The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 3135 of 2014 (An Application under Articles 226 & 227 of the Constitution of India) --------------- AFR Suravi Bisi ...… Petitioner -Versus- Sub-collector, Sonepur & Ors .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. H.S.Mishra, A.K.Mishra, A.Parida, K.Badhai Advocates For Opp. Party : Mr. S.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28th March, 2024 SASHIKANTA MISHRA, J. Apprehending that she may be disengaged from the post of Anganwadi Worker on the basis of a judgment passed by State Commission for Persons with Disabilities on 15.01.2014, the petitioner has filed this writ application seeking the following relief: Page 1 of 13 “The petitioner above named therefore prays that, in the facts and circumstances stated above, this Hon’ble Court may be pleased to admit the writ petition. Call for the records from the opp. parties to show cause as to why the application shall not be allowed. If they fail to show cause or the causes shown are found to be insufficient in law as well as in the facts and circumstances of the case, this Hon’ble Court may be pleased to allow this application prohibition/injuncting the opp. party Nos. 1 and 2 not to remove the petitioner from her post in pursuance to the order passed by the Opp. Party No.4 vide judgment dated 15.01.2014 in SCPD Case No. 326 of 2013 by further restraining not to appoint opp. party No.3 in place of the petitioner by issuing appropriate writ or writs, particularly the writ of prohibitory; And further this Hon’ble Court may be pleased to call upon the opp. party No. 4 to produce the judgment dated 15.01.2014 passed in SCPD Case No. 326 of 2013 and quash the same by issuing appropriate writ or writs, particularly writ of mandamus or any other direction considered fit and proper be passed; and allow the writ petition with exemplary cost in favour of the petitioner; And for which act of kindness, the petitioner as in duty bound shall every pray.” 2. Facts of the case are that an advertisement was issued on 28.05.2013 by the CDPO, Sonepur (Opposite Party No. 2) inviting applications from eligible persons for appointment as Anganwadi worker in the Additional Anganwadi centre at Haladipali in the district of Sonepur. The petitioner was one of the applicants along with Opposite Party No.3. The Selection Committee under the Chairmanship of the Sub- Collector, Sonepur in its meeting held on 01.08.2013, considered the applications submitted by the candidates and found the petitioner suitable for being engaged. The opposite Page 2 of 13 party No.3 not having complied with the condition of submitting residential certificate was declared ineligible. On 03.08.2013, order of engagement was issued in favour of the petitioner, pursuant to which she joined on 06/08/2013. She underwent Job Course training at Barapalli from 25.11.2013 to 26.12.2013. While working as such she was shocked to come across a news-item published in newspaper ‘Prameya’ on 14.02.2014 stating that the State Commission for Persons with Disabilities (SCPD), Opposite Party No.4, had directed engagement of the Opposite Party No.3 as Anganwadi Worker in the centre in question. Since the petitioner was not a party to the proceeding before the SCPD nor had received any notice of the same, she approached the office of SCPD with her husband and lawyer to obtain a certified copy of the judgment. The office of SCPD refused to grant any copy of the judgment to her. Under such circumstances, she was constrained to approach this Court in the present writ application with the aforementioned prayer but without enclosing the judgment dated 15.01.2014 of SCPD. During pendency of the writ application however, by way of an Page 3 of 13 additional affidavit, the petitioner filed a copy of the judgment passed by the SCPD which was taken on record. 3. Counter affidavit has been filed by opposite party Nos. 1 and 2 wherein it is stated that pursuant to the advertisement, three candidates including the Petitioner and Opposite Party No.3 submitted their applications but at the time of scrutiny only the petitioner and the opposite party No.3 were present. Though opposite party No. 3 secured the highest mark but she did not produce the residential certificate which is required for scrutiny as per the advertisement. As such, her application was rejected and the petitioner was selected as she had produced all the relevant documents. It is further stated that the petitioner has been working in the post till today. Further, the opposite party Nos. 1 and 2 are bound by the order passed by the SCPD unless the same is interfered with by any higher Court. 4. The private opposite party No.3 has also filed a counter, stating that she had secured the highest mark, being 67.3 %, whereas the petitioner secured 49.8%. Her residential certificate was issued on 20.10.2009 which was produced by her but was not accepted by the selection committee as it Page 4 of 13 had been issued beyond six months from the date of the advertisement. According to the opposite party No.3 it was done deliberately by the authorities only to deprive her from being engaged in the post. It is further stated that she had produced a fresh residential certificate dated 12.06.2013 on the date of scrutiny by the selection committee but the same was not taken into consideration. Therefore, she being a physically disabled candidate approached the SCPD seeking relief. 5.
