Misc. Case No. 110 of 2010 · Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.877 of 2022 In the matter of an Appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III of the Rules of the High Court of Odisha, 1948 Appellant --------------- Pravasini Mohanty aged about 45 years Wife of Sri Nrusingha Patra Daughter of Late Madhab Mohanty Resident of village: Bishimatri P.O.: Bhodar, P.S.: Nimapada District: Puri … -VERSUS- 1. State of Odisha represented through Secretary Women & Child Welfare Department Government of Odisha Bhubaneswar, District: Khordha 2. Collector-cum-District Magistrate At/P.O/P.S./District: Puri 3. District Social Welfare Officer At/P.O./P.S./District: Puri 4. Child Development Project Officer At/P.O./P.S.: Nimapada, District: Puri W.A. No.877 of 2022 Page 1 of 65 5. Sukanti Nayak aged about 49 years Wife of Bijaya Kumar Nayak At: Bishimatri, P.O.: Bhodar P.S.: Nimapada, District: Puri … Respondents Counsel appeared for the parties in the writ appeal: For the Appellant : Mr. Santosh Kumar Pattanaik, Senior Advocate, along with M/s. Prabuddha Kumar Pattanaik, Sakti Prasad Das, Advocates For the Respondents : Mr. Harmohan Dhal, Additional Government Advocate M/s. Pradosh Kumar Das and Shibani Sankar Das Advocates for Respondent No.5 P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN AND Date of Hearing : 20.11.2023 :: Date of Judgment : 30.11.2023 JUD GM E N T MURAHARI SRI RAMAN, J.— THE CHALLENGE: This intra-Court appeal has been preferred under the provisions of Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and W.A. No.877 of 2022 Page 2 of 65 Rule 6 of Chapter-III of the Rules of the High Court of Odisha, 1948, by the appellant, participant for engagement of Anganwadi Helper in the Bishimatri Anganwadi Centre in the District of Puri, laying challenge against the Judgment dated 05.05.2022 delivered by the learned Single Judge, exercising power under Article 226/227 of the Constitution of India, in W.P.(C) No.7322 of 2020 under Annexure-10, wherein Order dated 20.01.2022 passed by the Collector-cum- District Magistrate, Puri in AWW Misc. Case No.110 of 2010 was subject-matter, with the following prayer(s): “In the circumstances it is humbly prayed that this writ appeal may be admitted and on hearing parties through counsel, this Hon’ble Court may be pleased to set aside the Judgment dated 05.05.2022 under Annexure-10 passed by the Hon’ble Single Judge of this Hon’ble Court in W.P.(C) No.7322 of 2020 for which act of kindness, the appellant shall ever pray.” FACT OF THE CASE: 2. As is revealed from the pleadings available on record, for selection of Helpers for Anganwadi Centres (for short, “AWH”), the Government of Odisha in Women & Child Development Department issued Guidelines vide Instruction bearing No.9994/WCD, dated 24.11.1997, which inter alia provided that the selection of AWH is required to be made on consultation with women group of the village and such process of selection stipulated W.A. No.877 of 2022 Page 3 of 65 preference to be given to orphan, widow, separated, divorced or deserted woman. 2.1. The Appellant-Pravasini Mohanty, claiming to be a separated woman residing in the village of Bishimatri, applied for being engaged as AWH along with other six candidates and participated in the selection process conducted in the Meeting of Mahila Sabha held on 30.01.2010 at Bishimatri School premises relating to Bishimatri Anganwadi Centre. 2.2. As per the Guidelines issued by the Government of Odisha, the women group/Mahila Sabha of the village Bishimatri held a meeting on 30.01.2010 in the presence of Supervisor(s) and decided to engage the appellant, divorced/deserted/separated woman residing in the village Bishimatri, as AWH, on the suggestion of women present there including six other contenders for AHW. But a group of people created disturbance in the said meeting for which the Selection Committee decided to conduct an interview/viva voce test among the candidates for AWH at Project Headquarter. 2.3. It is stated, vide Annexure-3 to the writ appeal, that a representation dated 23.04.2010, signed by Pravasini Mohanty-appellant, Labanya Manjari Rout and Tikina Rout, was made to the Child Development Project Officer, Nimapada, Puri, seeking re-engagement of Pravasini Mohanty. So the Child Development Project W.A. No.877 of 2022 Page 4 of 65 Officer-respondent No.4 issued call letters to all candidates, who applied for the post of AWH, to face viva voce test on 23.04.2010. In response thereto, only three candidates namely, Pravasini Mohanty-appellant, Sukanti Nayak-respondent No.5 and Bharati Panda attended before the Selection Committee comprising of the Child Development Project Officer, Nimapada, the Supervisor and the A.N.M. to face the interview. In the said interview, Sukanti Nayak-respondent No.5 secured 19 marks out of total marks of 30, whereas Pravasini Mohanty-appellant secured 18 marks while Bharati Panda secured 17 marks. Accordingly, the respondent No.5, having secured highest marks, was selected for engagement as AWH in Bishimarti Anganwadi Centre. 2.4. The Child Development Project Officer-respondent No.4 engaged respondent No.5-Sukanti Nayak as AWH vide Office Order bearing No.529, dated 17.06.2010 on the basis of marks awarded in the interview held on 23.04.2010. The said engagement was based on interview, but not on preference basis as provided in the Guidelines dated 24.11.1997 issued by the Government of Odisha in Women and Child Development Department. 2.5. Aggrieved by such selection, the appellant-Pravasini Mohanty had approached this Court by way of filing writ petition bearing W.P.(C) No.13360 of 2010 assailing the W.A. No.877 of 2022 Page 5 of 65 engagement of respondent No.5-Sukanti Nayak, vide Order dated 17.06.2010, issued by the Child Development Project Officer, Nimapada, wherein this Court, while disposing of said writ petition passed the following Order on 19.08.2010: “Heard learned counsel for the Petitioner and learned counsel for the State.
Legal Reasoning
In this writ petition the petitioner challenged the action of the opposite parties in not selecting her as Anganwadi Helper in Bishimatri Anganwadi Centre under the District of Puri, even though vide resolution dated 30.01.2010 (Annexure-2) a decision has unanimously been taken in selecting the petitioner as Anganwadi Helper. Learned counsel appearing on behalf of the Petitioner submits that the Petitioner has obtained copy of the Annexure-4 & 5 through R.T.I. from which it appears that Opposite Party No.5 Sukanti Nayak has been selected by the C.D.P.O. without any rhyme and reason. Annexure-4 & 5 don’t contain any reason as to why opposite party no.5 was selected as Anganwadi centre and her case was not considered. It is further submitted that in Annexure-5 a sentence has been added to the resolution dated 30.01.2010. This Court further finds that even though guidelines dated 24.11.1997 prescribes that an Anganwadi Helper should have been selected by a committee consisting of three persons (i) C.D.P.O. of the Project (Chairperson) (ii) Supervisor in-charge of the area (member), and (iii) A.N.M. in-charge of the area (member), the copy of the resolution reveals that the C.D.P.O. of the Project was not present on the date of resolution was passed. W.A. No.877 of 2022 Page 6 of 65 In view of the above irregularities, this writ petition is disposed of giving liberty to the petitioner to file a representation before the Collector, Puri highlighting all her grievances. If such a representation is filed, the Collector, Puri is directed to cause an inquiry into the matter and take a decision in accordance with law within two months from the date of filing of the representation along with certified copy of this order after giving opportunity of hearing to the petitioner as well as the other affected parties. With the above observation, the writ petition is disposed of. Certified copy of this order be granted on proper application.” 