Misc. Appeal No. 11 of 2011 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 14728 of 2013 An application under Articles 226 & 227 of Constitution of India. AFR Kemati Kharsel ...… Petitioner --------------- -Versus- State of Odisha & others ...…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. Ashwini Ku. Das, G.N. Sahu P. Sahoo & M. Bhagat, Advocates For Opp. Parties : Mr. A.R. Dash, Addl. Government Advocate M/s. D.N. Rath, A.K. Saa, S. Swain, S.K. Sahoo, Advocates. [ for O.P. No.4] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16th April, 2024 SASHIKANTA MISHRA, J. Being aggrieved by the dismissal of the petitioner’s appeal by the Additional District Magistrate, Bolangir in Revenue Misc. Appeal No.11 of 2011, the Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 1 of 13 petitioner has filed this writ application with the following prayer: records relating relevant “It is therefore prayed that this writ petition may be admitted, to selection of Anganwadi Worker at Dunguriguda Addl. AWC, in the file of Opp.Party No.2 & 3 may be called for and after hearing the counsels for both the parties, the writ petition may be allowed, and the order dtd.24/04/2013 passed by the ADM Balangir under annexure-3 may be set-aside/quashed and the Opp.Party No.3 may be directed to appoint the petitioner in the post of Anganwadi worker at Dunguriguda Addl. AWC within a stipulated period; And further be pleased to pass such other order/orders, direction/directions as may deem fit and proper in the interest of justice and equity; And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. Pursuant to an advertisement issued by the Child Development Project Officer (C.D.P.O.), Muribahal for engagement of Anganwadi Workers for Dunguriguda Anganwadi Center on 08.07.2009, the petitioner was an applicant. She was found to have secured the highest marks as per the proceeding of the selection committee meeting held on 07.08.2009, wherein the private opposite party No.4 was placed in the 2nd rank. However, such selection was withheld and subsequently the advertisement was cancelled. On 02.06.2010, another advertisement was published and an order of engagement Signature Not Verified
Facts
Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 2 of 13 was issued in favour of opposite party No.4 ignoring the case of the petitioner, though she was also an applicant. On enquiry she came to know that her candidature was rejected on the ground that she had failed in Odia subject in Class-VII securing 18 marks and 139 marks in total, thereby failing in Class-VII also. The petitioner approached this Court in W.P.(C) No.18391 of 2011, which was disposed of by directing the petitioner to submit representation/appeal before the Addl. District Magistrate (ADM) within two weeks with further direction to the ADM to consider the same within two weeks. The petitioner filed appeal before the ADM as directed but the same was dismissed on the ground of absence of the petitioner-appellant. The petitioner, therefore, filed another writ application in W.P(C) No.15783 of 2012, wherein this Court vide order dated 12.11.2012 set aside the order of the ADM and remanded the matter to him for fresh disposal. Pursuant to such order, the ADM heard the appeal and dismissed the same by order dated 24.04.2013, copy of which has been enclosed as Annexure-3. The appeal was dismissed on the ground that Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 3 of 13 the petitioner had failed in Odia subject in Class-VII securing 20 marks out of 100, whereas the private opposite party No.4 had secured 30 marks. 3. Counter affidavit has been filed by the State opposite party Nos. 2 and 3 justifying the impugned order. It is stated that the original selection process pursuant to the advertisement dated 08.07.2009 was cancelled as some doubts had crept in with regard to residential certificate submitted by the opposite party No.4. Pursuant to direction of the Sub-Collector, the CDPO again published advertisement on 02.06.2010 against which three applications were received including that of the petitioner and opposite party No.4. The candidature of the other candidate was rejected as she was found be belonging to a different service area. In so far as the petitioner is concerned, since she had submitted H.S.C. certificate obtained from the NOIDA Board, the selection committee sought clarification from the State Government. Clarification was received from the Government vide letter No. 11260/WCD dated 25.06.2010 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 4 of 13 to the effect that the candidates having requisite qualification from the institute approved by the Government of Odisha having Odia up to 7th Standard may be allowed to take part in selection of Anganwadi Workers. The petitioner had produced two different School Leaving Certificates showing different marks secured by her, one being of 28.06.2002 showing 139 marks and the other being of 02.07.2011 showing 169 marks. Since the petitioner had secured fail marks in Odia, the ADM rightly dismissed the appeal. The petitioner has filed a rejoinder refuting the averments in the counter. It is her specific case that the School Leaving Certificate dated 28.06.2002 showing 139 marks was cancelled as it had been wrongly issued which would be evident by totaling the marks secured by her in all subjects. It is further alleged that the CDPO being gained over by the opposite party No.4, utilized the cancelled certificate with a malafide intention, which is an act of fraud. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 5 of 13 4. Counter affidavit has also been filed by private opposite party No.4 stating that knowledge of Odia is a mandatory requirement for the post of Anganwadi Worker. The petitioner submitted 10th pass certificate issued by a Board outside Odisha without Odia as a subject. Further, she had not passed Odia in her Class-VII examination. As regards the two certificates, it is stated that the subsequent certificate issued on 03.07.2011 cannot be accepted as it was issued after the last date of submission of application. In the absence of any certificate in support of passing Odia, it cannot be presumed that the petitioner being an Odia is able to read and write Odia. On the other hand, the opposite party No.4 admittedly secured more marks in Odia than the petitioner. 5.
