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2017 DIGILAW 1540 (GAU)

Shahina Bilkis v. State of Assam

2017-12-14

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. R. Mazumdar, learned counsel for the appellant as well as Mr. R. Dhar, learned Additional Senior Government Advocate, Assam for Respondent Nos. 1 to 4 and Mr. F.U. Borbhuiya, learned counsel for Respondent No. 5. This intra-Court appeal is directed against the judgment and order dated 02.08.2014 passed in WP (C) 5708/2012. 2. With regard to appointment of the appellant as Anganwadi Worker at No. 134 Beltola Chuburi Anganwadi Centre under Karunabari ICDS Project, the same has been the subject-matter of challenge in three successive writ petitions instituted by the Respondent No. 5 herein, being WP(C) 4932/2010, WP(C) 185/2012 and finally the related WP(C) 5708/2012. The said selection and appointment of the appellant was pursuant to Advertisement dated 05.09.2009 and challenge to her appointment has been on the sole ground that she was not a candidate residing in the village where No. 134 Beltola Anganwadi Centre is located. The pinpointed challenge against the appellant has been that she being a resident of House No. 40 of Gohain Doloni Village, which is outside the jurisdiction of the concerned Anganwadi Centre, as such, she was ineligible for selection. The said Anganwadi Centre is stated to be located at Daulatpur village and not at Gohain Doloni village. 3. The first writ petition was disposed of with direction to the Director of Social Welfare, Assam to examine the grievances so raised against the appellant and to take appropriate decision after affording opportunity of hearing to the appellant. The order passed by the Director of Social Welfare, Assam on 29.10.2011 pursuant to the direction of this Court found the selection of the appellant to be genuine. This was challenged in the second writ petition i.e. WP(C) 185/2012, which was also disposed of with direction to the Director of Social Welfare, Assam to determine the residential status of the parties by taking note of all relevant reference/documents etc. Pursuant thereto, the Director issued the order dated 16.08.2012 holding that the issue raised in the second writ petition being similar to the earlier writ petition, therefore, the speaking order passed on 29.10.2011 would govern the matter raised in the second writ petition. Pursuant thereto, the Director issued the order dated 16.08.2012 holding that the issue raised in the second writ petition being similar to the earlier writ petition, therefore, the speaking order passed on 29.10.2011 would govern the matter raised in the second writ petition. This had prompted the Respondent No. 5 herein to institute the third writ petition i.e. WP(C) 5708/2012, which was allowed vide judgment and order dated 02.08.2014 by setting aside the orders of the Director dated 29.10.2011 and 16.08.2012 as well as the selection and appointment of the appellant herein as Anganwadi Worker of No. 134 Beltola Chuburi Anganwadi Centre. A further direction was made to the Child Development Project Officer (CDPO), Karunabari ICDS Project, to consider the appointment of the next candidate in the selection as Anganwadi Worker. It would be worthwhile to note that selection as Anganwadi Worker in the Centre in question was only confined to the appellant and the Respondent No. 5 herein. 4. The findings and decision of the learned Single Judge while allowing the writ petition is reproduced hereunder : "Advertisement was issued by the respondent No. 4 on 05.09.2009. As per terms and conditions No. 2, candidates were required to be resident of areas within the specified area of the Anganwadi Centre. Certificate from Govt. Gaonburah/Ward Member or Secretary of the Gaon Panchayat in support of residence were required to be attached with the application form. In the order dated 29.10.2011, passed by the Director, the report of the District Social Welfare Officer dated 24.01.2011 was not accepted. On the contrary, report submitted by the CDPO, dated 20.10.2011, which was called for specifically by the Director, was accepted. As per report of CDPO, 5 Nos. of households were included in the concerned Anganwadi Centre in the year 2009 by the earlier CDPO including the household of respondent No. 5 considering that those 5 Nos. of households were near to the concerned Anganwadi Centre. It is also stated that there is a paddy field between the 5 Nos. of households and the Gohain Doloni Anganwadi Centre. This report of the CDPO is quite vague and nothing is stated on what authority or on what basis the then CDPO had included the 5 Nos. of households in the concerned Anganwadi Centre. It is also stated that there is a paddy field between the 5 Nos. of households and the Gohain Doloni Anganwadi Centre. This report of the CDPO is quite vague and nothing is stated on what authority or on what basis the then CDPO had included the 5 Nos. of households in the concerned Anganwadi Centre. If a candidate belongs to another village not covered by the Anganwadi Centre, it is not the duty of the CDPO to club such household where the candidate resides with another Anganwadi Centre. Moreover, the advertisement is dated 5.9.2009, and this