2.6. In compliance of Order dated 19.08.2010 passed by this Court in W.P.(C) No.13360 of 2010, the Collector, Puri after hearing concerned parties, observed vide Order dated 08.05.2015 that in the Meeting of Mahila Sabha held on 30.01.2010 it was unanimously decided to select Pravasini Mohanty, who happens to be divorcee, as AWH. The Collector held that there was no necessity to hold viva voce of the candidates later on, on the plea of resistance of some people as the same is beyond the scope of norms and guidelines. Accordingly he ordered for disengagement of Sukanti Nayak and directed the Child Development Project Officer, Nimapada to engage Pravasini Nayak in her place. 2.7. After disengagement, respondent No.5-Sukanti Nayak approached this Court by way of filing W.P.(C) No.23721 W.A. No.877 of 2022 Page 7 of 65 of 2015, challenging the Order dated 08.05.2015 passed
Decision
by the Collector, Puri, which came to be disposed of vide Order dated 30.01.2018 with the following observation: the rival contentions of “Hearing the parties and particularly taking into account the consideration that the proceeding initiated pursuant to the direction of this Court in disposal of the writ petition bearing W.P.(C) No.13360 of 2010, no opportunity in considering the matter and resultantly taking away the service of the petitioner thereby, on perusal of the records and for the submissions made by Sri Behera, learned State Counsel, this Court finds there is in fact no involvement of the petitioner in the impugned proceeding. Under the circumstances, this Court interfering in the impugned order dated 08.05.2015 vide Annexure-1 sets aside the same and remits the matter back again to the Collector, Puri-opposite party no.2 for reconsideration of the issue involving AWW Misc. Case No.110 of 2010 but however involving the petitioner and the parties likely to be affected, if necessary, by issuing notice to each of them. Decision as appropriate be taken within a period of three months from the date of the communication of this order by the petitioner. Engagement of any person already in the meantime to the post of Anganwadi Helper in Bishimatri AWC of Bhodara Gram Panchayat in district of Puri shall be subject to the ultimate outcome on the decision of the Collector. Issue urgent certified copy of this order on proper application.” 2.8. The Collector, Puri in compliance of aforesaid direction vide Order dated 30.01.2018 in W.P.(C) No.23721 of W.A. No.877 of 2022 Page 8 of 65 2015 of this Court, conducted re-hearing of AWW Misc. Case No. 110 of 2010 affording opportunity of hearing to all concerned and came to the following conclusion vide Order dated 20.01.2020: “*** From the above it is very clear that the resolution dated 30.01.2010 made by the Mahila Sabha mentioning the fact of objection raised by a group of persons is afterthought. Under the circumstances that resolution cannot be taken into consideration. I am of the view that the petitioner Pravasini Mohanty deserves to be engaged as Anganwadi Helper in Bishimitri Anganwadi Centre. Therefore, she is to be continued as Anganwadi Helper in that Centre. As such the prayer of Sukanti Nayak is rejected being devoid of any merit. ***” 2.9. Said Order dated 20.01.2020 of Collector, Puri was carried to this Court in W.P.(C) No.7322 of 2020, wherein the Child Development Project Officer of Nimapada, Integrated Child Development Services filed counter affidavit asserting that due to disturbance created by some members present in the Mahila Sabha on 30.01.2010, interview/viva voce was conducted on 23.04.2010 at the Project Headquarters after due notice to all the participants, where Sukanti Nayak was selected and accordingly, issued engagement order. Said selection being quashed by this Court by Order dated 30.01.2018 in W.P.(C) No.23721 of 2015, the Collector, Puri after fresh hearing and consideration of material on record took a decision by directing to engage Pravasini Mohanty. W.A. No.877 of 2022 Page 9 of 65 2.10. Learned Single Judge of this Court, upon hearing parties present in court on 05.05.2022, vide Judgment dated 05.05.2022 delivered in W.P.(C) No.7322 of 2020, under Annexure-10, held that contradictory statement has been made in paragraph 4 of the counter affidavit filed by the Child Development Project Officer of Nimapada Integrated Child Development Services Project, which is stated to be filed being duly authorized by the Collector, Puri also. It is relevant to refer to paragraph 16 of the Judgment of the learned Single Judge which is reproduced hereunder: “16. The stand in taken the counter affidavit in paragraph 4 which is filed also on behalf of the Collector, whose order is impugned, on the face of it, is contrary to the stand taken in the impugned order. There is no material on the basis of which Opposite Party No.2 could come to the conclusion that the factum of disturbance is an afterthought thereby directing for appointment of opposite party No.5.” 2.11. Observing thus, the learned Single Judge was pleased to set aside the Order dated 20.01.2022 of the Collector, Puri and assigned the following reasons: “17. It is clear from the impugned order that an objective assessment was made to test the qualification inter se between the petitioner and two others who participated in the selection procedure. 18. On such objective assessment based on the guidelines in which all the members of the Selection W.A. No.877 of 2022 Page 10 of 65 Committee participated, admittedly the petitioner secured the highest mark. In the face of such selection it was not open to the Collector to come to a conclusion in a highly arbitrary manner without any rhyme and reason that the selection of opposite party No.5 is to take precedence over that of the petitioner. 19. Considering the submission of learned counsel and taking into account the recitals in the counter affidavit, this Court is of the considered opinion that the impugned order is outcome of arbitrary, exercise of power and is tainted with mala fide due to non- application of mind and hence, the same is set aside.” 2.12. Alleging that “the Child Development Project Officer, Nimapada had manipulated the Resolution with a view to go for an interview and appoint” Sukanti Nayak, “with ulterior motive”, Pravasini Mohanty filed a Review Petition bearing RVWPET No.140 of 2022, seeking review of Judgment dated 05.05.2022 passed by the learned Single Judge in W.P.(C) No.7322 of 2020. The learned Single Judge noting that “Annexure-2 (RVWPET) the Grama Sabha Resolution dated 30.01.2010 on which the review-petitioner rests her case was admittedly not part of the pleadings of the W.P.(C), the Judgment of which is subject-matter of this RVWPET”, and relying on the dicta of the Hon’ble Supreme Court of India rendered in Northern India Caterers Vrs. Lt. Governor, Delhi, AIR 1980 SC 674, to the effect that “if the views adopted by the Court in the original judgment is a possible view having W.A. No.877 of 2022 Page 11 of 65 regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record”, came to hold as follows: “18. On a conspectus of materials on record and examining the stand taken by the review petitioner, on the touchstone of law relating to exercise of review jurisdiction, this Court does not find any merit in the review application and the same accordingly stands rejected.” 