Writ Appeal No. 767 of 2023 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA Nos.766 and 767 of 2023 Appeals arising out of W.P.(C) Nos.16096 & 13154 of 2022 WA No.766 of 2023 Kumari Khara …. Appellant -Versus- State of Odisha and others …. Respondents Advocates appeared in this case: For Appellant : Ms. Sujata Jena, Advocate Ms. Sonali Panda, Advocate For Respondents : Mr. Debaraj Mohanty, AGA (for opposite party nos.1 to 4) Mr. Swapna Kumar Ojha, Advocate (for opposite party no.6) WA No.767 of 2023 Kumari Khara …. Appellant -Versus- State of Odisha and others …. Respondents Advocates appeared in this case: For Appellant : Ms. Sujata Jena, Advocate Ms. Sonali Panda, Advocate For Respondents: Mr. Debaraj Mohanty, AGA (for opposite party nos.1 to 4) Page 1 of 19 Mr. Swapna Kumar Ojha, Advocate (for opposite party no.6) CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T 18.06.2025 PER MRUGANKA SEKHAR SAHOO, J. Both the writ appeals are taken up together as they bring into question the legality of the common judgment and order dated 24.02.2023 passed by the learned single Judge dismissing the writ petition W.P. (C) No.16096 of 2022 filed by the appellant in Writ Appeal No.767 of 2023 who was the petitioner in the writ petition. The W.P.(C) No.16096 of 2022 was filed challenging order of the A.D.M., Jajpur dated 13.04.2022 directing fresh selection to be done for ‘Jari North’ Anganwadi Centre. Writ Appeal No.766 of 2023 is also filed by the appellant also challenging the common judgment and order dated 24.02.2023 allowing the writ petition W.P.(C) No.13154 of 2022 filed by the present WA Nos.766 & 767 of 2023 Page 2 of 19 respondent no.6. By the said judgment and order, the learned single Judge has set aside the order dated 13.04.2022 passed by the Additional District Magistrate, Jajpur (hereafter the A.D.M.) in Anganwadi Worker Misc.
Legal Reasoning
Appeal [A.W.W. Misc. (Appeal) case No.03/2021: Smt. Kumari Khara vrs. Smt. Sunita Mallik], upholding selection of respondent no.6 as Anganwadi Worker. 2. The appeal before the A.D.M. was filed as provided in the guidelines governing selection of Anganwadi Worker challenging selection of Anganwadi Worker for ‘Jari North’ Anganwadi Centre in village-Jari, Gram Panchayat-Jari in the district of Jajpur. The A.D.M. set aside the selection and directed for fresh advertisement and selection. The selection that was challenged was pursuant to the advertisement dated 19.07.2021 (Annexure-1 to the writ appeal), the English translation of which has also been filed on 03.07.2023. Pursuant to the said selection as per the advertisement, the respondent no.6 was selected as the Anganwadi Worker (AWW) by the committee. In the appeal before the A.D.M. the appellant challenged the selection and WA Nos.766 & 767 of 2023 Page 3 of 19 engagement order issued by the Child Development Project Officer, Binjharpur issued in favour of respondent no.6 as Anganwadi Worker. 2.1. The grounds of challenge in the appeal before the A.D.M. were, inter alia, as follows: respondent “(i) The an inhabitant/residing of the center area of Jari North AWC i.e. Rama Chandra Mallik house to Jadaba Jena house. No.1 not is (ii) The respondent No.1 is not known the Oriya language as well as not able to read and write.” It was also alleged that selection committee had not properly verified the documents furnished by the respondent no.6. 2.2 Before the A.D.M., present respondent no.6 being arrayed as respondent no.1 filed her written submission in response to the appeal enclosing documents she relied upon. The respondent no.3 before the A.D.M. [Child Development Project Officer (CDPO), Binjharpur, respondent no.5 in the present appeal] also filed a written submission enclosing documents taking a stand that the WA Nos.766 & 767 of 2023 Page 4 of 19 selection of the respondent no.6 was on the basis of merit list prepared after consideration of all the candidates. The selected candidate had ‘knowledge in Odia’ and the respondent no.6 can speak, write and read in Odia. A similar stand was taken by the respondent no.6 before the A.D.M. that she can speak, writ and read Odia language. The A.D.M. took note of the written submission of the respondent no.6, wherein it was stated that she had passed 5th Class in Odia medium in Ahamadpur Primary School, Rajkanika, Kendrapara for which she filed School Leaving Certificate (S.L.C.)/Transfer Certificate (T.C.) of Class-V of Ahamadpur Primary School, Rajkanika, Kendrapara. 2.3 Objections were raised by the appellant before the A.D.M. regarding genuineness of the said S.L.C./T.C. of the respondent no.6 of Class-V of Ahamadpur Primary School. The A.D.M. directed the appropriate authority i.e. the District Education Officer (hereafter the D.E.O.), Kendrapara under whose jurisdiction the said school was functioning. The D.E.O., Kendrapara submitted detailed report to the A.D.M. in the proceeding along with the WA Nos.766 & 767 of 2023 Page 5 of 19 relevant documents that was taken on record. In the report, finding was given by the D.E.O., Kendrapara after proper enquiry that the S.L.C./T.C. produced by respondent no.6 is faked/forged. 