Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 868 (GAU)

Rina Borah v. State Of Assam

2019-08-01

KALYAN RAI SURANA

body2019
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. Sk. Muktar, the learned advocate for the petitioner. Also heard Mr. G. Pegu, learned Govt. Advocate for State respondents No.1 to 5, and Mr. A. Alam, learned Advocate for the respondent No.7. None appears on call for respondent No.6. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a declaration that the action of the respondent No.5 to terminate the petitioner from her service was illegal, for setting aside the termination order dated 28.02.2012, and for a direction to the respondents to reinstate the petitioner in service as Anganwadi worker (AWW for short) with back wages. 3. The case of the petitioner, in brief, is that by an order dated 17.03.2001, the respondent No.5 i.e. the Child Development Project Officer, Bihali Child Development Project (CDPO for short) had appointed the petitioner as AWW at Bedetiguri Anganwadi Centre (Bedetiguri AWC for short). On the ground that the petitioner was not acceptable to the community, the respondent No.5 had terminated the service of the petitioner as AWW in Bedetiguri AWC by his letter under Memo No. CDPO(Bihali) E/2/2000-2001/ Bedetiguri AWC/398 dated 20.08.2012. It is also submitted that immediately thereafter, the petitioner had approached this Court and that by order dated 06.08.2012 passed in W.P.(C) 906/2012, this Court had disposed of the writ petition by directing the State respondents to take an appropriate decision in the matter in accordance with law and on the prayer for outstanding dues, this Court had directed that the respondents may do the needful. It is submitted that in the termination letter dated 20.08.2012, it was provided that the said order will be with effect from the date of the arrest of the petitioner on the charge of her husband's murder. It is projected that by virtue of the judgment and order dated 06.08.2015, passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali, Sonitpur, the petitioner was acquitted from the charges framed in Sessions Case No. 73/2012 under Section 302/201/34 I.P.C. arising out of G.R. Case No. 579/2010. Thereafter, by letter dated 20.01.2016, the petitioner had prayed before the Divisional Programme Officer, ICDS Cell, Tezpur for re-engagement as AWW at Bedetiguri AWC. As the concerned respondents had not responded to the said prayer, the present writ petition has been filed. 4. Thereafter, by letter dated 20.01.2016, the petitioner had prayed before the Divisional Programme Officer, ICDS Cell, Tezpur for re-engagement as AWW at Bedetiguri AWC. As the concerned respondents had not responded to the said prayer, the present writ petition has been filed. 4. The learned advocate for the petitioner has submitted that the sole ground for which the respondent No.5 had terminated the service of the petitioner was that she was not acceptable by the community and in that context, by referring to the representation dated 27.03.2017 submitted by 50 (fifty) people of the area of operation of Bedetiguri AWC, it is submitted that apart from local residents, the Sarkari Gaonbura had also signed the representation and had prayed for reinstating the petitioner as AWW in Bedetiguri AWC on the ground that after her acquittal by the Court, the petitioner was acceptable to all the local people. Thus, it is submitted that there was widespread acceptability of the petitioner, as such, the two grounds on which the service of the petitioner had been terminated, being (i) charged for murder of her husband, and (ii) non- acceptability by local people, had both ceased to exist, as such, it is submitted that the respondents No.1 to 5 were liable to reinstate the petitioner back in service. It is submitted that the service of the petitioner was not based on the ground that the petitioner was facing criminal charges, but the ground for terminating her service was that she had become unacceptable to the public. It is also submitted that respondent No.7 was not a duly selected candidate for being appointed as AWW at Bedetiguri AWC, but she was working as a stop gap arrangement and, as such, none of the respondents would suffer any irreparable prejudice if the petitioner is ordered to be reinstated in service. Therefore, while pressing for reinstating the petitioner in service, an alternative submission that if the Court is not inclined to accept the prayers made in the writ petition, in that event the post of AWW at Bedetiguri AWC must be re-advertised with liberty to the petitioner to participate in the fresh selection process. In support of his submissions, the learned advocate for the petitioner has placed reliance on an unreported judgment and order dated 26.05.2015, passed by this Court in W.P.(C) 1436/2008 (Mrs. Hafijan Begum Vs. State of Assam & Ors.) 5. In support of his submissions, the learned advocate for the petitioner has placed reliance on an unreported judgment and order dated 26.05.2015, passed by this Court in W.P.