Legal Reasoning
Heard Mr. H. S. Mishra, learned counsel for the petitioner and Mr. S. N. Patanaik, learned Additional Government Advocate for the State and Mr. S. Mishra learned counsel for the private opposite party No.3. 6. A plea of the maintainability of the writ application having been raised, it would be proper to consider the same at the outset. In this context, Mr. S. Mishra would argue that the writ application is premature and in any case, not maintainable as no order of disengagement has been issued by the authorities against the petitioner as yet. The writ application has been filed on an apprehended cause of action which is Page 5 of 13 not permissible. Moreover, the original copy of the judgment passed by the SCPD has not been enclosed to the writ application for which the prayer for its quashment cannot be considered. 7. In response, Mr. H.S. Mishra would argue that the petitioner was not a party to the proceeding before the SCPD and no notice of the proceeding had been issued to her. She came to know about the judgment from the news-item published in the newspaper. Since the order of the SCPD would have an adverse effect on her livelihood and as she, despite best efforts, could not obtain the copy of the judgment, had no other option than to approach this Court seeking necessary protection by way of a writ of prohibition against her disengagement. In any case, she has filed copy of the judgment during the pendency of the writ application which is on record. Mr. Mishra further argues that from the stand taken by opposite party Nos. 1 and 2 in their counter affidavit that they are bound by the judgment of SCPD, the apprehension of the petitioner becomes fully justified. But for the interim order passed by this Court she would have been disengaged. Page 6 of 13 8. Upon going the averments made in the writ application along with the documents enclosed thereto and on hearing the parties it becomes evident that what the petitioner is essentially asking for in this writ application is issuance of a writ of certiorari against the judgment of the SCPD seeking quashment of the same. It is the specific case of the petitioner that firstly, the SCPD had no jurisdiction to entertain the complaint filed by the opposite party No. 3 and secondly, the principles of natural justice were not followed at all. The distinction between a writ of prohibition and writ of certiorari has been delineated by the Supreme Court in the case of Hari Vishnu versus Ahmed Ishaque1 in the following words: “They are used at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition…On the other hand, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari…it might happen that in a proceeding before the inferior court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition – certiorari for quashing what has been decided, and prohibition for arresting the further continuance of the proceedings have terminated then it is too late to issue prohibition and certiorari for quashing is the proper the proceeding…But if 1AIR 1955 SC 233 Page 7 of 13 remedy to resort to. Broadly speaking and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending, and a writ of certiorari for quashing after they have terminated in a final decision.” Since in the instant case, the proceeding before the SCPD is no longer pending having culminated in the impugned judgment, it must be held that the petitioner’s prayer is actually for issuance of a writ of certiorari and not prohibition. 9. As to the objection of the private opposite party relating to premature motion by the petitioner on an apprehended cause of action it can be easily discerned that the main grievance of the petitioner is against the judgment of the SCPD. The threat of disengagement which looms large on her actually emanates from the said judgment and not otherwise. The State opposite parties have said so in their counter to the effect that the judgment of SCPD is binding on them. This implies, as long as the judgment remains operative its consequence, that is, disengagement of the petitioner cannot be negated. So, it is not actually a case of apprehended cause of action but a direct challenge to the judgment of SCPD and challenge to the order of disengagement that may be passed Page 8 of 13 basing thereon is merely consequential. This Court is therefore, of the considered view that the objection to maintainability of the writ application as raised by the private opposite party has no legs to stand and that the writ application is maintainable. 