Allowed

Hanifa Khatun v. the State of Assam and 5 Ors.

Gauhati HC2 Nov 2022WP(C)/3142/2018

Case brief

AI extract

What is this about?

High Court quashed the termination of an Anganwadi Helper's services due to violation of natural justice. Directed the Director of Social Welfare to conduct a fresh inquiry with both parties heard regarding the petitioner's local residential status before deciding on her continuation or termination of service.

What did the court decide?

Order dated 31.03.2018 and notice dated 23.04.2018 quashed; matter remanded to Director of Social Welfare to decide on continuation of engagement after hearing both parties.

Hanifa Khatun Vs the State of Assam and 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010101112018

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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)/3142/2018

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Hanifa Khatun W/o Hafiz Ahmed, Village & P.O. Bihara Part-IV, P.S. Katigorah, District - Cachar [Assam], PIN -788817.

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……………… Petitioner

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- Versus -

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The State of Assam Represented by its Commissioner and Secretary, Social Welfare, Government of Assam, Dispur, Guwahati-6.

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The Director of Social Welfare, Assam, Uzanbazar, Guwahati-1.

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Deputy Commissioner, Cachar, P.O. Silchar, District – Cachar.

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District Social Welfare Officer, Cachar, P.O. Silchar, District – Cachar, Assam.

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The Child Development Project Officer, Kalain, Integrated Child Development Project, Hilara, District – Cachar, Assam.

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Ambia Khatun, W/o Akli Ali,

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R/o Sarishakuri [Bihara-IV], P.O. Bihara Bazar, P.S. Katigorah, District – Cachar, Assam, PIN -788817.

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……………….Respondents

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WITH WP(C)/2852/2018

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Ambia Khatun, W/o- Akil Ali, R/o- Vill- Sarishakuri [Bihara-IV] P.O - Bihara Bazar , P.S – Katigorah, District – Cachar, Assam. ……………… Petitioner

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Versus -

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The State of Assam Represented by its Commissioner and Secretary, Social Welfare Government of Assam, Dispur, Guwahati-6.

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The Director of Social Welfare, Assam, Uzanbazar, Guwahati-1.

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Deputy Commissioner, Cachar, P.O. – Silchar, District – Cachar.

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District Social Welfare Officer, Cachar, P.O. Silchar, District – Cachar, Assam.

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The Child Development Project Officer, Kalain, Integrated Child Development Project, Hilara, District – Cachar, Assam.

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Smt. Hanifa Khatun,

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W/o Hafiz Ahmed, Village - Bihara Part IV, P.O. Katigorah, District- Cachar, Assam, PIN -788817.

……………….Respondents

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Advocates :

Petitioner in W.P.[C] no. 3142/2018 : Mr. K.A. Mazumder, Advocate. Petitioner in W.P.[C] no. 2852/2018 : Mr. L.R. Mazumder, Advocate. Respondents : Mr. T.C. Chutia, Additional Senior Government Advocate Date of Hearing & Judgment & Order : 02.11.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [ORAL]

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Both the writ petitions – W.P.[C] no. 2852/2018 and W.P.[C] no. 3142/2018 are in respect of selection/engagement/cancellation of engagement to the post of Anganwadi Helper at Anganwadi Centre no. 167 of Isonabad Kandi under Kalain ICDS Project, District – Cachar.

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Earlier, an Advertisement dated 08.09.2009 was published initiating a process of selection and engagement of Anganwadi Workers and Anganwadi Helpers in respect of Anganwadi Centres under Kalain ICDS Project, District – Cachar. Pursuant to the said Advertisement, interviews were held for selection of Anganwadi Workers and Anganwadi Helpers. Serious anomalies and irregularities were found to have occurred during the process of interview of candidates for Anganwadi Workers and Anganwadi Helpers under Kalain ICDS Project, Cachar. A decision of the Government to re-conduct the interview for selection of Anganwadi Workers and Anganwadi Helpers in the Anganwadi Centres under Kalain ICDS Project, Cachar was conveyed by a letter dated 04.02.2010. Accordingly by a Re-Advertisement dated 26.02.2010, fresh applications were invited from the interested female candidates who were