2.13. Thus, after rejection of review petition, this intra-Court Appeal has been preferred at the instance of Pravasini Mohanty inter alia on the ground that the learned Single Judge having laid much stress on the version of the respondent Nos.2 to 4 (arrayed as opposite party Nos.2 to 4 in the writ petition) in the counter affidavit committed not only error ignoring clause 1(v) of Guidelines for selection of Helpers for Anganwadi Centres vide Letter No.9994/WCD, dated 24.11.1997, but also gone beyond the record by disturbing the findings of the Collector, Puri. Further ground has been laid to the effect that the apparent fact of manipulation of Resolution dated 30.01.2010 of the Mahila Sabha should have been given due weight. Therefore, such aspect being error apparent on the face the record, the learned Single Judge could have considered his Judgment dated 05.05.2022 liable for review. W.A. No.877 of 2022 Page 12 of 65 3. Notice being issued to the respondents vide Order dated 08.07.2022, and stay of Judgment of the learned Single Judge being passed, the opposite party No.5-Sukanti Nayak appeared through Sri Pradosh Kumar Das, Advocate and furnished reply to the contents of the appeal inter alia stating thus: “iv) That after service of due notice to the villagers to attend the selection at project headquarter on 23.04.2010, in response 3 candidates, namely Sukanti Nayak, Pravasini Mohanty and Bharati Panda attended the selection at Project Headquarter where all the members of the Selection Committee, i.e., CDPO, Supervisor and A.N.M. were present. As per decisions taken by the selection committee, viva voce test was conducted and the selection was to be made as per highest point holders. After individual marking a comparative statement was prepared by the CDPO. In that test Sukanti Nayak being secured the highest mark was selected as Anganwadi Helper. (v) That it is alleged in the W.A. that as per the resolution dated 30.08.2010 which has been supplied by the C.D.P.O., Nimapara vide her letter No.438, dated 17.05.2010 under R.T.I. Act shows that the selection has been made by the ‘Mahila Sabha’ on 30.08.2010 without any disturbances which is a forged one. The total matter will be cleared of page 21 of Annexure-2 of the W.A. may kindly be verified minutely, wherein the last line of the report has been erased. (vi) That in spite of clear view for the selection of the Anganwadi worker by the Committee to be held at W.A. No.877 of 2022 Page 13 of 65 the headquarter wherein both the appellant and the respondent have participated, it cannot be inferred that the selection is bad in the eye of law. (vii) That the allegations made by the appellant in the W.A. that the report of the CDPO is forged but in minute study of the report, it is confirmed that the forgery is made by the appellant by erasing the last line of the report.” HEARING OF WRIT APPEAL BEFORE THIS COURT: 4. On the pleadings being exchanged among counsel for respective parties, on their consent, the matter is taken up for final hearing at the stage of admission. This Court heard Sri Santosh Kumar Pattanaik, learned Senior Advocate along with Sri Prabuddha Kumar Pattanaik, learned Advocate for the appellant and Sri Harmohan Dhal, learned Additional Government Advocate appearing on behalf of the opposite party Nos. 1 to 4 and Sri Pradosh Kumar Das, learned Advocate for the opposite party No.5. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 5. The first limb of submission advanced by Sri Santosh Kumar Pattanaik, learned Senior Advocate is that the Judgment dated 05.05.2022 of the learned Single Judge is subject to reproach inasmuch as the latent infirmity in the impugned Judgment is non-consideration of Guidelines issued by the Government of Odisha in W.A. No.877 of 2022 Page 14 of 65 Women & Child Development Department for selection of Helper for Anganwadi Centres. 5.1. Annexure-1 to the writ appeal, which is copy of Guidelines, dated 24.11.1997, reads as follows: “Government of Odisha Women & Child Development Department No. 9994/WCD dated 24.11.1997 From To Shri J. Digal, IAS Director, Social Welfare All C.D.P.Os/Diastrict Social Welfare officers/ Sub-Collectors/Collectors Sub.: Guidelines for selection of Helpers for Anganwadi Centres. Sir, In supersession of all earlier instructions on the above subject I am directed to covey the following Guidelines for selection of Helpers for Anganwadi Centres. These Guidelines should be adhered to while making the selection. 1. Eligibility.— To be eligible for selection as Helper for an Anganwadi Centre the following eligibility criteria must be fulfilled: i) She must be a lady of the locality and acceptable to the Anganwadi Worker. W.A. No.877 of 2022 Page 15 of 65 ii) She should not be of less than 18 years of age. iii) She can continue in the job till she discharges her duty efficiently. iv) The C.D.P.O. is competent to appoint and discharge the Helper. v) Preference should be given to an Orphan, Widow, Separated, Divorced or Deserted woman. 2. Procedure for Selection.— A Helper will be selected by a Committee consisting of the following persons: (1) C.D.P.O. of the Project … Chairperson (2) Supervisor in-charge of the area (3) A.N.M. in-charge of the area … … Member Member The above Committee should select the Helper in consultation with the women groups of the village. In case, for any reasons, to be recorded in writing, it is not possible to make the selection in a particular village the selection may be made in the Project H.Qrs. by the above mentioned Committee. However, the candidate selected should fulfil all the eligibility criteria as mentioned at para-1 above. Though the Odisha Reservation of Vacancy Rules (ORV) is not applicable in this selection, in the villages predominantly occupied by the S.C., S.T. and O.B.C. population; the Helper selected may be from any of these communities who is in majority." W.A. No.877 of 2022 Page 16 of 65 Yours faithfully, Sd/- Director, Social Welfare” 5.2. Taking this Court to Clause 1(v) of the Guidelines supra Sri Santosh Kumar Pattanaik, learned Senior Advocate laid emphasis that Pravasini Mohanty, a separated woman residing in the village, should have been given preference in selection for AWH, even though Sukanti Nayak secured highest marks in the interview conducted by the Selection Committee comprising the Child Development Project Officer, the Supervisor and the A.N.M. at Headquarters on account of alleged disturbance created by afew at the Mahila Sabha Meeting held on 30.01.2010, since the Guidelines is silent about such interview, rather speaks of preference to Orphan, Widow, Separated, Divorced or Deserted woman, the appellant was the deserving candidate among the seven participants. Amplifying his argument further, he vehemently contended that the Collector, Puri, while reconsidering the matter on the direction of this Court vide Order dated 30.01.2018 in W.P.(C) No.23721 of 2015, which was filed at the instance of Sukanti Nayak, was justified in observing that the decision to conduct interview on 23.04.2010 at Headquarter upon protest of some persons present at the Mahila Sabha Meeting concerning selection of the present appellant-Pravasini Mohanty, as afterthought. W.A. No.877 of 2022 Page 17 of 65 So essentially learned Senior Counsel insisted for enforcement of/giving effect to the selection of the appellant in the Mahila Sabha Meeting held on 30.01.2010. 