Gauhati High Court
Mrs. Pubali Saikia vs The State Of Assam And 5 Ors on 16 September, 2018
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 1614/2014
Mrs. Pubali Saikia,
W/o Sri Harendra Nath,
R/o Village Petboha Veterinary,
P.O. Uttarpetboha,
District-Nagaon, Assam.
- Petitioner
-Versus-
1. The State of Assam,
Represented by the Commissioner and Secretary to the Government of
Assam,
Department of Social Welfare,
Dispur, Guwahati-781006.
2. The Director, Social Welfare, Assam,
Guwahati-1.
3. The District Social Welfare Officer,
District-Nagaon, Assam.
4. Child Development Project Officer,
Raha ICDS Project, Nagaon, Assam.
5. Mrs. Sewali Bora,
W/o Sri Pabitra Kr. Bora,
Vill. & P.O. Uttarpetborha,
District Nagaon, Assam.
6. Mrs. Minu Devi Saikia,
W/o Sri Deva Saikia,
Vill. & P.O. Uttarpetborha,
District Nagaon, Assam.
- Respondents
For the petitioner : Mr. S. Saikia,
Mr. B. K. Das, Advocates,
For respondent Nos. 1 to 4 : Ms. M. Bhattacharjee,
Government Advocate,
For respondent No. 5 : Mr. S. K. Singha, Advocate,
For respondent No. 6 : Mr. R. Hazarika, Advocate,
WP(C) 6749/2014
Smt. Minu Devi Saikia,
W/o Sri Deba Saikia,
R/o Village Petboha, Ward No. 6,
P.O. Uttar Petboha, P.S. Raha
District-Nagaon, Assam, PIN-782103.
- Petitioner
-Versus-
W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014
W ith W P(C) 6768/ 2014
2
1. The State of Assam,
Represented by the Commissioner and Secretary to the Government of Assam, Department of Social Welfare, Dispur, Guwahati-781006.
2. The Director, Social Welfare, Assam, Uzan Bazar, Guwahati-1.
3. The District Social Welfare Officer, Nagaon, District-Nagaon, Assam.
4. Child Development Project Officer, Raha ICDS Project, Raha, Nagaon, Assam.
5. The Programme Officer, Divisional ICDS Cell, Nagaon, District-Nagaon, Assam.
6. Smti. Sewali Bora, W/o Sri Pabitra Kr. Bora, Resident of Village Uttar Petboha, P.O. Uttar Petboha, P.S. Raha, District Nagaon, Assam, PIN-782103.
- Respondents
For the petitioner : Mr. R. Hazarika, Advocate,
For respondent Nos. 1 to 5 : Ms. M. Bhattacharjee,
Government Advocate,
For respondent No. 6 : Mr. S. K. Singha, Advocate.
WP(C) 6768/2014
Smt. Sewali Bora,
W/o Sri Pabitra Kumar Bora,
R/o Village & P.O. Uttar Petbarha,
P.S. Raha,
District-Nagaon, Assam.
- Petitioner
-Versus-
1. The State of Assam,
Represented by the Commissioner and Secretary to the Government of Assam, Department of Social Welfare, Dispur, Guwahati-781006.
2. The Director, Social Welfare, Assam, Uzan Bazar, Guwahati-1.
3. Child Development Project Officer, Raha ICDS Project, Raha, District-Nagaon, Assam.
- Respondents
W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014
W ith W P(C) 6768/ 2014
3
For the petitioner : Mr. S. K. Singha, Advocate,
For respondent Nos. 1 to 3 : Ms. M. Bhattacharjee,
Government Advocate,
Dates of hearing : 04.09.2017 and 06.09.2017.
