Smt. Manika Devi Vs the State of Assam and 8 Ors.

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GAHC010123202017

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2025:GAU-AS:15388

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

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Writ Petition (C) no. 1179/2017

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Smt. Manika Devi, W/o Sri Khageswar Nath, R/o Khalihamari, P.O. Bamunijan, P.S. Raha, District - Nagaon, Assam, Pin -782013

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……………… Petitioner

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- VERSUS -

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The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Social Welfare Department, Guwahati - 6

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The Director, Social Welfare Department, Uzan Bazar, Guwahati -1, Kamrup (Metro), Assam

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The Deputy Commissioner, Nagaon, P.O. & District – Nagaon, Pin – 782001, Assam

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The Divisional Programme Officer, ICDS Cell, Nagaon, P.O. & District – Nagaon, Pin - 782001 Assam

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The District Social Welfare Officer, Nagaon, P.O. & District – Nagaon, Pin – 782001, Assam

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The Child Development Project Officer, Raha ICDS Project, Nagaon, Pin – 782425, District - Nagaon Assam

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The Circle Officer, Raha Revenue Circle, the Chairman of the Project Level Selection Committee of AWW & AWH under Raha ICDS Project, RAHA District – Nagaon, Pin – 782425, Assam 8. Purabi Devi, W/o Mr. Nabajyoti Nath, R/O Khalihamari, P.O. Bamunijan, P.S. Raha, District – Nagaon, Pin - 782013, Assam

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Dinesh Chandra Das, the Child Development Project Officer Raha ICDS Project, Nagaon, Pin - 782425 District – Nagaon, Assam

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……………… . Respondents

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY

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Advocate for the Petitioner : Mr. D. Borah, Advocate Advocate for the Respondent nos. 1 - 7 : Mr. R. Dhar, Addl. Sr. Govt. Advocate Advocate for the Respondent no. 8 : Mr. B.K. Sarmah, Advocate Date on which Judgment is reserved : Not Applicable Date of Hearing : 16.10.2025, 24.10.2025 & 11.11.2025. Date of Judgment and Order : 11.11.2025

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Whether the pronouncement is of the Operative part of the Judgment ? : No Whether the full Judgment has been pronounced ? : Yes

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JUDGMENT & ORDER [ORAL]

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The petitioner has instituted the present writ petition under Article 226 of the Constitution seeking inter alia setting aside and quashing of engagement of the respondent no. 8, Smti. Purabi Devi who came to be engaged as an Anganwadi Worker at Pachim Khalihamari Anganwadi Centre by an Order of Engagement dated 26.11.2009 issued under the hand of the Child Development Project Officer, Raha ICDS Project, Nagaon [the respondent no. 6]. The petitioner has also sought a writ in the nature of mandamus to direct the respondent authorities, more particularly, the Director of Social Welfare, Assam, Guwahati [the respondent no. 2] and the respondent no. 6 to engage the petitioner in the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre ICDS Project, District – Nagaon in place of the respondent no. 8 on the basis of an Order dated 30.05.2012, reference of which would be made in the subsequent part of this order. The petitioner has also sought for a direction to the respondent authorities to submit an enquiry report on the point whether the respondent no. 8 is from the territorial area of Pachim Khalihamari Anganwadi Centre.

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I have heard Mr. D. Borah, learned counsel for the petitioner; Mr. R. Dhar, learned Additional Senior Government Advocate, Assam for the respondent nos. 1 to 7; and Mr. B.K. Sarmah, learned counsel for the respondent no. 8.

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The matter of selection and engagement of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre under Raha ICDS Project, District – Nagaon has been made a subjectmatter of protracted litigation since 2009.

