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2024 DAILYLAW 1485 (ORI)

Swornalata Sarangi v. State of Odisha

2024-11-30

Sashikanta Mishra

body2024
JUDGMENT : SASHIKANTA MISHRA, J. The Petitioner has filed this Writ Petition seeking to challenge the order dated 19.12.2023 passed by the Addl. District Magistrate, Kendrapara, in Anganwadi Appeal No.2/2020 whereby, her appointment as Anganwadi Worker of Danpur Anganwadi Centre was set aside. 2 . The brief facts of the case are that the Petitioner was initially appointed as Anganwadi Helper in Danpur Anganwadi Centre of Danpur Gram Panchayat under Derabis Block in the district of Kendrapara as per order dated 7.5.2001 of the C.D.P.O, Derabis. One Gitanjali Jena was also appointed as an Anganwadi Worker of the said Centre. Because of sudden death of said Gitanjali Jena on 26.8.2016 in a road accident, the post of Anganwadi Worker fell vacant. Under such circumstances the Petitioner, being the Anganwadi Helper of the Centre and possessing the requisite qualification was appointed as Anganwadi Worker against the vacancy as per order dated 21.3.2018. While she was working as such, the private opp.party Nos.4 and 5 filed an appeal before the A.D.M., being Anganwadi Appeal No.2/2020 challenging the appointment of the Petitioner in the said Anganwadi Centre. The A.D.M., after hearing all concerned, by the order impugned set aside the appointment of the Petitioner on the ground that the vacancy had not been notified and therefore, the engagement of the Petitioner was in violation of the Government Guidelines. 3 . Being aggrieved, the Petitioner has filed this writ petition with the following prayer: “The Petitioner therefore, prays that the Hon’ble Court be pleased to admit this Writ Application and after hearing the Petitioner’s Advocate issue a writ in the nature of certiorari or any other suitable writ, set aside the order vide Annexure-5.” 4. Counter affidavit has been filed by the State- opposite parties. It is stated that the vacancy was created following the death of Gitanjali Jena on 28.6.2016 in respect of Danpur Anganwadi Centre consisting of Ward Nos.6 and 7. However, no advertisement was issued to fill up the said vacancy. Further, the Petitioner also does not belong to Ward Nos.6 and 7, which is the service area of said Anganwadi Centre. There is also no provision in the guidelines to give promotion to Anganwadi Helper as Anganwadi Worker. The guidelines only provide that Anganwadi Helpers may be given preference over other candidates while considering their candidatures only after the vacancies advertised. There is also no provision in the guidelines to give promotion to Anganwadi Helper as Anganwadi Worker. The guidelines only provide that Anganwadi Helpers may be given preference over other candidates while considering their candidatures only after the vacancies advertised. It is further stated that since the very ‘promotion’ of the Petitioner was in contravention of guidelines of the year 2007, the A.D.M., being the appellate authority rightly cancelled the same. Moreover, since the petitioner belongs to Ward No.8, which is under the service area of another Anganwadi Centre being Danpur ‘Ka’, could not have been selected as Anganwadi Worker of Danpur Anganwadi Centre. It is further stated that the private Opposite Parties were aspirants for the post of Anganwadi Worker, but as no advertisement was issued they could not apply for which, they filed appeal before the competent authority 5. A counter affidavit has also been jointly filed by the private opposite party Nos. 4 and 5 wherein the undisputed facts have been stated and the engagement of the petitioner as Anganwadi worker is sought to be portrayed as illegal for being in violation of the Government Guidelines. It is stated that Clauses 1 and 2 of the revised guidelines issued by the Government on 2.5.2007 provide that application for selection of Anganwadi workers shall be invited for each Anganwadi Centre wherein, women residing in the said area can only apply. In the instant case, no application was invited for Danpur Anganwadi Centre nor any notice was given for filling up of the post. This was in violation of the Government guidelines. As such the selection of the petitioner is not sustainable in the eye of law. Moreover, the petitioner is not a resident of Danpur Anganwadi Centre area which comprises of Ward Nos.6 and 7 whereas, she is a resident of Ward No.8 where Danpur Ka Anganwadi Centre is functioning. That apart, the age of the petitioner was 45 years as on 1.1.2018, her date of birth being 22. 3. 1973. As such, she was not eligible for being appointed as Anganwadi worker. The private opposite parties through a person were informed under the R.T.I Act that pursuant to the proceeding of the selection committee meeting held on 21.3.2018, the petitioner was appointed by opposite party No.3 as Anganwadi worker which is illegal and contrary to the guideline and letter dated 1.10.2010 issued by the Government. The private opposite parties through a person were informed under the R.T.I Act that pursuant to the proceeding of the selection committee meeting held on 21.3.2018, the petitioner was appointed by opposite party No.3 as Anganwadi worker which is illegal and contrary to the guideline and letter dated 1.10.2010 issued by the Government. In the said letter, it has been clarified by the Government that there is no concept of reengagement or engagement without selection. If any vacancy arises out of death, non-joining, disengagement, resignation etc, fresh selection will be made for concerned Anganwadi Centre. In the resolution, that is, 21.3.2018, it is it is evident that no advertisement was issued and the petitioner was simply selected for appointment without following the procedure. The A.D.M. being the appellate authority therefore, took note of the facts and rightly set aside the illegal appointment of the petitioner. 