Ambalika Sarkar vs State Of Odisha & Ors
2023 Latest Caselaw 15001 Ori

                                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) Nos.25223, 25225, 25226, 25227 and 25229 of 2022
                          (In the matter of an application under Articles 226 and 227 of the
                          Constitution of India, 1950)

                          Ambalika Sarkar                              ....                     Petitioner(s)
                          (in W.P.(C) No.25223 of 2022)
                          Rashmita Swain
                          (in W.P.(C) No.25225 of 2022)
                          Hansi Rani Haldar
                          (In W.P.(C) No.25226 of 2022)
                          Pramila Ray
                          (in W.P.(C) No.25227 of 2022)
                          Rinku Paik
                          (in W.P.(C) No.25229 of 2022)
                                                                  -versus-
                          State of Odisha & Ors.                        ....               Opposite Party(s)

                          Advocates appeared in this case through Hybrid Arrangement Mode:

                          For Petitioner(s)                  :               Mr. Chittaranjan Pattnaik, Adv.

                          For Opposite Party(s)              :                Mr. Ch. Satyajit Mishra, AGA



                                                CORAM:
                                                DR. JUSTICE S.K. PANIGRAHI

                                                   DATE OF HEARING:-11.09.2023
                                                  DATE OF JUDGMENT: -20.11.2023
                      Dr. S.K. Panigrahi, J.

1. Since common question of facts and law are involved in all these Writ

Petitions, the same were heard together and are being disposed of by this

common judgment. However, this Court felt it apposite to treat the W.P.(C)

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 No.25223 of 2022 as the leading case for proper adjudication of all these

Writ Petitions.

2. The Petitioners through these Writ Petitions have challenged the legality

and propriety of order dated 03.07.2018 passed in RMC (AWW) case No.1 of

2018 by the Collector, Nabarangpur, rejecting their applications for

appointment to the post of Supervisor on contractual basis in terms of

Government circular dated 04.10.2008 from out of the vacancies arose in the

Nabrangpur District, on the ground that the same is illegal, malafide and

unconstitutional in the eyes of law, for which the impugned order dated

03.07.2018 is liable to be quashed in limini.

I. FACTUAL MATRIX OF THE CASE:

3. The factual matrix of the Writ Petition (W.P.(C) No.25223 of 2022) is that,

the Petitioner having acquired graduate qualification was appointed as an

Anganawadi worker under ICDS Project Nabarangpur, dated 10.12.2007.

4. While matter stood thus, the commissioner-cum-secretary women and child

development department Odisha Bhubaneswar, here in after referred to as

opposite party.1, issued a notification dated 17.3.2017 inviting applications

through online from the candidates for engagement of Angadwadi

supervisor under the ICDS project Nabarangpur fixing the last date of

receiving application dated 8.2.2017.

5. The petitioner and others being qualified candidates having BA

qualification, as per the above letter dated 4.10.2008 and subsequent

clarifications dated 2.2.2009, 9.2.2009, 29.7.2009 and 22.8.2009, letters issued

by the Additional secretary to govt. Women and child development

Bhubaneswar, are entitled for appointment to the post of Angandwadi 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 supervisor against the vacancies but as no such was given, made an

application before the District welfare officer (Jilla Samaja Managala

Adhikarini) requesting him to consider their grievance and promote them in

the said post. Thereafter they had also made another representation before

the authority on 7.4.2018 reiterating the same prayer but unfortunately no

heed was taken on their representations.

6. Inspite of their representation as no action was taken, they filed an original

application before the Odisha administrative tribunal BBSR in OA No- 581

of 2018 and the learned court after going through their application by order

dated 3.4.2018 was pleased to dispose of the case directing the respondent

to consider their representations appended to the OA under annexure 3 to 6,

within a period of one month from the date of receipt of a copy of this order

and convey the result there of to the applicants immediately.

7. The petitioner having possessed graduate qualification has been continuing

in the center since long. Since she has already completed more than 5 years

continuous service in that center is eligible for promotion to the post of

supervisor in terms of the govt. resolution dated 4.10.2008 and subsequent

clarification letters dated 2.2.2009, 9.2.2009, 29.7.2009 and 22.8.2009, letters

issued by the Additional secretary to govt. Women and child development

Bhubaneswar, which speaks of filling up of the posts of supervisors through

direct recruitment on contractual basis. In that resolution it has been

categorically mentioned that graduate Angadwadi workers who have

rendered minimum 5 years service as Angadwadi worker could be eligible

for appointment as a supervisor against the vacancy to be filled up through

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 direct recruitment. Hence graduate Angadwadi worker service should be

asked to give option for some appointment.

