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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11270 of 2013 Applications under Articles 226 & 227 of Constitution of India. --------------- Smt. Airabati Mahanta ...… Petitioner -Versus- State of Odisha and Others ..… Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. S.P. Mishra, A. Mishra D.P. Patra, S. Mishra & R.K. Kanungo, Advocates For Opp. Parties : Mr. S.N. Patnaik, [Addl. Government Advocate] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 6th August, 2024 SASHIKANTA MISHRA, J. The Petitioner has approached this Court with the following prayer:- “Therefore, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to admit Page 1 of 14 this writ application, call for the records, issue Rule NISI calling upon the opp. Parties to show cause- (i) As to why the order dated 28.03.2011 passed by the Collector, Mayurbhanj and notification in respect of Baria-II Anganwadi Centre dt. 16.04.2013 under Annexures- 7 & 8 respectively shall not be quashed. (ii) As to why the opp. Parties shall not be directed to complete the selection process held in the year 1999. And if the opp. Parties fail to show cause and showing insufficient cause the said Rule Nisi be made absolute and direct the opp. Parties to engage the petitioner as Anganwadi Worker of Baria-II Anganwadi Center. And further be pleased to pass such other order(s)/writ(s) as this Hon’ble Court deems just and proper in the facts and circumstances of the case. And for this act of kindness the petitioner as in duty bound shall every pray.” 2. An advertisement was issued by the C.D.P.O., Jashipur on 05.03.1999 for engagement of Anganwadi workers of different Anganwadi centers including Baria-II Anganwadi center. The petitioner was one of the applicants. She was asked to attend interview on 16.06.1999. At that stage, one Jatrimani Mahanta approached this Court challenging the selection process in OJC No.7198 of 1999. This Court passed an interim order Page 2 of 14 on 22.06.1999 permitting the selection process to continue but with direction that no final decision shall be taken without leave of the Court. On 11.10.2008 said Jatrimani Mahanta died. By order dated 24.09.2008, this Court disposed of the writ petition filed by her canceling the selection process and directing commencement of fresh selection process. Having come to learn of the developments as above, the petitioner approached this Court in W.P.(C) No.10476 of 2009. This Court, by order dated 25.07.2009 disposed of the writ petition directing, the Collector, Mayurbhanj to complete the selection process within three months. The Collector passed necessary order on 03.08.2009 directing the C.D.P.O., Jashipur to do the needful. But the C.D.P.O. invited fresh applications vide notice dated 01.09.2009 only from candidates belonging to SC/ST category. The petitioner therefore again approached this Court in W.P.(C) No. 14081 of 2009, which was dismissed by order dated 26.10.2009 taking note of the stand taken by the State- Opposite Parties that selection process had been Page 3 of 14 completed and as the petitioner is a General Caste candidate her candidature cannot be considered for the center, which is coming under the scheduled area. The petitioner again approached the Collector as the post was not filled up. Since no action was taken, the petitioner approached this Court yet again in WP.(C) No.19096 of 2010, which was disposed of on 23.12.2010 by directing the Collector, Mayurbhanj to dispose of the representation within 45 days. Pursuant to such order, the Collector, by
Decision
order dated 07.03.2011 disposed of the representation by passing a reasoned order. On 10.05.2013, the C.D.P.O., Jashipur again invited a fresh application. Being thus aggrieved, the petitioner has approached this Court in the present writ application. 3. Counter affidavit has been filed by the State-opposite parties (Opp. Party Nos. 2, 3 and 4) refuting the averments of the writ application inter alia stating that the self-same issue has already been decided by this Court in the previous writ petitions. The Collector, after considering the different orders passed by this Court and Page 4 of 14 the relevant facts on record rejected the representation of the petitioner as the center in question comes under scheduled area. Further, a vacancy was created as the performance of the person appointed, namely, Basundhari Guiya was not satisfactory for which she was disengaged w.e.f. 06.04.2013 again creating a vacancy, which was advertised. 4. The petitioner filed a rejoinder stating that law does not permit the authorities to change the guidelines midway through a selection process. Further, only because of the interim order passed in OJC No.7198 of 1999, she could not be appointed. Nevertheless, this Court in W.P.(C) No.10476 of 2008 directed for completion of the selection process. So, instead of completing the selection process initiated in the year, 1999, the opposite parties have stalled the matter on the ground of scheduled area. It is also submitted that such assertion of the authorities is also false in view of the fact that recently an advertisement was issued for appointment of Anganwadi helper of the very same center wherein the post was kept Page 5 of 14 reserved for OBC category. 