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2023 DIGILAW 744 (GAU)

Prey Khyora Riyang v. State Of A. P.

2023-06-26

MARLI VANKUNG

body2023
JUDGMENT : Heard Mr. R. Sonar, learned counsel for the petitioner along with Ms. R. Basar, learned Junior Government Advocate for the State respondents and Mr. H. Lampu, earned counsel for the respondent No.6. 2. This is a writ petition filed under Article 226 of the Constitution of India praying for the issuance of the appropriate Writ against the respondent. The petitioner’s case is that the petitioner was appointed as Anganwadi Worker against the Additional Anganwadi Centres/villages at Khyora, Khenewa Circle under the Bameng, ICDS Project with effect from 1st February, 2010 at the monthly honorarium of Rs. 1438/-as fixed by the Government vide Order dated 25.02.2010 by the Child Development Project Officer (CDPO), East Kameng District, Bameng. 3. That the services of the petitioner was terminated w.e.f. 24.05.2016 vide the Office Order No.BMG/ICDS/APPT-01/2013-14 dated 24.05.2016 on the purported ground of non-performance of duty and being uneducated and thereafter, vide the Office Order No. BMG/ICDS/APPT-01/2013-14 dated 27.05.2016, the respondent No.5 was appointed as Anganwadi Worker and place of the petitioner; Aggrieved by these 2 (two) Orders, the petitioner has filed the instant writ petition. 4. Mr. R. Sonar, learned counsel for the petitioner submits that the impugned termination order dated 24.05.2016 has been issued most illegally and whimsically, without even serving any show cause notice, as well as, without affording any hearing opportunity to the petition, which is in violation of the principles of natural justice. The impugned dismissal order was made solely to accommodate the private respondent No.5, who is the sister-in-law of respondent No.6 is the person who had passed the impugned order, while holding in-charge of the concerned CDPO. 5. The learned counsel for the petitioner submits that the respondent No.6 was holding the charge of the concerned CDPO, Bameng, ICDS Project temporarily for only a period of 2 (two) months, during which he has terminated the services of the petitioner without any substance but with an ulterior motive to accommodate the respondent No.5, being his sister-in-law. He submits that the respondent No.6 has no authority to issue such a termination order, which is beyond his jurisdiction since he was acting as the ICDS only on ‘in-charge basis’, that he cannot perform the duty of termination and appointment of the staff since his substantive post is not of CDPO but as Statistical Assistant and therefore, cannot exercise the substantive power of a CDPO. While taking the charge of the Office of CDPO his duty is to only discharge day-to-day duties and he cannot performed such quasi-judicial function as termination or appointment of any of the staff. 6. He further submits that the petitioner has been sincerely performing her duty since her appointment in 2010 as Aganwadi worker, for the last 6 (six) years and her termination order without being issued any show cause notice, is in grossed violation of Article 14 of the Constitution. He submits that in the termination order, it is mentioned that the termination was due to the nonperformance duties and un-educated. However, there is no substantive complaint as to how the petitioner had not performed her duty. In the show cause notice, which was issued on 29.01.2016, the only complaint mentioned is that during the year 2013-14 she was not performing her duties. That even though the nature of job in her appointment order is temporary, this does not mean that the respondent No.6 can ex-parte arbitrarily, without following the principles of natural justice issue the termination order. In spite of the complaint made against her, the petitioner was allowed to continue to work as Aganwadi Worker and was paid her honorarium during July 2015 to December 2015. 7. The learned counsel for the petitioner further submits that after the termination of the services of the petitioner on 24.05.2016, the respondent No.5 was appointed immediately thereafter, on 27.05.2016, which makes it clear that the termination order was solely to accommodate the respondent No.5. That the petitioner had submitted a representation addressed to the deputy Director, ICDS, East Kameng District, Seppa, against her termination order during the month of June 2016 which remained unconsidered. The learned counsel for the petitioner also submitted that the respondents have allowed the petitioner to continue her services in spite of the termination order dated 24.05.2016 and was paid her wages from July 2015 to December 2015 which is clear from Annexure 1 of the Affidavit in opposition filed by the state respondents No.1 to 4.For the above reasons, the impugned termination order dated 24.05.2016 and the appointment of respondent No.5 dated 27.05.2016 issued by respondent no.6 without having the jurisdiction, are liable to be set aside by re-instating the petitioner to the post of Anganwadi Worker at Khyora, Khenewa Circle under the Bameng, ICDS Project. 