The High Court · 2023
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.408 of 2023 Aparajeeta Naik …. Appellant Mr. Swayamjit Rout, Advocate -versus- The Collector, Bargarh and others Respondents Mr. Arnav Behera, Additional Standing Counsel for State Mr. Durgesh Narayan Rath, Advocate for R-4 …. CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO ORDER 21.08.2023 Order No. 08. 1. Heard Mr. Swayamjit Rout, learned counsel for the Appellant; Mr. Arnav Behera, learned Additional Standing Counsel for the State-Respondents and also Mr. D.N. Rath, learned counsel appearing for the Respondent No.4.
Legal Reasoning
2. By means of this intra-Court appeal, the Appellant has challenged the order dated 25th January 2023 passed by the learned Single Judge in W.P.(C) No.7035 of 2018. By the said order, the learned Single Judge has observed that Rule 6 of the Orissa Miscellaneous Certificate Rules, 1984 (hereinafter referred to as “the Rules”) provides that if the Revenue Officer is of the view that the certificate may not be granted, he shall pass necessary orders in the case record briefly recording the reasons. Rule 8 of the said Rules provides for appeal. Only person, who can be aggrieved, is an unsuccessful Applicant. Private Opposite Page 1 of 11 Party No.5 is an outsider to the proceeding. Having further observed that the appeal filed by the Appellant was hopelessly barred by time and hence, the order dated 23rd June, 2017 is set aside. 3. The Appellant had applied for the post of Anganwadi Worker (AWW) in response to the notification dated 5th February, 2005. It has been provided in the said notification that the candidate should be a permanent resident of the village in which the Anganwadi Centre (AWC) is situated. The Appellant and the Respondent No.4 applied for the said post of AWW. Even the Appellant was called for though, interview and for verification of documents on 12th August, 2005, the Appellant subsequently came to learn that the name of Respondent No.4 had been recommended as the preferred candidate for the post of AWW. 4. According to the Appellant, selection of Respondent No.4 was in contraventions to the terms and conditions as stipulated in the notification dated 5th February, 2005. The Appellant questioned the said recommendation of the Respondent No.4 by the Respondent No.3 contending that the Respondent No.4 was neither a resident of Dudukidadar village where the AWC situates, nor the resident of Kandadangar Gram Panchayat where the said AWC is situated. The Respondent No.4 is the permanent resident of another village and Gram Panchayat namely Bhaisadhar having House No.219 under Ward No.1. Her name finds place in the voter list of Bhaisadhar Gram Panchayat published on 1st June, 2005. Hence, her recommendation Page 2 of 11 according to the Appellant was against the stipulation in the notification dated 5th February, 2005. The Appellant filed a representation to the Respondent No.3, the Child Development Project Officer (CDPO), Jharband, District-Bargarh. But, no positive action was taken. The Appellant therefore moved this
Decision
Court by filing a writ petition being W.P.(C) No.15146 of 2005 and this Court by the order dated 27th February 2006 disposed of the writ petition directing the Collector, Bargarh-Respondent No.1 to dispose of the representation of the Appellant with reference to the records and the allegations made in the representation. It was also asked that such exercise shall be completed within two months from the date of communication of the order. The said order dated 27th February, 2006 is available under Annexure-1. 5. The Collector, Bargarh rejected the representation of the Appellant by its order dated 18th September 2006 (Annexure-2). The Appellant again approached this Court by filing another writ petition being W.P.(C) No.13105 of 2006 and by virtue of an interim order dated 10th October 2006, the appointment of Respondent No.4 to the post of AWW was made subject to the result of the writ petition. Eventually, this Court disposed of the said writ petition being W.P.(C) No.13105 of 2006 by the order dated 9th February 2009 with the following observation: “xxx 3. The Collector, however, relying upon the Residential Certificate issued by the Tahasildar and other materials arrived at a conclusion that opposite party No.4 is residing in the village where the Anganwadi Centre is situated. The Petitioner assails Page 3 of 11 then the said the finding as erroneous. But Residential Certificate issued by the Tahasildar under the Miscellaneous Certificate Rules, certifying that opposite party No.4 is the resident of village Dudukidar. Law is well settled that Residential Certificate issued under the rules is binding upon all concern till the same is cancelled. 4. Admittedly, the petitioner has not taken any steps till today to cancel the Residential Certificate issued in favour of opposite party No.4. In the absence of such attempt it shall be presumed that opposite party No.4 is the resident of the village mentioned in the Residential Certificate. 5. In view of the aforesaid discussion after going through the pleadings and documents, this Court is not inclined to interfere with the impugned order. However, liberty is granted to the petitioner to work out her remedy in accordance with law. The writ petition is disposed of.” 6. A copy of the said order dated 9th February, 2009 passed in W.P.(C) No.13105 of 2006 is available at Annexure-3. Having regard to the said order dated 9th February 2009, the Appellant preferred an appeal on 2nd January 2013 under the provisions of the Rules before the Respondent No.2, the Sub-Collector-cum- Sub-Divisional Magistrate, Padampur District-Bargarh. The said appeal was registered as Misc. Certificate Appeal No.02 of 2013. However, for long time, the said appeal was kept pending. Hence, the Appellant filed another writ petition being W.P.