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2026 DAILYLAW 27248 (ORI)

Rasmita Pal @ Rashmita v. State of Odisha

2026-01-28

A C Behera

body2026
JUDGMENT : A.C. BEHERA, J. 1. This writ petition under Articles 226 & 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the impugned letter/order dated 01.05.2024 (Annexure-8) issued/passed by the Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore (O.P. No.4). 2 . The factual backgrounds of this writ petition, which prompted the petitioner for filing of the same is that, the petitioner is a married woman and she has completed +2 Arts. As per the guidelines of the scheme for the selection of Accredited Social Health Activists (ASHA), she (petitioner) was properly selected as ASHA for village Nayapatana (Nuapatna) of Kandagaradi G.P. under Iswarpur C.H.C. and allowed to work as ASHA of village Nuapatna by the Selecting Authority since 03.09.2021 and she (petitioner) was rendering her services to the villagers of Nuapatna as ASHA to the satisfaction of all the villagers of Nuapatna without dereliction of her duties. The inhabitants of Nuapatna were fully satisfied upon the services of the petitioner as their ASHA. During continuance of rendering services as ASHA by the petitioner, in a Criminal Case, vide Sahadevkhunta P.S. Case No.56 of 2023 under Sections 452, 326(A), 302, 417, 494, 120-B, 212 r/w 34 of the IPC, 1860 and Section 4(2) of the Poisons Act and Section 3(2)(v) of the SC & ST (POA) Act, 1989, she (petitioner) was arrested on dated 26.06.2023 and remanded to the jail custody. Subsequent thereto, as per the order of this Court passed on dated 24.11.2023 in CRLA No.824 of 2023, she (petitioner) was released on bail. But, when after her release on bail, she (petitioner) worked as ASHA of village Nuapatna as before, the Superintendent-cum-Medical Officer, Iswarpur C.H.C. (O.P. No.4) did not allow her to discharge her duties as ASHA of village Nuapatna on the ground of her detention in jail custody for more than 48 hours in connection with the above Sahadevkhunta P.S. Case No.56 of 2023. On dated 21.12.2023, the O.P. No.5 (A.N.M., Iswarpur C.H.C.) issued notice as per Annexure-1 inviting applications for the selection of a new ASHA for the said village Nuapatna in place of the petitioner. On dated 21.12.2023, the O.P. No.5 (A.N.M., Iswarpur C.H.C.) issued notice as per Annexure-1 inviting applications for the selection of a new ASHA for the said village Nuapatna in place of the petitioner. Then, on dated 08.01.2024, the petitioner as well as the villagers of Nayapatana (Nuapatna) submitted a representation (Annexure-2) before the O.P. No.3 (CDMO, Balasore) requesting him to allow the petitioner for discharging her duties as ASHA of village Nuapatna as before, as she (petitioner) was working as ASHA of their village without any dereliction of her duties and her performances as ASHA was satisfactory to the full satisfaction of the villagers of Nayapatana (Nuapatna). On dated 04.01.2024 as per Annexure-3, the local Sarpanch of Kandagaradi Gram Panchayat requested O.P. No.3 (CDMO, Balasore) to allow the petitioner for her continuance of her duties as ASHA of village Nuapatna as before. Because, the villagers of Nuapatna were fully satisfied upon her services as ASHA. Again on dated 20.01.2024, the petitioner submitted an application before the CDMO, Balasore (O.P. No.3) praying for allowing her to continue her works as ASHA of village Nuapatna. When, the O.P. Nos.3 & 4 did not consider to the aforesaid applications of the petitioner, the villagers of Nuapatna and local Sarpanch, then the petitioner approached this Court by filing a writ petition vide W.P.(C) No.2227 of 2024 against the O.Ps praying for a direction to the O.Ps to allow her to continue her works as ASHA of village Nuapatna under Kandagaradi G.P. in Oupada Block of Balasore District. As per final order dated 07.02.2024 (Annexure-5) passed in W.P.(C) No.2227 of 2024, this Court directed O.P. No.3 (CDMO, Balasore) to consider the representation of the petitioner within a period of three months from the date of production of the certified copy of the said order. In obedience to the aforesaid directions of this Court made in W.P.(C) No.2227 of 2024, the petitioner submitted an application/representation on dated 17.02.2024 (Annexure-6) before the O.P. No.3 (CDMO, Balasore) annexing the certified copy of the above final order dated 07.02.2024 passed by this Court in W.P.(C) No.2227 of 2024 praying for allowing her to continue her works as ASHA of village Nuapatna as before, but the O.P. No.3 remained silent on the said matter. For which, the petitioner again sent her representations on dated 08.04.2024 (Annexure-7 Series) through Registered Post to the O.P. Nos.2 to 4 praying for allowing her to continue her works as ASHA of village Nuapatna under Kandagaradi G.P. After receiving such representations/applications, only O.P. No.4 (Suprintendent-cum-Medical Officer, Iswarpur C.H.C.) responded to the same and rejected the application/representation dated 08.04.2024 of the petitioner as per letter/order No.30 dated 01.05.2024 vide Annexure-8 passing the order as follows:- “You are hereby de-recognized as ASHA of Nayapatna Village under Oupada Block as per letter No.6424/NHM, dated 29-04-2024 of CDM & PHO, Balasore & Ref. letter No.OSH & FWS/7248 dated 10.06.2016 of MD, NHM, BBSR, Odisha on the ground of continuous detention in judicial custody exceeding 48 hours for any ground whatsoever with immediate effect.” For which, without getting any way, the petitioner challenged the said impugned letter/order No.30 dated 01.05.2024 (Annexure-8) in respect of the de-recognition to the petitioner as ASHA of village Nuapatna issued/passed by the O.P. No.4 (Suprintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) by filing this writ petition under Articles 226 & 227 of the Constitution of India, 1950 praying for quashing/setting aside the aforesaid impugned letter/order vide Annexure-8 issued/passed by the O.P. No.4 (Suprintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) and to direct the O.Ps to allow her (petitioner) to continue her works as ASHA of Village Nuapatna under Kandagaradi G.P. along with other reliefs, to which, she (petitioner) is entitled for. 3 . I have already heard from the learned counsel for the petitioner and learned ASC for the State. 4 . As per the Guidelines in the Scheme of ASHA “the Government of India decided to launch a National Rural Health Mission (NRHM) to address the health needs of rural population, especially the vulnerable sections of Society. As per such scheme, the Govt. of India had taken decision to create a new band of community based functionaries, named as Accredited Social Health Activist (ASHA) in order to fill the void for rural residents. The object of creation of ASHA in rural villages is that, ASHA will be the first port of call for any health related demands of deprived sections of the population, especially women and children, who find it difficult to access health services. The object of creation of ASHA in rural villages is that, ASHA will be the first port of call for any health related demands of deprived sections of the population, especially women and children, who find it difficult to access health services. The roles and responsibilities of ASHA are that ASHA will be a health activist in the community, who will create awareness on health and its social determinants and mobilize the community towards local health planning and increased utilization and accountability of the existing health services. She would be a promoter of good health practices. She will also provide a minimum package of curative care as appropriate and feasible for that level and make timely referrals along with other roles and responsibilities as per the guidelines of such ASHA Scheme of the Government of India on the basis of the decision of NRHM. The selection of ASHAs would have to be done carefully. The District Health Society envisaged under NRHM would oversee the selection process of ASHAs. The Society would designate a District Nodal Officer, preferably a senior health person, who is able to ensure that, the Health Department is fully involved. S/he would also act as a link with the NGOs and with other departments. The Society would designate Block Nodal Officers, preferably Block Medical Officers, to facilitate the selection process of ASHA, organizing training for Trainers and ASHA as per the guidelines of the scheme. As per such scheme, after some paraphernalia, a meeting of the Gram Sabha would be convened to select one out of the three shortlisted names. The minutes of the approval process in Gram Sabha shall be recorded. The Village Health Committee would enter into an agreement with the ASHA as in the case of the Village Education Committee and Sahayogini in Sarva Shiksha Abhiyan. The name will be forwarded by the Gram Panchayat to the District Nodal Officer for record. The job of the Nodal Officer at the District and Block will be to facilitate the selection process of ASHA by involving the Gram Sabha and Gram Panchayat holding of training for ASHA and for trainers as per the guidelines of the scheme. Monetary assistance of ASHA as compensation (i) ASHA would be an honorary volunteer and would not receive any salary or honorarium. Her work would be so tailored that, it does not interfere with her normal livelihood. Monetary assistance of ASHA as compensation (i) ASHA would be an honorary volunteer and would not receive any salary or honorarium. Her work would be so tailored that, it does not interfere with her normal livelihood. (ii) However, ASHA could be compensated for her time in the following situations: (a) for the duration of her training both in terms of TA and DA. (So that her loss of livelihood for those days is partly compensated). (b) For participating in the monthly/bi-monthly training, as the case may be. (for situations (a) and (b), payment will be made at the venue of the training when ASHAs come for regular training sessions and meetings) (c) Wherever compensation has been provided for under different national programmes for undertaking specific health or other social sector programmes with measurable outputs, such tasks should be assigned to ASHAs on priority (i.e. before it is offered to other village volunteers) wherever they are in position. (for situation (c) disbursement of compensation to ASHAs will be made as per the specific payment mechanism built into individual programmes) (d) Other than the above specific programmes, a number of key health related activities and service outcomes are aimed within a village *****(for situation (d) the payments to ASHAs will be at Panchayats). (iii) Group recognition/awards may also be considered. (iv) Non-monetary incentive e.g. exposure visits, annual conventions etc can be considered. (v) A drug kit containing basic drugs should be given. 