Orissa High Court
Keki Mohan Baitharu vs Sub-Collector-Cum-Chairman on 3 January, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.A. NO. 2756 OF 2023
In the matter of an appeal under Clause 10 of the
Letters Patent of Patna High Court read with Article 4 of
the Orissa High Court Order, 1948 and Chapter-III,
Rule-6 of the Orissa High Court Rules, 1948.
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Keki Mohan Baitharu ..... Appellant
-Versus-
Sub-Collector-cum-Chairman,
District Level Selection
Committee (Jogan Sahayak),
Nuapada & others ..... Respondents
For appellant : M/s. S.K. Joshi, S.K. Sahoo
and S. Behera, Advocates
For respondents : Mr. R.N. Mishra,
Addl. Government Advocate
[Respondent Nos.1-4]
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
DECIDED ON : 03.01.2024
DR. B.R. SARANGI, ACJ. The appellant has filed this writ appeal
seeking to quash the order dated 03.11.2023 passed in
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W.P.(C) No.12588 of 2019, by which the learned Single
Judge has directed the Sub-Collector, Nuapada to
appoint respondent no.6 as Jogana Sahayak in respect
of Kirkita Gram Panchayat within a period of one month
from the date of passing of the order.
2. The factual matrix leading to filing of this
writ appeal, in brief, is that pursuant to the
advertisement dated 16.04.2015 issued by respondent
no.1 for the post of Jogana Sahayak, on contractual
basis, in respect of Kirkita Gram Panchayat under
Khariar Panchayat Samiti in the district of Nuapada,
the appellant submitted his application form along with
all the required documents, including the residential
certificate, which was acknowledged by the authority.
But, on scrutiny of the applications, the appellant's
application was rejected on the ground "Copy of
Residential Certificate not submitted", as mentioned in
the remark column of the list of applicants whose
applications are rejected due to over age, under age and
non-submission of documents, as has been placed in
the proceedings of the District Level Selection
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Committee Meeting held on 30.09.2015 for selection of
Jogan Sahayak in the Office Chamber of Civil Supplies,
Nuapada.
3. Mr. S.K. Joshi, learned counsel appearing for
the appellant contended that since the application form
submitted by the appellant, which contained the
residential certificate, was accepted by the respondent-
authority and at no point of time the appellant was
informed/indicated that his application form was
defective due to non-submission of residential
certificate, subsequent rejection thereof cannot be
sustained in the eye of law. It is further contended that
once the application form of the appellant was
acknowledged to be in order, the same could not have
been rejected subsequently on the ground of non-
availability of the residential certificate. It is further
contended that residential certificate of the appellant
was removed by one Nanda Kishore Tandi, the then
Head Clerk in the office of the Civil Supplies Officer
(CSO), Nuapada in order to accommodate his own
candidate-respondent no.6. Without considering the
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very vital aspect of the matter, learned Single Judge has
passed the impugned order dated 03.11.2023 in W.P.(C)
No.12588 of 2019. Therefore, the appellant seeks for
interference of this Court.
4. Mr. R.N. Mishra, learned Additional
Government Advocate appearing for the State-
respondents vehemently contended that the appellant
has tried to make out a new case by preferring appeal.
Merely because the appellant's application form was
received/acknowledged, that does not indicate that he
had submitted residential certificate at the time of
submission of application form. If the application form
was received by the respondent-authority by giving
acknowledgement, no inference can be drawn that the
appellant had submitted residential certificate, as has
been stated in the memo of appeal. Rather, on receipt of
the applications, when scrutiny was made, it was found
that the application form submitted by the appellant
was incomplete one. As such, the allegation made, that
one Nanda Kishore Tandi, the then Head Clerk of the
office of the CSO, Nuapada has removed the residential
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certificate, is based on surmises and conjecture. It is
also contended that the said Nanda Kishore Tandi was
not made as a party to the writ petition. Therefore, the
contention of the learned counsel for the appellant, that
due to removal of residential certificate from the
application form the appellant was not considered for
selection, cannot be sustained in the eye of law. It is
further contended that whether the said Nanda Kishore
Tandi, the then Head Clerk in the office of the CSO,
Nuapada has removed the residential certificate or not,
is also a disputed question of fact, which cannot be
resolved under writ jurisdiction in exercise of the power
under Article 226 of the Constitution. Therefore, it is
contended that the learned Single Judge is well justified
in passing the order impugned which does not require
interference of this Court.
