WP(C) 4736/2009 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGEMENT AND ORDER (ORAL) Heard Mr. D. Das, learned counsel for the petitioners and Ms. P. Chakraborty, le arned Standing Counsel for Social Welfare Department, Assam. None appeared for r espondent No. 7. 2. By invoking writ jurisdiction of this Court under Article 226 of the Con stitution of India, the petitioners have challenged the validity and legality of the advertisement dated 09.09.2009 vide Annexure-2 on the ground that no provis ion for reservation of post in respect of candidates for the post of Anganwadi W orker and Helper belonging to Scheduled Caste community has been made in the imp ugned advertisement. While putting the advertisement in question under challenge , the petitioners contended that among the newly sanctioned Anganwadi centers, t he No. 128 Das Para Anganwadi Centre is situated at Das Para area of Niz Monir char revenue village and the center has been named as No. 128 Das Para Anganwadi Centre. It has been further contended in the writ petition that the Das Para ar ea is mostly populated by Scheduled Caste community and keeping in view the back wardness of the people of the said area, the government sanctioned the Anganwadi center at Das Para for upliftment of the community. According to the petitioner s, keeping in view the population pattern of the locality for which the center i n question was sanctioned by the government as well as the statutory provision r elating to the reservation policy and the government notification dated 19.09.20 09 (vide Annexure-I to the Additional Affidavit filed by the petitioners), the r espondent authorities ought to have reserved at least two posts of Anganwadi wor ker and helper sanctioned for No. 128 Das Para Anganwadi Centre. Having not done that, according to petitioners, the impugned advertisement is liable to be set aside. 3. During the course of argument, it has been submitted by Mr. Das, leaned counsel for the petitioners that the respondent No. 4 has admitted in her affida vit-in-opposition that though as per Government guidelines dated 19.09.2009 (Ann exure-A to the affidavit-in-opposition) the reservation policy for SC/ST/Tea Tri bes should be followed for filling up the vacancies of Anganwadi Worker/Helper, that is not done inadvertently in No. 128 Das Para Anganwadi Centre. He further submits that the respondent No.5, i.e. the selection board has also admitted in its affidavit-in-opposition that the reservation for SC/ST could not be mentione d inadvertently and the respondent No.5 has tendered apology therefor which indi cates that the two posts in question ought to have been filled up by candidates belonging to Scheduled Caste community. Further, having drawn the attention of t his Court to the counter affidavit filed by the respondent No. 2, Mr. Das submit s that upon perusal of the statements made on oath in the counter affidavit, it would reveal that similar illegalities have been committed by the Social Welfare Department, Assam, in other Anganwadi centers also. Mr. Das submits that the co unter affidavit of respondent No. 2 is absolutely silent as to what actions have been initiated or taken against the erring officers for commission of such seri ous illegalities which have resulted in deprivation of legitimate rights of the candidates belonging to reserved categories. 4. On the other hand, by filing an affidavit-in-opposition, it has been con tended by respondent No. 7 that total number of votes in revenue village of Niz Monirchar is 1503 and out of 1503 voters, only 170 voters belong to scheduled ca ste community and therefore, the respondent authorities have not committed any i llegality by not following the reservation policy. In reply to that contentions of the respondent No. 7, Mr. Das, leaned counsel for the petitioners has submitt ed that the population pattern of village Niz Monirchar Das Para is relevant in the instant case and not of revenue village Niz Monirchar as contended by respon dent No. 7. The center in question has been sanctioned for Das Para area and alm ost all the people of Das Para belong to Scheduled Caste community. In support o f his contention Mr. Das has drawn the attention of this Court to the certificat e dated 10.07.2010 issued by the President of Monirchar Gaon Panchayat vide Anne xure 1 to the affidavit-in-reply filed by the petitioners against the affidavit- in-opposition filed by respondent No.7. 