Orissa High Court

Prabhati Chhatria vs State Of Odisha & Ors on 20 November, 2023

                                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      W.P.(C) No.35295 of 2022
                               (In the matter of an application under Articles 226 and 227 of the
                               Constitution of India, 1950)

                              Prabhati Chhatria                               ....                 Petitioner(s)
                                                                       -versus-
                              State of Odisha & Ors.                          ....           Opposite Party(s)

                               Advocates appeared in this case through Hybrid Arrangement Mode:

                              For Petitioner(s)                    :               Mr. Amit Prasad Bose, Adv.

                              For Opposite Party(s)                :             Mr. Ch. Satyajit Mishra, AGA
                                                                             Mr. Himansu Sekhar Mishra, Adv.
                                                                                                    (for O.P.5)

                                                    CORAM:
                                                    DR. JUSTICE S.K. PANIGRAHI

                                                         DATE OF HEARING:-22.09.2023
                                                        DATE OF JUDGMENT: -20.11.2023
                          Dr. S.K. Panigrahi, J.

1. The Petitioner through this Writ Petition has challenged the order dated

17.12.2022 passed by the Opposite Party No.2/ Additional District

Magistrate, Subarnapur in Anganwadi Appeal Case No.3/2017 wherein

the appeal filed by the Opposite Party No.5 was allowed and the selection

of the Petitioner was set aside.;

I. FACTUAL MATRIX OF THE CASE:

2. On 01.03.2017, the opp. party no.4 published a notification, inviting

application for engagement of Anganwadi worker in Narda (Vimtimra)

Anganwadi Centre. The opp. party no.5 got married to her husband on

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 2.3.2017, which was after the date of publication of Annexure-2. The

opp.party no.5 obtained the document of residence and caste and applied

for the post. The candidature of the opp.party no.5 was objected by the

petitioner on the ground that she does not come within the survey list.

3. The opp. party no.6 based on the documents filed by the petitioner, found

her suitable and appointed the petitioner to the post of Anganwadi

Worker in the aforesaid Anganwadi Centre. The survey register prepared

before the issuance of the advertisement on 28.2.2017, clearly indicates

that the name of the opp.party no.5 is not there, rather, an identical

named person, who is a minor is there is at serial no.117.

4. The opp.party no.5 preferred an appeal before the opp. party no.2

basically taking the plea that she has got more marks than the petitioner

and no other ground was taken in the appeal memo. On 05.04.2022, the

appeal under Annexure-7 was dismissed which can be seen from

Annexure -1 also challenging such order the opp.party no.5 filed

W.P.(C)No.10865 of 2022 based on a document that her name figures in

the family register which was never a ground in Annexure -7. The

aforesaid writ was disposed of without notice to the petitioner by order

dated 28.07.2022.

5. The appeal was taken up again and the opp.party no.5 relied upon a

family register which was prepared on 22.11.2016. The manual of such

preparation shows that it will be prepared in pencil without mention of

the dates of visit. But in Annexure -8, it can be seen that it was prepared

much prior to the date of marriage of the opp. party no.5.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38

6. The petitioner also filed a written note of submission before the appellate

court raising all the points including the fact that a new plea cannot be

taken in the appeal memo. The appellate court, however, only noted the

contention of the parties and without giving any reasons allowed the said

appeal. Hence, this Writ Petition.

II. SUBMISSIONS OF OPPOSITE PARTY NO.3 & 4:

7. Per contra, learned Senior Standing Counsel for the Opp. Party Nos.3 and

4 intently made the following submissions:

8. The concerned Sector Supervisor and Anganwadi worker Narda HP Mini

AWC intimated that Respondent No. 5 Anjali Nag married to Pulasti

Mallik of village Narda on 20.11.2016. On 22.11.2016, Smt. Pramodini

Mahanada AWW Narda HP Mini AWC enters the name of Anjali Nag

vide family Sl. No. 71 name of the family members headed by Biswamitra

Mallik of the family survey register of Narda HP Mini AWC. Smt. Anjali

Nag also got caste and residence certificate from Tahasildar, Tarbha and

her name also entered in voter list of village Narda pertaining to the year

2017 which is effective from 01.01.2017.