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willing to render voluntary services as Anganwadi Workers and Anganwadi Helpers at the Additional Anganwadi Centres sanctioned by the Government under Kalain ICDS Project, Cachar. The Anganwadi Centre no. 167 of Isonabad Kandi falls within Behara Gaon Panchayat and it was one of the Additional Anganwadi Centres for which fresh applications were invited for the post of Anganwadi Helper by the Re-Advertisement dated 26.02.2010. Both the writ petitioner and the respondent no. 6 in the writ petition, W.P.[C] no. 3142/2018 were candidates for the post of Anganwadi Helper at Anganwadi Centre no. 167 of Isonabad Kandi.

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The respondent no. 6 in the writ petition, W.P.[C] no. 3142/2018 viz. Smti. Ambia Khatun is the writ petitioner in the other writ petition, W.P.[C] no. 2852/2018 and the writ petitioner in the writ petition, W.P.[C] no. 3142/2018 viz. Smti. Hanifa Khatun is the respondent no. 6 in the writ petition, W.P.[C] no. 2852/2018. For the sake of easy reference, the writ petitioner in the writ petition, W.P.[C] no. 3142/2018, Smti. Hanifa Khatun, who is also the respondent no. 6 in the writ petition, W.P.[C] no. 2852/2018, is referred to hereinafter as the writ petitioner and the respondent no. 6 in the writ petition, W.P.[C] no. 3142/2018, Smti. Ambia Khatun, who is also the writ petitioner in the writ petition, W.P.[C] no. 2852/2018, is referred to hereinafter as the respondent no. 6.

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The District Social Welfare Officer, Cachar, Silchar-cum-Member Secretary, Selection Committee after accepting the applications of the writ petitioner, the respondent no. 6 and others for the post of Anganwadi Helper at the Additional Anganwadi Centre no. 167 of Isonabad Kandi, issued call letters to them asking them to appear in the oral interview before a Interview Board,

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scheduled on different dates of June, 2010, along with the supporting documents in support of their ages, educational qualifications/castes, etc. as well as the mark-sheets, the Gaon Panchayat certificate, etc. in original for verification by the members of the Selection Committee at the time of interview. After interviewing the candidates, a consolidated merit list of the candidates for the post of Anganwadi Helpers for the Additional Anganwadi Centres under the Kalain ICDS Project, Cachar was prepared by the Selection Committee. In respect of the Additional Anganwadi Centre no. 167 of Isonabad Kandi, the Selection Committee enlisted the names of the petitioner and the responded no. 6 in the said consolidated merit list. The name of the writ petitioner [Smti. Hanifa Khatun] figured at 1^st position therein as she scored 25.00 marks whereas the name of the respondent no. 6 [Smti. Ambia Khatun] figured at 2^nd position as she scored 21.00 marks in the selection process. Thereafter, an engagement letter was issued in favour of the writ petitioner [Smti. Hanifa Khatun] on 04.03.2016 under the hand of the Child Development Project Officer [CDPO], Kalain ICDS Project, Cachar. The engagement letter mentioned that the writ petitioner [Smti. Hanifa Khatun] was selected for rendering voluntary service as Anganwadi Helper at the Additional Anganwadi Centre no. 167 of Isonabad Kandi on the basis of the merit list prepared by the Selection Committee and approved by the Director of Social Welfare, Assam vide his letter no. DSW[LC]50/2015/72 dated 03.03.2016.

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It is the case of the writ petitioner [Smti. Hanifa Khatun] that on receipt of the engagement letter dated 04.03.2016, she joined the voluntary services of Anganwadi Helper at the Additional Anganwadi Centre no. 167 of Isonabad Kandi by submitting an acceptance letter on 24.05.2016 and started

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discharging duties thereafter.

