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2024 DIGILAW 30 (ORI)

A. F. R. Namita Patra v. State of Odisha

2024-05-01

SASHIKANTA MISHRA

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JUDGMENT Sashikanta Mishra, J. The Petitioners being aggrieved by the cancellation of their selection as Accredited Social Health Activists (ASHA) have approached this Court seeking the following relief; 'Under the facts and circumstances stated, the petitioners therefore pray that this Hon'ble Court may graciously pleased to issue notice to the opposite parties, call for the record and upon hearing the parties to this writ application, this Hon'ble Court may further be pleased to isuse a writ in the nature of mandamus or any other appropriate writ/writs by quashing the notice of cancellation under Annexure-3 and further be pleased to direct for appointment of the petitioners as ASHA in respect of Ward Nos.3,7,8,11 and 12 under Bhuban N.A.C. for the ends of justice.' 2. The facts of the case, briefly stated, are that an advertisement was issued on 13.8.2021 by the ANM, CHC, Bhuban, inviting applications from eligible candidates for engagement as ASHA in different Wards under Bhuban Notified Area Council (N.A.C.). The Petitioners were among the several applicants. A selection process was undertaken and in the meeting of the Committee held on 27.10.2021, the Petitioners were found suitable and selected for engagement as ASHA in different Wards. They were directed to join on 28.10.2021 telephonically, but when they went to submit their joining reports before Opposite Party No.3, same were refused to be accepted on the ground that the matter had been stayed. The Petitioners approached the CDM and PHO, Dhenkanal (Opposite Party No.2), who assured them that steps have been taken to give them appointment for which they waited bonafide. Subsequently, they came to know that their selection had been cancelled vide Notice dated 07.12.2021. The Petitioners submitted representation on 13.1.2022, but the same was not considered. Under such circumstances, the Petitioners have approached this Court in the present Writ Petition. 3. Counter affidavit has been filed on behalf of Opposite Party No.2. It is stated that the Petitioners and others were selected for engagement as ASHA in different Wards. But while the matter was under consideration at the District level for final approval, a grievance petition dtd.31.10.2021 of one Deepa Malik and one Sabitri Nayak of Bhuban Block was received. Accordingly, the Opposite party No.2 was requested to take appropriate action in the matter. But while the matter was under consideration at the District level for final approval, a grievance petition dtd.31.10.2021 of one Deepa Malik and one Sabitri Nayak of Bhuban Block was received. Accordingly, the Opposite party No.2 was requested to take appropriate action in the matter. He formed an Enquiry Committee comprised of three District Level Staff, who enquired into the mater on 12.11.2021 in presence of the Medical Officer-in-charge, CHC, Bhuban and the complainants and submitted report on 20.11.2021. On the basis of the remarks and opinion of the Enquiry Committee, the notice of selection of ASHA was cancelled. It is further stated that the finding of the Enquiry Committee, inter alia, was that the selection sub-committee had not finalized the ASHA service area mapping and that the last date of submission of application was on 22.8.2021 (Sunday) for which the applicants were unable to submit their application forms. In short, it was contended that the selection process had not been conducted as per the guidelines. 4. The Petitioners have filed rejoinder seeking to refute the averments made in the counter. It is stated that the reason cited for cancellation of the notice, i.e. non-mapping of service area of ASHA, is contrary to facts as the area had in fact been mapped. The Petitioners were selected by a duly constituted selection committee and the selection was made strictly as per the guidelines. 5. Heard Mr. P.K.Panda, learned counsel for the Petitioners and Mr. A.R.Dash, learned Addl. Government Advocate for the State. 6. Mr. Panda would argue that the authorities most illegally cancelled the notice of the selection of the Petitioners without ascribing any reason. Therefore, subsequently they cannot be allowed to justify such action by supplying reason in the counter filed by them before this Court. Even then, the reasons cited in the counter affidavit justifying the cancellation of the notice are not tenable in the eye of law. The Petitioners, having been selected by the duly constituted selection committee have a legitimate expectation of being appointed as ASHA. 7. Mr. Dash, learned Addl. Government Advocate, would argue that the Enquiry Committee found that the guidelines for selection and engagement of ASHA had not been followed inasmuch as there was no mapping of the service area nor the notice for selection was widely disseminated for awareness of the candidates. 7. Mr. Dash, learned Addl. Government Advocate, would argue that the Enquiry Committee found that the guidelines for selection and engagement of ASHA had not been followed inasmuch as there was no mapping of the service area nor the notice for selection was widely disseminated for awareness of the candidates. Therefore, in order to adopt a transparent procedure, the notice had to be cancelled. 