Santosini Mahakud vs State Of Odisha And Others

Sashikanta Mishra, J

The petitioner in the present writ application questions the correctness of order dated 12.08.2016 passed by the Additional District Magistrate (ADM), Angul in Misc. Appeal No. 29 of 2011 whereby, said appeal filed by the present opposite party No.5 was allowed, the petitioner’s engagement as Anganwadi Worker was set aside and the selection committee was directed to engage the next eligible candidate out of the selection list.

The facts of the case are that pursuant to an advertisement dated 02.03.2010 issued by the C.D.P.O., Athamallik for engagement of Anganwadi Worker of Badatikira Anganwadi Center, the petitioner, opposite party No.5 and other candidates submitted their applications. In the selection process, the petitioner was found suitable among all candidates and was therefore, selected for engagement. She was thereafter issued with order of engagement on 25.03.2011 and since then, has been continuing as Anganwadi Worker. The present opposite party No.5 challenged her selection by filing the aforementioned appeal before the ADM on the ground that she does not belong to the Anganwadi Center area.

2.1 During hearing of the appeal, the CDPO, Athamallik submitted para-wise report stating that the petitioner ordinarily resides in village Baragaon and that the Anganwadi Center of Badatikira is within the said revenue village. This was certified by the Tahasildar in the resident certificate issued in her favour.

2.2 The petitioner contends that she and her family are residing within the jurisdiction of Badatikira Anganwadi Center over Plot No. 116/1286 under holding No. 95/70 since 2010. The above fact was physically verified by the CDPO, Athamallik during spot verification.

2.3 The ADM however, directed a joint enquiry to be conducted by the Tahasildar, Athamallik and CDPO, Athamallik. According to the petitioner, the said joint enquiry was not conducted properly and it was stated that the facts stated in the para-wise report of CDPO, Athamallik are different from the resident certificate produced by her earlier.

2.4 According to the petitioner, Badatikira is not a revenue village for which no resident certificate can be issued showing her residence therein, which is actually a hamlet under Baragaon Revenue village. It is further contended that the petitioner’s father-in-law and other family members are residing over Plot No. 304 under Khata No.4, which comes under Baragaon-II Anganwadi Center but the petitioner along with her husband is residing separately from her ancestral family over plot No.116/1286, which comes under the Badatikira Anganwadi Center.

2.5. Though all the above facts were placed before the ADM, the same were not considered and basing entirely on the joint enquiry report, the appeal was allowed by setting aside the engagement of the petitioner.

2.6 Being thus aggrieved, the petitioner has filed this writ application with the following prayer.

“Therefore, in view of the above said facts and circumstances, the petitioner most humbly prays that this Hon’ble Court may be graciously pleased to issue notice to the Opp. Parties and call for the records of Misc. Appeal case No.29/2011 from the office of the Additional District Magistrate, Angul and after hearing the parties may further be pleased to quash the order dtd.12.8.2016 and directed the Opp. Parties to allow the present petitioner to continue as Anganwadi Worker of Badatikira Anganwadi Centre.

And pass other order/ orders, as may be deemed just and proper.

And for the said act of kindness, the petitioner as in duty bound shall ever pray.”

In the counter affidavit filed by the State opposite parties it is admitted that Badatikira Anganwadi Center is within Baragaon revenue village. The joint enquiry was conducted in presence of the petitioner as well as opposite party No.5. As per the said report, the petitioner had obtained a resident certificate dated 11.03.2010, wherein the RI report speaks that she was residing over Plot No. 304 under Holding no.4 of village Baragaon which comes under the jurisdiction of Baragaon-II Anganwadi Center. The claim that the petitioner is residing over Plot No.116/1286 is denied by stating that she and her family reside over Plot No. 304 under holding No.4. It is further stated that nobody challenged the residential status of the petitioner during selection and the selection committee unanimously selected her basing on her merit. It is only during the appeal that direction was issued to conduct a joint enquiry, which being conducted, revealed that the petitioner is a resident within the jurisdiction of Badatikira Anganwadi Center.

The petitioner has filed a rejoinder seeking to refute the averments made in the counter affidavit. It is stated that the opposite party No.5 never objected before the selection committee during the process of selection. From the joint enquiry it was revealed that opposite party No.5 belongs to Khadala Sahi but her resident certificate reveals that she belongs to village Kaintragarh under Athamallik P.S. There is no notification that said village comes within the service area of Badatikira Anganwadi Center. The petitioner obtained resident certificate on the basis of the ancestral house of her husband under Baragaon revenue village, wherein she has been residing over plot No. 116/1286 under holding No.95/70 since 2010. The ancestral land over Plot No. 304 in Khata No.-4 was sold on 05.05.2010. Accordingly, the CDPO had made a field enquiry and submitted the residential status of the petitioner. Furthermore, the petitioner having secured the highest mark and there being no objection to her candidature at the time of selection, she was rightly selected.