8. 8. In support of his submissions, the learned counsel for the petitioner cited the case in B.N. Dhotrad Vs. The Board of Directors/cum-Appellate Authority and Others reported in ILR 2006 KAR 3163, H.S. Gotla Vs. State reported in ILR 2001 KAR 2843. 9. Mr. H. Lampu, learned counsel for the respondent No.6 on the other hand submits that the respondent No.5 was not related to respondent no.6 as alleged but that the respondent no. 6 was more related to the petitioner. He submits that a perusal of the appointment order of the petitioner shows that the appointment is of only temporary nature and can be terminated at any time. He further submits that show cause notice was also issued to the petitioner on 29.01.2016, however the petitioner did not border to reply to the show cause notice. 10. The learned counsel for the respondent No.6 further submits that the termination was also due to public complaint received regarding negligence of the petitioner in the discharge of her duty in the letter dated 2nd August, 2013, which stated that the petitioner had married with Shri Tayam Liyang and was staying at Liyang Village so she is not punctual in the her duty and she failed in the distribution nutrition’s items like biscuits and kitchari and demanded for replacement of other person in her place. 11. The learned counsel also submits that the respondent authority had issued show cause notice dated 29.01.2016 to the petitioner demanding her reply as to why she should not be terminated due the non-performance of her duties in 2013-2014, however, there was no response from the petitioner. Thereafter the respondent no.6 had issued the termination order dated 24.05.2016 in his official capacity due to the non-performance of duty and uneducated, wherein, the post of Aganwadi, Khyora village became vacant. 12. The learned counsel for the respondent No.6 further submits that thereafter, the respondent No.5 was appointed as Anganwadi Worker in place of the petitioner as recommended by a Anchal Samiti Member (ASM) of Khyora village in terms of the guidelines and criteria for selection of Anganwadi Workers and Helpers in ICDS Project issued vide the Order No.WCD-S-65/2006 (ICDS) dated 09.11.2009 and Order No.PR. 75/2003 dated 03.07.2003. 75/2003 dated 03.07.2003. The respondent No.5 was having the requisite qualification up to standard VIII (eight) and was from the Khyora village and was appointed on the recommendation of a member of the Anchal Samiti. 13. The learned counsel for the respondent No.6 further submits that the action taken by the instant respondent No.6 is with regards to a staff who was appointed only on temporary basis which was not a substantive post and did not confer any right to claim over the post for regular appointment and can be terminated at any time due non-performance. That the impugned termination order dated 24.05.2016 was not a disciplinary proceeding, the termination was due to the non-discharge of her duty and further the petitioner was not having the required qualification of VIII standard. 14. Ms. R. Basar, learned Junior Government Advocate for the State respondents submits that the nature of job of the petitioner was of temporary nature and could be terminated anytime, if it was found that the petitioner was not performing her duties, therefore, due to the complaints received that the petitioner was not performing her duty during 2013-14, the petitioner was righty terminated since she had not bothered to reply to the show cause notice issued on 29.01.2016.There was no infirmity in the respondent No.6 issuing the termination order and thereafter appointing the respondent No.5 who was having the requisite qualification and also belonged to Khyora village. That the respondent no. 5 had duly joined duty and was paid honorarium as reflected in the statement of R/C Bill of Aganwadi workers for the month of July to September, 2016 is annexed as Annexure 10 in their counter affidavit. 15. Having heard the submissions made by both the parties and on perusal of the documents on record, this court finds that it is a fact that the nature of appointment of the petitioner is on temporary basis which can be terminated at any time for non-performance of the work/ duty. The documents indicate that a show cause notice dated 29.01.2016 was also duly issue to the petitioner by the respondent no.6 which was not replied to by the petitioner. The nature of the show cause notice was that she had not performed her duty during 2013-2014. The documents indicate that a show cause notice dated 29.01.2016 was also duly issue to the petitioner by the respondent no.6 which was not replied to by the petitioner. The nature of the show cause notice was that she had not performed her duty during 2013-2014. Whether or not the respondent no.5 is the sister -in-law of respondent no.6 or whether or not the respondent no.6 is more related to the petitioners are questions of fact which have not been supported by any documents and therefore need no further mention. 