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The respondent no. 6 [Smti. Ambia Khatun] aggrieved by the selection and engagement of the writ petitioner [Smti. Hanifa Khatun] as the Anganwadi Helper at the Additional Anganwadi Centre no. 167 of Isonabad Kandi, preferred a writ petition, W.P.[C] no. 5236/2016 assailing the same inter alia on the ground that the writ petitioner [Smti. Hanifa Khatun] was an outsider and was a resident of another Anganwadi Centre. During the hearing on 05.09.2016, submission was advanced on behalf of the State respondents in the Social Welfare Department, Assam that the Director of Social Welfare, Assam would be the proper authority to make an enquiry into the matter of outsider or otherwise. Having heard the submissions of the learned counsel for the parties, the Court was of the view that respondent no. 6 [Smti. Ambia Khatun] should submit a representation to the Director of Social Welfare, Assam for his examination as to whether the writ petitioner [Smti. Hanifa Khatun] was an outsider in relation to the Additional Anganwadi Centre no. 167 of Isonabad Kandi and whether the engagement of the writ petitioner [Smti. Hanifa Khatun] at the same Anganwadi Centre should continue. The writ petition, W.P.[C] no. 5236/2016 was disposed of by an order dated 05.09.2016 with the observation that in the event the respondent no. 6 [Smti. Ambia Khatun] submitted an application/representation to the Director of Social Welfare, Assam for the issues the same should be examined by the Director of Social Welfare, Assam. The Director of Social Welfare, Assam was directed to dispose of the application/representation by a speaking order within a period of 2 [two] months from the date of receipt of a certified copy of the order dated 05.09.2016.

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Thereafter, the respondent no. 6 [Smti. Ambia Khatun] in deference to the direction made in the order dated 05.09.2016 [supra], submitted a representation dated 30.09.2016 before the Director of Social Welfare, Assam. When the representation was not disposed of within the time-limit indicated in the order dated 05.09.2016, the respondent no. 6 [Smti. Ambia Khatun] filed a contempt case, Contempt Case [C] no. 432/2017 alleging non-compliance of the order dated 05.09.2016.

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The representation dated 30.09.2016, submitted by the respondent no. 6 [Smti. Ambia Khatun] pursuant to the order dated 05.09.2016, came to be disposed of by the Director of Social Welfare, Assam by an order dated 31.03.2018. By the said order dated 31.03.2018, the Director of Social Welfare, Assam took a decision to terminate the voluntary service of the writ petitioner [Smti. Hanifa Khatun] from the post of Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi under Kalain ICDS Project, Cachar and the Child Development Project Officer [CDPO], Kalain was directed to issue a termination letter to the writ petitioner [Smti. Hanifa Khatun] within 3 [three] days from the date of receipt of the order dated 31.03.2018. The order dated 31.03.2018 further directed to initiate a fresh selection process for selection to the post of Anganwadi Helper in respect of Additional Anganwadi Centre no. 167 of Isonabad Kandi as per the existing Government guidelines. The direction made by the Director of Social Welfare, Assam in the order dated 31.03.2018 was followed by a notice dated 23.04.2018 from the Child Development Project Officer [CDPO], Kalain ICDS Project, Cachar to the writ petitioner [Smti. Hanifa Khatun] whereby it was informed that the order of engagement dated 04.03.2016 issued in favour of the writ petitioner [Smti. Hanifa Khatun] stood withdrawn/cancelled and the writ petitioner [Smti. Hanifa Khatun] had been

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removed from the voluntary service with immediate effect.

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The decision of the Director of Social Welfare, Assam to terminate the voluntary services of the writ petitioner [Smti. Hanifa Khatun] as Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi by the order dated 31.03.2018 and the notice dated 23.04.2018 issued by the CDPO, Kalain ICDS Project, Cachar are subject-matters of challenge in the writ petition, W.P. [C] no. 3142/2018.