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It was on 07.09.2009, an Advertisement was published by the respondent no. 6 for filing up the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre and some other Anganwadi Centres within his area of jurisdiction. The Advertisement set forth the eligibility criteria and other conditions for engagement of Anganwadi Workers. Applications were invited from eligible candidates by the said Advertisement. In response to the Advertisement, a nos. of applicants including the petitioner and the respondent no. 8,

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submitted their candidatures for the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre. The concerned selection process in the form of interview among shortlisted candidates was held in the ICDS Raha Project Office on 06.10.2009. After completion of the selection process, the Project Level Selection Committee compiled the marks secured by the candidates in the interview/selection process held on 06.10.2009. As per the merit list, the respondent no. 8, on position securing 301 marks, obtained the first among the candidates interviewed whereas the petitioner obtained second position securing 290 marks. In view of the fact that the respondent no. 8 secured the first position in terms of merit, the respondent no. 6 issued the Order of Engagement dated 26.11.2009 for her engagement as the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre and on being issued the Engagement Order, the respondent no. 8 joined in the said post of Anganwadi Worker.

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Assailing the selection and engagement of the respondent no. 8 as the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre and two others selected candidates at different Anganwadi Centres, the present petitioner and four others had jointly filed a writ petition, W.P[C] no. 5495/2009 [Smti. Goma Devi and four others vs. the State of Assam and others]. The writ petition, W.P.[C] no. 5495/2009 was disposed of by an Order dated 03.08.2011 with a direction to the respondent no. 2 to examine the cases of the petitioners in terms of the direction contained in an Order dated 11.05.2011 passed in a batch of writ petitions including W.P.[C] no. 215/2010 [Chitrawati Patgiri vs. the State of Assam and others].

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In deference to the direction made in the Order dated 03.08.2011, the Deputy Commissioner, Nagaon [the respondent no. 3] was requested to submit a Verification Report by the respondent no. 2 vide an Office Letter dated 30.09.2011. The respondent no. 3 had, thereafter, submitted a Verification Report to the respondent no. 2 on 06.03.2012. Upon submission of the Verification Report, the respondent no. 2 heard the petitioners in W.P.[C] no. 5495/2009 and the respondent no. 6 in respect of the matters of selection of Anganwadi Workers at three nos. of Anganwadi Centres including Pachim Khalihamari Anganwadi Centre. After hearing the concerned stakeholders, the respondent no. 2 passed an Order on

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30.05.2012 observing inter alia that the respondent no. 8 who was engaged as Anganwadi Worker at Pachim Khalihamari Anganwadi Centre, appeared to be a resident outside the area of Pachim Khalihamari Anganwadi Centre whereas the petitioner, Smti. Manika Devi [the present petitioner] was found to be a resident of the Anganwadi Centre. The respondent no. 2 also took note of the views of the respondent no. 6 and the concerned Gaonbura of Khalihamari Kisam to observe so. It was recorded that Pachim Khalihamari Anganwadi Centre was, at that time, functioning from a house near the residence of the respondent no. 8. The respondent no. 6 was directed to place the matter before the Project Level Selection Committee for taking necessary action as per norms and guidelines of the Government.

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When in deference to the Order dated 30.05.2012 of the respondent no. 2, the respondent no. 6 placed the matter before the Project Level Selection Committee, the Project Level Selection Committee held its Meeting on 21.06.2012 to examine and consider the matter for taking necessary action as per norms and guidelines issued by the Government. In its Meeting held on 21.06.2012, the Project Level Selection Committee resolved to place its view before the respondent no. 2 in the following words :-

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_Pochim Khalihamari Anganwadi Centre was opened in the present location approval by the CDPO and Circle Supervisor in ____________. Both respondents Smti. Purabi Devi, AWW Smti. Jaya Prova Devi AWH belong to the locality where the AWC is located. There is a proposal to shift the AWC in another place. If it is done then both the AWW and AWH will be outsider of that locality. As the matter is confusing a decision in this regard is sought for from the Director, Social Welfare, Assam whether fresh interview can be ordered.

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On receipt of the resolution of the Project Level Selection Committee, the respondent no. 6 forwarded the Action Taken Report made in deference to the Order dated 30.05.2012, by an Office Letter dated 30.06.2012, to the respondent no. 2 for taking further necessary steps and to issue necessary direction.

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The present petitioner had preferred a contempt petition, Contempt Case [C] no. 269/2012 alleging that there was disobedience of the direction made by the Court in its Order dated 03.08.2011. In Contempt Case [C] no. 269/2012, the Court while issuing notice to the respondents on 19.07.2012, had observed that the pendency of the contempt case would not be a bar for the alleged contemnor to comply with the Order dated 03.08.2011.

