The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 6093 of 2021 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Niharika Sahar ...… Petitioner -Versus- Collector, Mayurbhanj .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. B.C.Panda, Advocate For Opp. Party : Mr. S.N.Pattnaik, AGA _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 5th February, 2025 The petitioner has approached this Court with the following prayer; “It is therefore prayed that this Hon’ble Court, may graciously be pleased to admit the writ petition, issue notice to the opp. Parties, call for the LCR and after hearing the counsels for parties be pleased to set aside the order dated 09.11.2020 and 10.11.2020 passed by the Sub-Collector, Panchapir, Karanjia/ Opp. Party No.2; Page 1 of 14 to pass necessary order declaring And pass appropriate order directing the Opposite Party No.3 to give appointment to the present petitioner as she has secured highest mark as per the Advertisement dtd. 15.11.2018. And the advertisement No.51 dtd. 27.01.2021 made by Opposite Party No.3 on the basis of order dtd. 10.11.2020 is illegal; And pass such other and further order/orders as it deems fit and proper under the facts of the case. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 2. The facts of the case, briefly stated are that pursuant to an advertisement issued by the CDPO, Thkurmunda on 15.11.2018 inviting applications from the intending candidates for engagement as Anganwadi Worker in Handifuta under Taramora Gram Panchayat in Thakurmunda Block, the petitioner was one of the applicants. Five candidates applied other than the petitioner as per list published by the CDPO on 01.12.2018. The petitioner’s name was placed at Sl. No. 4 while the candidatures of two candidates were treated as withheld as they were found to be working in a Mini Anganwadi Centre. One Sumita Buliuli was placed at Sl. No. 3. According to the petitioner, she was not a resident of the service area of the Anganwadi Centre in question. The petitioner having +3 qualification claims to be the most suitable candidate. However, the CDPO, Page 2 of 14 Thakurmunda, holding that Sumita Buliuli also had +3 qualification, selected her as Anganwadi Worker vide notification dated 29.12.2018. Since according to the inhabitants of the locality, such appointment was not proper, a representation was submitted by them on 02.01.2019 to the BDO, along with the Sub-Collector and the Collector. Further, a writ application was filed before this Court by the petitioner being W.P.(C). No. 1431 of 2019. By order dated 30.01.2019, this Court directed the petitioner to approach the appropriate forum. Pursuant to such direction, the petitioner submitted petition before the Sub-Collector, Panchpir, Karanjia which was registered Anganwadi Appeal Case No. 4 of 2019. The Sub-Collector issued notice to all necessary parties and sought for verification from the Board of Secondary Education of the marksheet of the selected candidate Sumita Buliuli. The report of the Board of Secondary education revealed that the marksheet produced by Sumita Buliuli at the time of her selection was a fake. As such by order dated 13.09.2019, the Sub-Collector Page 3 of 14 directed disengagement of Sumita Buliuli as Anganwadi Worker and directed to put up the record after receipt of verification report of the documents of the petitioner. The documents of the petitioner were duly verified and submitted but no order was passed. Subsequently on 01.10.2020, the Sub-Collector sought for clarification from the Collector with regard to engaging the petitioner who had stood 2nd in the selection. However, clarification was issued to the effect that fresh selection shall be made. Accordingly, by order dated 10.11.2020, the Sub- Collector directed the CDPO to take necessary steps for selection of Anganwadi Worker. Pursuant to such order, advertisement was issued inviting candidates afresh. Being aggrieved, the petitioner has filed this writ application with the prayer as already quoted hereinbefore. 3. Counter affidavit has been filed by the CDPO on behalf of Opposite Party Nos. 1, 2 and 4. It is inter alia, stated in the counter that at the time of disposal of the appeal it was found that the appointment of Sumita Buliuli was Page 4 of 14 illegal as she had produced a fake certificate which was the basis for holding that she had secured the highest marks, among all candidates. Therefore, the Sub- Collector directed her to be disengaged and as per the guidelines, fresh advertisement was issued. It is further stated that the guidelines provide that whenever any vacancy arises due to non-joining of any candidate or disengagement etc. there shall be fresh selection. Even though, the petitioner secured the highest mark after Sumita Buliuli, she cannot be engaged as Anganwadi Worker in view of the guidelines issued by the Government. 4. Be it noted that the other candidate namely, Sumita Buliuli was impleaded as Opposite Party No.5, notice was issued and was duly served on her. In spite of which, she did not appear. Moreover, the State counsel obtained
