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2019 DIGILAW 367 (ORI)

Sarita Priyadarshini Jena v. State of Orissa

2019-04-30

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who is a candidate for selection and engagement as Anganwadi Worker in respect of Naugadhia Mini Anganwadi Centre under Dhamnagar ICDS Project, has filed this writ petition to quash order dated 08.09.2010 in Annexure-8 passed by learned Addl. District Magistrate, Bhadrak rejecting Anganwadi Appeal No. 44 of 2010 preferred by her. 2. The factual matrix of the case, in hand, is that in order to encourage and ensure regular attendance of poor and B.P.L. family children, the Government of Odisha in 'Nomen and Child Development Department decided to open some Anganwadi and Mini Anganwadi Centres and published revised guidelines on 02.05.2007 in Annexure-1 for selection of Anganwadi Workers. Under the criteria for selection, the said guidelines provides that minimum educational qualification for selection of Anganwadi Workers shall be matriculation and percentage of marks obtained in the matriculation examination shall be the sole basis of drawing a merit list amongst the applicants, and that the applicants should be residents of Anganwadi Centre area. In consonance with the guidelines dated 02.05.2007, opposite party No. 3 issued a notice on 21.11.2009 inviting applications from the interested candidates for the post of Anganwadi Worker in respect of Naugadhia Mini Anganwadi Centre under Dhamnagar ICDS Project. In response to the said advertisement, the petitioner, along with other candidates, submitted their applications. The selection committee, though found that the petitioner had secured highest mark and fulfilled the criteria as prescribed in the guidelines, did not appoint her and rejected her candidature indicating that she was an outsider and selected opposite party No. 4 as Anganwadi Worker, who had secured less percentage of marks than the petitioner. Challenging the said illegal action of the CDPO, Dhamnagar, the petitioner preferred Anganwadi Appeal No. 44 of 2010 before the Additional District Magistrate, Bhadrak, who disposed of the said appeal confirming the decision of the selection committee for appointment of opposite party No. 4 as Anganwadi Worker in respect of Naugadhia Anganwadi Centre under Dhamnagar ICDS Project. Hence this application. 3. Mr. Hence this application. 3. Mr. A.S. Nandi, learned counsel for the petitioner argued emphatically on the basis of the information sought under the Right to Information Act, 2005 that the candidature of the petitioner for selection and engagement as Anganwadi Worker has been rejected on the ground that CDPO and B.D.O., Dhamnagar have produced a joint inquiry report to the effect that the petitioner does not reside within the Naugadhia Anganwadi centre area and is residing under Kothar Gram Panchayat. Consequentially, her candidature was rejected, though her application was duly accepted for selection and engagement as Anganwadi Worker. The petitioner preferred appeal before the Additional District Magistrate, Bhadrak, but the same was rejected confirming the selection process conducted by the selection committee for appointment of opposite party No. 4 as Anganwadi Worker, which suffers from non-application of mind. It is contended that the Tahasildar, Dhamara, who is the competent authority, has issued residential certificate stating that the village Fatehpur, in which the petitioner is residing, comes under Naugadhia Anganwadi centre area. Naugadhia Anganwadi centre is constituted by taking Jena Sahi and Rout Sahi villages. The Naugadhia area survey register of Naugadhia Mini Anganwadi centre shows that the petitioner is the permanent resident of Naugadhia Mini Anganwadi centre. As such, the petitioner has secured highest mark amongst all the candidates. But the Additional Government Advocate, without considering the same and conducting any proper enquiry, passed the order impugned dated 08.09.2010 in Anganwadi Appeal No. 44 of 2010, which cannot sustain in the eye of law. Accordingly, the petitioner seeks for quashing of the same. 4. Mr. B. Senapati, learned Additional Government Advocate contended that on the basis of the residential certificate issued by the Tahasildar, Dhamanagar, it appears that the petitioner belongs to village Fatehpur which has also been corroborated by the voter list which also indicates that the petitioner is a permanent resident of village Naugadhia. Naugadhia Mini Anganwadi Centre has been created with two hamlets, namely, Jenasahi and Roiitsahi. On the basis of the spot enquiry conducted by the B.D.O. and CDPO, Dhamanagar, it was concluded that the petitioner was not residing within the Anganwadi Centre area and is a permanent resident of village Fatehpur under Kothar Gram Panchayat. Naugadhia Mini Anganwadi Centre has been created with two hamlets, namely, Jenasahi and Roiitsahi. On the basis of the spot enquiry conducted by the B.D.O. and CDPO, Dhamanagar, it was concluded that the petitioner was not residing within the Anganwadi Centre area and is a permanent resident of village Fatehpur under Kothar Gram Panchayat. The homestead land bearing plot No. 1015/2377 measuring A.O. 09 decimal and plot No. 1017 measuring A.o. 04 decimal with kissam "Gharabari" under Khata No. 593/145 of village Patrisahi stands recorded in the name of Jyotshamayee Das wife of Judhistir Jena. The residential house of the father of the petitioner is situated over the above plots and Judhistir Jena along with his family members have been residing in the above dwelling house since long. In the Anganwadi Survey register of Patrisahi-Jenasahi Anganwadi centre, the name of the father of the petitioner has been included at serial No. 101. The names of the family members of the petitioner have been enrolled in the current voter list of village Patrisahi. The electricity dues are also being paid by the father of the petitioner for village Patrisahi. The Sarpanch of Kothar Gram Panchayat has also certified that the petitioner is the permanent resident of Patrisahi. Therefore, the stand taken by the petitioner that she is a permanent resident of the Naugadhia Mini Anganwadi Centre area is not justified. The Additional District Magistrate, after perusing the records, has come to a definite conclusion that the petitioner does not belong to Naugadhia Mini Anganwadi Centre area and there by justified the selection and engagement of opposite party No. 4 as Anganwadi Worker in respect of Naugadhia Mini Anganwadi Centre. 