(C) 1436/2008 (Mrs. Hafijan Begum Vs. State of Assam & Ors.) 5. Per contra, the learned Govt. Advocate has referred to the affidavit-in-opposition filed by the respondent No.5 and he has submitted that the AWW do not hold any post, but they are temporarily engaged on payment of honorarium under a particular scheme launched by the Central Government. It is also submitted that the respondent No.7 had been appointed as AWW in Bedetiguri AWC on 27.02.2013 and that since then, the respondent No.7 has been rendering unblemished service therein. It is submitted that this Court had not interfered with the termination letter dated 20.08.2012 issued by the respondent No.5 and after the order dated 06.08.2012 was passed by this Court in W.P.(C) 906/2012, the respondent No.5 had engaged the respondent No.7 as AWW in Bedetiguri AWC. Moreover, as the service of the petitioner was terminated as the public had lost faith on her for being charged with murder of her husband, the Court ought not to reinstate the petitioner back in service because it would be evident from a perusal of the judgment and order dated 06.08.2015, passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali, Sonitpur, the petitioner was acquitted from the charges framed in Sessions Case No. 73/2012 on benefit of doubt, as such, the acquittal of the petitioner was not honourable. Similar submissions has been made by the learned counsel appearing for respondent No.7. 6. The post of AWW is not a civil post, which is an issue that has been settled by the Supreme Court of India in the case of State of Karnataka Vs. Ameerbi, (2007) 11 SCC 681 . In para 20 thereof, it was held that "Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed." 7. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed." 7. In the case of Hafijan Begum (supra), the petitioner therein was an Anganwadi helper. Her service was terminated without putting her to any notice and without giving her any opportunity of showing cause to the charges brought against her. Setting aside the termination and reinstating the petitioner therein back to service, this Court held that it was not a case where the application of "useless formality" can be attracted or the nonobservance of the rules of natural justice can be over-looked. Hence, the ratio of the case of Ameerbi (supra) is not attracted However, in the present case in hand, the service of the petitioner was terminated on the ground that she had become unacceptable to the people of the locality i.e. community and that her termination would come into effect on and from the date of her arrest on charges of murdering her husband. Under such circumstances, at the relevant point of time the application of "useless formality" had been attracted and, as such, this was a case where the non- observance of the rules of natural justice can be over-looked. Moreover, it is seen that although this Court had not interfered with the letter of termination vide Memo dated 20.08.2012 while passing order dated 06.08.2012 passed in W.P.(C) 906/2012, but by the said order, this Court had directed the State respondents to take an appropriate decision in the matter in accordance with law and to do the needful on the prayer for payment of outstanding dues. However, from the materials available on record, it is not discernible that the concerned officials of the Social Welfare Department has taken any decision in the matter of termination of service of the petitioner as per the directions contained in the order dated 06.08.2012 passed in W.P.(C) 906/2012. 8. However, from the materials available on record, it is not discernible that the concerned officials of the Social Welfare Department has taken any decision in the matter of termination of service of the petitioner as per the directions contained in the order dated 06.08.2012 passed in W.P.(C) 906/2012. 8. Accordingly, this Court is of the considered opinion that as this Court had issued an order dated 06.08.2012 in W.P.(C) 906/2012, directing the State respondents i.e. Social Welfare Department, Assam to take an appropriate decision in the matter in accordance with law, the authorities under the said department is bound to comply with the said direction. Accordingly, this Court is inclined to reiterate the directions as contained in the order dated 06.08.2012 in W.P.(C) 906/2012, directing the State respondents i.e. Social Welfare Department, Assam to take an appropriate decision in the matter in accordance with law. The Director of Social Welfare, Assam is now directed to comply with the said direction and pass appropriate orders in accordance with law within a period of 4 (four) weeks from the date of receipt of a certified copy of this order. He shall also examine whether any honorarium is due and payable to the petitioner for rending service after being released pursuant to her arrest on 27.10.2010 till the period of 28.12.2012, the date when she was allowed to join as AWW. It is unnecessary to say that whatever orders are passed, shall be communicated to the petitioner and to the respondent No.7 herein. 9. With the aforesaid direction, this writ petition stands disposed of. 10. No cost.