The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 2570 of 2023 An application under Sections 226 and 227 of the Constitution of India) --------------- Runubala Barad ...… Petitioner -Versus- State of Odisha and Others ...…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : M/s. B.S. Tripathy, S.K. Kalimuddin, S.K. Padhi & N.CH. Rout, Advocates For Opp. Parties : Mr. S.N. Patanaik Additional Government Advocate M/s. B.K. Nayak, A.K. Sahoo, A. Kalash, B. K. Mishra, Ms. Gitanjali, Advocates (For O.P.6) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26th April, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this writ petition seeking the following relief: “The petitioner therefore prayed that your lordship may graciously be pleased to admit the Writ petitioner and Issue a ‘Rule NISI’ Page 1 of 21 calling upon the opp. parties to show cause why the order dated 10.12.2023 in Anganwadi appeal No. 12/2015 passed by learned ADM, Puri vide Annexure 4 will not be quashed/set aside. And any other order (s)/direction (s) as would deem fit and proper; And for which act of kindness, petitioner shall as duty bound, every pray. the 2. The facts of the case are that pursuant to an advertisement vide Notification No. 634 dated 13.08.2014 issued by the C.D.P.O., Gop, the petitioner submitted application for engagement as Anaganwadi worker. She attended the verification of documents on 28.08.2014. The petitioner had applied for the post of Anganwadi worker for Chandarabhaga-III under Konark Gram Panchayat in the district of Puri under Ward No.8. The service area of the center was composed of the area from Purunsahi to Sea Beach. The Opposite Party No.6 was also one of the applicants. Nearly 36 applicants had applied for the post of Anganwadi worker. The petitioner was found suitable and vide office order dated 20.05.2015, she was appointed as such. Pursuant to such order, she joined on the same day by submitting joining report. In the meantime, the private Opposite Party No. 6 filed an appeal before the Page 2 of 21 A.D.M., Nimapara challenging the selection of the petitioner on the ground that the resident certificate submitted by her was a fake. Said appeal, being Aganwadi Appeal No. 5 of 2014 was heard by the A.D.M., Puri and by order dated 29.04.2015, same was rejected. The A.D.M. took note of the fact that the private Opposite Party No.6, the appellant before him, had filed a Resident Misc. Appeal. No.8 of 2015 before the Sub-Collector, Puri, which was subjudice. But in the meantime, the Tahasildar, Gop submitted a report stating that the resident certificate issued in favour of the petitioner, Runubala Barad was genuine. On such ground, the A.D.M. found no merit in the appeal and dismissed the same. As already stated the petitioner being appointed joined in her post on 20.05.2015. The Opposite Party No.6 again filed an appeal being Anganwadi Appeal No. 12 of 2015 before the A.D.M., Puri. This time a ground was taken that she had secured more marks than the petitioner and as such should have been selected instead of her. The petitioner appeared in the appeal pursuant to notice and contested the matter, inter alia, stating that the appeal is not maintainable Page 3 of 21 being hit by the principle of res judicata inasmuch as the appellant had earlier approached the same authority in an appeal questioning the selection of the petitioner, which had been dismissed. Since the earlier order was never
Facts
challenged, the same had attained finality and therefore, she could not have filed another appeal on the self-same issue. The A.D.M. however referring to a decision of the Supreme Court on the point of res judicata held that the earlier appeal related to the residence whereas the present appeal related to the selection of Anganwadi worker and therefore, is on a different cause of action. As such, the A.D.M. held that the appeal was maintainable. On merits, it was held that as per the report of the C.D.P.O. there are four Anganwadi centers in Ward No. 8 and the petitioner is a resident under Ward No.8 but the same is not within the service area of Anganwadi Center No.3. As such, she not being a resident of the service area of the Anganwadi center advertised as also the private Opposite Party No.6, the selection of the petitioner despite securing less marks than the private Opposite Party cannot be sustained. On Page 4 of 21 such finding, the appeal was allowed setting aside the engagement of the petitioner as Anganwadi worker. 3. Counter affidavit has been filed on behalf of Opposite Party Nos. 2, 3, 4 and 5. It is stated that the petitioner does not belong to the service area of Chandrabhaga-III Anganwadi center but belongs to Chandrabhaga-IV Anganwadi center as per the survey register. As per the guidelines and notification dated 13.08.2014, the applicant should be a permanent resident of particular area of the village/hamlet as specified for that Anganwadi center. It is also stated that as per the guidelines issued by the government on 09.04.2010, in case no woman is found eligible from the service area then women from other parts of the same village will be considered and if no woman is so found eligible then women from other village of the said Gram Panchayat will be considered. In the instant case, both the petitioner and the Opposite Party No.6 are outsiders belonging to the revenue village, Konark. Therefore, the Opposite Party No.6 having secured more marks, i.e., 53.83% than the petitioner, who secured only 45.3% in her H.S.C. Page 5 of 21 examination, the former should have been selected. As regards the impugned order it is submitted that the subsequent appeal was on a different cause of action and has been disposed of by passing a reasoned order which does not call for any interference. 4. A preliminary counter affidavit has been filed by the private Opposite Party No. 6. It is stated that the selection of the petitioner as Anganwadi worker despite the fact that she is not a permanent resident of the service area in question is entirely illegal and contrary to the guideline of issued by the government on 02.05.2007. It is stated that the Chandrabahaga-III Anganwadi center comes under Konark Gram Panchayat under Ward No.8. The petitioner is a resident of the service area of Anganwadi Center No.4. As such, neither the petitioner nor Opposite Party No. 6 belong to the service area of Anganwadi Center No.III. Therefore, they can only be engaged on the basis of their marks secured in the H.S.C. examination. Since the Opposite Party No.6 secured more marks than the petitioner in H.S.C. Examination, she should have been selected instead of the petitioner. As regards Page 6 of 21 maintainability of the appeal, it is stated that the earlier appeal was confined only to the question of genuineness of the resident certificate submitted by the petitioner whereas the subsequent appeal was a challenge to the selection procedure adopted by the Selection Committee. As such, the subsequent appeal is not barred by res judicata.
