Amina Khatun vs Miss Abida Ahmeda And Ors

Both these writ petitions are founded on inter-connected facts raising more or less identical issues and therefore, have been heard analogously and I

propose to dispose of these writ petitions as well as I.A.(Civil) No.1287/2017 arising out of WP(C) No.3967/2013 by this common judgment and order.

The dispute in these proceedings relate to competing claim of appointment to the post of Anganwadi Helper in the No.274 Chatlabori Anganwadi

Center by and between Miss Abida Ahmeda i.e. the petitioner in WP(C) No.3967/2013 and Miss Amina Khatun who is the writ petitioner in WP(C)

No.1179/2015.

The essential facts necessary for a just decision of the Writ Petitions are these. The Department of Social Welfare, Government of Assam, had

earlier published an advertisement notice dated 25.06.2013 for selection of Anganwadi Workers/Helpers in the various Anganwadi Centers mentioned

therein which included the 274 Chatlabori Anganwadi Center. Miss Abida Ahmeda and Miss Amina Khatun had both participated in the interview

whereafter, Amina Khatun was selected as the first rank holder for appointment to the post of Anganwadi Helper in 274 Chatlabori Anganwadi

Center. The select list was published on 15.07.2013 with the approval of the Director of Social Welfare. However, the said select list, insofar as the

274 Chatlabori Anganwadi Center is concerned, could not be given effect to in view of the interim order dated 18.07.2013 passed by this Court in

WP(C) No.3967/2013 preferred by Ms. Abida Ahmeda wherein it has been directed that the advertisement dated 25.06.2013 in respect of No.274

Chatlabori Anganwadi Center would remain stayed.

The claim of the writ petitioner Abida Ahmeda in WP(C) No.3967/2013 is that pursuant to an advertisement notice issued on 08.09.2009 for

appointment of Anganwadi Worker/Helper in the various Anganwadi Centers, an interview process was initiated wherein the writ petitioner had

participated. On the basis of the result of such interview she was appointed temporarily as Anganwadi Helper in 274 Chatlabori Anganwadi Center

vide appointment order dated 23.10.2009 issued by the CDPO, Hajo ICDS Project, Hajo, Kamrup. According to the petitioner, she been rendering her

services as Anganwadi Helper since 23.10.2009 till date. Notwithstanding the same, the respondents have conducted another selection process for

appointment in the post of Anganwadi Helper in the 274 Chatlabori Anganwadi Center in a manner which is not permissible in the eye of law.

Be it stated herein that in view of the interim order dated 18.07.2013 passed by this Court the service of the petitioner was extended by the order

dated 12.01.2015 which order is under challenge in the connected writ petition i.e. WP(C) No.1179/2015.

The case of Miss Amina Khatun i.e. the petitioner in WP(C) No.1179/2015 is that she had been selected for appointment as Anganwadi Helper in

274 Chatlabori Anganwadi Center pursuant to a selection process held by the authorities wherein the private respondent i.e. Miss Abida Ahmeda had

herself participated. Having taken part in the selection process and being the unsuccessful candidate, it was not open for her to file WP(C)

No.3967/2013 inasmuch as the said candidate would be estopped from questioning the validity of the selection process.

I have heard Mr. D. P. Chaliha, learned senior counsel assisted by Mr. U. P. Chaliha, learned counsel appearing for the writ petitioner in WP(C)

No.3967/2013. I have also heard Mr. K. Bhuyan, learned counsel for the writ petitioner in WP(C) No.1179/2015. Mr. C. K. S. Baruah, learned

Government Advocate, Assam, has appeared for the official respondents.

Mr. Chaliha submits that his client had joined service in terms of the appointment order dated 23.10.2009 and has been receiving her salary

continuously since then. According to Mr. Chaliha, the initial salary of Rs.500/- per month used to be paid in cash but since 24.11.2011, the amount

has been deposited in the bank account of the petitioner. The learned senior counsel submits that from November, 2011 the salary has been raised to

Rs.750/- per month and subsequently, again to Rs.1500/- per month and so as to establish the said facts, he has referred to the Bank statement

annexed to the writ petition as Annexure-4. The learned senior counsel further submits that until such time the petitioner continues in service as

Anganwadi Helper in the said Anganwadi Center, the question of appointing the private respondent (i.e. the writ petitioner in WP(C) No.1179/2015)

cannot arise in the eye of law.

Refuting the contentions as noted above, Mr. K. Bhuyan, learned counsel appearing for the writ petitioner in WP(C) No.1179/2015, has invited the

attention of this Court to the RTI reply dated 07.11.2017 issued by the CDPO, Hajo ICDS Project, Hajo, Kamrup which, inter alia, mentions that there

was no interview held for the post of Anganwadi Helper of 274 Chatlabori Anganwadi Center on 03.10.2009 nor was Miss Abida Ahmeda appointed

as Anganwadi Helper on 23.10.2009. Mr. Bhuyan submits that the aforesaid RTI reply makes it evident that the claim of the writ petitioner in WP(C)

No.3967/2013 is completely false. Under the circumstances this Court may vacate the interim order dated 18.07.2013 and permit the department to

make appointment of the selected candidate by operating the select list dated 15.07.2013.