Date of judgement : 16.09.2017
BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
JUDGEMENT AND ORDER
Heard Mr. B. K. Das, learned counsel appearing for the writ petitioner in WP(C) 1614/2014, Mr. R. Hazarika, learned counsel for the writ petitioner in WP(C) 6749/2014, who is also appearing for respondent No. 6 in WP(C) 1614/2014 as well as Mr. S. K. Singha, learned counsel appearing for the writ petitioner in WP(C) 6768/2014, who is also appearing for respondent No. 5 in WP(C) 1614/2014 and respondent No. 6 in WP(C) 6749/2014. Also heard Ms. M. Bhattachrjee, learned State counsel, appearing for respondent Nos. 1 to 4 in WP(C) 1614/2014, respondent Nos. 1 to 5 in WP(C) 6749/2014 and respondent Nos. 1 to 3 in WP(C) 6768/2014.
2. The three writ petitions, namely, WP(C) 1614/2014, filed by Smt. Pubali Saikia, WP(C) 6749/2014, filed by Smt. Minu Devi Saikia and WP(C) 6768/2014, filed by Smt. Sewali Bora relate to appointment of Anganwadi Worker in respect of Petboha Veterinery Khanda Mini Anganwadi Centre, under Raha ICDS Project, Nagaon. In WP(C) 1614/2014, Sewali Bora and Minu Devi Saikia are arrayed as respondent Nos. 5 and 6, respectively. In WP(C) 6749/2014, Sewali Bora is arrayed as respondent No. 6 and in WP(C) 6768/2014 neither Pubali Saikia nor Minu Devi Saikia are party-respondents.
3. The petitioners in all the three writ petitions had responded to an advertisement dated 31.05.2013, issued by Child Development Project Officer (CDPO), Raha ICDS Project, Raha for appointment of Anganwadi Workers and Anganwadi Helpers for various Anganwadi Centres under Raha ICDS Project including Petboha Veterinery Khanda Mini Anganwadi Centre. At the outset, the basic case as projected in each of the writ petitions may be noted, which is as under:
(A) WP(C) 1614/2014 The case of the petitioner, Pubali Saikia is that though in the select list published on 06.08.2013 the name of Smt. Sewali Bora was shown at Sl. No. 1 with 31.66% marks and that of Smt. Minu Devi Saikia at Sl. No. 2 with 30.00% marks, they are not residents of the W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 4 local limit of the Anganwadi Centre in question and, therefore, they were not entitled to be selected for appointment for the Anganwadi Centre in question. In the select list in question, the petitioner was shown in the third position with 28.66% marks. By filing the writ petition, the petitioner prays for a direction to appoint the petitioner as Anganwadi Worker in respect of the Anganwadi Centre in question.
(B) WP(C) 6749/2014 The case projected by Smt. Minu Devi Saikia in this writ petition is that the selection of respondent No. 6, i.e., Sewali Bora [petitioner in WP(C) 6768/2014] is bad in law as the respondent No. 6 is not a resident of Ward No. 6, i.e., within the limit of the Anganwadi Centre. The petitioner prays for setting aside the letter dated 21.11.2014, issued by the Director of Social Welfare Department directing the CDPO, Raha ICDS Project to hold a fresh interview for appointment of Anganwadi Worker for the Anganwadi Centre in question and for a direction to appoint her as Anganwadi Worker in the Anganwadi Centre in question as she is a resident of Ward No. 6 and she had secured second position in the select list.
(C) WP(C) 6768/2014 The petitioner, Sewali Bora, applied for the said post and appeared in the interview that was held on 06.07.2013. Select list was published on 06.08.2013 showing the petitioner at 1st position with 31.66% marks to be selected as Anganwadi Worker in respect of the said Anganwadi Centre. As no engagement letter was issued to the petitioner pursuant to the said selection, the petitioner filed a writ petition, being WP(C) 2559/2014, which was disposed of by this Court on 05.11.2014 directing the Director of Social Welfare Department, Assam, to do the needful in respect of the aforesaid select list as expeditiously as possible, preferably within 30.11.2014. However, by an order dated 21.11.2014, the Director of Social Welfare Department, Assam, directed the CDPO, Raha to conduct a fresh interview inviting applications from the candidates of the concerned wards only, as published in the advertisement dated 31.05.2013. The instant writ application is filed for quashing of the aforesaid letter dated 21.11.2014.
