The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No. 4456 of 2024 An application under Sections 226 and 227 of the Constitution of India) Sarojini Sahoo ...… Petitioner --------------- -Versus- State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s.B.S. Tripathy, A. Tripathy & A. Sahoo, Advocates. For Opp. Parties : Mr.S.N. Patnaik, [Addl. Government Advocate]. Mr. D.K. Dhar, G. Patra & A. Nayak, [Caveator] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGEMENT 28th March, 2024 SASHIKANTA MISHRA, J. An advertisement bearing No.578 was published on 26.09.2023 by the C.D.P.O., Parjang inviting applications for the post of Anganwadi worker for Jautukapasi Anganwadi Center under Basoi Gram Panchayat in the district of Dhenkanal. Clause-4 of the Page 1 of 12 advertisement required the candidates to upload Residential and Caste Certificate obtained from Tahasil Office within six months prior to the advertisement along with the Online application form. The petitioner submitted her application along with Residential Certificate issued by the Tahasildar in her favour on 18.01.2023 showing her as permanent resident of Jautukapasi village. Further, during the meeting of Selection Committee, the petitioner furnished a fresh Residential Certificate issued by the Tahasildar on 20.10.2023, which was also accepted. Upon verification of the documents and taking note of the fact that the petitioner had secured the highest marks among other candidates, she was selected and recommended for engagement as per the proceeding of the Selection Committee meeting. Basing on such recommendation of the Selection Committee, the petitioner was issued with order of appointment dated 31.10.2023 by the C.D.P.O. pursuant to which, she joined on 01.11.2023. While the matter stood thus, the present Opposite
Legal Reasoning
Party No.5 (Caveator) challenged the selection of the petitioner before this Court in W.P.(C) No.37319 of 2023, Page 2 of 12 which was disposed of by order dated 17.11.2023 directing her to prefer appeal before the Appellate Authority. Accordingly, Opposite Party No.5 filed an appeal before the A.D.M., Dhenkanal, which was heard in presence of all parties. By order dated 12.02.2024, the A.D.M. allowed the appeal by holding that the petitioner had not submitted Residence Certificate as per Point No.4 of advertisement within six months. As such, the selection of the petitioner as Anganwadi worker was set aside. Being aggrieved, the petitioner has approached this Court seeking the following relief:- “On the facts and in the circumstances stated above, your petitioner, therefore, prays that this Hon’ble Court be pleased to; i) ii) quash the impugned order 12.02.2024 OP No. 2 under Annexure -6 by holding the same as bad, illegal and contrary to Govt. guidelines in Annexure -7, and thereby direct the OP No.2 to 4 to forthwith reinstate the petitioner in her services as Anganwadi Worker, Jautukapasi AWC with all consequential service and monetary benefits; iii) pass such other order (s) as deemed fit in the interest of justice, And for which act of your kindness, the petitioner shall as in duty bound, ever pray.” Page 3 of 12 2. The State-Opposite Party (Opposite Party Nos. 1 to 4) and the Private Opposite Party No. 5 have not filed any counter as the parties consented that the lis involves interpretation of Clause-4 of the advertisement only and as the facts are not disputed, the matter can be disposed
Legal Reasoning
of on the basis of the available pleadings. Learned counsel for the private opposite party No. 5 however was permitted to file the copy of memorandum of appeal filed by her before the A.D.M., Dhenkanal. 3. Heard Mr. B.S. Tripathy, learned counsel for the petitioner, Mr. S.N. Patnaik, learned Additional Government Advocate for the State and Mr. D.K. Dhar, learned counsel for the private opposite party No.5. 4. Mr. Tripathy would argue that the stipulation in the advertisement as mentioned under Clause-4 thereof being contrary to the Government guidelines dated 02.05.2007 would have no application. In any case, the petitioner had submitted the Residential Certificate dated 18.01.2023 along with her application and further submitted a fresh certificate on 20.10.2023. Therefore, the fact that she was a permanent resident in the service area Page 4 of 12 of the Anganwadi center cannot be questioned. Mr. Tripathy further argues that the petitioner’s appointment could not have been set aside by the Appellate Authority only on a technicality ignoring the fact that she was more meritorious than all other candidates including Opposite Party No.5. 5. Mr. S.N. Patnaik would argue that while there is no stipulation in the Government guidelines, dated 02.05.2007 akin to Clause-4 of the advertisement yet there is also no bar for the Appointing Authority to stipulate such a condition while inviting applications. He further argues that if the terms of the advertisement are found to have been violated, the candidature of such a candidate cannot be considered. 6. Mr. D.K. Dhar would argue that the advertisement specifically mandated that the applicants must submit Residence Certificate obtained within six months prior to the advertisement, which is to ensure that the applicants belonging to the service area in which the Anganwadi center is located alone apply. The petitioner, by producing a certificate issued more than ten months Page 5 of 12 before could not have been treated as a valid applicant. The subsequent certificate produced by her also cannot be considered in the absence of any provision in the advertisement for the same. 7. In order to appreciate the rival contentions better, reference may at the outset be made to Clause-4 of the advertisement dated 26.09.2023, which being in Odia is loosely translated as follows:- “Copy of the Residence Certificate and Caste Certificate obtained from the Tahasil office within six months shall be uploaded by the applicant in the Online form.” 8. It has been argued that such a stipulation is not there in the Revised Guidelines for selection of Anganwadi workers issued by the Government on 02.05.2007. Clause-1 of the Revised Guidelines dated 02.05.2007 reads as follows:- “1. Applications for selection of Volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Center area from women residing in the said village/Anganwadi Center area.” (Emphasis supplied) Page 6 of 12 9. Procedure for selection is also laid down in the said guidelines, the relevant portion of which is quoted herein below:- “a) In case of engaging Anganwadi Worker for casual vacancies or for new Anganwadi Centers, notification regarding the Anganwadi Center where the Anganwadi Worker is going to be engaged will be put up simultaneously in the village, in the concerned Gram Panchayat, the Panchayat Samiti and the CDPO’s Office. b) 15 days time will be given to the candidates to apply to the CDPO along with the documents in support of nativity educational qualification the caste and any other. The receipt of the application shall be acknowledged by CDPO. (Emphasis supplied) 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, G.P. 