8. After going through the pleadings of the parties and upon hearing the rival submissions made by the learned counsel, this Court finds that the basic facts of the case are not disputed. The Petitioners were applicants pursuant to the advertisement issued on 13.8.2021. A selection committee headed by the Medical Officer-in-charge was constituted, which held its meeting on 27.10.2021. From the proceeding of the meeting of the committee, copy of which is enclosed as Annexure-2 to the Writ Petition and Annexure-D/2 to the counter, it is evident that 42 candidates had applied out of whom the committee decided to select 6 candidates including the Petitioners for different Wards under Bhuban N.A.C. While the matter stood thus, the impugned notice dated 07.12.2021 (copy enclosed as Annexure-3) was issued stating that the ASHA selection process for 6 numbers of ASHA of Bhuban N.A.C area is cancelled. No reason whatsoever is cited for cancellation of such selection. It is borne out from the counter affidavit that a complaint was submitted by two persons namely, Deepa Malik & Sabitri Nayak on 31.10.2021, copy of which is enclosed under Annexure-F/2 to the counter. Reading of the complaint reveals that the complainants were also applicants pursuant to the advertisement and that they had come to learn from reliable sources that there was corruption in the matter of selection of some candidates who had been called discreetly by the selection committee for interview. Further, the complainants were not called upon to appear before the selection committee. On such complaint being received the CDMO, Dhenkanal constituted an Enquiry Committee. The Committee submitted its report on 20.11.2021, copy of which is enclosed as Annexure-H/2. Several findings have been given by the Committee, but strangely, nothing at all has been said as regards the specific allegations levelled by the complainants in their complaint petition. Other reasons such as non-mapping of service area, nonawareness of candidates etc., not raised by the complainants have been cited. Suggestion has been given therefore to cancel the notice. 9. Several findings have been given by the Committee, but strangely, nothing at all has been said as regards the specific allegations levelled by the complainants in their complaint petition. Other reasons such as non-mapping of service area, nonawareness of candidates etc., not raised by the complainants have been cited. Suggestion has been given therefore to cancel the notice. 9. Thus, it is apparent that the complaint was on certain allegations whereas, the Committee formed to purportedly enquire into the complaint took into consideration entirely different aspects without in the least touching the complaint petition. This Court further finds that as per the guidelines a selection committee was constituted. The proceeding of the selection committee which was comprised of as many as 8 members does not reveal that any applicant was personally required to attend for which it can be presumed that the selection was made on the basis of the testimonials furnished by the applicants. The proceedings further states that 6 candidates were selected out of 42 applicants. No malafides can be ascribed without any specific evidence that the committee had deliberately ignored some of the candidates and had selected the 6 candidates unlawfully. The complaint also does not allege that the selected candidates were not eligible for selection. It is only alleged that they were selected under the influence and pressure of some political and influential persons. As already stated, the Enquiry Committee has not whispered a word in its report on the allegations so raised. 10. Thus, the entire action of cancellation of the notification comes out as arbitrary. It is stated at the cost of repetition, that cancellation of notice is silent as to the reasons for issuance of the same. Obviously, the authorities cannot be allowed to improve upon this omission in the notice by supplying reasons in the counter affidavit filed before this Court. Law is well settled in this regard. Reference may be had to the oft quoted decision of the Supreme Court in the case of Mohinder Singh. Gill and another vs. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 . 11. It has been further argued that mere inclusion in the select list does confer any indefeasible right on the selectee of being appointed. There is no quarrel with this proposition, but then it is also well settled that cancellation of appointment/selection cannot be arbitrary. 11. It has been further argued that mere inclusion in the select list does confer any indefeasible right on the selectee of being appointed. There is no quarrel with this proposition, but then it is also well settled that cancellation of appointment/selection cannot be arbitrary. Reference in this regard may be had to the constitution Bench Decision of the Supreme Court in the case of Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 ; and East Coast Railway and another Vs. Bahadev Appa Rao and others, (2010)7 SCC 678 . The State Government, being a model employer cannot be allowed to act in an arbitrary manner. If at all there was any irregularity in the selection process or violation of the guidelines for selection, the same could have been mentioned in the cancellation notice. That apart, as already stated, the Enquiry Committee on whose suggestion the notice was cancelled has given findings without touching the allegations raised in the complaint in the least, which had given rise to the need for conducting inquiry in the first place. 12. In such view of the matter, this Court has no hesitation in holding that the impugned notice of cancellation of selection cannot be sustained in the eye of law. 13. For the foregoing reasons therefore, the Writ Petition is allowed. The impugned notice under Annexure-3 is hereby quashed. The Opposite Parties are directed to issue necessary orders of appointment in respect of the Petitioners under their respective Wards as per the selection list. The whole exercise should be completed within a period of two months from the date of production of certified copy of this order by the Petitioners.