Orissa High Court
Tikina Mallick vs State Of Odisha And Others ...... Opp. ... on 28 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 705 of 2024
An application under Articles 226 and 227 of the Constitution of
India.
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Tikina Mallick ...... Petitioner
-Versus-
State of Odisha and Others ...... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : Mr. B. Rout, Advocate
For Opp. Parties : Mr. S.N. Patnaik,
[Addl. Government Advocate]
M/s. M. Mohanty, P.S. Nayak
& R. Behera, Advocates
(for O.P. No. 6)
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
28.01.2025
SASHIKANTA MISHRA, J.
An advertisement was issued by the CDPO, Pipili
on 30.03.2012 inviting applications from intending
candidates for their engagement as Anganwadi Workers in
respect of 23 Anganwadi Centers. Of them, Nijigarh
Khurkhi-1 was one such center. The petitioner and the
opposite party No.6 were the only applicants. In the
selection process, the opposite party No.6 was found to
have secured the highest marks but on scrutiny, she was
disqualified as she was not a resident of the service area
of the center in question. As such, the petitioner was
selected for engagement.
2. Despite such selection, no engagement order was
issued in favour of the petitioner for which she preferred
appeal before the ADM, Puri, which was registered as
Anganwadi Appeal No.12 of 2014. She also obtained
information under the R.T.I. Act to the effect that the
Selection Committee had decided to cancel the
advertisement on the ground that the same was faulty and
decided to go for fresh selection process.
3. Initially, the petitioner had not impleaded
opposite party No.6 as a party in the appeal but on
application being filed for intervention by the opposite
party No.6, she was impleaded as a respondent. In course
of hearing, the ADM directed the Tahasildar and CDPO to
inquire with regard to the residence of both the
candidates. It was found that both of them belong to the
service area of the Anganwadi Center. Taking note of the
above, the ADM held that rejection of the candidature of
the intervenor (opposite party No.6) is not acceptable and
therefore set aside the engagement of the petitioner. The
Selection Committee was further directed to take up
selection afresh. The order passed by the ADM on
25.10.2023 in the aforementioned appeal is impugned in
the present writ application.
4. The State-authorities have filed counter, inter
alia, stating that though the petitioner was selected as
Anganwadi Worker, complaints were raised by the
villagers of the concerned village before the CDPO, Pipili
alleging that there were some faulty addresses of villages
of Nijigarh Khurkhi-1 Center in the advertisement. As
such, the selection of the petitioner was kept in abeyance
till a decision by the Selection Committee. The next
Selection Committee presided over by the Sub-Collector,
Puri was convened on 06.04.2013 wherein it was decided
to issue fresh notification for the center in question in
view of allegations made by the villagers regarding
mistakes in the advertisement dated 30.03.2012. It is
further stated that the ADM being the Appellate Authority,
after hearing the parties rightly set aside the selection of
the petitioner and directed for undertaking fresh selection
process. It is also stated that as per inquiry, it was
revealed that the petitioner has already married and her
name was deleted in the Survey list of the center, while
the opposite party No.6 was found to be a resident of the
service area of the center.
5. Counter affidavit has also been filed by opposite
party No.6 stating that the Block Level Advisory
Committee in its meeting dated 19.10.2009 formulated
and approved additional Anganwadi Center, namely,
Nijigarh Khurkhi-2 Anganwadi Center for which
advertisement was issued on 25.08.2015. The service area
of the said center is Dhala Sahi, Nata Sahi and Patra
Sahi. Four candidates had applied including the opposite
party No.6. She secured the highest marks and was
selected as Anganwadi Worker and engaged vide order
dated 31.10.2015. In order to remove the confusion and
anomalies the Selection Committee conducted fresh
household survey and service area of both the centers.
The petitioner is working as an 'Aaya' in Aditya Birla
Public School since 01.04.2017 and further that she has
married in the meantime for which her name has been
deleted from the survey list of Nijigarh Khurkhi-1
Anganwadi Center.
6. Heard Mr. Brundaban Rout, learned counsel for
the petitioner, Mr. S. Behera, learned Addl. Government
Advocate for the State and Mr. Maitrijit Mohanty, learned
counsel for the opposite party No. 6.
7. Assailing the impugned order, Mr. Rout would
argue that having once found the petitioner to be most
suitable candidate and selected her for engagement as
Anganwadi Worker, it is no longer open to the Selection
Committee to cancel the advertisement and decide to go
for fresh selection process. As per the advertisement dated
30.03.2012, it was clearly mentioned that no objection or
grievance would be considered after 26.04.2012 regarding
residence, education, qualification, caste etc. Therefore,
the Selection Committee had no authority to take any
further decision with regard to selection of Anganwadi
Worker of the center in question after selecting the
petitioner as the Anganwadi Worker. The opposite party
No.6 was appointed as Anganwadi Worker of Nijigarh
Khurkhi-2 center, which is also wrong. In any case, as per
the report of the Tahasildar, the opposite party No. 6 did
not belong to the service area of Nijigarh Khurkhi-1 center
and therefore, was disqualified in the selection process.
8. Mr. Behera, learned State Counsel would argue
that some objections were received by the villagers
regarding mistake in the service area determination for
which the Selection Committee decided to cancel the
advertisement and to go for fresh selection. The ADM
therefore, rightly upheld such decision.
9. Mr. M. Mohanty, appearing for opp. Party No.6
would argue that in the joint inquiry report submitted by
the Tahasildar and the CDPO, it was proved that both the
petitioner and opposite party No.6 belong to the service
area of Nijigarh Khurkhi-1 Center. Since opposite party
No.6 admittedly secured more marks than the petitioner,
she should have been selected. The ADM has therefore
rightly set aside the engagement of the petitioner.
10. This Court has carefully considered the rival
contentions noted above. Admittedly, pursuant to the
advertisement dated 30.03.2012, there were only two
candidates, namely, the petitioner and opposite party No.
6 in respect of Nijigarh Khurkhi-1 Anganwadi Center. It is
also not disputed that the opposite party No. 6 secured
the highest marks but then the Selection Committee in its
meeting held on 24.01.2013, relying upon letter dated
07.01.2013 of the Tahasildar, Pipili found that the
opposite party No.6 was not a resident of the service area
of the center in question. As such, the petitioner was
appointed. Surprisingly, on 06.04.2013, the Selection
Committee met again and in so far as the center in
question is concerned, it was simply said that as
allegations have been received regarding error in the
advertisement, it was decided to go for fresh
advertisement.
Perusal of the minutes of the meeting held on
06.04.2013 of the Selection Committee does not reveal
any other reason nor does it specify as to who had
submitted allegations and what the so called error in the
advertisement was.
11. Be that as it may, the question that falls for
consideration is, whether it was open to go for fresh
selection after concluding the selection process pursuant
to the advertisement. In this regard it would be apposite
to refer to the guidelines issued by the Government in
W & CD Department on 02.05.2007. Among other things
the guidelines prescribe the procedure to be followed in
the selection of Anganwadi Worker, which is quoted herein
below:-
Procedure
a) In case of engaging Anganwadi Worker for
casual vacancies or for new Anganwadi
Centers, notification regarding the
Anganwadi Center where the Anganwadi
Worker is going to be engaged will be put up
simultaneously in the village, in the
concerned Gram Panchayat, the Panchayat
Samiti and the CDPO's Office.
b) 15 days time will be given to the candidates
to apply to the CDPO along with the
documents in support of nativity,
educational qualification, caste and any
other. The receipt of the application shall be
acknowledged by the CDPO.
c) On the 16th day the CDPO will verify the
documents of the applicants in their
presence and will notify the name of the
applicants in her office notice board and at
the village GP and Panchayat Samiti level.
