The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 7566 of 2011 (An Application under Articles 226 & 227 of the Constitution of India) --------------- AFR Kusuma Hikaka ...… Petitioner -Versus- Collector, Koraput & Ors. .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. J.K.Khuntia, For Opp. Party : Advocate Mr. A.R.Dash, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th March, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this court seeking following relief: “It is therefore, prayed that this Hon’ble Court may graciously be pleased to admit the writ application and issue Rule NISI calling upon the Page 1 of 15 the impugned opposite parties to show cause as to why order dated 10.12.2010 under Annnexure-7 shall not be quashed and if the Opp.Parties fail to show cause or show insufficient cause this Hon’ble Court may issue a writ of certiorari the impugned order dated 10.12.2010 passed by the Opp.Party No.2 under Annexure-7. And further be pleased to pass any other writ/writs, order/orders as this Hon’ble Court may deem fit and proper in this case”. in quashing The facts of the case, briefly stated are that an advertisement was published by the Chief District Project Officer, Laxmipur, Koraput on 30.01.2009 inviting applications from eligible candidates for engagement as Anganwadi workers of the different Anganwadi centres. The petitioner submitted her application for engagement as Anganwadi Worker of Singaram Anganwadi Centre. In the selection process 66 candidates in all were selected for different Anganwadi Centres with the petitioner being selected for Singaram Centre as per selection list published on 22.06.2009. The petitioner received an order of engagement issued by the Child Development Project Officer on 22.06.2009 pursuant to which she joined in the centre on Page 2 of 15 25.06.2009. While the petitioner was working as such, she received a notice issued by the Sub-Collector, Koraput (Opposite Party No.2) asking her to appear before him in an appeal preferred by one Kausalya Sahu (private Opposite Party No.4). It came to light that said appeal was filed pursuant to direction of this Court in W.P.(C). No. 3102 of 2009. 2. The petitioner duly appeared before the Sub-Collector, through her counsel and filed a detailed counter stating all the relevant facts. She took a specific stand that she, being a scheduled tribe candidate, was rightly preferred over other candidates but the Opposite Party No.4 was a General category candidate. It was further stated that Opposite Party No.4 was not an applicant pursuant to the advertisement nor had submitted any objection to the selection list within the stipulated time and therefore, she had no locus standi to challenge the engagement of the petitioner. 3. The Sub-Collector, vide order dated 10.12.2010, copy enclosed as Annexure-7 and which is impugned, took note of the facts of the case and held that the engagement of the petitioner was in violation of the Government guidelines as Page 3 of 15 also the instructions of D.S.W.O, Koraput in his letter dated 21.08.2009. As such, the Sub-Collector declared the engagement of the petitioner as null and void with further direction to the Child Development Project Officer, to issue engagement order in favour of the present Opposite Party No.4.
Legal Reasoning
4. Heard Mr. J.K.Khuntia, learned counsel for the petitioner and Mr. A.R.Dash, learned Additional Government Advocate for the State. Be it noted that notice of the writ application was duly served on Opposite Party No. 4, as evident from the service return along with the A.D. There was however, no appearance from her side. 5. Mr. J.K.Khuntia would argue that the reasoning adopted by the Sub-Collector to hold the engagement of the petitioner as null and void is entirely unsustainable in the eye of law inasmuch as the petitioner was engaged prior to issuance of the Government guidelines dated 21.08.2009. Mr. Khuntia would further argue that there can be no retrospective application of the guidelines issued by the Government subsequent to the engagement of the petitioner. He further argues, the private Opposite Party No.4 could not have been Page 4 of 15 permitted to question the engagement of the petitioner as she was not an applicant in pursuance of the advertisement. 6. Mr. Dash, learned Additional Government Advocate, submits, with reference to the counter affidavit filed on behalf of Opposite Party Nos. 2 and 3, that the Government guidelines dated 21.08.2009 mandate that a Mini Anganwadi Worker is entitled to be appointed as Anganwadi Worker of the same centre consequent upon upgradation of the centre. In the instant case, even though the private Opposite Party No. 4 was not an applicant pursuant to the advertisement yet she had long experience of 8 years as Mini Anganwadi Worker in the same centre which was taken into account by the Child Development Project Officer while issuing order of engagement in her favour, on 20.04.2011 in obedience to the order passed by the Sub-Collector. 