5. Pursuant to notice issued by this Court, Mr. M.R. Nayak and associates have entered appearance for opposite party No. 4, but none was present at the time of hearing. Since it is a certiorari proceeding and the matter is pending before this Court since 2010 and in the meantime 9 years have elapsed, this Court, instead of granting adjournment, proceeded to decide the matter on the basis of the materials available on record. 6. This Court heard Mr. A.S. Nandi, learned counsel for the petitioner and Mr. B. Senapati, learned Addl. Government Advocate appearing for opposite parties No. 1 to 3, and perused the record. 6. This Court heard Mr. A.S. Nandi, learned counsel for the petitioner and Mr. B. Senapati, learned Addl. Government Advocate appearing for opposite parties No. 1 to 3, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. The admitted fact is that opposite party No. 3, in order to fill up the post of Anganwadi Worker in Naugadhia Mini Anganwadi Center invited applications from the intending candidates, in consonance with the guidelines issued on 02.05.2007. On scrutiny of the applications received, the scene were placed before the selection committee for taking final decision. The guidelines issued on 02.05.2007 provides in Clause-I that applications for selection of Volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Centre area from women residing in the said village/Anganwadi Centre area. Thereby, the essential criterion, as provided in the said guidelines, is that the candidate must be a resident of the Anganwadi Centre area. After following due procedure, when the matter was placed, the selection committee, on consideration of the materials available before it, came to a conclusion that the petitioner is an outsider and has not fulfilled the terms and conditions of the guidelines. Pursuant to advertisement, the petitioner applied for engagement of Anganwadi Worker in Naugadhia Anganwadi Centre. She did not produce any document to show that she belonged to the said Anganwadi Centre area. The residential certificate produced by the petitioner shows that she belonged to village Fatehpur, which is a revenue village, and Naugadhia is a hamlet of village Fatehpur. Since numbers of hamlets exist in a revenue village, the Anganwadi Centre area is determined on the basis of population in the said hamlets. Therefore, in order to ascertain the actual residence of candidates, a joint enquiry was conducted by the B.D.O. and CDPO, Dhamnagar, in which it is found that the petitioner was not residing within the Anganwadi Centre area. 8. On perusal of the voter list for the year 2010, it is seen that the names of the parents of the petitioner find place at serial No. 1106 and 1107 of village Patrisahi under Kothar Gram Panchayat. 8. On perusal of the voter list for the year 2010, it is seen that the names of the parents of the petitioner find place at serial No. 1106 and 1107 of village Patrisahi under Kothar Gram Panchayat. The joint spot enquiry report of the B.D.O. and CDPO, Dhamnagar reveals that the petitioner is a permanent resident of village Patrisahi and the Anganwadi Area Survey Register of Patrisahi-Jenasahi shows that the father of the petitioner is a resident of Patrisahi-Jenasahi, wherein his name finds place at serial-No. 101 and certified copy of R.O.R. No. 593/145 and the electricity dues payment receipt prove that the father of the petitioner is a permanent resident of village Patrisahi under Kothar Gram Panchayat. 9. Per contra, on perusal of the Anganwadi Survey Register of Naugadhia Mini Anganwadi Centre produced by the CDPO, Dhamnagar, it is evident that the name of Narayan Jena, the father-in-law of opposite party No. 4 has been enrolled in Naugadhia Mini anganwadi Centre area at Serial No. 1, House No. 12 which proves that opposite party No. 4 is a permanent resident of Naugadhia Mini Anganwadi Centre area. Consequentially, this material was placed before the selection committee, which, on consideration of the same, opined that the petitioner is an outsider of Naugadhia Mini Anganwadi Centre area and is not eligible for selection of Anganwadi Worker though she has secured 60.8% of marks. Opposite party No. 4, having secured 59.33% of marks and belonging to Naugadhia Anganwadi Centre area, has been selected and engaged as Anganwadi Worker. Since the petitioner is an outsider, the selection committee is justified in rejecting her application and candidature and consequentially, selected opposite party No. 4 pursuant to guidelines issued by the Government on 02.05.2007 and the Additional District Magistrate, Bhadrak confirmed the said selection. 10. The Constitution Bench of the apex Court in Hari Vishnu V. Ahmad Ishaque, AIR 1955 SC 223 laid down the following propositions as well settled and beyond dispute: "(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in a certiorari." In Champa Ial Binani v. C.I.T., (1971) 3 SCC 20 : AIR 1970 SC 645 , the apex Court held that the High Court has the power to refuse the writ if it is satisfied that there was no failure of justice. This writ being discretionary, it is not issued merely because it is lawful to do so. Similar view has also been taken by the apex Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 . 11. In view of the facts and circumstances of the case, this Court is of the considered view that the order dated 08.09.2010 in Annexure-8 passed by the Additional District Magistrate, Bhadrak in Anganwadi Appeal No. 44 of 2010 confirming the selection of opposite party No. 4 does not call for interference and is hereby upheld. 12. Accordingly, the writ petition stands dismissed. No order as to cost.