Disposed

Smti Juri Kalita Duwarah v. the State of Assam and 4 Ors.

Gauhati HC21 Dec 2022WP(C)/2367/2016

Case brief

AI extract

What is this about?

The High Court held that caste is determined by birth and cannot be acquired by marriage, disqualifying a married SC woman from reserved quota. The petitioner was set aside from the opposition to an enquiry to determine the local population pattern to see if she qualifies as a member of the majority community for direct appointment.

What did the court decide?

Writ petition disposed; petitioner relieved of opposition status, authorities directed to conduct population enquiry within 45 days.

Smti Juri Kalita Duwarah Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010224992016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2367/2016

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SMTI JURI KALITA DUWARAH

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W/O SRI JITEN DUWARAH R/O VILL- NAMONI MANIK CHPORI P.O. MADHUPUR, P.S. GARUAMUKH DIST. JORHAT MAJULI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM, SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE DIRECTOR OF SOCIAL WELFARE

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ASSAM UZAN BAZAR GUWAHATI-1.

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3:THE DISTRICT SOCIAL WELFARE OFFICER

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JORHAT DIST. JORHAT ASSAM.

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4:THE CHILD DEVELOPMENT PROJECT OFFICER

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MAJULI ICDS PROJECT DIST. JORHAT ASSAM. 5:MS. SILPI DEY DAS C/O MANI KANTA DAS R/O VILL- MANIKPUR P.O. MADHUPUR DIST. JORHAT ASSAM

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Advocate for the Petitioner : MS.K DEVI

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Advocate for the Respondent : MR. A R SIKDAR (R5)

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER(ORAL)

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Date : 21.12.2022

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Heard Ms. K. Devi, the learned counsel appearing on behalf of the petitioner and Mr. H.K. Sarma, the learned counsel appearing on behalf of the respondent Nos. 1, 2, 3 & 4 as well as Mr. A.K. Sikdar, the learned counsel appearing on behalf of the respondent No. 5.

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The instant writ petition has been filed challenging the letter dated 24/2/2016 issued by the Director of Social Welfare Assam, Guwahati as well as also seeking a direction upon the respondent authorities to appoint the petitioner who was at serial No. 1 against the post of Anganwadi Worker in the Namoni Monika, Chapori, Mini Anganwadi Centre in view of her fulfilling the requisite criteria in terms of the advertisement dated 13/6/2013.

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The brief facts of the instant case is that the Deputy Secretary to the Government of Assam, Social Welfare Department, Dispur had issued an Order No.SWD.25/2011/456 dated 21/11/2011 whereby the sanction of the Governor of Assam for acceptance of voluntary service of 2458 numbers of Honorary Anganwadi workers in Mini Anganwadi Centres against the existing ICDS projects were informed. By the said letter, it has also been mentioned that all engagement of AWW (Anganwadi Worker)/AWH (Anganwadi Helper) must be carried out strictly by following the procedures as laid down by the Government

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of Assam in the guidelines specifically issued for the said purpose. A list of the various Mini Anganwadi Centres can be seen from Annexure-B to the writ petition. The present case pertains to Namoni Monika Chapori Mini Anganwadi Centre which is in the district of Jorhat and falls within the project Majuli. It further appears from the records that there is a notification issued dated 16/6/2012, whereby the guidelines for selection of Anganwadi workers, Helpers and workers in Mini Anganwadi Centres were notified. Clause 2 of the said notification relates to the selection procedure. Sub- Clause (v) of Clause 2 stipulates that for Anganwadi Centres located in village/locality having more than 40% of the SC, ST or Tea Tribe population, the selection of Angawadi workers/ Helpers/ workers in Mini Anganwadi Centre shall be made from amongst the said majority community. It was also stipulated that the list of such centres must be published at the time of advertisement made by the CDPO, inviting applications from the candidates. Subsequent to the guidelines being notified on 16/6/2012, the office of Child Development Project, Majuli, Kamalabari through the Child Development Project Officer had issued an advertisement dated 13/6/2013. In the said advertisement there were various criterion mentioned. The same being relevant are quoted herein below : -

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“1. Only those women can apply who are within the local area of the concerned Angawadi Centres.

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The Applicant shall enclose residence proof certificate from the concerned Gaonburah (only Gaoburah certificate shall be accepted.

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Candidate must be read upto at least Class VIII for the aforesaid post and pass certificate and photo shall be annexed along with the application. On the date of interview candidates must bring the pass certificate in original.

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The candidate must be above 18 years and at most 44 years as on 01.10.2013.

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The appointed workers shall receive monthly remuneration at the rate fixed by the government.

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Regarding appointment the decision of the selection committee shall be treated as final.”

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It is pertinent to mention that from the above quoted criterion of the advertisement, it was made clear that the candidate who has to be a permanent resident of the area and should enclose along with the application a resident certificate from the concerned Gaonburah. The educational qualification required was Class-VIII and the passing certificate shall be attested along with the application. The age of the candidate has to be above 18 years and below 44 years. It was also mentioned that the decision of the selection committee shall be final.