8. Accordingly to that order, the petitioner had given her option for

appointment of Angadwadi supervisor under the ICDC project

Nabarangpur district. On basis of the subsequent clarification letters, eleven

Anganawadi workers have been given promotion to the post of Supervisor

known as ICDS Supervisors where as the petitioner and some others, who

were standing on same footing were deprived from such appointment.

9. In compliance to the order of the learned tribunal the petitioner along with

others filed requisites for communication of orders to the respondents.

Thereafter, the collector of Nabarangpur after receiving that order instituted

a case vide RMC(AWW) case no. 1/2018 and issued notice to all the

applicants instructing them to present in the office on a scheduled date for

hearing their grievances.

10. Pursuant to that letter the present petititoner and others present in office on

the date fixed and put forth their grievance with regard to appointment of

Angadwadi Supervisors in Nabarangpur District. The Collector after

hearing their case by order dated-3.7.2018 was pleased to reject their

grievance on the ground that the commission-cum secretary to govt.

Women and child development department vide letter no.20999 dated

22.12.2014 has banned the appointment of Angadwadi supervisor in the

districts for which the appointment of supervisor on contractual basis in

terms of govt. circular dated-4.10.2008 from out of vacancies arose in a

Nabarangpur district is not tenable in the eyes of law. Hence, the prayers of

the applicants were turned down.

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

11. By virtue of office order dated 29.10.2009 and subsequent order dt- 9.9.2010,

the Collector Nabarangpur, have engaged seventeen graduate Angadwadi

workers, who have completed five years of service as Angadwadi workers,

as ICDS supervisors on contractual basis at a consolidated remuneration of

Rs 4570/- per month against the post of supervisors created vide office order

no. 9263 dated 04.04.2008 and 20891 dated 25.10.2008 of govt.

12. In woman and Child Development department, but the petitioner who is a

graduate Angadwadi worker and served more than 15 years of service as

Angadwadi worker in the said District, has been deprived of such selection.

Even this fact was brought to the notice of the Collector but the same was

not considered and rejected for which the aforesaid order dated 03.07.2018

is liable to be quashed in limini.

II. SUBMISSIONS OF OPPOSITE PARTY NO.2:

13. Per contra, learned Senior Standing Counsel for the Opp. Parties intently

made the following submissions:

14. The writ application filed by the petitioner is not maintainable in law and is

liable to be dismissed in limini. The petitioner has assailed the order of

Collector, Nabarangpur dated 03.07.2018 approaching this Court only on

24.09.2022 without explaining the inordinate delay in approaching this

Court. As such the Writ Petition is liable to be dismissed on the ground of

delay and latches.

15. It is true that the petitioner Smt. Ambalika Sarkar is continuing as an

Anganwadi Worker under the ICDS Project of Nabarangpur district who

preferred a Writ Petition challenging the legality of the order dated

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 03.07.2018 passed in RMC (AWW) Case No.1 of 2018 by the Collector,

Nabarangpur.

16. The petitioner herself admits of her engagement as Anganwadi Helper

under ICDS Project Nawarangpur w.e.f. 10.12.2007. As per the instruction

issued by the Commissioner- cum-secretary Women and Child

Development Department, Odisha, Bhubaneswar the Opposite Party No.1

issued notification on dated 17.03.2017 inviting applications through on line

mode from the candidates for engagement of Anganwadi Supervisor under

the ICDS Project fixing last date of receiving application dated 08.02.2017.

17. As per vacancy, 11 numbers of eligible Graduate Anganwdi Workers were

promoted to the post of Supervisor vide Order No.8033 dated 29.10.2009.

Further, based on the instructions communicated by the W & CD

Department, Odisha, Bhubaneswar vide Letter No.20999 dated 22.12.2014,

the promotion to the post of Supervisor is banned, for which the grievance

submitted by the petition could not be considered.