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After issuance of the notice in Contempt Case [C] no. 269/2012 on 19.07.2012, the respondent no. 2 in terms of the liberty granted in the Order dated 19.07.2012, had proceeded to pass an Order on 18.10.2012 purportedly in compliance of the direction given to the Order dated 03.08.2011. The respondent no. 2 took note of the observations made earlier in the Order dated 30.05.2012 and two reports submitted by the respondent 6 and the respondent no. 7 respectively. The Project Level Selection Committee had also submitted a Report dated 30.06.2012 before the respondent no. 2 observing that it could not take a decision in the matter and the Project Level Selection Committee sought for a direction from the respondent no. 2. In the Order dated 18.10.2012, the respondent no. 2 had ordered that the Project Level Selection Committee would review the earlier observation taken by it in the light of the Order dated 30.05.2012 of the respondent no. 2. It was further ordered that the Project Level Selection Committee shall take a fresh action for engagement of the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre as per norms and guidelines issued by the Government.

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In the meantime, the respondent no. 8 aggrieved by the Order dated 30.05.2012 passed by the respondent no. 2, preferred an appeal before the Commissioner & Secretary to the Government of Assam, Social Welfare Department [the respondent no. 1] on 24.08.2012. When the appeal was found to be not disposed of within a reasonable period of time, the respondent no. 8 as the writ petitioner, preferred a writ petition, W.P.[C] no. 2710/2013 seeking inter alia a direction to the respondent no. 1 to dispose of the appeal.

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In continuation of his earlier Order dated 18.10.2012, the respondent no. 2 through an Office Letter dated 08.04.2013 had inter alia directed the respondent no. 6 to select a

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suitable candidate from amongst the candidates who appeared in the interview held on 06.10.2009 for engagement to the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre in consultation with the Project Level Selection Committee. The respondent no. 6 was directed to submit an Action Taken Report to him immediately thereafter.

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The present petitioner had again instituted a writ petition, W.P.[C] no. 4037/2013 praying for appropriate direction to the State respondents, more particularly, the respondent no. 2 to take action in accordance with his Office Letter dated 08.04.2013. The Court took note of the fact that by the Office Letter dated 08.04.2013, the respondent no. 2 directed the respondent no. 6 to select a suitable candidate from amongst the candidates who appeared in the earlier interview in consultation with the Project Level Selection Committee. Taking note of the same, the writ petition was disposed of by an Order dated 09.10.2013 directing the respondent no. 6 to proceed with the matter in accordance with law pursuant to the Office Letter dated 08.04.2013 and to carry out the exercise as expeditiously as possible, preferably within 31.12.2013.

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A Meeting of the Project Level Selection Committee was held on 25.10.2013 wherein it was decided that in view of the interim stay Order dated 06.06.2013 passed in W.P.[C] no. 2710/2013 [Purabi Devi vs. State of Assam], the Committee would stick to its earlier decision taken on 21.06.2012 subject to the final decision taken in W.P.[C] no. 2710/2013. The Minutes of the Meeting dated 25.10.2013 of the Project Level Selection Committee was forwarded by the respondent no. 6 to the respondent no. 2 by an Office Letter dated 18.11.2013.

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When contempt case, Contempt Case [C] no. 269/2012 came up for consideration on 22.11.2013, it was submitted on behalf of the respondents that the direction made in the Order dated 03.11.2011 passed in W.P.[C] no. 5495/2009 had since been complied with. The petitioner disputed such submissions stating that the Order in question had not been complied with in letter and spirit. The Court without going into any disputed question and taking note of the fact that the compliance was stated to have been made by the respondents, disposed of the contempt petition granting liberty to the petitioner to challenge

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the purported compliance stated to have been made by the respondents in the appropriate forum. While disposing of the contempt petition by Order dated 22.11.2023, the Court recorded its view that it would not be proper to examine the legality and correctness of the purported compliance stated to have been made by the respondents in limited contempt jurisdiction and, instead, it could be more appropriately examined in other proceedings where the scope and jurisdiction would be much larger to examine all issues arising in the case including that of the purported compliance also.