9. The AWW Narda and Nadhara stated that as per instruction they have

submitted the survey list for newly created Mini AWC to their sector

supervisor on 26.09.2016. However, notice was issued on 01.03.2017

nearly after six months for selection of AWW just before notification at

Narda (Vimtikra) Mini AWC. As per rule, resurvey has to be conducted

for the said AWC and it is the duty of the CDPO to order for resurvey the

AWC area before notification. But, no resurvey was conducted after

26.09.2016 and on the basis of survey list submitted by AWWS on Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 26.12.2016 notification was issued for selection of AWW at Narda

(Vimtikra) Mini AWC. As Smt. Anjali Nag got married on 20.11.2016 her

name was not reflected in the survey list though she is a permanent

resident of Narda village at that point of time.

10. As stated by Anganwadi Worker Narda HP Mini AWC, Sector Supervisor

and Family Survey Register, Anjali Nag got married on 20.11.2016 just

before 3 and half months of the issuance of notification dated 01.03.2017

which proves that, she belongs to the notified area during the notification.

The then CDPO, Tarbha produced the survey list prepared on 26.09.2016

before the selection committee as current survey list.

11. As stated by the concerned Sector Supervisor mentioned in the Serial No.

6 of writ petition on 28.02.2017, the survey list for Narda (Vimtikra) was

not prepared on 28.02.2017. It is actually prepared by AWW and

submitted to Lady Supervisor on 26.09.2016. Anjali Nag got married on

20.11.2016, so her name was not entered in the Survey List of 28.02.2017

(Tampering Survey List).

12. During publication of notice, in the village Narda, Smt. Anjali Nag was

present in the village as her signature is available in the Notice Published

Copy with other villagers of Narda which proves that, Anjali Nag was

present and reside in the village-Narda. It is not the mistake of Smt.

Anjali Nag not to enter her name in the survey list. Smt. Purnabasi Bhoi is

working to the satisfaction of her superiors since the date of her joining

i.e. 02.12.2014 as A.W.W.

13. As per Government guideline vide order No.145/SWCD 02.05.2007 the

candidate who fulfill all the criteria and secured highest mark among the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 applicants has been selected for the post of AWW. As Anjali Nag fulfills

all the criteria and secured highest mark among all the candidates. So, the

order issued by ADM, Subarnapur on 17.12.2022 is correct.

14. As an appeal case filed by Anjali Nag was dismissed on 05.04.2022

indicting the reasons that as her name is not in the survey list, she filed

Writ Petition based on proper documents (Annexure-2). The Appeal case

was filed by Anjali Nag during the year 2017 to avoid tempering in the

Anganwadi Worker to write the survey register in pen after verifying the

marriage card.

III. COURT'S REASONING AND ANALYSIS:

15. As per the statement of Anganwadi Worker Narda HP Smt. Anjali Nag

got married to Sri Pullasti Mallik of village Narda on 20.11.2016. After

verifying their marriage card Smt. Pramodini Mahanad Anganwadi

Worker Narda HP Mini AWC entered the name of Anjali Nag in the

Family Survey register on 22.11.2016.

16. The appellate court disposed of the on the ground that Anjali Nag resides

with her family members at village Narda. So, Anjali Nag is the rightful

claimant of the post of Anganwadi Worker of said Narda (Vimtikra)

AWC. Apparently, Smt. Anjali Nag got married with Pulasti Mallik of

village Narda on 20.11.2016. She got residence certificate from Tahasildar

and her name also include in Voter list of village Narda.

17. As stated by Anganwadi Worker, Narda HP Mini AWC, Sector

Supervisor and Family Survey Register, Anjali Nag got married on

20.11.2016 just before 3 and half months of the issuance of notification Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR

Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 dated 01.03.2017 which proves that, she belongs to the notified area

during the notification. The then CDPO, Tarbha produced the survey list

prepared on 26.09.2016 before the selection committee as current survey

list.

18. As stated by the concerned Sector Supervisor mentioned in the Serial

No.6 of the Writ Petition, the survey list for Narda (Vimtikra) was not

prepared on 28.02.2017. It is actually prepared by AWW and submitted to

Lady Supervisor on 26.09.2016. Anjali Nag got married on 20.11.2016. So,

her name was not entered in the Survey List of 28.02.2017 (Tampering

Survey List).

19. Moreover, as per Government guideline vide order No.145/SWCD dated

02.05.2007, the candidate who fulfilled all the criteria and secured highest

mark among the applicants has been selected for the post of AWW. As