7. The factual aspects of this case are not disputed inasmuch as the petitioner had applied pursuant to an advertisement dated 30.01.2019 for engagement as Anganwadi Worker in Singaram Anganwadi Centre. She was also a selected candidate. It is borne out from the counter filed by the petitioner before the Sub-Collector (copy enclosed Page 5 of 15 as Annexure-7) that there were five applicants for Singaram Centre out of whom the petitioner was selected by the selection committee being found to be most suitable. As such, she was issued with an order of engagement by the Child Development Project Officer on 22.06.2009 pursuant to which she joined on 25.06.2009. 8. The Government, vide circular dated 02.05.2007, issued a set of revised guidelines for selection of Anganwadi Workers. It is not in dispute that the petitioner fulfilled all the criteria for engagement as laid in the aforesaid guidelines. It appears that the Government partially modified the guidelines, dated 02.05.2007, in its letter dated 21.08.2009, wherein para 5 of said guidelines was altered as follows: “Para-5(a) A Balwadi worker can be engaged as Anganwadi worker provided that she had worked as Balwadi workers in that particular village. A Balwadi worker not having matriculation qualification can be engaged as Aganwadi worker, based on an undertaking that she will pass the matriculation examination within 03 years of her engagement.” “Para-5 (b) Mini Anganwadi workers having requisite one qualification shall be appointed as Anganwadi worker that Centre. Mini Anganwadi having Matriculation workers qualification can be engaged as Anganwadi experience with without years for Page 6 of 15 worker based on an undertaking that they will do so within a period of three years.” By a further letter, dated 25.08.2009, the DSWO, Koraput directed all the Child Development Project Officers to fill up the post of AWW of mini AWC as per the revised/modified guidelines. 9. As already stated, by such time, the petitioner had already been selected and engaged as Anganwadi Worker. There is nothing in the circular dated 21.08.2009 to show that the modifications introduced were to have retrospective effect. It is well settled that unless specifically provided, a statutory rule or notification would have prospective operation only. In the instant case, the guidelines, dated 02.05.2007, and the modified guidelines dated 21.08.2009 are undoubtedly executive instructions but then the same principle as is applicable to legislative enactments or statutory notifications can be applied. In the case of Commissioner of Income Tax (Central)-1, New Delhi vs. Vatika Township Private Limited1, the following observations are noteworthy: “General retrospectivity. principles concerning 1 (2015) 1 SCC 1 Page 7 of 15 technique 27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a is known as legislation. Former legislative drafting and latter one is to be found in the various principles of “interpretation of statutes”. Vis-(cid:224)-vis ordinary prose, a legislation differs in its provenance, layout and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof. 28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v.Eyre, a retrospective the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future is contrary legislation to Page 8 of 15 acts ought not to change the character of past transactions carried on upon the faith of the then existing law”. 10. Further the law with respect to retrospective or prospective application of any administrative order or executive orders has been enumerated in the case of Ex- major N.C.Singhal v. Director general, Armed forces Medical Service & anr2 : 6. The appellant submitted that his conditions of service were governed by the Army Instruction I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service must count for pay, and that Army Instruction 176 which came into force with retrospective effect from October 26, 1962, in the case of A.M.C. Reserve Officers called to colour service during emergency in the matter of ante-date, for promotion, T.A., leave and pay, cannot affect his condition of service which were governed in this behalf by para 13 of Army Instruction I/S of 1954. 7. We think that the appellant’s conditions of service were governed by para 13 of Army Instruction I/S of 1954 and his previous full pay commissioned service should be taken in the matter of ‘ante-date’ for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the the appellant by a subsequent prejudice of administrative given retrospective effect from October 26, 1962. instruction which was In the case of Govind Prasad v. R.G.Prasad & Ors3,the Supreme Court held as follows: