Subhasmita Kanhar … v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 25094 of 2023, W.P.(C) No. 8807 of 2022 And W.P.(C) No. 8808 of 2022 In the matter of applications under Articles 226 & 227 of Constitution of India. AFR W.P.(C) No. 25094 of 2023 Subhasmita Kanhar …… Petitioner --------------- - Versus - State of Odisha and Ors. ...…. Opp. Parties W.P.(C) No. 8807 of 2022 Subhasmita Kanhar ...…. Petitioner - Versus - State of Odisha and Ors. ...…. Opp. Parties W.P.(C) No. 8808 of 2022 Pramila Kanhar ...…. Petitioner - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner(s) : Mr. Hrudananda Mohapatra, S. Behera and R. Sethy, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate (For State Opp. Parties) Page 1 of 17 Mr. S.K. Parida & P.K. Sahoo, Advocates (For Intervenor-OP No.7 in WP(C) No.25094 of 2023) _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 13th September, 2024 SASHIKANTA MISHRA, J. All these writ applications involve common facts and question of law. Hence, all three were heard together
Decision
and are being disposed of by this common judgment. 2. The facts of the case, common to all the three writ applications, are that an advertisement was published by the CDPO (Child Development Project Officer), Khajuripada on 30.06.2021 inviting applications from intending ST (Scheduled Tribe) candidates for engagement as Anganwadi Workers in five Anganwadi Centres, including Suradei-II and Pandrapada Aganwadi Centres. Subhasmita Kanhar (petitioner in WP(C) No. 25094 of 2023 and WP(C) No. 8807 of 2022) and Pramila Kanhar (petitioner in WP(C) No. 8808 of 2022), being ST candidates, submitted their Page 2 of 17 applications respectively for Pandrapada and Suradei-II Anganwadi Centres. 2.1. In the selection process, both the petitioners were selected for engagement in respect of their respective Anganwadi Centres as per the select list published by the CDPO on 10.08.2021. The selected candidates in respect of three other Centres were issued with appointment letters with direction to join in the post, whereas no such order was issued in respect of the petitioners. They approached the DSWO (District Social Welfare Officer) of Kandhamal and the Collector, Kandhamal by submitting representations on 20.09.2021, but no action was taken nor was any intimation issued as to why they were not allowed to join. The petitioners, therefore, approached this Court in W.P.(C) No. 31889 of 2021 (Subhasmita Kanhar) and W.P.(C) No. 31936 of 2021 (Pramila Kanhar). Both the writ applications were disposed of directing the Collector, Kandhamal to consider the representations submitted by the petitioners in accordance with law within three months. Page 3 of 17 2.2. Pursuant to such directions, the Collector asked the CDPO, Khajuripada to submit parawise comments for disposal of the representations. Accordingly, the CDPO submitted parawise comments stating therein that both the petitioners, though selected, do not belong to the service area of the Anganwadi Centres in question and, therefore, after receipt of complaints from the villagers, their appointment orders have been withheld. The Collector, therefore, held that as per the guidelines issued by the Government on 04.01.2010 in all TSP (Tribal Sub Plan) areas only ST candidates would be eligible to apply, but if no such ST candidate is available, then it will be open to SC candidates. However, the revised guidelines dated 09.04.2010 stated that if no woman is found eligible from the service area of the concerned Anganwadi Centres, then women from other part of the same villages as well as the GP (Gram Panchayat) would be considered. As such, the DSWO has sought for clarification from the Government in W&CD (Women and Child Development) Department, which is still awaited. On such basis, the Collector disposed of Page 4 of 17 their representations holding that the appointment orders of the petitioners were rightly withheld and that the same shall stand till receipt of clarification from the Government. 