(C) No.21925 of 2014 seeking early disposal of the said appeal. By the order dated 13th November, 2014, this Court had directed the Respondent No.2 to dispose of the appeal within a period of four weeks after giving reasonable opportunity of hearing to the Page 4 of 11 Appellant. A copy of the said order dated 13th November 2014 is available under Annexure-4. Consequent upon the said direction, Respondent No.2 disposed of the Misc. Certificate Appeal No.02 of 2013 having observed that “Dhanamati Naik is married to Khirasagar Naik of Bhaisadhar village on 4th March, 2001. The name of Dhanamati Naik is mentioned in the voter list bearing Sl No.845 in 2004 and 2005, Sl No.846 in 2006, Sl. No.851 in 2007 and Sl No.819 in 2008. Similarly, the name of Dhanamati Naik has also found place in the same voter list. 7. The Respondent No.2 by the order dated 13th January 2015 had set aside the order dated 6th May 2005 by which the Residential Certificate was granted in favour of the Respondent No.4 in Misc. Case No.270 of 2005. The said order dated 13th January 2015 is available under Annexure-5. 8. As the Residential Certificate of the Respondent No.4 was cancelled, she became unfit to hold the post of AWW in terms of the notification dated 5th February, 2005. By the order dated 6th April, 2015, the Tahasildar, Paikamal cancelled the said Residential Certificate and directed the Respondent No.4 to surrender the Residential Certificate within a period of seven days thereafter. Despite the Residential Certificate being set aside by the competent authority, the Respondent No.3 did not take any steps to terminate the Respondent No.4. Consequently, the Appellant again moved the High Court by filing a writ petition being W.P.(C) No.10998 of 2015 by challenging the original recommendation of the Respondent No.1 for engaging the Respondent No.4 as AWW at Dudukidadar AWC. Page 5 of 11 9. The Respondent No.4 also filed a writ petition being W.P.(C) No.11413 of 2015 by challenging the order dated 13th January 2015 passed by the Sub-Collector. This Court by the order dated 3rd August 2016 (Annexure-6) remanded the appeal for fresh consideration. The writ petition filed by the Appellant being W.P.(C) No.10998 of 2015 was also disposed of. The State Government allowed the Respondent No.4 to continue as the AWW despite the Residential Certificate was cancelled. While disposing of the said writ petition being W.P.(C) No.10998 of 2015 by the order dated 9th April 2018, this Court had made the following observations: “xxx to taken 5. Considering the rival contentions of the parties, for the undisputed fact remains here for the development through W.P.(C) place Nos.13105/2006 and 11413/2015 and also involving the finality of the appeal proceeding, this Court finds, the residential certificate issued in favour of O.P. 4, the basis of engagement of O.P. No.4 in the particular Anganwadi Centre pursuant the advertisement involved since has been declared illegal but there is no scope for allowing the O.P. No.4 to hold the post any further. It is at this stage, this Court observes that O.P. 3, who was although a party in the previous proceeding should have been careful enough in following the proceeding, vide W.P.(C) No.11413/2015 and ought to have taken appropriate steps at appropriate time. The stand that O.P. No.3 allowing O.P. 4 is a bona fide impression is untenable remaining contrary to the actual position involving the case here and that too when the said proceeding got concluded in the involvement of the O.P. No.3 itself. For cancellation of the residential certificate of O.P.4, the basis of recruitment involving O.P. 4 is lost.” Page 6 of 11 10. By the said order dated 9th April 2018 (Annexure-7), this Court allowed the writ petition of the Appellant and directed the CDPO, Padampur to issue necessary appointment order in favour of the Appellant by taking action as appropriate preferably within a period of one month from the date of the commencement of the order. In compliance to the direction, the Appellant was appointed as the AWW of Dudukidadar AWC by the Respondent No.3 by the letter dated 22nd June 2019 (Annexure-8). In the meantime, pursuant to the order dated 3rd August, 2016, the Respondent No.2 reheard the matter in Revenue Misc. Appeal Case No.02 of 2013 on remand. During the said hearing, the Appellant filed a detailed response explaining the delay in filing the appeal after hearing the contention of the Appellant on the question of delay, the Respondent No.2 by the order dated 23rd June 2017 (Annexure-9) upheld its earlier order dated 13th January 2015 confirming the setting aside of Residential Certificate issued in favour of the Respondent No.4. The Respondent No.4 instead of challenging the said order dated 23rd June 2017 preferred an appeal before the Division Bench of this Court challenging the order dated 9th April, 2019 whereby the learned Single Judge directed appointment of the Appellant. The said appeal being W.A. No.194 of 2018 was dismissed by the order dated 6th March 2019 holding that there is no Residence Certificate in favour of the Respondent No.4. The said order by which the writ appeal was dismissed is available under Anenxure-10. The Respondent No.4 without disclosing the order dated 9th April 2018 passed by this Court in W.P.(C) No.10998 of 2015 and the order dated 6th March 2019 passed in W.A. No.194 of 2018, filed another writ petition being W.P.