Orissa High Court

Sandhyarani Panda vs State Of Odisha And Others ...... Opp. ... on 17 January, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P. (C) No. 21343 of 2019
    An application under Articles 226 and 227 of the Constitution of
    India.
                                      --------------

      Sandhyarani Panda                   ......              Petitioner

                                -Versus-

      State of Odisha and Others          ......          Opp. Parties
      Advocate(s) appeared in this case :-
      _______________________________________________________
        For Petitioner    : M/s. S. Jena,
                            M.K. Dash & S.K. Rath,
                            P.K. Nanda, A.S. Paul
                            & D.Sahoo, Advocates.

         For Opp. Parties : Mr. S.N. Patanaik,
                            [Addl. Government Advocate]
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                          JUDGMENT

17.01.2025 SASHIKANTA MISHRA, J.

A notification was issued on 19.08.2009 by the

CDPO, Jagannath Prasad inviting applications from

intending candidates for engagement as Anganwadi

Worker of various centers including Bhusandapala-B

Center. The petitioner submitted her candidature along

with others. The service area of the center was fixed as (i)

"Badasahi from the house of Jaya Nayak to Gobinda

Sethi's house" and (ii)Bhimasahi "Brundaban Gouda's

house to Natabara Sethi's house". The petitioner claims to

be a resident of the said service area. In the selection

process, one Annapurna Nayak secured highest marks

being 59.6%, but did not appear for document verification

and was underaged for which she was eliminated. The

petitioner had secured the second highest marks being

57.8% and as such she was selected for engagement as

Anganwadi Worker. However, the authorities did not issue

engagement order and kept the matter pending without

any reason.

2. The petitioner approached the Sub-Collector,

Bhanjanagar and CDPO, Jagannath Prasad several times,

but to no avail. As such, she approached this Court in

W.P.(C) No.14507 of 2011 with prayer for direction to the

authorities to issue engagement order in her favour. By

order dated 19.05.2011, this Court disposed of the writ

petition directing the CDPO, Jagannath Prasad to

consider and dispose of the representation of the

petitioner within three months. In spite of such order, no

action was taken for which the petitioner again

approached this Court in W.P.(C) No.2136 of 2015. By

order dated 21.07.2015, this Court disposed of the writ

petition by passing the following order:

"Heard.

The petitioner has approached this Court for issuance of direction upon the opposite parties for publication of merit list and issuance of engagement order in her favour for the post of Anganwadi Worker of Bhusandhapala-B Anganwadi Center under Jagannath Prasad Block.

The case of the petitioner is that notice was published in the year 2011 for engagement of Anganwadi but even after lapse of more than more years, authorities have not concluded selection process.

Counter affidavit has been filed on behalf of the opposite parties wherein so may ground of delay in conclusion of selection process have been taken like preparation of merit fist and reconstruction of area of Anganwadi Center etc. Be that as it may, when notice for engagement of Anganwadi Worker has been issued which means but there is requirement of Anganwadi Worker for the said centres.

The authority cannot linger the selection process for indefinite period.

In view thereof, the Collector, Ganjam is directed to look into the matter so that the entire exercise must be completed within four months from the date of presentation of certified copy of this order.

It is made clear that this Court has not entered into the merits of the claim of the petitioner, however, the authority will proceed and select the candidate in accordance with the guideline in operation.

Accordingly, the writ petition is disposed of."

3. One Nirmala Dalai filed a petition before the

Collector, Ganjam challenging the selection of the

petitioner as Anganwadi Worker of the center in question.

The DSWO, Ganjam by letter dated 12.08.2015, intimated

to the CDPO that as desired by the Collector, the selection

of Anganwadi Worker for Bhusandhapala-B Center could

not be proceeded with. The petitioner approached the

Collector pursuant to direction of this Court in the

aforementioned writ petition and after hearing her, the

Collector passed the impugned order on 27.09.2015

declaring the applications received during 2009 as null

and void and by directing the CDPO to re-survey the area

of operation and to issue fresh advertisement thereafter. It

is stated that the Collector has no authority or

competence to pass order for reconstitution of service

area, the selection process having already been completed.

Being thus aggrieved, the petitioner has approached this

Court seeking the following relief:

"It is, therefore, humbly prayed that this Hon'be Court may graciously be pleased to issue Rule "NISI" calling upon the Opp. Parties to show cause as to why the impugned order dtd.19.07.2015 under Annexure-4 passed by the Collector, Ganjam shall not be quashed and as to why a direction shall not be issued to engage the Petitioner as the Anganwadi Worker in respect of Bhusandhapala-B Center and if the Opp. Party fail to show cause and/or shown insufficient and/or false cause make the said rule absolute and further be pleased to direct the Opposite parties to engage the Petitioner as Anganwadi Worker in respect of Bhusandhapala-B center;

And further be pleased to pass any other order/orders, direction/directions, writ/writs as this Hon'ble Court may deem fit and proper;

And for which act of kindness, the petitioner shall as in duty bound ever pray;"

4. Counter affidavit has been filed by the State-

opposite party (O.P Nos. 2 to 5) justifying the order passed

by the Collector. It is stated that eight candidates had

applied pursuant to advertisement dated 19.08.2009.