5.3. It is urged that miscarriage of justice is caused to the appellant by the decision of the learned Single Judge in refusing to review the Judgment dated 05.05.2022 and entertain the plea of manipulation of Resolution of the Mahila Sabha Meeting held on 30.01.2010. It is pointed out that comparing the documents enclosed at Annexure-2 and Annexure-4 to the writ appeal establishes that the sentences “Later some persons made disturbance. So, it was decided that the selection will be made after conducting interview in the Office” have been added at the end of the Resolution dated 30.01.2010 to the originally written portion. Therefore, Sri Santosh Kumar Pattanaik, learned Senior Advocate pressed into service Ground No. (iv) of the Writ Appeal to persuade that “the order passed in this writ application is based on error apparent in the face of the record and this was a fit case for review of the Judgment passed on 05.05.2022”. 6. While Sri Harmohan Dhal, learned Additional Government Advocate while supporting the reasons assigned in the Judgment dated 05.05.2022, stated that review petition bearing RVWPET No.140 of 2022 has W.A. No.877 of 2022 Page 18 of 65 rightly been “rejected” by the learned Single Judge vide Judgment dated 23.06.2022. He would submit that curtain is to be drawn to the protracted litigation. As the opposite party Nos.1 to 4, having not filed reply in the writ appeal, accepted the Judgments of the learned Single Judge without questioning their legality, and he maintained “inscrutable face of the sphinx”. 7. Sri Pradosh Kumar Das, learned Advocate for the respondent No.5-Sukanti Nayak, reiterating factual position, as has already been discussed in the foregoing paragraphs, made valiant attempt to support the selection of Sukanti Nayak-respondent No.5. He went on to submit that the appellant has furnished manipulated document by erasing “Later some persons made disturbance. So, it was decided that the selection will be made after conducting interview in the Office” which is very much apparent having glance at the photocopies of the documents at Annexure-2 and Annexure-4 of the writ appeal. The learned Single Judge having noted that the review petitioner-Pravasini Mohanty in RVWPET No.140 of 2022, whose engagement was under challenge in the W.P.(C) No.7322 of 2020 filed at the behest of the respondent No.5-Sukanti Nayak, did not choose to participate in the hearing of writ petition. 7.1. Sri Pradosh Kumar Das, learned Advocate stemming on the Guidelines dated 24.11.1997 (Annexure-1 to the writ W.A. No.877 of 2022 Page 19 of 65 appeal) has taken the stand that “preference” as contemplated in Clause 1(v) thereof does not mean meritorious candidate would be sacrificed at the altar of “preference” and such candidate, who secured less marks in the viva voce test conducted by the duly constituted Selection Committee, would be preferred. When it is not disputed that the appellant-Pravasini Mohanty, having stated to have filed representation dated 23.04.2010 (Annexure-3 of the writ appeal), along with the respondent No.5-Sukanti Nayak and one Bharati Panda on 23.04.2010 participated in the viva voce/interview at the Project Headquarters, upon due notice to all participants in consonance with the aforesaid Guidelines dated 24.11.1997 specifying that “In case, it is not possible to make the selection in a particular village, the selection may be made in the Project Headquarters” by the Committee comprising of the Child Development Project Officer, Supervisor and A.N.M., it is unwholesome on the part of the appellant at this stage after delivery of Judgment by the learned Single Judge on 05.05.2022, to contend that the Resolution dated 30.01.2010 is tampered, which fact would have no impact on the selection of AWH on merit assessment. Therefore, Sri Pradosh Kumar Das, learned Advocate prayed for dismissal of writ appeal as the respondent No.5, being selected to be the deserving candidate for engagement as AWH, having secured W.A. No.877 of 2022 Page 20 of 65 highest marks in the interview conducted on 23.04.2010 by the duly constituted Selection Committee. The appellant, having participated on both the occasions, i.e., Mahila Sabha Meeting held on 30.01.2010 and interview held on 23.04.2010, should have accepted the decision rendered in the writ petition filed at the behest of Sukanti Nayak. 7.2. Though the respondent No.5 entered appearance through Sri Bhaskar Samantaray, Advocate, did not prefer to file counter affidavit, yet filed review petition through a different set of lawyers and insisted for considering fresh material which never formed part of the writ proceeding. The learned Single Judge has rightly rejected the RVWPET No.140 of 2022 by a Judgment dated 23.06.2022, as there was no error apparent on the face of the record. 7.3. It is further stated by the counsel that there being no prayer to quash/set aside the Judgment in the review petition in the present writ appeal, fresh plea by introducing new material for the first time before this Division Bench by way of writ appeal is wholly unwarranted and liable to be discarded in limine. DISCUSSIONS AND ANALYSIS: 8. Undisputed facts as unfurled in the pleadings and Orders passed by this Court as also the Collector, Puri, W.A. No.877 of 2022 Page 21 of 65 remains that due to resentment on the selection of Pravasini Mohanty, present appellant, as AWH among seven participants in the Mahila Sabha Meeting held on 30.01.2010, decision was taken to conduct interview at Project Office as permissible under the Guidelines dated 24.11.1997, according to which notices being communicated, apart from Pravasini Mohanty, two others namely Sukanti Nayak-respondent No.5 and Bharati Panda faced interview. In the interview Sukanti Nayak, having secured highest marks, was selected to be engaged as AWH, instead of considering Pravasini Mohanty, “separated woman”, as “preference” in terms of Clause 1(v) of the said Guidelines. 8.1. Said selection of Sukanti Nayak as challenged in AWW Misc. Case No.110 of 2010 by Pravasini Mohanty, an Order was passed by the Collector, Puri, on 08.05.2018, which being questioned before this Court in W.P.(C) No.23721 of 2015 [Sukanti Nayak Vrs. State of Odisha], said order was set aside and remanded for reconsideration. To comply direction contained in Order dated 30.01.2018 passed by this Court therein, the Collector, Puri took up the matter for fresh hearing after notice to all concerned and passed Order dated 20.01.2020 rejecting the claim of the respondent No.5, which was assailed in W.P.(C) No.7322 of 2020 [Sukanti Nayak Vrs. State of Odisha]. W.A. No.877 of 2022 Page 22 of 65 8.2. Perusal of record of said writ petition reveals that the notice issued to the appellant (arrayed as opposite party No.5-Pravasini Mohanty, Bishimatri of Bhodar Gram Panchayat under Nimapada Block in the said writ petition) vide Order dated 28.02.2020 came back unserved with postal remark “Addressee refused; hence returned to sender”. However, later she entered appearance on 19.10.2020 by executing Vakalatnama engaging Sri Bhaskar Samantaray, Advocate. From the said record it appears that though the opposite party Nos.2 to 4 filed counter affidavit through Child Development Project Officer, Nimapada Integrated Child Development Service Project, the present appellant- Pravasini Mohanty preferred to keep silence and not to participate in the hearing of the writ petition. 