5. An additional affidavit has been filed by the C.D.P.O., Jashipur wherein it is stated that the order passed in OJC No.7198 of 1999 directing cancellation of the advertisement of 1999 and to go for fresh selection has not been overruled. Moreover, this Court in W.P.(C) No. 10476 of 2009 also did not whisper anything with respect to cancellation of the selection process of 1999. Accordingly, the post was advertised on 01.09.2009 whereby one Krishna Kalpana Naik was placed at Serial No.1 of the merit list but she did not join. As such, one Basundhari Guiya, who was placed at Serial No.2 was engaged. She joined on 08.02.2010 and also completed Job Course Training and thereafter, she availed leave from 14.09.2010 and did not join again. The concerned authority therefore disengaged her after following the due legal process. Since then, the post is lying vacant being managed by the Anganwadi worker of the nearest center. 6. Heard Mr. S.P. Mishra, learned counsel for the petitioner and Mr. S.N. Patnaik, learned Additional Page 6 of 14 Government Advocate for the State. 7. Mr. Mishra would argue that the petitioner was a candidate in the initial selection process of the year 1999. Since the selection process was stayed by an interim order passed by this Court (in OJC No.7198 of 1999), she could not be engaged. Though the petitioner of the said writ petition had died on 11.10.2008, some other persons having vested interest pursued the writ petition without disclosing the fact of her death and obtained an order on 24.10.2008 for cancellation of the selection process and for initiating fresh selection process. This fact was taken note of by another co-ordinate Bench of this Court in W.P.(C) No. 10476 of 2009 filed by the petitioner wherein direction was issued to complete the selection process. Therefore, according to Mr. Mishra, the State authorities were duty bound to conclude the selection process initiated in the year 1999. Moreover, they cannot take the plea that the post is reserved for SC and ST candidates in view of the advertisement issued recently for engagement of Anganwadi Helper of the very same center by inviting Page 7 of 14 applications from OBC candidates. It is further submitted that the petitioner has been pursuing multiple litigations for redressal of her legitimate claim and in the process, has become over-aged. 8. Mr. S.N. Patnaik, learned Additional Government would submit that the petitioner is acting under a misconception that the selection process of the year 1999 still subsists, which is not a fact. According to Mr. Patnaik, the order passed by this Court in OJC No. 7198 of 1999 cancelling said selection process has attained finality. He further submits that in the subsequent writ petition [WP(C) No 10476 of 2009], this Court has not whispered a word about cancellation of the selection process but merely directed for completion of the selection process which obviously refers to the selection process initiated pursuant to the order passed in OJC No. 7198 of 1999. Mr. Patnaik further argues that the post was actually filled up pursuant to the fresh selection process in 2010 by Basundhari Guiya who was subsequently disengaged creating a fresh vacancy, which has been Page 8 of 14 advertised. 9. From the above narration of the rival contentions advanced before this Court and on consideration of the materials on record, it is evident that the sole question that falls for consideration of this Court is, whether the selection process initiated in the year, 1999 pursuant to advertisement dated 05.03.1999 still subsists. 10. According to the petitioner the same subsists in view of order dated 25.07.2009 passed by this Court in WP(C) No.10476 of 2009. On the other hand, according to the State, the said selection process was cancelled by order dated 24.10.2008 by this Court in OJC No.7198 of 1999. It would therefore, be profitable to reproduce both orders for immediate reference. OJC No. 7198 of 1999 was filed by one Jatrimani Mahanta. By order dated 22.06.1999, this Court passed an interim order to the effect that the selection process shall continue but no final decision shall be taken without leave of the Court. Ultimately, the writ petition was disposed of on 24.10.2008 by passing the following order:- Page 9 of 14 “Though this matter was listed for orders by consent of learned counsel for the parties, the same was heard. 2. The petitioner was admittedly engaged as Anganwadi Organiser of Baria-2 Anganwadi center under Jashipur C.D.P.O. in the district of Mayurbhanj. In the year 1999 Notifications were issued inviting applications for engagement of Anganwadi workers. The petitioner applied for being so engaged, but she was not selected. Being aggrieved she has approached this Court seeking a direction to engage her as Anganwadi workers. 