Orissa High Court

Afr vs Addl. District Magistrate on 18 March, 2021

                  ORISSA HIGH COURT: CUTTACK

                          W.P.(C) NO. 686 OF 2011

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

AFR Pranati Mohapatra ......... Petitioner

-versus-

          Addl. District Magistrate,                .........              Opp. Parties
          Khurda and others


                For Petitioner     :     M/s. G. Padhi and
                                         K.C. Rajguru Mohapatra,
                                         Advocates.


                 For Opp.Parties   :     Mr. S.N. Mishra,
                                         Addl. Govt. Advocate
                                         [O.P. Nos.1 to 3]

                                         Mr. S.P. Mishra, Sr. Advocate
                                         along with M/s B. Mohanty, A.K.
                                         Dash, S.K. Sahoo, B.S. Panigrahi
                                         and (Ms.) Neha Sharma,
                                         Advocates.
                                         [O.P. No.4]



          PRESENT:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 10.03.2021| Date of judgment: 18.03.2021

Dr. B.R. SARANGI, J. The petitioner, by way of this writ

petition, seeks to quash the order dated 08.11.2010 at

Annexure-4 passed by the Additional District Magistrate,

Khurda in Misc. Appeal No.10 of 2010, and issue

direction to the opposite parties to engage her as

anganwadi worker in respect of Bhimpur Malisahi

Anganwadi Centre under Galua G.P. of Banpur Block, by

quashing the selection of opposite party no.4.

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

opposite party no.3-CDPO, Banpur issued an

advertisement for filling up of the post of anganwadi

worker of Bhimpur Malisahi Anganwadi Centre under

Galua G.P. of Banpur Block. In response to the said

advertisement, the petitioner, along with five others,

applied for. The opposite party no.3, after the expiry

period as stipulated for receiving application forms,

issued call letters on 09.12.2009 to all the candidates to

appear in the interview scheduled to be held on

22.12.2009. The final result of such selection was

published on 04.06.2010, wherein it was found that the

petitioner has secured highest marks in her H.S.C.

examination and both the petitioner and opposite party

no.4 got five marks each for their higher qualification.

But opposite party no.4 was selected by opposite party

no.2 as anganwadi worker for anganwadi centre in

question by giving additional five marks designating her

as Antyodaya Anna Yojana (AAY) card holder.

2.1 Challenging the selection of opposite party

no.4, the petitioner preferred appeal before opposite

party no.1-Additional District Magistrate, Khurda in Misc.

Appeal No.10 of 2010 contending that there is no such

provision under the revised guidelines dated 02.05.2007

for selection of anganwadi worker to award preferential

additional percentage of marks for AAY card holders and,

as such, the percentage of marks obtained in the

matriculation examination is the basis of drawing a merit

list amongst the applicants. In the said appeal, notice

was issued to the respondents and record was called for

from the CDPO and after hearing the parties and also

going through the records, the Additional District

Magistrate, Khurda dismissed the appeal on 08.11.2010

vide Annexure-4 preferred by the petitioner. Hence this

application.

3. Mr. K.C. Rajguru Mohapatra, learned

counsel for the petitioner vehemently contended that

selection of opposite party no.4 is based on the

documents, namely, AAY card of her mother and, as

such, there is no such provision under the revised

guidelines for selection of anganwadi worker to award

preferential five percent marks to the AAY card holder. It

is further contended that the appellate authority, while

considering the appeal, erroneously found opposite party

no.4 as a 'destitute' ignoring the guidelines of the

government dated 18.12.2007 for selection of anganwadi

worker, wherein government specifically issued

clarification in para-3 thereof that the women, included in

paragraph-'C' of the Govt. of India, Ministry of Women

and Child Development Department on Swadhar, may be

termed deserted/destitute. Besides the same, she should

swear that she would be subjected to criminal

prosecution, if the information are found incorrect/false,

and would be disengaged forthwith if selected on the

weightage of the information. It is thus contended that

the award of five extra marks to opposite party no.4 by

the selection committee on the ground of 'AAY' card

holder, cannot sustain in the eye of law, so also the

finding to that extent arrived at by the appellate

authority. Consequentially, the order dated 08.11.2010

passed by the appellate authority vide Annexure-4 is to

be quashed and petitioner is to be engaged as anganwadi

worker in respect of Bhimpur Malisahi Anganwadi Centre

under Galua G.P. of Banpur Block.

