Orissa High Court
Niharika Sahar vs Collector on 5 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 6093 of 2021
(An Application under Articles 226 & 227 of the Constitution
of India)
---------------
Niharika Sahar ...... Petitioner
-Versus-
Collector, Mayurbhanj .... Opposite Parties
Advocate(s) appeared in this case:-
________________________________________________
For Petitioner : Mr. B.C.Panda,
Advocate
For Opp. Party : Mr. S.N.Pattnaik,
AGA
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
5th February, 2025
SASHIKANTA MISHRA, J.
The petitioner has approached this Court with the
following prayer;
"It is therefore prayed that this Hon'ble Court, may
graciously be pleased to admit the writ petition, issue notice
to the opp. Parties, call for the LCR and after hearing the
counsels for parties be pleased to set aside the order dated
09.11.2020 and 10.11.2020 passed by the Sub-Collector,
Panchapir, Karanjia/ Opp. Party No.2;
And pass appropriate order directing the Opposite Party
No.3 to give appointment to the present petitioner as she has
secured highest mark as per the Advertisement dtd.
15.11.2018.
And to pass necessary order declaring the
advertisement No.51 dtd. 27.01.2021 made by Opposite
Party No.3 on the basis of order dtd. 10.11.2020 is illegal;
And pass such other and further order/orders as it deems
fit and proper under the facts of the case.
And for this act of kindness, the petitioner as in duty bound
shall ever pray."
2. The facts of the case, briefly stated are that
pursuant to an advertisement issued by the CDPO,
Thkurmunda on 15.11.2018 inviting applications from
the intending candidates for engagement as Anganwadi
Worker in Handifuta under Taramora Gram Panchayat in
Thakurmunda Block, the petitioner was one of the
applicants. Five candidates applied other than the
petitioner as per list published by the CDPO on
01.12.2018. The petitioner's name was placed at Sl. No. 4
while the candidatures of two candidates were treated as
withheld as they were found to be working in a Mini
Anganwadi Centre. One Sumita Buliuli was placed at Sl.
No. 3. According to the petitioner, she was not a resident
of the service area of the Anganwadi Centre in question.
The petitioner having +3 qualification claims to be the
most suitable candidate. However, the CDPO,
Thakurmunda, holding that Sumita Buliuli also had +3
qualification, selected her as Anganwadi Worker vide
notification dated 29.12.2018. Since according to the
inhabitants of the locality, such appointment was not
proper, a representation was submitted by them on
02.01.2019 to the BDO, along with the Sub-Collector and
the Collector. Further, a writ application was filed before
this Court by the petitioner being W.P.(C). No. 1431 of
2019. By order dated 30.01.2019, this Court directed the
petitioner to approach the appropriate forum. Pursuant
to such direction, the petitioner submitted petition before
the Sub-Collector, Panchpir, Karanjia which was
registered Anganwadi Appeal Case No. 4 of 2019. The
Sub-Collector issued notice to all necessary parties and
sought for verification from the Board of Secondary
Education of the marksheet of the selected candidate
Sumita Buliuli. The report of the Board of Secondary
education revealed that the marksheet produced by
Sumita Buliuli at the time of her selection was a fake.
As such by order dated 13.09.2019, the Sub-Collector
directed disengagement of Sumita Buliuli as Anganwadi
Worker and directed to put up the record after receipt of
verification report of the documents of the petitioner. The
documents of the petitioner were duly verified and
submitted but no order was passed. Subsequently on
01.10.2020, the Sub-Collector sought for clarification
from the Collector with regard to engaging the petitioner
who had stood 2nd in the selection. However, clarification
was issued to the effect that fresh selection shall be
made. Accordingly, by order dated 10.11.2020, the Sub-
Collector directed the CDPO to take necessary steps for
selection of Anganwadi Worker. Pursuant to such order,
advertisement was issued inviting candidates afresh.
Being aggrieved, the petitioner has filed this writ
application with the prayer as already quoted
hereinbefore.
3. Counter affidavit has been filed by the CDPO on behalf
of Opposite Party Nos. 1, 2 and 4. It is inter alia, stated
in the counter that at the time of disposal of the appeal it
was found that the appointment of Sumita Buliuli was
illegal as she had produced a fake certificate which was
the basis for holding that she had secured the highest
marks, among all candidates. Therefore, the Sub-
Collector directed her to be disengaged and as per the
guidelines, fresh advertisement was issued. It is further
stated that the guidelines provide that whenever any
vacancy arises due to non-joining of any candidate or
disengagement etc. there shall be fresh selection. Even
though, the petitioner secured the highest mark after
Sumita Buliuli, she cannot be engaged as Anganwadi
Worker in view of the guidelines issued by the
Government.
