Misc. Case No. 33 of 2016 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.527 of 2017 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Puspalata Bej …. Petitioner State of Odisha & Ors. …. Opposite Parties -versus- Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Anjan Kumar Biswal, Adv. For Opposite Parties. : Mr. G.R. Mohapatra, ASC Mr. Arjuna Ch. Behera, Adv. (for O.P.5) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-21.07.2023 DATE OF JUDGMENT: -24.08.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has challenged the action of the Opp. Party No.2 in passing the order dated 05.11.2016 in Misc. Case No.33 of 2016 allowing the appeal and in directing the Opp. Party No.4 to consider the case of the Opp. Party No.5 and to give her appointment as Anganwadi Helper in Kurunia-3 Anganwadi Centre without any basis. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 1 of 13 I. FACTUAL MATRIX OF THE CASE: 2. On 26.6.2012 an advertisement was issued by the Opp. Party no.4 inviting applications from the eligible candidates for appointment as Anganwadi Helper in different Anganwadi Centres. In the said advertisement the name of Kurunia-3 Anganwadi centre name is there. IT is stated in the said advertisement relating to the criteria of appointment of the Anganwadi helper. In the said advertisement it has been stated that the age of the applicant should not be less than 18 years and not more than 42 years as on 01.2012. 3. The petitioner has submitted the application for the post of Anganwadi Helper of Kurunia-3 Anganwadi centre and after due process, the petitioner was selected for the post of Anganwadi Helper for Kurunia-3 Anganwadi Centre.Accordingly, the appointment order was issued in her favour on 20.10.2014 and she joined in her service thereafter. 4. In the said appointment order, it has been clearly mentioned that the petitioner will get honorarium. The petitioner continued in her service since the date of appointment till today to the best satisfaction of the authority and without any objection from any corner. The petitioner was also sent for training and also completed the training on 13.8.2015. 5. While the matter stood thus, the Opp. Party no. 5 has filed a Writ petition before this Court vide W.P.(C) No. 2242/2015 Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 2 of 13 challenging the appointment of the petitioner and the Court vide order dated 4.3.2015 has been pleased to dispose of the matter. The order dated 4.3.2015 is quoted herein below for ready reference.
Legal Reasoning
“Heard learned counsel for the petitioner and learned counsel for the State. the In this Writ Petition the petitioner has of selection challenged Anganwadi helper of Kurunia-3 Anganwadi Centre under I.C.D.S. project Soro in the District of Balasore. engagement to It is submitted that the representation of the is pending
Decision
petitioner as per Annexure-1 consideration before Collector, Balasore(O.P.1). Considering the submissions made this Writ Petition is disposed of directing the Collector Balasore, O.P.No.1 the dispose representation in Annexure-1 after giving opportunity of hearing to all concerned within a period of three months from the date of production of certified copy of this order along with copy of the Writ Petition. Requisites for communication of this order along with a copy of the Writ Petition to the Collector Balsore- O.P.1 by Speed Post with A.D shall be filed by 9th March 2015. of It goes without saying that the parties will abide by the order to be passed by the appellate authority. Urgent certified copy of this order be granted as per rules." 6. The Opp. Party no.5 submitted a petition on 7.5.2015 along with the copy of the representation to the Collector, Balasore. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 3 of 13 The Collector, Balasore after getting the petition issued notice to the petitioner and this petitioner also appeared in the said Misc. case and filed her show cause/objection. 7. The petitioner has also submitted the relevant documents before the Colelctor, Balasore and also submitted the voter list of Kurunia for the year 1983,1995,2001,2013 in which the age of the Opp.Partyno.5 was reflected. The petitioner has also submitted the age of the daughter of the Opp. Party no.5 obtained through RTI Act before the Collector, Balasore. 8. The Collector, Balasore after hearing the parties disposed of the appeal vide Misc. Case No.33 of 2016 by its order dated 5.11.2016. The Collector, Balasore allowed the appeal and quashed the engagement of the petitioner and directed the Opp. Party no.4 to appoint the Opp. Party no.5 as Anganwadi helper in Kurunia-3 Anganwadi Centre. Aggrieved of this, the petitioner has filed this writ petition. II. PETITIONER’S SUBMISSIONS: 9. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: 10. The Opp. Party no.2 has passed the order without considering the documents filed by the Petitioner and also the report of the C.D.P.O, Soro. The C.D.P.O, Soro has specifically stated that the age of the Opp. Party no.5 is more than 42 years as per the voterlist for the year 1983, 1985 and she has no Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 4 of 13 certificate to show the age. It is also stated by the CDPO that the candidature of the Opp. Party no.1 was also not supported by the Mahila Sabha. Therefore, the petitioner was given appointment. The petitioner has also submitted the relevant voter list and the age of the daughter of the opp. party no.5 from which it is crystal clear that the age of the opp. party no.5 is more than 42 years on the date as fixed in the advertisement. 