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Alleging the respondent no. 2 and the respondent no. 6 did not carry out the exercise for a period of time, as directed in the Order dated 09.10.2013 [supra], the petitioner instituted a contempt petition, Contempt Case [C] no. 213/2014 alleging non-compliance of the direction. When Contempt Case [C] no. 213/2014 came up for consideration on 23.02.2015, the learned counsel for the respondents submitted that the exercise would be carried out and completed within a period of two months. Having regard to such submission, the Court closed the contempt petition on 23.02.2015 reserving the liberty to the petitioner to file fresh petition for contempt if the order was not passed within a period of two months.

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When the writ petition, W.P.[C] no. 2710/2013 was listed on 29.05.2015, it was apprised before the Court by the petitioner therein, that is, the respondent no. 8 herein that the appeal preferred on 24.08.2012 before the respondent no. 1 was not disposed of till that date. An Order was passed on 29.05.2015 after the parties arrived at a broad consensus, disposing of the writ petition by directing the respondent no. 1 to dispose of the appeal preferred by the respondent no. 8 as the appellant on 24.08.2012 within a period of one month from the date of receipt of a certified copy of the order along with a copy of the writ petition to be furnished before the respondent no. 1. It was further observed that till the respondent no. 1 would take a decision in the appeal dated 24.08.2012 filed by the respondent no. 8 as the appellant, no action prejudicial to the appellant, that is, the respondent no. 8 shall be taken by the respondents.

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As the respondent no. 8 was engaged as the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre by the Order dated 26.11.2009 and joined in the said post immediately

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thereafter, the respondent no. 8 continued to discharge the duties since her joining and her position was not disturbed.

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A copy of the Minutes of the Meeting of the Project Level Selection Committee [marked and kept as Document - ‘A’], held on 09.06.2014, has been placed before the Court. It is noticed that in the Meeting held on 09.06.2014, the Project Level Selection Committee considered the matter of selection of a suitable candidate to the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre in terms of the direction made by the respondent no. 2 in his Office Letter dated 08.04.2013 and in compliance of the Order dated 09.10.2013 passed in W.P.[C] no. 4037/2013 [Manika Devi vs. State of Assam]. The Project Level Selection Committee, after a threadbare discussion, verified the applications which were submitted by the candidates, the records of the earlier interview process and the comparative statements so prepared. The Project Level Selection Committee had unanimously decided that the respondent no. 8 who was engaged as Anganwadi Worker earlier, was found suitable amongst all the candidates who appeared in the interview. The Project Level Selection Committee also took consideration of the interim Order of stay passed in W.P.[C] no. 2710/2013 [Purabi Devi vs. State of Assam]. Taking note of the above the interim order of stay, the Project Level Selection Committee decided not to issue any fresh engagement order to the respondent no. 8 as she was already discharging her duties as Anganwadi Worker in terms of the earlier Order of Engagement dated 26.11.2009.

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In deference to the Order dated 09.10.2013 passed in W.P.[C] no. 4037/2012 [Smti. Manika Devi vs. the State of Assam and others] and the Order dated 23.02.2015 passed in Contempt Case [C] no. 213/2014 [Smti. Manika Devi vs. Hemango Kishore Sharma and others], the respondent no. 6 examined the records of the selection process for the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre. The respondent no. 6 in compliance of the direction made by the respondent no. 2 in his Office Letter dated 08.04.2013 to select the suitable candidate from amongst the candidates who appeared in the Interview held on 06.10.2009, considered the decision taken by the Project Level Selection Committee in its Meeting held on 09.06.2014. The respondent no. 6 found that the Project Level Selection Committee in its Meeting held on 09.06.2014 took an unanimous

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decision on the basis of the relevant records, interview performance, interview, Enquiry Reports dated 29.11.2012 & 04.01.2014 of the jurisdictional Circle Supervisor and the earlier Minutes of the Meetings of the Project Level Selection Committee, held on 21.06.2012 & 25.01.2013, that the respondent no. 8 was found suitable amongst the candidate who appeared in the interview. The respondent no. 6 had also considered the application forms submitted by the candidates, more particularly, the residence certificates issued by the concerned Gaonbura as well as the Survey Register of the Anganwadi Centre area. After such examination and consideration, the respondent no. 6 recorded his finding in an Order dated 24.04.2015. A copy of the Order dated 24.04.2015 was sent to both the present petitioner and the respondent no. 8 in addition to the respondent no. 1 and the respondent no. 2.