4. Be it noted that the other candidate namely, Sumita
Buliuli was impleaded as Opposite Party No.5, notice was
issued and was duly served on her. In spite of which,
she did not appear. Moreover, the State counsel obtained
instructions that she has not challenged the order of the
Sub-Collector directing her disengagement.
5. Heard Mr. B.C.Panda, learned counsel for the
petitioner and Mr. S.N.Pattnaik, learned AGA for the
State.
6. Mr. Panda would argue that once it is held that the
selected candidate had practiced fraud by producing fake
certificates and obtained employment thereby, the same
being nullity in the eye of law, should be treated as non-
est. Therefore, the petitioner having secured the next
highest mark ought to be treated as the candidate
securing the highest marks and therefore, she should
have been directed to be selected. In support of his
contention, Mr. Panda has relied upon by a judgment of
this Court passed by a Division Bench in the case of
Surya Kanti Sahoo vrs. Secretary, Department of
Women and Child Development, Odisha and Others
reported in 2012(Supp.-1) OLR-718 and of a Coordinate
Bench in the case of Malabika Murmu vrs. State of
Odisha and Others passed in W.P.(C). No. 19470 of
2015.
7. Per contra, Mr. S.N.Pattnaik would submit that once a
person engaged as Anganwadi Worker is disengaged,
fresh selection is to be held in view of the guidelines and
clarifications issued by the Government. Mr. Pattnaik
refers in particular to the clarifications issued by the
Government on 04.07.2002 and 01.10.2010. He
therefore, submits that there being no concept of
reengagement or engagement without selection, the
petitioner's case cannot be considered.
8. The facts of the case are not disputed. Reading of the
order dated 13.09.2019 of the Sub-Collector reveals that
basing on the verification report furnished by the Board
of Secondary Education vide letter dated 26.08.2019, it
was revealed that the mark and division of Sumita Buliuli
did not tally with the record of the Board. As such, it was
held that Sumita Buliuli had produced fake certificate for
applying for the post of Anganwadi Worker. The Sub-
Collector therefore, directed Sumita Buliuli to be
disengaged. By further order passed on 01.10.2020, the
Sub-Collector passed order to call for clarification from
the district authority regarding posting of the candidate
who stood in 2nd position. Such clarification being
received, by order dated 10.11.2020, the Sub-Collector
rejected the claim of the petitioner for engagement in
place of Sumita Buliuli.
9. The question that falls for consideration before this
Court is, whether in such a situation, the candidate
securing the 2nd position in the selection process can be
considered for engagement. In this regard, Mr. Panda
would argue that the selection of Sumita Buliuli has to be
treated as ab initio void as she has practiced fraud. The
stand of the State is that once a person is disengaged, for
whatever reason, there has to be selection as per the
guidelines. It would therefore, be proper to examine the
relevant guidelines issued by the Government. In the
clarification issued by the Government in Women and
Child Development Department on 04.07.2002, it was
held that wherever any vacancy arises due to non-
joining of any candidate within the period allowed to her
or disengagement of the Anganwadi Worker under
Paragraph 15 of the guidelines, there shall be fresh
selection of candidates as per provision laid down in the
aforesaid circulars. By letter dated 01.10.2010, further
clarification was issued that there is no concept of
reengagement or engagement without selection if any
vacancy arises out of death, non-joining, disengagement,
resignation etc and that fresh selection will be made. For
immediate reference, both the clarificatory letters are
extracted below.
GOVERNMENT OF ODISHA
WOMEN & CHILD DEVELOPMENT DEPARTMENT
No. IV-ICDS-1-10/2002-15108/W &CD Dt. 04.07.2002
From
Shri N Lenka
PC-cum-Deputy Secretary to Govt.
To
The Child Development Project Officer,
Bhubaneswar (Rural)
Sub- Clarification regarding duration of panel for selection of 8
Anganwadi Workers.
Madam,
With reference to your letter No 244 dated 09.05 2002 on the above
mentioned subject, I am directed to say that the guidelines for selection of
Anganwadi Workers have been circulated in this department letter No. 8184/
WCD dated 07.10.1998 while some modifications to these guidelines applicable
to 27 new ICDS Projects and 3 old ICDS Projects have been circulated in the
letter No. 5479/WCD dated 14.08.2000 and No. 7767/WCD dated 29.11.2000.
