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2018 DIGILAW 651 (ORI)

Mina Mahalik v. State of Orissa

2018-07-10

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S.N.PRASAD,J. - In this writ petition under Articles 226 and 227 of the Constitution of India the order dated 24.4.2015 passed by the Sub-Collector, Bhadrak in AW Misc.Appeal No.2 of 2012 is under challenge. 2. Brief facts of the case of the petitioner is that in the year 2008-2009 two new Anganwadi Centres have been created in village Balarampur namely Balarampur Dakhinasahi Anganwadi Centre and Balarampur Jenasahi Anganwadi Centre. Balarampur Jenasahi Anganwadi centre was formed consisting of two patches of Mohaliksahi, Maliksahi and Jenasahi and area was identified from Narendra Mallick Ghar to Sada Jena Ghar. Balarampur Dakhinasahi Anganwadi Centre was formed consisting of Dakhinasahi, Biswalsahi, Beherasahi, Paridasahi and a portion of Mahaliksahi and the area was identified from Sisir Naik Ghar to Rama Mohalik Ghar. Identification of area was approved by the BLCDC on 24.12.2009, after its approval, applications were invited by the Child Development Project Officer, Basudevpur, for appointment of Anganwadi Worker in respective of the aforesaid centres. The petitioner, after demarcation area, has applied for post of Anganwadi Worker for Dakhinasahi Anganwadi centre along with all relevant documents. Three candidates including the petitioner had applied for the said post. Laxmiprava Samal-opposite party no.4 had applied who belongs to ward No.15. Dakhinasahi Anganwadi Centre was formed consisting of portion of ward no.15 and a portion of ward no.14, the petitioner belongs to ward no.14 and as such she has made application. The selection committee, after scrutiny of the candidatures of one or the other candidates, has found that the petitioner has secured highest marks and as such selected and engaged as Anganwadi Worker for Dakhinasahi Anganwadi Centre, the opposite party no.4 has filed writ petition being W.P.(C) No.6548 of 2010 praying therein to exclude Mahaliksahi from Dkhinasahi Anganwadi Centre area, this Court has disposed of the writ petition on 13.4.2010, directing the Sub-Collector, Bhadrak to take appropriate decision on the representation pending before him affording reasonable opportunity of hearing to the representatives of the villagers. The Sub-Collector, in terms of the order passed by this Court, has directed the C.D.P.O. to give a report, in terms thereof, the CDPO, after making fact finding enquiry, has submitted his report dated 12.5.2010 with sketch map, from which it is evident that one portion of Mahaliksahi which is in between Jenasahi and Dakhinsahi has been included in Dakhinasahi Anganwadi Centre. The Sub-Collector has again directed the concerned C.D.P.O. and B.D.O. to submit joint enquiry report and in terms thereof, joint enquiry report was submitted on 14.5.2010, basing upon the aforesaid joint enquiry report, the Sub-Collector vide his order dated 17.5.2010 directed the C.D.P.O., Basudevpur to put up the matter before the B.L.C.C. for modification and identification of area and also take steps for engagement of Anganwadi worker. The petitioner filed writ petition bearing W.P.(C) No.15315 of 2010 challenging the order dated 17.5.2010, this Court, after hearing both the parties, has set aside the order of the Sub-Collector and remitted before the opposite party no.2 to rehear the matter and take fresh decision. The hearing has been commenced by the opposite party no.2, deposition of local villagers have been recorded and thereafter the order has been passed on 24.4.2015 by directing the C.D.P.O., Basudevpur to take immediate steps for convening BLCC for tagging of a small portion of Mahaliksahi with Balarampur Jenasahi Anganwadi Centre , which is impugned in this writ petition, inter alia, on the ground that once notice has been invited for selection of the post of Anganwadi Worker, there may not be change in the area since issuance of notice for inviting applications is only after demarcation of the area which has been duly approved by the BLCC. Secondly, when the selection process has began, candidature of the petitioner was considered in which she has been found to have secured highest marks, excluding herself from the area for the aforesaid Anganwadi Centre, is not just and proper decision. 3. Secondly, when the selection process has began, candidature of the petitioner was considered in which she has been found to have secured highest marks, excluding herself from the area for the aforesaid Anganwadi Centre, is not just and proper decision. 3. Learned counsel for the opposite party-State Mr.S.Mohanty-I and Mr.Prasana Kumar Parhi, learned counsel for the opposite party no.4 has jointly submitted by objecting to the prayer advanced on behalf of the petitioner that advertisement was published in both the Anganwadi Centres, demarcation of the area in both the Centres has been approved, but the same was based upon the report of the C.D.P.O. but the demarcation of the area is not duly been conducted, same has been questioned by the opposite party no.4 in W.P.