Kunilata Dutta vs State of Orissa and Others

S.K. Mishra, J.—The Petitioner is aggrieved by the action of the Opp. Parties in canceling the selection process which was initiated under the old Guidelines issued by the State Government in Women & Child Development Department & issuing fresh advertisement on the basis of new Guidelines issued in the year 2007.

Pursuant to Advertisement dated 10.04.2006, the Petitioner applied for being engaged as Anganwadi worker for Raipur Additional Anganwadi Centre within the jurisdiction of the Child Development ''Project Officer, Chandbali. The Petitioner further claims that as per the list of candidates published on the notice board of the C.D.P.O. Chandbali, the Petitioner secured first position. At that stage, Opp. Party No. 4 issued fresh advertisement on 09.07.2007 in canceling the previous advertisement issued on 10.04.2006. The Petitioner claimed that the entire selection process could have been completed much before the commencement of the new guideline, but for the latches of the Opp. Parties, it was intentionally delayed.

Being aggrieved by the said Notification, the Petitioner filed W.P. (C) No. 11750 of 2007. Ultimately, the Writ Petition was dismissed due to non-appearance of the Petitioner. When she came to know about the dismissal of the Writ Petition, the Petitioner again filed W.P.(C) No. 17200 of 2008. That Writ Petition was disposed of with a direction to the Collector to look into the grievance of the Petitioner & pass necessary orders on the representation filed by the Petitioner strictly in consonance with law.

Opp. Party No. 5 had also filed a Writ Petition bearing W.P.(C) No. 12203 of 2008, wherein this Court directed the Collector for publication of the result pursuant to the Advertisement dated 07.09.2007.

While the matter stood thus, the Collector (Opp. Party No. 1) issued notice to the Petitioner & the Opp. Party to remain present on 12.06.2009 in his Court for personal hearing. As per the direction in the said hearing, the Petitioner appeared before the Collector & the Collector orally asked the Petitioner to submit a note of submission. Petitioner other claims that she was directed to file note of submission on 18.07.2007 alleging that at her back the Collector has passed the order on 12.06.2009 engagmg Opp. Party No. 5 as Anganwadi worker for Raipur Anganwadi Centre.

The Petitioner claims that once the recruitment process was started in consonance with the guidelines, it cannot be stopped in midway. It is further pleaded that a recruitment process once commenced will have its logical end in consonance with the guidelines pursuant to which a notification was issued. That apart, abandoning a recruitment process which commenced earlier & initiating afresh recruitment process would not only be time consuming but also involves huge expenses on the State Exchequer & will also cause prejudice to the persons who had applied in consonance with the notification issued.

On such pleadings, the Petitioner prays to cancel the appointment of Opp. Party No. 5 in pursuance to the Order Dated 12.06.2009 (Annexure-4) & to direct the Opp. Parties to engage the Petitioner as Anganwadi worker of the said Anganwadi centre.

Opp. Parties 3 & 4 have filed their written counter, inter alia, leading that the writ application is not maintainable & is liable to be dismissed in limine. It is further submitted that the Writ Petition involves disputed question of facts. The Opp. Parties disputed that the Opp. Party No. 2 has acted illegally in canceling the selection process, which was made under the old guidelines for appointment of Anganwadi Workers & in its place issuing a fresh advertisement on the basis of the new guideline. It is further pleaded that neither any interview was conducted for the said Anganwadi Centre nor selection process had been completed. When the matter stood thus, new guideline came into force. In the said guideline it was mentioned that "whenever the Anagnwadi Workers have not been selected & engaged as per the earlier guidelines, the selection will be done as per the revised guidelines".

It is further pleaded that after receiving application forms of the candidates, if was verified & found that some of the candidates have not supplied required documents along with their application forms. Accordingly, after taking into consideration of the same, the office of the C.D.P.O prepared a list vide Annexure-2. The Opp. Parties deny the averment that while the process of selection was going on, the said list vide Annexure-2 was published.

While the process of selection to the earlier notice was going on, the Opp. Party No. 4 issued fresh advertisement on 09.07.2007 canceling the previous advertisement on the strength of the resolution passed by the Block Level Committee & after receipt of order No. 15117/W & CD., dated 20.05.2007 (which is the revised guideline). The rest of the allegations are denied by the Opp. Parties. The Opp. Parties also take the plea that in the second advertisement, the Petitioner had applied & after being unsuccessful, she is now challenging the advertisement itself &, as such, her action is hit by the principles of estoppel.

Opp. Party No. 5 has also filed the counter affidavit. The stand taken by Opp. Party No. 5 is more or else same as that of Opp. Parties 3 & 4.

