WP(C) 6544/2010 - Gauhati High Court

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)WP(C) No. 6544/20101. Smt. Pranita Das,Wife of Sri Ganesh Das,Village – Barnibari,District-Nalbari, AssamAnd 262 others.………..Petitioners-Versus-1. The State of Assam represented by theCommissioner and Secretary to the Govt.of Assam, Social Welfare Department,Dispur, Guwahati-6.2. Commissioner and Secretary to the Govt.of Assam, Social Welfare Department,Dispur, Guwahati-6.3. Under Secretary to the Govt. of Assam,Social Welfare Department, Dispur,Guwahati-6.4. The Director of Social WelfareDepartment, Assam, Uzanbazar,Guwahati-1.5. The Joint Director of Social Welfare,Uzanbazar, Guwahati-01.6. The District Social Welfare Officer,Nalbari.7. The Child Development Project Officer,Barkhetri ICDS Project.8. Sri Balendra Nath Barman (CDPO undersuspension, Barkhetri ICDS Project),Hengrabari L.P. School, Arundoy Path,House No.6, Guwahati.

37. Rufia Khatun, W/o. Mazafar Hussain, R/o.Vill.- Loharkatha, PO.- Mukalmua, District-Nalbari, Assam.8. Annessa Begum, W/o. Sahidur Rahman,R/o. Vill.- No.1 Loharkhata, P.O.-Loharkatha, PS- Mukalmua, District-Nalbari, Assam.……..Respondents.BEFORETHE HON’BLE MR. JUSTICE B.K. SHARMAFor the Petitioners :Mr. D. Das, Sr. Adv.Ms. M. Bordoloi, Adv.Mr. K.K. Mahanta, Sr. Adv.Mr. R. Islam, Adv.For the Respondents: Mr. B.K. Sarma, SC, SWD.Ms. P. Chakraborty, SC, SWD.Mr. B. Islam, Adv.Mr. K. Bhattacherjee, Adv.Date of hearing &Judgement : 20.04.2011.JUDGEMENT AND ORDER (ORAL)Heard Mr. D. Das, learned senior counselassisted by Ms. M. Bordoloi, learned counsel for thepetitioners in WP(C) 6544/2010 as well as Mr. K.K.Mahanta, learned senior counsel assisted by Mr. R.Islam, learned counsel appearing for the petitionersin WP(C) 6591/2010. I have also heard Ms. P.Chakraborty and Mr. B.K. Sarma, learned StandingCounsel, Social Welfare Department as well as Mr. B.Islam and Mr. K. Bhattacherjee, learned counselappearing for the private respondents. Since both thewrit petitions pertain to the same impugned order,

4they have been heard together and are beingdisposed of by this common judgement and order.2. The matter pertains to selection of AnganwadiWorkers /Anganwadi Helpers, which was conductedearlier in which the petitioners were allegedlyselected. The said selection having been cancelled bythe impugned order dated 26.11.2010, the petitionershave filed the writ petitions assailing the said order.For a ready reference, the impugned order dated26.11.2010 (Annexure-IX in WP(C) 6544/2010), isquoted below :-"GOVERNMENT OF ASSAMSOCIAL WELFARE DEPARTMENTDISPUR, GUWAHATI-6No. SWD.116/2010/33Dated, Dispur, the 26 th Nov/2010SPEAKING ORDERPerused the Hon’ble Gauhati High Courtorder dated 4.11.10 passed in WP(C) No.5432/09 Miss Kuhinoor Khatun & Others –Vs-State of Assam & others. Hon’ble Court hasdirected the Govt. in the Social WelfareDepartment to take a final decision in theselection of Anganwadi Workers /AnganwadiHelpers under Barkhetri ICDS project on thebasis of the reports submitted by the EnquiryCommittee constituted by the Govt. in thisregard.Perused the enquiry report submittedby the Enquiry Committee headed by theJoint Director, Social Welfare, Assam. Aftergoing through the enquiry report, the Govt.feels that irregularities and anomalies havebeen committed by the concerned officers inthe process of selection of Anganwadi

5Workers / Anganwadi Helpers. Moreover, theobservations of the said committee havebeen already reflected in the Hon’ble Courtorder dt. 4.11.2010. It appears from thereport that the Selection had not beencarried out as per the guidelines issued bythe Govt. of Assam in case of selection ofAnganwadi Workers /Anganwadi Helpers.In view of the above, it is decided toconduct fresh interviews of AnganwadiWorkers/ Anganwadi Helpers in respect ofAnganwadi Centres, sanctioned during the 3 rdphase expansion of ICDS in Barkhetri ICDSProject from the eligible candidates who hadapplied earlier for engagement as AnganwadiWorkers / Anganwadi Helpers.Therefore, the Govt. is of the view thatthe selection has been faulty and hence theselect list prepared by the then selectioncommittee is hereby cancelled. FurtherSelection Committee is reconstituted as perguidelines in this regard, as per the followingto complete selection of Anganwadi Workers/ Anganwadi helpers within 1 (one) monthfrom the date of issue of this order.Sd/-Commissioner & Secretary to the Govt. of Assam,Social Welfare Department, Dispur.”3. The aforesaid impugned order dated 26.11.2010has been passed pursuant to the order dated4.11.2010 of this Court in WP(C) 5432/2009 alongwithWP(C) 5438/2009, WP(C) 1265/2010, WP(C)1545/2010 and WP(C) 1555/2010. Out of theaforesaid writ petitions, WP(C) 5432/2009 and WP(C)5438/2009 were filed by the candidates selected forengagement as Anganwadi Workers / AnganwadiHelpers in different Anganwadi Centres. On the other

