Orissa High Court
Bina Patel vs Adm -Cum- Appellate Authority on 18 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11631 of 2011
Application under Articles 226 & 227 of Constitution of India.
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Bina Patel ...... Petitioner
- Versus -
ADM -cum- Appellate Authority
Nuapada & Ors. ....... Opp. Parties
Advocate(s) appeared in this case:-
________________________________________________________
For Petitioner : M/s. Sushanta Kumar Joshi
& R.K. Dash, Advocates
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
M/s. Krushna Ch. Dash, S.N. Mishra,
Advocates.
[ For O.P. No.4]
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
18 November, 2024
SASHIKANTA MISHRA, J. The petitioner was an applicant for
engagement as Anganwadi worker for Colony Pada Anganwadi
Center of Chandopala village of Pendraban Gram Panchayat
under Komna Block in the district of Nuapada. Three
candidates submitted their candidatures, out of whom, one
namely, Pramila Tand was declared as failed. In so far as the
petitioner is concerned, she secured 48.33% of mark while the
private opposite party No.4 secured 54.66 %. From the
comparative statement prepared by the selection committee it
appears that in the remarks column it was mentioned that the
petitioner belongs to the Anganwadi Center, i.e. Chandopala
whereas the private opposite party No.4 is 'Out of Anganwadi
Center area'. Accordingly, the petitioner was selected and
engaged as Anganwadi Worker as per select list issued on
19.04.2010. The opposite party No.4 being aggrieved, filed an
appeal before the Addl. District Magistrate being Misc. Appeal
No. 18 of 2010. From the copy of the appeal memo, enclosed to
the writ petition it appears that the selection of the petitioner
was challenged on the ground that she does not belong to
Chandopala Anganwadi Center. Moreover, she had secured less
mark than the appellant. Several other grounds were also
taken in the appeal. The appeal was heard in presence of
counsel for both parties and by order dated 21.09.2010, the
ADM allowed the appeal by setting aside the selection process
and engagement of the petitioner with direction to CDPO,
Komna to issue engagement order in favour of private opposite
party No.4. Being aggrieved, the petitioner has approached this
Court with the following prayer.
"It is therefore prayed that this Hon'ble Court
may graciously be pleased to admit this writ
application, call for records from Opposite party
no.1 and after perusing the same set-
aside/quash the impugned order dated
21.09.2010 passed by the Opposite party no.1
and issue a writ of mandamus directing the C,
D. P. O., Komna i, e, Opp. party no. 3 to appoint
the petitioner as Anganwadi worker in respect
of Colonypada Anganwadi center in
Chandapala village.
And pass any other order/orders,
direction/directions as this Hon'ble Court may
deem just and proper;
And for this act of kindness, the
petitioner shall as in duty bound ever pray."
2. Counter affidavit has been filed by the State opposite
party (opposite party Nos. 1 to 3) inter alia, stating that the
petitioner does not belong to the service area of the concerned
AWC as well as Komna Block. It is further alleged that the
petitioner had also applied for Badmaheswar Anganwadi Center
under Khariar Block. Being directed by ADM Nuapada, the
records of the proceeding were produced including the
documents relating to the place of residence. Considering the
same as well as the fact that the petitioner had secured less
mark than the opposite party No.4, the appeal was allowed.
Further affidavit has been filed by the State opposite parties,
inter alia, stating that after disposal of the appeal, the CDPO,
Komna has issued engagement order in favour of opposite
party No.4 by letter dated 25.01.2011 and she is presently
continuing as Anganwadi Worker in Chandopala Anganwadi
Center since 2011.
3. Heard Mr. S.K. Joshi, learned counsel for the
petitioner; Mr. S.N. Pattnaik, learned Addl. Government
Advocate; and Mr. Krushna Ch. Dash, learned counsel for opposite
party No.4
4. Mr. Joshi, referring to the impugned order would
submit that the ADM has not taken into consideration the
residence certificate produced by the petitioner along with her
application. Further, the selection committee clearly found that
the private opposite party No.4 is not a resident of the service
area in question. Merely because the lady supervisor had not
signed on each page of the survey report, the ADM disbelieved
the same and allowed the appeal by setting aside the
engagement of the petitioner.
5. Mr. Pattnaik, learned State Counsel submits that as
per records available, the petitioner is not a resident of village
Chandopala, rather she is a resident of village Badmaheswar
under Khariar Block. The selection committee had committed
an error in holding that the opposite party No.4 is not a
resident of the service area in question. According to Mr.
Pattnaik therefore, the impugned order does not warrant any
interference.
6. Perusal of the comparative statement prepared by
the selection committee, copy of which has been enclosed as
Annexure-4, would reveal that there is a clear endorsement
that the petitioner is a resident of the Anganwadi Center,
Chandopala, whereas the opposite party No.4 is stated to be
out of Anganwadi Center, Chandopala. On such basis, the
petitioner was selected. On appeal being preferred by opposite
party No.4, the selection of the petitioner was set aside. Perusal
of the impugned order reveals that the ADM perused the survey
report prepared by the lady supervisor but merely because the
same was not signed on each page but only the last page, it
was disbelieved. Moreover, the ADM found that the same was
prepared after issuance of notification for filling up the post of
Anganwadi Worker and 27 days prior to such selection. The
ADM thereafter, compared the marks secured by both
candidates and finding the opposite party No.4 to have secured
more marks than the petitioner, was persuaded to allow the
appeal. The ADM however, does not appear to have taken into
consideration the resident certificate produced by the petitioner
at the time of submission of the application. Moreover, the
endorsement made by the selection committee in the
comparative statement prepared by it has also not been
considered.
7. It has been stated and argued on behalf of the State
that the petitioner is a resident of Badmaheswar. However, the
ADM does not say so in the impugned order. Ordinarily, the
opposite party No.4 having secured more marks than the
petitioner, ought to be selected but then if she is not a resident
of the service area, then obviously she cannot be said to have a
better claim than the petitioner. These aspects have not been
considered in detail by the ADM, who, not finding the survey
report to be properly maintained, went on to set aside the
engagement of the petitioner. As such, the basic question as to
whether the petitioner actually belongs to the service area or
not has not been properly adjudicated.
8. This takes the Court to the question as to what relief
can be granted in the present case. As already brought to the
notice of this Court, the opposite party No.4 having been
selected on the basis of the impugned order is said to be
continuing as Anganwadi Worker since 2011. This Court is
fully conscious of the fact that the matter relates to the year
2010. But then if the petitioner, who was the originally selected
candidate, was wrongly held to be a resident of some other
area, then the impugned order would become vulnerable. The
orders appears to be cryptic and not specially deciding the
matter in issue.
9. For all the reasons therefore, this Court feels that
ends of justice would be best served if the matter is remitted to
the ADM, Nuapada for hearing the appeal afresh and by
specifically making endeavor to determine as to if the petitioner
is a resident of the service area in question. The ADM shall
grant opportunity of hearing to all necessary parties and pass
necessary orders within one month from the date of production
of certified copy of this order. The engagement of opposite party
No.4 shall abide by the final order to be passed in the appeal.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 18th November, 2024/ A.K. Rana, P.A.
Designation: PERSONAL ASSISTANT
Date: 21-Nov-2024 18:05:30
