Gauhati High Court
Hadaya Begum vs The State Of Assam And 6 Ors on 29 May, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010009962013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4828/2013
1:HADAYA BEGUM
D/O LT. RAHIMUDDIN AHMED R/O VIL- PUB- DEHARKURIA P.O. SONIADI,
P.S. HAJO, DIST. KAMRUP R, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 6 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR OF SOCIAL WELFARE DEPARTMENT
ASSAM
UZANBAZAR
GUWAHATI- 781001.
3:THE DEPUTY COMMISSIONER
KAMRUP M
ASSAM.
4:THE DISTRICT SOCIAL WELFARE OFFICER
P.O. and DIST. KAMRUP R
5:THE CHILD DEVELOPMENT PROJECT OFFICER
HAJO
ICDS PROJECT HAJO
DIST.KAMRUP R
ASSAM.
6:SMTI. HAMI BORAH
CHAIRMAN-CUM-CIRCLE OFFICER
SELECTION BOARD
HAJO ICDS PROJECT
HAJO
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KAM RUP R ASSAM.
7:MRS. RUNUMA BEGUM
W/O AFNUR ALI R/O PUB DEHARKURIHA P.O. SONIADI
P.S. HAJO DIST. KAMRUP R
ASSAM
Advocate for the Petitioner : MS.A NEOG
Advocate for the Respondent : SC, SOCIAL WELFARE
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 29.05.2019 Heard Ms. S.K. Nargis, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned Govt. advocate and Mr. B.C. Choudhury, learned counsel for the respondent No.7.
2. In view of the nature of grievance raised in this writ petition, this Court is inclined to issue Rule returnable forthwith. The matter has been heard with the consent of the learned counsel for all sides.
3. The case projected by the petitioner is that she is 40% orthopedically challenged. She had responded to an advertisement dated 25.06.2013 for selection and appointment as Anganwadi Worker/ Helper in respect of 2 No. Deharkuria Anganwadi Centre under Hajo ICDS Project. It is projected that in terms of the said advertisement, 3% of the post were required to be kept reserved for physically challenged candidates. However, it is alleged that the authorities have not followed the said mandate and respondent No.7 was selected on extraneous consideration.
4. It is seen that on such projection, this Court by order dated 26.08.2013 had directed Page No.# 3/8 that the impugned select list dated 14.08.2013 in respect of 2 No. Deharkuria Anganwadi Centre under Hajo ICDS Project, so far as it relates to Anganwadi Helper, shall remain suspended.
5. The learned counsel for the petitioner has referred to the photocopy of the petitioner's identity card annexed to this writ petition as Annexure-5 to support her submission and to counter the stand taken in the affidavit-in-opposition filed by the Child Development Project Officer, Hajo ICDS Project, Hajo, Dist. Kamrup (respondent No.5) wherein it has been stated on oath that the validity of the certificate dated 13.06.2007 had expired on 12.06.2010.
6. It is seen that because of the said stand taken in the affidavit-in-opposition filed by respondent No.5, which was sworn and filed by one Syed Ahidul Islam on 04.12.2013, this Court by order dated 07.12.2016, 19.05.2017 and 19.07.2017 diverted its attention to expose what remedial benefit could be given to the petitioner, inter-alia, when 3% reservation policy for physically challenged female candidate was not considered for the petitioner.
7. On 05.04.2019, this Court had recorded in the said order as follows:
"The learned Government Advocate has referred to the additional affidavit filed on 20.03.2019 to project that as per the report dated 03.11.2018 received from the Child Development Project Officer (CDPO in short), Hajo ICDS projecting necessary steps has been taken and the petitioner had received the identity card of disabled persons and further remedial measures for appointment of the petitioner as Anganwadi workers under reserved category of physically handicapped person is under process. Accordingly, this Court is inclined to adjourn the matter for 4(four) weeks awaiting development of the matter."