6hand, the writ petitions being WP(C) 1265/2010,WP(C) 1545/2010 and WP(C) 1555/2010 were filedchallenging the entire selection process alleging thatthe selection, in fact, was a farcical one. One of thegrounds urged in the writ petitions was that theselect list was prepared even before the date ofinterview and subsequently manipulated by changingthe date from 11.10.2009 to 15.10.2009. Anotherground urged was that the selection was conducted ingross violation of the guidelines issued by the Govt. ofAssam from time to time.4. In the aforesaid proceeding, it was brought onrecord that in fact, an enquiry was conductedpertaining to the entire selection and the report ofthe enquiry, was also placed before the Court. Thesaid enquiry report is at Annexure-VII prepared by theDeputy Director, Directorate of Social Welfare, Assamand Joint Director, Directorate of Social Welfare,Assam. The enquiry report was produced before theCourt and there was no objection whatsoever to thefindings recorded in the said enquiry report. It is onthe basis of the said enquiry report, this Court by theaforesaid order dated 4.11.2010 directed the Govt. inthe Social Welfare Department to pass appropriateorder. The operative part of the said order is quotedbelow :-“Since there are certain allegationspertaining to anomalies in selection and theGovernment of Assam deemed it fit andproper to direct an enquiry and the enquirywas conducted accordingly, the Government

7is to take the final decision in the matter, onthe basis of the materials available on recordand keeping in view the reports submitted bythe committees appointed for that purpose,which, admittedly, has not been done. Bycommunication dated 13 th November, 2009,the selection process, that was conducted,has in fact been kept in abeyance till a finaldecision is taken by the Government in thatregard.That being the position, the presentbatch of writ petitions are disposed of with adirection to the Commissioner & Secretary toGovernment of Assam in Social WelfareDepartment to take a final decision in thematter on the basis of the reports submittedby the aforesaid committees, as well as onthe basis of the materials available onrecord, and to pass a speaking order within aperiod of 15(fifteen) days from the date ofreceipt of this order.”5. The aforesaid direction clearly reveals that thedirection issued to the Government to passappropriate order in the matter, was on the basis ofthe aforesaid report submitted by the Committee aswell as the materials available on record. Pursuant tothe said order, the Commissioner and Secretary tothe Govt. of Assam in the Social Welfare Departmenthaving passed the impugned order dated 26.11.2010,now the petitioners have come up with the plea thatthe enquiry report is not sustainable. It will have tobe borne in mind that the said enquiry report wasexhibited in the earlier round of litigation withoutany objection, whatsoever, from the petitioners.

86. On perusal of the enquiry report, it is clearlyestablished that the committee which carried out theenquiry has gone into the details of the anomalies /illegalities committed in the selection including thefact that the comparative statement was actuallyprepared on 11.10.2009 i.e. even before the selectionwas over. The said comparative statement was signedby 3 (three) members of the Committee, who are theCircle Officer, the CDPO and the Medical Officer,with clear indication of the date as 11.10.2009. Asthe enquiry committee found that the said date wassubsequently manipulated /corrected as 15.10.2009by simply writing the figure 5 over the 2 nd figure of11 to show that the comparative statement wasprepared on 15.10.2009, it has rightly been observedby the enquiry committee that each manipulationleaves some lacuna behind every manipulation andthat the 3 (three) members also left behind proof oftheir commission of the manipulation by failing tofully disfigure 11 and to make 15 appears fully correct/ or genuine, without giving rise to any doubt in themind of any one who sees and / or scrutinizes thesame. Moreover, while doing so in each of the pagesof the comparative statement so meticulously but yet2 (two) of the members, namely, the Circle Officerand the CDPO forgot to change 11 to 15, which theyput below their respective signatures in page No. 60of the comparative statement, consequent uponwhich the date 11.10.2009 remained unchanged.