In course of hearing of the writ application, the records were produced by the Learned Addl. Standing Counsel. It is evident from the records that the present Petitioner-Kunilata Das alias Dutta has applied for being engaged as the Anganwadi worker. However, the Learned Counsel for the Petitioner disputed that the same may not be the application filed by the Petitioner. Such plea has never been taken in the Writ Petition nor has any such plea been taken in the rejoinder filed by the Petitioner, Therefore, at this stage, Petitioner cannot raise the plea that she has not applied & that somebody else has impersonated her by making an application on her behalf. Such contention also does not appear to be reasonable.

The Integrated Child Development Services (ICDS) perhaps is the largest of all the food supplementation programmes in the world, was initiated in the year 1975 with the following objectives:

(i) To improve the health & nutrition status of children of 0-6 years by providing supplementary food & by coordinating with Stale Health Departments to ensure delivery of required health inputs;

(ii) To provide conditions necessary for preschool children''s psychological & social development through early stimulation & education;

(iii) To provide pregnant & lactating women with food supplements;

(iv) To enhance the mother''s ability to provide proper child care through health & nutrition education.

(v) To achieve elective coordination of policy & implementation among the various departments to promote child development.

{People''s Union for Civil Liberties v. Union of India and Ors. (2004) 12 SCC 108 referred to.}.

The nature, scope & duties of Anganwadi workers came up before the Supreme Court in State of Karnataka and Ors. v. Ameerbi and Ors. 2007 (11) SCC 681, wherein the Supreme Court, after elaborately discussing various cases held that the posts of Anganwadi workers are not statutory posts. They have been created in terms of the scheme. They do not hold any civil post. It is further held that their presence in their respective villages is extremely important. They are supposed to make significant contribution to the society. They are required to carry a large number of activities, primary amongst them being the welfare of the children.

The Apex Court in Ameerbi''s case further held that Anganwadi workers do not carry out any function of the State. They do not hold the post under a statute. Their posts are not created. Recruitment rules are ordinarily blocked for them. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 & 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed.

The Apex Court further held that the appointments made under a scheme & recruitment process being carried out through a committee would not render the incumbents thereof holders of civil post. Even the Supreme Court recognized the right of an Anganwadi worker to contest an election & they are undisputably free to do so. Lastly, the Apex Court held that the Anganwadi workers are not entitled to the protection under Article 311 of the Constitution of India nor there can be any application of doctrine of parity of employment.

This being the clear-cut law laid down by the Hon''ble Apex Court, there is hardly any scope to determine the case at hand by applying the principles applicable to civil servants.

Even assuming for the sake of consideration, that common service law shall be applicable to the case & the case of the Petitioner is examined; then also the Petitioner has no case. In State of A.P. and Others Vs. D. Dastagiri and Others, ; the Hon''ble Supreme Court has held that in absence of publication of select list, the selection process was not complete. Furthermore, it is hold that even if the selection process was complete & assuming that only select list remained to be published that does not advance the case of the Respondents for the simple reason that even the candidates who are selected & whose names find place in the select list, do not get vested right to claim appointment based on the select list. The State Government has a right to take a policy decision either to have prohibition or not to have prohibition in the State. If pursuant to a policy decision taken to impose prohibition in the State, the Petitioner cannot insist for appointment.

Applying the said principle to the case in hand, it is seen that in the year 1998, some guidelines were issued by Women & Child Development Department of the State Government. Since there was revision of the scheme from time to time, the State Government again issued a fresh guidelines. The Government took the policy decision that whenever an Anganwadi Worker has not been engaged, the same shall be done in accordance with the guidelines issued afresh. In this case, the selection process was not completed. Annexure-2 reveals the publication of names of different applicants for different Anganwadi Centres including Raipur Anganwadi Centre for the purpose of inviting objections. The document annexed to the Writ Petition also reveals that at serial No. 4, the Petitioner''s name appears, wherein there is a remark that "no mark-sheet has been filed". So, it is wrong to state that the process was completed & the Petitioner was found to be the most meritorious candidate for being engaged as Anganwadi worker with respect to Raipur Anganwadi Centre. In such a fact situation, in view of the changed guidelines, the action of the C.D.P.O. was correct in issuing the fresh advertisement & for that reason, the advertisement cannot be quashed.

Additionally, it is seen that the Petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the Petitioner has filed this Writ Petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and Others Vs. State of Uttaranchal and Others, ; the Apex Court held that when the Petitioner took a chance by appearing in the selection process & only after they did not find themselves as successful candidates, they cannot challenge the selection process. In other words, when the Petitioner has applied for being selected & took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estopped & precluded the questioning the said selection process.

The Writ Petition is accordingly devoid of any merit & the same is dismissed. However, keeping in view the peculiar facts of the case, there shall be no order as to costs.