5. This Court heard Mr. S.K. Joshi, learned
counsel appearing for the appellant and Mr. R.N.
Mishra, learned Additional Government Advocate
appearing for the State-respondents in hybrid mode.
The pleadings have been exchanged between the parties
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and with the consent of learned counsel for the parties,
the writ appeal is being disposed of finally at the stage
of admission.
6. There is no dispute with regard to the fact
that engagement of Jogana Sahayak was made by
following the guidelines issued on 21.04.2012 by the
Government of Odisha in Food Supplies and Consumer
Welfare Department, wherein procedure for appointment
of Jogana Sahayak (JS) by the Gram Panchayats has
been prescribed to the following effect:-
"Procedure for Appointment of Jogana
Sahayak (JS) by G.Ps
The GPs shall make a resolution in their
meeting to appoint a JS if they are dealing
with at least 150 Q of PDS items (Rice, Wheat
& Sugar) in a month. The resolution also
indicate the amount of honorarium for the JS
(between Rs.3500 to Rs.4000/-). This
resolution shall be sent to their BDO. The BDO
shall collect all such resolutions from GPs and
make a common advertisement inviting
applications from interested candidates. The
eligibility condition shall be as under
1.The candidate should be a permanent
resident of GP.
2. He/She should be graduate (+3).
3. He/She should be of age between 21 to
35 years.
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The selection will be based on the career
making with weight-age for matriculation
being 30% for +2 being 30% & for +3 being
40%. A committee under chairmanship of BDO
with MMS as convener and concerned
Sarpanch of GP member will do the selection
& provide the panel of 3 names to the
concerned GP for appointment of the 1st
position (scoring highest marks) as J.S.
If no graduate is available, then re-
advertisement shall be made for selecting form
amongst +2 pass applicants of the concerned
GP.
The resolution by GPs may be done by 15th of
May, 2012 & selection by Block may be
completed by 15th of June, 2012."
7. A bare perusal of the aforementioned
procedure would go to show that Gram Panchayats shall
make resolutions in their meeting to appoint Jogana
Sahayaks if they are found to be dealing with at least
150 PDS items (Rice, Wheat & Sugar) in a month. The
resolutions shall indicate that Jogana Sahayaks shall be
paid an amount of honorarium between Rs.3500/- to
Rs.4000/-. The resolutions shall be sent to the
respective BDOs, who, on collection of all such
resolutions from GPs, shall make a common
advertisement inviting applications from interested
candidates. The eligibility criteria required that the
candidate should be a permanent resident of GP and he
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or she should be a graduate (+3) and he or she should
be of age between 21-35 years. The selection will be
based on the career marking with weightage of 30% for
matriculation, 30% for +2 & 40% for +3. The committee
under the chairmanship of the BDO constituted with
MMS as the convener and concerned Sarpanch of GP as
member, would conduct the selection & provide the
panel of 3 names to the concerned GP for appointment
of the 1st position (scoring highest marks) as Jogana
Sahayak. If no graduate is available, then re-
advertisement shall be made for selecting from amongst
+2 pass applicants of the concerned GP.
8. This being the procedure prescribed under
the guidelines, an advertisement was issued on
16.04.2015 for filling up of the vacancy of Jogana
Sahayak in respect of Kirkita Gram Panchayat under
Khariar Panchayat Samiti in the district of Nuapada. As
per the advertisement, the age of the candidate would be
21-35 years as on 02.01.2015. Satisfying all the
requirement of the advertisement, the appellant
submitted his application form, which was also
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acknowledged by the authority. But, in the proceeding of
the District Level Selection Committee meeting
comprising of Sub-Collector, Nuapada, District
Panchayat Officer, Nuapada, District Employment
Officer, Nuapada and Civil Supplies Officer, Nuapada,
the Member Convener for selection of Jogana Sahayak
held on 30.09.2015 in the Office Chamber of Civil
Supplies, Nuapada examined the documents submitted
along with the application form of the appellant. It was
found that the appellant had not produced residential
certificate, as required for engagement of Jogana
Sahayak. Therefore, the application of the appellant was
rejected.
