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2016 DIGILAW 512 (ORI)

Anupama Sahoo v. Collector, Khurda

2016-07-12

S.N.PRASAD

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JUDGMENT : S.N. Prasad, J. 1. In both these writ petitions since common issues are involved, they are heard together and disposed of by this common judgment. 2. The matter pertains to engagement of Anganwadi Helper in respect of Odagaon Anganwadi Centre. The fact of the case of the petitioner in W.P. (C) No. 13207 of 2011 is that she being a widow candidate ought to have been selected as Anganwadi Helper in view of the preferential clause given in the guideline dated 24.11.1997, but ignoring her case, Binodini Baliarsingh (petitioner in W.P. (C) No. 11275 of 2011), who is a general category candidate has been engaged. The petitioner being aggrieved with the selection of Binodini Baliarsingh has approached the Sub-Collector, Khurda vide Miscellaneous Case No. 38 of 2009, but the Sub-Collector after going through the materials and considering the fact that on the basis of voting, another candidate, namely, Binodini Baliarsingh had been selected and engaged, observed that the authorities have not followed the preferential clause given in the guideline dated 24.11.1997 and as such, declared the selection process void and in consequence thereof, the C.D.P.O. Begunia had been directed to disengage the helper and engage another helper as per the guideline. The petitioner has filed this writ petition seeking for a direction to engage her in the vacant post of Anganwadi Helper in Odagaon Anganwadi Centre. 3. Binodini Baliarsingh, petitioner in W.P. (C) No. 11275 of 2011 has prayed to quash the order dated 25.03.2011 whereunder the Sub-Collector, Khurda has held her appointment illegal. The petitioner has assailed the said order on the ground that merely on the ground of preference, no appointment can be given, rather, preference can only be considered if two candidates are on similar footing. But in the present case, the selection committee on the basis of voting of the Mahila Sabha had found that the Binodini Baliarsingh is most suitable and as such, she was selected ignoring the candidature of the widow candidate, namely, Anupama Sahoo (petitioner in W.P. (C) No. 13207 of 2011). Hence, there is no illegality in the selection process. 4. Learned counsel for the opposite parties-State has argued that although there is a condition mentioned in the guideline dated 24.11.1997 regarding preference to be given to orphan, widow, separated, divorced or deserted women, but that does not mean that merit will be given a go bye. Hence, there is no illegality in the selection process. 4. Learned counsel for the opposite parties-State has argued that although there is a condition mentioned in the guideline dated 24.11.1997 regarding preference to be given to orphan, widow, separated, divorced or deserted women, but that does not mean that merit will be given a go bye. It has further been submitted that as per the procedure for selection of Anganwadi Helper, the same is to be made by a Committee with the consultation of the Women Group of the village and since the Women Group of the village have casted more votes by showing faith upon Binodini Baliarsingh (petitioner in W.P. (C) No. 11275 of 2011), she has rightly been selected as Anganwadi Helper in respect of Odagaon Anganwadi Centre. 5. Heard the learned counsel for the parties. On perusal of the documents available on record, it is evident that the writ petitioners in both the writ petitions are contesting for engagement as Anganwadi Helper in respect of the centre in question. Anupama Sahoo, writ petitioner in W.P. (C) No. 13207 of 2011 being a widow candidate has questioned the selection of Binodini Baliarsingh (petitioner in W.P. (C) No. 11275 of 2011) on the ground that in pursuance of the conditions provided in the guideline dated 24.11.1997 that preference should be given to orphan, widow, separated, divorced or deserted women, she being a widow, ought to have been selected, but ignoring her candidature, the selection and engagement of Binodini Baliarsingh (petitioner in W.P. (C) No. 11275 of 2011) as Anganwadi Helper is absolutely illegal and the Sub-Collector after taking into consideration this aspect of the matter, has rightly held that the engagement of Binodini Baliarsingh is illegal. 6. Before adjudicating this issue, it would be relevant to bring on record the provisions of the guideline dated 24.11.1997, which contains a provision of eligibility and procedure for selection, which reads as follows:- “1. Eligibility:- To be eligible for selection as Helper for an Anganwadi Centre the following eligibility criteria must be fulfilled: (i) She must be a lady of the locality and acceptable to the Anganwadi Worker. (ii) She should not be of less than 18 years of age. (iii) She can continue in the job till she discharges her duty efficiently. (iv) The C.D.P.O. is competent to appoint and discharge the Helper. (ii) She should not be of less than 18 years of age. (iii) She can continue in the job till she discharges her duty efficiently. (iv) The C.D.P.O. is competent to appoint and discharge the Helper. (v) Preferences should be given to an Orphan, Widow, Separated Divorced or Deserted Woman. 2. Procedure for selection Helper will be selected by a Committee consisting of the following persons:- (i) C.D.P.O. of the Project Chair-person (ii) Supervisor in-charge of the area Member (iii) A.N.M. in-charge of the area Member The above committee should select the Helper in consultation with the Women Group of the village. In case, for any reasons, to be ordered in writing, it is not possible to make the selection in a particular village, the selection may be made in the Project Headquarters by the above named committee. However, the candidate selected should fulfill all the eligibility criteria as mentioned at para-1 above. Though the Orissa Reservation of Vacancy Rule (ORV) not applicable in this selection, in the villages predominantly covered in SC, ST and population the helper selected may be from these community is in majority.” 