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From a perusal of Annexure-E and Annexure-F enclosed to the instant writ petition, it appears that the said Annexures are certificates issued by the Gaon Burahs which were enclosed to the respective applications of the petitioner as well as the respondent No. 5. In so far as Annexure–E is concerned, the Gaonburah, Jugi Gaon Pathar had certified on 24/2/2013 that the petitioner is a resident of village Namoni Monika Chapori Revenue village Monika Pathar Kaiborta. However, in the case of respondent No. 5 the same Gaonburah had certified that the respondent No. 5 is a resident of village Manikpur, P.O. Madhupur, P.S. Gorluk.

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The selection committee pursuant to an interview in respect to Namoni Monika Chapori had selected and placed the petitioner in serial No. 1 whereas the respondent No. 5 was selected and placed in serial No. 2. However, on 24/2/2016 in pursuance to an enquiry being conducted, the Director of Social Welfare directed issuance of the letter of expression of interest to accept

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voluntary service as Anganwadi Worker to the respondent No. 5. The petitioner being aggrieved has approached this Court under Article 226 of the Constitution.

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This Court vide an order dated 7/4/2016 issued notice making it returnable by 6(six) weeks. It was made clear that the selection and engagement of the respondent No. 5 as an Anganwadi Worker would be subject to the outcome of the writ petition. The records further reveals that on 19/11/2018, this Court allowed the instant writ petition thereby setting aside the appointment of respondent No. 5 as Anganwadi Worker in the Namoni Monika Chapori Mini Anganwadi Centre and there was a direction that the petitioner may be appointed as Anganwadi Worker in the aforesaid Namoni Monika Chapori Mini within Anganwadi Centre within a period of 3 months from that date. Thereupon the record further reveals that in the year 2019, the respondent No. 5 had approached this Court by filing a review petition which was registered and numbered as Review Pet. No. 47/2019. This Court vide an order dated 24/3/2022 on the ground, that service upon the respondent No. 5 was not duly effected reviewed the order dated 19/11/2018 and restored the status-quo existing on the day when the order was passed on 19/11/2018.

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Thereupon the respondent No. 5 has filed an affidavit-in-opposition. From a perusal of the said affidavit-in-opposition, it transpires that the area where the Mini Anganwadi Centre has been set up is an area where more than 40% of the people residing therein belongs to the SC community. It has been mentioned that the respondent No. 5 has been issued a certificate by the Majuli Zila Anuchuchit Jati Parishad wherein it has been mentioned that she belongs to Mallo community. It is however, relevant to take note of that the said certificate is dated 5/1/2015. It is the categorical case of the respondent No. 5 in her affidavit that as the respondent No. 5 belongs to the SC community, she was

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therefore rightfully appointed as an Anganwadi Worker in the Mini Anganwadi Centre in question .

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This Court vide an order dated 30/11/2022 had directed the respondent/State to produce the enquiry report on the basis of which the impugned order dated 24/2/2016 was passed. The Child Development Project Officer, Majuli, who is the respondent No. 4 in the instant proceedings had filed an affidavit on 14^th of December,2022 thereby bringing on record the enquiry report. A perusal of the said enquiry report reveals that Asom Anuchuchit Jati Yuba Chatra Santha, Jorhat District Committee had protested regarding engagement of AW worker at Namori Manikpur Angawadi Centre under Majuli ICDS project and it was observed that the then CPDO concerned did not mention clearly about the reservation system based on population structure vide government notification dated 16/6/2012 for engagement of Anganwadi Workers at different Anganwadi Centres under Majuli ICDS project in the advertisement dated 13/6/2013. It has been further mentioned that the said Asom Anuchuchit Jati Yuba Chatra Santha claims 99% of the population belong to the SC community at Namoni Manikpur village under Majuli ICDS project. Pursuant to the affidavit in opposition filed by the respondent No. 5, the petitioner had filed an affidavit in reply stating inter alia that the respondent No. 5 cannot be said to belong to the SC community taking into account that she belong to a General Category by birth and only after her marriage to a person from the SC community, she cannot claim to be a member of the SC community.

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I have heard the learned counsel for the parties and perused the materials on record.

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From the notification dated 16/6/2012, it is clear that the Government had

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issued certain guidelines for the purpose of selection of Anganwadi workers/helpers/workers in Mini Anganwadi centres. Amongst the various guidelines, one of such guidelines as mentioned in 2 (v) pertains to that for Anganwadi Centres located in village locality having more than 40% of the SC, ST or Tea Tribe population, the selection of Anganwadi workers/helpers/workers in Mini Anganwadi Centre shall be made from amongst the said majority community. It was also mentioned in the said clause itself that the list of such centre’s must be published at the time of advertisement made by the CPDO inviting applications from the candidates. However, in the advertisement dated 13/6/2013 there is no mention whatsoever as to whether the Mini Anganwadi Centres in question i.e. Namoni Monika Chapori comes within the ambit of Clause 2(v) of the notification dated 16/6/2012. However, from the impugned order it reveals that on the basis of an enquiry report dated 22/01/2015 the respondent No. 5 who otherwise stood second in the selection process was given the appointment.