Legal Reasoning
10. There is no dispute that the previous appeal was also filed before the A.D.M. as was the subsequent appeal. The parties were also the same, the question whether the very same matter was involved in the previous appeal or not can be easily discerned from the impugned orders. This Court finds that essentially the Opposite Party No.6 sought to challenge the selection of the petitioner as Anganwadi worker in the previous as well as the Page 15 of 21 subsequent appeal. In the previous appeal a specific ground was taken that the resident certificate was forged, which on the face of the report of the Tahasildar was found to be unacceptable by the A.D.M. In the subsequent appeal also the ground was taken that the petitioner does not belong to the same service area. Thus essentially, the ground for challenging the selection of the petitioner was the same in both the appeals. 11. It is stated at the cost of repetition that the main challenge of the Opposite Party No. 6 was with regard to the petitioner’s non-residence within the service area. Therefore, the same matter having already been decided could not have been re-agitated. If the Opposite Party No. 6 found reason to feel aggrieved by said order of the ADM, she could have challenged the same before the higher forum. Not having done so, it was not open to her to file another appeal. It has been further contended on behalf of Opposite Party No.6 that the earlier appeal has to be ignored since it was filed at the stage of selection and the ADM did not have jurisdiction to entertain the appeal at the relevant Page 16 of 21 time. This argument is, on the face of it, self-destructive and hence, unacceptable for the reason that the Opposite Party No.6 having herself invoked the jurisdiction of the ADM cannot subsequently turn around and contend that it lacked jurisdiction. This would be hit by the principle of estoppel. 12. Even assuming for a moment that the subsequent appeal was on a different point not raised earlier then also the principle of constructive res-judicata would come into play. Constructive res judicata means a ground which ought to have been or could have been taken in the earlier proceeding would be deemed to be a matter directly and substantially in issue in said proceeding and hence, cannot be allowed to be taken in any subsequent proceeding between the same parties. The principle is embodied under Explanation-IV to Section 11 of C.P.C quoted earlier. Explaining the law on constructive res judicata, the Supreme Court in Samir Kumar Majumder v. Union of India and Others, 2 stated that 2 2023 INSC 836 Page 17 of 21 “34. This principle popularly known as the doctrine of constructive res judicata, based on the might and ought theory, has been recognized by this Court in several In Maharashtra Vikrikar Karamchari judgments. Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC 552, this Court held as under:- “22. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. In the absence of such rules which specifically provide for carrying forward the vacancies falling in either category, no such carry-forward rule could be implied either in the Recruitment Rules or in the Seniority Rules. This contention need not detain us any longer because such a contention was available to the appellants in the earlier proceedings, namely, Transfer Application No. 822 of 1991 and the same was not put in issue. That not having been done, it must follow that such a contention is barred by the principles of constructive res judicata. Neither the contesting respondents nor the appellants ever raised this contention at any stage of the proceedings in Transfer Petition No. 822 of 1991. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.” Interest reipublicae ut sit finis litium: 35. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause (See M. Nagabhushana vs. State of Karnataka and Others, (2011) 3 SCC 408.” The object underlying this salutary principle is obviously to put an end to litigation for all times to come by allowing the parties to raise a claim in totality rather Page 18 of 21 than in piecemeal manner, for such claims may lead to conflicting findings on the same cause of action. In the present case, the A.D.M. appears to have lost sight of this principle while deciding the question of res-judicata. In the subsequent appeal, the opposite Party No.6 has taken a further ground that she had secured more marks than the petitioner in the matriculation examination, which was not taken in the earlier appeal filed by her. This ground could also have been taken by her in the previous appeal. It has been argued by Mr. Mishra that, at that time the appointment order was not issued in favour of the petitioner and therefore, she had not taken such ground. This Court is unable to accept this contention for the reason that the issuance of order of appointment was simply consequential to the decision taken by the Selection Committee, which was already within the knowledge of the Opposite Party No. 6 and which had led her to file the earlier appeal. Therefore, she cannot contend that it was not within her knowledge that she had secured more marks than the petitioner in the matriculation examination. Page 19 of 21 13. Thus, either way, this Court finds that the subsequent appeal filed by the Opposite Party No. 6 was not maintainable in the eye of law being hit by the principle of res-judicata as well as constructive res- judicata. Such being the considered view of this Court, it is not necessary to go into the merits of the other contentions raised regarding the residence of the parties, particularly in view of the report of the Tahasildar, Gop that petitioner is a residence of the service area in Anganwadi Center-III. 14. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court is of the view that the order passed in the earlier appeal preferred by Opposite Party No. 6 not having been challenged has attained finality. Secondly, it is not open to the Opposite Party No.6 to claim that the ADM did not have jurisdiction to hear such appeal or that it was premature as it would be hit by the principle of estoppel, for she had herself invoked the jurisdiction of the A.D.M. Further, the subsequent appeal being filed challenging the selection of the petitioner also on the ground of her residence is barred by the principle Page 20 of 21 of res-judicata. Even the additional ground of the Opposite Party No.6 securing more marks than the petitioner in the matriculation examination raised in the subsequent appeal would be hit by the principle of constructive res-judicata and therefore, could not have been considered. Thus, this Court finds that the ADM committed gross error of law in entertaining the appeal and in setting aside the engagement of the petitioner as Anganwadi worker of the concerned Anganwadi center. The impugned order therefore, warrants interference.
Arguments
5. Heard Mr.B.S. Tripathy, learned counsel for the petitioner, Mr.S.N. Patanaik, learned Addl. Government Advocate for the State and Sri Bijaya Kumar Mishra, learned counsel appearing for the private Opposite Party No.6. 6. Mr. B.S. Tripathy would argue that after having filed an appeal before the same authority, i.e. A.D.M., which was dismissed being devoid of merit, it was no longer open to the private Opposite Party to file another appeal before the very same authority essentially on the same cause of action. Mr. Tripathy further submits that this is hit by the principle of res judicata embodied under Section 11 of the C.P.C. The matter in issue in the previous appeal was relatable to the selection of the petitioner as Anganwadi Page 7 of 21 worker, which was also in issue in the subsequent appeal. Therefore, the A.D.M. committed gross error of law in construing otherwise. Mr. Tripathy would further argue that if the Opposite Party No.6 was aggrieved by the order passed in the previous appeal she could have challenged it in the higher forum but not having done so she could not have filed another appeal. In any case the order passed by the A.D.M. in the earlier appeal has become final and therefore biding on all including the Opposite Party No.6 who was the appellant therein. It is further argued by Mr. Tripathy that even otherwise the petitioner is a permanent resident of the village, which is proved by the report of the CDPO and the resident certificate issued by the Tahasildar in her favour. The Selection Committee found the petitioner more suitable than Opposite Party No.6 and therefore only because she had secured more marks than the petitioner in HSC Examination, does not make her eligible to be appointed on such ground. Mr. Tripathy has also relied upon some judgments of the Supreme Court in this regard. Page 8 of 21 7. Mr. S.N. Patanaik, learned Addl. Government Advocate would argue that the requirement as per the guidelines was that the applicant must be a resident of the service area of the Anganwadi center in which appointment is to be made. Admittedly, neither the petitioner nor the Opposite Party No. 6 were residents within the service area of the Anganwadi center in question. Therefore, they stand on the same footing on the point of residence. Under such circumstances, as per the guidelines, the merit list has to be drawn up entirely on the basis of the marks secured in the matriculation examination. The Opposite Party No.6 having secured more marks than the petitioner in the matriculation examination therefore, deserves to be selected. On the point of res judicata, it is submitted by Mr. Pattanaik that as has been rightly held by the A.D.M., the earlier appeal was filed by Opposite Party No.6 challenging the resident certificate issued in favour of the petitioner while the subsequent appeal was filed challenging her selection. Therefore, it cannot be hit by the principle of res judicata. Page 9 of 21 8. Mr. Mishra, learned counsel appearing for the private Opposite Party would argue that the earlier appeal was filed by Opposite Party No.6 when the appointment order had not been issued in favour of the petitioner while the subsequent appeal was filed after issuance of the appointment order which gave rise to a different cause of action. That apart, the previous appeal was filed prematurely, i.e., before finalization of the selection process and therefore ordinarily not maintainable. The order passed therein therefore cannot be said to be binding on the parties as it cannot be construed to have been passed by a Court of competent jurisdiction. Mr. Mishra further argues that the Opposite Party No.6 admittedly having secured more marks than the petitioner in the matriculation examination deserves to be selected in view of Clause-III of the revised guidelines dated 02.05.2007 which mandate that percentage of marks obtained in the matriculation examination shall be the basis of drawing the merit list of the applicants. 