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9.1. The direction made by the Director of Social Welfare, Assam in the order dated 31.03.2018 to initiate a fresh process of selection to the post of Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi as per the existing Government guidelines is the subject-matter of challenge in the writ petition, W.P.[C] no. 2852/2018.

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As the issues involved in the writ petitions are inter-connected and the exchange of pleadings have been stated to be complete, both the writ petitions are taken up together at the request of the learned counsel for the parties at the admission stage itself.

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I have heard Mr. K.A. Mazumder, learned counsel for the writ petitioner in the writ petition, W.P.[C] no. 3142/2018 and the respondent no. 6 in the writ petition, W.P.[C] no. 2852/2018; Mr. L.R. Mazumder, learned counsel for the writ petitioner in the writ petition, W.P.[C] no. 2852/2018 and the respondent no. 6 in the writ petition, W.P.[C] no. 3142/2018; and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for the State respondents in both the writ petitions.

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Before going into the contentions raised by the learned counsel for the

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parties, certain events which occurred during the pendency of the two writ petitions and which are of relevance require a mention. The writ petition, W.P. [C] no. 2852/2018 was instituted initially without impleading Smti. Hanifa Khatun, the then serving Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi as a party-respondent. The writ petition, W.P.[C] no. 2852/2018 came up for consideration on 20.05.2019. The Court after hearing the learned counsel for the petitioner [Smti. Ambia Khatun] and the State respondents therein and after perusal of the materials brought on record, allowed the writ petition, W.P.[C] no. 2852/2018 by an order of even date. It was contended on behalf of the writ petitioner therein i.e. the respondent no. 6 herein [Smti. Ambia Khatun] that since there was a clear finding in the order dated 31.03.2018 of the Director of Social Welfare, Assam that the writ petitioner in the writ petition, W.P.[C] no. 3142/2018 [Smti. Hanifa Khatun] was not a local resident of Anganwadi Centre no. 167 of Isonabad Kandi and the petitioner in the writ petition, W.P.[C] no. 2852/2018 i.e. the respondent no. 6 herein [Smti. Ambia Khatun] fulfilled all the eligibility criteria set forth in the ReAdvertisement dated 26.02.2010 and her name being figured at 2^nd position in the order of merit, she should be offered the engagement as the Anganwadi Helper in the said Anganwadi Centre and there should not be any fresh Advertisement. Upon hearing the learned counsel for the parties appearing on that date and after perusal of the materials on record, the writ petition, W.P.[C] no. 2852/2018 was allowed by the order dated 20.05.2019 by setting aside that part of the order dated 31.03.2018 of the Director of Social Welfare, Assam whereby it was directed to initiate a fresh selection process for selection of candidate for the post of Anganwadi Helper in respect of Additional Anganwadi Centre no. 167 of Isonabad Kandi. It was further directed that necessary

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engagement letter should be issued in favour of Smti. Ambia Khatun in terms of the findings arrived in the order dated 31.03.2018 that she resided within the jurisdiction of the Anganwadi Centre No. 167 of Isonabad Kandi.

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The said order dated 20.05.2019 passed in the writ petition, W.P.[C] no. 2852/2018 came to be challenged by the writ petitioner herein [Smti. Hanifa Khatun] in a writ appeal, W.A. no. 242/2019. It was contended by the writ petitioner in the writ petition, W.P.[C] no. 3142/2018 [Smti. Hanifa Khatun] before the Division Bench that she should have been a necessary party in the proceedings of the writ petition, W.P.[C] no. 2852/2018. The writ appellate court was of the view that the order dated 20.05.2019 [supra] was passed without giving an opportunity of hearing to Smti. Hanifa Khatun who was the selected candidate and who by that relevant point of time, had worked for more than two years as such Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi. Without expressing any opinion on the merits of the contentions of the parties, the writ appellate court by an order dated 29.01.2021, set aside the order dated 20.05.2019 passed earlier in the writ petition, W.P.[C] no. 2852/2018 and remanded the writ petition, W.P.[C] no. 2852/2018 back to be heard along with the writ petition, W.P.[C] no. 3142/2018. On being so remanded back, the two writ petitions came to be listed together.