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A perusal of the said enquiry report which has been enclosed to the affidavit filed on 14/12/2022 shows that there is a claim made by the Asom Anuchuchit Jati Yuba Chatra Santha that 99% of the people residing in Namoni, Manikpur village belongs to the SC community and that in terms to the Government notification dated 16/6/2012 the selection of the Anganwadi worker should be made from the SC community. It is therefore, on the basis of the said enquiry report dated 22/1/2015 that the respondent No. 5 was appointed as an Anganwadi Worker in the Namoni Manipur village Anganwadi Mini Centre.

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A submission has been made by the learned counsel appearing on behalf of the petitioner which is however not refuted by the learned counsel appearing on behalf of the respondent No. 5 to the effect that the respondent No. 5 by

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birth belonged to the General Category, but it is only by way of a marriage to a person from the SC community, the authorities have taken into consideration that the respondent No. 5 belongs to the SC community.

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The learned counsel appearing on behalf of the petitioner has also drawn the attention of this Court to the judgment of the Supreme Court rendered in the case of Sunita Singh Vs. State of Uttar Pradesh and Ors . reported in ( 2018 ) 2 SCC 493 and referred to paragraph 5 of the said judgment. The said paragraph being relevant for the purpose of the instant dispute is quoted herein below.

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“5. There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled Caste. Undoubtedly, the appellant was born in “Agarwal” family, which falls in general category and not in Scheduled Caste. Merely because her husband is belonging to a Scheduled Caste category, the appellant should not have been issued with a caste certificate showing her caste as Scheduled Caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted.”

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A perusal of the above quoted paragraph would show that the law is well settled that caste is determined by birth and a caste cannot be changed by marriage with a person of a Schedule Caste. In the case before the Supreme Court, the appellant was born in the Agarwal family which fell in the General Category and not in the Schedule Caste. It was observed that merely because her husband belongs to the Schedule Caste category, the appellant therein should not have been issued with a caste certificate showing her caste as Schedule Caste. The said observation by the Supreme Court squarely applies to the instant case inasmuch as the petitioner belongs to the Caste ‘Dey’ which belongs to the general category. It was only on account of her marriage to one Manikanta Das who belong to the SC category, the caste certificate has been issued by the Majuli Zila Anuchuchit Jati Parishad. Applying the law laid down by

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the Supreme Court the respondent No. 5 cannot be considered to be a SC candidate and therefore, the impugned order dated 24/2/2016 by which the respondent No 5 was selected to be the Anganwadi Worker of the Namori Monika Chapori Mini Anganwadi Centre on the basis that she belonged to the SC community though she was at serial No. 2 in the select list is therefore bad in law and accordingly set aside and interfered with.

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Now the next question arises as to whether this Court can give a direction to the respondent authorities to appoint the petitioner who is selected in Serial No. 1 against the post of Anganwadi Worker in the Namori Monika Chapori Mini Anganwadi Centre. The advertisement so issued on 13/6/2013 is a fall out of the creation of post as notified vide the communication dated 25/11/2011 which categorically mandated that all engagement of AWW/AWH must be carried out by strictly following the procedures as laid down by the Government of Assam in the guidelines specifically issued for the purpose. The guidelines have been issue vide the notification dated 16/6/2012 wherein amongst others, it has been mentioned that Anganwadi Centres located in the village locality having more than 40% of the SC, ST or tea tribe population, the selection of the Anganwadi Worker/Anganwadi Helper/worker in Mini Anganwadi Centres shall be made from amongst the said majority community. This Court in view of Clause 2 (v) cannot give a direction to appoint the petitioner who admittedly belongs to the general category candidate. In the opinion of this Court, any direction as sought for in the petition for appointment of the petitioner would be contrary to the notification dated 16/6/2012.

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Accordingly, this Court is of the opinion that it would be in the interest of justice to direct the respondent No. 2, 3 and 4 to conduct an enquiry as regards the population pattern in respect to the Namoni Monika Chapori Mini Anganwadi

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Centre and thereupon if it is found that as per the population pattern that 40% of people in the said locality belong to the General Category, the concerned Respondent Authorities shall appoint the petitioner as Anganwadi Worker in Namoni Monika Chapori Mini Anganwadi Centre. However, in the circumstance, if it is found that the population in the said area is covered by 40% of the people belonging to the SC community or any other community other than the General Category, then in that regard the respondent No. 2, 3 and 4 shall do the needful by issuing a fresh advertisement for filling up the post of Anganwadi Worker in Namoni Monika Chapori Mini Anganwadi Centre in terms with the Notification dated 16/6/2012. The said exercise be carried out within a period of 45 days.

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The writ petition accordingly stands accordingly disposed off in terms with the observations and directions given above.

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JUDGE

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Comparing Assistant

Smti Juri Kalita Duwarah v. the State of Assam and 4 Ors.

Case brief

What is this about?

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Smti Juri Kalita Duwarah v. the State of Assam and 4 Ors.

Case brief

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