11. In the advertisement nowhere it has been stated that the preference will be given to widow and their candidature will be considered though they are over aged. So, the Collector, Balasore has passed the order dated 5.11.2016 without considering the above aspect though the said facts has already been reflected in the order. So, the impugned order is not honest in the eye of law and is liable to be set aside. 12. The Collector, Balasore has also not taken into consideration the submissions made by the petitioner and has passed the order in a routine manner. The petitioner’s appointment has been quashed in absence of any fault on her part and without any objection from any corner. So, the above order dated 5.11.2016 passed by the Collector, Balasore is misconceived one and the same is liable to be set aside. 13. The petitioner is not a Govt. Servant and she is working taking a fixed amount as honorarium. The petitioner is also Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 5 of 13 discharging her duty since 2014 as Anganwadi Helper to the best satisfaction of the authority and also without receiving any adverse remark from any corner. The petitioner is now going to suffer irreparably due to the above arbitrary action of the Opp.Partyno.2. III. SUBMISSIONS OF OPPOSITE PARTY NO.5: 14. Per contra, learned counsel for the Opp. Parties intently made the following submissions: 15. In the advertisement, there is a guideline to give preference to a widow in where the selection committee did not extend its cooperation to the present Opp. Party No. 5 at the time of selection, so the learned Collector, Balasore hold the fault of the selection committee, quashed the selection procedure, disengaged the present petitioner and directed to give engagement to the present opp. Party No. 5 as she is the fittest and deserving candidate to get the post of Anganawadi Helper in Kurunia-3, Anganawadi Center. 16. In the advertisement there is the guidelines to give preference to the age group of 18 to 42 years of age but there is a guideline issued by women and child development department dated 24.11.1997 preference shall be given to the orphan, widow, separated or deserted women in the selection of Anganawadi Helper which was not followed by the selection committee at the time of selection. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 6 of 13 17. Certified copy of voter list of the year 2011 is annexed herewith the counter affidavit wherein age of the Opposite Party No.5 was 39 years only. So, the age of the opp. Party No. 5 in the year 2012 must be 40 years which is within the age criteria. The learned Collector, Balasore issued notice to the parties in where the CDPO, Soro, present petitioner and the opp. Party No. 5 also submitted their arguments separately. The Collector, Balasore held that the selection proceedings was not based on proper guidelines, so the selection of the petitioner was cancelled and direction was given to the CDPO, Soro for providing re- engagement to the present opp. Party No.5 through the order dated 05.11.2016. Hence, the allegation regarding mischievous order of the Collector, Balasore is illegal and unjustified in nature. The learned Collector, Balasore has passed the order dtd.05.11.2016 as per the guidelines as well as the age criteria of the present opp. Party No.5 which was not considered by the selection committee at the time of selection. So, this writ petition is devoid of merit may be dismissed with cost. IV. SUBMISSIONS OF OPPOSITE PARTIES 2 TO 4: 18. Per contra, learned counsel for the Opp. Parties intently made the following submissions: 19. The C.D.P.O., Soro (OP No. 4) had published notification No. 15 dated 26.06.2012 for selection of Anganwadi Helper at Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 7 of 13 Kurunia-III AWC under I.C.D.S. Project, Soro and as per provision/guidelines of Govt. in W & CD Deptt. Communicated in vide letter No. 9994/WCD dated 24.11.1997, preferences should be given to orphan, widow, separated, divorced women for selection to the post of Anganwadi Helper and it was also mentioned in such guidelines that, an applicant should not less than 18 years of age and above 42 yrs. Same practices have been observed at the time of selection of Anganwadi Helper in Kurunia-III Anganwadi Centre. The O.P. No. 5 although she was a widow but found over aged as per 1983 and 1995 voter list. Thus her candidature to the post of AWH in Kurunia -III Anganwadi Centre could not been taken into consideration by the mahila sabha at that time, whereas, the petitioner found eligible for the post of Anganwadi Helper had selected by the Mahila Sabha meeting held on 20.10.2014 at I.C.D.S. Office, Soro. 20. As per govt. guidelines, the Mahila Sabha was organized for selection of Anganwadi Helper in Kurunia-III Anganwadi Centre. In Mahila Sabha, the village ladies present had informed about the over age of O.P. No. 5 and they did not agree to include her for over age. Due to disturbance, the 1st Mahila Sabha on 06.08.2012 and 2nd on 06.07.2014 was postponed. In the 3rd Mahila Sabha, the S.S.W.O., Sub- Collector’s Office, Balasore was present with the Mahila Sabha Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 8 of 13 Selection Committee could not be able to select Anganwadi Helper once again for disturbance. 