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Mr. K.A. Mazumder, learned counsel for the writ petitioner [Smti. Hanifa Khatun] has submitted that the writ petitioner fulfilled the eligibility criterion as regards residential status laid down in the Re-Advertisement dated 26.02.2010 and accordingly, the Selection Committee after being satisfied with her residential status and other eligibility criteria, offered the post of Anganwadi Helper to her as she was the candidate who scored the highest marks. The

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respondent no. 6 [Smti. Ambia Khatun] when she approached the Court by the writ petition, W.P.[C] no. 5236/2016, though impleaded the writ petitioner herein [Smti. Hanifa Khatun] as a party-respondent no. 6, the writ petition was disposed of by the order dated 05.09.2016 without hearing her. He has submitted that the writ petition, W.P.[C] no. 5236/2016 was disposed of granting the liberty to the respondent no. 6 [Smti. Ambia Khatun] to submit a representation to the Director of Social Welfare, Assam with a further direction to the Director of Social Welfare, Assam to consider and dispose of such representation by a speaking order. Thus, it was incumbent on the part of the Director of Social Welfare, Assam to afford an opportunity of hearing to the writ petitioner [Smti. Hanifa Khatun] before disposing of such representation. The basis of his contention is that it was the writ petitioner [Smti. Hanifa Khatun] whose engagement as Anganwadi Helper was assailed by the respondent no. 6 [Smti. Ambia Khatun]. In the event the Director of Social Welfare, Assam was going to hold against the writ petitioner [Smti. Hanifa Khatun] then she was the only person who would be visited with the adverse civil consequence in the form of losing her job as Anganwadi Helper in which she had already rendered services for two years already and suffer prejudice.

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Mr. Chutia, learned Additional Senior Government Advocate, Assam has submitted that the Director of Social Welfare, Assam upon receipt of the representation dated 30.09.2016, called for a report from the CDPO, Kalain ICDS Project. In the report submitted by the CDPO, Kalain ICDS Project, it was reported that the writ petitioner [Smti. Hanifa Khatun] belonged to the surveyed area of Anganwadi Centre no. 13 whereas she was working at Anganwadi Centre no. 167 of Isonabad Kandi. On the basis of the said report of the CDPO, Kalain ICDS Project, Cachar, the Director of Social Welfare, Assam came to a

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finding that the writ petitioner [Smti. Hanifa Khatun] did not belong to the operational area of Anganwadi Centre no. 167. As such, no interference of the Order dated 31.03.2018 of the Director of Social Welfare, Assam is called for at this stage.

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Mr. L.R. Mazumder, learned counsel for the respondent no. 6 [Smti. Ambia Khatun] has adopted the submissions of Mr. Chutia. He has further contended that since the writ petitioner [Smti. Hanifa Khatun] did not fulfill the eligibility criteria in terms of the Re-Advertisement dated 26.02.2010, there is no necessity to re-visit the order dated 31.03.2018, in so far as the cancellation of engagement of the writ petitioner [Smti. Hanifa Khatun] is concerned whereas there is need to re-visit the other part of the order regarding the direction to initiate a fresh process of selection.

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In response, Mr. K.A. Mazumder has submitted that the enquiry, if any, caused by the CDPO, Kalain ICDS Project was caused by the said authority without the knowledge and behind the back of the writ petitioner [Smti. Hanifa Khatun] and, thus, no cognizance could have taken on such a report prepared on the basis of an ex-parte enquiry. It is the projected case of the writ petitioner that Anganwadi Centre no. 167 of Isonabad Kandi and Anganwadi Centre no. 13 are located in the same revenue village – Bihara Part – IV; the two Anganwadi Centres are located at the distance of 400 metres from each other; and the writ petitioner [Smti. Hanifa Khatun] is a resident of Bihara Part – IV revenue village.

