Afr Smt. Gitarani Behera vs State Of Odisha & Others
2022 Latest Caselaw 4396 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No. 26519 of 2017

       An application under Articles 226 & 227 of Constitution of
       India.
                                   ---------------
AFR    Smt. Gitarani Behera                          ......       Petitioner

                             -Versus-

       State of Odisha & others                      .......     Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner      :    M/s. J.K. Khuntia & H.S. Deo,
                                  Advocates.

          For Opp. Parties :      Mr. P.K. Rout,
                                  Addl. Standing Counsel for the State

                              M/s. A.K. Mohanty(A), R.K. Behera,
                              R.C. Pradhan.
                              [ O.P. No.4]
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

6th September, 2022

SASHIKANTA MISHRA, J.

On 20.12.2016 an advertisement was issued by the

CDPO, Bhograi in the district of Balasore inviting

applications for the post of Anganwadi Worker for

Golabagad Mini Anganwadi Center under CDPO, Bhograi. It

was indicated in the said advertisement that the area of

operation of the Mini Anganwadi Center would be Golabagad

Part from House No. 68 to 76, i.e. the house of Panchu

Gopal Das to Saraswati Dutta and from House No. 103 to

113 of Udayaganj Patna i.e. the house of Hemangini Pandit

to Ramachandra Pandit. The petitioner belongs to village

Udayaganj Patna Part. The advertisement stipulated that the

applicant must be resident of the service area and that she

is required to submit an affidavit indicating the house

number as per the survey report along with the nativity

certificate of the Tahasildar along with other terms and

conditions, the petitioner submitted her application

enclosing all the relevant documents on 05.01.2017. The

CDPO, Bhograi called for survey report from the Anganwadi

Workers, Ranjulata Sethi and Sangeeta Kundu, who

submitted a report that the house of the petitioner's father-

in-law, namely, Ramesh Chandra Behera is at serial no.110

of Udayaganj Patna and as such, she belongs to the area

defined under House No.103 to House No.113. Three

candidates had submitted applications including the

petitioner. One Anjali Das and Puspanjali Das (the present

opposite party no.4) are the other two applicants. At the

time of scrutiny, it was found that the opposite party No. 4

did not have the requisite qualification for which her

application was rejected. Out of the two remaining

candidates the petitioner secured 72.2 points, while the said

Anjali Das secured 39.5 points. Accordingly, the selection

committee selected the petitioner as Anganwadi Worker of

Golabagada Mini Anganwadi Center in its proceeding dated

06.04.2017. The final result sheet of selection of the Mini

Anganwadi Workers was published on 06.04.2017, wherein

the petitioner was declared as selected for Golabagada Mini

Anganwadi Center under Barabati-2 Grama Panchayat.

Pursuant to publication of such result, the CDPO, Bhograi

issued appointment letter on 12.04.2017 in favour of the

petitioner. Accordingly, the petitioner submitted her joining

report on 17.04.2017 in the office of the CDPO, Remuna and

her joining report was accepted. Since then, the petitioner

has been performing her duties with utmost satisfaction of

the authority without any complaint whatsoever against her

from any quarter. While the matter stood thus, the opposite

party no.4 preferred Anganwadi appeal before the ADM,

Balasore challenging the selection of the petitioner on the

ground that she is not coming under the operational area of

Golabagad Mini Anganwadi Center. The CDPO filed a para-

wise comment denying the allegation. The petitioner also

appeared and filed her objection denying the allegation. The

CDPO in his para-wise comment stated that the petitioner is

coming under the operational area of the Center as per

report given by the Anganwadi Worker. However, the ADM,

Balasore held that the survey report is not authentic and

that the petitioner is not a resident of the operational area.

Accordingly, the appeal was allowed and the selection and

appointment of the petitioner was quashed vide order dated

21.11.2017, enclosed as Annexure-11 to the Writ Petition.

On such facts, the petitioner has approached this Court

seeking the following relief:

"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the writ petition and issue Rule NISI calling upon the Opposite Parties to show cause as to why the impugned order dt.21.11.2017 under Annexure-11 passed by Opposite Party No.2 in AWW Appeal No. 5 of 2017 shall not be quashed and if the Opposite Parties fail to show cause or show insufficient cause the Hon'ble Court may be pleased to issue a writ of certiorari quashing the impugned order

dtd.21.11.2017 passed by the Opposite Party No.2 under Annexure.-11 And pass such other order/orders as would be deem fit and proper."