5 . As per Sections 4 & 5 of The Odisha Gram Panchayat Act, 1964 “for every Grama, there shall be a Grama Sasan, which shall be composed of all persons entered in the electoral roll in respect of that Grama. The Grama Sasan shall be a body corporate by the name of the Grama to which it relates having perpetual succession and common seal with power subject to the provisions of The Odisha Gram Panchayat Act, 1964. The meetings convened by the members of the Grama Sasan are called as Grama Sabha. The business of the Grama Sasan at the Grama Sabhas shall be conducted and the record of the proceedings thereof shall be maintained in the prescribed manner.” 6 . The meetings convened by the members of the Grama Sasan are called as Grama Sabha. The business of the Grama Sasan at the Grama Sabhas shall be conducted and the record of the proceedings thereof shall be maintained in the prescribed manner.” 6 . The O.P. No.4 (Suprintendent, Iswarpur C.H.C, Balasore) has derecognized to the petitioner as ASHA of village Nuapatna as per his letter/order dated 01.05.2024 (Annexure-8) on the ground of her detention in the judicial custody exceeding 48 hours as per letter No.6424/NHM dated 29.04.2024 of CDM & PHO, Balasore and Ref. letter No.OSH & FWS/7248 dated 10.06.2016 of the Mission Directorate, NHM, Odisha. 7 . The letter No.OSH & FWS/7248 dated 10.06.2016 of the Mission Directorate, NHM, Odisha has provided following procedures for the de-recognition of ASHA: ? The Medical Officer I/C of the concerned CHC will initiate the process of de-recognition of ASHA immediately on receipt of information or communication regarding the arrest and continuous detention of ASHA in police or judicial custody exceeding 48 hours for any ground whatsoever. ? The Medical Officer I/C will obtain the report from the Inspector in Charge of the concerned police station regarding the details of detention of ASHA for substantiating the initiation of de-recognition procedure. ? The Medical Officer I/C will send the relevant documents to the CDMO seeking approval for de-recognition of concerned ASHA. ? The CDMO shall ascertain after due verification whether the ASHA has actually been under detention in police or judicial custody for a period of more than 48 hours and in case of such detention shall give the approval to the MO I/C for de-recognition of concerned ASHA. ? The Medical Officer I/C will issue necessary orders/notification regarding the de-recognition of ASHA from the health system with information to all concerned including CDMO and MD, NHM. 8 . Here in this matter at hand, the counter affidavit of the O.P. Nos.1 to 4 does not reveal about the initiation of any process/procedure for de-recognition of the petitioner from ASHA of village Nuapatna by the O.P. No.4. 9 . 8 . Here in this matter at hand, the counter affidavit of the O.P. Nos.1 to 4 does not reveal about the initiation of any process/procedure for de-recognition of the petitioner from ASHA of village Nuapatna by the O.P. No.4. 9 . The contents of the letter No.OSH & FWS/7248 dated 10.06.2016 of the Mission Directorate, NHM, Odisha (Annexure-A/4) are unambiguously clear that, for the de-recognition of an ASHA like the petitioner on the ground of her continuous detention in police or judicial custody exceeding 48 hours, there must be initiation of a process/procedure by the Medical Officer I/C of the concerned CHC like the O.P. No.4. Neither the counter affidavit of the O.P. Nos. 1 to 4 nor any document on their behalf is going to show about the initiation of procedures for de-recognition of the petitioner from ASHA. 10 . When, as per the Guidelines in the Scheme for ASHA, an ASHA is selected in the meeting of Gram Sabha through minutes prepared in Gram Sabha and after selection of an ASHA by the Gram Sabha, she (selected ASHA) shall be allowed to work as ASHA of that village by entering into an agreement with Village Health Committee and the name of the selected ASHA shall be forwarded by the Gram Panchayat to the District Nodal Officer only for record and when an ASHA starts her works as ASHA of a village only after executing an agreement with the Village Health Committee and when as per the above scheme for the selection of ASHA, neither the District Nodal Officer (O.P. No.3) nor the Block Medical Officer (O.P. No.4) are the Selecting Authorities of ASHA and when the Selecting Authority of ASHA is Gram Sabha, Gram Panchayat as well as the villagers and when as per the scheme, the Block Nodal Officers preferably the Block Medical Officers shall only facilitate the selection process of the ASHA involving Gram Sabha and Gram Panchayat, then, at this juncture, without the concurrence of the Selecting Authorities of ASHA i.e. the Gram Sabha, Gram Panchayat and villagers, an ASHA like the petitioner cannot be de-recognized from ASHA of a village. Because, it is very fundamental in law that, who has power to appoint/engage a person in any work, ordinarily, he implies a power to disengage/terminate/determine such person from his/her work. Because, it is very fundamental in law that, who has power to appoint/engage a person in any work, ordinarily, he implies a power to disengage/terminate/determine such person from his/her work. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions:- (i) In a case between Union of India Vs. Gurbux Singh and another, (1975) 3 SCC 638 that, a power to appoint ordinarily implies a power to determine the employment. (ii) In a case between S.R. Tewari Vs. District Board, Agra and another, 1964 AIR 1680 that, power to appoint ordinarily carries with it the power to terminate appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint. (iii) In a case between Pradyat Kumar Bose Vs. The Hon’ble the Chief Justice of Calcutta, (1955) 2 SCC 791 that, The Authority empower to appoint includes the power to dismiss by applying Section 16 of the General Clauses Act, 1897 through Article 67 of the Constitution of India, 1950, that means power to appoint ordinarily carries the power to dismiss, unless the statute indicates otherwise. 11 . The Hon’ble the Chief Justice of Calcutta, (1955) 2 SCC 791 that, The Authority empower to appoint includes the power to dismiss by applying Section 16 of the General Clauses Act, 1897 through Article 67 of the Constitution of India, 1950, that means power to appoint ordinarily carries the power to dismiss, unless the statute indicates otherwise. 11 . Here in this matter at hand, when neither the O.P. No.4 (Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) nor O.P. No.3 (CDMO, Balasore) or the Collector, Balasore (O.P. No.2) are the Selecting Authorities of the petitioner as ASHA of Village Nuapatna and when as per the guidelines of the scheme for the selection of ASHA, the petitioner was selected as ASHA of Village Nuapatna through the minutes of Gram Sabha and when as per the applications/representations vide Annexures-2 & 3 of the Selecting Authorities i.e. the villagers of Nuapatna and the local Sarpanch of Kandagaradi Gram Panchayat are eagerly interested to get the services of the petitioner as their ASHA as before and when no resolution has been passed by the Selecting Authorities i.e. either in Gram Sabha or in the local Gram Panchayat or by the Members of the Village Health Committee to derecognize the petitioner from ASHA of village Nuapatna and when the villagers of Nuapatna are fully satisfied with the services of the petitioner as their ASHA and when the alleged de-recognition of the petitioner from ASHA of village Nuapatna has been made/passed by the O.P. No.4 (Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) on dated 01.05.2024 (Annexure-8) without being her Selecting Authority and without initiating the processes/procedures indicated in the letter No.OSH & FWS/7248 dated 10.06.2016 of the Mission Directorate, NHM, Odisha, then at this juncture, the letter/order dated 01.05.2024 (Annexure-8) issued/passed by the O.P. No.4 (Superintendent-cum- Medical Officer, Iswarpur C.H.C., Balasore) for the de-recognition of the petitioner from ASHA of village Nuapatna cannot be held as legal. For which, the letter/order dated 01.05.2024 (Annexure-8) issued/passed by the O.P. No.4 (Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) for de-recognition of the petitioner from ASHA of village Nuapatna cannot be sustainable under law. 12 . For which, the letter/order dated 01.05.2024 (Annexure-8) issued/passed by the O.P. No.4 (Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) for de-recognition of the petitioner from ASHA of village Nuapatna cannot be sustainable under law. 12 . As per the discussions and observations made above, when it is held that, the letter/order dated 01.05.2024 (Annexure-8) issued/passed by the O.P. No.4 (Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore) for the de-recognition of the petitioner from ASHA of Village Nuapatna is not sustainable under law, then at this juncture, there is justification under law for making interference with the same through this writ petition filed by the petitioner. As such, there is merit in the writ petition filed by the petitioner. The same is to be allowed. 13 . In result, the writ petition filed by the petitioner is allowed. The letter/order dated 01.05.2024 (Annexure-8) issued/passed by the Superintendent-cum-Medical Officer, Iswarpur C.H.C., Balasore (O.P. No.4) for the de-recognition of the petitioner from ASHA of village Nuapatna under Kandagaradi G.P. of Oupada Block is quashed. The O.Ps are directed through issuance of writ of mandamus to allow the petitioner to continue her services/works as ASHA of village Nuapatna under Kandagaradi G.P. of Oupada Block in the district of Balasore from the date of this judgment and to render all cooperations and assistances as per the guidelines of the scheme of ASHA to the petitioner for discharging her services as ASHA of village Nuapatna under Kandagaradi G.P. of Oupada Block in the District of Balasore. 14 . As such, this writ petition filed by the petitioner is disposed of finally. 15 . Registry is directed to communicate the copy of this judgment to all the O.Ps immediately. 16 . Free copy of this judgment be supplied to the learned ASC for the State for transmission of this judgment to all the O.Ps for their information.