S.K.MISHRA, J. W.P. (C). NO.2342 OF 2009. ( Decided on 18.05. 2010.) SASMITA SAHOO ………………. Petitioner -V- STATE OF ORISSA & ORS …………….. Opp.Parties (A) CONSTITUTION OF INDIA, 1950 –ART.226. (B) CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner – M/s.Pradeep Kumar Das & T.K.Mishra. For Opp.Parties – Addl.Govt. Advocate. (for Opp.Party No.1 to 3) Mr. Bhaskar Chandra Panda, Sangeeta Mishra, Biswanath Das, J.Panda & L.Das. (for Opp.Party No.4) S.K.MISHRA, J. Petitioner in this case assails the order passed by the Collector, Bhadrak on dated 12.12.2008 in pursuance of the directions given by this Court in W.P. (C) No.9420 of 2008. 2. Petitioner was an applicant for being engaged as Anganwadi Worker with respect to Kaupur, Belagadia Anganwadi Centre, district: Bhadrak. Her application was accepted and in the short list her name was reflected, but finally her candidature was rejected on the ground that she does not reside in the service area of the aforesaid Anganwadi Centre. Thereafter, she preferred a writ application before this Court, which was disposed of directing the Collector, Bhadrak to enquire into the matter and to decide, if irregularity, as alleged, has been committed and to pass necessary orders strictly in accordance with law and the guidelines. Further case of the petitioner is that she has obtained the maximum marks in the HSC Examination among the applicants, and therefore, she is most eligible to be selected as Anganwadi Worker for the aforesaid Anganwadi Centre. It is further contended that though the Anganwadi Centre area has been notified, it has been done with material irregularities by keeping and choosing only to exclude her from zone of consideration. The petitioner also challenges the legality of imposing condition of nativity within the service area of the Anganwadi Centre. So, two essential questions arise in this case, namely, whether the condition of nativity is bad being ultra vires of Article 16 of the Constitution of India, and secondly, whether the authorities were correct in preparing the service area of this particular Anganwadi Centre. 3. This Court in Chandramani Jena and others Vs. State of Orissa and others, 2007(II) OLR 577 has held that the State has no right to make law restricting appointment on the ground of residence. The aforesaid decision of this Court relates to selection of Swechhasevi Sikshya Sahayak. In the advertisement it was stipulated that applicants should be the resident of the block in question. The Division Bench ruled that the State has no right to make a law restricting the appointment on the ground of residence. The Court further ruled that in policy matters Court has to be slow and circumspect before interfering with the same but the Governments right to frame a policy is always subject to constitutional mandate. If the complaint is that the mandate is flouted, then only the Court, which can examine the same and the Court is duty bound to do so. Observing thus the Division Bench of this Court has held that stipulation of residence of the block area as criteria for applying as Swechhasevi Sikshya Sahayak is bad as it is barred under Articles 16(2) of the Constitution of India, 1949. 4. It is observed here that an Anganwadi Worker is not a Civil Post but rather is a volunteer. The Supreme Court in State of Karnataka and Others Vs. Ameerbi and others, (2007) 11 Supreme Court Cases 681, has held that the post of Anganwadi Workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship between employer and employee and between the State and the Anganwadi Workers. But it is another thing to say that they are holders of civil posts. The Supreme Court took note of the fact that the presence of the Anganwadi Worker in their respective villages is extremely important. They are supported to make significant contribution to the society. They are required to carry out a large number of activities, primary and being welfare of the children. Further, it is noted that Anganwadi Workers do not carry any functions of the State. They do not hold post under any statute. Their posts are not created. The Supreme Court further held that the recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the Constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed. 5. In the aforesaid case, the Supreme Court further held that the rules framed under the proviso to Articles 309 of the Constitution of India are not attracted in the case of Anganwadi Worker. They are appointed under the under the scheme which is not a permanent nature although it might have continued for a long time. Appointments made under the Scheme and recruitment process being carried out through a committee would not render the incumbents thereof holders of civil posts. There is no rule or regulation governing the mode of recruitment recognizing a distinction between a post created by the Central Government or the State Governments in exercise of their power under Articles 77 or 162 of the Constitution of India or under a Statute vis-à-vis cases of this nature which are sui generies. The Supreme Court further held that the protection available under Article 311 of the Constitution of India also is not attracted in case of the Anganwadi Workers and thus, the Supreme Court held that the Anganwadi Workers are not holders of civil posts. 6. In view of the aforesaid backdrop the guidelines issued by the Government of Orissa in the Women and Child Welfare Development Department has to be considered. It is seen that the revised guidelines for selection of Anganwadi Worker were issued on 02.05.2007. The revised guidelines provide that the applications for selection of volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Centre area from women residing in the said village/Anganwadi Centre area. Among other stipulation it is seen that the Anganwadi Worker is a volunteer who gets an honorarium for the service rendered by her to the less privileged persons of her own community. She is not a government servant with any fixed or graduated pay scale. The provisions of ORV Act, 1975 and Employment Exchange (compulsory Notification of vacancies) Act, 1959 are not applicable to such selection. 