Objections were invited. Five objections were received

including objection with regard to validity of the service

area on the ground that the same was defective as it did

not conform to the requirements of the guidelines/circular

issued by the Women & Child Development Department,

Government of Odisha. The objections were considered

and after verifying the records, the BLCC, being the

competent committee issued direction to the CDPO to

resurvey the area and submit report. The matter was

discussed in the Selection Committee meeting held on

14.02.2011, 17.10.2012 and 31.10.2012 and it was

decided to divide the area properly. After approval in

BLCC meeting, a fresh advertisement was to be published

for Bhusandapala-B Anganwadi Center. The decision of

the BLCC is based on correct reading of the circular dated

01.05.2007, wherein it is specified that each center shall

have a specific number of people. The advertisement

issued on 16.08.2009 did not conform to the said circular

and the population was less than 400 being 364. As such,

the BLCC rightly took the decision for resurvey.

5. Heard Ms. S. Jena, learned counsel for the

petitioner and Mr. S.N. Patnaik, learned Addl.

Government Advocate for the State.

6. Ms. Jena would argue that once a selection

process is initiated, it is not open to the authorities to

change the service area as it would amount to changing

the rules of the game after the game has started.

Moreover, the service area having been defined by the

Government, the Collector has no authority to change the

same. Ms. Jena further submits that the decision to

reconstitute the service area is actuated by malafides as it

is intended to engage a candidate of the choice of the

authorities.

7. Mr. Patnaik, on the other hand, would argue that

as per the norms fixed by the Government an Anganwadi

Center is to cater to a population of 400. The

advertisement in question prescribed a service area which

did not conform to the above requirement inasmuch as

the population was less than 400. Objection being thus

raised, the Collector very rightly directed for resurvey of

the area and for cancellation of the advertisement.

8. From the facts narrated above, it is seen that

pursuant to the advertisement dated 19.08.2009, eight

candidates had applied including the petitioner. Of them,

one Annapurna Nayak had secured 59.6% marks in HSC

examination, but she was absent on the day of document

verification. Two other candidates, namely, Sukana Devi

and Minati Guru were also absent on the day of

documents verification. Thus, five candidates including

the petitioner remained in the fray. Of them, the petitioner

secured the highest mark being 57.8%. It is true that no

order of engagement was issued in favour of the petitioner

as the matter was stalled at this stage. No office order or

direction was issued for stalling the selection process,

save and except the letter dated 12.08.2015 of the DSWO,

Ganjam addressed to the CDPO. In the earlier writ

petition, this Court took note of the fact that despite lapse

of a long time, the authorities have not concluded the

selection process and thus held that the authorities

cannot linger the selection process for indefinite period. Of

course, the Court did not enter into the merits of the case

of the petitioner and left it open to the authority to select

the candidate in accordance with the guidelines in

operation.

9. Reading of the impugned order suggests that one

Nirmala Dalai had applied pursuant to the advertisement

and also submitted objection. Said Nirmala Dalai had

secured 42% marks. It is stated that she had submitted

an objection with regard to the service area. Obviously,

the Collector had not considered the locus standi of said

Nirmala Dalai to object to the service area. Firstly, it is

trite law that a person having participated in the selection

process, without questioning the correctness of the

advertisement, has no locus standi to do so after initiation

of the selection process or raise such question

subsequently. Secondly, as per the revised guidelines

dated 02.05.2007 of the Government in W & CD

Department (which were in vogue at the relevant time),

the procedure laid down in case of selection of Anganwadi

Workers provides for grant of seven days' time for filing of

objection by the community but only on the issue of

nativity, educational qualification and caste certificate.

But here is a case where the authorities have entertained

a so called objection submitted by a candidate who

participated in the selection process without any protest

at the outset and that too on a ground not contemplated

in the guidelines at all. This is a vital aspect of the matter

which the Collector has lost sight of completely.

10. Even otherwise, as per the counter filed by the

State, five objections were received but the details thereof

have not been given out in the least. It goes without

saying that once a service area has been defined and

acted upon, the authorities cannot simply turn around

and say that the same was wrong subsequently. If the

population of the service area was actually less than 400

at the relevant time how could it be defined as a service

area for a separate Anganwadi Center in the first place.

The State has not produced cogent proof to show as to

what exactly was the population at the relevant time. If

such was the case, in all fairness, the matter should have

been referred to the Government seeking necessary

approval. The same not having being done, this Court is of

the view that the guidelines dated 02.05.2007 do not

confer any such power on the Collector to unilaterally

cancel the advertisement and decide to initiate fresh

advertisement.

11. It has been argued that the petitioner has not

acquired any vested right for being engaged as Anganwadi

Worker as mere inclusion in the select list is of no

consequence. This Court takes note of the settled positon

of law in this regard as reflected in the following

observation of the Supreme Court in the case of East

Coast Railway and another v. Mahadev Appa Rao and

Others1 held as follows:-

"While no candidate acquires as indefeasible right to a post merely because he has appeared in the examination or even found place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list

(2010) 7 SCC 678

prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is found to be arbitrary, appropriate directions can be issued in the matter. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step-in-aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner."

12. From what has been narrated hereinbefore, this

Court is left with no doubt that the action of the

authorities in the present case is far from reasonable,

rather same can be treated as arbitrary and therefore,

unsustainable in the eye of law.

13. For the foregoing reasons therefore, the writ

petition is allowed. The impugned order is hereby set

aside. The opposite parties authorities are directed to take

necessary steps to conclude the selection process initiated

pursuant to advertisement dated 19.08.2009 at the

earliest and in any case, not later than two months from

the date of production of certified copy of this order by the