2. Counter affidavit has been filed by the opposite

party nos. 1 to 3 jointly being sworn by the CDPO, Bhograi.

It is, inter alia, stated in the counter that the CDPO, Bhograi

had called for a survey report from the Anganwadi Worker of

Bagad-2 and Anganwadi Worker of Udayaganj Patna,

namely Ranjulata Sethi and Sangita Kundu respectively as

per their survey registers. They had submitted report that

the house of the petitioner's father-in-law, namely, Ramesh

Chandra Behera is at house no. 110 of Udayaganj Patna,

wherein the petitioner, her husband and her father-in-law

are living, which is within the service area as mentioned in

the advertisement dated 20.12.2016. It is further stated that

the Sub-Collector, Balasore had approved the service area of

Golabagada Mini Anganwadi Center, which was duly

checked by the concerned area lady supervisor and CDPO,

Bhograi. Nobody had challenged the matter before the

higher forum at any point of time. The opposite party no. 3

issued a letter dated 09.01.2017 inviting objection against

the applied candidates for selection of Mini Anganwadi

Worker within a period of seven days but no objections were

received regarding the qualification, service area etc. within

the scheduled date and time. However, the opposite party

no.4 challenged the service area of the petitioner by filing

Anganwadi Appeal No.5 of 2017 after lapse of three months.

It is further stated that she should have submitted such

objection before the then CDPO, Bhograi within the

scheduled date and time. It is further stated that in the

advertisement notified by opposite party No.3 it was clearly

mentioned that the house number as per survey report

submitted by the Anganwadi Worker of the concerned area

will be treated as the house number of the inhabitant of the

said area, i.e., in the village, pada, sahi but not as per the

voter list or the Gram Panchayat voter list of Udayaganj

Patna. Therefore, the petitioner is the candidate of

Udayaganj Patna Part in House No.110, which is coming

within the service area of Golabagada Mini Anganwadi

Center. It is also stated that as per the survey report of the

Anganwadi Worker of Udayaganj Patna it is clear that the

house of the petitioner's father-in-law, namely, Ramesh

Chandra Behera is at serial no.110 of Udayaganj Patna,

which is within the service area. Further, the Tahasildar has

also issued a resident certificate in favour of the petitioner

after proper enquiry by the field functionary under his

control. The certificate was placed before the selection

committee and they have accepted the same and passed

order to engage the petitioner as the Mini Anganwadi

Worker.

3. The opposite party No.4 has filed counter. It is

basically stated that the petitioner's name does not find

place in the voter list of the year 2012, 2014 and 2017. It is

asserted that the petitioner does not reside in village

Udayaganj Patna and that she had obtained the nativity

certificate only for service purpose. Neither her house comes

within the service area not the name of her father-in-law is

there in the service area. On the contrary, the house of

opposite party No.4 comes between the house of Panchu

Gopal Das and Saraswati Dutta and therefore, she belongs

to the service area. Though the petitioner has obtained the

highest marks in HSC Examination, but as she is not a

resident within the service area she does not fulfill the main

criteria laid down in the advertisement. On the contrary, the

opposite party no.4 fulfills all the criteria of the

advertisement as also the requisite qualification. The finding

of the ADM that the survey list prepared and submitted by

the lady supervisor and the CDPO, Bhograi of Udayaganj

Patna has not been authenticated as it was prepared on

pick and choose manner. Therefore, the order passed by the

ADM does not require any interference. The opposite party

no.4 has also filed an objection to the rejoinder filed by the

petitioner and to the counter filed by the opposite parties

no.1, 2 and 3. It is stated that the averments made in

paragraphs 1, 13, 14, 15 , 16, 18 and 19 of the said counter

affidavit are directly against the order of the ADM. However,

the opposite party no.3 being the CDPO has filed the

affidavit on behalf of opposite parties no.1 to 3 and the

entire averments are in support of the case of the petitioner.

Since the matter is pending adjudication before this court,

no such counter should have been filled. The opposite party

no.4 has also filed a rejoinder to the counter affidavit by the

opposite parties no.1, 2 and 3 on the same ground, more or

less.

4. Heard Mr. J.K. Khuntia, learned counsel for the

petitioner; Mr. A.K. Mohanty (A), learned counsel for

opposite party no.4; and Mr. P.K. Rout, learned Addl.