Legal Reasoning
instructions that she has not challenged the order of the Sub-Collector directing her disengagement. Page 5 of 14
Legal Reasoning
5. Heard Mr. B.C.Panda, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned AGA for the State. 6. Mr. Panda would argue that once it is held that the selected candidate had practiced fraud by producing fake certificates and obtained employment thereby, the same being nullity in the eye of law, should be treated as non- est. Therefore, the petitioner having secured the next highest mark ought to be treated as the candidate securing the highest marks and therefore, she should have been directed to be selected. In support of his contention, Mr. Panda has relied upon by a judgment of this Court passed by a Division Bench in the case of Surya Kanti Sahoo vrs. Secretary, Department of Women and Child Development, Odisha and Others reported in 2012(Supp.-1) OLR-718 and of a Coordinate Bench in the case of Malabika Murmu vrs. State of Odisha and Others passed in W.P.(C). No. 19470 of 2015. Page 6 of 14 7. Per contra, Mr. S.N.Pattnaik would submit that once a person engaged as Anganwadi Worker is disengaged, fresh selection is to be held in view of the guidelines and clarifications issued by the Government. Mr. Pattnaik refers in particular to the clarifications issued by the Government on 04.07.2002 and 01.10.2010. He therefore, submits that there being no concept of reengagement or engagement without selection, the petitioner’s case cannot be considered. 8. The facts of the case are not disputed. Reading of the order dated 13.09.2019 of the Sub-Collector reveals that basing on the verification report furnished by the Board of Secondary Education vide letter dated 26.08.2019, it was revealed that the mark and division of Sumita Buliuli did not tally with the record of the Board. As such, it was held that Sumita Buliuli had produced fake certificate for applying for the post of Anganwadi Worker. The Sub- Collector therefore, directed Sumita Buliuli to be disengaged. By further order passed on 01.10.2020, the Sub-Collector passed order to call for clarification from Page 7 of 14 the district authority regarding posting of the candidate who stood in 2nd position. Such clarification being received, by order dated 10.11.2020, the Sub-Collector rejected the claim of the petitioner for engagement in place of Sumita Buliuli. 9. The question that falls for consideration before this Court is, whether in such a situation, the candidate securing the 2nd position in the selection process can be considered for engagement. In this regard, Mr. Panda would argue that the selection of Sumita Buliuli has to be treated as ab initio void as she has practiced fraud. The stand of the State is that once a person is disengaged, for whatever reason, there has to be selection as per the guidelines. It would therefore, be proper to examine the relevant guidelines issued by the Government. In the clarification issued by the Government in Women and Child Development Department on 04.07.2002, it was held that wherever any vacancy arises due to non- joining of any candidate within the period allowed to her or disengagement of the Anganwadi Worker under Page 8 of 14 Paragraph 15 of the guidelines, there shall be fresh selection of candidates as per provision laid down in the aforesaid circulars. By letter dated 01.10.2010, further clarification was issued that there is no concept of reengagement or engagement without selection if any vacancy arises out of death, non-joining, disengagement, resignation etc and that fresh selection will be made. For immediate reference, both the clarificatory letters are extracted below. GOVERNMENT OF ODISHA WOMEN & CHILD DEVELOPMENT DEPARTMENT No. IV-ICDS-1-10/2002-15108/W &CD Dt. 04.07.2002 From To Shri N Lenka PC-cum-Deputy Secretary to Govt. The Child Development Project Officer, Bhubaneswar (Rural) Sub- Clarification regarding duration of panel for selection of 8 Anganwadi Workers. Madam, With reference to your letter No 244 dated 09.05 2002 on the above mentioned subject, I am directed to say that the guidelines for selection of Anganwadi Workers have been circulated in this department letter No. 8184/ WCD dated 07.10.1998 while some modifications to these guidelines applicable to 27 new ICDS Projects and 3 old ICDS Projects have been circulated in the letter No. 5479/WCD dated 14.08.2000 and No. 7767/WCD dated 29.11.2000. As per provisions of Para-8(g), one merit list of candidates is prepared for each Anganwadi Centre, Para-13 provides that the names of the recommended candidates are to be forwarded to the Chief Executive Officer, Zilla Parishad for approval. In case the Standing Committee of the Zilla Parishad. There is no provision of maintaining a select list or merit list for each Anganwadi Centre for any period of time, in the guidelines issued so far; Page 9 of 14
Decision