6. Heard Sri S. K. Nayak, learned counsel for the petitioner, Shri S.N.Patnaik, learned A.G.A. for the State and Mr. N.P.Patra, learned counsel for the private opposite party Nos.4 and 5. 7. Assailing the impugned order Mr. Nayak, would argue that the A.D.M. lost sight of the fact that the private opposite parties being complete strangers had no locus standi to prefer the appeal. Further, the appeal was preferred two years after selection and joining of the petitioner as Anganwadi worker and therefore, should not have been entertained. Mr. Nayak further argues that even otherwise, the petitioner fulfilled the required criteria for selection having the requisite experience of working as Anganwadi helper in the same Anganwadi Centre and also satisfied the age criteria and other qualification requirements. The Anganwadi Centre in which the petitioner was working as a helper having been subsequently bifurcated into another Anganwadi Centre, the requirement that a person to be appointed as Anganwadi worker of a centre has to be a resident of the same centre cannot obviously be strictly applied as a new Anganwadi Centre being created, it will not be possible to follow the said requirement. In such case, an Anganwadi helper of the original Centre has to be as eligible for consideration for the newly created Centre. 8. Sri S.N. Patanaik, learned AGA would argue that admittedly no advertisement was issued to fill up the vacancy created by the death of the Angarwadi worker. In such case, an Anganwadi helper of the original Centre has to be as eligible for consideration for the newly created Centre. 8. Sri S.N. Patanaik, learned AGA would argue that admittedly no advertisement was issued to fill up the vacancy created by the death of the Angarwadi worker. The guidelines read with the clarification issued by the Government on 1.10.2010 clearly mandate that no vacancy can be filled up by promoting a person and that there is no concept of promotion. The Anganwadi helper having the requisite qualification can only be given preference but under no circumstances can an Anganwadi helper be straightaway appointed as Anganwadi worker. 9. Mr. N.P. Patra, learned counsel appearing for the private opposite parties would argue that the Government guidelines read with the clarification issued by the government are mandatory and cannot be ignored or violated under any circumstances. Had the vacancy been notified the private opposite parties and others would have got a chance to apply. This amounts to violation of Article 14 of the Constitution of India and therefore, the A.D.M. rightly set aside the engagement of the petitioner as Anganwadi worker. 10. The facts of the case as narrated above are not disputed inasmuch as the petitioner was initially appointed as Anganwadi helper in Danpur Anganwadi Centre as per order dated 7.5.2001. At the relevant time the centre comprised of Ward Nos.6, 7 and 8 of Danpur Gram Panchayat. One Gitanjali Jena was appointed as Anganwadi worker of the said Centre. She expired on 26.8 2016 in a road accident. A vacancy was thus created.The petitioner was appointed as Anganwadi worker as per order dated 21.3.2018 as she was found eligible and had possessed the requisite qualification. When she had worked for more than two years, her appointment was challenged by the private opposite parties in appeal before the A.D.M. The A.D.M., vide the impugned order set aside her appointment as being in violation of the relevant guidelines and clarification issued by the Government. The first question that falls for consideration by this Court is, whether the appeal itself was maintainable. The first question that falls for consideration by this Court is, whether the appeal itself was maintainable. In this context, it has been argued on behalf of the petitioner that the private opposite parties, who were the appellants before the appellate authority had no locus standi to challenge the selection and engagement of the petitioner inasmuch as they were never applicants and have not proved as to how they were affected prejudicially by the appointment of the Petitioner. It has been further argued that even though no period of limitation is prescribed for filing of appeal, yet the private opp.parties challenged the selection two years after selection and appointment of the Petitioner without explaining the reasons for such delay. Reading of the provisions of the revised guidelines dated 02.5.2007 of the Government in Women and Child Development Department reveals that no period of limitation is prescribed therein for filing of appeal. But then, it is well settled that even if no period of limitation is prescribed, law requires that a challenge has to be made promptly and within a reasonable time. 11. It has been argued on behalf of the private opposite parties that having come to learn about the engagement of the petitioner through another person under the R.T.I. Act, they filed the appeal. From the additional affidavit filed by the Opp.Party Nos.5 and 6, it is seen that the information under R.T.I. Act was sought for by one Ranjit Kumar Samal on 8.8.2018 and the same was supplied on 27.8.2018. What nexus said Ranjit Kumar Samal had with the private Opp.Parties has not been stated. Even so, it does not explain why the appeal