Orissa High Court
Pravasini Mohanty vs State Of Odisha on 30 November, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
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
---------------
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 ... Appellant
-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
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
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 20.11.2023 :: Date of Judgment : 30.11.2023
J UD G M 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
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
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
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
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.
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.
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
of 2015, challenging the Order dated 08.05.2015 passed
by the Collector, Puri, which came to be disposed of vide
Order dated 30.01.2018 with the following observation:
"Hearing the rival contentions of 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
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.
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 taken in 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
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
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.
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
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
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
Shri J. Digal, IAS
Director, Social Welfare
To
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.
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 ... Member
(3) A.N.M. in-charge of
the area ... 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."
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.
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
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
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
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,
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].
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
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:
"6. Brief background short of unnecessary details is
quoted hereunder for convenience of ready
reference:
***
ii. In the said Writ Petition counter affidavit was
(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 review petitioner whose
appointment was under challenge in the said
writ petition was cited as Opposite Party No.5.
iv. Opposite Party No.5 did not choose to file any
counter affidavit nor participated in the
hearing.
***
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;
***
'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.
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
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
purpose of the meeting could not be
materialised and consequently decision was taken
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
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
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,
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
Court and there is absolutely no scope for
entertaining such issues in a writ appeal."
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
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
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
held that the special leave petition is not
maintainable. Following was held in paragraphs 29
to 32:
'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
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
basic judgment is not assailed and the
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.
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
and this consistency can never be
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.
These rules and principle are based on
public policy. ***"
32. In view of the aforesaid analysis, the
submission of Mr. Gulati that all 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.'
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
petition is not challenged can be easily
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."
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,
pleadings are expressed in words which may not
expressly make out a case in accordance with strict
interpretation of law. In such a case it is the duty of the
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
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
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
ground of Resolution dated 30.01.2010 being
manipulated."
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.
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
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
30.01.20120 a group of people raised objection in
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.
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
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
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:
"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 Government not to fill up 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."
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
candidates are found fit, the successful candidates
acquire an indefeasible right to be appointed which
cannot be legitimately denied. Ordinarily 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 State is bound to respect the
comparative merit of the candidates, as reflected at
the recruitment test, and no discrimination can be
permitted. This correct position has been
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."
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
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
appointed. He in terms of Article 16 of the
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:
'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
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:
"Considering the contentions raised by learned counsel
for the parties and after going through the records,
admittedly pursuant to advertisement issued, the
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
challenge the same, which is not permissible in view of
law laid down by the apex Court in Om Prakash Vrs.
Akhilesh Kumar, AIR 1986 SC 1043; Union of India Vrs.
S. Vinod Kumar, AIR 2008 SC 5 and K.H. Siraj Vrs. High
Court of Kerala, 2006 SC 2339."
10.12. Keeping in mind unequivocal proposition of law
that selection of candidate does not entail indefeasible
right to claim for engagement, so as to compel the Court
to issue writ of mandamus, the contention of Sri Santosh
Kumar Pattanaik, learned Senior Advocate for allowing
writ appeal by vacating Judgment dated 05.05.2022
does not stand to reason and, hence, is repelled. In
effect, in view of aforesaid dicta, there is no scope for
issue of writ of mandamus to the opposite party-
authority to engage Pravasini Mohanty-appellant by
considering her a candidate falling with the ken of
Clause 1(v) of the Guidelines, dated 24.11.1997.
11. It is next argued that this Court is required to weigh the
balance in favour of the appellant by considering the
term "preference" as contained in Clause 1(v) of the
Guidelines dated 24.11.1997. Valiant attempt has been
made on behalf of the appellant to convince that the
selection of Pravasini Mohanty to be engaged as AWH in
the Mahila Sabha Meeting held on 30.01.2010 was on
the basis of the fact that preference in selection was
required to be given to "separated" woman candidate in
view of Clause 1(v) of the Guidelines referred to above.
Therefore, it was posed that there was no necessity to
conduct interview/viva voce and even though Pravasini
Mohanty appeared, she should have been given
preference to Sukanti Nayak, who has stated to have
secured highest marks.
11.1. This Court, therefore, ventures to ascertain the purport
of the term "preference".
