The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6353 of 2013 & W.P.(C) No.12149 of 2013 (In W.P.(C) No.6353 of 2013) Kumudini Mahala …. Petitioner(s) Mr. Anupam Rath, Adv. State of Orissa and Ors. -versus- Opp. Party (s) …. Mr. Ch. Satyajit Mishra, AGA Mr. S.K. Dash, Adv. (for O.P.6) (In W.P.(C) No.12149 of 2013) Sasmita Bhoi Petitioner(s) …. Mr. S.K. Dash, Adv. -versus- Additional District Magistrate, Subarnapur & others …. Opp. Party(s) Mr. Ch. Satyajit Mishra, AGA Mr. Anupam Rath, Adv. (for O.P.4) CORAM: DR. JUSTICE S.K. PANIGRAHI Order No. ORDER 21.11.2023 20. 1. Both the matters are taken up through hybrid arrangement. Page 1 of 16 // 2 // 2. Since common question of facts and law are involved in both the Writ Petitions, the same are heard together and are being
Decision
disposed of by this common order. However, this Court feels it apposite to deal the W.P.(C) No.6353 of 2013 as the leading case for proper appreciation of facts and for proper adjudication of both the cases. 3. Both the Petitioners in both the aforesaid Writ Petitions challenge the order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010 wherein the C.D.P.O., Binika and the Sub-Collector, Sonepur were directed to take necessary steps to issue disengagement letter in favour of the Petitioner in W.P.(C) No.6353 of 2013 from the post of Anganwadi Worker, Centre- III of village- Bausuni. It was further directed that the Anganwadi Worker of the nearest Anganwadi Centre be handed over the charge of the Centre-III of village- Bausuni for smooth and proper functioning of the Centre. The C.D.P.O., Binkia and the Sub-Collector, Sonepur were also directed to take steps forthwith to issue fresh Notification to fill up the vacancy and report compliance within 15 days. In the above such observations and directions, the AWW Appeal Case No.95 of 2010 filed by the Petitioner (Sasmita Bhoi) was disposed of by the Additional District Magistrate, Subarnapur vide order dated 08.03.2013. Page 2 of 16 // 3 // 4. Heard learned counsel for the parties in detail. 5. The fact of the case is that the Child Development Project Officer, Binika (hereinafter referred to as “the C.D.P.O., Binika” for brevity) issued a Notification/ Advertisement on 15.05.2010 seeking applications from eligible candidates for appointment as Anganwadi Workers of Bausuni-III Anganwadi Centre. Pursuant to such Notification/ Advertisement, only two candidates i.e. the Petitioner in W.P.(C) No.6353 of 2013 (hereinafter referred to as “the Petitioner” for brevity) and the Petitioner in W.P.(C) No.12149 of 2013 (hereinafter referred to as “the Opposite Party No.6” for brevity) submitted their applications for the said post. The Opposite Party No.6 submitted her application on 29.05.2010 which was duly acknowledged by the C.D.P.O., Binika and the documents were verified on 31.05.2010. 6. After such verification of certificates, the C.D.P.O., Binika had sent the copy of the nativity and caste certificate bearing No.1247/2010 and 1248/2010 respectively for verification to the Tahasildar, Binika and the said Tahasildar vide his letter No.1444 dated 27.07.2010 intimated to the C.D.P.O., Binika that these certificates were never issued by his office. 7. Thereafter, the Selection Committee for selection of A.W.Ws. was held on 03.08.2010 under the Chairmanship of the Sub- Collector, Subarnapur, the C.D.P.O., Binika, the Medical Page 3 of 16 // 4 // Officer, Binika and S.E.O., Binika as members of the said Committee. The Committee found that the Petitioner had filed an objection during the objection period as to the genuineness of the caste certificate and nativity certificate of the Opposite Party No.6. The said certificates were referred to the Tahasildar, Binika, the issuing authority, and in return, the Tahasildar, Binika intimated that the certificates bearing No.1047/2010 and 1248/2010 issued on 29.05.2010 were never issued by him on 29.05.2010. As a result, the Selection Committee did not consider the case of the Opposite Party No.6 for appointment on the alleged ground that the residential certificate and caste certificate were forged. Consequently, the Petitioner being the only candidate was selected as the A.W.W. 8. The Opposite Party No.6 after coming to know the said fact immediately made a representation before the authority stating that her caste certificate and nativity certificate were bearing Nos.707/2009 and 5952/2009 respectively. However, when no action was taken on her representation and the Petitioner was appointed as A.W.W, she approached this Court in W.P.