7. The condition that the applicants should be from each village/Anganwadi Centre area has created the confusion but thereafter the State Government has brought out further clarification in the Government of Orissa, Women and Child Development Department letter dated 18.12.2007 wherein it has been clarified that in case in a village more than one Anganwadi Centre are opened the candidate should specify Anganwadi Centre area in which she is a resident and should specify in an affidavit that she belongs to the Anganwadi Centre area of the said village. If that is found incorrect/false she should be disengaged forthwith and suitable criminal action should be taken against her. Thus, from this clarification it is clear that the State Government intended that the applications should be invited from the residents of the service area of the particular Anganwadi Centre for which an advertisement has been issued for selection of Anganwadi Worker. In case no suitable candidate is available from the said area, then applications from the village in which the Anganwadi Centre area situates may be accepted even though the applicant is not a resident of the service area. 8. This policy of the Government has a rationale behind it. It is noted earlier that the Anganwadi Worker is not a civil servant rather is a volunteer. She is expected to render a very important function of providing pre-natal and post-natal early childhood care service of her community. Her continuing presence in the community is essential for that reason. If a person is not a resident in the community which is target area of the Anganwadi Centre, then it may not be always possible for the volunteer to attend to the needs of the expectant mothers and children. Secondly, it is noted that Anganwadi Worker is always paid a paltry sum as honorarium. It is not possible to her to take a house on rent in the service area of the Anganwadi Centre to reside there. Thus, on these two grounds, the Court is of the opinion that the policy decision taken by the State Government is correct. As already pointed out, the selection of Anganwadi Worker cannot be challenged for violating Articles 14 and 16 of the Constitution of India. This Court comes to the finding that there is no justifying reason to hold that the conditions stipulated in the revised guidelines by the State Government to the effect that the applicants should be a resident of the service area of the Anganwadi Centre requires any interference. 9. Learned Collector, Bhadrak after perusing the records has reflected in his order as follows: “It is revealed from the report of CDPO that the Anganwadi Centre has been constituted by taking house hold no.1 to 24, 35 and 50 in ward no.13 and house hold no.18 to 21, no.25 to 49, no.51 to 53 and no.63 in ward no.14. No houses of ward no.8 where the petitioner resides, has been included in the AWC area. It is clearly evident from the report that the AWC area has not been well defined. All the houses of the ward shown in the voter list have not been included in AWC area. No reasons have been ascribed for omission of houses and constituting AWC taking houses by pick and choose method. In all fairness, it will be proper to constitute AWC in a systematic and chronological order incorporating there in the houses of ward wise voter list. It appears that the CDPO has accepted the application of the petitioner and included her name in the evaluation sheet showing the merit of the candidates. The petitioner has secured highest marks as per the entries in evaluation sheet. But she has not been finally selected on the ground that she does not belong to the AWC area. If it is so, her application should have been rejected at the preliminary stage. The CDPO and other members have committed a gross mistake by including the name of the petitioner in the evaluation sheet and there after rejecting her case giving scope for entertaining doubt on fairness and transparency of selection process. The CDPO should take proper care in future not to commit such gross mistake and create any embarrassing situation. Due care should be taken to make the selection process free, fair and transparent without any procedural irregularities.” 10. Thus, the findings of the Collector, Bhadrak firstly defining the service area of the Anganwadi Centre is not proper and houses have been included by pick and choose method. Secondly, the acceptance of the application of the petitioner and reflecting the same in the merit list and thereafter rejecting the said application on the ground that nativity has cast a doubt on the whole selection process. It is one thing to say that the State has the authority to impose the condition of nativity with regard to houses of Anganwadi Worker, but it is another thing to say that the petitioner has been deliberately excluded by pick and choose method. Therefore, in this case, the Court finds that the second question should be answered in favour of the petitioner. The order passed by the learned Collector, Bhadrak as at Annexure-3 should be quashed so also the selection process and the process of delineating service area of the aforesaid Anganwadi Centre. It is needless to say that the selection of opposite party no.5 as Anganwadi Worker is therefore bad. The opposite parties are directed to start the process afresh from the stage of defining service area of the aforesaid Anganwadi Centre all over again in accordance with the guidelines prescribed by the State Government. This order be communicated to the opposite parties. Writ petition is accordingly disposed. Petitioner is directed to file requisites within three days.No Costs. Writ petition disposed of.