11.2. In Sher Singh Vrs. Union of India, AIR 1984 SC 200 =
(1984) 1 SCC 107, the Supreme Court examined the
provisions of Section 47(1) of the Motor Vehicles Act,
1939, providing for preference to the State Transport
Undertaking by grant of permit and explained the
meaning of 'preference' as under:
"The expression 'preference' amongst others means prior
right, advantage, precedence etc. But how would it be
possible to give precedence one over the other? It signifies
that other things being equal, one will have preference
over the others. Preference in this context would mean
that with things generally appearing to be qualitatively
and quantitatively equal though not with mathematical
accuracy, statutory provision will tilt the balance in favour
of the Undertaking."
11.3. In Executive Officer Vrs. E. Tirupalu, AIR 1996 SC 1311 =
(1996) 8 SCC 253 = (1996) 3 SCR 904, the Supreme
Court held that where rules provide for preference to a
particular class of candidates, that preference under the
Rules cannot be applied irrespective of the merit of
candidates, the inmates have to be given appointment. It
means that the merit of the candidates being equal,
preference would be given to the inmates of the class
which is to be given preferential right and it certainly
does not mean an automatic appointment without
considering the cases of other candidates. Therefore,
even if the rules provide for preferential right, candidates
having such subjects would have preferential right only
when they compete with other candidates and are found
on equal footings, otherwise not.
11.4. In Secretary, Andhra Pradesh Public Service Commission
Vrs. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341 = AIR 2003
SC 3961 = 2003 AIR SCW 2851, it has been summarized
as follows:
"The 'preference' envisaged in the Rules, in our view,
under the scheme of things and contextually also cannot
mean, an absolute en bloc preference akin to reservation
or separate of complete precedence. *** It is not to be
viewed as a preferential right conferred even for taking up
their claims for consideration. On the other hand, the
preference envisaged has to be given only when the
claims of all candidates who are eligible are taken for
consideration and when any one or more of them are
found equally positioned, by using the additional
qualification as a tilting factor, in their favour vis-a-vis
others in the matter of actual selection."
11.5. In State of Uttar Pradesh Vrs. Om Prakash, AIR 2006 SC
3080 = 2006 AIR SCW 4281, the Supreme Court held
that, the word 'preference' would mean that when the
claims of all candidates who are eligible and who
possess the requisite educational qualification
prescribed in the advertisement are taken for
consideration and when one or more of them are found
equally positioned, then only the additional qualification
may be taken as a tilting factor, in favour of candidates
vis-à-vis others in the merit list prepared by the
Commission. But 'preference' does not mean en bloc
preference irrespective of inter se merit and suitability.
In view of the above, it is evident that question of giving
preference would arise provided the person claiming
preference stands on equal footing with others,
otherwise not. Similar view may be found in Abdul
Hameed Vrs. Union of India, (2017) 16 SCC 346).
11.6. Similarly, the appellant and the respondent No.5 got
fairness in consideration of their respective merit and
the Selection Committee being experts in the field, their
decision cannot be lightly brushed aside. In National
Institute of Mental Health and Neuro Sciences Vrs. Dr. K.
Kalyana Raman, 1992 Supp. (2) SCC 481 it has been
held as follows:
"7. We will first consider the second point. In the first
place, it must be noted that the function of the
Selection Committee is neither judicial nor
adjudicatory. It is purely administrative. The High
Court seems to be in error in stating that the
Selection Committee ought to have given some
reasons for preferring Dr. Gauri Devi as against the
other candidate. The selection has been made by
the assessment of relative merits of rival
candidates determined in the course of the
interview of candidates possessing the required
eligibility. There is no rule or regulation
brought to our notice requiring the Selection
Committee to record reasons. In the absence of
any such legal requirement the selection made
without recording reasons cannot be found
fault with. The High Court in support of its
reasoning has however, referred to the decision of
this Court in Union of India v. Mohan Lal Capoor,
(1973) 2 SCC 836 = (1974) 1 SCR 797. That decision
proceeded on a statutory requirement. Regulation
5(5) which was considered in that case required the
Selection Committee to record its reasons for
superseding a senior member in the State Civil
Service. The decision in Capoor case, (1973) 2 SCC
836 = (1974) 1 SCR 797 was rendered on September
26, 1973. In June 1977, Regulation 5(5) was
amended deleting the requirement of recording
reasons for the supersession of senior officers of the
State Civil Services. The Capoor case, (1973) 2 SCC
836 = (1974) 1 SCR 797 cannot, therefore, be
construed as an authority for the proposition that
there should be reason formulation for
administrative decision. Administrative authority is
under no legal obligation to record reasons in
support of its decision. Indeed, even the principles of
natural justice do not require an administrative
authority or a Selection Committee or an examiner to
record reasons for the selection or non-selection of a
person in the absence of statutory requirement. This
principle has been stated by this Court in R.S.