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The petitioner has annexed a copy of the Order dated 24.04.2015 as Annexure-L to the writ petition. The relevant parts of the Order dated 24.04.2015 read as under :-

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In view of the aforesaid facts based on records, Smti. Purabi Devi is a suitable candidate amongst the candidates who appeared in the earlier interview who has been working in the AWC in question on the basis of engagement letter dated 26.11.2009 as well as in terms of Court’s Order dated 06.06.2013 in W.P.[c] no. 2710/2013 [Purabi Devi vs. State of Assam and others] and as such, in terms of the Court’s Order dated 09.10.2013 in W.P.[C] no. 4037/2012 [Manika Devi vs. State of Assam and others], the CDPO concerned proceeded with the matter and decision has been taken by virtue of the said Project Level Selection Committee held on 09.06.2014 to select Smti. Purabi Devi as suitable candidate from amongst the candidates who appeared in the earlier interview. Hence the order dated 09.10.2013 passed in W.P.[C] no. 4037/2012 has been complied with.

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In view of the Order dated 29.05.2015 passed in W.P.[C] no. 2710/2013 alleging noncompliance of the direction made in the Order dated 09.10.2013 passed in W.P.[C] no. 4037/2013, the present petitioner as the contempt petitioner filed a contempt petition, Contempt Case [C] no. 606/2015. The respondents were put to notice. When the case was listed on 12.08.2016, it was represented on behalf of the respondents that the direction of

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the Court made in the Order dated 09.10.2013 had been duly complied with. In the affidavitin-opposition filed on behalf of the Child Development Project Officer, Raha ICDS Project, the Minutes of the Meeting of the Project Level Selection Committee held on 09.06.2014 was annexed. It was, thereby, submitted that the direction to select a suitable candidate as Anganwadi Worker for Pachim Khalihamari Anganwadi Centre had been duly complied with. The Court after having perused the contents of the affidavit-in-opposition filed on behalf of the respondents, found that the direction made in the Order dated 09.10.2013 had been duly complied with. In its Order dated 12.08.2016, the Court observed that there would be no necessity to pursue the contempt petition and the contempt petition was accordingly closed.

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The present wit petition was thereafter filed on 17.02.2017 seeking the reliefs, mentioned hereinabove.

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During the pendency of the writ petition, it was brought to the notice of the Court by the learned counsel for the petitioner that the appeal preferred by the respondent no. 8 was not disposed of. Mr. Borah, learned counsel for the petitioner has submitted that in compliance of the Order dated 29.05.2015 passed in W.P.[C] no. 2710/2013 [Purabi Devi vs. State of Assam], the respondent no. 8 was continuing her service in terms of the original Order of Engagement dated 26.11.2019. The Court, by an Order dated 31.07.2023, directed the learned Government Advocate to obtain instructions regarding pendency of the appeal or any order passed in the appeal.

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Mr. Sarmah, learned counsel for the respondent no. 8 has submitted that by the Order dated 29.05.2015 passed in W.P.[C] no. 2710/2013, the respondent no. 1 was directed to dispose of the appeal preferred by the respondent no. 8 on 24.08.2012 within a period of one month from the date of receipt of a certified copy of the order along with a copy of the writ petition by the petitioner to the respondent no. 1. Mr. Sarmah has submitted that he has no instruction as to whether a certified copy of the Order dated 29.05.2015 was submitted before the respondent no. 1. Mr. Sarmah has further submitted that the respondent no. 8 did not prefer any contempt petition alleging non-compliance of the direction made in the Order dated 29.05.2015 [supra]. If the appeal stated to have been filed by the respondent no. 8

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before the respondent no. 1 on 24.08.2012 was not disposed of by the respondent no. 1 as per the direction made therein and no contempt had been preferred alleging non-compliance of the direction, it is not open for the respondent no. 8 to submit anything as regards nondisposal of the appeal. Similarly, the present petitioner has no locus to make any submission as regards non-disposal of the appeal preferred by the respondent no. 8, before the respondent no. 1.

