Application under Articles 226 & 227 of Constitution of India. AFR Smitisnigdha Biswal … v. State of Odisha and Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 5531 of 2022 Application under Articles 226 & 227 of Constitution of India. AFR Smitisnigdha Biswal …… Petitioner --------------- - Versus - State of Odisha and Others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : Mr. Binaya Kumar Mohanty & J. Sahu Advocates For Opp. Parties : Mr. A.R. Dash, Addl. Government Advocate M/s. B.B. Swain, A.K. Pattnayak & S.K. Swain, Advocates [for Opp. Party No.5 ] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August, 2024 SASHIKANTA MISHRA, J. The petitioner in the present writ application challenges the order dated 28.01.2022 passed by the Addl. District Magistrate, Jagatsinghpur in Anganwadi Appeal No. Page 1 of 11 04/2021, whereby her appointment as Anganwadi Worker was set aside and the present opposite party No.5 was directed to be engaged in her place. 2. The facts of the case are that pursuant to an advertisement issued by the CDPO, Raghunathpur for engagement of Anganwadi Workers of different Anganwadi Centers including Gopalpur(Ka) Anganwadi Center, the petitioner and private opposite party No.5 submitted their applications along with others. Of the 8 applicants, 4 appeared before the selection committee and produced their documents. Though opposite party No.5 claimed to be a widow, she could not produce the death certificate of her husband. As such, the petitioner having secured more marks than her in the matriculation examination was selected for engagement. The engagement order was also issued in her favour on 02.12.2021 pursuant to which she joined as Anganwadi Worker in the Center. Her selection
Legal Reasoning
and engagement was challenged by the opposite party No.5 in Anganwadi Appeal No. 4/2021 before the ADM, Page 2 of 11 Jagatsinghpur. It is stated that the ADM without hearing the petitioner allowed the appeal by rejecting her engagement and by directing the CDPO to engage the private opposite party in her place. The ADM passed such order on the ground that the opposite party No.5 was a widow for which 10 marks were to be added to the marks secured by her in the matriculation examination which would make her the most meritorious candidate. According to the petitioner, such order is bad in law as the opposite party No.5 had failed to produce the original death certificate of her husband at the time of selection. 3. Counter affidavit has been filed by the private opposite party. It is stated that she had submitted her application online as required and had uploaded all her testimonials including the death certificate of her husband. Further, at the time of selection she had also submitted copy of the death certificate of her husband. Therefore, there was no dispute with regard to her status as widow but the same was ignored by the selection committee and the Page 3 of 11 petitioner was wrongly selected for engagement. It is further stated that she had secured 59.46% marks in HSC Examination and by adding 10 points the same is to be treated as 69.46%, which is more than what the petitioner had secured. Moreover, she has been engaged as Anganwadi Worker pursuant to the impugned order and has been discharging duties continuously since then. 4.
Legal Reasoning
Heard Mr. B.K. Mohanty, learned counsel for the petitioner, Mr. A.R. Dash, learned Addl. Government Advocate for the State and Mr. B.B. Swain, learned counsel appearing for the opposite party No.5. 5. Mr. Mohanty would argue that as per the terms of the advertisement, the candidates are required to apply online by uploading all the relevant documents but the originals of the said documents are to be produced before the selection committee at the time of selection. There is no dispute that the opposite party No.5 despite claiming to be a widow failed to produce the original death certificate of her husband at the time of selection, taking note of which the Page 4 of 11 selection committee rightly discarded her candidature. It is the settled position of law that the terms and conditions of the advertisement cannot be done away with. The ADM has acted contrary to the law and therefore, the impugned order warrants interference. 6. Learned State Counsel submits that the advertisement stipulates that the original documents are to be produced by the candidates at the time of selection. In the case at hand, the minutes of the meeting of the selection committee reveals that the opposite party No.5 could not produce the original death certificate of her husband. However, she produced the original during hearing of the appeal. 7. Mr. B.B. Swain argues that there is no dispute that the opposite party No.5 is a widow and her husband died in a road accident. Accordingly, a death certificate was issued on 08.07.2016 by the Medical Officer, CHC, Parjang. She had uploaded said certificate along with her online application form. She had also produced the original Page 5 of 11 certificate before the ADM. As such, she is entitled to 10 points over and above the marks secured by her in the matriculation examination. According to Mr. Swain, the impugned order passed by the ADM is correct and does not warrant any interference. 