2.4 Before the A.D.M. the clarification dated 22.05.2010 issued by the Director, Social Welfare, Government of Odisha regarding High School Certificate examination conducted by other States without Odia-Language as a subject, in connection with Anganwadi Worker selection was produced. The A.D.M. referred to the said clarification and relied on the aspect that ‘as the Anganwadi Worker has to deal with very small children, pregnant and lactating mothers, conduct pre-school education, it is mandatory that she knows Oriya. Hence knowledge of Oriya for Anganwadi Worker selection is mandatory’. The A.D.M. concluded that during selection of the Anganwadi Worker for Jari North Anganwadi Centre, the selection committee have not properly verified the documents produced by the respondent no.6 and had not followed the guidelines of the Women & Child Development Department regarding selection of the WA Nos.766 & 767 of 2023 Page 6 of 19 Anganwadi Worker. Thus, the A.D.M. set aside the selection, directed the cancellation of engagement of respondent no.6 and further directed the authority to take appropriate step for fresh selection of Anganwadi Worker of Jari North Anganwadi Centre as per provision and guidelines of the Women & Child Development Department, Government of Odisha. 3. In view of the setting aside of the entire selection process, the present appellant (in both the writ appeals) who claimed before the A.D.M. that she being the candidate who should have been selected in place of the respondent no.6 whose selection was set aside by the A.D.M. (in the appeal referred above), filed writ petition W.P. (C) No.16096 of 2022. By filing W.P.(C) No.13154 of 2022 the present respondent no.6 being the petitioner therein challenged setting aside of her selection as Anganwadi Worker. 4. Ms. Sujata Jena, learned counsel for the appellant and Mr. S.K. Ojha, learned counsel for the respondent no.6 were heard at length. WA Nos.766 & 767 of 2023 Page 7 of 19 5. Ms. Jena, learned counsel for the appellant submits that once the selection of the respondent no.6 was set aside without there being any finding by the A.D.M. that selection of the appellant is flawed in any manner, she should have been given appointment as Anganwadi Worker instead of setting aside the entire process of selection. Mr. Ojha, learned counsel for the respondent no.6 supports the order passed by the learned single Judge. 6. It is agreed at the Bar that in the selection process as has been found by the learned single Judge, the appellant Kumari Khara secured 66.83% of marks placed at serial no.2 and the respondent no.6 securing 72% of marks placed at serial no.1. The learned single Judge has held that the Court did not find any fault with the decision of the selection committee appointing respondent no.6 as Anganwadi Worker. The learned single Judge has relied upon the written submission of the C.D.P.O., Binjharpur before the A.D.M. that the candidate should have knowledge in Odia and the respondent no.6 can speak, write and read Odia. However, at paragraph-7 of the judgment the learned WA Nos.766 & 767 of 2023 Page 8 of 19 single Judge has relied on the communication dated 30.01.2023 from the C.D.P.O. addressed to the Advocate General, wherein she has stated thus (reproduced from the judgment): “Smt. Sunita Mallik secured highest mark as per the evaluation. The committee during interaction with the candidates on the date of verification was convicted that Smt. Sunita mallik could speak and understand Odia. She was also able to sign in Odia. Apart from this, the residential certificate of Smt. Mallik shows that she is residing in area since three years. In view of the above, the Committee was convinced that Smt. Mallik secured the highest mark.” (Emphasis Supplied) 7. The contention of the respondent no.6 as opposite party no.5 before the learned single Judge that the respondent no.6 had not produced the school leaving certificate that was found to be forged/fake by the D.E.O., Kendrapara and accordingly rejected by the A.D.M. in the appeal has been rejected by the learned single Judge holding the contention to be “a palpably unbelievable plea”. The said finding has not been challenged by the respondent no.6. WA Nos.766 & 767 of 2023 Page 9 of 19 8. The learned single Judge has however proceeded to hold that the conditions of the engagement as per guidelines issued by the Government in W & CD Department do not mandate that the candidate must possess any qualification in Odia. All that is required is their ability to read and speak Odia. The selection committee categorically observed that Smt. Sunita Mallik is capable of speaking, writing and reading Odia. It was further held by the learned single Judge that even ignoring the certificate supposedly produced by the respondent no.6 before the A.D.M., still she would be found eligible to be appointed. At paragraph-7 of the judgment, the learned single Judge has referred to the advertisement to be providing the candidate ‘must be able to write and read odia language’. 