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. d) 7 days time will be given for filing of objection, if any, by the community on the issue of nativity educational qualification and caste certificate. e) The selection committee may take 7 days time to verify the objections received. f) After the enquiry into the objection and the Selection verification Committee will give points to all the eligible candidates as per the criteria spelt out in the of documents, Page 7 of 12 guideline. The Committee will finally select the candidate who secures the maximum points. In case two or more candidates secure same points, preference will be given to the older candidate. The Committee will notify the candidate select on the same day in Panchayat Samiti and CDPO’s office and within 48 hours at the G.P. and village level CDPO is authorized to issue engagement order in favour of the candidate selected and this should be issued within 24 hours of the selection of the candidate xxx xxx.” Thus, the intention of the Government as reflected in the guidelines is to ensure that the Anganwadi workers are selected only from amongst the women residing in the said village/Anganwadi center area. There is no stipulation that the Residence(nativity) certificate should have been obtained within 6 months prior to the advertisement. It further transpires that seven days’ time will be given for filing of objection on the issue of nativity etc. 10. There is nothing on record to show that the Opposite Party No.5 had ever submitted any such objection with regard to the petitioner’s Residence Certificate. Be that as it may, being permitted by this Court, she filed an appeal before the A.D.M. in which, the impugned order was passed. Reading of the impugned Page 8 of 12 order shows that the selection of the petitioner was set aside only on the ground that she had not submitted Residence Certificate as per Clause-4 of the advertisement within six months. This implies, according to the A.D.M., the petitioner’s Residence Certificate should have been obtained within six months prior to the date of advertisement/last date of submission of application. Whether such a view can be countenanced in law is the question to be decided in the present case. 11. As already stated, the intention of the State is to ensure that applicants residing within the service area of the Anganwadi center in question can only apply. There is no dispute that the petitioner is a resident of the concerned village, Jautakapasi. In the appeal preferred by the private Opposite Party No. 5, it has nowhere been stated that the petitioner is not a resident of the service area of the Anganwadi center. The only ground of objection is that the certificate utilized by her was issued more than six months before the date of advertisement. Of course, another Residence Certificate was obtained by the petitioner on 20.10.2023 and appears to have been taken Page 9 of 12 note of by the Selection Committee. Thus, in the absence of any evidence to show that the petitioner does not belong to the service area in question, her selection and appointment is sought to be challenged purely on the technical ground as narrated above. 12. It is well settled that procedure is hand maid of justice and cannot operate to reverse its cause as stated in the case of Krishan Lal v. State of Jammu and Kashmir1. The Revised Guidelines do not contain any such stipulation of obtaining a certificate within six months. It is true that the terms of the advertisement have to be strictly construed, but then the same cannot run contrary to the intendment of the State as reflected in the guidelines. As between the advertisement and the guidelines, it is obvious that the latter would prevail, being in the nature of executive instructions. It is stated at the cost of repetition that this is a case where the petitioner is undisputedly a resident of the service area in question. So merely because the required certificate was issued a few months before the so-called stipulated period 1 (1994) 4 SCC 422 Page 10 of 12 cannot change the status of her permanent residency. Even otherwise, under the Odisha Miscellaneous Certificate Rules, 2017, there is no prescription regarding period of validity of a Residence Certificate. This would imply that until and unless a certificate issued under the Rules is cancelled, it continues to remain valid. To such extent therefore, the certificate dated 18.01.2023 submitted by the petitioner must be treated as a valid proof of her permanent residency in the service area. Since the petitioner is found to have satisfied the basic criteria as laid in Clause-1 of the guidelines dated 02.05.2007 referred above, her selection and appointment could not have been interfered with more so, as she was the most meritorious of all candidates as held by the Selection Committee. 13. It is evident that the Appellate Authority (A.D.M.) has considered the matter from a narrow perspective and adopted a hyper technical approach instead of making an attempt to know the objective of the State as reflected in the revised guidelines. The impugned order therefore, warrants interference. Page 11 of 12 14. For the foregoing reasons therefore, this Court holds that the impugned order cannot be sustained in the eye of law. Resultantly, the writ petition is allowed, the impugned order is set aside. The authorities are directed to permit the petitioner to continue as Anganwadi worker of the center in question. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 28th March, 2024/B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Mar-2024 16:20:05 Page 12 of 12