Afr Mamatarani Dalei @ Samal vs State Of Orissa And Others
2021 Latest Caselaw 3416 Ori

              ORISSA HIGH COURT: CUTTACK

                       W.P.(C) NO. 7269 of 2013

      In the matter of an application under Articles 226 and 227
      of the Constitution of India.


                                ---------------

AFR Mamatarani Dalei @ Samal ..... Petitioner

-Versus -

State of Orissa and others ..... Opp. Parties

For Petitioner : M/s. P.K. Das, L. Dash & S.K. Mohapatra, Advocates.

           For Opp. Parties:       Mr. B.P. Tripathy,
                                   Addl. Government Advocate
                                   [O.Ps. No. 1 to 4]

                                   M/s. A.P. Bose, N. Hota,
                                   S.S. Routray, (Mrs) V. Kar
                                   & D.J. Sahoo, Advocates
                                   [O.P. No. 5]

                                   M/s P.K. Das-I and S.B. Das,
                                   Advocates
                                   [O.P. No. 6]

      P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing : 04.03.2021 :: Date of judgment : 09.03.2021

DR. B.R. SARANGI, J. The petitioner has filed this writ petition

seeking to quash the common order dated 14.02.2013

passed by the Addl. District Magistrate, Balasore in

Anganwadi Appeal No.04/2012, which was filed by the

petitioner, and Anganwadi Appeal No.46 of 2011, which

was filed by opposite party no.5, confirming the selection

of opposite party no.6, Sabitarani Hazira @ Kar as

Anganwadi Worker for Aladiha-4 Anganwadi Centre

considering her to be a permanent resident of Aladiha

village, as her residential house built on government plot

is situated within Aladiha-4 Anganwadi Centre service

area.

2. The factual matrix of the case, in hand, is

that the petitioner, along with opposite parties no. 5 and 6

as well as other candidates, applied for the post of

Anganwadi Worker in respect to Aladiha-4 Anganwadi

Centre in the year 2010, pursuant to advertisement issued

by the opposite party no.4-C.D.P.O., Baliapal in the

district of Balasore. By following due procedure of

selection, the petitioner stood 3rd position in the select list,

while the opposite parties no. 5 and 6 stood 1st and 2nd

position respectively.

2.1. Challenging such selection, the petitioner

filed Anganwadi Misc. Case No. 73 of 2010 before the Sub-

Collector, Balasore contending inter alia that though

opposite parties no. 5 and 6 are residents of Aladiha

village, they do not belong to Aladiha-4 Anganwadi Centre

service area, as required by the guideline, rather, they are

residents of Aladiha-2 Anganwadi Centre service area.

Consequentially, the Sub-Collector called for a report from

the office of the C.D.P.O., Baliapal regarding residential

status of opposite parties no. 5 and 6, along with the

petitioner. The C.D.P.O., Baliapal, vide letter dated

26.05.2010, requested the Tahasildar, Baliapal to cause

an enquiry and submit a report regarding residential

status of the petitioner, as well as opposite parties no. 5

and 6. After causing enquiry, the Tahasildar, Baliapal

submitted a report on 10.06.2010 stating that both the

opposite parties no. 5 and 6 are not the residents of

service area of Aladiha-4 Anganwadi Centre, as per the

land documents i.e. khata number and plot number

provided by them before the Tahasildar, Baliapal, while

obtaining resident certificates. But the Sub-Collector,

Balasore dismissed the Anganwadi Misc. Case No. 73 of

2010, vide order dated 11.11.2010, on the ground that the

residential certificates issued by the Tahasildar, Baliapal

in favour of opposite party no. 5 and 6 have not been

cancelled by the concerned authority. That apart, the

residences of opposite parties no. 5 and 6 situated over

government plots no. 1498 and 1500 of village Aladiha are

coming under the service area of Aladiha-4 Anganwadi

Center.

2.2 Challenging the above order, the petitioner

filed W.P.(C) No. 22329 of 2010 before this Court. During

pendency of the above writ petition, engagement order was

issued in favour of opposite party no.6. But the writ

petition filed by the petitioner was disposed of vide order

dated 29.03.2012 directing the petitioner to file appeal

before the learned ADM., Balaosre, who shall dispose of

the appeal within a period of two months by giving

opportunity of hearing to the parties concerned and also

directed that the appointment of opposite party no.6 shall

be subject to the result of the appeal. In compliance of the

said order, the petitioner preferred Anganwadi Appeal No.4

of 2012 before the ADM., Balasore challenging the

selection and engagement of opposite party no.6 as

Anganwadi Worker in respect to Aladiha-4 Anganwadi

Centre. Challenging engagement of opposite party no.6,

opposite party no.5 also filed Ananwadi Appeal No. 46 of

2011 before the ADM., Balasore. Since both the appeals

were filed with the same cause of action, the matter was

heard analogously and vide impugned order dated

14.02.2013 the ADM., Balasore rejected both the appeals

filed by the petitioner as well as opposite party no.5.

Hence, this writ petition has been preferred by the

petitioner against the said order.