16. From the submissions made, the court finds that the crux of the matter boils down to the question whether, or not, the respondent no.6 who was not holding the substantive post of Child Development Project Officer/ CDPO, but was holding temporary charge of the said post, had the jurisdiction or authority to issue termination order of the petitioner who was appointed as Aganwadi Workers on temporary basiswith effect from 1st February, 2010 at the monthly honorarium of Rs. 1438/-as fixed by the Government vide Order dated 25.02.2010 by the Child Development Project Officer (CDPO), East Kameng District, Bameng, without there being any authorisation. 17. It is seen that the High Court Karnataka in B.N. Dhotrad Vs. The Board of Directors/cum-Appellate Authority (supra) held that; “17. From the discussions made above, it is clear that a government servant appointed to be in-charge of current duties of an office cannot exercise any substantive powers of the office. He cannot discharge the statutory functions assigned to the post. He can merely perform the day today office duties because the powers other than substantive powers do not adversely affect the interest or rights of others. In the instant case, though the charge sheet was issued by the regular Managing Director, Mr. V.R. Gudi, the in-charge Managing Director has constituted the departmental enquiry committee and has acted as Disciplinary Authority. Therefore, the enquiry proceedings from the constitution of departmental enquiry committee is illegal and to be quashed. In the instant case, though the charge sheet was issued by the regular Managing Director, Mr. V.R. Gudi, the in-charge Managing Director has constituted the departmental enquiry committee and has acted as Disciplinary Authority. Therefore, the enquiry proceedings from the constitution of departmental enquiry committee is illegal and to be quashed. Similarly, the appellate order is equally bad also requires to be set aside.” This court finds no reason to disagree with the above views taken by the Karnataka High Court, considering the fact that the in the instant case, interest of the petitioner, who was serving as Aganwadi Worker for the past 6(six) years have been adversely affected by the impugned termination order dated 24.05.2016 issued by the officer while taking temporary charge of the office of Child Development Project Officer/CDPO. There is also no authority or rule relied on by the respondents in rebuttal to the views taken in the above cited case. 18. It is also noted that this court in its order dated 24.11.2016 had also directed that “Status quo as on today shall be maintained. If it is found that the petitioner is still working as on date, the petitioner shall be entitled to be paid her honorarium.” 19. In view of the above findings, this court is of the considered view that the impugned dismissal order dated 24.05.2016adversely affecting the interest of the petitioner is liable to be set aside and quashed for the reason that the orders were issued without any authorisation by the respondent no.6, who was not holding the substantive post of CDPO but was only taking temporary charge of the post of CDPO. The court at this stage is also compelled to interfere with and set aside the appointment order of respondent no.5 dated 27.05.2016, which was issued by the respondent no.6 while holding the temporary charge of CDPO, and also on finding that the appointment order is linked with the dismissal order of the petitioner dated 24.05.201 which is deemed fit to be quashed and set aside. 20. 20. Having come to the above findings, this court is also of the view that, considering the fact that the Government of India under the ICDS scheme envisages Supplementary Nutrition, Immunization and Health and nutrition education, health check-ups and counselling, make home visits for educating parents to enable mothers to plan an effective role in the child’s growth, Preschool and Non formal education and Nutrition Health education, wherein the Aganwadi Workers are the community based frontline honorary workers under the ICDS scheme to elicit community support and participation in running the programme, the Aganwadi Workers are found to play a pivotal role in the delivery of the various projects under the ICDS scheme, therefore the state respondents cannot afford to have any bad performance on the part of the Aganwadi workers. Thus, the CDPO, East Kameng District, Bameng/respondent No.4, shall take immediate necessary steps to inquire into the performance of the petitioner as Aganwadi Worker, taking cognizance of the complaints made against the petitioner and after giving ample opportunity to the petitioner of being heard, shall issue necessary orders as deemed fit within 3(three) weeks from the date of receiving certified true copy of this order. Till then, the petitioner in terms of her appointment order dated 25.02.2010, shall be allowed to perform her duties as Anganwadi Worker and be paid the honorarium for the works performed by her. 21. WP(C) No.611(AP) 2016 is accordingly disposed of with the above directions.