Orissa High Court
Afr vs Collector on 9 March, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 28130 OF 2011
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
----------
AFR Smt. Saraswati Puhan ......... Petitioner
-versus-
Collector, Dhenkanal and others ......... Opp.Parties For petitioner : M/s. A.C. Mohanty, G.N. Rout, S.K. Bhagat and A. Mohanty, Advocates.
For opp.parties : Mr. Y.S.P. Babu, Addl. Government Advocate.
[O.P.Nos.1 to 3] PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 03.03.2021 : Date of Judgment: 09.03.2021 Dr. B.R.Sarangi, J. The petitioner, who is a candidate for the post of anganwadi helper of Nuathakurpal anganwadi centre under Kaluria Gram Panchayat in the district of 2 Dhenkanal, has filed this writ petition seeking to quash the order dated 19.05.2011 passed by the Sub-Collector, Dhenkanal under Annexure-3, and further seeks direction to the opposite parties to engage her as anganwadi helper in respect of the said anganwadi centre.
2. The factual matrix of the case, in hand, is that the C.D.P.O., Gandia issued an advertisement on 12.05.2010 inviting applications from the intending candidates for engagement of anganwadi helper in respect of Nuathakurpal anganwadi centre, as mahila sabha could not be held on 10.03.2020 at 2.00 P.M. As per eligibility criteria of the said advertisement, a candidate must be a permanent resident of the anganwadi centre area, her age must be within 18 to 42 years and preference would be given to orphan, widow, divorced, separated/deserted woman. Pursuant to such advertisement under Annexure-1, the CDPO received applications from the intending candidates for engagement of anganwadi helper. The petitioner raised objection with regard to candidature of opposite party no.4 contending that opposite 3 party no.4 does not belong to the anganwadi centre area, as she married in village Damodarnali under Beltikiri Gram Panchayat. But her objection was not taken into consideration by the authority and, therefore, she approached this Court by filing W.P.(C) No.12320 of 2010, which was disposed of vide order dated 14.01.2011 directing the Sub-Collector, Dhenkanal to dispose of the objection/appeal after hearing the parties within a period of two months. In pursuance of the order of this Court, the Sub-Collector, vide order dated 19.05.2011 under Annexure-3, dismissed the appeal/objection preferred by the petitioner holding that opposite party no.4 being a separated/deserted woman, her engagement as anganwadi helper in the anganwadi centre is justified. Hence this application.
3. Mr. A.C. Mohanty, learned counsel for the petitioner contended that the Sub-Collector, while passing the order impugned in Annexure-3, has not applied its mind with regard to the fact that opposite party no.4 does not belong to the anganwadi centre area. It is contended that opposite party 4 no.4 was otherwise not eligible to be considered for engagement as anganwadi helper, in view of the fact that she filed an order of maintenance granted by the learned Sub- Divisional Judicial Magistrate, Dhenkanal in Criminal Misc. Case No.53 of 2003 in a proceeding under Section 125 of Cr.P.C., wherein the learned Magistrate, by order dated 07.08.2004, directed husband of opposite party no.4, namely, Binay Sahani to pay monthly maintenance of Rs.500/-. Therefore, ipso facto it cannot be construed that she is a separated/deserted woman so as to claim preference over the others including the petitioner. It is further contended that unless opposite party no.4 produces a decree of divorce granted by the competent court, it cannot be construed that she is a deserted/separated woman in order to claim preference over the others in consonance with the guidelines. Thereby, the order so passed by the Sub-Collector, cannot sustain in the eye of law.
4. Mr. Y.S.P. Babu, learned Addl. Government Advocate appearing for State-opposite parties no.1 to 3, 5 referring to the counter affidavit filed on their behalf, contended that no objection regarding the candidature of opposite party no.4 was received from the petitioner either during Mahila Sabha or at the time of interview. However, due to suspect on the residence of opposite party no.4, anganwadi worker of Nuathakurpal anganwadi centre was directed to submit a detailed report with regard to residence of opposite party no.4 and she clarified that opposite party no.4 has been divorced by her husband and residing at Nuathakurpal since 8 years with her only son, who has been admitted in pre-school class of the said anganwadi centre. After receiving such report of anganwadi worker and on perusing the documents, the CDPO decided that opposite party no.4 is eligible for the post of anganwadi helper and consequentially engagement order was issued in her favour. It is further contended that in pursuance of the order passed by this Court, the Sub- Collector heard the appeal/objection preferred by the petitioner, by giving opportunity to the parties, and ultimately dismissed the same. Thereby, no illegality or irregularity has 6 been committed by the authority in passing the order impugned so as to warrant interference with the same by this Court at this stage.
5. This Court heard Mr. A. Mohanty, learned counsel for the petitioner and Mr. Y.S.P. Babu, learned Addl. Government Advocate appearing for State-opposite parties no.1 to 3 by virtual/physical mode. This Court vide order dated 09.02.2012 directed to issue notice to opposite party no.4 by registered post with A.D. Consequentially, though notice was issued to her by the Registry fixing 15.03.2012, as date of appearance, and the same was served on her and made sufficient, as is evident from the A.D., but she did not choose to participate in the proceeding. Since it is a matter of the year 2011 and in the meantime more than 10 years have passed, no useful purpose would be served in keeping the matter pending in order to give further opportunity to opposite party no.4 to participate in the proceeding. Therefore, this Court proceeded to decide the matter, as per the materials available on record. Consequentially, with the consent of learned 7 counsel for the parties, this matter is being disposed of finally at the stage of admission.