9. The merit list of the selection of the Anganwadi Workers by the selection committee containing the educational certificate of respondent no.6, i.e., certificate issued by the Central Board of Secondary Education in the name of the respondent no.6 having passed Delhi Senior WA Nos.766 & 767 of 2023 Page 10 of 19 School Certificate Examination, 2013, indicates she studying the following subjects: “1. Sanskrit Core 2. Hindi Elective 3. Political Science 4. Sociology 5. Physical Education 6. Home Science 7. Work Experience 8. Phy & Health Educa 9. General Studies” The selection committee has not given the details before the A.D.M. how it evaluated respondent no.6 to be able to read and write Odia. The learned single Judge did not delve into such aspect of the selection but has observed that the selection committee has observed the respondent no.6 is capable of speaking, writing and reading Odia. The A.D.M. had relied upon the guidelines/clarification dated 22.05.2010 issued by the Director, Social Welfare regarding High School Certificate Examination conducted by the other states without Odia subject. Concededly, the respondent no.6 produced certificate to have passed Delhi Senior School Certificate Examination with the subjects as indicated above and did not have Odia-Language as a subject. Conspicuously, the CDPO in her instruction by letter dated 30.01.2023 provided to the learned Advocate WA Nos.766 & 767 of 2023 Page 11 of 19
Decision
General which forms part of the record in the writ petition, i.e., W.P.(C) No.16096 of 2022, has stated “The Committee during interaction with the candidates on the date of verification was convinced that Smt. Sunita Mallik could speak and understand Odia. She was also able to sign in Odia.” 10. In our considered opinion, the selection committee cannot be given such wide discretion to determine in the process of evaluation, to such an extent of subjectivity that without any records/certificates of education/and or ability, the committee itself can decide the evaluation criteria as prescribed at sl. No.4 of the advertisement dated 19.07.2021 that a candidate should be able to read and write Odia. The records of selection that were provided along with the letter dated 30.01.2023 contain the certificates and testimonials furnished by respondent no.6. None of those certificates indicate that she can read and write Odia as per her education. 11. Learned counsel for the respondent no.6 fairly submitted that the respondent has not challenged the WA Nos.766 & 767 of 2023 Page 12 of 19 finding of the learned Single Judge rejecting her contention that she did not produce the S.L.C. that was found to be forged/fake. He only reiterated her plea though rejected by the learned Single Judge that she has no idea who obtained and produced the certificate and that in all probability her lawyer has produced the certificate. 12. The certified copy of orders of the proceeding before the A.D.M. in the AWW Misc. Appeal No.03 of 2021 is available in the writ petition marked as Annexure-4 series. By order dated 10.11.2021 the A.D.M. has recorded “… The learned Advocate for the respondent No.1 also filed School Leaving/Transfer Certificate of the respondent no.1 of Class- VI of Ahamadpur Primary School, Rajkanika, Kendrapara. Perused the submissions of both the parties along with School Leaving/Transfer Certificate of the respondent no.1. Ask the D.E.O., Kendrapara to instruct the Headmaster Ahamadpur Primary School, Rajkanika, Kendrapara whether the certificate is genuine or not and report compliance to this court on or before the date fixed. Copy of School WA Nos.766 & 767 of 2023 Page 13 of 19 Leaving/Transfer Certificate is enclosed herewith for your reference. …” In view of Section 106 of the Indian Evidence Act, 1872 (since repealed) when any fact especially is within knowledge of any person, the burden of proving that fact is upon him. The principle underlying the section is that the burden to establish those facts, which are within his personal knowledge is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference may be drawn against him : Tomaso Bruno v. State of U.P. : (2015) 7 SCC 178. 