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It is noticed that the present petitioner was part of the five petitioners in the writ petition, W.P[C] no. 5495/2009 [Smti. Goma Devi and four others vs. the State of Assam and others], which was disposed of by an Order dated 03.08.2011 with a direction to the respondent no. 2 to examine the cases of the petitioners in terms of the direction contained in the Order dated 11.05.2011 passed in another batch of writ petitions including W.P.[C] no. 215/2010 [Chitrawati Patgiri vs. the State of Assam and others]. Pursuant to the Order dated 03.08.2011, a verification report was submitted by the respondent no. 3 before the respondent no. 2 on 06.03.2012. The respondent no. 2 conducting a hearing with the stakeholders, passed the Order on 30.05.2012, recording his tentative views on the matter, to place the matter before the Project Level Selection Committee for taking necessary action as per the norms and guidelines of the Government in force. When the matter was placed before the Project Level Selection Committee on 21.06.2012 for examination and consideration of the matter for taking necessary action as per the norms and guidelines issued by the Government, the Project Level Selection Committee resolved upon examination and consideration, that the respondent no. 8 already engaged as Anganwadi Worker, was found to have belonged to the locality where Pachim Khalihamari Anganwadi Centre was located. However, not taking a final decision in the matter, the Project Level Selection Committee forwarded the matter again to the respondent no. 2 for his decision with a query whether fresh interview could be ordered.

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When the Resolution dated 21.06.2012 was placed before the respondent no. 2, the respondent no. 2 taking note of the Resolution adopted by the Project Level Selection Committee and the liberty granted by the Court in its Order dated 19.07.2012 passed in contempt case, Contempt Case [C] no. 269/2012, passed the Order dated 18.10.2012 in

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purported compliance of the direction given in the Order dated 03.08.2011. The respondent no. 2 took note of the observations made earlier in the Order dated 30.05.2012; two other reports submitted by the respondent no. 6 and the respondent no. 7; and the Report dated 30.06.2012 of the Project Level Selection Committee. By the Order dated 18.10.2012, the respondent no. 2 had ordered that the Project Level Selection Committee would review the earlier observation taken by it in the light of the Order dated 30.05.2012 and would take further action for engagement of the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre as per the norms and guidelines issued by the Government. However, the respondent no. 2, on 08.04.2013, issued another Office Letter to the respondent no. 6 with a direction to select a suitable candidate from amongst the candidates who appeared in the earlier interview for engagement to the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre in consultation with the Project Level Selection Committee. Though in the direction made by the respondent no. 2 in the Order dated 08.10.2012 the respondent no. 2 had set certain criteria for selection and engagement of the Anganwadi Worker at Pachim Khalihamari Anganwadi Centre, the respondent no. 2 by the subsequent Office Letter dated 08.04.2013 had made a specific direction to select a suitable candidate from amongst the candidates who appeared in the earlier interview for engagement to the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre in consultation with the Project Level Selection Committee without insisting for compliance of his direction made on 08.10.2012. The purport of the Order dated 08.04.2013 of the respondent no. 2 was to select suitable candidate from amongst the candidates who appeared in the earlier interview held on 06.10.2009.

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It is pertinent to mention that the Child Development Project Officer of the concerned Block is the authority who engages Anganwadi Workers in Anganwadi Centres within his area of jurisdiction and the Director, Social Welfare, Assam is not the engaging authority of Anganwadi Workers. In other words, The Child Development Project Officer is the appointing authority for engagement of Anganwadi Worker in an Anganwadi Centre.

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After the Order dated 08.04.2013, it was the present petitioner who instituted writ petition, W.P.[C] no. 4037/2013 praying for appropriate direction to the State respondents to take action in accordance with the Office Letter dated 08.04.2013. By such action on the part

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of the present petitioner seeking compliance of the direction made in the Order dated 08.04.2013, the present petitioner had clearly foregone to pursue the matter in terms of the direction made in the Order dated 03.08.2011 [supra]. Rather, the present petitioner acquiesced with the direction made in the Order dated 08.04.2013. The Court in view of such submission made on behalf of the present petitioner, disposed of the writ petition, W.P.[C] no. 4037/2013 by the Order dated 09.10.2013 directing the respondent no. 6 to proceed with the matter in accordance with law pursuant to the Office Letter dated 08.04.2013.

