Smti Aparna Mazumder vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2231 Gua

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GAHC010251512014




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/1938/2014

         SMTI APARNA MAZUMDER
         W/O- SRI RATAN KUMAR MAZUMDER, VILL. and P.O.- NILAMBAZAR,
         DIST.- KARIMGANJ, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, SOCIAL
         WELFARE DEPTT., DISPUR, GHY- 6.

         2:THE COMMISSIONE AND SECY. TO THE GOVT. OF ASSAM
          SOCIAL WELFARE DEPTT.
          DISPUR
          GHY- 6.

         3:THE DIRECTOR OF SOCIAL WELFARE
         ASSAM
          UZANBAZAR
          GHY- 1.

         4:THE CHILD DEVELOPMENT PROJECT OFFICER
          SOUTH KARIMGANJ I.C.D.S. PROJECT
          KALIGANJ
          P.O.- KALIGANJ
          DIST.- KARIMGANJ
         ASSAM.

         5:FARHANA BEGUM
         W/O- SABBIR AHMED
         VILL. and P.O.- NILAMBAZAR- 788722
          DIST.- KARIMGANJ
         ASSAM
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Advocate for the Petitioner   : MR. T U LASKAR

Advocate for the Respondent : MR.M A CHOUDHURYR-5




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 16.09.2021

Heard Mr. N. Dhar, learned counsel for the petitioner and Mr. R. Dhar, learned Additional Senior Government advocate appearing for the respondent nos. 1 to 4 and Mr. M.A. Choudhury, learned counsel for respondent no. 5.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside the order dated 04.01.2012, thereby appointing the respondent no. 5 as Anganwadi Worker in No. 119 Nilambazar (Bazar) Anganwadi Centre in Karimganj District; for a direction on the respondent authorities to give regular appointment to the petitioner as Anganwadi Worker of the said centre.

3) In brief, the case of the petitioner is that as on the date when this writ petition was filed, she had put in 6 (six) years of service in the said Anganwadi Centre as Anganwadi Helper and that she was entitled to be promoted and/or upgraded to the post of Anganwadi Worker.

4) The learned counsel for the petitioner has submitted that the post of Anganwadi Worker was a promotional post and that the Anganwadi Page No.# 3/8

Helper was the feeder post. By referring to the case of Union of India & Anr. vs. Hemraj Singh Chauhan & Ors., (2010) 4 SCC 290 , the learned counsel for the petitioner has submitted that the Supreme Court of India had observed that the Central and the State Governments are required to act as a model employer, which is consistent with their role in a welfare State and it was held that it is an indefeasible right of an employee to guarantee of a fair consideration in the matter of promotion and that it is the requirement of the State to undertake cadre review exercise once every five years ordinarily. By referring to the case of Anita Sinha vs. The State of Assam & Ors., W.P.(C) 9/2018, decided on 04.03.2021 by the learned Single Judge of this Court , it is submitted that it is no longer res integra that the post of Anganwadi Worker was a promotional post, as such, it is submitted that the respondent no. 5 could not have been temporarily appointed so as to block the promotional avenue of the petitioner.

5) The learned State counsel and the learned counsel for the respondent no. 5 have made their respective submissions to oppose the reliefs claimed in this writ petition. It is also submitted that the cases cited by the learned counsel for the petitioner would not help the petitioner in any manner.

6) Perused the following, viz., (i) amended writ petition filed on 16.03.2020; (ii) affidavit-in-opposition filed by respondent no. 4; (iii) additional affidavit filed by the petitioner; (iv) additional affidavit filed by the respondent no.5; and (v) affidavit-in-opposition filed by the respondent no.5. It may be stated that the affidavit-in-opposition stated to have been filed by the respondent no. 5 could not be traced out. However, on 28.08.2018, an advance copy thereof was served on the learned counsel for the petitioner. Therefore, Page No.# 4/8

pursuant to order dated 17.12.2020, a fresh affidavit-in-opposition was filed by the respondent no. 5, which was accepted on record vide order dated 13.08.2021.

7) From the documents annexed to the additional affidavit filed on 22.05.2019, the respondent no. 5 has been able to show that the said respondent no. 5 was initially appointed temporarily as Anganwadi Worker by order dated 04.01.2012. Thereafter, the respondent no. 4 had issued an employment advertisement on 12.08.2013 (Annexure-B of the said additional affidavit) for regular selection process and appointment of Anganwadi Worker, amongst others, in respect of Centre No. 199, Nilambazar Bazar Anganwadi Centre. Thereafter, vide order dated 29.02.2016 (Annexure-C of the said additional affidavit), the respondent no. 4 had appointed the respondent no. 5 as Anganwadi Worker of the said centre. The regular appointment of the petitioner has not been put to challenge. Therefore, said advertisement dated 12.08.2013, as well as the order dated 29.02.2016 by respondent no. 4 of appointment of the petitioner as a regular Anganwadi Centre has attained finality. Therefore, the challenge to the temporary appointment of the respondent no. 5 has become infructuous, and is liable to be dismissed.