21. The Opp. Party No. 5 was the only widow among 04 (four) applicants found over aged as per 1983 and 1995 voter list. As she has no educational qualification nor submitted the school certificate, lastly on 20.10.2014, the selection committee selected the petitioner as Anganwadi Helper in Kurunia III Anganwadi Centre. The O.P. No. 5 although there was a widow candidate for the said post but she has no educational qualification. So, no school certificate was produced to ascertain the date of birth. 22. The Collector, Balasore (O.P. No.2) had passed an order dated 05.11.2016 in Misc Case No. 33/2016 arising out W.P. (C) No. 2242/2015 and also directed the C.D.P.O., Soro (O.P. No.4) to consider the case of Smt. Sabita Bej (OP No.5) and to give her fresh engagement in the post of Anganwadi Helper at Kurunia-III Anganwadi Centre. But the petitioner had filed a W.P. (C) No.527 of 2017 before the Odisha High Court, Cuttack and the High Court had been pleased to stay of the order dated 05.11.2016 of Collector, Balasore in Misc. Case No.33 of 2016 and also directed that the petitioner shall continue as Anganwadi Helper in Kurunia Anganwadi Centre till next date. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 9 of 13 23. At the time of applying for the post, the age of the OP No. 5 was 40+ yeas as per voter identity card of 2002. Further on perusal of voter list for the year 2008, 2009, 2010 & 2011, it reveals that her age was 36 years, 37 years, 38 years & 39 years respectively which exactly tallied with the age of the OP No. 5 as mentioned in the voter identity card of 2002. Thus it makes it clear that the age of the petitioner on the date of applying for the post of Anganwadi Helper below 42 years which is inconformity with the Govt. Guidelines. So it is crystal clear that, on the date of selection the OP No.5 was eligible for the post of Anganwadi Helper besides being a widow so far eligibility criteria is concerned. V. COURT’S REASONING AND ANALYSIS: 24. Learned Counsel for the petitioner has contended that the C.D.P.O, Soro has specifically stated that the age of the Opp. Party no.5 is more than 42 years as per the voter list for the year 1983, 1985 and she has no certificate to show the age. It is also stated by the CDPO that the candidature of the Opp. Party no.1 was also not supported by the Mahila Sabha. Therefore, the petitioner was given appointment. The petitioner has also submitted the relevant voter list and the age of the daughter of the opp.party no.5 from which it is crystal clear that the age of the opp.party no.5 is more than 42 years on the date as fixed in the advertisement. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 10 of 13 25. Learned Counsel for the Opposite Party has clarified that the C.D.P.O., Soro (OP No. 4) had published notification No. 15 dated 26.06.2012 for selection of Anganwadi Helper at Kurunia-III AWC under I.C.D.S. Project, Soro and as per provision/guidelines of Govt. in W & CD Deptt. Communicated in vide letter No. 9994/WCD dated 24.11.1997, preferences should be given to orphan, widow, separated, divorced women for selection to the post of Anganwadi Helper and it was also mentioned in such guidelines that, an applicant should not less than 18 years of age and above 42 yrs. 26. At the time of applying for the post, the age of the OP No. 5 was 40+ yeas as per voter identity card of 2002. Further on perusal of voter list for the year 2008, 2009, 2010 & 2011, it reveals that her age was 36 years, 37 years, 38 years & 39 years respectively which exactly tallied with the age of the OP No. 5 as mentioned in the voter identity card of 2002. Thus it makes it clear that the age of the petitioner on the date of applying for the post of Anganwadi Helper below 42 years which is inconformity with the Govt. Guidelines. So, it is crystal clear that on the date of selection the OP No.5 was eligible for the post of Anganwadi Helper besides being a widow insofar as the eligibility criteria is concerned. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 11 of 13 27. It is well settled that in service jurisprudence, the essential qualifications for appointment to a post are for the employer to decide. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. The Supreme Court in the case of Maharashtra Public Service Commission vs. Sandeep Shriram Warade1 held that: or prescribe “The essential qualifications for appointment to a post are for the employer to decide. The employer may desirable additional qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of the the judicial advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is language review. of If 1(2019) 6 SCC 362 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 12 of 13 best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.” 28. From the conspectus of factual matrix, this Court is unable to accede to the submission of the Petitioner. The rules of service jurisprudence cannot be given go by in such a light and casual manner, rather, they call for due compliance. 29. In light of the aforesaid discussion and having regard to the present position of law, this Court hereby confirms the order dated 05.11.2016 passed in Misc. Case No.33 of 2016 by the Opp. Party No.2. The prayer of the Petitioner is rejected. 30. Accordingly, this Writ Petition is dismissed. No order as to costs. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 24th August, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 13 of 13