¶77

When the required exercise was not carried out for a period of time, it was the present petitioner again who instituted a contempt petition, Contempt Case [C] no. 213/2014 alleging non-compliance of the direction made in the Order dated 09.10.2013. When it was submitted before the Court on 23.02.2015 that the required exercise would be carried and completed within a period of two months, the contempt petition was closed by an Order dated 23.02.2015 reserving the liberty to the petitioner to file a fresh petition for contempt if the order was not passed within a period of two months.

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In the Black’s Law Dictionary, 9^th Edition, the meaning ascribed to ‘acquiesce’ is ‘to accept tacitly or passively; to give implied consent to [an act]’ and to ‘acquiescence’ is ‘a person’s tacit or passive acceptance; implied consent to an act’. It is an accepted position that acquiescence does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the person has become aware of it. It is unjust to give such a person a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. Acquiescence means an implied and reluctant consent to an act. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does takes place. Once such a situation arises, it is not open to the party that acquiesced itself to

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insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties.

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It was prior to 23.02.2015, a Meeting of the Project Level Selection Committee was held on 09.06.2014 wherein the matter of selection of the suitable candidate to the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre in terms of the direction made in the Office Letter dated 08.04.2013 and in compliance of the Order dated 09.10.2013 was considered. The Project Level Selection Committee after threadbare discussion, verified the applications which were submitted by the candidates, the records of the earlier interview process and the comparative statements so prepared. The Project Level Selection Committee had unanimously decided that the respondent no. 8 who was engaged as Anganwadi Worker earlier, was found suitable amongst the candidates who appeared in the interview on 06.10.2009. Taking note of the Order passed in W.P.[C] no. 2710/2013, the Project Level Selection Committee decided not to issue any fresh engagement order to the respondent no. 8 as she was already discharging her duties as Anganwadi Worker in terms of the earlier Order of Engagement dated 26.11.2009.

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It was in consideration of the Order dated 09.10.2013 passed in W.P.[C] no. 4037/2012; the Resolution adopted by the Project Level Selection Committee in its Meeting held on 09.06.2014; and the Order dated 23.12.2015 passed in contempt case, Contempt Case [C] no. 213/2014; the respondent no. 6 examined the records of the selection process for the post of Anganwadi Worker at Pachim Khalihamari Anganwadi Centre once again. The respondent no. 6 in compliance of the direction made by the respondent no. 2 in his Office Letter dated 08.04.2013 to select the suitable candidate from amongst the candidates who appeared in the interview held on 09.10.2009, agreed with the decision taken by the Project Level Selection Committee on 09.06.2014. It needs iteration that in its Meeting held on 09.06.2014, the Project Level Selection Committee took a unanimous decision on the basis of the relevant records, interview performance, enquiry reports - dated 29.11.2012 & 04.01.2014 - of the jurisdiction Circle Supervisor and the earlier Minutes of the Meetings of the Project Level Selection Committee, held on 21.06.2012 & 25.01.2013, concluding that the respondent no. 8 was found suitable amongst candidates who appeared in the earlier

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interview. The respondent no. 6 also considered the application forms submitted by the candidates, more particularly, the residence certificates issued by the concerned Gaonbura as well as the Survey Register of the Anganwadi Centre area. It was after such examination and consideration, the respondent no. 6 recorded its findings in the Order dated 24.04.2015, in the manner, already extracted in Paragraph-21 above. The respondent no. 6 had observed that the Order dated 24.04.2015 was passed in compliance of the Order dated 09.10.2013 passed in W.P.[C] no. 4037/2012.