4. Mr. S.N. Mishra, learned Addl.

Government Advocate appearing for the State opposite

parties no.1 to 3 justifying the order passed by the

appellate authority contended that since opposite party

no.4 is an 'AAY' card holder, she is coming within the

meaning of 'destitute' as per the revised guidelines

issued by the authority on 02.05.2007 vide Annexure-3

and, as such, the subsequent clarification issued on

18.12.2007 under Annexure-5 also stands to the benefit

of opposite party no.4. He has also placed reliance on the

circulars issued by the Government of Orissa, Food

Supplies and Consumer Welfare Department on

26.08.2004 and 08.12.2017 in the matter of selection of

beneficiaries under expanded Antyodaya Anna Yojana

and coverage of AAY beneficiaries under National Food

Security Act. It is contended that since opposite party

no.4 is a 'destitute' lady, she is entitled to get

preferential treatment and, thereby, the selection

committee is well justified in selecting and engaging her

as anganwadi worker by awarding extra five marks

taking into consideration the document, i.e., 'AAY' card

and treating her as 'destitute'. Thereby, the claim made

by the petitioner cannot sustain and, as such, the writ

petition is liable to be dismissed.

5. Ms. Neha Sharma, learned counsel appearing

on behalf of Mr. S.P. Mishra, learned Senior Counsel for

opposite party no.4 contended that since opposite party

no.4 is a 'destitute', she is entitled to get five extra

marks by virtue of the revised guidelines issued by the

government. To substantiate that opposite party no.4 is

a 'destitute', she relied upon the 'AAY' card and

contended that the same is granted to a person, who is

in great need, especially of food, clothing and lodging.

Therefore, the selection of opposite party no.4 by the

committee cannot be said to be de hors the revised

guidelines under Annexure-3 and also subsequent

clarification issued on 18.12.2007 vide Anenxure-5. She

further contended that applying the same analogy, the

Additional District Magistrate is well justified in

dismissing the appeal preferred by the petitioner, as she

has not justified her claim to be selected for engagement

as anganwadi worker. Therefore, she seeks for dismissal

of the writ petition.

6. This Court heard Mr. K.C. Rajguru

Mohapatra, learned counsel for the petitioner; Mr. S.N.

Mishra, learned Addl. Government Advocate appearing

for State opposite parties no.1 to 3; and Ms. Neha

Sharma, learned counsel appearing on behalf of Mr. S.P.

Mishra, learned Senior Counsel for opposite party no.4

on virtual/physical mode. Pleadings having been

exchanged, with the consent of learned counsel for the

parties, this writ petition is being disposed of finally at

the stage of admission.

7. The factual matrix, as discussed above,

would indicate that the entire process of selection of

anganwadi worker centers around the revised guidelines

issued by the Government of Orissa in Women & Child

Development Department vide Annexure-3 dated

02.05.2007 addressed to all the Collectors of the State.

For just and proper adjudication of the case, relevant

portions of the revised guidelines are quoted below:-

"Revised Guidelines for selection of Anganwadi Workers

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

2. xxx                   xxx                xxx

3. The minimum educational qualification           for

selection will be Matriculation in the ITDA and MADA areas, however, if no Matriculate candidate is available, the educational qualification may be relaxed for the tribal candidates and SC candidates to Class-VIII examination from a recognized High School.

Percentage of marks obtained in the Matriculation examination shall be the basis of drawing a merit list amongst the applicants.

In addition to the above, preferential additional percentage will be given to the following categories.



    Scheduled            Tribe/ -     10% (only in rural
    Scheduled Caste                   and urban area)

    Widow                         -   10%

    Unmarried women above -           10%
    35 years

    Orphan girl (in which case -      5%
    relaxation in nativity can
    be given

    Physically    Handicapped -       5%
    women

    Destitute/Deserted women      -   5%

    If   the    candidate      is -   5%
    intermediate or equivalent
    or has higher qualification





         If the candidate is an -           @5 marks per year
         ECCE Worker under Sarba            of service rendered
         Sikhya Abhiyan/NPEGEL              with a ceiling of 15
                                            marks.




        3.(a)          In PTG area the female candidate

who has the highest qualifications from among the applicants for each Anganwadi Centre area may be selected as Anganwadi Worker. In case there are more than one candidate with same qualification the person who is senior in age may be selected."