8.3. Upon hearing the counsel for the respondent No.5 (petitioner in the writ petition) and Additional Standing Counsel appearing for the respondent Nos.1 to 4 (the opposite party Nos.1 to 4 in the writ petition) the learned Single Judge delivered the Judgment on the date of hearing, i.e., 05.05.2022, negativing the observation of the Collector, Puri vide Order dated 20.01.2020 in AWW Misc. Case No.110 of 2010 held that “There is no material on the basis of which opposite party No.2 could come to the conclusion that the factum of disturbance is an afterthought thereby directing for appointment of W.A. No.877 of 2022 Page 23 of 65 opposite party No.5” and accordingly, concluded as follows: “*** In the face of such objective assessment based on the Guidelines in which all the members of the Selection Committee participated, admittedly the petitioner (Sukanti Nayak) secured the highest mark. In the face of such selection it was not open to the Collector to come to a conclusion in a highly arbitrary manner without any rhyme and reason that the selection of opposite party No.5 (Pravasini Mohanty) is to take precedence over that of the petitioner. ***” 8.4. Against the direction to engage the respondent No.5- Sukanti Nayak by virtue of the Judgment dated 05.05.2022 rendered in the aforesaid writ petition, the appellant-Pravasini Mohanty by engaging different set of lawyers questioned the veracity of the observations made in said Judgment by way of filing review petition, being RVWPET No.140 of 2022, which came to be dismissed vide Judgment dated 23.06.2022 on the ground that there was no “error apparent on the face of record”, which expression has been interpreted in Tungabhadra Industries Ltd. Vrs. Government of Andhra radishh, AIR 1964 SC 1372; Northern India Caterers Vrs. Lt. Governor, Delhi, AIR 1980 SC 674; Rajendra Kumar Vrs. Rambhai, AIR 2003 SC 2095; Asharfi Devi Vrs. State of Uttar Pradesh, (2019) 5 SCC 86. Following is the observation made in the said Judgment rendered on consideration of review petition: W.A. No.877 of 2022 Page 24 of 65 “6. Brief background short of unnecessary details is ready for convenience of quoted hereunder reference: *** ii. In the said Writ Petition counter affidavit was filed on behalf of Opposite Party Nos.2,3 and 4 (Collector-cum-District Magistrate, Puri, District Social Welfare Officer and Child Development Project Officer respectively). Petitioner filed rejoinder reiterating her stand in this W.P.(C). iii. The present petitioner whose appointment was under challenge in the said writ petition was cited as Opposite Party No.5. review iv. Opposite Party No.5 did not choose to file any the counter affidavit nor participated hearing. in *** 7(A). It is apposite to notice that Annexure-2 (RVWPET) the Grama Sabha Resolution dated 30.01.2010 on which the Review Petitioner rests her case was admittedly not part of the pleadings of the W.P.(C), the judgment of which is subject matter of this RVWPET. 8. On a bare perusal of the counter affidavit, it can be seen that the Opposite Party Nos.1 to 4 had supported the impugned order of cancellation of engagement of the Writ Petitioner as Anganwadi Helper. 9. Paragraph-9 of the counter affidavit is extracted hereunder for convenience of ready reference; W.A. No.877 of 2022 Page 25 of 65 *** ‘9. That since the Collector, Puri, has passed a speaking order detailing the entire aspects, no defect can be traced out in the impugned order and as such the prayer sought for in the writ petition being devoid of any merit is thus liable to be dismissed.’ ***” 8.5. Relevant factor to be noted here that having not disputed aforesaid factual aspect that the appellant did not choose to take part in the hearing of the writ petition, thereby did not file any material during the course of hearing of the writ petition, the learned Single Judge basing on material on record discussed elaborately the merit of the matter and delivered the Judgment on the very date of hearing, i.e., 05.05.2022. Though the appellant-Pravasini Mohanty in the instant writ appeal (paragraph 19) made the position clear that “the advocate for the appellant was not present in the Court at the time of hearing”, yet attacked by placing reliance on ground No.(iv) that “the order passed in this writ application is based on error apparent in the face of the record and this was a fit case for review of the Judgment passed on 05.05.2022”. Nevertheless, it is ascertained from the “prayer” of the writ appeal that the appellant has not made any prayer to quash or set aside the Judgment dated 23.06.2022 of learned Single Judge in the RVWPET No.140 of 2022 arising out of Judgment dated 05.05.2022 delivered in W.P.(C) No.7322 of 2020. W.A. No.877 of 2022 Page 26 of 65 This is indicative of the fact that the appellant remained contended with the observation made in the Judgment 23.06.2022 rendered in review petition. 8.6. Undenied fact reveals that the present appellant- Pravasini Mohanty participated in the interview as part of selection process pursuant to Guidelines dated 24.11.1997 at Project Office at Nimapada on 23.04.2010 before the duly constituted Selection Committee comprising the Child Development Project Officer, Supervisor and A.N.M. along with two others, namely Sukanti Nayak-respondent No.5 and one Bharati Panda. 9. In the aforesaid backdrop, when the averments and the grounds of present writ appeal are examined, it is observed that except saying that the advocate for the appellant did not remain present during the course of hearing of writ petition, no tangible material brought on record by way of counter affidavit or otherwise before the learned Single Judge, even though said appellant- Pravasini Mohanty entered appearance through her counsel Sri Bhaskar Samantaray on 19.10.2020 much prior to the date of hearing on 05.05.2022. 9.1. From comparison of translated copies of Resolution dated 30.01.2010 of Mahila Sabha in the Meeting held at Bishimatri School premises vide Annexure-2 and Annexure-4 enclosed to writ appeal, furnished by the appellant, it is observed that the sentences, “Later some W.A. No.877 of 2022 Page 27 of 65 persons made disturbance. So, it was decided that the selection will be made after conducting interview in the Office.” as reflected in Annexure-4 are missing in Annexure-2. Such a fact is alleged to have been manipulated/tampered. Though both the annexures are of 30.01.2010, minute scrutiny would show that said sentences are erased in the photocopy vide Annexure-2. At this stage on perusal of record of writ petition, it is transpired that the counter affidavit filed by the opposite party Nos.2 to 4 does not disclose such anomaly. Neither said fact is pleaded by the appellant (opposite party No.5 in the writ petition) nor was argued before the learned Single Judge on the date of hearing, i.e., 05.05.2022. Rather, in the counter affidavit filed in response to averments/contentions of the writ petitioner-Sukanti Nayak, it has been admitted as follows: “4. That it is respectfully submitted that on the basis of an advertisement, a meeting of Mahila Sabha was held on 30.1.2010 in the village Bisimatri, for selection of Anganwadi Helper in respect of Bisimatri AWC. In the said meeting, twenty five number of women were present to participate in the discussion with regard to selection of Anganwadi Helper. During the meeting, though the members present in the meeting supported the candidature of opposite party No.5, at the same time, a few members of the meeting created disturbance for which the the meeting could not be purpose of materialised and consequently decision was taken W.A. No.877 of 2022 Page 28 of 65 go for selection at the Project Headquarter as per the Government Guidelines. It is pertinent to mention here that so far the selection of Anganwadi Helper is concerned, the same is governed by the Government Guidelines dated 24.11.1997. The said circular clearly provides that the Committee should select the Helper in consultation with the women groups of the village. In case, for any reason to be recorded in writing it is not possible to make the selection in a particular village, the selection may be made at the Project Headquarter.” 