The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17098 of 2013 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Gayatri Nayak State of Orissa & Ors. -versus- …. …. Petitioner (s) Opposite Part(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Partha Sarathi Nayak, Adv. Mr. Ch.Satyajit Mishra, AGA Mr. B.B. Behera, Adv. (for O.P.4) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-19.10.2023 DATE OF JUDGMENT: -10.11.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition challenges the order dated 06.07.2013 passed by learned Additional District Magistrate, Dhenkanal in Misc. Appeal Case No.2 of 2013. I. FACTUAL MATRIX OF THE CASE: 2. The C.D.P.O., Hindol vide advertisement notice no.698 dated 07.09.2009 widely circulated the notice for selection of Anganwadi worker in respect of different Anganwadi Centre under the office of C.D.P.O., Hindol and invited application from eligible candidates Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 1 of 11 3. 4. for selection of Anganwadi worker among the different Anganwadi Centre Kansara-II Additional Anganwadi Centre was one of them. Said Kansara-II Additional Anganwadi Centre was consisting of village-Tangiaghasa, Godisahi, Gunadhipa, Kansara Nayak Sahi. In pursuance to the said notice, the petitioner has applied for selection of Anganwadi worker in respect of Kansara-II Additional Anganwadi Centre. Along with the petitioner three other candidates have also applied for selection of Anganwadi worker in respect of the said Centre. Since none of the candidates belong to the village of Tangiaghasa, Godisahi, Gunadhipa, Kansara Nayak Sahi, the CDPO, Hindol cancelled the said notice under Annexure-1 and issued another notice vide notification no.1 dated 1.1.2010 and widely circulated the said notice for selection of Anganwadi Worker in respect of Kansara-II Additional Anganwadi Centre. In the said notification the C.D.P.O., Hindol also mentioned that the candidates from the revenue village of Kansara may apply for selection of Anganwadi worker. 5. In pursuance to the notification under Annexure-3, the petitioner found her to be most suitable and she applied for getting selection of Anganwadi worker in respect of Kansara-II Additional Anganwadi Centre within stipulated time. Along with her application form, she has submitted her HSC mark sheet, certificate and residence Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 2 of 11 certificate. The CDPO, Hindol after receiving the said certificate from the petitioner issued an acknowledgment in that respect. 6. Along with the petitioner four other candidates including the opposite party No.4 have applied for getting selection of Anganwadi Worker in respect of the aforesaid Centre. The CDPO, Hindol after receiving the application from different candidates invited objections from the general public in respect of the candidates applied for selection of Anganwadi Worker of Kansara II Additional Anganwadi Centre. After completion of objection period the Selection Committee prepared a comparative merit statement of the candidates. The petitioner in her HSC Examination has secured 481 marks out of 750 marks. This comes to 64.13%. On the other hand the O.P. No.4 has secured 375 marks out of 750 marks which comes to be 50%. The O.P. No.4 being a schedule caste person was entitled to 10 marks more as additional mark. All total the O.P. No.4 obtained 60.00 marks whereas the petitioner has obtained 64.13 marks. Therefore, the Selection Committee selected the petitioner to be appointed as Anganwadi worker in respect of Kansara-II Additional Anganwadi Centre. 7. The Selection Committee accordingly selected the petitioner as Anganwadi worker of Kansara-II Additional Anganwadi Centre. The CDPO, Hindol issued engagement letter in favour of the petitioner. Pursuant to the said appointment/engagement order, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 3 of 11 petitioner joined her duty as Anganwadi worker of Kansara-II Additional Anganwadi centre till date. 8. While the petitioner was discharging her duty as Anganwadi worker of Kansara II Additional Anganwadi Centre, the opposite party No.4 challenging the Selection of the petitioner as Anganwadi worker in respect of Kansara-II Aditional Anganwadi Centre filed an appeal before the learned Additional District Magistrate, Dhenkanal vide Misc. Appeal Case No.2/2013 on the ground that she is the only candidate from the service area but the selection committee selected the petitioner who is not a permanent resident of the service area. 9. The learned A.D.M., Dhenkanal after perusing the record observe that the O.P. No.4 is the only candidate from the service area and allowed the appeal filed by the O.P. No.4 and directed the CDPO, Hindol to issue engagement order in favour of the O.P.No.4. Hence, this Writ Petition. II. PETITIONER’S SUBMISSIONS: 10. Learned counsel for the Petitioner(s) earnestly made the following submissions in support of his contentions: (a) As per annexure-1 the service area of Kansara-II was Tangiaghasa, Godisahi, Gunadhipa, Kansara