8. Relying upon the revised guidelines,

referred to above, the CDPO-opposite party no.3 issued

advertisement for the post of anganwadi worker of

Bhimpur Malisahi Anganwadi Centre under Galua Gram

Panchayat, pursuant to which the petitioner and opposite

party no.4 applied for. The selection committee

constituted under clause-7 of the revised guidelines

prepared a select list vide Annexure-2 dated 04.06.2010.

As it is evident therefrom, as per percentage of marks

secured in HSC examination, the petitioner secured

50.93%, whereas opposite partyno.4 secured 50.8%. As

such, for acquisition of higher qualification, an additional

five percent marks were awarded to the petitioner and

thereby her total percentage of marks came to 55.93.

Similarly, opposite party no.4 was also awarded five

percent extra marks for acquisition of higher qualification

which comes to 55.80. Besides that, under column-12,

taking into consideration 'AAY' card and treating her as a

'destitute', five extra marks were awarded as per clause-

3 of the guidelines. Thereby, her total percentage of

marks came to 60.8 and she was declared qualified and

got selected.

9. The selection of opposite party no.4 was

challenged by the petitioner before the Addl. District

Magistrate, Khurda in Misc. Appeal No.10 of 2010

contending inter alia that the revised guidelines under

Annexure-3 do not stipulate to award five extra marks to

an 'AAY' card holder, and that the clarification issued on

para-3 of the said revised guidelines, vide letter dated

18.12.2007 addressed to Collector, Nayagarh in

Annexure-5, for selection of anganwadi worker, has not

been taken into consideration by the appellate authority

while considering the appeal preferred by the petitioner.

10. At this stage, it is profitable to quote para-3 of

the clarification issued vide letter dated 18.12.2007

addressed to Collector, Nayagarh in Annexure-5:

"The women included in paragraph-C of the Govt. of India, Ministry of Women and Child Development on Swadhar may be termed deserted/destitute women. Besides she should swear that she is subject to criminal prosecution. If the information are found in correct/false and would be disengaged forthwith if selected on the weightage of this information. Physically handicapped is defined under Section (t) of the persons with Disabilities (equal opportunity protection on rights and fulfil participation) Act, 1995 persons with other more disability as certified by this M.O. would get the benefit."

A bare perusal of the above paragraph of the circular

dated 18.12.2007 would indicate that women included in

paragraph-'C' of the Government of India, Ministry of

Women and Child Development on Swadhar may be

termed 'deserted'/'destitute' women. 'Swadhar' is a

scheme that caters to primary needs of women in

difficult circumstances issued by the Central

Government. The scheme through the provisions of

shelter, food, clothing, counselling, training, clinical and

legal aid aims to rehabilitate such women in difficult

circumstances. Para-'C' deals with objectives, which

reads as under:

"C. Objective:-

Under the scheme, Swadhar Greh will be set up in every district with capacity of 30 women with the following objectives:

a) To cater to the primary need of shelter, food, clothing, medical treatment and care of the women in distress and who are without any social and economic support.

b) To enable them to regain their emotional strength that gets hampered due to their encounter with unfortunate circumstances.

c) To provide them with legal aid and guidance to enable them to take steps for their readjustment in family/society.

d) To rehabilitate them economically and emotionally.

e) To act as a support system that understands and meets various requirements of women in distress.

f) To enable them to start their life afresh with dignity and conviction.

For big cities and other districts having more than 40 lakh population or those districts where there is a need for additional support to the women, more

than one Swadhar Greh could be established. The capacity of Swadhar Greh could be expanded up to 50 or 100 on the basis of need assessment and other important parameters."

11. On perusal of clause-(a) of the objectives, it is

made clear that to cater to the primary need of shelter,

food, clothing, medical treatment and care of the women

in distress and who are without any social and economic

support, the Government of India in Ministry of Women

and Child Development formulated a scheme called

"Swadhar Greh". Therefore, in view of para-C(a) of the

above "Swadhar Greh" scheme, a woman who comes

under this category would be treated as 'deserted'/

'destitute'. The case of opposite party no.4 is squarely

covered under para-C(a) of the Swadhar Greh scheme.

Thereby, the circular issued by the Government of Orissa

in Women and Child Development Department on

18.12.2007 vide Annexure-5 fully supports the case of

opposite party no.4.