4. In all, three affidavits, one each in each of the three writ petitions had been filed by the CDPO, Raha.
5. In the affidavit filed by the CDPO, Raha (respondent No. 3) on 27.04.2015 in WP(C) 6768/2014, it is stated at paragraph 5 as follows:
W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 5 "(5) That with regard to the statements made in paragraph 5, 6 and 7 of the writ petition, the deponent begs to state that as per advertisement, the surveyed area of Petboha Veterinary Khanda is at Ward No. 6 though covering few families from the Ward No. 5. On the other hand, the name of Sewali Bora (writ petitioner) has not been seen in the list of eligible candidates for the post of Mini AWW which was published on 1st July, 2013. It is known that the writ petitioner, Sewali Bora and the candidate, Smt. Pubali Saikia are not belong to Ward No. 6 according to Ward member of Ward No. 6 and Gaonbura of Uttar Petboha. It is pertinent to mention herein that submission of enquiry report vide communication no.
DPO(N)E/148/97/2197 dated 8.4.2014 speaks about Petboha Veterinary Khanda AWC which is quoted below:
'as per advertisement which AWC is situated at ward no. 6 of Petboha Revenue Village. In the survey register it is seen that majority of population covers in the ward no. 6 and few families are included from ward no. 5. The residence of Pubali Saikia, Sewali Bora are in the survey area. The Gaonbura of Uttar Petboha stated that these 2 candidates appeared in the interview are from ward no. 5. And the rest of candidates are from ward no. 6. Now the centre is still running in ward no. 6 by Smt. Rita Saikia old helper of No. 1 Uttar Petboha AWC. The ward member of ward No. 6 stated that the report regarding candidates appeared in the interview Board. As per advertisement it is clear that the candidates from ward no. 6 should be preferable for selection of AWW of the said AWC.' Copy of the list of eligible candidates and communication dated 8.4.2014 are annexed herewith and marked as Annexure-1 and 2 respectively."
6. In the affidavit filed on 03.11.2014 by the CDPO, Raha, in WP(C) 1614/2014, it is stated at paragraph 7 that Sewali Bora, i.e., the petitioner in WP(C) 6768/2014, and Minu Devi Saikia, i.e., the petitioner in WP(C) 6749/2014 are residents within the Anganwadi Centre area. In the paragraph 7 of the said affidavit, it is stated as follows:
"(7) That with regard to the statements made in paragraph 7 of the writ petition, the deponent begs to state that it is not understood as to why the President, Gahi GP and Ward Member, GP issued certificate stating that respondent No. 5 & 6 is not situated within the local limit of AWC in question inasmuch as the W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 6 Gaonbura of village Uttar Patboha has already issued residential certificate which was available with the application forms of respondent No. 5 & 6 submitted pursuant to advertisement dated 31.5.2013 certifying that respondent No. 5 & 6 reside at village Uttar Patboha and it is apparent that the residential certificate dated 14.03.2014 & 11.03.2014 (annexure 6 & 7 at page 18 and 20 to the writ petition) was issued subsequent to advertisement as the last date of receiving application was fixed on 07.06.2013 and the above noted certificate dated 14.03.2014 and 11.03.2014 is not available in the office. And as such, the ground based on the above certificate dated 14.03.2014 and 11.03.2014 (annexure 6 & 7 at page 18 and 20 to the writ petition) should not be taken into account and the whole statement is baseless."
7. In the affidavit filed by the CDPO, Raha, filed on 14.05.2015 in WP(C) 6749/2014, it is stated at paragraph 4 as follows:
"(4) That the deponent begs to state that as per advertisement, the surveyed area of Petboha Veterinary Khanda is at Ward No. 6 though covering few families from the Ward No. 5. On the other hand, the name of Sewali Bora (respondent No.
6) has not been seen in the list of eligible candidates for the post of Mini AWW which was published on 1st July, 2013. It is known that the respondent No. 6, Sewali Bora and one candidate, Smt. Pubali Saikia are not belong to Ward No. 6 according to Ward member of Ward No. 6 and Gaonbura of Uttar Petboha. It is pertinent to mention herein that submission of enquiry report vide communication no.
DPO(N)E/148/97/2197 dated 8.4.2014 speaks about Petboha Veterinary Khanda AWC which is quoted below:
'as per advertisement which AWC is situated at ward no. 6 of Petboha Revenue Village. In the survey register it is seen that majority of population covers in the ward no. 6 and few families are included from ward no. 5. The residence of Pubali Saikia, Sewali Bora are in the survey area. The Gaonbura of Uttar Petboha stated that these 2 candidates appeared in the interview are from ward no. 5. And the rest of candidates are from ward no. 6. Now the centre is still running in ward no. 6 by Smt. Rita Saikia old helper of No. 1 Uttar Petboha AWC. The ward member of ward No. 6 stated that the report regarding candidates appeared in the interview Board. As per advertisement it is clear that the candidates from ward no. 6 should be preferable for W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 7 selection of AWW of the said AWC. It would be pertinent to mention herein that the writ petitioner obtained 2nd position which is crystal clear at Annexure-D to the instant writ petition' Communication dated 8.4.2014 are annexed herewith and marked as Annexure-1."
8. The aforesaid affidavits on behalf of the State respondents were filed by one Dinesh Chandra Das, who is the CDPO, Raha ICDS Project. From the affidavit filed in WP(C) 6768/2014 and WP(C) 6749/2014, it is seen that stand is taken that as per the advertisement the survey area of Petboha Veterinary Khanda Mini Angalwadi Centre is at Ward No. 6 though it also covers a few families from Ward No. 5. According to the Ward Member of Ward No. 6 and Gaonbura of Uttar Petboha Village, Sewali Bora and Pubali Saikia do not belong to Ward No. 6. The name of Sewali Bora was not available in the list of eligible candidates. At the same time, in the affidavit filed in WP(C) 1614/2014, it is stated that the Gaonbura of Uttar Petboha Village had issued a certificate certifying that Sewali Bora resides at village Uttar Petboha. The enquiry report, which was quoted in the affidavits filed in WP(C) 6768/2014 and WP(C) 6749/2014, indicates that the residence of Pubali Saikia and Sewali Bora are in the surveyed area of the Anganwadi Centre and that they had appeared in the interview from Ward No. 5.
9. However, in the affidavit-in-reply, Sewali Bora has disputed the assertion made by the CDPO that her name does not appear in the list of eligible candidates and states that her name appears at Sl. No. 6 in the list of eligible candidates and she has also annexed a document, as Annexure M(1), to demonstrate the same.
10. Clause 3 of the Advertisement dated 31.05.2013, which is in vernacular, is relevant. The translation thereof, as provided by the petitioners in each of the writ petitions, reads as follows:
WP(C) 1614/2014 "3. The applicant must be a resident of the locality of the particular Revenue village where the centre is located and she should be annexed certificate issued and sign by Gaonbura/Ward Member. Application of the outsider of the Centre shall be rejected."
WP(C) 6749/2014 "3. Applicant must be a permanent resident of the area of Anganwadi Centre against which they are applying for, certificate from Gaonbura or W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 8 Ward Member has to be enclosed with the application. Applications from outside the area centre will be summarily rejected." WP(C) 6768/2014 "3. The candidate should be a local resident of the approved centre area. A certificate signed by local Gaonburha or Ward Member should be enclosed with the application. Application received from outside the centre area shall be rejected immediately."
11. The advertisement in respect of the Anganwadi Centre in question has indicated Ward No. 6 as the surveyed area of the Anganwadi Centre. There is no uniformity in translation of Clause 3 of the advertisement in all the three writ petitions. However, it appears there from that Clause 3 requires a candidate to be a permanent resident of the notified/surveyed area of the Anganwadi Centre in question. It appears that there are two other Anganwadi Centres in Ward No. 5, three Anganwadi Centres in Ward No. 3 and three Anganwadi Centres in Ward No. 9.