Standing Counsel for the State.

5. Mr. Khuntia has questioned the locus standi of

the opposite party no.4 to challenge the selection of the

petitioner on the ground that she being a disqualified

candidate could not have been allowed to file the Anganwadi

Appeal. Moreover she never challenged the candidature of

the petitioner during the stipulated period in which

objections were invited by the CDPO and therefore, she is

estopped from doing so at a later stage. It is further argued

that the Anganwadi Appeal is also barred by limitation and

should not have been entertained on such score alone. On

merits, it is argued by Mr. Khuntia that as per the

advertisement it is the survey number of the house which is

relevant rather than the voter list. The survey list clearly

shows the petitioner to be a resident of the service area and

therefore, she is eligible to apply for the post. According to

Mr. Khuntia, the ADM has mechanically passed the order

allowing the appeal on the ground that the survey report is

not authentic even though the CDPO, Bhograi has himself

accepted such report. Moreover, the selection committee

headed by the Sub-Collector also found no reason to

disbelieve the survey report. That apart the Tahasldar has

issued a nativity certificate in favour of the petitioner and

there is no reason whatsoever to disbelieve the same. The

finding of ADM that the petitioner is not a resident of

Udayaganj Patna is without any basis or evidence on record.

Therefore, according Mr. Khuntia, the impugned order

cannot be sustained in the eye of law.

6. Mr. P.K. Rout, learned Addl. Standing Counsel

has contended that the impugned order was passed by the

ADM and though the counter affidavit has been filed on

behalf of opposite parties no.1, 2 and 3 including the ADM,

but the same is by the present incumbent. Since the stand

originally taken by the CDPO was correct and there was no

reason to depart from it, the same was also reflected in the

counter. The State Government being a model employer is

not expected to place any fact, which is contrary to records.

Therefore, there can be no objection to the filing of the

counter affidavit on behalf of the ADM even though the

order of the ADM is under challenge. The counter affidavit

seeks to place the correct facts on record for proper

adjudication of the lis by this Court and therefore, by no

stretch of imagination can it be said that it is so filed only to

support the case of the petitioner.

7. Mr. A.K. Mohanty on the other hand, has

supported the impugned order by submitting that the

petitioner has locus standi to file the Anganwadi Appeal in

view of the fact that as per the terms and conditions of the

advertisement an under-matric candidate can also be

considered if candidates with matric qualification are not

available. Since, according to the opposite party No. 4, the

petitioner did not belong to the service area, the fact that

she had matric qualification is of no consequence and

therefore, the petitioner could not have been considered.

Such being the position, the opposite party No.4 being an

under-matric ought to have been considered as a candidate.

To such extent therefore, she has got every locus standi to

challenge the process of selection as also the appointment of

the petitioner. On merits, it is argued by Mr. Mohanty that

the name of the petitioner does not find place in any of the

voter lists beginning from 2014 which falsifies her claim of

being a resident of Udayaganj Patna. The survey report

relied upon by the CDPO cannot be considered because the

same does not bear any date nor the signature of the lady

supervisor. Therefore, the impugned order must be held to

have been passed rightly by quashing the appointment of

the petitioner and therefore, the same does not warrant any

interference whatsoever.

8. Since the question of locus standi has been raised

it would be apposite to decide the same at the outset. It is

argued by Mr. Khuntia that the opposite party no.4 was held

to be not eligible for selection and her candidature was

rejected on the ground that she did not possess the requisite

educational qualification i.e., matriculate. Therefore, as per

the settled position of law she has no locus standi to

challenge the select list. Mr. Mohanty, on the other hand,

has contended that the advertisement though stipulates

that the candidate must have educational qualification as

matriculate but it also provides that in case a matriculate

candidate is not available within the service area a

candidate having passed Class-VIII can also apply.

9. Law is well settled that only those who are eligible

or in the zone of consideration can question the legality or

otherwise of the select list as held by the Apex Court in the

case Dr. Umakanta Saran Vs. State of Bihar, reported in

1973 (1) SCC 485. This was also followed by the Apex Court

subsequently in the case of K.H. Siraj vs. High Court of

Kerala and others reported in 2006 (6) SCC 395, wherein it

was held that a candidate who is ineligible for appointment

no relief in any case can be afforded to him in any event.