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The learned counsel for the petitioner has made a submission that it is due to nondisposal of the appeal preferred by the respondent no. 8 before the respondent no. 1 and the operation of the Order dated 29.05.2015, the Order dated 24.04.2015 could not be termed as an order attaining finality. The Order dated 29.05.2015 was passed in W.P.[C] no. 2710/2013, a writ petition instituted by the respondent no. 8 and not by the present petitioner. After the Order dated 29.05.2015, the respondent no. 8 appeared to have not filed any case alleging non-compliance of the direction to the respondent no. 1 to dispose of the appeal within a stipulated period of one month from the date of submission of a certified copy of the Order. It is not known whether the respondent no. 8 submitted any certified copy of the Order dated 29.05.2015 before the respondent no. 1 for disposal of the appeal in view of the submission made by the learned counsel for the respondent no. 8. If such certified copy of the Order dated 29.05.2015 was not submitted by the respondent no. 8 before the respondent no. 1, the respondent no. 1 would have no occasion to dispose of the appeal and the order regarding restraint in taking any prejudicial action against the respondent no. 8 would have lost its force. As no material in this connection is available in the case record and no submission has been made in this regard, no further observation is required to be made on such count.

¶86

Reverting back to the prayers made in this writ petition, it is noticed that the petitioner has sought for a writ in the nature of mandamus for directing the respondent authorities, more particularly, the respondent no. 2 and the respondent no. 6 to act on the basis of the Order dated 30.05.2012. From the discussion made above, it is noticed that the petitioner by an act of acquiescence, had herself insisted for compliance of the direction made in the Order

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dated 08.04.2013 for which, the petitioner pursued the matter through the writ petition, W.P. [C] no. 4037/2013 and the contempt petition, Contempt Case [C] no. 213/2014. Therefore, it is not open for the present petitioner, in the considered view of the Court, to insist on such prayer for compliance of the Order dated 30.05.2012.

¶89

It is a settled proposition that an order which is not challenged in a writ petition cannot be set aside and/or quashed by the writ court. By the Order dated 24.04.2015, the respondent no. 6 had decided that the respondent no. 8 was the suitable candidate amongst the candidates who appeared in the interview on 06.10.2009 pursuant to the Advertisement dated 07.09.2009. In the Order dated 24.04.2015, the respondent no. 6 had also recorded the satisfaction that the residence of the respondent no. 8 was found to be within the area of jurisdiction of Pachim Khalihamari Anganwadi Centre on the basis of the reports submitted by nos. of authorities mentioned therein. The copy of the Order dated 24.04.2015 was sent to both the present petitioner and the respondent no. 8 for their information. Yet, the present petitioner has chosen not to challenge the Order dated 24.04.2015 despite making it a part of the pleadings.

¶90

The departmental authorities made a nos. of enquiries through a nos. of authorities for asserting the residential status of the respondent no. 8 in order to find out whether the residence of the respondent no. 8 was within the area and jurisdiction of Pachim Khalihamari Anganwadi Centre. Reference of those enquiry reports has been made in the Order dated 24.04.2015 passed by the respondent no. 6. The matter of such determination of the residential status of the respondent no. 8 is after a fact finding exercise and the court exercising the power of judicial review under Article 226 of the Constitution of India does not embark into any fact finding exercise in respect of such matters to disturb the findings recorded by the competent authorities after fact-finding exercise. In such view of the matter, no further enquiry, as sought for by the petitioner in this writ petition, is called for.

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It is also worthwhile to mention that the subsequent to the Order of Engagement dated 26.11.2009, the respondent no. 8 has been continuously serving as Anganwadi Worker at Pachim Khalihamari Anganwadi Centre for last about 16 years.

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In view of the discussion and the observations made above and the reasons assigned therein, this Court finds that this writ petition is bereft of any merits. This Court does not find any reason, not to speak of any good and sufficient reason, to interfere with the Order of Engagement dated 26.11.2009 made in favour of the respondent no. 8 when the respondent no. 8 emerged as the first rank candidate amongst all the candidates and to allow the reliefs sought for in this writ petition. Consequently, the writ petition stands dismissed. No order as to cost.

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JUDGE

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Digitally signed by Rupam Basumatary Date: 2025.11.14 14:55:53 +05'30'

Smt. Manika Devi v. the State of Assam and 8 Ors.

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Smt. Manika Devi v. the State of Assam and 8 Ors.

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