The learned Government Advocate, Mr. C. K. Sarma Baruah, has relied upon the two affidavits filed by the respondent No.4 to contend that there

is no record of any appointment order having been issued in favour of Miss Abida Ahmeda on 23.10.2009. According to Mr. Sarma Baruah, her

appointment was made for a period of three months from 02.04.2012 to 31.06.2012 and then again for a period of another three months from

03.7.2012 to 29.09.2012. Subsequently, the petitioner was again appointed for another period of three months from 3.10.2012 to 31.12.2012 and

thereafter, her services were not extended. Therefore, submits Mr. Sarma Baruah, the post in question was vacant on the date on which the select list

was published and therefore, there is no impediment for the department to appoint the selected candidate as the Anganwadi Helper of 274 Chatlabori

Anganwadi Center.

I have considered the submissions put forward by the learned counsel for the parties and have also perused the materials available on record.

At the very outset it is necessary to note herein that Miss Abida Ahmeda, the writ petitioner in the first writ petition had annexed the initial

appointment order dated 23.10.2009 bearing No.CDPO(Hajo) 60/Part-2/09 (kha)/ 187/ 313 which goes to show that the copy of the appointment order

was marked to the Director of Social Welfare Department, Assam as well as the Department of Social Welfare, Assam. The said appointment order

does not mention that the appointment is for a fixed tenure. Although it has been denied that there was any advertisement notice issued pursuant to

which the selection had allegedly been conducted, yet, I find from the record that the petitioner has brought a copy of the advertisement notice dated

08.09.2009 on record by filing an additional affidavit dated 29.05.2015. The said assertion of the writ petitioner has not been denied by the department.

It has also not been disputed that the petitioner has been working continuously as Anganwadi Helper in 274 Chatlabori Anganwadi Center. Although

the RTI reply seeks to deny the aforesaid claim of the petitioner, yet, I find that the stand of the CDPO projected in the RTI reply dated 07.11.2017 is

wholly contradictory to the materials on record. The department has also not been able to deny the fact that the petitioner has been receiving salary in

her bank account since the month of November, 2011. If that be so, the stand of the CDPO that her initial appointment was for a period of three

months with effect from 02.04.2012 does not appear to be based on correct projection of facts. Secondly, there is no apparent reason as to why the

department could not trace out the appointment order dated 23.10.2009 which bears a specific File No. The stand of the department is that the

aforesaid order is untraceable. However, such a projection cannot be accepted on the face of the record particularly on account of the fact that orders

of extension of service of the petitioner have been annexed in the counter affidavit filed by the respondent No.4. Finally, the order impugned in WP(C)

No.1179/2015 leaves no manner of doubt that the petitioner’s services were extended even on 12.01.2015 and she is still continuing in service as

an Anganwadi Helper.

From an objective appreciation of the cumulative facts noticed above, this Court is left with the impression that the writ petitioner Abida Ahmeda

was appointed in the year 2009 and since then, she has been rendering her services as Anganwadi Helper in the 274 Chatlabori Anganwadi Center. It

is also apparent from the materials on record that the appointment was made on the basis of a selection process initiated through the advertisement

notice dated 08.09.2009. If that be so, till such time the petitioner’s services are terminated by following the due process of law, the question of

making a fresh appointment in the said post of Anganwadi Helper cannot arise in the eye of law. It is a fact that the petitioner has taken part in the

selection process initiated on the basis of advertisement notice dated 25.06.2013. But the mere fact that she had participated in the said selection

process would not by itself obliterate the rights of the petitioner to continue in service as Anganwadi Helper against the 274 Chatlabori Anganwadi

Center until her service is brought to an end in accordance with law.

The petitioner in WP(C) No.1179/2015 has filed I.A.(Civil) No.1287/2017 in WP(C) No.3967/2013 seeking vacation of the interim order dated

18.07.2013. However, for the reasons stated herein above, I am of the view that the department cannot be permitted to appoint Amina Khatun as

Anganwadi Helper in 274 Chatlabori Anganwadi Center during the currency of employment of Abida Ahmeda.

For the reasons stated herein above, WP(C) No.3967/2013 stands allowed. However, notwithstanding this order, it would be open for the Director

of Social Welfare to examine the validity of the appointment of Miss Abida Ahmeda and take appropriate steps in the matter, as may be permissible

under the law.

WP(C) No.1179/2015 and I.A.(Civil) No.1287/2017 arising out of WP(C) No.3967/2013 stands answered accordingly.

Before parting with the record, it would be pertinent to note herein that on 04.03.2015 this Court had passed an order in WP(C) No.1179/2013 staying

the operation of the order dated 12.01.2015 by means of which extension of service was granted in favour of Abida Ahmeda. It prima facie appears

that the earlier order dated 18.07.2013 was not brought to the notice of the Court at the time of issuing the interim order dated 04.03.2015. Be that as

it may, in view of the observations made above, it is clarified that the interim order dated 04.03.2015 shall also stand merged with the present order.

Parties to bear their own cost.