.2010 of the ST and SC Development Department, the said Resolution No. 27614 dated 14.08.2009 was revoked. While the matter stood thus, the Collector, Keonjhar (Opposite Party No.2) communicated the CDPOs of the district vide its letter dated 20.08.2011 to call for the options from the graduate Anganwadi workers interested for being engaged as ICDS Supervisors on contractual basis. Although the Petitioners gave their options for being absorbed as ICDS Supervisors on contractual basis, their names did not find place in the final merit list published on 09.12.2011, showing engagement of lady Supervisors on contractual basis in the consolidated pay of Rs.9,330/- (Annexure-5 to the writ petition). The said selection was challenged in the writ petition. Upon hearing learned counsel for the parties, this Court vide order dated 29.02.2012 dismissed the writ petition holding that there was no infirmity in the decision of the Collector, Keonjahr to comply with ORV Act in the contractual appointment of ICDS Lady Supervisors (Annexure-1 to the Review Petition). 3. Mr. Sameer Ku. Das, learned counsel for the petitioners submits that initially while creating the posts of 237 Lady ICDS Supervisors to be filled up on contractual basis, the Department of W & CD consciously decided not to follow the provisions of the ORV Act. Subsequently, vide resolution dated 14.08.2009, the ST and SC Development Department made provisions of ORV Act applicable to the contractual engagements of Group-‘C’ and Group-‘D’ posts. Again, vide resolution dated 08.02.2010 of the ST and SC Development Department, the said resolution was revoked. As such, when the options were called for from the Petitioners, the provisions of ORV Act and Rules framed thereunder were not required to be followed for engagement of ICDS Supervisors on contractual basis. However, selection was made applying provisions of ORV Act for which the names of the petitioners did not find place in the final selection list under Annexure-5 to the Writ petition. All the aforesaid materials were placed before this Court at the time of final adjudication, which was apparently not taken into consideration. As such, the impugned order, suffers from non-consideration of materials on record and thus petitioners seek review of the said order. 4. Mr. B.P. Tripathy and Mrs. Saswata Pattnaik, learned Additional Government Advocates, vehemently opposed the submissions of Mr. Das. Refuting the contentions of Mr. As such, the impugned order, suffers from non-consideration of materials on record and thus petitioners seek review of the said order. 4. Mr. B.P. Tripathy and Mrs. Saswata Pattnaik, learned Additional Government Advocates, vehemently opposed the submissions of Mr. Das. Refuting the contentions of Mr. Das, it was submitted on behalf of the State that provisions of ORV Act and Rules made therein were not required to be complied with so far as the selection in question is concerned. However, pursuant to the letter dated 04.10.2008 (Annexure-1 to the writ petition), reservation principles were followed to ensure that the eligible Anganwadi Workers of different categories get appointment. Hence, no fault can be found with the order dated 28.02.2012. Accordingly, they prayed for dismissal of the Review petition. 5. Having heard learned counsel for the parties and on perusal of case record, it is apparent that while creating 237 posts of ICDS lady Supervisors in the W & CD Development Department, the Government on principle decided that in order to fill up those posts on contractual basis, the provisions of ORV Act and Rules made therein would not be followed. Further, it was made clear that in order to ensure eligible Anganwadi workers of different categories, get engagement as ICDS Supervisors, the reservation principles shall be followed. Subsequently, ST and SC Development Department vide its resolution No. 26147 dated 14.08.2009 decided that even for the contractual engagement to posts of Group-‘C’ and Group-‘D’, provisions of ORV Act would be followed (Annexure-2 to the Review Petition). Thereafter, vide resolution No.5890 dated 08.02.2010 of ST and SC Development Department, the resolution dated 14.08.2009 was revoked. No counter affidavit was filed by the State Government in W.P.(C) No. 32170 of 2011 to clarify their stand. However, it is apparent from the materials available that at the time of asking for options of the petitioners for consideration of their candidature for being engaged as ICDS Lady Supervisors, i.e., 20.08.2011 (Annexure-4 to the Writ petition), provisions of ORV Act was not required to be followed. This material fact was not taken into consideration at the time of adjudication of the writ petition. Hence, the finding that there was no infirmity in the order of the Collector-Opposite Party No.2, in applying the provisions of ORV Act to the selection of posts in question suffer from non-consideration of material available on record. This material fact was not taken into consideration at the time of adjudication of the writ petition. Hence, the finding that there was no infirmity in the order of the Collector-Opposite Party No.2, in applying the provisions of ORV Act to the selection of posts in question suffer from non-consideration of material available on record. Petitioners also raised several questions on merit, which requires adjudication. 6. In that view of the matter, we recall the order dated 28.02.2012 passed in W.P.(C) No. 32170 of 2011 and restore the writ petition to its original number for being adjudicated afresh on merits providing opportunity of hearing to the parties concerned. 7. The Review Petition is accordingly allowed.