3. A counter affidavit has been filed by the C.D.P.O. taking the stand that in consonance with the guidelines of the government, there is no provision to engage an Anganwadi Organizer as Anganwadi worker and the minimum educational engagement of qualification prescribed Anganwadi worker is Matriculation for general candidates as in Clause-3 of the guidelines. But then in course of hearing, it appears that in the mean while a guidelines have been modified and as on date, an Anganwadi organizer with Matriculation qualification can be considered for engagement of Anganwadi worker. for of In view the aforesaid changed 4. circumstances and as no engagement has been made since 1999, this Court feels that ends of justice and equity will be better served if the selection procedure which commenced in the year 1999 is cancelled and the authorities are directed to commence fresh selection process for selection and engagement of Anganwadi worker in the center in question. If such a process commences post along with others which shall be considered in accordance with law and the engagement will expeditiously as possible.” be made as Page 10 of 14 10. According to the petitioner, said order was obtained by deliberate suppression of the fact of death of the petitioner Jatrimani Mahanta on 11.10.2008. She therefore, filed WP.(C) No.10476 of 2009, which was disposed of on 25.07.2009 by passing the following order:- “Mr. Mahanta draws my attention of death of said Jatrimani Mahanta who died on 11.10.2008 prior to passing of aforementioned order. Be that as it may the authorities are not proceeding in the selection process as a result of which the Anganwadi worker has been appointed in the said center in question. Therefore I direct the Collector, Mayurbhanj to issue necessary order to complete the selection process in respect of aforementioned Anganwadi center within 3 months from the date of receipt of this order. The writ petition is accordingly disposed of.” There is no dispute that the order dated 24.10.2008 passed in OJC No. 7198 of 1999 was never challenged before the higher forum nor modified of altered. The fact of death of the petitioner prior to disposal of the writ petition was taken note of by another coordinate Bench in the subsequent writ petition, i.e., W.P.(C) No.10476 of 2009 but then despite taking note of the actual date of death of Page 11 of 14 the petitioner in the previous writ petition, nothing was said as to the effect of such fact. Moreover, this Court observed that the authorities are not proceeding with the selection process and therefore directed the Collector to issue necessary order to complete the selection process. Obviously, this would mean that the direction to commence fresh selection after cancellation of the earlier selection process was being referred to by this Court. In other words, after taking note of the peculiar facts, this Court having found that the order had not been carried out, simply directed the authorities to do so. It cannot, by any stretch of imagination, be held that the earlier order cancelling the selection process stood modified or altered in any manner. In any case, a single Bench could not have altered or modified or set aside the order passed by another single Judge. The petitioner’s entire claim appears to be based on the assumption that the selection process of the year 1999 still subsists. But from what has been narrated hereinbefore, such assumption of the petitioner is entirely misconceived. Such being the finding coupled Page 12 of 14 with the fact that the Anganwadi center in question comes under the scheduled area, the claim of the petitioner being a General category candidate has no legs to stand. To such extent therefore, this Court finds no infirmity much less illegality in the impugned order passed by the Collector so as to be persuaded to interfere. 11. It has however been brought on record that the post is still lying vacant and being managed by the Anganwadi worker of the nearest Anganwadi center. It has been also brought on record that an advertisement was issued by the C.D.P.O., Jashipur on 13.07.2023 inviting applications for engagement of Anganwadi Helper of different Anganwadi centers including Baria-II. Significantly, in the said notification while all other centers have been reserved for SC and ST candidates, in so far as Baria-II is concerned the same is shown to be reserved for OBC candidates. This obviously contradicts the stand of the State that the center being within the scheduled area can be manned only by candidates belonging to SC and ST. Apparently, some sort of Page 13 of 14 relaxation of the norms appears to have been made. It is not disputed that the petitioner has been pursuing multiple litigations for redressal of her claim for more than 15 years by now. She has become over aged for any other public employment. Therefore, taking a larger view in the matter, this Court, while not being inclined to grant the main relief claimed in the writ petition, does nevertheless leave it open to the concerned authorities to consider the case of the petitioner for engagement as Anganwadi worker for the center in question by relaxing the norms and the age requirement as has been done in the case of Anganwadi Helper of the same center. 12. The writ petition is disposed of in terms of the direction as above. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Sep-2024 11:17:34 Page 14 of 14