12. Though the advertisement specifies that the area of the Anganwadi Centre in question is Ward No. 6, from the enquiry report it appears that the Survey Register reveals that residences of a few families of Ward No. 5, including that of Pubali Saikia and Sewali Bora, are in the surveyed area of the Anganwadi Centre in question. It is also evident that despite the undisputed fact that Sewali Bora and Pubali Saikia are residents of Ward No. 5, they had been allowed to participate in the interview. Pubali Saikia, on the other hand, had alleged that Sewali Bora and Minu Devi Saikia are residents beyond the area of the Anganwadi Centre.
13. It is evident from the pleadings in WP(C) 1614/2014 and WP(C) 6749/2014 that the petitioners have not questioned their position in the select list. At the cost of repetition, it is to be noted that Sewali Bora [petitioner in WP(C) 6768/2014], Minu Devi Saikia [petitioner in WP(C) 6749/2014] and Pubali Saikia [petitioner in WP(C) 1614/2014] were placed at Sl. Nos. 1, 2 and 3, respectively in the select list.
14. If the surveyed area of the Anganwadi Centre in question includes some residents of Ward No. 5, apart from the residents of Ward No. 6, it will be unjustified and unreasonable to exclude such residents of Ward No. 5 from participating in the selection process held in respect of the Anganwadi Centre. It is also not understood why in that case the advertisement mentioned only Ward No. 6. Though a question can be posed that Sewali Bora and Pubali Saikia had not challenged the advertisement wherein the Anganwadi Centre W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 9 area is shown to be Ward No. 6, no occasion had really arisen for them to approach this Court against the said advertisement because their candidature had been accepted. Annexure M(1) of the affidavit-in-reply filed by Sewali Bora negates the claim made by the CDPO, Raha, that her name was not in the list of the eligible candidates.
15. By the order dated 21.11.2014, without assigning any reason, the Director of Social Welfare, directed the CDPO, Raha, to conduct a fresh interview inviting applications from the candidates of the concerned ward only, as published in the advertisement dated 31.05.2013. The order also does not advert to the enquiry report which has been referred to in the affidavits. The order reflects non-application of mind and non-consideration of relevant materials.
16. In view of the above discussions, the order dated 21.11.2014 is set aside and quashed. The Director of Social Welfare is directed to ascertain, on the basis of relevant materials as to what is the surveyed area that falls within the Anganwadi Centre and to clearly record the area falling within the Anganwadi Centre in question. The Director of Social Welfare, Assam, will consider whether the petitioners in WP(C) 1614/2014, WP(C) 6749/2014 and WP(C) 6768/2014 fulfill the condition No. 3 of the advertisement in question. If it is found that the petitioner in WP(C) 6768/2014 fulfills the residential qualification, appropriate orders of engagement will be issued based on the result of the interview. If, however, it is found that the petitioner in WP(C) 6768/2014 is not meeting the residential eligibility qualification but the petitioner in WP(C) 6749/2014 fulfills Clause 3 of the advertisement, she will be engaged as Anganwadi Worker in respect of the centre in question. In case, both the petitioners in WP(C) 6768/2014 and WP(C) 6749/2014 are found to be not fulfilling Clause 3 of the advertisement but petitioner in WP(C) 1614/2014 is found to be meeting the requirements of Clause 3, she will be offered engagement as Anganwadi Worker in respect of the Anganwadi Centre in question. If none of them are found to be fulfilling the prescription contained in Clause 3 of the advertisement, a fresh process shall be initiated clearly identifying the area covered by the Anganwadi Centre in question.
17. The entire exercise, as directed above, shall be completed within a period of three months from the date of receipt of a certified copy of this order. No cost.
JUDGE RK W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014 10 W P(C) 1614/ 2014 w ith W P(C) 6749/ 2014 W ith W P(C) 6768/ 2014