(C) No.6548 of 2010 , in terms of the order passed in the aforesaid writ petition, the Sub-Collector has directed the C.D.P.O. to submit report and when not satisfied with the foresaid report, he has again directed the C.D.P.O. and B.D.O. to submit joint enquiry report and as per the joint report, some of the centre area falling within the Dakhinasahi area since wrongly been demarcated, hence same has been decided to be shifted from Dakhinasahi centre area to Jenasahi Centre area and in consequence thereof, petitioner’s residence has come in the Jenasahi centre area. The Sub-collector, after taking into consideration the joint enquiry report, has passed order, the petitioner being aggrieved with the same, has approached this Court by filing W.P.(C) No.15315 of 2010. This Court, while quashing the order passed by the Sub-Collector, has directed to pass fresh order, in terms of the order passed which is impugned in this writ petition. 4. It is evident from the materials available on record that the selection process in both the Anganwadi Centre namely Balarampur Dakhinasahi and Balarampur Jenasahi Centres have been started and selection in both the centres at hold. 4. It is evident from the materials available on record that the selection process in both the Anganwadi Centre namely Balarampur Dakhinasahi and Balarampur Jenasahi Centres have been started and selection in both the centres at hold. It is not in dispute that as per the guideline dated 2.5.2007 before issuance of notice, area is to be demarcated centre wise but if there is wrong demarcation due to bonafide mistake and if pointed out by any of the candidates, if same is being reported before the authority basing upon he survey report conducted by the authorities, it cannot be said to be unjustified rather if the authorities have come to conclusion that some error has been committed in demarcation of area and it is being justified from the report given by the government functionaries, that has to be rectified and accordingly, same has been rectified, hence, in my considered view, rectification made in demarcating area, cannot be said to be unjustified. Moreover, the petitioner is claiming that she has been considered and she has secured highest marks and as such right has been accrued, but merely by consideration in the selection process, right cannot be said to have accrued rather right will only be accrued when the engagement order will be issued by its communication to the person concerned. Admittedly, in both the centres selection having not yet been concluded, in view thereof, according to my considered view, the rectification made in the demarcation in both the Centres, cannot be held to be unjustified, accordingly, the order dated 24.4.2015 passed by the Sub-Collector, Bhadrak needs no interference. Since the Sub-Collector has ordered by directing the C.D.P.O.,Basudevpur for taking immediate steps for convening the BLCC for tagging of a small portion of Mahaliksahi with Balarampur Jenasahi Anganwadi Centre and thereby for necessary modification and identification of Dakhinasahi Anganwadi Centre properly and thereafter she will take immediate necessary steps for engagement of Anganwadi Workers in the said Centre, in view thereof, according to my considered view, after shifting of the area from one centre, some other candidates belonging to the aforesaid area, there is likelihood of other aspirants for consideration of their candidature. Since error has occurred it goes to the root of the entire selection process, it is not being clarified from the order passed by the Sub-Collector, what action the C.D.P.O. will take for engagement of Anganwadi Worker in the said centre, whether from the selection process is be initiated from the present stage or by publication of fresh advertisement. If the meaning of the aforesaid observation would be from the present stage, then question would be that how the candidature of the petitioner will be considered since admittedly she has made application on the basis of nativity of the area which was falling under the Dakhinasahi centre and in view thereof her candidature will be rejected on the ground of nativity area which she lacks in that Dakhinasahi Anganwadi Centre area. Further if the selection would be allowed to be go on from the present stage, then the candidates who are residing in the Dakhinasahi centre area by virtue of the rectification of the decision by fresh demarcation will now be shifted to Jenasahi Centre area but they will not be able to make their applications unless fresh advertisement will be issued. Further the advertisement has been issued sometime in the year 2009-10 and as such after lapse of eight years other candidates might have eligible for consideration. This aspect of the matter has not been clarified by the Sub-Collector, in view thereof, the part of the order whereby and where under the Sub-Collector has said by directing the C.D.P.O. to take immediate steps for engagement of Anganwadi Centre for the aforesaid centre is being clarified with the direction that come up with fresh advertisement for both the Centres by cancelling the entire selection process in terms of the advertisement already issued for both the centre by giving demarcation of area after getting the same approved by the BLCC as directed by the Sub-Collector in its order dated 24.4.2015, however, if already approved, no requirement for reapproval and conclude the entire process within three months from the date of receipt of copy of this order strictly in terms of the guideline dated 2.5.2007 and other regulations if applicable. 5. With the aforesaid observation and direction, the writ petition is disposed of. Petition disposed of.