Legal Reasoning
have Odia up to 7th standard. There is no dispute that the petitioner had passed Class-VII examination with Odia as a subject. According to Mr. Das therefore, the ADM committed an illegality in treating the petitioner as ineligible, which is contrary to the norms laid in the advertisement as well as the revised guidelines and clarification of the Government. 7. Mr. A.R. Dash, learned Addl. Government Advocate would argue that the petitioner produced two School Leaving Certificates, one of the year 2002 and the other of the year 2011 showing different marks. The Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 7 of 13 certificate of the year 2011 was issued after expiry of the last date of receipt of application and therefore, could not have been considered. Even otherwise, as per the said certificate also, she is found to have failed in Odia subject having secured only 20 marks, whereas the opposite party No.4 secured 30 marks. The petitioner having thus failed in Odia language was rightly held to be ineligible by the selection committee as well as the ADM in the impugned order. 8. Mr. D.N.Rath, while making similar arguments as the State Counsel further submits that the petitioner has played fraud with the Selection Committee by producing two certificates, both of which show that she had not passed the Odia subject. The requirement as per the advertisement is that the candidate must be well versed in Odia in view of the peculiar nature of work performed by the Anganwadi Workers. Mr. Rath also submits that as per the Government norms, an Anganwadi Worker is required to deal with lactating mothers and young children, which can happen only if Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 8 of 13 she is well conversant in Odia language. The very fact that the petitioner passed matriculation from a Board outside Odisha without having Odia as one of her subjects proves that she lacks the essential requirement as mentioned in the advertisement. According to Mr. Rath therefore, her candidature was rightly rejected. 9. In order to appreciate the rival contentions, this Court has perused the advertisement dated 08.07.2009, copy of which has been enclosed as Annexure-4. The subsequent advertisement issued on 08.06.2010 has not been enclosed by any of the parties but it is common ground that the same eligibility conditions as laid down in advertisement dated 08.07.2009 were reiterated therein. It is seen that the basic educational qualification is matriculation. Further, the candidate must be able to read and write in Odia language. It is not disputed that in the selection, the petitioner secured 57 marks, while the opposite party No.4 secured 39.2 marks. As such, the petitioner is more meritorious than the opposite party No.4 and ought to Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 9 of 13 have been selected. It is evident that there is nothing in the advertisement laying down the condition that the candidates must have passed in Odia as a subject at any level. The revised guidelines dated 02.05.2007 of the Government in Women and Child Development Department also does not lay down any such condition. Thus, the advertisement appears to be fully in consonance with the revised guidelines. It is trite law that the conditions laid in the advertisement or the guidelines cannot be altered by the selection committee. 10. The question is, whether the petitioner fulfilled the condition of being able to read and write Odia. Neither the State nor the private opposite party have stated anywhere that the petitioner cannot read or write in Odia language. Their only contention is that she has not passed in Odia subject in her Class-VII examination. This Court would not like to enter into the factual controversy as regards the genuineness of two certificates issued in favour of the petitioner by the concerned School for the reason that in either case it is seen that she had Odia as a Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 10 of 13 subject in Class-VII. This by itself is adequate to hold that she was capable of writing and reading Odia as otherwise she could not have secured 18 or 20 marks as the case may be in Odia. As already stated, neither the guidelines nor the advertisement requires a candidate to have passed in Odia in Class-VII. It has been argued that the petitioner has not passed Class-VII, which is an absurd proposition for the reason that she has undisputedly submitted a matriculation certificate, which could not have been issued had she not passed in Class-VII. The ADM has referred to the clarification issued by the Government on 25.06.2010 that “the candidate having requisite qualification from institute approved by the Government of Odisha and Odia up to VIIth standard may be allowed to take part in selection of Anganwadi Worker”. Copy of the clarification has not been brought on record by any of the parties, for which this Court has no other option than to rely on the impugned judgment where the above has been quoted. Be that as it may, even the Government clarification does not say that the candidate must have passed Odia in VIIth standard, rather, the requirement is Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 11 of 13 she must have Odia as a subject in the 7th standard for being eligible to take part in the selection process. The ADM by ignoring the advertisement, the revised guidelines dated 02.05.2007 and the clarification of the Government took into consideration the VIIth Class Certificate, wherein the petitioner was found to have failed in Odia subject by securing 20 out of 100 marks. This is a clear case of exceeding the brief by the ADM. As such, the impugned order cannot be sustained in the eye of law as no authority can be permitted to go beyond the guidelines or the terms of the advertisement. 11. From a conspectus of the analysis of facts and law made hereinbefore, this Court finds that the petitioner having passed Class-VII and having the required educational qualification being a matriculate and being more meritorious than the opposite party No.4 was illegally and unjustly deprived of her rightful claim of being engaged as Anganwadi Worker. Further, the ADM, as already stated, did not consider the appeal of the Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 12 of 13 petitioner in the right perspective and went beyond the guidelines/advertisement/clarification to reject her claim. 12. This Court therefore, finds that the petitioner had made out a good case for interference by this Court. The writ petition is allowed. The impugned order under Annexure-3 is hereby set aside. The CDPO, Muribahal is directed to issue necessary order of engagement in favour of the petitioner as Anganwadi Worker of Dunguriguda Additional Anganwadi Center without any further delay and in any case, within four months from the date of communication of this order or on production of certified copy by the petitioner. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th April, 2024/ A.K. Rana Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 13 of 13
Arguments
Heard Mr. Aswini Kumar Das, learned counsel for the petitioner; Mr. A.R. Dash, learned Addl. Government Advocate for the State and Mr. D.N. Rath, learned counsel appearing for the private opposite party No.4. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:03 Page 6 of 13 6. Mr. Das would argue that neither the advertisement nor the revised guidelines dated 02.05.2007 of the Government mandates that the candidates for the post of Anganwadi Worker should have passed Odia as a subject in Class-VII. The only requirement is that the candidates must be able to read and write Odia. The Government in its clarification also did not lay down that the candidates should have passed Odia in Class-VII but specified that the candidate should