In view of the above, wherever, any vacancy arises due to non-joining of any candidate within the period allowed to her or disengagement of the AWW under Para-15 of the above said guidelines, there shall be fresh selection of candidates as per provisions laid down in the aforesaid circulars. Sd- P.C.-cum-Deputy Secretary to Govt. GOVERNMENT OF ODISHA WOMEN AND CHILD DEVELOPMENT DEPARTMENT NOVI-ICDS 153/10/17063/ WCD. Dated 01.10.2010 From To Smt. Durgesh Nandini Satico, OAS (1) Under Secretary to Government. The Additional Government Advocate, Office of the AG. Odisha Cuttack. Sub: WP (C) No 138/10 filed by Kabita Swain Vrs State of Odisha and others. Sir, With reference to your letter No 40959 dt. 24 09 2010 on the subject noted above lam directed to send herewith a copy of the instruction for appraisal further necessary action at your end. of Hon’ble High Court and Sd/- Under Secretary to Government Sl. No 1 2 3 4 Points Instruction What course is available : In case of any vacancy arising out of death/non- joining/disengagement of /resignation Anganwadi Worker. any Why merit list is prepared if the list looses it force after appointment/1st initial appointment is there What reason for non-maintenance of merit list. What is the reason inviting is no concept There of reengagement engagement or (without selection) if any vacancy arises out of death, non joining disengagement, resignation etc. Fresh selection will be made for made for the concerned AWCs. Revised guideline for selection of Anganwadi Worker dtd 02.05.2007 does not provide any scope for preparation of panel list of selection for future engagement. Mentioned against Point No. 2 Mentioned against Point No. 2 Page 10 of 14 fresh selection to fill up the casual vacancy, when one merit list is available with the authorities. 10. The question is, whether the disengagement of the selected candidate Sumitra Buliuli in the instant case can come within the purview of the instructions dated 01.10.2010. It is true that the instructions have been worded in a broad sense inasmuch as it refers to ‘disengaged’ without qualifying the word in any manner. So ordinarily, it would include all kinds of disengagement. However, in the instant case, it is not so much the disengagement itself but the initial engagement of Sumita Buliuli as Anganwadi Worker that would be relevant. This is being said for the reason that her engagement was found to have been secured by submission of fake documents. In other words, it was an act of fraud. It is well settled that fraud and justice never dwell together and that any benefit, employment etc. obtained by practicing fraud is non-est in the eye of law. It was as if such a thing had never been granted in the first place. To state at the cost of repetition, it is an act Page 11 of 14 void ab initio. Obviously, the order of disengagement passed subsequently is only a formal expression or acknowledgement of the detection of fraud practiced by the candidate and cannot be equated with other kinds of disengagement such as disengagement due to mis conduct etc. of the incumbent. Under such circumstances, this Court is of the considered view that the guidelines quoted hereinabove would have no application. 11. The matter can also be viewed from another angle. As already stated, this is not a case of disengagement due to any mis-conduct committed by the selected candidate but entirely because of fraud practiced by her. The authorities who selected her are to be blamed inasmuch as they should have verified the certificate at the first instance. Therefore, had the certificate been verified at the time of selection or prior to finalizing the selection, Sumitra Buliuli obviously would not have been selected. Therefore, if the candidate of Sumitra Buliuli is taken away then, it is the petitioner who has to be treated as Page 12 of 14 the candidate securing the highest marks. Under such circumstances going for fresh selection does not appear to be justified. 12. In the case of Surya Kanti Sahoo (supra), which is a case involving almost similar facts, the Division Bench held that direction for fresh notification is not permissible in law in view of the finding of the fact regarding manipulation of the marksheet is concerned. In the case of Malabika Murmu (supra), which is also a case involving similar facts, it was held that in such a case, the question of fresh selection does not arise. 13. Thus, this Court finds that once the selection of Sumita Buliuli is held to be non-est then the natural corollary thereof would be to select the candidate securing the highest marks which, in the instant case, would be the petitioner. 14. For the foregoing reasons therefore, the writ application is allowed. The impugned order under Annexure-8 is hereby set aside. Consequently the advertisement dated 27.01.2021 is also quashed. The Page 13 of 14 Opposite Party authorities are directed to issue order of engagement in favour of the petitioner as early as possible preferably, within a month from the date of production of certified copy of this order by the petitioner. Deepak Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 13-Feb-2025 18:40:19 Page 14 of 14