Nayak Sahi. Pursuant to Annexure- 1, the petitioner applied for getting selection of anganwadi worker. The O.P. no.4 had not applied pursuant to said notification under Annexure 1. Since the Selection Committee found that not a single Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 4 of 11 candidate applied for getting selection of Anganwadi worker in respect of Kansara -II Anganwadi Centre. (b) So, the Selection Committee cancelled the notification for selection of Anganwadi worker for Kansaa-II Additional Anganwadi Centre. Therefore, the CDPO, Hindol under Annexure-3 once again issued the notice for selection of Anganwadi worker where in the remark column the CDPO has clearly mentioned that the candidate from revenue village of Kansara are also eligible for selection of Anganwadi worker in respect of Kansara-II Additional Anganwadi Centre. (c) The petitioner is a permanent resident of village-Kansara. The Tahasildar, Hindol under Annexure-4 series issued nativity/resident certificate in favour of the petitioner. This clearly shows that the petitioner is a permanent resident of village-Kansara. The selection committee found that the petitioner is a permanent resident of Kansara Revenue Village and she has secured more marks than all other candidates. Accordingly, the Selection Committee rightly selected the present petitioner. (d) Since, pursuant to first notification under Annexure-1, no candidate was available from the service area even if the petitioner had applied pursuant to the first notification under Annexure-1 but the Selection Committee did not select the petitioner. In the first notification the O.P.No.4 had not applied because by that time she was not a permanent resident of Gunadhipasahi. She became Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 5 of 11 permanent resident of Gunadhipasahi after her marriage with Debarchan Naik. The O.P. No.4 married to Debarchan Naik after long time from date of publication of the first notification under Annexure-1. Therefore during the first notification she was not eligible at all. But, in the appeal, she claimed that the CDPO, had not circulated the notification properly, therefore she could not applied in pursuance to first notification under Annexure-1. This contention of the O.P. No.4 is contrary to fact and record. (e) Since no candidate from the service area of Kansara-II Additional Anganwadi Centre was available, the CDPO, Hindol in the second notification under Annexure-3, in remarks column stated that candidate from Kansara Revenue village are also eligible for Kansara-II Additional Anganwadi Centre. Accordingly the petitioner again applied for selection and the Selection Committee selected her as because she was a permanent of Kansara Revenue village and she has secured highest mark among all other candidates. (f) In the appeal filed by the O.P. No.4 before the A.D.M., Dhenknal her prayer were (i) to cancel the notification vide no.1 dated 1.1.2010 in keeping with provisional of revised guidelines of 2007 (ii) to cancel the appointment of respondent no.2 (petitioner) which done to irregular process (ii) to publish further notification in proper way for the said area like first notification vide No.698 of 7.9.2009. But the learned A.D.M., Dhenkanal passed order directing the CDPO to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 6 of 11 issue engagement order in favour of the appellant (O.P.No.4) in respect of Kansara-II Addl. Anganwadi centre. The prayer of the O.P.No.4 did not contain such prayer but the Additional District Magistrate, Dhenkanal travelling beyond his jurisdiction passed such order. Hence, it is liable to be quashed. III. SUBMISSIONS OF OPPOSITE PARTY NOS.2 & 3: 11. Per contra, learned Senior Standing Counsel for the Opp. Parties intently made the following submissions:
Decision
(a) The then C.D.P.O., Hindol vide Annexure-1 to the writ petition had invited applications for selection of Anganwadi Worker in respect of Kansara-II Additional Anganwadi Centre. As no eligible candidates were available within the service area for the said Centre, she cancelled the said notification dated 07.09.2009 and after four months, the then C.D.P.O., Hindol vide Notification No.01 dated 01.01.2010 at Annexure-3 to the writ petition again issued another notification inviting applications for selection of Anganwadi Worker in respect of Kansara-II Additional Anganwadi Centre from the revenue village of Kansara instead of the service area taking into account the fact that no candidates were available from the service area. Four candidates including Opposite Party No.4 had applied for being considered for selection and Opposite Party No.4 was the only eligible candidate who had applied for the said centre belonging to the service area of Kansara-II Addl. Anganwadi Centre. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 7 of 11 (b) Thereafter, the then C.D.P:O., Hindol invited objections from the general public in respect of candidates applied for selection of Anganwadi Worker for the said centre, but in spite of objections submitted by the villagers, the then C.O.P.O. selected the present petitioner. (c) The then C.D.P.O., Hindol had selected the present petitioner taking into account the letter No.22809. dated 30.12.2009 in which it has been clearly mentioned that if an eligible candidate is not available within the Anganwadi Centre area for the selection to post of Anganwadi Worker, the candidates of the revenue village will be considered. The Opposite Party No.4 was the only eligible candidate available within the service area of the said centre who had applied for the said centre. (d) Opposite Party No.4 had filed Misc. Appeal No.29 of 2010 in the Court of the Sub-Collector, Hindol, challenging the selection of the present petitioner the said case was transferred to the Court of A.D.M., Dhenkanal vide Memo No.10 dated 03.01.2013 of the Sub- Collector, Hindol where it was renumbered as Misc. Appeal No.2 of 2013. After hearing the parties, the learned A.D.M., Dhenkanal allowed the appeal in favour of Opposite Party No.4. (e) Though the petitioner belongs to the revenue village and she had secured more marks but she does not belong to the service area of the said Centre. Only one eligible candidate i.e. Opposite Party No.4 was available at the time of selection. The averment that the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 8 of 11 candidates from the revenue village are also eligible for selection as mentioned in the notification is not correct. (f) When the first notification was issued, Opposite Party No.4 had not applied for being considered for selection and having got married to one Debarchan Naik of village Kansara within the service area of the said centre she thereafter had applied pursuant to the 2nd notification dated 01.01.2010 being eligible to apply. (g) Opposite Party No.4 belongs to the service area for being selected as Anganwadi Worker for the said centre. The villagers had submitted their representation to the Sub- Collector, Hindol prior to the selection. Clarification letter has been received from the Goverment vide letter no.22309/WCD dated 30.12.2009 which stated that "If an eligible candidate is not available within the service area, then the candidates of the revenue village will be considered". In the notification dated 01.01.2010 at Annexure-3 to the writ petition, it has been clearly mentioned in the remarks column that candidates from the revenue village can apply. But the averments to the effect that the candidates from the revenue village are eligible for being considered at the said selection has been mentioned in the remarks column of the aforesaid notification dated 01.01.2010 are false. IV. COURT’S REASONING AND ANALYSIS: 12. The then C.D.P.O., Hindol vide Annexure-1 to the Writ Petition had invited applications for selection of Anganwadi Worker in respect of Kansara-II Additional Anganwadi Centre. As no eligible candidates Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 9 of 11 were available within the service area for the said Centre, she cancelled the said notification dated 07.09.2009 and after four months, the then C.D.P.O., Hindol vide Notification No.01 dated 01.01.2010 at Annexure-3 to the writ petition again issued another notification inviting applications for selection of Anganwadi Worker in respect of Kansara-II Additional Anganwadi Centre from the revenue village of Kansara instead of the service area taking into account the fact that no candidates were available from the service area. Four candidates including Opposite Party No.4 had applied for being considered for selection. The Opposite Party No.4 was the only eligible candidate who had applied for the said centre belonging to the service area of Kansara-II Addl. Anganwadi Centre. 13. Since no candidate from the service area of Kansara-II Additional Anganwadi Centre was available, the CDPO, Hindol in the second notification under Annexure-3, in remarks column stated that candidate from Kansara Revenue village are also eligible for Kansara-II Additional Anganwadi Centre. Accordingly the petitioner again applied for the said post and the Selection Committee selected her because she was a permanent resident of Kansara Revenue village and she has secured highest mark among all other candidates. 14. Considering that the appointment of the petitioner is in accordance to the advertisement issued by the then CDPO, Hindol, this Court Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 10 of 11 cannot accede to the submission of the Opposite Parties. Non- availability of candidate of the service area shall not repudiate the selection process through which the appointment is already complete. Therefore, the order dated 06.07.2013 passed by learned Additional District Magistrate, Dhenkanal in Misc. Appeal Case No.2 of 2013 is hereby quashed. 15. Accordingly, this Writ Petition is disposed of being allowed. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 10th Nov., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 19:27:47 Page 11 of 11