2.3. At this stage, Subhasmita Kanhar approached this Court in WP(C) No.8807 of 2022 with the following prayer:- “It is therefore prayed that your Lordships shall be graciously pleased enough to admit the aforesaid writ petition, issue a writ in the nature of mandamus or any other form of writ/writs issuing RULE NISI calling upon the opposite parties to show cause as to why the order passed by the Collector, Kandhamal vide his order No.411 dated 10.02.2022 under Annexure-9 vis- (cid:224)-vis the withholding of the appointment order of the petitioner as Anganwadi Worker of Pandrabadi Anganwadi Centre by the C.D.P.O., Khajuripada shall not be quashed and as to why direction shall not be issued to the C.D.P.O., Khajuripada to accept the joining report of the petitioner and allow her to work as Anganwadi Worker in Pandrabadi Agnawadi Centre, considering the aforesaid facts and circumstances. If the Opposite Parties do not show cause or show insufficient cause the RULE NISI may be made absolute; And pass any other order/orders, direction/ directions, writ/writs as this Hon’ble deem fit and proper, And for this act of kindness the petitioner are as in duty bound shall ever pray.” Page 5 of 17 2.4. Pramila Kanhar also approached this Court in WP(C) No. 8808 of 2022 with the following prayer:- “It is therefore prayed that your Lordships shall be graciously pleased enough to admit the aforesaid writ petition, issue a writ in the nature of mandamus or any other form of writ/writs issuing RULE NISI calling upon the opposite parties to show cause as to why the order passed by the Collector, Kandhamal vide his order No.407 dated 10.02.2022 under Annexure-10 vis-(cid:224)-vis the withholding of the appointment order of the petitioner as Anganwadi Worker of Suradei-II Anganwadi Centre by the C.D.P.O., Khajuripada shall not be quashed and as to why direction shall not be issued to the C.D.P.O., Khajuripada to accept the joining report of the petitioner and allow her to work as Anganwadi Worker in Suradei-II Agnawadi Centre, considering the aforesaid facts and circumstances. If the Opposite Parties do not show cause or show insufficient cause the RULE NISI may be made absolute; And pass any other order/orders, direction/ directions, writ/writs as this Hon’ble deem fit and proper. And for this act of kindness the petitioner are as in duty bound shall ever pray” 2.5. During pendency of the aforementioned writ applications, the private opposite party no.7 was impleaded as intervenor. From her application of intervention it was disclosed that on her application being M.C. No.1 of 2021 Page 6 of 17 (AW Appeal), the ADM, Kandhamal, by order dated 17.06.2022, has quashed the advertisement dated 30.06.2021 by holding that applications from SC candidates should also have been invited. 2.6. As such, Subhasmita Kanhar has again approached this Court in WP(C) No. 25094 of 2023 with the following prayer:- “It is therefore prayed that your Lordships shall be graciously pleased enough to admit the aforesaid writ petition, issue a writ in the nature of mandamus or any other form of writ/writs issuing RULE NISI calling upon the opposite parties to show cause as to why the order dated the Addl. District 17.06.2022 passed by Magistrate, Kandhamal, Phulbani in M.C. No.1/2021 (A.W. Appeal) under Annexure-11 shall not be quashed, considering the aforesaid facts and circumstances. If the Opposite Parties do not show cause or show insufficient cause the RULE NISI may be made absolute: And pass any other order/orders. direction/ directions, writ/writs as this Hon’ble deem fit and proper: And for this act of kindness the petitioner are as in duty bound shall ever pray.” 3. Counter affidavit has been filed on behalf of the State opposite parties in all the writ applications. In the Page 7 of 17 earlier writ applications a stand was taken by the State that clarification has been sought for from the Government, for which the appointment orders have been withheld in respect of the petitioners. In the subsequent writ application, while admitting all the facts mentioned in the writ application, it is stated that in the appeal preferred by opposite party no.7, namely, Sujta Digal, the advertisement dated 30.06.2021 has been quashed, as it was floated only for ST candidates. 4. The opposite party no.7 in WP(C) No.25094 has also filed a counter, inter alia, stating that the petitioner therein belongs to a different service area and, therefore, as per the Government guidelines the advertisement should have called for from candidates belonging to SC category. 5. Heard Shri H.N. Mohapatra, learned counsel appearing for both the petitioners in the three writ applications, Shri S.N. Pattnaik, learned Addl. Government Advocate for the State and Shri S.K. Parida, learned counsel appearing for the intervenor opposite party no.7 in WP(C) No. 25094 of 2023. Page 8 of 17 6. Shri Mohapatra would argue that the ADM could not have entertained the so-called appeal preferred by the intervenor opposite party no.7, as the same was not relatable to the selection of Anganwadi Worker. He further submits that the ADM can only consider whether the selection was correct or not. He has no power to quash the advertisement. Shri Mohapatra further submits that when the very same advertisement, which related to five Anganwadi Centres, had already been partly acted upon by appointing Anganwadi Workers of three centres, the ADM could not have interfered with it. Shri Mohapatra further questions the locus standi of the intervenor to challenge the advertisement after completion of the selection process. 