8. Reference to the advertisement dated 02.11.2021 reveals that 18.11.2021 was fixed for verification of the applications and documents. The candidates were instructed to remain present for verification of their original documents. It is specifically mentioned that if the original documents are not verified by the stipulated date, the application shall not be taken into consideration. In the format enclosed for application under the heading „Necessary Documents‟ (ଆବଶ୍ୟକୀୟ କାଗଜପ୍ᙔ) Clause-6 refers to widows and mentions the document as death certificate of the husband. In the copy of the attendance sheet of 8 candidates prepared by the selection committee, copy enclosed as Annexure-2, it is endorsed against the name of the opposite party No.5- “Xerox death certificate uploaded. Page 6 of 11 Original certificate not produced during the verification.” Further, reference to the tabulation sheet, copy of which has been enclosed as Annexure-5 also reveals that the same endorsement is made against the name of the opposite party No.5. In the proceeding of the meeting of the selection committee held on 02.12.2021, the same thing has been mentioned. Thus, it is undisputed that the opposite party No.5 had uploaded Xerox copy of the death certificate and had not produced the original during verification by the selection committee. The guidelines for selection of Anganwadi Workers issued by the Government on 02.05.2007 provides under the heading ‘Procedure’ at Clause „c‟ as follows: “(c) On the 16th day the CDPO will verify the documents of the applicants in their presence and will notify the name of the applicants in her office notice board and at the village, GP and Panchayat Samiti level. In case 16th day is a holiday then verification and notification of applicants will be done on the next working day.” 9. Thus, on a conjoint reading of the guidelines and the advertisement it is crystal clear that the candidates Page 7 of 11 are required to submit original documents at the time of selection by the dates specified. Neither the guidelines nor the advertisement provides for any relaxation in this regard. It is well settled that the selection procedure as stipulated has to be scrupulously followed and unless provided specifically the terms and condition of the advertisement cannot be relaxed. 10. In the case of Bedanga Talukdar v. Saifudaullah Khan1, the Supreme Court observed as follows: “29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned 1 (2011) 12 SCC 85 Page 8 of 11 in the advertisement. In the absence of such power in the rules, it could still be provided in the power of the advertisement. However, relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.” 11. Reading of the impugned order reveals that a stand was taken on behalf of the opposite party No.5 that the Xerox copy of the death certificate was uploaded along with online application form and the original was produced at the time of verification. This is contrary to what the selection committee has endorsed in the attendance sheet, tabulation sheet and in its minutes of the meeting. Obviously no malafides can be attributed to the members of the selection committee so as to even imagine that they would have deliberately and falsely mentioned that the original certificate was not produced before them. The ADM has further observed that during hearing, the petitioner (present opposite party No.5) showed the original death certificate of her husband. Assuming that she did, in the Page 9 of 11 absence of a plausible explanation being offered as to why the same was not produced earlier if it was in her possession all along, such observation of the ADM can have no sanctity. Obviously, the ADM has no power to relax the terms and conditions of the advertisement which mandate that the original certificate ought to be produced by 18.11.2022. The opposite party No.5, for whatever reason chose not to produce the original certificate on the specified date. As such, her candidature was rightly discarded. 12. From what has been narrated hereinbefore, it is evident that the ADM has acted in a manner contrary to the terms and conditions of the advertisement read with the guidelines dated 02.05.2007 by arrogating to himself a power which he does not possess, that is, of relaxation of the terms of the advertisement. In such view of the matter, the impugned order cannot be sustained. 13. For the foregoing reasons therefore, the writ application is allowed, the impugned order under Annexure- 10 is hereby quashed. The CDPO, Raghunathpur is directed Page 10 of 11 to reinstate the petitioner in service forthwith. It is made clear that the period between the date of disengagement and her reinstatement shall only be notionally counted for the purpose of continuity in service without grant of any financial benefits. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 9th August, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Aug-2024 19:01:23 Page 11 of 11