8. In order dated 08.05.2019, it is recorded that when the matter was called, the learned Govt. advocate had submitted that he was still awaiting instruction from the Director of Social Page No.# 4/8 Welfare for measures taken for appointment of the petitioner as Anganwadi worker under reserved category of physically handicapped persons. Hence, one last chance was granted to the Director of Social Welfare to respond as to what measures have been taken for the appointment of the petitioner as Anganwadi worker under the reserved category of physically handicapped persons. It was made clear that if no instructions are received within two weeks, this Court would be inclined to pass appropriate orders on the basis of materials available on record. The State was also put to notice that if on merit the petitioner is found to be deprived of the appointment to which she is entitled to, then the Court would pass orders to impose exemplary cost on the State. The statement made in paragraph 2 of the additional affidavit filed by the respondent No.2 on 20.03.2019 is as follows:
"That as per report dated 03.11.2018 received from the CDPO, Hajo ICDS Project it is stated that the necessary steps has been taken and the petitioner Smti. Hadaya Begum has already received the Identity Card of PWD (Persons with Disability). Further remedial measure for appointment of the petitioner as Anganwadi Worker under reserved category of physically handicapped persons in under process."
9. Accordingly, with the aforesaid background, having noticed that this writ petition was filed by a physically challenged person on 22.08.2013, the matter has been heard.
10. The learned Govt. advocate has reiterated the stand taken by the respondent No.5 in the affidavit-in-opposition filed by him. It is submitted that in view of the stand taken in paragraph 11 thereof, as the identity card of the petitioner was not valid on and from 12.06.2010, the challenge to the appointment of respondent No.7 made pursuant to the advertisement dated 25.06.2013 was not maintainable as the petitioner could not be treated as a person entitled to appointment under 3% reserved quota for physically challenged female candidate. Hence, he has strenuously urged upon this Court to dismiss this writ petition in limine.
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11. This Court has perused the materials available on record. The stand taken by the respondent No.5 i.e. the Child Development Project Officer, Hajo ICDS Project, District Kamrup (CDPO for short) has stated in paragraph 7 of the said affidavit-in-opposition filed on 04.12.2013 that the certificate regarding physically challenged persons issued by the Social Welfare Department is required to be renewed after every three years and, as such, the validity of the said certificate dated 13.06.2007 issued in favour of the petitioner had already expired on 12.06.2010. In paragraph 11 thereof, it has been stated that the question of considering the writ petition under physically handicapped category does not arise inasmuch as her physically handicapped certificate does not have validity which was clearly expired on 12.06.2010 and the respondent No.7 was selected in terms of advertisement dated 25.06.2013. It may be pertinent to record herein that the statements made in paragraph 7 and 11 of the affidavit-in-opposition is verified to be matters of record, but for reasons best known to the respondent No.5, no record in support of said statement has been annexed.
12. On a query of this Court, the learned counsel for the petitioner has produced the original identity card bearing No. 3065 dated 13.06.2007 for person with disability which is issued in favour of the petitioner in the name of Hadaya (Hadaya Begum in writ petition) by the District Social Welfare Officer, Kamrup, Guwahati which does not have a date of expiry mentioned in the said identity card. The original identity card matches with its photocopy annexed as Annexure-5 to this writ petition. Therefore, if the identity card does not have the last date of validity, the stand taken by the respondent No.5 of the certificate had expired on 12.06.2010 is totally unacceptable. If according to the State respondents, specially (i) the Social Welfare Department, (ii) Directorate of Social Welfare, Assam, and (iii) the District Social Welfare Officer had any personal knowledge that the identity card had a date of expiry, then at the time when the petitioner had submitted her application for being selected as an Anganwadi Worker/ Helper they should have informed the petitioner about the requirement of renewing the identity card. Hence, this Court is of the unhesitant opinion that as the identity card of the petitioner issued on 13.06.2007 (Annexure-5 of the writ petition) has no expiry date, the petitioner has been wrongly deprived of being selected and appointed as an Anganwadi Worker/ Helper in respect of 2 No. Deharkuria Anganwadi Centre under Hajo ICDS Page No.# 6/8 Project, by not adhering to the requirement of keeping 3% vacancies reserved for physically challenged persons although the petitioner is a 40% orthopedically handicapped as per her identity card. A scanned copy of the petitioner's said identity card No. 3065 dated 13.06.2007 was made at the direction of this Court, from the original identity card, and the same is made a part of this order and marked with "LETTER-X".