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I have given due consideration to the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the decision in Sabita Begum vs. State of Assam and others, reported in 2018 [1] GLT 816,

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placed by Mr. K.A. Mazumder.

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The Re-Advertisement dated 26.02.2010 was published after the decision of the Government to cancel the earlier selection process initiated by the Advertisement dated 08.09.2009 for the reasons already indicated hereinabove. The Government took the decision to re-conduct the interviews for selection to all those posts of Anganwadi Workers and Anganwadi Helpers at the Additional Anganwadi Centres under the Kalain ICDS Project, Cachar which were earlier advertised on 08.09.2009 and for that purpose, fresh applications were re-invited from interested female candidates by the Re-Advertisement dated 26.02.2010. One of the Additional Anganwadi Centres under Kalain ICDS Project, Cachar for which the post of Anganwadi Helper so advertised, was Anganwadi Centre no. 167 of Isonabad Kandi. In the Re-Advertisement, it was set forth as a mandatory requirement that the candidate for the post of Anganwadi Worker/Anganwadi Helper had to be a local women residing in the area, where the Anganwadi Centre was located. The candidate had to submit a certificate of residence from the local Village Headman [Gaonburha], authenticated by the concerned Ward Member. As the other mandatory requirements and qualifications are not at issue in the two writ petitions, the same are not adverted to herein.

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It is not in dispute that after the selection process wherein the writ petitioner [Smti. Hanifa Khatun] was given the highest marks, she was offered to render voluntary service as Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi by the letter of engagement dated 04.03.2016 issued under the hand of the CDPO, Kalain ICDS Project, Cachar. It is also not in dispute that after the offer was extended to the writ petitioner

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[Smti. Hanifa Khatun], she joined the post of Anganwadi Helper at Additional Anganwadi Centre No. 167 of Isonabad Kandi on 24.05.2016 and thereafter, continued to render her services for a period until the notice dated 23.04.2018 of the CDPO, ICDS Project, Kalain issued in consequence of the order dated 31.03.2018 of the Director of Social Welfare, Assam.

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The specific contentions raised by the writ petitioner [Smti. Hanifa Khatun] regarding, firstly, not affording any opportunity of prior hearing by the Director of Social Welfare, Assam before passing the order dated 31.03.2018 and secondly, holding of an enquiry behind her back, by the CDPO, resulting in submission of a report adverse to her, have not been traversed by any of the respondents, more particularly, the State respondents in their counter affidavits filed in both the writ petitions. Though there is no specific mention in the order dated 05.09.2016, passed in the writ petition, W.P.[C] no. 5236/2016, an obligation was inherently cast upon the Director of Social Welfare, Assam to put the writ petitioner [Smti. Hanifa Khatun] on notice on receipt of the representation from the respondent no. 6 [Smti. Ambia Khatun] containing allegations against her [Smti. Hanifa Khatun] ineligibility to hold the concerned post of Anganwadi Helper, for the very reason that in the event the Director of Social Welfare, Assam reached a finding adverse to the writ petitioner [Smti. Hanifa Khatun], she would be the person who would be visited with the adverse civil consequence of losing the job of Anganwadi Helper at Additional Anganwadi Centre No. 167 of Isonabad Kandi. It is evident from the order dated 31.03.2018 itself that the Director of Social Welfare, Assam after receipt of the representation dated 30.09.2016 from the respondent no. 6 [Smti. Ambia Khatun], called for a report from the CDPO, Kalain ICDS Project, Cachar in order to examine and dispose of the representation. The CDPO, Kalain ICDS Project,