6. Government of Orissa in Women and Child Development Department framed guidelines for selection of helpers for anganwadi centres, which was circulated vide letter no.9994/WCD dated 24.11.1997 annexed as Annexure-B/3 to the writ petition. Clause-1 of the said guidelines deals with eligibility criteria, which reads as under:-
"1. ELIGIBILITY:- To be eligible for selection as Helper for an Anganwadi Centre, the following eligibility criteria must be fulfilled.
i) She must be a lady of the locality and
acceptable to the Anganwadi Worker.
ii) She should not be of less than 18
years of age
iii) She can continue in the job till she
discharge her duty efficiently
iv) The C.D.P.O. is competent to appoint
and discharge the helper.
v) Preference should be given to an
orphan, widow, separated, divorced or
deserted woman."
7. In view of the above guidelines, a candidate must satisfy the eligibility criteria and preference would be given to 8 an orphan, widow, separated, divorced or deserted woman. Admittedly, the petitioner and opposite party no.4 were the applicants for the post of anganwadi helper in respect of Nuathakurpal anganwadi centre. But opposite party no.4 was selected and appointed as anganwadi helper in exercise of sub-clause(v) of clause-1 of the guidelines by giving preference as she is a separated/deserted woman. It is pleaded by the petitioner in paragraph-8 of the writ petition that opposite party no.4 filed an order of maintenance granted by the learned Sub-Divisional Judicial Magistrate, Dhenkanal in Criminal Misc. Case No.53 of 2003 in a proceeding under Section 125 of Cr.P.C. wherein the learned Magistrate, by order dated 07.08.2004, directed the husband of opposite party no.4, namely, Binay Sahani to pay monthly maintenance of Rs.500/-. Thereby, opposite party no.4, even though has not produced any material before the authority with regard to her divorce from the competent civil court, but she has been granted maintenance by the competent court under Section 125 Cr.P.C., as she is remaining separated/deserted from her 9 husband. The fact, that opposite party no.4 has been deserted by her husband and is remaining in the village of her parents, has been fortified from the inquiry report submitted by the anganwadi worker of the said anganwadi centre who unequivocally stated that opposite party no.4 is residing with her son in the anganwadi centre area.
8. In HALSBURY, 4th Edn., Vol.13, para-576, page- 284 and para-582, page 287 meaning of desertion has been defined to the following effect:-
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. For the act of desertion to exit there must be both the factum or physical separation and the animus deserendi or the intention to desert."
In RAYDEN on Divorce, 6th Edn. Page 128, "desertion" has been defined as follows:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of 10 departure by one spouse does not necessarily make that spouse the deserting party."
9. In Bipin Chandra Jai Singh Bai Shah v.
Prabhawati, AIR 1957 SC 176, the apex Court held that the essential elements for the offence of desertion, so far as the deserting spouse is concerned, are (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end.
10. In Laxman Utam Chand Kirpalani v. Meen, AIR 1964 SC 40, the apex Court held that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for driving out the other is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct with the same intention, to leave him. This is the doctrine of constructive desertion.
11
11. In Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308, while considering the provisions contained under section 13(1)(ia) of the Hindu Marriage Act, the apex Court observed as follows:-
"The word 'desertion' means separation of spouse with animus deserendi continuously for the statutory period."
Similarly, in Savitry Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, the apex Court held that the word "desertion" occurring in Section 13 (1)(ib) of the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without consent and reasonable cause.
12. Therefore, the meaning attached to the word "desertion", as stated above, clearly speaks that there must be a separation and the intention to bring cohabitation permanently to an end. As it appears, opposite party no.4 having separated from her husband remained with her son at her village and consequentially she was getting maintenance awarded by the competent court under Section 125 Cr.P.C., 12 which leads to an inevitable conclusion that the separation which was already undertaken is intended to do cohabitation permanently to an end.
13. In view of such position, the consideration of the application of opposite party no.4, along with the petitioner, for engagement as anganwadi helper being a resident of anganwadi centre area cannot be said to be an illegal and irregular exercise by the authority so as to cause interference by this Court. Otherwise also, opposite party no.4 has secured higher percentage of marks than the petitioner. The final result sheet for selection of anganwadi helper of Nuathakurpal anganwadi centre prepared by the authority on 31.05.2010 in Annexure-C/3 clearly indicates that opposite party no.4 secured 70 percent marks, whereas the petitioner has secured 50 percent. Therefore, the selection of opposite party no.4, taking into consideration sub-clause (v) of clause-1 of the guidelines by giving her preferential treatment is well justified and, as such, no illegality or irregularity has been committed by the authority in selecting opposite party no.4. 13
14. So far as acquisition of educational qualification is concerned, the allegation made by the petitioner is that opposite party no.4 has not passed class-V examination. But nothing has been prescribed in the guidelines with regard to educational qualification to be eligible for consideration of anganwadi helper. Therefore, the findings arrived at by the Sub-Collector, while considering the appeal/objection in pursuance of the direction given by this Court vide order dated 14.01.2011 in W.P.(C) No.12320 of 2010, is well justified and the same also does not warrant any interference at this stage, particularly when this Court, vide order dated 09.02.2012, passed interim order to the extent that any appointment of opposite party no.4 would be subject to result of the writ petition and, as such, in pursuance of the said interim order, opposite party no.4 has been continuing in service w.e.f. 2011 and in the meantime more than 10 years have passed.
15. In the above view of the matter, this Court comes to a conclusion that the order impugned passed by the Sub- Collector, Dhenkanal vide Annexure-3 dated 19.05.2011 is 14 well justified, as no illegality or irregularity was committed in the process of selection.
16. In the result, the writ petition merits no consideration and the same is dismissed. There shall be no order as to costs.
..............................
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 9th March, 2021/Ashok/Ajaya/GDS