7. Under the eligibility criteria, preferential clause has been provided, which stipulates that preference should be given to orphan, widow, separated, divorced or deserted women. As per Clause 2 of the aforesaid guideline, the selection of Anganwadi Helper shall be conducted under the Chairperson of C.D.P.O. of the project and in consultation with the Women Group of the village. Now in the light of this provision, the fact of the case is to be appreciated. The fact, which is not in dispute in this case is that both the petitioners in the writ petitions had participated in the selection process for engagement as Anganwadi Helper in respect of Odagaon Anganwadi Centre and as per the procedure, the candidatures of both the petitioners along with others had been placed before the Committee and the Committee in order to consult the Women Group of the village, referred the matter to the Mahila Sabha and the Mahila Sabha had casted more votes to Binodini Baliarsingh and as such, she was selected. By casting more votes, it suggests that the writ petitioner in W.P. (C) No. 11275 of 2011 is more suitable in the eye of the Committee and the Mahila Sabha and since she has been shown to be more suitable, she has been selected. 8. By casting more votes, it suggests that the writ petitioner in W.P. (C) No. 11275 of 2011 is more suitable in the eye of the Committee and the Mahila Sabha and since she has been shown to be more suitable, she has been selected. 8. So far as the case of the writ petitioner in W.P. (C) No. 13207 of 2011 is concerned, she being a widow, she ought to have been selected as a matter of course by giving preference. But it is the settled proposition of law that benefit of preference can only be given in case two candidates are found in equal footing. At this juncture, it is necessary to refer to the judgments of the Hon’ble Apex Court in the case of Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu and others, reported in (2003) 5 SCC 341 wherein at paragraph-10 it has been held that preference envisaged has to be given only when claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection. 9. Applying the same principle, preference cannot be given as a matter of right and the guideline suggests to give preference to orphan, widow, divorced or deserted woman for extending monetary help for the purpose of making them independent so that these categories of candidates may survive on their own leg but for getting this benefit this category of candidate has to substantiate that they are actually in need of preference otherwise there will be no meaning to give preference if it will be given to these categories of candidate who are financially sound. For example, there may be of situation in this category that if a candidate is widow, there may be circumstances that husband might have left substantial means for her survival, in case of divorcee or deserted women after decree of divorce has been passed by the competent court of law, she must have got some alimony for maintenance, meaning thereby merely being in the category of widow, separated divorced or deserted woman, benefit of preference cannot be given and if candidate wants to take benefit of preference they have to come out with specific case that they are in actual need of help, but even then there would not be any compromise with the quality, efficiency and merit, due to the settled principle of law that benefit of preference can only be given if two candidates are on same footing otherwise not. Applying the same principle to the case at hand, merely because Aupama Sahoo (writ petitioner in W.P. (C) No. 13207 of 2011) is a widow, cannot claim as a matter of right the benefit of preference by engaging her unless and until she proves that she is actually in need of engagement. 10. Thus, the settled position of law is that preference can only be given when candidates are on similar footing. If a candidate although is not on same footing with respect to suitability and if on the basis of preference engagement has been made, then it will certainly lead to inefficiency in discharge of duty and will be compromising with the efficiency. 11. In view of the aforesaid settled proposition of law and considering the fact that the Mahila Sabha has casted more vote in favour of Binodini Baliarsingh (writ petitioner in W.P. (C) No. 11275 of 2011) and as such, the Selection Committee has not committed any illegality, but the Sub-Collector without appreciating the settled proposition of law as hereinabove, has passed the order. Hence, in my considered opinion, the order passed by the Sub-Collector is not proper and as such the same is quashed. 12. In the result, W.P. (C) No. 13207 of 2011 is dismissed and W.P. (C) No. 11275 of 2011 is allowed. 13. This Court in Misc. Hence, in my considered opinion, the order passed by the Sub-Collector is not proper and as such the same is quashed. 12. In the result, W.P. (C) No. 13207 of 2011 is dismissed and W.P. (C) No. 11275 of 2011 is allowed. 13. This Court in Misc. Case No. 6719 of 2011 arising out of W.P. (C) No. 11275 of 2011 has passed interim order staying the operation of the order dated 25.3.2011 passed by the Sub-Collector, Khordha and it has been informed that by virtue of the interim order, Binodini Sahoo (writ petitioner in W.P. (C) No. 11275 of 2011) is performing her duty. Hence, the interim order dated 25.3.2011 passed by this Court in W.P. (C) No. 11275 of 2011 is made absolute.