8) It is seen that there is typing error in the prayer made in the writ petition. By order dated 30.09.2007 (Annexure-3 to the writ petition) the petitioner was appointed as Anganwadi Helper in No. 199 Nilambazar (Bazar) Anganwadi Centre in Karimganj District and that by the impugned order dated 04.01.2012, the respondent no. 5 was appointed as Anganwadi Worker in the same centre, i.e. No. 199 Nilambazar (Bazar) Anganwadi Centre in Karimganj Page No.# 5/8

District. However, the petitioner claims promotion from the post of Anganwadi Helper to the post of Anganwadi Worker not in No. 199, but in No. 119 Nilambazar (Bazar) Anganwadi Centre.

9) Although the petitioner is claiming entitlement to promotion, but the petitioner had not annexed any notification or guidelines to show how the petitioner has become entitled to be promoted from the post of Anganwadi Helper to the post of Anganwadi Worker. However, to counter the claim of the petitioner, the respondent no. 5 has annexed a copy of the notification no. SWD.107/2007/80 dated 01.03.2013, containing guidelines of the Government of Assam, Social Welfare Department, thereby prescribing guidelines relating to the promotion of Anganwadi Helper to Anganwadi Worker. Clause 2 thereof, upon which the learned State counsel and the learned counsel for the respondent no. 5 had heavily relied upon reads as follows - " 2. Only those Anganwadi Helpers shall be eligible for promotion under this scheme who have been in continuous service for a period of 10 years and above as Anganwadi Helper in any duly sanctioned Anganwadi Centre ." In this regard, the admitted case of the petitioner is that she was appointed as Anganwadi Helper by order dated 30.09.2007. Therefore, it is apparent that on 04.01.2012, the date when the respondent no. 5 was appointed temporarily as Anganwadi Worker in No. 199 Nilambazar (Bazar) Anganwadi Centre in Karimganj District, or on 29.02.2016, the date when the respondent no. 5 was appointed as a regular Anganwadi Worker, the petitioner did not have the requisite eligibility of rendering 10 years of service as Anganwadi Helper in the said centre from the date of her appointment. Thus, the Court has no hesitation to hold the petitioner has withheld a material document from the Court so as to mislead this Page No.# 6/8

Court. While exercising jurisdiction under Article 226 of the Constitution of India, this Court is also a Court of equity and therefore, one must come to the Court with clean hands. But in this case, the petitioner cannot be said to have come with clean hands as she has withheld a vital notification from the Court, which prescribes eligibility condition.

10) The case of Anita Sinha (supra) relates to the up-gradation of Anganwadi Worker to the post of Supervisor against 25% quota. The learned counsel for the petitioner could not show where in the said judgment, this Court had dealt with the point that the post of Anganwadi Worker was only a promotional post, or that no appointment should be made in the said post till such time the Anganwadi Helper of the said Centre acquires the requisite qualification. Therefore, on facts, the said case is of no help to the petitioner. The ratio of the case of Hemraj Singh Chauhan (supra) is also not found to help the petitioner in any manner. Thus the learned counsel for the petitioner has cited two cases which have no relevance at all and amounts to wasting the precious time of the Court to deal with irrelevant cases.

11) Referring to the order dated 16.12.2015, passed by this Court in W.P.(C) 4779/2013 (Annexure-D to the affidavit-in- opposition by the respondent no. 5), the learned counsel for respondent no. 5 had urged that the respondent no. 5 along with other similarly situated persons had filed the said writ petition, claiming that they had been selected as Anganwadi Worker by going though selection process and that pursuant to advertisement dated 12.08.2013 they had participated again. This Court by the said order dated 16.12.2015, had directed the respondent authorities to declare the result of the selection process Page No.# 7/8

pursuant to the advertisement dated 12.08.2013. The Court takes note of the plea, because it discloses the reason for delay in declaration of result of selection process that was initiated vide advertisement dated 12.08.2013.

12) It may be mentioned that the learned counsel for the petitioner had raised the issue of purported public complaint against the respondent no. 5, show cause notice issued on her, etc. The said plea has lost its relevance because on the dates of appointment of the respondent no. 5, the petitioner did not meet the benchmark of the prescribed eligibility criteria to be considered for promotion to the post of Anganwadi Worker.

13) Therefore, on all the above counts, the present writ petition is without any merit, rather it is misconceived, as such, it deserves to be and is accordingly dismissed.

14) The petitioner has compelled the respondent no. 5 to defend herself in a false and frivolous writ petition.

15) For (i) misleading the Court by withholding notification dated 01.03.2013, (ii) for compelling the respondent no.5 to unnecessary defend herself, and (iii) to file this frivolous writ petition, the Court is inclined to impose a cost of Rs.5,000/- (Rupees Five thousand only) upon the petitioner to be paid to the respondent no. 5.

16) The petitioner shall deposit the said cost before the Registry of this Court within a period of 1 (one) month. It is made clear that on failure of Page No.# 8/8

the petitioner to deposit such cost within the time allowed, it would be open to the petitioner to apply for realization of cost in accordance with the Gauhati High Court Rules.

JUDGE

Comparing Assistant