7. Shri S.N. Pattnaik, learned Addl. Government Advocate, referring to the relevant guidelines, would argue that admittedly the petitioners though are SC candidates yet, do not belong to the service area of the Anganwadi Centres in question, for which there was objection from the villagers. Therefore, the appointment orders issued in their Page 9 of 17 favour were withheld, as there was possibility of law and order situation. 8. Shri S.K. Parida appearing for the intervenor would submit that the advertisement was issued restricting the same to only ST candidates, which violates Article 14 of the Constitution of India in view of the clear guidelines of the Government that in case of non-availability of suitable ST candidates belonging to the service area, SC candidates can also be considered. The ADM, therefore, rightly found the advertisement to be contrary to the guidelines and, therefore, interfered with the same. 9. The facts of the case are not disputed inasmuch as both the petitioners are ST candidates and having applied pursuant to the advertisement, were found suitable for appointment. Further, out of five Anganwadi Centres advertized, candidates were selected and appointed in respect of three centres. Long after such engagement, the advertisement dated 30.06.2021 was held to be not as per due procedure and guidelines issued by the Government. Page 10 of 17 The impugned order, however, does not whisper as to what effect withdrawal of the advertisement would have on the already appointed candidates, because it is trite law that the selection process and the selection of candidates follow the advertisement. Though it has not been stated in so many words, yet on a plain reading of the impugned order it would imply that the entire selection process has been held to be bad in law. This is unacceptable because firstly, the impugned order was passed without hearing the affected parties, namely, the five selected candidates, including the petitioners. Secondly, the ADM appears to have lost sight of the fact that the appeal was filed by a person who was never a candidate but subsequently questioned the advertisement after completion of the selection process. If at all the appellant was aggrieved by the advertisement, then she should have challenged the same before the appropriate forum/authority at the relevant time and at any rate before completion of the selection process. The intervenor opposite party no.7 not having done so, should not have been permitted to challenge the advertisement after completion of Page 11 of 17 the selection process and, therefore, the ADM committed manifest error in entertaining the same. 10. Another important aspect is the competence of the ADM to invalidate the selection process after its conclusion. In this regard, it would be apt to refer to the revised guidelines dated 02.05.2007 issued by the Government in W&CD Department wherein, under the heading “Procedure”, the provision of appeal has been mentioned. The relevant clause is extracted here in below:- “(i) Sub-Collector will be the appellate authority for hearing complaints regarding selection of Anganwadi Workers for tribal and rural projects and Addl District Magistrate will be the appellate authority for complaints regarding selection of Anganwadi Workers for urban projects. Collector shall be the appellate authority in case Sub-Collector/ ADM have approved the selection as per para ’g’ and ’h’ above.” 11. On a plain reading of the aforequoted provision, it is clear that only complaints regarding selection of candidates as Anganwadi Workers can be considered by the ADM as the appellate authority. No further power is conferred on the ADM. What the ADM has done in the Page 12 of 17 present case is to far exceed his brief by invalidating the selection process itself. It is well-settled that exercise of power by an authority, which said authority does not possess, tantamounts to abuse of discretionary power/colourable exercise of power. Reference in this regard may be had to the judgment of the Supreme Court in the case of Pimpri Chinchwad New Township Development Authority v. Vishnudev Coop. Housing Society1. 