inclusion is stated to have been done in the year 2009 itself without disclosing the exact date of such inclusion, whether after the advertisement was issued or before the advertisement was issued. Departmental affidavit filed in this regard is silent. Moreover, a conjoint reading of the two orders dated 29.10.2011 and 16.8.2012 would indicate that there has been no determination of the residential status of respondent No. 5 despite orders of this Court. Thus, on a totality of the facts and circumstances of the case, I am of the view that the Director could not have discarded the report submitted by the District Social Welfare Officer, Lakhimpur dated 24.01.2011, which is quite specific. The same has vitiated the decision of the Director. In such circumstances, the orders dated 29.10.2011 and 16.8.2012 cannot be sustained and those are hereby set aside and quashed. Consequently, selection and appointment of respondent No. 5 as Anganwadi Worker of No. 134 Beltola Anganwadi Centre is also set aside. Respondent No.4 shall now consider the appointment of the next candidate in the selection as Anganwadi Worker of the said Anganwadi Centre."? 5. We have gone through the records of the case. In our considered opinion, the matter requires to be judged from a different perspective. The issue to be decided is as to whether the appellant was a candidate residing within the specified area of No. 134 Beltola Anganwadi Centre. The matter does not require consideration as to whether the appellant was a resident of Daualatpur village or Gohain Doloni village, in as much as, residency in a particular village was not a criterion of selection under the terms and conditions of the Advertisement. The matter does not require consideration as to whether the appellant was a resident of Daualatpur village or Gohain Doloni village, in as much as, residency in a particular village was not a criterion of selection under the terms and conditions of the Advertisement. To reiterate, we are concerned with the expression given in Clause 2 which reads as "Candidates must be local from within the specified area of the Anganwadi Centre". In this regard, the Report of the CDPO, Karunabari, ICDS Project dated 20.10.2011 assumes great importance, which is a Report submitted on directions of the Director of Social Welfare, Assam following the order passed by the Court in the first writ petition i.e. WP(C) 4932/2010. This Report mentions that five households including the household of the appellant were included in No. 134 Beltola Chuburi Anganwadi Centre, although they were originally included under Gohain Doloni Anganwadi Centre. Such inclusion was made in the year 2009 by the then CDPO on consideration of the fact that the said five households were closer to the proposed No. 134 Beltola Chuburi Anganwadi Centre. The said Report records that due to geographical conditions and being closer to No. 134 Beltola Chuburi Anganwadi Centre than the Gohain Doloni Anganwadi Centre, the said five households were included. The Report also recorded the existence of paddy field in between the location of the five households and the Gohain Doloni Anganwadi Centre. From available records, it is also seen that the five numbers of the families of Gohain Doloni, including the household of the appellant, figures in the Survey Register of No. 134 Beltola Chuburi Anganwadi Centre. The inclusion of the names of the five households in the Survey Register took place in the year 2009. We are not required to foray into the reason for inclusion of these five families in the concerned Anganwadi Centre. Such inclusion has also not been a matter of challenge in any proceedings. The Director of Social Welfare, Assam had relied upon the Report of the CDPO while passing the order dated 29.10.2011 in pursuance of the directions of this Court. The stand taken by the Director that the selection of the appellant was genuine, by relying upon the fact-finding and first-hand Report of the CDPO dated 20.10.2011, in our considered view, did not warrant interference. We, accordingly, hold so. The stand taken by the Director that the selection of the appellant was genuine, by relying upon the fact-finding and first-hand Report of the CDPO dated 20.10.2011, in our considered view, did not warrant interference. We, accordingly, hold so. The issue for determination being confined to residential status within the Anganwadi Centre in question and not in respect of being a resident of this or that village, we are wholly satisfied that at the relevant point of time the appellant was a candidate residing within the specified area of No. 134 Beltola Chuburi Anganwadi Centre. Her name also finds mention in the Survey Register of No. 134 Beltola Chuburi Anganwadi Centre. We have no hesitation to allow the present appeal by imposing cost of Rs. 1,000/- on the Respondent No.5 herein for subjecting the appellant to unnecessary litigation and causing prejudice to her career prospects. The judgment under appeal is set aside by directing the respondent authorities in the Social Welfare Department and Directorate to take immediate steps for restoring the appointment of the appellant as Anganwadi Worker in No. 134 Beltola Chuburi Anganwadi Centre. Ordered accordingly.