12. Since it has been conclusively held that the

benefit of five extra marks is permissible under the

revised guidelines dated 02.05.2007 to a 'destitute', it is

apt to know the meaning of destitute. The word

'destitute' is very clear, plain and unambiguous.

In Nelson Motis v. Union of India, AIR 1992

SC 1981:(1992) 4 SCC 711, the apex Court, while

considering the provisions of a statute, specifically held

that when the words of a statute are clear, plain or

unambiguous, i.e., they are reasonably susceptible to

only one meaning, the courts are bound to give effect to

that meaning irrespective of consequences. The

aforementioned judgment was also followed in

Gurudevdata VKSSS Maryadit v. State of

Maharastra, AIR 2001 SC 1980, State of Jharkhand v.

Govind Singh, AIR 2005 SC 294 and Nathi Devi v.

Radha Devi Gupta, AIR 2005 SC 648.

In Union of India v. Sankalachand, AIR

1977 SC 2328 : (1977) 4 SCC 193, the apex Court held

that it would obviously be impossible to decide that

language is 'plain'(more accurately that a particular

meaning seems plain) without first construing it. This

involves far more than picking out dictionary definitions

of words or expressions used.

Similar view has also been taken by the apex

Court in Manohar Nathrao Samarth v. Marotrao, AIR

1979 SC 1084 : 1979 (4) SCC 93; Life Insurance

Corporation v. D.J. Bahadur, AIR 1980 SC 2181 and

Special Land Acquisition Officer v. Karigowda, AIR

2010 SC 2322 : (2010) 5 SCC 708.

13. Now, it is to be considered what is the plain

meaning attached to the word 'destitute'. In absence of

any definition in the revised guidelines dated 02.05.2007

and subsequent clarification dated 18.12.2007, the

dictionary meaning of the word 'destitute' has been taken

into consideration by this Court.

In Cambridge English Dictionary, meaning

of 'destitute' defined as - "extremely poor and lacking

the means to provide for oneself."

In Merriam Webster Dictionary, meaning of

'destitute' defined as - "lacking possessions and

resources especially: suffering extreme poverty a

destitute old man".

In www.dictionary.com, meaning of

'destitute' defined as:- "without means of subsistence:

lacking food, clothing and shelter".

In Collins English Dictionary, meaning of

destitute defined as - "Extremely poor and lacking the

means to provide for oneself".

In P. Ramnath Aiyar's Advanced Law

Lexicon, 4th Edition, the meaning of 'destitute' defined

as :-

* Not possessing the necessaries of life; lacking possession and resources; indigent;

* In great need, especially of food, clothing and lodging.

14. It is worthwhile to mention here, in order to

certify opposite party no.4 as a 'destitute', the M.L.A.

Chilika and Ex-M.L.A., Chilika in the letters have

categorically stated that father of opposite party no.4 is a

crippled old man and there is no other earning members

in the family and, as such, the entire family consists of

two sisters and her parents depend upon her scanty

earning by tuition, for which the family is facing a lot of

difficulties in their living. Therefore, if opposite party no.4

is not able to get her food, clothing and lodging, she can

be termed as a 'destitute'.

15. In the above context, reliance has also been

placed on the circular dated 26.08.2004 of Government

of Orissa in Food, Supplies and Consumer Welfare

Department addressed to all the collectors, wherein

procedure for selection of beneficiaries under expanded

Antyodaya Anna Yojana has been prescribed. Clause-2

thereof deals with eligibility criteria for selection of

families under expanded Antyodaya Anna Yojana.

Relevant portion of clause-2 is extracted hereunder:-

"2. Eligibility criteria for selection of families under expanded Antyodaya Anna Yojana:

       (a)      Landless agriculture labourers,
          marginal            farmers,          rural

artisans/craftsman such as potters, tanners, weavers, blacksmiths, carpenters, slum dwellers and persons earning their livelihood on daily basis in the informal sector, i.e., porters, collies, rickshaw pullers, hand cart pullers, fruit and flower sellers, snake charmers, rag pickers, cobblers, destitute and other similar categories in both rural and urban areas.