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Cachar in deference to the said direction, submitted a report with a finding that the writ petitioner [Smti. Hanifa Khatun] belonged to the area of another Anganwadi Centre no. 13, meaning thereby, she was not a resident of the area where Additional Anganwadi Centre No. 167 of Isonabad Kandi was located. It has been categorically asserted that such an adverse finding was reached by the CDPO, Kalain ICDS Project, Cachar behind the back of the writ petitioner [Smti. Hanifa Khatun], without affording any opportunity to her to explain the real situation and the said assertion has not been traversed / denied by the state respondents in any of their pleadings. It was on the basis of the said report / finding of the CDPO, Kalain ICDS Project, Cachar the Director of Social Welfare, Assam arrived at the finding that the writ petitioner [Smti. Hanifa Khatun] did not belong to the operational area of Additional Anganwadi Centre No. 167 of Isonabad Kandi and took the decision to terminate the voluntary service of the writ petitioner [Smti. Hanifa Khatun]. Thus, it is clear that the Director of Social Welfare, Assam acted upon the unilateral report of the CDPO, Kalain ICDS Project Cachar without affording any opportunity of being heard to the writ petitioner [Smti. Hanifa Khatun] to controvert the findings recorded in such unilateral report.

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It is settled proposition of law that the principles of audi alteram partem is required to be followed in all circumstances. The principles of natural justice demand that before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his or her defence. From the materials on record of the case in hand, it has clearly emerged that there was apparent violation and infraction of the indispensable audi alteram partem [right to hearing] principle as the same was not adhered to before and in passing the order dated 31.03.2018 by the Director of Social

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Welfare, Assam. In short, a person to whose prejudice an order is intended to be passed, is entitled to a hearing, which in most situations should be a hearing prior to the decision. In such view of the matter, the order dated 31.03.2018 passed by the Director of Social Welfare, Assam is found unsustainable in law and the same is liable to be set aside and quashed. It is accordingly set aside and quashed. As a result of setting aside and quashing of the order dated 31.03.2018, the consequential notice dated 23.04.2018 issued by the CDPO, Kalain ICDS Project shall stand accordingly set aside and quashed.

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The Re-Advertisement dated 26.02.2010 contained the condition that the candidate for the post of Anganwadi Worker and Anganwadi Helper had to be a local women residing in the area, where the Anganwadi Centre was located. In the case in hand, the concerned Anganwadi Centre is Additional Anganwadi Centre No. 167 of Isonabad Kandi under Behara Gaon Panchayat and Kalain ICDS Project, Cachar. The learned counsel for the writ petitioner [Smti. Hanifa Khatun] has referred to a notification bearing no. SWD.64/2007/Pt.II/10 dated 19.09.2009 of the Government in the Social Welfare Department wherein it was laid down that the candidate for the post of Anganwadi Worker and Anganwadi Helper shall be a local women residing in the same village, where the Anganwadi Centre was located. In the decision in Sabita Begum [supra], a similar condition in the concerned Advertisement as in the notification dated 19.09.2009, came up for consideration and it is held therein that the condition stipulated in the Advertisement was that the candidate must be a resident of revenue village where the Centre in question is located. Meaning thereby, if a candidate is a resident of the revenue village where the Anganwadi Centre is located, she is entitled for appointment. It is held to be not necessary that the candidate should be a resident of the locality

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where the Anganwadi Centre is located in the village. It bears repetition that in the Re-Advertisement dated 26.02.2010, the eligibility condition mentioned that the candidate should be a local women residing in the ‘area’ where the Anganwadi Centre is located. Thus, there is a slight distinction between the conditions involved in Sabita Begum [supra] where the issue was regarding the revenue village which appears to be in consequence of the notification dated 19.09.2009 and the condition set forth in the Re-Advertisement dated 26.02.2010 where the word used was ‘area’.

