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2017 DIGILAW 921 (GAU)

Nijora Devi v. State of Assam

2017-07-14

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER (ORAL) Heard Mr. J. Roy, learned counsel for the petitioner and Mr. T.C. Chutia, learned Additional Senior Government Advocate appearing for the respondent Nos. 1, 2, 3, 4 and 5. 2. Office note dated 18.03.2013 indicates that AD card in respect of the respondent No.6 had been received back and as such, the matter is ready as regards service. Although a subsequent office note dated 19.03.2013 states that two numbers of affidavits in opposition have been filed by the respondent Nos. 4 and 6, but on a close perusal, it is seen that no such affidavit has been filed by the respondent No.6. The affidavit in opposition referred in the office note dated 19.03.2013 is in fact an affidavit in opposition filed by a respondent No.6 in WP(C) No.1199/2010, which is a different writ petition than from the present writ petition. As such, it is construed that no such affidavit has been filed by the respondent No.6 in this writ petition. Office note also does not indicate that anybody has appeared for the respondent No.6. Hence, this Court deems it appropriate that the matter can be taken up for final consideration as the respondent No.6 had not appeared in spite of notice being duly served upon her. 3. The writ petitioner assails an order of appointment of the respondent No.6 Nitu Moni Borah as an Anganwadi Worker in the No.44 Salpara Mini Anganwadi Center situated at village Salpara. The case of the petitioner is that while the petitioner is a resident of the jurisdictional area of the said No.44 Salpara Mini Anganwadi Center, but on the other hand, the respondent No.6 although had been appointed is not a resident within the jurisdictional area of the said Anganwadi Center. It is stated that the petitioner had duly participated in a selection process pursuant to an advertisement dated 05.09.2009 and the petitioner being a resident of the jurisdictional area, ought to have been offered the appointment as an Anganwadi Worker. It is the case of the petitioner that one of the essential conditions of the advertisement is that the appointment of an Anganwadi Worker can be made only amongst a resident within the jurisdictional area of a center and any person, who is not a resident of the jurisdictional area, is ineligible for such appointment. 4. It is the case of the petitioner that one of the essential conditions of the advertisement is that the appointment of an Anganwadi Worker can be made only amongst a resident within the jurisdictional area of a center and any person, who is not a resident of the jurisdictional area, is ineligible for such appointment. 4. Accordingly, the petitioner encloses a residential certificate issued by the Ward Member of No.2 Naltoli Maj Pubthoria Gaon Panchayat, which indicates that the petitioner is a resident of the jurisdictional area of the center. It is also stated that on the respondent No.6 being appointed, the public of the locality had lodged a complaint dated 23.12.2009 before the Sub Divisional Officer stating that a resident from outside the jurisdictional area of the center had been appointed as an Anganwadi Worker under the No.44 Salpara Mini Anganwadi Center. The petitioner in order to substantiate her stand, assails the certificate dated 12.09.2009 issued by the Gaon Bura of Jengoni Katia Salpara Gaon, which indicates that the respondent No.6 Nitu Moni Borah is a resident of Jengoni Salpara village. 6. It is the case of the petitioner that there is no such village in the name of Jengoni Salpara, whereas on the other hand, there are three separate villages, namely, Jengoni, Salpara and Katia. It is stated that the present Anganwadi Center is located in Salpara village and therefore, in order to be a resident of the jurisdictional area of the Anganwadi Center, the concerned person has to be a resident of Salpara village. 7. In order to adjudicate the aforesaid contention of the petitioner, Mr. T.C. Chutia, learned Additional Senior Government Advocate was required to produce a written instruction from the Circle Officer, Kaliabor clearly stating therein as to whether there are three distinct villages namely Jengoni, Salpara and Katia or there exists one village in the name of Jengoni Salpara. Accordingly, Mr. T.C. Chutia, learned Additional Senior Government Advocate has produced an instruction from the Circle Officer, Kaliabor revenue circle, which states that Zengani and Salpara are names of two different villages, although the two villages are nearby to each other. 8. The said instruction gives an indication that there is no such village in the name of Jengoni Salpara. Accordingly, Mr. T.C. Chutia, learned Additional Senior Government Advocate has produced an instruction from the Circle Officer, Kaliabor revenue circle, which states that Zengani and Salpara are names of two different villages, although the two villages are nearby to each other. 8. The said instruction gives an indication that there is no such village in the name of Jengoni Salpara. In such view of the matter, the certificate dated 12.09.2009 of the Gaon Bura certifying that the respondent No.6 is a resident of Jengoni Salpara village cannot be a basis to arrive at a conclusion that the respondent No.6 is a resident of the Salpara village. 9. Reference is also made to the Annexure-12 complaint of the concerned Gaon Bura that the original certificate given by him indicates that the respondent No.6 is a resident of Jengoni village and the word Salpara had been manipulated in the said certificate. In such view of the matter, in the absence of any further materials being produced by the respondent authorities, this Court is of the view that the respondent No.6 is not a resident of Salpara village and therefore, the said respondent is also not a resident within the jurisdictional area of No.44 Salpara Mini Anganwadi Center. 10. As the respondent No.6 had not entered appearance, this Court instead of setting aside the order of appointment, deems it appropriate that the Director of Social Welfare, Assam issues notice upon the respondent No.6 giving the respondent No.6 a personal hearing on the aforesaid question by giving her an opportunity to produce the relevant materials to indicate that she is a resident of village Salpara and also a resident within the jurisdictional area of No.44 Salpara Mini Anganwadi Center. 11. The Director shall also give a personal hearing to the present petitioner and also allow her to produce any further material that the writ petitioner may desire to substantiate her case that the respondent No.6 is not a resident within the jurisdictional area of the aforesaid Anganwadi Center. Depending upon such hearing and materials to be produced, the Director of Social Welfare, Assam shall pass a speaking order thereon and while doing so, the Director shall also bear in mind the aforesaid observation and prima-facie finding that this Court had arrived at. 12. Depending upon such hearing and materials to be produced, the Director of Social Welfare, Assam shall pass a speaking order thereon and while doing so, the Director shall also bear in mind the aforesaid observation and prima-facie finding that this Court had arrived at. 12. After passing the speaking order, if the Director arrives at a conclusion that the respondent No.6 is not a resident of the jurisdictional area, appropriate orders in the circumstances be also passed by the Director. 13. It is stated by Mr. J. Roy, learned counsel for the petitioner that there is a possibility that pursuant to an earlier order dated 17.02.2010, wherein the concerned CDPO was directed to make an enquiry; certain actions may have been taken in the aforesaid matter. 14. The aforesaid submission of the learned counsel for the petitioner be also taken into consideration by the Director while giving the consideration. 15. The aforesaid exercise be carried out by the Director within a period of one month from the date of receipt of a certified copy of this order. In terms of the above, the writ petition stands disposed of.