18. It is a fact that the petitioner along with others filed requisites before the

Collector, Nabarangpur for consideration of their case. Accordingly,

Collector, Nabarangpur instituted a case vide RMC (AWW) Case No.1/2018

and issued notice to all the applicants instructing them to present in the

office on a scheduled date for hearing. After hearing the applicants, the

Collector, Nabarangpur relying upon the instructions communicated vide

letter No.20999 dated 22.12.2014 of Commissioner-cum-Secretary to

Government, W & CD Department, wherein it has instructed that the

engagement of contractual Supervisors as per instructions issued vide

Letter No.532 dated 04.10.2018 and 230 dated 29.07.2009 has been banned by 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 the Government with effect from the date of issue of the aforesaid letter

dated 22.12.2014 rejected the application of the petitioner and others. Thus,

order passed by the Learned OAT, Bhubaneswar in OA No.581/2018 was

complied.

19. As per the instructions issued vide No.20999 dated 22.12.2014 of

Commissioner-cum- Secretary to Government, W. & C.D. Department,

Collector, Nabarangpur rightly rejected the application of the Petitioners. It

may be worth mentioning here that the decision of the Govt. dated

22.12.2014 has not been disputed by the petitioner.

20. In view of the above facts and circumstances, the Writ Petition, filed by Smt.

Ambalika Sarkar against the Opp. Parties is fictitious and devoid of merit as

well as liable to be rejected by this Court.

III. COURT'S REASONING AND ANALYSIS:

21. It is not disputed that the Petitioner after not getting promotion filed an

application before the learned Odisha Administrative Tribunal,

Bhubaneswar vide OA No.581 of 2018 and the learned Tribunal after going

through her application, by order dated 03.04.2018 disposed of the case

directing the Opp. party to consider her representation appended to the OA

under Annexure 3 to 6 within a period of one month from the date of

receipt of a copy of this order and convey the result there of to the petitioner

immediately. Accordingly, the orders of the Learned Odisha Administrative

Tribunal in OA No.581/2018 has been complied on 03.07.2018 which is

impugned in the present writ petition. The decision of the authority is quite

exhaustive and self explanatory. Knowing it very well that the process of

selection to the post of Anganwadi Supervisor in terms of the Govt. 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 guidelines of 2008 has been banned since 2014 as per decision of Govt.

under Annexure A/2, the petitioner has miserably failed to dispute the said

ban order and there is no prayer of the petitioner to interfere with such

decision of the Govt.

22. Moreover, the Selection Committee have selected 11 nos of eligible

Graduate Anganwadi Workers who have completed five years of service as

Anganwadi Worker after acquiring the graduation qualification certificate

and promoted them to the post of ICDS Supervisor vide Order No.8033

dated 29.10.2009

23. The petitioner's name does figure in the eligible list for not having the

minimum eligibility, for which she has not promoted to the post of

Supervisor. The Opp. Party No.1 has issued the guideline vide letter no.532

dated 04.04.2008 indicating that only Graduate Anganwadi Workers who

have rendered minimum five years of service as Anganwadi Worker could

be eligible for appointment to the post of Supervisor against the vacancy to

be filled up through direct recruitment. However, since the appointment is

on contractual basis and could be terminated any time all Graduate AWW

with five years' service should be asked to give option for such

appointment. On the basis of their seniority, the AWWS should be

considered and appointed.

24. It has been further clarified vide letter No.2836 dated 09.02.2009 of W.&

C.D. Department that five years experience after passing Degree

examination should be taken into consideration. In other words, from the

date of Graduation the seniority of Anganwadi Workers should be counted

for appointment as Supervisor on contract basis. In case there are more 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 candidates for less vacancies, the percentage of marks secured at graduation

level should be counted. In case two or more candidates secure the same

percentage of marks, their date of birth will be taken into consideration to

decide the seniority. It means the candidate born earlier will take

precedence over the candidate born later.

25. With respect to the aforesaid discussion, this Court is not inclined to

entertain the prayer of the Petitioner. W.P.(C) No.25223 of 2022 is, therefore,

dismissed.

26. Accordingly, all these Writ Petitions are dismissed. No order as to cost.

(Dr. S.K. Panigrahi) Judge

Orissa High Court, Cuttack, Dated the 20th Nov., 2023/

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