3. Mr. P.K. Das, learned counsel for the

petitioner contended that the opposite parties no 5 and 6

are not residents of service area of Aladiha-4 Anganwadi

Centre. The enquiry report reveals that the residential

certificates submitted by the opposite parties no. 5 and 6,

on the basis of the land documents, i.e., plot numbers and

khata numbers, are of service area of Aladiha-2

Anganwadi Centre, which are not coming within the

service area of Aladiha-4 Anganwadi Centre, but the

residential houses of opposite parties no. 5 and 6 over

Government Plot No. 1498 and 1500 respectively, are

coming under the service area of Aladiha-4 Anganwadi

Centre. It is further contended that prior to notification,

the opposite parties no. 5 and 6 were residing in the

service area of Aladiha-2 Anganwadi Centre and after

publication of notification they purposefully built small

houses over government plots forcibly without the

knowledge of the government, the original land owner, and

they reside there as if they are residents of service area of

Aladiha-4 Anganwadi Centre. Therefore, he contended that

the order impugned so passed by the ADM, Balasore

should be quashed.

4. Mr. B.P. Tripathy, learned Addl. Government

Advocate contended that the opposite parties no. 5 and 6

having constructed their houses over government plots,

are residing there, which come under service area of

Aladiha-4 Anganwadi Centre. Therefore, no illegality or

irregularity has been committed by the ADM, Balasore in

passing the order impugned.

5. Mr. A.P. Bose, learned counsel appearing for

opposite party no.5 contended that the opposite party no.5

is more meritorious than other candidates, those who

have applied for the post and she is residing within the

service area of Aladiha-4 Anganwadi Centre, in view of the

residential certificate issued by the Tahasildar, Baliapal,

but the same has not been considered by the selection

committee and opposite party no.6 has been selected

illegally. Therefore, the selection of opposite party no.6

cannot sustain in the eye of law.

6. Though opposite party no.6 has appeared

through her counsel Mr. P.K. Das-1 and associates, none

was present at the time of hearing nor has any counter

affidavit been filed on her behalf.

7. This Court heard Mr. P.K. Das, learned

counsel for the petitioner; Mr. B.P. Tripathy, learned Addl.

Government Advocate appearing for the State opposite

parties; and Mr. A.P. Bose, learned counsel for opposite

party no.5, and perused the record. None of the opposite

parties have filed their counter affidavit to the writ

petition, but contended that since this a certiorari

proceeding, the impugned order has to be examined,

therefore, they chose not to file the counter affidavit and

consented to dispose of the matter at the stage of

admission. Therefore, this writ petition is being disposed

of finally at the stage of admission with the consent of the

parties.

8. The Government of Odisha in its Women

and Child Development Department issued revised

guidelines for selection of Anganwadi Worker vide

Annexure-2 dated 02.05.2007. Clause-1 of the said

guidelines read as follows:

"1) Applications for selection of Volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Center area from women residing in the said village/Anganwadi Center area."

On perusal of the aforementioned clause, it is made clear

that the selection of Anganwadi Worker will be made from

amongst the women residing in the said village/

Anganwadi Center area.

9. The meaning of 'reside' has been stated in

Oxford Dictionary to the following effect:

"The word 'reside' means dwell permanently or for a considerable time; to have one's settled or usual abode; to line in or at a particular place."

The foresaid meaning has been taken note of by the apex

Court in Union of India v. Dudh Nath Prasad, AIR 2000

SC 525.

10. In Jagir Kaur v. Jaswant Singh, AIR 1963 SC

1521: (1964) 2 SCR 73, the apex Court observed that the

word 'reside' means both a permanent dwelling as well as

a living temporarily in a place but it does not include a

casual stay in, or a flying visit to a particular place.

The aforesaid judgment has also been relied

upon in Dudh Nath Prasad (supra).

11. In view of the meaning attached to the word

'reside', it is made clear that it does not refer to permanent

residence. It implies something more than a brief visit but

not such a continuity as to amount to domicile. In other

words, the expression 'reside' does not include casual or

flying visits.

12. It is admitted case of the opposite parties

that on the basis of the enquiry report submitted by the

Tahasildar, the opposite parties no. 5 and 6 are residing

over government plots no. 1498 and 1500 respectively and

the said residences are coming under the service area of

Aladiha-4 Anganwadi Centre. The opposite parties no. 5

and 6 were residing within the service area of Aladiha-2

Anganwadi Centre, but, subsequently, both are residing in

the above noted government plots and, more particularly,

the opposite party no.6 is residing over plot no. 1500 by

constructing a house. As such, no action has been taken

against her for eviction. If the opposite party no.6 is

residing over a government plot by constructing a house,

in view of the law laid down by the apex Court mentioned

supra, the consideration made by the selection committee,

that she belonged to service area of Aladiha-4 Anganwadi

Centre, cannot be said to be illegal one. Therefore, the

selection committee selected the opposite party no.6 to

engage her as Anganwadi Worker in respect of Aladiha-4

Anganwadi Centre basing upon her merit and suitability

and the residence certificate furnished by her proves that

she is residing in Aladiha-4 Anganwadi Centre service area

and her residential house is situated over a government

plot, which comes under Aladiha-4 Anganwadi Centre

service area. If the requirement of the guidelines dated

02.05.2007 under Annexure-2 has been satisfied, then no

illegality or irregularity has been committed by the

selection committee by giving engagement to opposite

party no.6 as Anganwadi Worker in respect to Aladiha-4

Anganwadi Centre. Taking into account such residential

status of opposite party no.6, which comes under Aladiha-

4 Anganwadi Centre service area, the ADM., Balasore is

justified in passing the order dated 14.02.2013 in

Annexure-4, which does not warrant interference of this

Court.

13. The writ petition merits no consideration

and the same is accordingly dismissed. No order to costs.

................................

DR. B.R.SARANGI, JUDGE

Orissa High Court, Cuttack The 9th March, 2021, Ajaya/GDS