Dass Vrs. Union of India, 1986 Supp SCC 617, in
which Capoor Case, (1973) 2 SCC 836 = (1974) 1
SCR 797 was also distinguished.
8. As to the first point we may state at the outset that
giving of reasons for decision is different from, and
in principle distinct from, the requirements of
procedural fairness. The procedural fairness is the
main requirement in the administrative action. The
'fairness' or 'fair procedure' in the administrative
action ought to be observed. The Selection Committee
cannot be an exception to this principle. It must take
a decision reasonably without being guided by
extraneous or irrelevant consideration. But there is
nothing on record to suggest that the Selection
Committee did anything to the contrary. The High
Court however, observed, that Dr. Kalyana Raman
did not receive a fair and reasonable consideration
by the Selection Committee. The inference in this
regard has been drawn by the High Court from the
statement of objections dated February 18, 1980
filed on behalf of the Selection Committee. It appears
that the Selection Committee took the stand that Dr.
Kalyana Raman did not satisfy the minimum
requirement of experience and was not eligible for
selection. The High Court went on to state that it
was somewhat extraordinary for the Selection
Committee after calling him for the interview and
selecting him for the post by placing him second, to
have stated that he did not satisfy the minimum
qualifications prescribed for eligibility. According to
the High Court the stand taken by the Selection
Committee raises serious doubts as to whether the
deliberations of the Selection Committee were such
as to inspire confidence and reassurance as to the
related equality and justness of an effective
consideration of this case. It is true that selection of
the petitioner and the stand taken by the Selection
Committee before the High Court that he was not
eligible at all, are, indeed, antithetical and cannot
co-exist. But the fact remains that the case of Dr.
Kalyana Raman was considered and he was placed
second in the panel of names. It is not shown that
the selection was arbitrary or whimsical or the
Selection Committee did not act fairly towards Dr
Kalyana Raman. The fact that he was placed second
in the panel, itself indicates that there was proper
consideration of his case and he has been treated
fairly. It should not be lost sight of that the Selection
Committee consisted of experts in the subject for
selection. They were men of high status and also of
unquestionable impartiality. The Court should be
slow to interfere with their opinion."
11.7. It is a settled position of law that when a Selection
Committee recommends the selection of a person, the
same cannot be presumed to have been done in an
erroneous or mechanical manner in the absence of any
allegation of favouritism or bias. That a presumption
arises as regards the correctness of the decision of a
Selection Committee and the party who makes the
allegation of bias or favouritism is required to prove the
same. Thus, in the absence of mala fides against the
members, selection by a Selection Committee cannot be
doubted. Reliance can be had on Union of India Vrs.
Bikash Kuanar, (2006) 8 SCC 192; Sadananda Halo Vrs.
Momtaz Ali Sheikh, (2008) 4 SCC 619; University of
Mysore Vrs. C.D. Govinda Rao, (1964) 4 SCR 575.
11.8. The last limb of argument of Sri Santosh Kumar
Pattanaik that in view of the term "preference" contained
in Clause 1(v) of the Guidelines dated 24.11.1997 for
selection of AWH, appellant-Pravasini Mohanty, being
"separated", should have been preferred to the
engagement of Sukanti Nayak-respondent No.5,
therefore, fails inasmuch as the latter has secured
highest marks amongst the candidates appeared before
the Selection Committee at Project Headquarters and the
appellant having not obtained same marks, she cannot
claim to have been on the same footing with Sukanti
Nayak and hence, the consideration of "preference" does
not arise at all in the facts and circumstances of the
case.
11.9. It is, thus, observed that as there was resentment at the
stage of selection of AWH in the Mahila Sabha Meeting
dated 30.01.2010, the decision to conduct interview/
viva voce at Headquarter by Selection Committee on a
later date is to ensure fairness in the selection by
adopting fair procedure and to avoid possible bias. In
view of well-settled legal position, this Court does not
find any infirmity in the Judgment dated 05.05.2022 of
the learned Single Judge while disposing of W.P.(C)
No.7322 of 2020 filed at the behest of respondent No.5.