10. Having held the writ application as maintainable, this Court would now proceed to consider the merits of the case. The facts are not disputed inasmuch as the opposite party No.3 had secured the highest marks but was not selected as she had not submitted the residence certificate as required. The advertisement, copy of which is enclosed as Annexure-1, was issued on the basis of Government notifications dated 02.05.2007, 07.09.2007, 24.12.2008 and 07.01.2009. By means of these notifications, the Government has, from time to time issued guidelines governing the selection and engagement of Anganwadi workers, Mini Anganwadi Workers, helpers etc. The relevant notification containing the revised guidelines was issued on 02.05.2007 Clause-I of which mandates that the applicant must be permanent resident of the service area of the Anganwadi centre/Mini Anganwadi Centre/Additional Anganwadi Centre. Clause-IV under the Page 9 of 13 heading “Procedure” in the guidelines provides that any candidate being aggrieved by the decision of the selection committee may prefer appeal before the Additional District Magistrate of the district. Thus, on the face of it, if the opposite party No.3 had any reason to feel aggrieved by the decision taken by the selection committee to reject her candidature, she should have preferred appeal before the Additional District Magistrate. She however, chose to approach the State Commission for Persons with Disability (SCPD) apparently as she is a physically disabled candidate. 11. The question is, whether any right of the opposite party No.3, was infringed in the instant case. Reference to the copy of the meeting of the selection committee enclosed as Annexure-2 reveals that 5 points were awarded to opposite party No.3 on the ground of her physical disability. Thus, her right to be given weightage on account of her physical disability was recognized and given due regard. What she appears to be aggrieved of is non-consideration of her residential certificate by the Selection Committee. But as is seen from the records, the opposite party No. 3 submitted a residential certificate dtd. 20.10.2009 along with her Page 10 of 13 application and again a certificate dtd. 12.06.2013 at the time of selection. Thus as on the date of advertisement or even on the last date of submission of application she did not have a residential certificate as per the requirement of the advertisement. The certificate submitted by her was four years old. She did obtain another certificate but only during the selection procedure, which obviously could not have been considered. She was therefore, clearly not eligible despite having secured the highest marks. There was thus no error or infirmity in the decision taken by the selection committee. This aspect does not appear to have been considered in the correct perspective by the SCPD for which the impugned judgment becomes vulnerable. 12. Further, reading of the judgment of SCPD shows that the petitioner was not heard. In the counter filed by the State, the stand taken by the petitioner that she had not been served any notice by the SCPD has not been specifically denied. Thus, the judgment of SCPD becomes vulnerable also for non-adherence to the principles of nature justice and therefore, cannot be treated as binding on the petitioner. Page 11 of 13 13. Even otherwise, this Court finds that a stand has been taken by the opposite party Nos. 1 and 2 in the counter is that they are bound by the judgment of the SCPD. Reference to Section 81 of the 2016 Act would however indicate otherwise and is quoted herein below: 81. Action by appropriate authorities on recommendation of State Commissioner.— the State Commissioner makes a Whenever recommendation to an authority in pursuance of clause (b) of section 80, that authority shall take necessary action on it, and inform the State Commissioner of the action taken within three months the recommendation: Provided that where an authority does not accept a recommendation, it shall convey reasons for non-acceptance to the State Commissioner for Persons with Disabilities within the period of three months, and shall also inform the aggrieved person.” the date of receipt of from The proviso to Section 81, quoted above, clearly shows that the concerned authority, in this case the CDPO Sonepur, has the discretion to either accept or not accept the recommendation made by the SCPD. In a similar case, that is the case of Santosh Kumar Padhi vs. State of Odisha2, this Court held as follows: “15. From a conjoint reading of the aforequoted provisions and particularly the proviso to Section 81 of the Act, it is clear that the recommendation of the Opposite Party No.2 is not mandatory but only 2 WPC (OAC) No. 304 of 2018 Page 12 of 13 advisory in nature. Therefore, for the Opposite Party- authorities to contend that they had acted in pursuance of the order passed by the Opposite Party No.2 cannot be accepted. Rather, it shows a complete non-application of mind by the authority to the facts and circumstances of the In short, recommendation was accepted mechanically.” the case. The stand taken by the opposite party Nos. 1 and 2 as referred above is entirely misconceived and contrary to the statutory provisions. 14. Thus from the conspectus of the analysis of the facts and law and the discussion made hereinbefore, this Court is left with little doubt that the impugned judgment dtd. 15.01.2014 passed by the SCPD cannot be sustained in the eye of law and hence, warrants interference. 15. In the result, the writ application is allowed. The impugned judgment dtd. 15.01.2014 passed by SCPD in SCPD Case No. 326 of 2013 is hereby set aside. There shall
Decision
be no order as to costs. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 28th March, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 30-Mar-2024 14:12:35 Page 13 of 13