9. Against the order of rejection of his
candidature, the appellant approached this Court by
filing W.P.(C) No.12588 of 2019. Learned Single Judge,
vide order dated 03.11.2023, while disposing of the said
writ petition came to a conclusion in paragraph-8, which
reads as follows:
"8. Considering the submission of both the
parties and since the Opposite Party No.6 has
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been finally selected for the post of Jogana
Sahayak through a proper selection process
and his name has been recommended under
Annexure-10, this Court is of the view that the
Opposite Party No.6 is the suitable candidate
for the post of Jogana Sahayak. Accordingly,
the Opposite Party No.1/Sub-Collector,
Nuapada is directed to appoint the Opposite
Party No.6 as Jogana Sahayak in respect of
Kirkita Gram Panchayat within a period of one
month from today."
10. Aggrieved by the order passed by the learned
Single Judge directing to issue engagement order in
favour of respondent no.6, the appellant has preferred
this writ appeal specifically urging that though the
appellant had submitted his application form enclosing
all the documents, including the residential certificate,
the same was rejected illegally on the ground of non-
submission of residential certificate. It is contended that
the appellant had submitted the residential certificate
along with the application form, but at the instance of
Mr. Nanda Kishore Tandi, the then Head Clerk in the
office of the CSO, Nuapada, the residential certificate of
the appellant was removed. Thereby, the selection
committee disqualified the appellant. As such, this is a
disputed question of fact, which could not have been
resolved by the learned Single Judge while entertaining
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the writ petition. Apart from the same, the pleadings of
the writ petition do not indicate that the appellant had
urged this question before the learned Single Judge for
consideration. But, after filing of the counter affidavit,
while answering the same, the appellant filed rejoinder
affidavit and for the first time he urged the said question
in paragraph-3 of the said rejoinder affidavit, which
reads as follows:
"3. That it is humbly submitted that
pursuant to the advertisement dtd.16.04.2015
issued by the CSO, Nuapada for selection and
appointment of Jogana Sahayak of different
Gramapanchayat under five different Blocks
in the District of Nuapada, and so far Kirkita
G.P. under Khariar Panchayat Samiti the
petitioner along with others applied for the
said post within the cut-off date, and since the
petitioner is having the requisite qualification
and other wise eligible for the said post and
vide Annexure-7, page-31 the petitioner along
with the application form submitted the entire
documents along with the resident certificate
but reason best known to the authority from
the documents submitted by the petitioner the
resident certificate was removed at the
instance of one Nanda Kishore Tandi the then
Head Clerk office of C.S.O., Nuapada in order
to accommodate his own man i.e. O.P. No.6."
Therefore, the name of Nanda Kishore Tandi, the then
Head Clerk in the office of the CSO, Nuapada was
brought for the first time by way of rejoinder affidavit by
the appellant. If the appellant raised allegation against
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the said Nanda Kishore Tandi, he could have impleaded
him as a party to the writ petition and, as such, the writ
petition suffers from non-joinder of party against whom
the appellant raised allegation of removal of residential
certificate from his application form, which is a serious
issue and the same is required due adjudication by
approaching the appropriate forum. More so, the learned
Single Judge has not dealt with this issue in the
impugned order. For the purpose of clarity, paragraphs-
5, 7 & 8 of the order are extracted hereunder:
"5. It is pertinent to mention here that the
Residential Certificate submitted by the
Petitioner was removed by one Nanda Kishore
Tandi, the then Head Clerk in the office eof the
C.S.O., Nuapada in order to accommodate his
candidate i.e. the Opposite Party No.6."
xxx xxx xxx
7. Learned counsel for the Opposite Party No.6
submits that though the Opposite Party
No.1/Sub-Collector, Nuapada has issued the
letter dated 16.07.2019 under Annexure-10 to
the B.D.O, Khariar directing him/her to
instruct the Sarpanch of Kirkita Grama
Panchayat to issue an order of engagement in
favour of the Opposite Party No.6, till date the
Sarpanch of Kirkita Gram Panchayat has not
allowed the Opposite Party No.6 to join in the
post of Jogana Sahayak as the present
Petitioner has obtained an order of stay of o
operation of the letter dated 16.07.2019 under
Annexure-10 from this Court vide order, dated
31.07.2019, which impeded the selection
procedure till date.
