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2017 DIGILAW 1276 (ORI)

Subhashri Maharana v. State of Orissa

2017-11-08

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. PRASAD, J. 1. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the direction has been sought for upon the opposite parties to explain as to why the age of the Anganwadi Worker retrospectively fixed by 01.01.2006 although the advertisement is issued on 21.09.2016 with further prayer to accept the application of the petitioner for the sake of interview. 2. The brief facts of the case are that the petitioner is an aspirant to be considered for engagement as Anganwadi Worker. An advertisement has been issued on 21.9.2016 wherein recruitment of minimum age has been stipulated being 18 years as on 1.1.2016. 3. Petitioner, being aggrieved with the cut-off date of 1.1.2016, is before this Court by way of this instant writ petition on the ground that when the advertisement is dated 21.9.2016, then why the cut-off date of determining the minimum or maximum age would be 1.1.2016. According to the petitioner, that is arbitrary and unreasonable decision and due to that reason the petitioner, who is short of two months age as on 1.1.2016 is being deprived from consideration of her candidature, although she has already attained the age of 18 years on the date of issuance of advertisement i.e. 21.09.2016. 4. Learned counsel appearing for the petitioner has relied upon the judgment rendered in the cases of K. Narayanan and others v. State of Karnataka and others passed in Civil Appeal Nos.630-32 of 1989, State of Andhra Pradesh v. T. Ramakrishna Rao and Ors. Passed in Civil Appeal No.1461 of 1971, Sasidhar Reddy Sura v. The State of Andhra Pradesh and Ors. and Satyabrata Kanungo v. State of Odisha and Ors., reported in 2016 (II) ILR-CUT 69. He has also relied upon the Notification issued by the General Administration Department dated 27th October, 1989 wherein there is no reference of the cut-off date in the case of determining the minimum or maximum age. As such, he contends that the guideline itself is illegal and hence the candidature of the petitioner is to be considered. 5. He has also relied upon the Notification issued by the General Administration Department dated 27th October, 1989 wherein there is no reference of the cut-off date in the case of determining the minimum or maximum age. As such, he contends that the guideline itself is illegal and hence the candidature of the petitioner is to be considered. 5. Counter affidavit has been filed by the State-opposite parties inter alia therein it has been stated that the Anganwadi Worker in the State is to be engaged in pursuant to the guideline issued by the Women & Child Development Department on 2.5.2007 wherein as per the provision made in Clause-2, the requirement of age for the female candidate is 18 to 42 years. She should have attained the age of 18 years, but not 43 years on the first day of the year in which the application has been invited. 6. According to the learned counsel appearing for the State-opposite parties, the advertisement is on 21.9.2016, but the age minimum or maximum is to be seen on the first day of the year. Since the advertisement is of the year 2016, hence the cut-off date to determine the minimum or maximum age would be 1.1.2016. It has been fairly submitted that there is no infirmity in the advertisement. The petitioner has not challenged the Condition No.2 of the guideline and as such, she now cannot raise any grievance questioning the condition of the guideline dated 2.5.2007. 7. Heard the learned counsel for the parties and on appreciation of the rival submission, it is evident from the pleading made by the parties that the petitioner has questioned the condition of advertisement dated 21.9.2016 wherein the minimum age of 18 years has been taken to be on 1.1.2016. Petitioner’s grievance is that when the advertisement is dated 21.9.2016, then why the cut-off date of determining the minimum or maximum age would be 1.1.2016. 8. It is not in dispute that the Anganwadi Worker is not a post under the regular establishment of the State Government. It is only for the purpose of extending the benefit meant to the persons below the poverty line and for that reason, a concept is to create Anganwadi Centres to extend the benefit to the beneficiaries, who are entitled to get it under the Scheme has been evolved. It is only for the purpose of extending the benefit meant to the persons below the poverty line and for that reason, a concept is to create Anganwadi Centres to extend the benefit to the beneficiaries, who are entitled to get it under the Scheme has been evolved. To run the Centres, the requirement of a In-Charge with the Helper has been thought to be taken. The Government, in the light of this pretext, has decided to engage female candidates to run the Centre to be known as Anganwadi Worker. The decision has been taken by the Government to engage the Anganwadi Worker of the same locality to extend maximum benefit to the local people of the area. The Government has also taken the decision to maintain fairness and transparency in the matter of engagement of the Anganwadi Worker and for that purpose, guideline have been prepared in continuation of the same. The revised guideline has been published on 2.5.2007 under the seal and signature of the Commissioner-cum-Secretary to Government, Women & Child Development Department of the State of Odisha. The guideline contains the provision of selection of engagement as well as eligibility condition. The eligibility condition regarding the age has also been reflected therein, which is reproduced herein below:- “The applicant will be a female candidate in the age group of 18 to 42 years. She should have attained the age of 18 years, but not 43 years on the first day of the year in which the application has been invited.” 