5. Admittedly respondent No. 7 has referred to population pattern of revenu e village Niz Monirchar and not of Niz Monirchar Das Para for which the center i n question has been sanctioned. That being the position, the contention of the r espondent No. 7 is not tenable, more so, when the respondent Nos. 2, 4, and 5 ha ve admitted in their respective affidavits that non-mentioning of reservation fo r SC/ST candidates in the impugned advertisement is a mistake on their part. 6. From the affidavits-in-opposition filed by the respondent Nos. 2, 4 and 5 it appears that final select list has not been made and the posts of Anganwadi worker and Helper in No. 128 Das Para Anganwadi Centre are not yet filled up du e to pendency of the instant writ petition in this Court. Relevant portion of pa ra 6 of the affidavit-in-opposition filed by respondent No.5 is quoted hereunder : ....It is pertinent to mention here that the advertisements (Annexure-2 to the writ petition) was issued and published for filling up the post of Anganwadi Wor ker and Helper by the Respondent No.4, i.e. Child Development Project Officer, S outh Salmara ICDS Project, Dist. Dhubri. Although the interview was held but the final selection was not made due to which the engagement letter has not been is sued against the said Anganwadi Center till date. 7. The commission and/or omission as alleged in the writ petition which hav e been admitted by the respondent Nos. 2, 4 and 5 in their respective counter af fidavits is indeed a serious one and this Court cannot remain as mute spectator to such illegal acts of a government department. On the other hand, being the He ad of the Department, the respondent No. 2 appears to be least concerned about t he illegalities committed by his subordinate officers, which is an unfortunate s tate of affairs. 8. From the materials available on record, it conclusively appears to me th at the reservation policy applies in respect of filing up of the vacancies in th e post of Anganwadi Worker and Helper under the Social Welfare Department and th erefore, making an advertisement for filing up of such posts without following t he reservation policy is illegal and unconstitutional. It is admitted position i n the instant case that the two posts of Anganwadi Worker and Helper are not fil led up as yet by the respondent authorities. On the other hand, in the affidavit -in-opposition filed by respondent No.4 it has been stated on oath at para 6 as follows: 6. That with regard to the statements made in paragraphs 6, 7 and 8 of the writ petition, the deponent begs to state that as per Govt. guidelines vide Noti fication No.SWD.64/2007/Pt.II/10, dated 19.9.2009 and corrigendum No.SWD.64/2007 /Pt.II/12 dated 22.9.2009 wherein it is specifically mentioned that in case of Anganwadi Centre where the SC, ST or Tea Tribes population is more than 40% of t he total population, selection should be made from the caste/Tribe having more t han 40% and the list should be placed at the time of interview, so that, selecti on can be made giving priority to that caste/tribe . But inadvertently the reser vation for SC/ST candidate could not be mentioned in the advertisement and as su ch the deponent tenders unqualified apology before this Hon’ble Court. Therefore , the deponent may be allowed to re-advertise for filling up the post of Anganwa di Worker and Helper in Das Para Anganwadi Center under this Project if the Hon’ ble Court deem fit and proper.... 9. Considering the matter in its entirety and in view of the discussion mad e hereinabove, the impugned advertisement cannot stand in the eye of law. I, the refore, set aside and quash the impugned advertisement dated 09.09.2009 (Annexur e-2) in so far as the post of Anganwadi Worker and Helper of No. 128 Das Para An ganwadi Centre is concerned. Consequent thereto the respondents are directed to re-advertise the said two posts following reservation policy and thereafter comp lete the selection process and appointment as early as possible, preferably with in a period of 4 (four) weeks from the date of publication of the advertisement. The advertisement would be published within 4 (four) weeks from today. The writ petition is allowed as indicated above. No costs. 10. Before parting, I am constrained to hold that the Social Welfare Departm ent of Government of Assam failed to observe the constitutional mandates of Arti cle 16 of the Constitution, even in an insignificant Grade- IV post, more partic ularly so, in a department closely connected with poor rural villagers. I hope a nd trust that the department would take adequate measure to ensure that no such complain shall arise in future.