There seems to be no dispute that the petitioner possesses

matric qualification while the opposite party no.4 does not.

It is claimed by opposite party no.4 that the petitioner is not

a resident of the service area and hence, her educational

qualification is of no consequence. The above argument is

fallacious and hence, not acceptable for the reason that the

advertisement provides for matriculation qualification as the

basic requirement. The fact that even a Class-VIII pass

candidate can apply is only by way of a default clause in the

event a matriculate candidate is not available within the

service area. The opposite party no.4 therefore, stakes her

claim by submitting that the petitioner does not belong to

the service area. Even assuming that the opposite party

No.4 has raised a valid point for consideration, it is to be

seen that there was another candidate, namely, Anjali Das

who had matric qualification. Therefore, leaving out the

petitioner for a moment also, it cannot be said that there

was no candidate having matriculation qualification within

the service area for the default clause to be invoked.

Therefore, the claim of opposite party No.4 cannot be

considered. It must therefore be held that the opposite party

No.4 did not have the locus standi to challenge the select list

or the appointment of the petitioner. On such score alone,

the Anganwadi Appeal filed by the opposite party No.4

deserves to be rejected as not maintainable in the eye of law.

Nevertheless, a factual question having a bearing on the

eligibility of the petitioner for the post having been raised,

this Court also deems it proper to examine the same to test

the correctness of the order passed by the ADM.

10. As it appears, the sole dispute revolves around

the question whether the petitioner belongs to the service

area or not. As has already been stated hereinbefore, the

petitioner's house, according to her, and as supported by

the survey report is at serial No. 110, which is the house of

her father-in-law. It is claimed that the petitioner, her

husband and her father-in-law reside in the said house. The

survey report prepared by the Anganwadi Worker of

Udayaganj Patna clearly shows the above fact. The CDPO

has accepted such report and has also referred to the same

in his para-wise comments submitted before the ADM in the

appeal as also in the Counter Affidavit filed before this

Court. The ADM has held the same to be not authentic only

on the ground that it does not bear the signature of the lady

supervisor. This is a hyper technical ground which cannot

be considered valid for being accepted. In the advertisement

it is clearly mentioned that the residence of the candidate

has to be reckoned with reference to the survey report as

also the Nativity certificate issued by the Tahasildar. In the

instant case, apart from the survey report as referred above,

a resident certificate has been issued by the Tahasildar.

Though Mr. Mohanty questions the same on the ground that

it does not mention whether the petitioner is a permanent

resident but simply mentions that she is 'ordinarily' a

resident of Udgayaganj Patna, this Court finds no reason to

disbelieve the same. The word 'ordinarily', according to

Chambers 21st Century Dictionary means, 'in the normal

course of events; usually; normally.' In other words, use of

the word 'ordinarily' in the Resident Certificate implies that

the petitioner usually resides there rather than anywhere

else and hence, it must be treated as the place of her

permanent residence. The above is also quite plausible

having regard to the fact that the house is of her father-in-

law. Learned ADM has not taken this fact into

consideration. The ADM has also held that the CDPO has

adopted a pick and choose method without in the least

indicating as to why such finding was rendered and on what

basis. That apart, it is positively held by him that the

petitioner is not a resident of Udayaganj Patna. Firstly, on

what basis or evidence the ADM came to such conclusion is

not known nor stated in the impugned order. Secondly, if

the ADM had a bonafide doubt as regards the authenticity of

the survey report, it could have relied upon the report of the

Tahasildar which, in turn, is based upon enquiry by the

field functionaries working under him. It is to be noted that

as per clarification issued by the Govt. in W & CD Deptt. in

their letter No. IV.ICDS.I-154/07-7161/WCD, dtd.1.3.2008,

the residential certificate issued by the Tahasildar should be

entertained. Even otherwise, the ADM could have directed

the authorities to conduct an enquiry to determine the issue

once and for all. However, the ADM appears to have acted

arbitrarily and rather whimsically in allowing the appeal and

rejecting the selection and appointment of the petitioner. For

the above reasons therefore, the impugned order cannot be

sustained in the eye of law.

11. In the result, the writ petition succeeds and is

therefore, allowed. The impugned order dated 21.11.2017

passed by the ADM, Balasore is hereby quashed.

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 6th September, 2022/ A.K. Rana, P.A.