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Be that as it may. The matter is remanded back to the Director of Social Welfare, Assam to proceed from the stage of taking the representation dated 30.09.2016 submitted by the respondent no. 6 [Smti. Ambia Khatun] once again on board for consideration. It is observed that while taking up the same, both the parties involved therein, that is, the writ petitioner [Smti. Hanifa Khatun] and the respondent no. 6 [Smti. Ambia Khatun] should be put on prior notice and be afforded reasonable opportunities of hearing including submission of supporting materials in support of their respective contentions. It is directed that the Director of Social Welfare, Assam before arriving at the finding regarding the residential status of writ petitioner [Smti. Hanifa Khatun] shall consider and examine all such materials which are to be submitted by the parties before him and to take into consideration the then prevailing eligibility criteria/norms, etc. at the time of publication of the Re-Advertisement dated 26.02.2010 and the then extant Government Instruction on the subject. It is further observed that since the issue is with regard to the local residential status of the writ petitioner [Smti. Hanifa Khatun] within the area of Additional Anganwadi Centre no. 167 of Isonabad Kandi qua the Re-Advertisement dated 26.02.2010, the Director of Social Welfare, Assam if necessary, may consider

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calling for a report from the concerned revenue authority [the Circle Officer/the Deputy Commissioner] before passing the speaking order, as directed by the order dated 05.09.2016 passed in the writ petition, W.P.[C] no. 5236/2016 and also ordered by this order. The Director of Social Welfare, Assam shall pass the speaking order as expeditiously as possible, within an outer limit of 6 [six] weeks from the date of receipt of a certified copy of this Order from the writ petitioner [Smti. Hanifa Khatun] at his office. The continuation of engagement of the writ petitioner [Smti. Hanifa Khatun] as Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi shall abide by the outcome of such decision of the Director of Social Welfare, Assam.

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It is pertinent to reiterate that the recruitment process initiated by the Re-Advertisement dated 26.02.2010 was for filing up of one post of Anganwadi Helper at Additional Anganwadi Centre no. 167 of Isonabad Kandi under Kalain ICDS Project, Cachar. The recruitment process led to selection of the writ petitioner [Smti. Hanifa Khatun] earlier as the selected candidate for the post. She was offered the post by the letter of engagement dated 04.03.2016 and accepting the offer, the selected candidate, Smti. Hanifa Khatun joined the post of Anganwadi Helper on 24.05.2016 and discharged duties as such Anganwadi Helper until cancellation of her engagement by the order dated 31.03.2018 of the Director of Social Welfare, Assam and the consequential notice dated 23.04.2018 of the CDPO, Kalain ICDS Project, Cachar. It is settled that when once the recruitment process is complete and appointment is made, the process comes to an end. The subsequent cancellation / termination of appointed candidates would not result in revival of the recruitment process. Thus, in the case in hand, even if the ultimate decision after consideration of the representation of the respondent no. 6 by the Director of Social Welfare, Assam

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results in cancellation of the engagement of the writ petitioner [Smti. Hanifa Khatun] as the Anganwadi Helper at Anganwadi Centre no. 167 of Isonabad Kandi, the relief sought for by the respondent no. 6 in W.P.[C] no. 2852/2018 is found bereft of merit. In that view of the matter, the writ petition, W.P.[C] no. 2852/2018 is dismissed.

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With the observations made and directions given above, the writ petitions, W.P.[C] no. 3142/2018 is allowed to the extent indicated. On the other hand, the writ petition, W.P.[C] no. 2852/2018 is dismissed.

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When the writ petition, W.P.[C] no. 3142/2016 was moved on 18.05.2018, an interim order was passed to the effect that fresh appointment should not be made in the vacancy of Anganwadi Helper at Anganwadi Centre no. 167 of Isonabad Kandi pursuant to the order dated 31.03.2018 of the Director of Social Welfare, Assam. In view of the decisions rendered in the two writ petitions in the afore-stated manner, the decision about undertaking fresh recruitment process for filling up the post of Anganwadi Helper has to abide by the order to be passed on the Director of Social Welfare, Assam while disposing of the representation of the respondent no. 6 in the manner indicated above. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Hanifa Khatun v. the State of Assam and 5 Ors.

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Hanifa Khatun v. the State of Assam and 5 Ors.

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