(b) xxx xxx xxx"

Similarly, Government of Odisha in Food Supplies and

Consumer Welfare Department issued circular on

08.12.2017 to all the Collectors, except Malkangiri and

Rayagada, regarding coverage of AAY beneficiaries under

NFSA. Clause-B of the said circular reads as under:-

"B. Landless agriculture labourers, marginal farmers, rural artisans/craftsman such as potters, tanners, weavers, blacksmiths, carpenters, slum dwellers and persons earning their livelihood on daily basis in the informal sector, i.e., porters, collies, rickshaw pullers, hand cart pullers, fruit and flower sellers, snake charmers, rag pickers, cobblers, destitute and other

similar categories in both rural and urban areas."

16. In view of the aforementioned two circulars,

since opposite party no.4 was in possession of 'AAY' card

and as she is not able to get her food, clothing and

lodging for her sustenance and, as such, all the family

members are dependent on her, she has been rightly

considered as 'destitute'. Therefore, when the

assessment was made with regard to selection of

anganwadi worker, the selection committee took into

consideration the 'AAY' card issued in favour of opposite

partyno.4 and awarded five marks more on that count,

over and above awarding five extra marks in her favour

for acquisition of higher qualification, as per para-3 of

the revised guidelines dated 02.05.2007 under

Annexure-3, which gives benefit of five extra marks to a

destitute woman. Consequentially, addition of five extra

marks, by taking into consideration the 'AAY' card

treating opposite party no.4 as a 'destitute', is well

justified, which cannot be said to be illegal, arbitrary and

contrary to the guidelines.

17. This Court, while entertaining this writ petition,

passed orders on 05.11.2015 and 11.12.2015 to the

following effect:-

"5.11.2015. The petitioner has challenged the order passed by the A.D.M., Khurda in Misc. Appeal No.10 of 2010 in which engagement of the opposite party no.4 has been challenged on the ground that she has been given extra five marks under the 'Destitute' head on the basis of 'AAY' Identity Card.

According to the petitioner, guideline does not provide that on the basis of 'AAY I-Card a candidate will be declared to be destitute.

It has been submitted that for being a destitute, a declaration from the competent court of law is required to be obtained which can only be said to be a legal and valid document. Merely on the basis of 'AAY I-Card, no benefit can be given on account of being destitute.

It has been submitted by the learned counsel for both State as well as the opposite party no.4 that after thorough enquiry, the members of the Selection Committee has come to conclusion that the opposite party no.4 is in destitute situation. Hence, additional extra marks has been provided as per the guideline.

In view of the rival submissions advanced on behalf of the parties, let the C.D.P.O., Banpur will file an affidavit explaining therein that who is the

competent authority for such declaration like 'Destitute'.

Statement of the C.D.P.O., Banpur must be supported by valid documents.

List this matter on 24.11.2015."

"11.12.2015. Engagement of the opposite party no.4 is under challenge on the ground that she has been engaged under the 'destitute' quota which has been objected by the learned counsel for the petitioner by submitting that there is no legal document to substantiate the fact that the opposite party no.4 is a destitute lady.

On the basis of 'AAY I-Card, the opposite party no.4 has been declared as destitute which is not permissible and cannot be accepted.

To substantiate his argument, he refers to Annexure-5 which is the clarification regarding competency of the authority to issue certificate to orphan girl dated 18.12.2007 (Annexure-5) wherein it has been referred that deserted or destitute women will be considered as per the parameter given in paragraph-'C' of the Government of India, Ministry of Women and Child Development Department on 'Swadhar' may be termed as deserted/destitute women.

Accordingly, learned counsel for the State is directed to bring on record the relevant part of the guideline issued by the Government of India, Ministry of Women and Child Development Department as referred in Annexure-5 (18.12.2007) issued by the Women and Child Development, Government of Odisha by the next date of hearing.

List after two weeks.

Learned counsel for the State is also directed to bring on record any clarificatory guideline in this regard if issued by the Government of India, Ministry of Women and Child Development Department."

18. As has been dealt hereinbefore, in view of the

Government of India "Swadhar Greh" scheme, which is

being scrupulously implemented by the Government of

India in Ministry of Women and Child Development, as

has been referred to in Annexure-5, as well as the

circular issued on 18.12.2007 and the circulars issued by

the Govt. of Odisha in Food Supplies and Consumer

Welfare Department on 26.08.2004 and 08.12.2017 and

also the certificates issued by the Ex-M.L.A. and the

M.L.A., Chilika, it is clearly evident that opposite party

no.4 is a 'destitute' and, therefore, 'AAY' card was

handed over to her mother for their sustenance.