12. Referring to written note of submission dated
07.10.2022, Sri Santosh Kumar Pattanaik, learned
Senior Advocate proffered to explain that validity of
Order dated 20.01.2020 of the Collector, Puri was
required to be gleaned through reasons contained
therein; but the learned Single Judge based his decision
heavily on the version of the opposite party No.2 to 4 in
the counter affidavit. In this regard, he has placed
reliance on the legal position enunciated in
Commissioner of Police Vrs. Gordhandas Bhanji, AIR
1952 SC 16; Pancham Chand Vrs. State of Himachal
Pradesh, AIR 2008 SC 1888 wherein the principle laid
down in Mohinder Singh Gill Vrs. Chief Election
Commissioner, AIR 1978 SC 851 = (1978) 1 SCC 405, has
been referred to.
12.1. As opposed to such contention, it has already been
discussed that the learned Single Bench while
proceeding with the matter for hearing in W.P.(C)
No.7322 of 2020, none appeared to support the case of
the appellant, despite Sri Bhaskar Samantaray,
Advocate filed Vakalatnama executed by her nor did she
file any counter affidavit. However, the Collector, Puri
observed that the decision to conduct viva voce test at
Project Headquarter by the Selection Committee was an
afterthought, which has been found by the learned
Single Judge to have been without any cogent material
on record. Meticulous examination of Annexure-2 and
Annexure-4 shows that certain sentence(s) has been
erased while taking photocopy of the document. It
appears such a fact does not have any bearing on
judging the merit of the matter as the appellant-
Pravasini Mohanty has made representation on
23.04.2010 and participated in the selection process by
attending the viva voce test on 23.04.2010. For the sake
of consideration of dispute, if such a contention of the
appellant is accepted, though not found to be true,
whether selection was made on 30.01.2010, or pursuant
to viva voce test held on 23.04.2010, the contents of
Resolution dated 30.01.2010 lost its significance on
account of participation of Pravasini Mohanty, Sukanti
Nayak and Bharati Panda in said interview/viva voce
test. As long as constitution of the Selection Committee
is not questioned, and mala fide or bias of any of the
members of the Selection Committee is not pleaded with
cogent reason and by placing germane material by
impleading them as parties to the proceeding, the
Judgment dated 05.05.2022 of the learned Single Judge
cannot be said to be perverse.
12.2. At the cost of repetition, this Court observes that having
participated in the viva voce test on 23.04.2010, the
appellant could be stated to be sanguine about her
rights. Therefore, no prejudice being manifestly attached
in holding viva voce test on 23.04.2010 by duly
constituted Selection Committee, mere allegation of
tampering the document would not suffice for this
Court, while considering meat of the matter, to reopen
the issue, which was never before the learned Single
Judge who considered merit of the writ petition being
W.P.(C) No.7322 of 2020 based on material placed before
him.
12.3. The Judgments cited at the Bar in the present context
has no application to the peculiar facts and
circumstances of the present case.
CONCLUSION & DECISION:
13. The foundation to lay writ appeal as advanced by Sri
Santosh Kumar Pattanaik, learned Senior Counsel,
appears to be that since the appellant-Pravasini
Mohanty, separated woman, was considered for
engagement as AWH in the Meeting of Mahila Sabha
held on 30.01.2010, her engagement should not have
been disturbed despite interview/viva voce conducted on
23.04.2010 by the Selection Committee at the
Headquarters as her case fell within purview of Clause
1(v) of the Guidelines dated 24.11.1997. He forcefully
argued that addition of the sentence at the end of the
Resolution dated 30.01.2010 is calculated to manipulate
the said document would vitiate entire process of
selection, which fact could have been appreciated by the
learned Single Judge. From the pleadings and
discussions made above what is perceived by this Court
is that even if addition is considered as "afterthought",
as held by the Collector, Puri, subsequent participation
in the process of selection on 23.04.2010 by attending
the interview/viva voce test, the appellant has waived
her alleged selection on 30.01.2010 and she is estopped
from raising such a plea later on by way of seeking
review of Judgment dated 05.05.2022 of the learned
Single Judge, more so when she neither brought on
record such fact by way of filing counter affidavit nor
was it argued on 05.05.2022 at the time of hearing.