97. For a ready reference, the relevant portion ofthe enquiry report dealing with the above aspect ofthe matter is quoted below :-“5.9: The enquiry revealed anothermost striking defect made in the CS is thatthe CS was actually prepared on 11.10.2009as is discernible from each of the dates putbelow each of the signatures of the threemembers of the Committee (the CircleOfficer, the CDPO and the Medical officer)which each of them subsequently correctedas 15.10.2009 by simply writing the figure 5over the second figure of 11 to show it thatthe CS was prepared on 15.10.2009. But aseach manipulator leaves some lacuna behindevery manipulation, these three members tooleft behind proofs of their commission of themanipulation by failing to fully disfigure 11and to make 15 appear fully correct orgenuine without giving rise to any doubt inthe mind of any one who sees or scrutinizesthem. Moreover, while doing themanipulation in each of the pages of the CSso meticulously yet two of the membersnamely the Circle Officer and the CDPOforgot to change 11 into 15 which they putbelow their respective signatures in Page 60of the CS of the Anganwadi Workersconsequent upon which the date of11.10.2009 remained unchanged as can beverified from the said page of the CS. But themost interesting aspect of this fact is thatthe aforesaid two non-official members havestated that the interview ended at 05-00 pmof 14.10.2009 while the said 2 CSs expresslyappeared from signatures of the aforesaid 3members of the Committee (the CircleOfficer, the CDPO and the Medical Officerrespectively as Chairman, CDPO and one ofthe members of the Committee) on the bodyof each page of the CSs concerned nthat theyactually finalized the CSs on 11.10.2009(that is 3 days before the interview ended)which they subsequently tried to show that

10the CSs were finalized on 15.10.2009 byforging the date of 11.10.2009. This was thereason that they changed the date ofpreparation of the said 2 CSs to appear thatthey were prepared on 15.10.2009 bymanipulating the date by forging theoverwriting the date of 11.10.2009 on whichthey actually had prepared the saidStatements because the said Statementscould not be prepared on any date before15.10.2009. The said statements could notalso be finalized on any date before15.10.2009 because the interview wascompleted only at 5-00 pm of 14.10.2009.But the dates, though subsequentlymanipulated by over writing, below thesignatures of the said three members asalready stated above point to the precisefact that the 2 Statements were actuallyfinalized on 11.10.2009 which furtherindicates that the Statements were finalized3 days before the interview was completedand 4 days before the Selection Committeemet and finalize them on 15.10.2009. TheSelection Committee thus ran the race byputting the cart before the horse which wasan impossible task for any average and saneman and for the same reason we too find itextremely difficult to comprehend with anydegree of certainty and reasonableness as tohow the trio could do so. And it was such aCommittee, which was headed by none otherthan the Circle Officer himself and uponwhom Government placed great reliance onhis honesty, integrity and efficiency requiredof a highly placed and responsible publicservant.”8. Although the petitioners have put to challengethe enquiry report, nothing has been stated about theabove manipulation. It is only one of the entireaspects of the matter. On perusal of the enquiryreport, illegalities in conducting the selection is

11easily discernible. That being the position, it waswithin the competence and jurisdiction of theauthorities to cancel the entire selection withdirection to conduct a fresh selection on the basis ofthe available candidatures.9. In the final observation made by the enquirycommittee, it has been held that the CDPO and theother Office bearers and members of the SelectionCommittee utterly failed to carry out theresponsibilities they ought to have discharged in theinterest of public service. As per the said observation,the CDPO and the selection committee violated thenorms and guidelines prescribed by the Government,as a consequence of which rampant discrepanciestook place in the whole process of selection andappointment of Anganwadi Workers / Helpers.Another shocking revelation is that the list wasfinalized by only 3 (three) official members withoutletting the other two non-official members to knowabout the same. As noted above, the CS was preparedeven prior to the completion of the interview. It is inthat view of the matter, the enquiry committee in itsobservation has recorded that the selectioncommittee acted with whims, arbitrariness,irresponsibility and without an iota of honesty andintegrity.10. Finally, the enquiry committee recommended inits report as follows :-

12“Thus each and every office bearer andmember of the Selection Committee stoodundoubtedly responsible in one way or the otherfor making the whose process of the selection andappointments made on the basis of such a farcicalexercise are only to be cancelled and the wholeprocess should be done anew all over again withthe office of the CDPO and the SelectionCommittee manned with new faces known for theirdiscipline, honesty and integrity.”11. Both Mr. Das and Mr. Mahanta, learned counselappearing for the petitioners submit that the enquiryreport has not been prepared properly and the sameis vitiated by error of facts. On being pointed out asto what specific pleadings have been made againstthe enquiry report, they could not point out any thingexcept the vague and indefinite submission made inthe writ petition against the enquiry report. Further,as noted above, the said report was exhibited in theearlier proceeding in presence of the petitioners andthere was no challenge to the same and / orobjection whatsoever.12. The very fact that the impugned order dated26.11.2010 has taken note of the enquiry report andthe aforesaid order passed by this Court will go toshow that the authority which has passed theimpugned order duly applied its mind to the facts andcircumstances of the case and thereafter has come tothe conclusion that there should be a fresh interview

13for the assignment of Anganwadi Workers/Helpers.Such view of the appropriate authority cannot be saidto be arbitrary and / or based on malafide exercise ofpower.13. Above being the position, I do not find anymerit in the writ petitions and accordingly they aredismissed. Interim orders operating in both the writpetitions stand vacated.14. There shall be no order as to costs.JUDGESukhamay