9. Heaving heard that rival submissions at length and upon perusal of the pleadings and materials on record, Page 10 of 21 this Court finds that the facts of the case are not in dispute inasmuch as both the petitioner and the Opposite Party No.6 being applicants, the petitioner was selected for appointment as Anganwadi worker and was in fact issued with an order of appointment pursuant to which she also joined on 20.05.2015. It is submitted that she has been continuing in such post even till date. A question of law having been raised, it would be proper to examine the same at the outset. It has been urged on behalf of the petitioner that the subsequent appeal filed by the Opposite Party No. 6 before the A.D.M. was hit by the principle of res judicata inasmuch as she had earlier filed an appeal challenging the selection of the petitioner though ostensibly on the ground of forged resident certificate. Be it noted that till the date of final hearing of this case nothing was placed before this Court to show that the resident certificate issued in favour of the petitioner was forged. Though it is borne out from the record that a resident appeal had been filed by the Opposite Party No. 6 before the Sub-Collector, what was the result of the said appeal has not been brought to the Page 11 of 21 notice of this Court by any of the parties. Be that as it may, a perusal of the order passed by the ADM on 29.04.2015 in AW Appeal No. 5 of 2014 would show that said appeal was filed by the present Opposite Party No.6, mainly on the ground that the resident certificate issued by the Tahasildar, Gop is forged and that the present petitioner is not a resident of the service area of Chandrabhaga-III Anganwadi Center. The A.D.M. examined the enquiry report submitted by the C.D.P.O., Gop. Such enquiry was actually conducted by the Tahasildar, Gop/Konark. The inquiry report, which contains the statements of the inhabitants of Chandrabhaga-III Ward No. 8, Nolia Sahi, Konark was to the effect that the resident certificate issued by the Tahasildar, Gop in favour of the petitioner is genuine and that she is a permanent resident of Chandrabhaga-III, Nolia Sahi and others are outsiders. Considering such report of the Tahasildar as forwarded by the C.D.P.O., the A.D.M. found no merit in the appeal and dismissed the same. It is submitted that such dismissal of appeal was prior to issuance of the order of appointment in favour of Page 12 of 21 the petitioner, i.e., on 20.05.2015. After issuance of the appointment order, the opposite party No.6 again filed an Appeal being Anganwadi Appeal No. 12 of 2015 before the A.D.M. This time it was contended by her that the resident certificate of the petitioner had been challenged by her in resident appeal before the Sub-Collector which was subjudice. She further claimed to have secured more marks than the petitioner in the matriculation examination. It was also her specific plea that the house of the petitioner does not find place in the service area of Chandrabhaga-III Anganwadi center. On such ground, the selection of the petitioner was challenged as illegal. The plea of res-judicata having been taken by the petitioner before the ADM, the same was considered with reference to the judgment of this Court reported in 2002 (II) OLR 252 and 54 (1982) CLT 515 as also the Supreme Court in the case of Gulab Ajwani and Others v. Saraswati Bai and Others,1. The ADM held that the necessary ingredients to constitute res-judicata were not fulfilled inasmuch as the earlier appeal was on the question of 1 AIR 1978 SC 326 Page 13 of 21 residence where as the subsequent appeal was on the question of selection of Anganawadi workers and therefore, the subsequent appeal is not barred by res- judicata. Section 11 of the C.P.C, which deals with res judicata reads as follows:- “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall Page 14 of 21 for the purposes of this section, be deemed to have been refused. Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 1[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, former suit shall be construed as issue or references, respectively, to a proceeding for the execution of the decree, question arising in such for the proceeding and a execution of that decree. Explanation VIII.- An issue heard and finally jurisdiction, decided by a Court of competent to decide such issue, shall operate as resjudicata in suit, limited notwithstanding jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” that such Court of former proceeding subsequent limited a
Decision
15. For the foregoing reasons therefore, the writ petition is allowed, the impugned order under Anenxure-4 is hereby quashed. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: eMudhra.App.Views.PartialControls.SigningModeTab.SigningTabVie wModel Location: Orissa High Court, Cuttack Date: 29-Apr-2024 14:15:36 Page 21 of 21