(C) No.13880 of 2010 with a prayer to quash the final selection list wherein the Petitioner was selected as the A.W.W. as well as to direct the Opposite Parties/ State to make an inquiry into the Page 4 of 16 // 5 // substitution of false certificates in place of original certificates submitted by her. 9. The said Writ Petition was disposed of at the stage of admission holding that as the allegations made by the Opposite Party constitutes disputed question of fact, the same cannot be effectively adjudicated in the writ jurisdiction and having found that there is a provision of appeal against selection of A.W.W. this Court disposed of the said Writ Petition on 20.08.2010 with a direction to the Opposite Party No.6 inter alia to file an appeal within two weeks from the date of the order before the appellant authority. It was further directed that if such an appeal is filed, the appellate authority should dispose of the appeal within a period of two months from the date of filing of the appeal adjudicating all the issues raised in the appeal more particularly the allegation relating to fraud committed while selecting Petitioner after giving opportunity of hearing to the Opposite Party No.6 as well as the Petitioner. While disposing of the said Writ Petition as above, this Court further directed that the appointment of the Petitioner shall be subject to the result of the appeal. 10. Pursuant to the above direction of this Court, the Opposite Party No.6 preferred an appeal before the Additional District Magistrate, Subarnapur which was disposed of on 08.03.2013. The Additional District Magistrate, Subarnapur on going Page 5 of 16 // 6 // through the case records as well as the records of the Tahasildar, Binika relating to nativity and caste certificate bearing No.1247/2010 and 1248/2010 came to conclude that the actual application form and the actual Nativity and caste certificate submitted by the applicant (Opposite Party No.6) which were acknowledged by the Office of the C.D.P.O., Binika on 29.05.2010 were supplemented with the application dated 29.10.2010 with forged documents. If such manipulation had not been committed, the Opposite Party No.6 being the candidate securing 58.7% of marks would have been selected. 11. With the aforementioned appreciation, the Additional District Magistrate, Subarnapur vide the impugned order dated 08.03.2013 declared the selection and appointment of the Petitioner (Kumudini Mahala) bad in law. It was also specifically declared that the Petitioner is entitled to disengagement. Accordingly, the C.D.P.O., Binika and the Sub- Collector, Subarnapur were directed to take necessary steps immediately to issue disengagement letter in favour of the Petitioner (Kumudini Mahala) disengaging her from the post of Anganwadi Worker of Centre-III of village Bausuni. It was further directed that the Anganwadi Worker of nearest Anganwadi Centre be handed over the charge of the Centre-III of village Bausuni for smooth functioning of the Centre. The C.D.P.O., Binika and the Sub-Collector, Subarnapur were also Page 6 of 16 // 7 // directed to take steps forthwith to issue fresh Notification to fill up the vacancy and report compliance within 15 days. Being aggrieved, both the Petitioner and the Opposite Party No.6 have filed the aforesaid Writ Petitions. 12. Learned counsel for the Petitioner (Kumudini Mahala) submits that the Additional District Magistrate, Subarnapur during the course of consideration of the Appeal filed by the Opposite Party No.6 (Sasmita Bhoi) called for a report from the C.D.P.O., Binika regarding the allegations made by the Opposite Party No.6. The C.D.P.O., Binika submitted the report on 08.01.2013 wherein she had categorically stated that the certificate purportedly issued by the Tahasildar, Binika are forged which was also confirmed by the Tahasildar, Binika (issuing authority). In the said report it was clearly mentioned that the Sub-Collector, Subarnapur had made an inquiry on the allegations of the Opposite Party No.6. But in the