The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37062 of 2022 and W.P.(C) No.18838 of 2021 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) (In W.P.(C) No.37062 of 2022) Namita Seth …. Petitioner(s) State of Odisha & Ors. …. Opposite Party(s) -versus- Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : :
Legal Reasoning
Mr. Saroj Kumar Padhy, Adv. Mr. Debasish Nayak, AGA Mr. Bibhuprasad Tripathy, Adv. (for O.P.2) Mr. Soham Mishra, Adv. (for O.P.6 Ambika Bagarty …. Petitioner(s) (In W.P.(C) No.18838 of 2021) State of Odisha & Ors. …. Opposite Party(s) -versus- Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Mr. Raghunath Das Mohapatra, Adv. Mr. Debasish Nayak, AGA Mr. Bibhuprasad Tripathy, Adv. (for O.P.2) Mr. Soham Mishra, Adv. (for O.P.6 Page 1 of 6 CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-10.10.2023 DATE OF JUDGMENT: -20.11.2023 Dr. S.K. Panigrahi, J. 1. Since common question of facts and law are involved in both the Writ
Decision
Petitions, the same were heard together and are being disposed of by this common judgment. However, this Court felt it apposite to treat the W.P.(C) No.37062 of 2022 as the leading case for proper adjudication of both the Writ Petitions. 2. The Petitioner (Namita Seth) in W.P.(C) No.37062 of 2022 has challenged the appointment of one Deepanjali Dharai as ASHA (Accredited Social Health Activist) worker in respect of village Khaliapali vide Notice dated 16.08.2022 issued by the Superintendent, C.H.C., Naikenpali, District- Subarnapur instead of the present Petitioner despite her being ineligible as per the notice and eligibility criterias. The Petitioner (Ambika Bagarti) in W.P.(C) No.18838 of 2021 challenges the order dated 03.06.2021 passed by the Collector, Subarnapur rejecting her representation for appointment as ASHA worker in respect of village Khaliapali. I. FACTUAL MATRIX OF THE CASE: 3. Bereft of unnecessary details, the case of the Petitioner (Namita Seth) is that a notice dated 01.09.2020 was issued by Superintendent CHC., Naikonpali, Dist- Subarnapur and H.W.(F), Khaliapali S/C for filling of the post of ASHA health worker (karmi) in the respect of village Khaliapali. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Page 2 of 6 4. 5. In furtherance of above mentioned notice another advertisement dated 19.09.2020 was issued by Superintendent CHC., Naikonpali, Dist- Subarnapur and H.W.(F), Khaliapali S/C for filling of the post of ASHA health worker (karmi) in the respect of village Khaliapali. In furtherance of the above-mentioned advertisement, the Petitioner along with two other candidates namely Ambika Bagarty and Deepanjali Dharai had applied for the post of ASHA health worker (karmi) in the respect of village Khaliapali. A meeting dated 26.09.2020 was convened for the purpose of selection and filing of the abovementioned advertised post ASHA health worker (karmi) in the respect of village Khaliapali, 6. Accordingly, the documents of all the candidates were thoroughly scrutinized and it was learnt that the other two applicants namely Deepanjali Dharai and Ambika Bagarty were found to be ineligible as per the eligibility criteria provided. Ambika Bagarty was found to be ineligible as her signature in the application did not match her signature in the Certificate. It is further clarified that Ambika Bagarty i.e., opp. party no. 7 signed in the application form as "Ambika Bagarty", even though in all her documents, her name is reflected as "Ambika Bagh". 7. Similarly, Deepanjali Dharai was also not found to ineligible as she did not attest Caste Certificate and Residence proof by B.D.O as mandated by the notice and eligibility criteria. Moreover, as per the notice of advertisement, the applicants were supposed to submit the documents on or before 10.09.2020 in order to be considered. However, Deepanjali Dharai i.e., opp. party no.8’s Resident certificate and Caste certificate were issued on Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Page 3 of 6 23.09.2020 and 26.09.2020 thereby proving that the documents were submitted after the due date at a belated stage. 8. As the matter stood thus, the present petitioner duly and legitimately expected to be declared as selected to abovementioned advertised post of ASHA health worker (karmi) in the respect of village Khaliapali since the rest of two applicants were found to ineligible. 9. The petitioner was however shocked and surprised to learn that Deepanjali Dharai i.e., opp party no. 8 was selected against the abovementioned advertised post of ASHA health worker (karmi) in the respect of village Khaliapali vide notice dated 16.08.2022 issued by the office of the Superintendent, CHC, Naikenpali despite being ineligible. 10. Having no other alternative, the present petitioner addressed her grievance through a detailed representation dtd 01.10.2022 to the Collector and the C.D.M.O. respectively. However, despite running numerous errands and from pillar to post, all the prayers of the present petitioner has continued fall on deaf ears of the opposite parties. The opp. parties have intentionally turned a blind eye towards the issue and their inaction proves malice and malafide intention as they continue sit over the matter without acting upon it. 11. The guidelines for selection of new ASHA had been revised very recently and communicated vide letter dated 04.05.2022 and it was decided that a single guideline will be followed in both rural and urban areas for the selection of new ASHA. 12. Opportunity in matters of public employment without being subjected to bias or favouritism is an inherent right that is entrenched in the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Page 4 of 6 Constitution of India, 1950. However, in the present case, the opposite parties have committed a grave illegality by selecting a person who was ineligible for selection. Thus, such patent illegality is an outright infringement of violation of fundamental right and legitimate expectation of the petitioner. 13. Since the opposite parties qualify as ’State’, it is pertinent that every administrative decision taken by them should be supported by reasonable nexus to the object that it is trying to achieve. In absence of such a reasonable nexus, every administrative decision must be deemed to arbitrary, illegal and untenable in the eyes of the law for violating the basic facets of Article 14 as entailed under the Constitution of India, 1950. Every arbitrary decision masquerading as a colourable exercise of the authority is liable to be quashed in limine. II. COURT’S REASONING AND ANALYSIS: 14. Deepanjali Dharai was found ineligible as she did not attest a true copy of Caste Certificate and Residence proof by B.D.O as mandated by the notice and eligibility criteria. Moreover, as per the notice of advertisement, the applicants were supposed to submit the documents on or before 10.09.2020 in order to be considered. However, Deepanjali Dharai i.e. opp. party no.8’s Resident certificate and Caste certificate were issued on 23.09.2020 and 26.09.2020 thereby proving that the documents were submitted after the due date at a belated stage. 15. It is pertinent to mention here that it is the duty of the State to have the final say and clarity regarding the guidelines with respect to appointments. Accordingly, it is the duty of the appointing authority to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Page 5 of 6 ensure that the said guidelines are followed properly. The appointing authority is allowed to make provisions to showcase leniency in appointment with respect to certain qualification criterias when none of the candidates are found suitable. However, the provision for leniency has to be provided during the issuance of the advertisement and the same cannot be the discretion of the appointment authority in the midst of appointment. 16. With respect to the aforesaid discussion, this Court is inclined to entertain the prayer of the Petitioner (Namita Seth). W.P.(C) No.37062 of 2022 is, therefore, allowed. The appointment of one Deepanjali Dharai as ASHA (Accredited Social Health Activist) worker in respect of village Khaliapali vide Notice dated 16.08.2022 issued by the Superintendent, C.H.C., Naikenpali, District- Subarnapur is hereby quashed. 17. Accordingly, both the Writ Petitions are disposed of. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 20th Nov., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 17:26:38 Page 6 of 6