As per provisions of Para-8(g), one merit list of candidates is prepared for
each Anganwadi Centre, Para-13 provides that the names of the recommended
candidates are to be forwarded to the Chief Executive Officer, Zilla Parishad for
approval. In case the Standing Committee of the Zilla Parishad. There is no
provision of maintaining a select list or merit list for each Anganwadi Centre for
any period of time, in the guidelines issued so far;
In view of the above, wherever, any vacancy arises due to non-joining of
any candidate within the period allowed to her or disengagement of the AWW
under Para-15 of the above said guidelines, there shall be fresh selection of
candidates as per provisions laid down in the aforesaid circulars.
Sd-
P.C.-cum-Deputy
Secretary to Govt.
GOVERNMENT OF ODISHA
WOMEN AND CHILD DEVELOPMENT DEPARTMENT NOVI-ICDS
153/10/17063/ WCD. Dated 01.10.2010
From
Smt. Durgesh Nandini Satico, OAS (1)
Under Secretary to Government.
To
The Additional Government Advocate,
Office of the AG. Odisha Cuttack.
Sub: WP (C) No 138/10 filed by Kabita Swain Vrs State of Odisha and others.
Sir,
With reference to your letter No 40959 dt. 24 09 2010 on the subject
noted above lam directed to send herewith a copy of the instruction for appraisal
of Hon'ble High Court and further necessary action at your end.
Sd/-
Under Secretary to Government
Sl. No Points Instruction
1 There is no concept of
What course is available :
reengagement or engagement
In case of any vacancy
(without selection) if any vacancy
arising out of death/non-
arises out of death, non joining
joining/disengagement
disengagement, resignation etc.
/resignation of any
Fresh selection will be made for
Anganwadi Worker.
made for the concerned AWCs.
2 Why merit list is prepared if Revised guideline for selection of
the list looses it force after Anganwadi Worker dtd 02.05.2007
initial appointment/1st does not provide any scope for
appointment preparation of panel list of
selection for future engagement.
3 What reason is there for Mentioned against Point No. 2
non-maintenance of merit
list.
4 What is the reason inviting Mentioned against Point No. 2
fresh selection to fill up the
casual vacancy, when one
merit list is available with the
authorities.
10. The question is, whether the disengagement of the
selected candidate Sumitra Buliuli in the instant case
can come within the purview of the instructions dated
01.10.2010. It is true that the instructions have been
worded in a broad sense inasmuch as it refers to
'disengaged' without qualifying the word in any manner.
So ordinarily, it would include all kinds of
disengagement. However, in the instant case, it is not so
much the disengagement itself but the initial engagement
of Sumita Buliuli as Anganwadi Worker that would be
relevant. This is being said for the reason that her
engagement was found to have been secured by
submission of fake documents. In other words, it was an
act of fraud. It is well settled that fraud and justice never
dwell together and that any benefit, employment etc.
obtained by practicing fraud is non-est in the eye of law.
It was as if such a thing had never been granted in the
first place. To state at the cost of repetition, it is an act
void ab initio. Obviously, the order of disengagement
passed subsequently is only a formal expression or
acknowledgement of the detection of fraud practiced by
the candidate and cannot be equated with other kinds of
disengagement such as disengagement due to mis
conduct etc. of the incumbent. Under such
circumstances, this Court is of the considered view that
the guidelines quoted hereinabove would have no
application.
11. The matter can also be viewed from another angle.
As already stated, this is not a case of disengagement due
to any mis-conduct committed by the selected candidate
but entirely because of fraud practiced by her. The
authorities who selected her are to be blamed inasmuch
as they should have verified the certificate at the first
instance. Therefore, had the certificate been verified at
the time of selection or prior to finalizing the selection,
Sumitra Buliuli obviously would not have been selected.
Therefore, if the candidate of Sumitra Buliuli is taken
away then, it is the petitioner who has to be treated as
the candidate securing the highest marks. Under such
circumstances going for fresh selection does not appear
to be justified.
12. In the case of Surya Kanti Sahoo (supra), which is a
case involving almost similar facts, the Division Bench
held that direction for fresh notification is not permissible
in law in view of the finding of the fact regarding
manipulation of the marksheet is concerned. In the case
of Malabika Murmu (supra), which is also a case
involving similar facts, it was held that in such a case,
the question of fresh selection does not arise.
13. Thus, this Court finds that once the selection of
Sumita Buliuli is held to be non-est then the natural
corollary thereof would be to select the candidate
securing the highest marks which, in the instant case,
would be the petitioner.
14. For the foregoing reasons therefore, the writ
application is allowed. The impugned order under
Annexure-8 is hereby set aside. Consequently the
advertisement dated 27.01.2021 is also quashed. The
Opposite Party authorities are directed to issue order of
engagement in favour of the petitioner as early as
possible preferably, within a month from the date of
production of certified copy of this order by the petitioner.
Sashikanta Mishra,
Judge
Deepak