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8. Considering the submission of both the
parties and since the Opposite Party No.6 has
been finally selected for the post of Jogana
Sahayak through a proper selection process
and his name has been recommended under
Annexure-10, this Court is of the view that the
Opposite Party No.6 is the suitable candidate
for the post of Jogana Sahayak. Accordingly,
the Opposite Party No.1/Sub-Collector,
Nuapada is directed to appoint the Opposite
Party No.6 as Jogana Sahayak in respect of
Kirkita Gram Panchayat within a period of one
month from today."
11. In view of such position, when serious
allegation has been made by the appellant that Mr.
Nanda Kishore Tandi is responsible for his
disqualification by removing his residential certificate
from the application form, which is a disputed question
of fact, the writ court could not have entertained the writ
petition. Therefore, the learned Single Judge has
committed gross error apparent on the face of the record
and as a consequence thereof, the order dated
03.11.2023 passed in W.P.(C) No.12588 of 2019 cannot
be sustained in the eye of law. Furthermore, if the
appellant's case is that his residential certificate was
removed from his application form by Mr. Nanda Kishore
Tandi, he should have made such allegation at the first
instance while filing the writ petition. Making of such
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allegation subsequently after filing of the writ petition
would amount to suppression of material fact before the
writ Court. Thereby, the writ petition suffered from
suppression of material facts.
11.1. In S.J.S. Business Enterprises (P) Ltd v.
State of Bihar, (2004) 7 SCC 166, the apex Court at
paragraph-13 of the judgment observed that as a
general rule, suppression of a material fact by a litigant
disqualifies such litigant from obtaining any relief. The
suppressed fact must be a material one in the sense
that had it not been suppressed it would have had an
effect on the merits of the case. It must be a matter
which was material for the consideration of the Court,
whatever view the Court may have taken.
11.2. In Pushpam Pharmaceutials Co. v.
Collector of Central Excise, 1995 Supp(3) SCC 462,
while considering the provision of Section 11-A of
Central Excise & Salt Act, the apex Court held that the
expression 'suppression of fact' is to be construed
strictly because it has been used in company of such
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strong words as fraud, collusion or willful default. It
does not mean omission. The act may be deliberate.
11.3. In Collector of Custorms v. Tin Plate Co. of
India Ltd., (1997) 10 SCC 538, while considering
Section 28 (1) of Customs Act, the apex Court held that
the expression 'suppression of facts' would mean a
deliberate or conscious omission to state a fact with the
intention of deriving wrongful gain.
12. Furthermore, the conduct of the appellant is
suspicious, as he has not approached this Court with
clean hands. Thereby, he is not entitled to get any relief,
as he has not approached this Court with clean hands.
12.1. In State of Haryana v. Karnal Distillery,
AIR 1977 SC 781, the apex Court refused to grant relief
on the ground that the applicant had misled the Court.
12.2. In Chancellor v. Bijayananda Kar, AIR
1994 SC 579, the apex Court held that a writ petition is
liable to be dismissed on the ground that the petitioner
did not approach the Court with clean hands.
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12.3. Taking into consideration the above
judgments, this Court, in Netrananda Mishra v. State
of Orissa, 2018 (II) OLR 436, came to a conclusion in
paragraph-26 of the said judgment and held as under:-
"...........For suppression of facts and having not
approached this Court with a clean hand, the
encroacher is not entitled to get any relief,
particularly when the valuable right accrued in
favour of the petitioner is being jeopardized for
last 43 years for no fault of him, on which this
Court takes a serious view............"
Therefore, applying the above ratios to the present case,
this Court is of the considered view that the petitioner
has not approached this Court with clean hands. The
said ratios have also been taken note of by this Court in
the case of State of Odisha and others v. Lalat
Kishore Mohapatra and Anr., 2022 (Supp.) OLR 970.
13. In view of the discussions made above, this
Court is of the considered view that since the appellant
has approached this Court by suppressing the material
facts and without any clean hands, the writ appeal filed
by the appellant is not maintainable. As such, the
learned Single Judge has committed gross error in not
dealing with such question while passing the order
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impugned. As a consequence thereof, the order dated
03.11.2023 passed by the learned Single Judge in
W.P.(C) No.12588 of 2019 is set aside.
14. In the result, the writ petition and the writ
appeal stand dismissed. However, there shall be no
order as to costs.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 3rd January, 2024, Alok