was not filed promptly if the information was available in August, 2018. Further, the petitioners claim to be residents of Ward Nos.6 and 7 which originally formed part of the Anganwadi Centre. It is therefore, difficult to believe that they would not have been aware of the engagement of the petitioner as Anganwadi worker of the very same centre earlier and came to know about the same only after receiving information under the R.T.I. Act which, as already stated, is also not very clear. Reference to the settled position of law in this regard would show that even in cases where no period of limitation is prescribed, the parties are expected to act within a reasonable period. Reference to the settled position of law in this regard would show that even in cases where no period of limitation is prescribed, the parties are expected to act within a reasonable period. In the case of Chairman, State Bank of India and another vs M.J. James (2022) 2 SCC 301 , the Supreme Court observed as follows; “35. Further, the dismissal order passed on 18.4.1985 remain unchallenged for more than four years, as the appeal to the Chief General Manager of State Bank of India was filed on 20.9.10989. The respondent, however, relies on Clause 22(x) of the Service Code relating to appeals, which; reads thus: “22 (x) An aggrieved employee in all such cases may appeal to the Board of Directors whose decision shall be final.” Undoubtedly, the service Code does not stipulate anytime period within which the appeal may be preferred to the Board of Directors whose decision is to be final, but it is well settled that no time does not mean any time. The assumption is that the appeal would be filed at the earliest possible opportunity. However, we would hold that the appeal should be filed within a reasonable time. (Emphasis added) 36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non-existent. Doctrine of delay and laches as well as acquiescence are applied to non- suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay. it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.” Thus, it is seen that law requires the litigant to act promptly, diligently and within a reasonable time of the happening of the event, which has caused prejudice to him. In the instant case, the engagement of the petitioner was in 2018 but the private Opp. Parties remained silent. Their plea that they were not aware of the engagement of the Petitioner has already been held to be untenable. So, by the time the appeal was ultimately filed, two years had elapsed. Therefore, the private opposite parties are clearly guilty of delay and latches in challenging the engagement of the petitioner. The A.D.M. has not taken into consideration this aspect at all and has simply entertained the belated appeal even though there was absolutely no explanation for the delay. 12. Another aspect that strikes to the mind is the question of locus standi of the private opposite parties. The private opposite parties, by simply stating that they were also aspirants for the post cannot be allowed to raise an issue on behalf of the entire public, particularly when it is not specifically stated by them that they were eligible for the post. Except for pleading that they were ‘aspirants’ for the post, they have not stated specifically that they were eligible for being considered for the post. So, how they were aggrieved has not been demonstrated in the least. Even assuming for a moment that there was some violation of the Government guidelines, it does not mean that the concerned authorities will take cognizance of any challenge to the impugned action at the instance of anybody at any time. Now, coming to the question of violation of the Government guidelines, it is seen that as per the guidelines read with the clarification of the Government it is true that there is no concept of promotion of an Anganwadi helper as worker of the same Centre. Now, coming to the question of violation of the Government guidelines, it is seen that as per the guidelines read with the clarification of the Government it is true that there is no concept of promotion of an Anganwadi helper as worker of the same Centre. If the guidelines are to be read as a whole it would imply that an Anganwadi helper having experience of five years with the requisite qualification can be given preference in the election. There is some force in the contention that there has to be a selection which presupposes notification. But then, in the instant case, from the proceeding of the meeting held on 21.3.2018 it is seen that the concerned authorities were satisfied that the petitioner had the required experience and the qualification and was thus otherwise suitable for being engaged as Anganwadi worker. So, this is not a case where a person not being eligible was selected or a rank outsider was selected without advertisement. 13. Thus, from a conspectus of the analysis of the facts, the law and the discussion made thereon, it is evident that the A.D.M. has not considered these vital aspects of the matter at all and somewhat mechanically set aside the engagement of the petitioner as being violative of the Government guidelines. The A.D.M. has also not considered the fact that the petitioner has acquired a right having worked for nearly two years as Anganwadi worker and therefore, setting aside her engagement would throw her out of employment all together thereby violating her fundamental right under Article 21 of the Constitution of India. 14. For the foregoing reasons therefore, the Writ Petition is allowed. The impugned order under Annexure-5 is hereby set aside.