said inquiry, the Opposite Party No.6 had failed to produce her residential and caste certificates. Therefore, the Selection Committee decided to reject the application of the Opposite Party no.6 and selected the Petitioner for engagement as A.W.W. However, the Additional District Magistrate, Subarnapur without application of mind and without considering the facts and circumstances and the report of the C.D.P.O., Binika in its proper perspective, allowed the appeal filed by the Opposite Page 7 of 16 // 8 // Party No.6 and set aside the order of engagement issued in favour of the Petitioner for the post of Anganwadi Worker of Bausuni-III Anganwadi Centre and directed the C.D.P.O., Binika and the Sub-Collector, Subarnapur to issue fresh Notification to fill up the post of Anganwadi Worker of Bausuni-III Anganwadi Centre. 13. Learned counsel for the Opposite Party No.6( the Petitioner in W.P.(C) No.12149 of 2013) supporting the observation made by the Additional District Magistrate, Subarnapur vide the impugned order to the effect that the actual application form and the actual nativity and caste certificates submitted by the applicant (Opposite Party No.6) which were acknowledged by the Office of the C.D.P.O., Binika on 29.05.2010 were supplemented with the application dated 29.10.2010 with forged documents. Had such manipulation not been committed, the Opposite Party No.6 being the candidate securing 58.7% of marks would have been selected, contends that the Additional District Magistrate, Subarnapur instead of directing the C.D.P.O., Binika and the Sub-Collector, Subarnapur to take steps to issue fresh Notification should have directed to give appointment to the Petitioner in the post of Anganwadi Worker of Bausuni-III Anganwadi Centre. Moreover, this Court vide order dated 20.08.2010 passed in Misc. Case No.13092 of 2010 arising out of W.P.(C) No.13880 of Page 8 of 16 // 9 // 2010 directed that appointment of the Petitioner (Kumudini Mahala) would be subject to the result of the appeal. 14. Perused the impugned order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010, the order dated 20.08.2010 passed in Misc. Case No.13092 of 2010 arising out of W.P.(C) No.13880 of 2010 and the averments made in both the aforesaid Writ Petitions along with all the Annexures. 15. The impugned order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010 reads as follows: “This appeal has been preferred by the appellant being aggrieved with the arbitrary and illegal selection and appointment of Respondent No.2 as the Anganwadi Worker of Village Baunsuni III Centre under Binka ICDS. Perused the entire material documents available in the case record. Heard argument from both parties. The allegation of the appellant is that, the Respondent No.2 in connivance with the Respondent No.1 could be able to substitute a forged application with forged certificate in place of original documents which were actually filed at the time of tendering of application. Due to such mal- supplement of forged certificates and forged application from the appellant was disqualified by the selection committee. The further allegation of the appellant is that, she has secured more marks than the Respondent No.2 and she should have been selected for the post. Page 9 of 16 // 10 // As such the appellant has prayed to declare the Order No.614 dt.5.08.2010 issued by the Respondent No.1 be set aside and the appellant be declared as the selected candidate for the post. per From the available documents it is observed that the Notification was issued on 14.05.2010 by the CDPO Binka. Only two candidates have applied for the post of Anganwadi Worker for the above said Centre. One is the appellant and another is the acknowledgement Respondent No.2. As dt.29.05.2010 of the application Form of the appellant, the documents were verified on 31.05.010. But the application form submitted by the CDPO before this Court bears the date as 29.10.2010. So it clearly shows that the application form of the appellant is somehow manipulated. If the application form of the appellant is acknowledged on 29.05.2010, it is quite suspicious that the application form of the appellant bers to be the date as 29.10.2010. So the application form bearing the date as 29.10.2010 casts a serious doubt in my mind. Further