9. It is evident from the said provision that the minimum and maximum age has been provided therein with a cut-off date that is on the date of order in which the application has been invited. There is no dispute in the legal proposition that the advertisement is to be issued on the basis of provision of the recruitment rule and guideline which is prevalent. The authority has given with an advertisement on 21.9.2016 wherein the applications have been invited from the eligible candidates in between the age group of 18 to 42 years as on first day of the year in which the applications have been invited. It is evident from the advertisement that since it has been advertised on 21.9.2016 and as such, the cut-off date to determine the minimum or maximum age would be the first day of the year, i.e., 1.1.2016 10. It is evident from the advertisement that since it has been advertised on 21.9.2016 and as such, the cut-off date to determine the minimum or maximum age would be the first day of the year, i.e., 1.1.2016 10. The admitted case of the petitioner is that she short of two months age as on 1.1.2016 although she has completed more than 18 years as on the date of advertisement and as such, she may participate in the selection process. However, admitted position is that the petitioner has not challenged the guideline dated 2.5.2007 as also the condition of the advertisement requiring to fix the minimum or maximum age as on 1.1.2016. Although, he has relied upon the Notification dated 27th October, 1989 issued by the General Administration Department in order to strengthen his argument that even the Government has not come out with any decision to fix the minimum or maximum age by fixing the cut-off date and as such, the stipulation made in the guideline dated 2.5.2007 fixing the cut-off date is not proper. 11. So far as the reliance put by the petitioner in the General Administration Department Notification dated 27th October, 1989 is concerned, it has already been said hereinabove that the post of Anganwadi Worker is not under the regular establishment of the Government rather, it is totally in contract on payment of remuneration by way of consolidated money and as such, the guideline has been formulated on 2.5.2007. The petitioner is relying upon the Notification dated 27th October, 1989, but the condition of advertisement has not been assailed in this writ petition and as such, the said notification is of no help to the petitioner. 12. So far as the judgments relied upon by the petitioner referred hereinabove, the same are being dealt with hereunder. The judgment rendered by Hon’ble the Supreme Court in the case of The State of Andhra Pradesh (supra), the issue in the said case does not pertains to the question of fixing the cut-off date for determining the minimum or maximum age, rather the same is the method to select the candidate and as such, the same is not applicable in the facts and circumstances of the instant case. The judgment rendered by Hon’ble the Supreme Court in the case of K. Narayanan and others (supra), the fact leading to the said case is retrospective application of a rule, but here the subject matter is entirely different. Hence, it is not applicable. The judgment rendered by Hon’ble the Supreme Court in the case of Sasidhar Reddy Sura (supra), the fact leading to the said case is not regarding the cut-off date rather, the issue was as to whether with regard to the minimum age of a candidate to the post in question whereas the Commission had expressed its view in its report that only after completion of 35 years of age a person should be appointed as a District and Sessions Judge but the said recommendation has not been incorporated in the Rules. Hence, the fact of the instant case is also different. Hence, it is not applicable. The judgment rendered by this Court in the case of Satyabrata Kanungo (supra), the fact leading to the said case is related to the eligible condition provide under Clause-I(6) of the Guidelines for candidates for Post Graduate Medical courses in the Medical Colleges and if any candidate does not join or leaves after joining the PG Course, due to which a seat goes lapsed, then the candidate concerned shall not be considered for selection in the next three academic sessions of the PG Course and the stipend/salary already received by him/her will have to be refunded and the said provision of law was under scrutiny before this Court, but that is not the fact involved herein. Hence, it is not applicable. 13. So far as the fact of the instant case is concerned, admittedly the petitioner has not challenged the guideline dated 2.5.2007 and the stipulation made in the advertisement regarding fixing the minimum or maximum age is on the first day of the year in which the application has been invited that is in pursuant to the provision made in the guideline dated 2.5.2007 under Clause-2 as already quoted above. Hence, the condition made in the advertisement cannot to be said illegal, rather it is in consonance with the guideline dated 2.5.2007. 14. Hence, the condition made in the advertisement cannot to be said illegal, rather it is in consonance with the guideline dated 2.5.2007. 14. So far as the prayer of the petitioner is that her case may be considered, since the date of submission of application, she has already attained the age of the minimum 18 years, but this argument is not acceptable to this Court for the reason that any condition put in the guideline or the rule governing recruitment and the advertisement has been issued in pursuant to the rule or guideline, it is incumbent upon the authorities to follow the same without making any confusion otherwise it will lead to unfairness or non-transparency in the selection process. The further issue would be that if the petitioner would be granted such benefit, then why not others. 15. In view of such a position and in view of the reason aforesaid, the petitioner has failed to make out a case. Accordingly, the writ petition fails and it is dismissed.