Heard Mr. H.B. Dash, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government for the State and Mr. Anirudha Das, learned counsel appearing for opposite party No.5.

Mr. Dash would argue that the appeal filed by the opposite party No.5 before the ADM was not maintainable as it is not her case that she should have been engaged in place of the petitioner. In fact she secured only 36.26% marks whereas the petitioner secured 44.40% marks. She cannot therefore, be treated as a person aggrieved so as to challenge the selection and engagement of the petitioner. It is further argued that the ADM could not have directed for conducting a joint enquiry and accepted such report on the face of clear assertion by the CDPO in her para-wise report regarding residential status of the petitioner. The resident certificate obtained by the petitioner has never been challenged by any person. It is finally argued that even otherwise, the petitioner has been continuing as Anganwadi Worker since 25.03.2011 and therefore, disengaging her at this stage would grossly violate her right to livelihood guaranteed under Article 21 of the Constitution of India.

Mr. S.N. Pattnaik, learned AGA argues that a question being raised with regard to the residential status of the petitioner, the ADM rightly directed a joint enquiry to be conducted. The joint enquiry report revealed that the petitioner is a resident of Badatikira-II Anganwadi Center. As such her engagement was rightly set aside in appeal.

Mr. Anirudha Das, learned counsel for opposite party No.5 would argue that as per the joint enquiry report it is evident that opposite party No.5 is a resident of Khadala Sahi (renamed as Harijan Sahi) which comes within Badatikira Anganwadi Center. On the other hand, the petitioner is a resident of Badatikira-II Anganwadi Center area. It was clearly proved that the para-wise comment of the CDPO was contrary to the resident certificate produced by the petitioner.

Since the locus standi of the opposite party No.5 to challenge the selection of the petitioner has been raised, it would be proper to consider the same at the outset. Copy of the proceeding of the selection committee enclosed as Annexure-6 to the writ application does not reveal the marks secured by the individual candidates. There is no other material on record in this regard. The petitioner has raised a pertinent issue with regard to locus standi of opposite party No.5. It is trite law that unless a person is held to be aggrieved by a particular action/order, he cannot ordinarily be permitted to question the same. Nevertheless it is not disputed that opposite party No.5 was one of the candidates. There is nothing on record to suggest if opposite party No.5 had raised any objection to the petitioner’s candidature at the time of selection. She however, filed an appeal specifically on the ground that the petitioner is not a resident of service area. The appeal was entertained. Significantly, the question of locus standi does not appear to have been raised before the appellate authority. This Court is therefore, unable to accept the contention so raised.

Coming to the merits of the case, as already stated, the dispute revolves around the question of residence of the petitioner and opposite party No.5. Admittedly a resident certificate was issued in favour of the petitioner, which reveals that she is a resident of village Baragaon. Copy of the resident certificate of opposite party No.5, obtained by the petitioner under the RTI Act is also available on record, which shows that she is a resident of village Kaintragarh in the district of Athamallik. In the joint enquiry report, it is stated that Khadala Sahi forms part of Kaintragarh revenue village. The additional Anganwadi Center-Badatikira consists of Khadala Sahi, of which opposite party No.5 is a resident. On the other hand, the petitioner is said to be a resident of Baragaon-II Anganwadi Center. It is stated that the para-wise comment of CDPO is different from the resident certificate. It has not been demonstrated as to how the para-wise comments of the CDPO were wrong. There seems to some confusion in the mind of the appellate authority inasmuch as he chose to view the para-wise comments of the CDPO with suspicion for the reason that the same mentions the petitioner as a resident of Badatikira AWC which contradicts the resident certificate which mentions her a resident of village Baragaon. Now, it is common ground that Baragaon is the revenue village while Badatikira is a hamlet thereof. Obviously, a resident certificate could not have been issued showing the petitioner a resident of Badatikira. It is stated that the report of the CDPO is based on spot enquiry. This assertion has not been denied by the opposite parties. Therefore, it cannot be said that her para-wise report was wrong or that the same was at variance from the resident certificate. The ADM does not appear to have considered the matter from the above perspective nor specified as to how the report of the CDPO is incorrect. Moreover, he appears to have proceeded on the erroneous notion that Baragaon and Badatikira are separate individual villages, whereas it is common ground that Badatikira is a hamlet within Baragaon. It is evident from a perusal of the joint enquiry report that Kamara Sahi and Badatikira are within Baragaon revenue village. The report only specifies the additional areas included within the Badatikira Anganwadi Center. This Court is therefore, of the view that the report of the CDPO which was based on her personal verification at the spot could not have been brushed aside by the ADM. On such ground, this Court holds that the impugned order cannot be sustained in the eye of law.

For the foregoing reasons therefore, the writ application is allowed. The impugned order is set aside.