9.2. From the aforesaid it is manifest that in the Mahila Sabha Meeting held on 30.01.2010 AWH could not be selected, as a result of which pursuant to notice, Sukanti Nayak-respondent No.5, Pravasini Mohanty- appellant and Bharati Panda appeared before the duly constituted Selection Committee on 23.04.2010 and participated in the interview, where the respondent No.5 was declared successful having secured highest marks. It is nobody’s case that these three women did not participate in the interview held on 23.04.2010. However, for the first time after the writ petition being W.P.(C) No.7322 of 2020, filed at the instance of Sukanti Nayak-respondent No.5, is allowed vide Judgment dated 05.05.2022 by the learned Single Judge, by way of review petition being RVWPET No.140 of 2022, Pravasini Mohanty has sought to set up new plea alleging manipulation of Resolution dated 30.01.2010 of the W.A. No.877 of 2022 Page 29 of 65 Mahila Sabha, which the learned Single Judge rejected vide Judgment dated 23.06.2022 in absence of the appellant demonstrating “error apparent on the face of the record” relating to the Judgment dated 05.05.2022 delivered in W.P.(C) No.7322 of 2020. 9.3. The well-founded reasons on the analysis of facts by the learned Single Judge do not warrant intervention of this Court in the instant intra-Court appeal. While no challenge is made by the appellant to interdict effect of Judgment dated 23.06.2022 in its review petition, in the writ appeal it is fervently prayed to set aside the Judgment dated 05.05.2022 delivered in the writ petition. Dealing with averments of the review petition, the learned Single Judge without any ambiguity in mind observed that, Pravasini Mohanty “did not choose to file any counter affidavit nor participated in the hearing” and observed that the Mahila Sabha Resolution dated 30.01.2010 on which “the Review Petitioner rests her case was admittedly not part of the pleading of the W.P.(C)”. Thus, as no plea was set up before the learned Single Judge by Pravasini Mohanty, present appellant, the scope of intra-Court appeal cannot be expanded to re-investigate the facts which were never before the learned Single Judge. 9.4. The Hon’ble Supreme Court of India in the case of N. Ramachandra Reddy Vrs. State of Telengana, (2019) 11 W.A. No.877 of 2022 Page 30 of 65 SCR 792 delineated the scope of intra-Court appeals by making following observation: “43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.” 9.5. In Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, it has been observed as follows: “Be that as it may, in an intra-Court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.” 9.6. This Court is not oblivious of the proposition laid by a Co-ordinate Bench of this Court in the case of Sri Debarchan Mahanandia Vrs. State of Odisha, W.A. No.306 of 2014 vide Judgment dated 25.09.2015, which is to the following effect: “5. Now coming to the contentions for the appellant with regard to non-consideration of the case of the appellant as recorded in point Nos.2 and 3, on scrutiny of the judgment of the learned Single Judge, W.A. No.877 of 2022 Page 31 of 65 it is observed that the appellant failed in raising any such point during hearing of his case. For the lapse of the appellant in canvassing the points to be considered by the learned Single Judge, the decision of the learned Single Judge cannot be faulted. Further, law is fairly well settled in Dr. S.L. Agarwal Vrs. The General Manager, Hindustan Steels Ltd. (AIR 1970 SC 1150) that, in the event any such point is pleaded but not canvassed during course of argument, the remedy lies with the appellant to apply for review of the judgment before the same for Court and entertaining such issues in a writ appeal.” is absolutely no scope there 9.7. It is apt to reiterate that when the learned Single Judge has noted down in his Judgment 23.06.2022 in RVWPET No.140 of 2022, which is not questioned by making prayer to set aside/quash in the present writ appeal, that pleadings of Pravasini Mohanty fell short to the effect that she has not demonstrated that manipulated document was the basis for selection of AWH. The basis of the present intra-Court appeal is that the Resolution dated 30.01.2010 shifting venue for interview for selection of AWH to Headquarter on objection of some people has been manipulated, as such, the selection of the appellant being made on 30.01.2010 should have been finalized. In the opinion of this Court, such a fact was neither part of the pleadings available in the record relating to writ petition nor was it argued during the course of hearing of writ petition. On the contrary, the opposite party Nos.2 to 4 by way of counter affidavit filed W.A. No.877 of 2022 Page 32 of 65 in reply to the contents of the writ petition supported the Order dated 20.01.2020 of the Collector, Puri. Since the learned Single Judge has delved into merit of the matter on the basis of available evidence on record, expressed disinclination to entertain such new/fresh fact to reopen the matter and thereby rejected the review petition. 9.8. On this score, regard may be had to the following observation of this Court in an intra-Court appeal being Debarchan Mahanandia Vrs. State of Odisha, W.A. No.306 of 2014 vide Judgment dated 25.09.2015: “7. This Court further observes that since the judgment of the learned Single Judge has already been reviewed by the learned Single Judge, the judgment of the Single Judge in the writ petition having merged in the Review Judgment and as the Review petition is disposed of deciding additional issues involved in the matter, the impugned judgment in W.P. (C) No.1724 of 2009 cannot by itself be the subject matter of appeal.” 9.9. The law regarding questioning the Judgment/Order in review petition vis-à-vis challenging main Judgment after disposal of review, has been discussed in T.K. David Vrs. Kuruppampady Service Co-operative Bank Ltd., (2020) 13 SCR 663, where following are the observations: “13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited Vrs. Union of India, (2016) 4 SCC 696. In the above case also special leave petition was filed W.A. No.877 of 2022 Page 33 of 65 against the Division Bench judgment of the High Court rejecting the review petition. Facts have been noticed in paragraph 1, which is to the following effect: “*** The present appeal is directed against the judgment and order dated 14.09.2004 passed by the Division Bench of the High Court of Judicature at Bombay in Bussa Overseas & Properties (P) Ltd. v. Union of India [Notice of Motion No. 62 of 2004, decided on 14-9-2004 (Bom)] whereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review.” 