it is observed that the appellant has informed the CDPO Binka regarding manipulation of her application caste certificate and Residential certificate. Accordingly the CDPO Binka has noticed the appellant vide, Letter No.497 dt.24.06.2010 to appear her office to submit all documents for inquiry by the Sub-Collector, Sonepur on 29.06.2010. on 21.06.2010 But it is found that the inquiry report of the Sub- Collector is not available in the case record. The CDPO Binka has not submitted such inquiry report made by the Sub-Collector, Sonepur if any. On the other hand the CDPO has only given a report vide Memo No.60 dt.9.01.013 that, Sub-Collector Sonepur made an inquiry on the matter and Smt. Sasmita Bhoi, Page 10 of 16 // 11 // the appellant and her husband failed to produce the Residential and Caste Certificate to the Sub-Collector, during inquiry. But in my opinion such averment of the CDPO is not at all believable. If such an inquiry has ever been conducted by the Sub- Collector, Sonepur, the CDPO should have been filed such report of the inquiry before this Court. It is also further observed from the merit list submitted by the CDPO, that the appellant has put her signature in English. The Vakalatnama filed by the appellant also bears her signature in English. The Affidavit submitted by the appellant before this Court on dated 6.05.011 bears the signature of the appellant in English. The Caste Certifitate vide Misc. Certificate Case No.707/2009 and Nativity Certificate bearing Misc. Certificate Case No.5952/2009 issued by the Additional Tahasildar, Binka bears the signature of the appellant in English. So, it is clearly evident that the appellant puts her signature in all time in English. But the application form dated 29.10.010 bears the signature of the appellant in Oriya. So such an application form is in my opinion has been clearly manipulated by somebody in the office of the CDPO, Binka. It also come to my notice that proceeding on selection of A.W.W. Committee Meeting was held on 9.06.2010 at 9 A.M. So it is quite unbelievable that the appellant has applied for the post on 29.10.2010. The proceeding record in Para 3 contains that the genuiness of Nativity and Caste Certificate of Sasmita Bhoi has been verified with the corresponding record of the Tahasil Binka and found that the Certificate No. 1248/2010 dtd.29.05.010 and 1247/2010 dtd. 29.05.2010 has not been issued on 29.05.2010 by the Tahasildar. As such the application of the appellant is rejected. Page 11 of 16 // 12 // On verification it is found that the appellant was issued with the Caste and Residential Certificate by the Additional Tahasildar, Binka vide Caste Certificate Case No.707/2009 and Nativity Certificate Case No. 5952/2009 on dated 25.11.2009 respectively. So it is beyond prudency that, a candidate who is a resident of the Centre area and a S.T. candidate having authentic documents in her support why she shall file forged certificates which are against her interest. After careful verification it came to my notice that the appellant has secured 58.7 percent of marks and the Respondent No.2 has secured 55.33 percent of marks. So it is quite surprising that, a candidate having more percent of marks and having proper documents in her favour why she will filed forged documents. In view of the above appreciation, I have come to a conclusion that, the actual application form and the actual Nativity and Caste certificate submitted by the appellant which were acknowledged by the office of the CDPO, Binka on dated 29.05.2010 are supplemented with the application dated 29.10.2010 with forged documents. If such manipulation would have not been committed, the appellant being the candidate securing more percent of marks might have been selected. So, in my view, the selection procedure is highly suspicious and casts a serious doubt in the mind of the Court. Hence, I am inclined to declare the selection and appointment of the Respondent No.2 by the selection committee is illegal and bad in the eye of law. Further also it is declared that, the Respondent No.2 is entitled for disengagement. So the CDPO, Binka and the Sub- Collector, Sonepur are directed to take necessary steps immediately to issue of disengagement letter of the Page 12 of 16 // 13 // Respondent No.2 from