In case 16th day is a holiday then
verification and notification of applicants
will be done on the next working day.
d) 7 days time will be given for filing of
objection, if any, by the community on the
issue of nativity, educational qualification
and caste certificate.
e) The selection committee may take 7 days
time to verify the objections received.
f) After the enquiry into the objection and
verification of documents, the Selection
Committee will give points to all the eligible
candidates as per the criteria spelt out in
the guideline The Committee will finally
select the candidate who secures the
maximum points. In case two or more
candidates secure same points preference
will be given to the older candidate. The
Committee will notify the candidate select
on the same day in Panchayat SamitI and
CDPO's office and within 48 hours at the GP
and village level CDPO is authorized to
issue engagement order in favour of the
candidate selected and this should be
issued within 24 hours of the selection of
the candidate.
g) [deleted]
h) Sub-Collector will be the Chairman of the
Selection Committee for the selection of
Anganwadi Workers both for rural/tribal
and urban projects in place of Chairperson
Vice-Chairperson of the Panchayat Samity
Municipality in case of rural/tribal projects
and urban projects respectively.
i) ADM will be the appellate authority for
hearing complaints regarding selection of
Anganwadi Workers for tribal and rural
projects and urban projects.
j) The Zilla-Parishad will be informed through
its Secretary and P.D. DRDA by the DSWO
about selection of the Anganwadi Worker
and her engagement as such."
12. Reference to the advertisement, copy of which is
enclosed as Annexure-1 of the writ petition, would reveal
that the last date fixed for receipt of application was
16.04.2012. The date fixed for production of original
documents by the candidates for scrutiny was
18.04.2012. It was specifically mentioned that if any
person had any objection with regard to residence,
education, caste etc. of a candidate then the same was to
be submitted before the CDPO by 26.04.2012. This is
entirely in consonance with the procedure provided in the
guidelines quoted herein above. The Selection Committee
is required to verify the objections received within seven
days and thereafter finally select the candidate. It is also
provided that the engagement order is to be issued within
24 hours of such selection. In the instant case, the
Selection Committee however, considered the matter on
24.01.2013 and as already stated decided to select the
petitioner. Again three months later, i.e., on 06.04.2013,
the Selection Committee convened a meeting and reversed
its own decision. This Court is unable to comprehend as
to on what authority did the Selection Committee do so.
As already stated, the procedure laid down in the
guidelines is clear and unambiguous. Therefore, once the
Selection Committee has completed the selection process
by selecting a candidate, it obviously becomes functus
officio as only the CDPO is authorized to issue
engagement order in favour of the selected candidate. Of
course, if there is any complaint regarding selection of
Anganwadi Workers an appeal lies to the ADM but the
guidelines do not confer any power or authority
whatsoever on the Selection Committee to reopen or
reverse its own decision after conclusion of the selection
process.
13. Another significant point that strikes to the mind
is the fact that the opposite party No.6 had never
challenged the selection of the petitioner as Anganwadi
Worker. She was only permitted to intervene in the appeal
filed by the petitioner. The above vital aspect as also the
competence of the Selection Committee to set aside the
engagement of the petitioner has not been considered at
all by the ADM. It is reiterated that the Selection
Committee could not have decided to go for fresh selection
after conclusion of the selection process initiated
pursuant to the advertisement. This amounts to
arrogating to itself a power not conferred by law and must
therefore, be held to be unsustainable.
14. Assuming for a moment that there was some
mistake/error regarding the composition of the service
area, which came to light after completion of the selection
process, the proper course for the CDPO concerned would
have been to refer the matter to the higher authorities like
the Collector or even the Government seeking clarification
and instructions. Even otherwise, till the last date of
hearing, it was not brought to the notice of the Court as to
who had submitted objections/allegations regarding the
service area and what were the particulars thereof.
Significantly, the resolution dated 06.04.2013 also does
not spell out as to what the objection/allegation was. It is
trite that the original order not having spelt out the
reason, it is not open to the concerned party to improve
upon the same in its counter filed before the Court.
15. Thus, from a conspectus of the analysis of facts
and law involved in the case, this Court is left with no
doubt that the action of the Selection Committee in
deciding to go for fresh selection is entirely without
jurisdiction. The impugned order passed by the ADM in
confirming the decision of the Selection Committee is
consequently held unsustainable in law.
16. In the result, the writ petition is allowed. The
impugned order passed by the ADM is hereby set aside.
The CDPO, Pipili (opposite party No.5) is directed to issue
order of engagement in favour of the petitioner without
any further delay and in any case, not later than one
month from the date of production of certified copy of this
order by the petitioner.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 28th January , 2025/ B.C. Tudu
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 29-Jan-2025 10:49:26