14. In the above case, this Court noticed several earlier judgments and accepting the preliminary objection is not held maintainable. Following was held in paragraphs 29 to 32: leave petition the special that ‘29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the decision in Shanker Motiram Nale [Shanker W.A. No.877 of 2022 Page 34 of 65 Motiram Nale Vrs. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the the basic challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. is not assailed and judgment 31. In this context, we may profitably reproduce a passage from State of A.P. Vrs. A.P. Jaiswal, (2001) 1 SCC 748 wherein a three-Judge Bench has observed thus: (SCC p. 761, para 24) “24. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system this consistency can never be and achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. W.A. No.877 of 2022 Page 35 of 65 These rules and principle are based on public policy. ***” 32. In view of the aforesaid analysis, that all the submission of Mr. Gulati the subsequent judgments are per incuriam as they have not taken into consideration the decision rendered in Thungabhadra Industries Ltd. [Thungabhadra Industries Ltd. Vrs. State of A.P., AIR 1964 SC 1372 = (1964) 5 SCR 174] is not correct. Consequently, the appeal, being not maintainable, stands dismissed. There shall be no order as to costs.’ is not can be 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ easily challenged petition comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.” W.A. No.877 of 2022 Page 36 of 65 9.10. Such being precedential principle, it may not be and cannot be gainsaid by any of the parties that the learned Single Judge in his Judgment dated 23.06.2022, while seized of review petition, discussed the new fact which was sought to be the cause for review and such aspect being not considered to be germane for review, the appellant herein desires this Court to entertain such plea in the intra-Court appeal, but without making any “prayer” for setting aside the Judgment rendered in consideration of the review petition. 9.11. In this connection, a decision of the Supreme Court of India in Ram Sarup Gupta (dead) by LRs Vrs. Bishun Narain Inter College, (1987) 2 SCC 555 is relevant, wherein it has been held that, “*** It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, in words which may not pleadings are expressed expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the W.A. No.877 of 2022 Page 37 of 65 court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad Vrs. Chandramaul, AIR 1966 SC 735 = (1966) 2 SCR 286 a Constitution Bench of this Court considering this question observed: “If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has W.A. No.877 of 2022 Page 38 of 65 had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another.” 9.12. The intent behind pleadings, be it a statement of claim, defence or reply, is of identifying the real issues between the parties, to limit the evidence of the trial subject to the issues formed and to guarantee that no party is placed at any disadvantageous position by introduction of matter not emanating from pleading and the trial proceeds smoothly towards Judgment, upholding the principles of a fair trial. To put it otherwise, a party while entering into a trial should know in advance the crux of the case they will have to face and substantiate during the course of trial. It is in this view of this matter, relief not pleaded in a pleading should not be granted is a legally accepted proposition. Therefore, the Court cannot go beyond the scope of pleadings, since pleadings are the substratum to find out the real controversy between the parties. The pleadings play a role of assisting the Court in narrowing the scope of controversy in question and make parties aware of the issue so that they can adduce the appropriate evidence to prove the same in accordance with law. Such view W.A. No.877 of 2022 Page 39 of 65 finds place in M.N.Saji Vrs. K.R. Krishnakumar, 2023/KER/57358 = 2023 SCC OnLine Ker 8531. 9.13. It is not the case of the appellant that it had had no opportunity before the learned Single Judge to place the factual aspects sought to be considered in the instant writ appeal with regard to manipulation of Resolution dated 30.01.2010. Nonetheless, on scrutiny of the contents of writ petition being W.P.(C) No.13360 of 2010, disposed of on 19.08.2010, which was filed on 03.08.2010 at the behest of Pravasini Mohanty- Appellant (placed at Annexure-6 to the writ appeal), it is seen that she had highlighted the grievance with regard to manipulation of Resolution in the Meeting of Mahila Sabha held on 30.01.2010 and it is stated at paragraph 7 of the writ appeal as follows: “That the appellant then filed W.P.(C) No.13360 of 2010 before this Hon’ble Court, challenging the order of appointment of Sukanti Nayak (respondent No.5) on the being ground manipulated.” of Resolution dated 30.01.2010 9.14. Notwithstanding such fact was well within the knowledge of the appellant, she chose not to set up pleading in W.P.(C) No.7322 of 2020 and further she even restrained herself from participating before the learned Single Judge on 05.05.2022, on which date the hearing of said writ application was taken up. W.A. No.877 of 2022 Page 40 of 65 9.15. Under the aforesaid premise, this Court sitting in appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III of the Rules of the High Court of Odisha, 1948, is not persuaded to entertain material which never formed part of pleading nor was it argued before the learned Single Judge during the course of hearing of W.P.(C) No.7322 of 2020 on 05.05.2022. 10. From the pleadings available on record and arguments advanced by the counsel for the respective parties it is but understood that Sri Santosh Kumar Pattanaik, learned Senior Counsel harped at the point that the selection of the appellant-Pravasini Mohanty being finally decided with the support of the members present in the Mahila Sabha Meeting held on 30.01.2010, there was no necessity to go for interview on objection being raised by afew and there was no occasion for Selection Committee to decide to shift the venue to Headquarters for the purpose of conducting interview/viva voce on 23.04.2010. 10.1. In the said interview, Sukanti Nayak-respondent No.5 being declared successful, the appellant approached this Court by way of filing writ petition being W.P.(C) No.13360 of 2010, which came to be disposed of vide Order dated 19.08.2010. As a consequence thereof, the W.A. No.877 of 2022 Page 41 of 65 Collector, Puri passed Order dated 08.05.2015, directing to give engagement to Pravasini Mohanty, which was challenged before this Court by Sukanti Nayak in W.P.(C) No.23721 of 2015 as she was deprived of opportunity to have her say. Disposing of said writ petition, this Court vide Order dated 30.01.2018 directed for reconsideration of the issue involved in AWW Misc. Case No.110 of 2010 by affording opportunity to not only Sukanti Nayak, but also the parties likely to be affected. Therefore, the Collector, Puri, upon hearing all concerned, observed vide Order 20.01.2020 as follows: “*** Besides from the records available, it is found that the copy of the resolution dated 30.01.2010, has been supplied by the CDPO, Nimapara vide her letter No. 438 dated 17.05.2010 under RTI Act which clearly shows that the selection has been made by the Mahila Sabha on 30.01.2010 without any disturbances. But CDPO, Nimapara, submitted a copy of the resolution dated 30.01.2010 vide her letter No.413 dated 27.05.2019 in which it has been reported that on the very date of in 30.01.20120 a group of people raised objection selection of Anganwadi Helper of Bisimatri Anganwadi Ceritre for which the Mahila Sabha recommended for selection of Anganwadi Helper at the project headquarter. Accordingly the selection has been made on 23.04.2010 by way of viva-voce test. From the above it is very clear that the resolution dated 30.01.2010 made by the Mahilasabha mentioning the fact of objection raised by a group of persons is afterthought. W.A. No.877 of 2022 Page 42 of 65 Under the circumstances that resolution can not be taken into consideration. I am of view that the petitioner Pravasini Mohanty deserves to be engaged as Anganwadi Helper in Bisimatri Anganwadi Centre. Therefore, she is to be continued as Anganwadi Helper in that Centre. As such the prayer of Sukanti Nayak is rejected being devoid of any merit. ***” 10.2. Therefore, it is strenuously argued by Sri Santosh Kumar Pattanaik, learned Senior Counsel for the appellant that the first selection made on 30.01.2010 should have been upheld by the learned Single Judge. 10.3. Be that as it may, the case of the parties does not turn on the fact whether addition of sentences intending to conduct interview/viva voce test at Headquarters are afterthought. Rather, the case of the parties rests on the pivotal fact that the present appellant-Pravasini Mohanty faced the interview on 23.04.2010 in the Headquarter along with Sukanti Nayak-respondent No.5 and one Bharati Panda and such appearance before the Selection Committee comprising the Child Development Project Officer, Supervisor and A.N.M. was upon being duly served with notice/intimation and representation of Pravasini Mohanty herself. So, participation of Pravasini Mohanty in the interview/viva voce itself is indicative of the fact that her alleged selection on 30.01.2010 in Mahila Sabha Meeting was not given effect to and she was ready for the test. Therefore, being conscious of said fact, she faced the viva voce test at Headquarters on Page 43 of 65 W.A. No.877 of 2022 23.04.2010 before the duly constituted Selection Committee as aforesaid. 10.4. Thus, after participating in the interview/viva voce test, and results being published, where she was declared successful, the appellant cannot now turn around to say that Resolution dated 30.01.2010 was manipulated one. On the contrary, she should have and could have set up her own stand before the learned Single Judge by way of counter affidavit by placing cogent material demonstrating prejudice caused to her by adhering to such selection process. The Single Judge having decided the merit of writ petition taking into consideration the material on record including the stand of the opposite party Nos.2 to 4 by way of counter affidavit; it is fact on record that Pravasini Mohanty having executed Vakalatnama in favour of Sri Bhaskar Samantaray, Advocate, appeared much before the date of hearing of writ petition and did not even choose to file response by bringing any material evidence to the effect of showing that Resolution dated 30.01.2010 of Mahila Sabha was manipulated one. In the Review Petition filed by Pravasini Mohanty, such new fact was sought to be introduced on the pretext of “error apparent on the face of the record”. However, learned Single Judge in his Judgment dated 23.06.2022 rendered in RVWPET No.140 of 2022 clearly elicited that there was no factual foundation laid in the pleadings of the writ petition by W.A. No.877 of 2022 Page 44 of 65 way of counter affidavit nor was the same placed or argued during the course of hearing of writ petition on 05.05.2022. Therefore, the appellant in the present writ appeal having failed to show any illegality or irregularity committed by the learned Single Judge, there is no occasion to warrant interference in the Judgment dated 05.05.2022 delivered in W.P.(C) No.7322 of 2020. 10.5. The principle regarding selection of candidate has been well established in service jurisprudence; suffice it to quote the following lines from Manoj Manu Vrs. Union of India, (2013) 10 SCR 8: the Government not “14. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.” fill up to 10.6. In Shankarsan Dash Vrs. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Supreme Court held that: “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of W.A. No.877 of 2022 Page 45 of 65 legitimately denied. Ordinarily candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be correct position has been permitted. This consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vrs. Subash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla Vrs. State of Haryana, (1986) 4 SCC 268, or Jatindra Kumar Vrs. State of Punjab, (1985) 1 SCC 122.” to respect the State is bound 10.7. In a Judgment reported as S.S. Balu Vrs. State of Kerala, (2009) 2 SCC 479, it was held that: “12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is W.A. No.877 of 2022 Page 46 of 65 committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. See Batiarani Gramiya Bank Vrs. Pallab Kumar, (2004) 9 SCC 100.” 10.8. In Pitta Naveen Kumar Vrs. Raja Narasaiah Zangiti, (2006) 10 SCC 261, it was held as follows: “32. *** A candidate does not have any legal right to be in the terms of Article 16 of appointed. He Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.” 10.9. In another Judgment reported in Kulwinder Pal Singh Vrs. State of Punjab, (2016) 6 SCC 532, it was held as under: “10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment vide Food Corporation of India Vrs. Bhanu Lodh, (2005) 3 SCC 618, All India SC & ST Employees’ Association Vrs. A. Arthur Jeen, (2001) 6 SCC 380 and UPSC Vrs. Gaurav Dwivedi, (1999) 5 SCC 180. 11. This Court again in State of Orissa Vrs. Rajkishore Nanda (2010) 6 SCC 777, held as under: W.A. No.877 of 2022 Page 47 of 65 ‘14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. * * * 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.’ ***” 10.10. The decision of Hon’ble Supreme Court of India in Suneeta Aggarwal Vrs. State of Haryana, (2000) 2 SCC 615, wherein the following observation has been made, is pointer to decide the issue raised in the present writ appeal, as Pravasini Mohanty-appellant did not question the manipulation of Resolution dated 30.01.2010; rather, she participated in the test subsequently held: “Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too W.A. No.877 of 2022 Page 48 of 65 without any kind of protest, and on the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.” 10.11. This Court in Krishna Kumar Rout Vrs. Collector, Balasore, W.P.(C) No.82 of 2013, vide Order dated 23.03.2021, held as follows: issued, to advertisement “Considering the contentions raised by learned counsel for the parties and after going through the records, the admittedly pursuant petitioner applied for the post of M.I.S.-cum-Planning Co- ordinator, SSA, Balasore and participated in the process of selection. He has also given an undertaking to the effect that he will have no objection to the selection list and expressed her willingness to participate in the Functional Computer Literacy Test for the aforesaid post and shall abide by the terms and conditions of the examination and accept the result finalized by the examiner. After furnishing the undertaking, the petitioner participated in the said test and having secured less percentage of marks, she has not been selected. Therefore, once he participated in the process of selection and became unsuccessful, he cannot turn around and W.A. No.877 of 2022 Page 49 of 65