13.1. Further, germane factor at issue is considered by this
Court is that in the interview/viva voce test the Selection
Committee found Sukanti Nayak-respondent No.5
suitable for engagement as AWH having secured highest
marks in comparison to Pravasini Mohanty-appellant
and Bharati Panda. It is pertinent to take notice of the
fact that all these candidates, who participated in the
interview before the Selection Committee, never denied
to have received notice. Having participated in the
interview, the candidates including the appellant
accepted the decision of the Selection Committee to hold
test at Headquarters. Having not alleged or established
mala fide nor bias on the part of the members of the
Selection Committee or the constitution of said
Committee by the appellant, mere allegation that there
was addition of sentence(s) indicating intention to
conduct interview on a later date would not tend to
vitiate the process of selection which has been
conducted with all fairness. Furthermore, as the fact of
disturbance caused by afew during or in the course of
Meeting of Mahila Sabha held on 30.01.2010 in
connection with selection of AWH is not denied, for
maintaining transparency in the selection, if the duly
constituted Selection Committee rescheduled the
selection to be conducted at Project Headquarters in
terms of "Procedure for Selection" envisaged at Clause 2
of the Guidelines issued by the Government in Women &
Child Development Department, dated 24.11.1997, and
pursuant thereto considering the marks awarded to
three candidates including the appellant, who attended
the interview, at this stage the appellant cannot turn
around to say that the Resolution dated 30.01.2010 was
tampered. Such fact has no bearing on conducting
transparent selection process as undertaken by the
Selection Committee at the Project Headquarters on
23.04.2010.
13.2. The alleged manipulation in the Resolution dated
30.01.2010, which was raised for the first time by way of
review petition being RVWPET No.140 of 2022, without
setting up such plea before the learned Single Judge in
W.P.(C) No.7322 of 2020, is not tenable. Further, record
relating to writ petition reveals that after the notice
issued to Pravasini Mohanty of Bishimatri of Bhodar,
Nimapada from the registry of this Court returned
unserved with postal remark "Addressee refused. Hence
returned to sender", the appellant even though entered
appearance through Sri Bhaskar Samantaray, Advocate,
on 19.10.2020, remained non-responsive by not
preferring to file counter affidavit. That apart, the
learned Advocate for the appellant also remained absent
during the hearing of writ petition on 05.05.2022. After
Judgment is delivered on said date, the appellate sought
for review of the same, by setting out new plea that
Resolution dated 30.01.2010 of Mahila Sabha is
manipulated, which the learned Single Judge refused to
accept on the ground of no error apparent on the face of
the record. In this writ appeal also the prayer is silent
about assailing the Judgment dated 23.06.2022;
whereas only prayer is made to set aside Judgment
dated 05.05.2022 rendered in W.P.(C) No.7322 of 2020,
where the plea of manipulation of said Resolution dated
30.01.2010 is absent. As the appellant took part in the
interview along with respondent No.5 and Bharati
Panda, she is estopped from questioning the subsequent
decision of Selection Committee on the basis of interview
held on 23.04.2010. Such conduct of the appellant is
tell-tale to infer that the appellant-Pravasini Mohanty
has been pursuing luxury litigation.
13.3. It is also noteworthy that the contention of the appellant
that at any rate, the Selection Committee should have
considered her candidature for engagement as AWH,
notwithstanding highest marks secured by Sukanti
Nayak, since "preference" is to be given to her, being
separated woman, in terms of Clause 1(v) of the
Guidelines dated 24.11.1997, cannot be countenanced
in law. Inasmuch as the performance of the appellant-
Pravasini Mohanty in the viva voce test could not be
equated with that of the respondent No.5-Sukanti
Nayak, in view of well settled interpretation of the word
"preference" in service jurisprudence, the writ appeal
does not deserve merit consideration.
13.4. In the wake of the above analysis and for all the reasons
ascribed in the foregoing paragraphs with discussions,
the impugned Judgment dated 05.05.2022 of the
learned Single Judge in W.P.(C) No.7322 of 2020 does
not warrant interference.
14. The Court finds no reason to show indulgence in the
decision taken by the learned Single Judge as the
appellant could not succeed in persuading this Court by
showing any procedural irregularity being committed in
the writ proceeding. No illegality being pointed out in
taking up the matter in writ petition for hearing and
delivering the Judgment on 05.05.2022 vis-à-vis material
available on record relating to writ petition, there is no
merit in the writ appeal.
15. The Judgment dated 05.05.2022 of the learned Single
Judge rendered in W.P.(C) No.7322 of 2022 is found to
have support of both in law as well as on facts. Thus,
interference therefor is uncalled for.
16. In fine, the writ appeal, sans merit, stands dismissed
and the pending application, if any, is accordingly
dismissed in the above terms, without any order as to
costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, ACJ. I agree.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Orissa High Court, Cuttack
The 30th November, 2023//MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: SENIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 30-Nov-2023 18:05:21