(C) No.7035 of 2018 challenging the order Page 7 of 11 dated 23rd June 2017 passed by the Respondent No.2. It has been ascertained by the Appellant by suppressing the order dated 6th March 2019 which affirmed the order dated 9th April 2018 passed in W.P.(C) No.10998 of 2015 filed the said writ petition being W.P.(C) No.7035 of 2018. 11. According to the Appellant, the order dated 23rd June 2017 had attained finality in the meanwhile. The learned Single Judge while passing the impugned order dated 25th January 2023, has set aside the order dated 23rd June 2017 passed by Respondent No.2 in Misc. Appeal No.02 of 2013 on remand. 12. Mr. Swayamjit Rout, learned counsel for the Appellant has quite emphatically stated that on reading of the impugned order dated 25th January 2023, it will be apparent the learned Single Judge has failed to appreciate the relevant facts and without any reason at all set aside the order dated 23rd June, 2017. 13. Mr. D.N. Rath, learned counsel appearing for the Respondent No.4 has submitted that the order dated 23rd June 2017 suffers from serious infirmity. The Sub-Collector, Padampur exercised his wide discretion for condoning a long delay. By the said order, the earlier final order passed by the Sub-Collector in the said Misc. Appeal No.02 of 2013 was restated. Therefore, the foundation of declaring the Appellant a resident of village where the AWC is situated is available in the order dated 13th January, 2015. By the order dated 13th January 2015 as stated, the order dated 6th May 2005 passed by the Tahasildar, Paikmal in Misc. Case No.270 of 2005 was set aside. The Tahasildar did not allow the prayer of the Appellant as resident of the concerned village. In Page 8 of 11 the order dated 13th January 2015, the elaborate discussion has been made by the Sub-Collector and it was held that the village committee of the Dudukidadar submitted a report that Dhanamati Naik, the Respondent No.4 is not residing in Dudukidadar village, but the Aparajeeta Naik, the Appellant is residing there. It has also been observed that the villagers have not allowed the Respondent No.4 to work as the AWW of Dudukidadar, but she was taking salary from the Government. It has been held as follows: “The Respondent No.1 Dhanmati Naik married on dated 04.03.2001 and residing in the village of her husband. As both certificates of Dhanmati Naik and her children are enrolled in Bhainsadarha village and the documents are filled for reference of the court. When a lady got married over permanent residence is her in-laws home which is Bhainsadarha. All the documents revealed that, the resident is Bhainsadarha and is residing permanently at village Bhainsadarha and not residing at Dudukidadar.” the Respondent 14. The learned Single Judge did not interfere the order dated 13th January, 2015, but set aside the order dated 23th June, 2017. The said order dated 23rd June 2017 has only affirmed the order dated 13th January, 2015. 15. Mr. Arnav Behera, learned Additional Standing Counsel for the State-Respondents has stated that State has acted on the direction of the High Court. For conflicting orders passed by the Tahasildar and the Sub-Collector, the Respondent No.4 was Page 9 of 11 allowed to serve till by the order of the High Court she was removed and in her place, the Appellant was engaged. 16. Having appreciated the facts and the various orders of the statutory authorities and of this High Court, this Court is of the view that the learned Single Judge has set aside the order dated 23rd June, 2017 in a slipshod manner. There is no reason of worth referring that why the learned Single Judge has interfered the order dated 23rd June 2017 which was affirmed by the learned Single Judge by the order dated 9th April 2018 as passed in W.P.(C) No.10998 of 2015 (Annexure-7) where the learned Single Judge had categorically observed that the Respondent No.4 had lost her opportunity due to cancellation of the Residential Certificate. It had been categorically observed that: qualified available “the Petitioner (the Appellant herein) is the only for candidate other consideration. Therefore, this Court while allowing the writ petition directs O.P.3-CDPO, Padampur to issue necessary appointment order in favour of the taking action as appropriate Petitioner by preferably within a period of one month from the date of commencement of the order”. The said order was challenged by the Respondent No.4 by filing the writ appeal being W.A. No.194 of 2018 and the said writ appeal was dismissed by the order dated 6th March 2019 (Annexure-10). 17. It is apparent that the learned Single Judge has failed to appreciate the order of the Superior Bench dated 6th March 2019 (Annexure-10) whereby the order of the learned Single Judge dated 9th April 2018 was affirmed by way of dismissal and Page 10 of 11 holding that there was no impropriety and illegality in the order of the learned Single Judge. The learned Single Judge had confirmed the order dated 23rd June 2017. Non consideration of the order dated 23rd June 2017 and 6th March 2019 renders the order dated 25th January 2023 as challenged in this appeal perverse and unsustainable. Hence, the said order is set aside and quashed. 18. The Respondent No.1, 2 and 3 will act in accordance with the order dated 9th April 2018 (Annexure-7) and the order dated 6th March 2019 (Annexure-10) by restitution of the engagement of the Appellant and also allowing her to continue in said engagement as per the scheme. 19. In the result, the appeal stands allowed. There shall be no order as to costs. (S. Talapatra) Chief Justice Judge (Savitri Ratho) S.K. Guin Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 12:02:28 Page 11 of 11