12. It has been argued that the appeal was filed pursuant to the order passed by this Court in WP(C) No. 25729 of 2021 filed by the intervenor opposite party no.7. Perusal of the order dated 09.09.2021 passed in the aforementioned writ application reveals that a Coordinate Bench of this Court, after noting submissions made by the State Counsel that an appeal lies against selection and engagement of Anganwadi Worker, was not inclined to entertain the application, but granted liberty to the petitioner to approach the “appropriate forum” ventilating her grievance. Obviously, this Court never granted any 1 (2018) 8 SCC 215 Page 13 of 17 liberty to the petitioner to prefer appeal before the ADM as per the provisions of revised guidelines dated 02.05.2007 and the liberty to approach the appropriate forum can also imply liberty to approach the other authorities, including the State Government. It is trite law that appeal is a specific remedy provided against certain actions. Any or every matter cannot be raised in an appeal save and except that which is provided in the rules/guidelines. Further, the intervenor opposite party no.7 never challenged the order of the Coordinate Bench before the higher forum. The contention of the intervenor opposite party no.7 is, therefore, untenable. 13. From the foregoing narration, therefore, this Court is of the considered view that the ADM exceeded his jurisdiction in entertaining the complaint filed by the intervenor questioning the correctness of the advertisement. The impugned order is, therefore, rendered unsustainable on such score. Page 14 of 17 14. In so far as the prayer made in the previous writ applications are concerned, i.e., WP(C) No. 8807 and WP(C) No. 8808 of 2002, this Court deems it proper to refer to the guidelines dated 04.01.2010 which reads as follows:- the Revised “In partial modification of Guidelines for selection of Anganwadi Workers issued vide this Department letter with dt.2.5.07 No.145/SWCD clarifications issued in this Department letter letter No. letter No.449/SWCD dt. 17.10.2007 and No.14463, dt. 21.8.2009 1 am to say that the following may be appended. 18416/WCD dt.4.8.07, read Para-3(a) of the Revised Guidelines referred to above. In PTG areas the female candidate who has the highest qualification from among the applicants for each Anganwadi centre area may be selected as Anganwadi Worker. In case there are more than one candidate with same qualification the person who is senior in age may be selected. Para-3(b) of the Revised Guidelines In all Tribal Sub Plan (TSP) Areas only ST candidates will be selected as Anganwadi Workers. In case no suitable ST candidate is available in the AWC area then it may be made open to SC candidates also. This will be given prospective effect only.” 15. The Government appears to have issued the clarification sought for in its letter dated 18.07.2022 to the effect that first preference shall be given to the eligible Page 15 of 17 candidates of ST category and in case of non-availability of ST candidates, the candidature of eligible SC candidates of the TSP area shall be considered for selection. However, by the time such clarification was issued the selection process had already been concluded and the petitioner was already selected for engagement. 16. While there may have been a slight violation of the guidelines, yet fact remains that the basic intent being to engage ST candidates in TSP area, which has been done in the instant case, it cannot be said that such selection was entirely illegal. Moreover, the subsequent clarification issued after completion of selection process could act to the detriment of the persons already selected for engagement. This would lead to unnecessary legal complications. 17. For the foregoing reasons therefore, this Court finds that the non-issue of appointment orders in favour of the petitioners on the ground cited is untenable and cannot be sustained. Page 16 of 17 18. To reiterate, the petitioners having been duly selected in the selection process and otherwise found to be eligible for engagement, should be engaged as such without any further delay. 19. In the result, the writ applications are allowed. The impugned order dated 17.06.2022 passed by the ADM, Kandhamal, Phulbani in M.C. No.1 of 2021 (A.W. Appeal) under Annexure-11 is hereby quashed. The opposite party- authorities are directed to issue orders of engagement in favour of the petitioners as early as possible, preferably within one month from the date of production of certified copy of this judgment by the petitioners. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 13th September, 2024/ GDS Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: Orissa High Court, Cuttack Date: 17-Sep-2024 19:25:24 Page 17 of 17