13. In any event the contention subsequently raised by the respondent no.6 that she did not produce the S.L.C. was never taken before A.D.M. The records of the proceeding before A.D.M. indicate that it was filed on behalf of respondent no.6 and was taken on record. It was forwarded to the concerned higher authority, District Education Officer to furnish a report. The report was furnished and was acted upon by the A.D.M. The learned Single Judge rejected the WA Nos.766 & 767 of 2023 Page 14 of 19 contention of the respondent no.6 that she did not produce it in the proceeding before A.D.M. Both the findings of the A.D.M. as well as the learned Single Judge remain unchallenged. Therefore, the contention of respondent no.6 that she did not produce the certificate has also to be rejected by us. Implication of Section 106 of the Indian Evidence Act is also against such stand of the respondent no.6. 14. The clarification issued by the Director, Social Welfare dated 25.05.2010 requires that the candidate mandatorily must know Odia. The advertisement required the candidate must be able to read and write Odia. 15. Learned Single Judge has held that on the basis of a letter purportedly written by the Headmaster of the concerned school, it cannot be conclusively held that the certificate in question is fake/forged. It is held by the learned single Judge that without conducting a proper enquiry into the school records the finding of A.D.M. has to be held to be incorrect. WA Nos.766 & 767 of 2023 Page 15 of 19 16. It is found from the records that the A.D.M. in the proceeding before him by order dated 10.11.2021 had asked the District Education Officer to conduct enquiry. The District Education Officer being the head of the office of the Education Department in the District had directed the Headmaster, Ahamadpur Primary School to verify. Thereafter, the verification report was furnished by the D.E.O. 17. To rely on the report of the School Headmaster regarding register maintained by the School containing issuance of S.L.C./T.C. it would be apt to refer to the judgment rendered by the Supreme Court in the case of Mahila Bajrangi (dead) through L.Rs and others v. Badribai and another; 2013 AIR SCW 129: (2003) 2SCC 464. In Mahila Bajrangi, it is held by the Supreme Court that “… Entries in School Admission Register and School Leaving Certificate describing deceased as father of defendant made long before dispute arose can be relied on….” WA Nos.766 & 767 of 2023 Page 16 of 19 18. Regarding admissibility of the entries in the school admission register though the officer who made the entry is not produced and examined as witness we rely on the principles laid down in Harpal Singh and another v. State of Himachal Pradesh : AIR 1981 SC 361: (1981) 1 SCC 560 is applied. In Harpal Singh (para-3 of SCC print) rejecting the contention that in the absence of examination of the officer concerned who recorded the entry, the register is inadmissible in evidence the Supreme Court held “… We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. …” 19. The discretion exercise by the selection committee to arrive at a conclusion that the respondent no.6 can read and write Odia without any supporting certificate or document thereto is excessive and arbitrary, therefore, cannot be approved. The reliance of the respondent no.6 on the S.L.C./T.C. has also to be rejected/cannot be WA Nos.766 & 767 of 2023 Page 17 of 19 countenanced as the document is found to be forged. Further, the respondent no.6 has to be held responsible for production of such certificate found to be forged/fake. 20. Accordingly, the writ appeals are allowed. The common judgment and order dated 24.02.2023 passed by the learned Single Judge in W.P.(C) No.13154 of 2022 and W.P.(C) No.16096 of 2022; rejecting the W.P.(C) No.16096 of 2022 and allowing the W.P.(C) No.13154 of 2022 is set aside. The writ petition W.P.(C) No.16096 of 2022 is allowed and W.P. (C) No.13154 of 2022 is dismissed. The order of the A.D.M. dated 13.04.2022 in AWW Misc. Appeal No.03 of 2021 setting aside the entire selection process is modified. 21. As a consequence the petitioner in aforesaid W.P.(C) No.16096 of 2022, the present appellant having secured the second position in the selection of AWW is held to be the successful candidate as the selection of the respondent no.6 as the first candidate has been set aside by the A.D.M.. The appellant, the candidate selected at Sl.no.2, being otherwise eligible, is declared to be successful candidate for the post of WA Nos.766 & 767 of 2023 Page 18 of 19 Anganwadi worker for Jari North Anganwadi Centre. The appellant shall be given appointment as AWW of Jari North AWC, village Jari in the district of Jajpur forthwith. Her appointment shall be deemed to be with effect from 27.08.2021 i.e. the date of issuance of appointment order by CDPO, Binjharpur. 22. Both the appeals are allowed and disposed of in terms of the above order. In the facts and circumstances of the case, there shall be no order as to costs. Dixit Krishna Shripad Judge Mruganka Sekhar Sahoo Judge Orissa High Court, Cuttack The 18th June, 2025/Dutta/Gs/Jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: ORISSA HIGH COURT Date: 25-Jun-2025 11:49:49 WA Nos.766 & 767 of 2023 Page 19 of 19