the post of Anganwadi Worker of Centre-III of village Baunsuni. It is also further directed that the Anganwadi Worker of the nearest Anganwadi Centre be handed over charge of the Centre-III of Village Baunsuni for smooth and proper function of the Centre. The CDPO and Sub-Collector are directed to take steps forthwith to issue fresh fill up the vacancy and report Notification to compliance within 15 days.” 16. From a bare perusal of the aforesaid materials available on records and the reading of the impugned order, it is apparent that both the Petitioner (Kumudi Mahala) and the Opposite Party No.6 (Sasmita Bhoi) are residents of Centre area and the Opposite Party No.6 (Sasmita Bhoi) is a S.T. candidate having authentic documents in her support. It is also apparent that the Additional District Magistrate, Subarnapur while passing the impugned order had vigilantly verified all the relevant documents and observed that “a candidate who is a resident of the Centre area and a S.T. candidate having authentic documents in her support why she shall file forged certificates which are against her interest”. Moreover, the Additional District Magistrate, Subarnapur had also observed that the Opposite Party No.6 (Sasmita Bhoi) has secured 58.7 percent of marks and the Petitioner(Kumudini Mahala) has secured 55.33 percent of marks. Therefore, a candidate having more percent of marks Page 13 of 16 // 14 // and having proper documents in her favour, could not have thought of filing of forged documents. 17. Therefore, having considered the contentions made by the learned counsel for the Parties and on applying my judicious mind carefully on the materials available on records so also the provisions of law, this Court is of the view that there appears no ground to interfere with the impugned order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010 so far it relates to the direction to the C.D.P.O., Binika and the Sub- Collector, Subarnapur to take steps to issue disengagement letter in favour of the Petitioner (Kumudini Mahala). 18. However, the impugned order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010 so far it relates to the direction to the C.D.P.O., Binika and the Sub-Collector, Subarnapur to issue fresh Notification for the post of Anwanwadi Worker in respect of Anganwadi Centre-III of village Bausuni is not sustainable in law in view of the fact that after passing of disengagement order in favour of the Petitioner (Kumudini Mahala), the Opposite Party No.6 (Sasmita Bhoi) is the only candidate to be selected for the post of Anganwadi Worker of Bausuni Anganwadi Center-III. Page 14 of 16 // 15 // 19. In such view of the matter, the Additional District Magistrate, Subarnapur vide the impugned order instead of directing the C.D.P.O., Binika and the Sub-Collector, Subarnapur to take steps to issue fresh Notification should have directed to give appointment to the Opposite Party No.6 (Sasmita Bhoi) in the post of Anganwadi Worker of Bausuni-III Anganwadi Centre. 20. Accordingly, that part of the impugned order dated 08.03.2013 passed by the Additional District Magistrate, Subarnapur in AWW Appeal Case No.95 of 2010 so far it relates to the direction to the C.D.P.O., Binika and the Sub- Collector, Subarnapur to issue fresh Notification for the post of Anwanwadi Worker in respect of Anganwadi Centre-III of village Bausuni is quashed. 21. Consequently, the C.D.P.O., Binika and the Sub-Collector, Subarnapur are directed to take all effective steps to issue disengagement order in favour of the Petitioner (Kumudini Mahala) and issue engagement order in favour of the Opposite Party No.6 (Sasmita Bhoi) for the post of Anganwadi Worker in respect of Centre-III of village Bausuni within one month of receipt of this order. 22. Accordingly, both the Writ Petitions are disposed of. No orders as to costs. Page 15 of 16 // 16 // 23. Interim orders dated 20.03.2013 passed in Misc. Case No.5899 of 2013 arising out of W.P.(C) No.6353 of 2013 and dated 11.07.2013 passed in Misc. Case No.11486 of 2013 arising out of W.P.(C) No.12149 of 2013 stand vacated. Sumitra ( Dr. S.K. Panigrahi) Judge Signature Not Verified Digitally Signed Signed by: SUMITRA NAYAK Designation: Jr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 12-Dec-2023 18:06:47 Page 16 of 16