13. The Director of Social Welfare, Assam in the additional affidavit filed on 20.03.2019 had indicated that steps have been taken for remedial measures for appointment of the petitioner as Anganwadi worker under reserved category of physically handicapped persons. But despite such affidavit, such appointment has not materialized, this Court is of the considered view that since 14.08.2013, when the result of selection was announced, the petitioner had been illegally deprived of being considered as a physically challenged female candidate and accordingly, the State respondents No. 1 to 5 have miserably failed to adhere to the reservation policy of 3% reservation as notified in the advertisement dated 25.06.2013. As a consequence of not treating the petitioner as a physically challenged person (female), this Court is of the opinion that the petitioner has suffered a violation of her fundamental right as well as right flowing to her by operation of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as the petitioner with 40% orthopedically challenged comes within the meaning of Section 2(t) of the said Act. It is seen that requirement of having 3% vacancies earmarked/ reserved for persons with disability is statutorily mandated by Section 33 of the said 1995 Act. Thus, in this case the petitioner has suffered deprivation from the acts, omissions and commissions from Social Welfare Department of the State, whose solemn duty is to champion the cause of socially deprived class of citizens. The act of depriving the petitioner of being appointed as Anganwadi Worker/ Helper in violation of 3% reservation for physically challenged (orthopedically handicapped) female is held to be illegal, arbitrary and violative of reservation policy and violative for non-adherence of the provisions of Section 33 of the 1995 Act. As the advertisement dated 25.06.2013 does not indicate which particular post was earmarked as reserved post, this Court is not inclined to interfere with the selection list dated 14.08.2013, impugned in this writ petition. It is left open to the Govt. to examine whether the selection Page No.# 7/8 list dated 14.08.2013 is valid or not. The respondents No.1 to 5 are an integral part of each other, and the actions of respondent No. 5 vicariously bind each of the respondents No. 1 to
4. Hence, for depriving the petitioner of her status as a physically challenged (orthopedically handicapped) female, though her identity card does not indicate any expiry date, and consequently depriving the petitioner of her selection and appointment as Anganwadi Worker/ Helper from the year 2013 onwards till date, this Court is clearly of the view that a remedy in public law for grant of remedial compensation is required in the present case in hand. Hence, this Court is inclined to pass the following directions:
1) That (i) the State of Assam through the Commissioner and Secretary to the Govt. of Assam, Social Welfare Department (respondent No.1), (ii) the Director of Social Welfare Department, Assam (respondent No.2) and, (iii) the Child Development Project Officer, Hajo I.C.D.S. Project, Hajo, District Kamrup (respondent No.5) shall pass appropriate orders so as to appoint the petitioner as an Anganwadi Worker under reserved category of physically handicapped persons in the vicinity of her place of residence.
2) For not adhering to the 3% reservation as earmarked in the advertisement bearing No. CDPO (H) 106/2013-14/338 dated 25.06.2013, and by depriving her of her selection and appointment on untenable ground, this Court is inclined to impose a compensation of Rs.4,00,000/- to be paid by the three respondents indicated above, jointly and severally, to the petitioner within a period of 2(two) months from the date of receipt of certified copy of this order.
3) It is further provided that if within a period of 6(six) months from the date of receipt of the certified copy of this order, the said State respondents are unable to secure the job of Anganwadi Worker/ Helper to the petitioner, in that event, the said three respondents No.1, 2 and 5, as indicated above, shall pay a further compensation of Rs.6,00,000/- to the petitioner in lieu of securing her a job, which was otherwise reserved for 3% physically handicapped persons.
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14. Accordingly, the petitioner is directed to submit a certified copy of this order before the Director Social Welfare, Assam (respondent No.2) within a period of 2(two) weeks from today and she shall simultaneously serve photocopy of this order to all the respondents No. 1 to 5 by registered post with A/D, and on receipt of the certified copy, it shall be the duty of the respondent No. 2 to forward a copy of this order to the respondents No. 1 and 3 to 5. The petitioner shall also provide the Director of Social Welfare, Assam with her bank account details to enable the said respondents No. 1 to 5 to pay compensation as indicated above on time.
15. With the aforesaid direction, this writ petition stands allowed.
16. Accordingly, the rule is made absolute in terms of this order. Ordered accordingly.
17. Let a copy of this order be provided to Mr. G. Pegu, learned Govt. advocate.
JUDGE Comparing Assistant