Orissa High Court
Padmabati Suna vs The Secretary on 4 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 5424 OF 2015
An application under Sections 226 and 227 of the Constitution of
India.
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Padmabati Suna ...... Petitioner
-Versus-
The Secretary, Women & ...... Opp. Parties
Child Development Department,
Bhubaneswar and Others
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. H.S. Mishra,
Dr. A.K. Tripathy & K. Badhai
Advocates
For Opp. Parties : Mr. S. Behera,
Addl. Government Advocate
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
04.03.2025
SASHIKANTA MISHRA, J.
An advertisement was issued by the Child
Development Project Officer (CDPO), Agalpur in the
district of Balangir in the year 2010 for engagement of
Anganwadi Worker of Roth-C Anganwadi Center. The
petitioner and opposite party No.6 were among the
applicants. In the selection process, the opposite party
No.6 having secured the highest marks was selected.
According to the petitioner she was the only candidate
who submitted the required affidavit as per the
advertisement whereas opposite party No.6 submitted a
false certificate stating to be a resident of the service area
of the center. It is the specific case of the petitioner that
the opposite party No.6 came to the village in the year
2010 and obtained residence certificate from the
Tahasildar, Balangir by making false declaration. The
petitioner's objection in this regard was not considered. As
such, she was found to have secured the second highest
marks. Being aggrieved by the selection of opposite party
No.6, the petitioner filed appeal before the ADM, Balangir
being Revenue Misc. Appeal No.57 of 2010. She also filed
an appeal before the Sub-Collector challenging the
residence certificate of opposite party No.6 being Misc.
Appeal No.1 of 2011. Both the appeals were heard
separately but were disposed on the same day, i.e.,
30.01.2013. The Anganwadi Appeal was rejected holding
that the appellant (petitioner) did not produce the
cancellation order of the residence certificate of opposite
party No.6. Further, the name of opposite party No.6
along with her photograph finds place in the voter list of
2011. In the other appeal, the Sub-Collector held that the
Tahasildar had issued the residence certificate in favour of
opposite party No.6 without calling for report from the
concerned Revenue Inspector. Since no inquiry had been
conducted in the field, the Sub-Collector set aside the
order passed by the Tahasildar granting residence
certificate to opposite party No.6 and remanded the case
to the Tahasildar for fresh disposal by affording
opportunity of hearing to both parties. It is the further
case of the petitioner that because of the fact that the
order was passed by the Sub-Collector on the same day,
she could not produce the same before the ADM in the
other appeal resulting in the same being rejected.
Thereafter, on wrong advice, she preferred WP.(C) No.7621
of 2013. While the matter stood thus, opposite party No. 6
resigned on 24.11.2011 and the post fell vacant. In the
meantime, fresh advertisement was issued, which came to
be stayed by this Court in the aforementioned writ
petition. Ultimately, said writ petition was disposed of on
02.02.2015 on the ground that the petitioner has
appeared at the subsequent interview, which was not
under challenge. The writ petition was thus held to be
infructous and was disposed of as such. According to the
petitioner, the Residence Certificate of opposite party No.6
having been cancelled proves the contention of the
petitioner that the selection of opposite party No. 6 was
illegal. However, she having resigned subsequently, the
further advertisement issued on 22.10.2013 has become
redundant, as the petitioner being the second more
meritorious candidate in the first selection should be
engaged. Since the selection of opposite party No. 6 was
under challenge in appeal before the ADM as well as
before this Court. The fresh advertisement dated
22.10.2013 should not have been issued. On the above
facts, the petitioner has filed this writ petition with the
following prayer:-
"The petitioner abovenamed therefore prays in
the facts and circumstances of the case that this
Hon'ble Court may be pleased to issue notice to
the opposite parties directing them to show cause
as to why the writ petition shall not be allowed
and if they fail to show cause or the causes
shown are found to be insufficient in law as well
as in the facts and circumstance of the case, this
Hon'ble Court may be pleased to allow the petition
and quash the impugned advertisement vide
Annexure -2 and the entire process of selection of
the post on the said advertisement and issue
engagement order in favour of the petitioner as
Anganwadi Worker, Roth-C Angnwadi Center
forthwith out without any further delay by issuing
appropriate writ or writs, particularly writ of
mandamus and any other order or direction
considered fit and proper be passed in favour of
the petitioner.
And for which act of kindness, the petitioner as
in duty bound shall ever pray."
2. Counter affidavit has been filed by the CDPO
(Opposite Party No. 5). It is stated that opposite party No.6
is a resident of the village and resides within the service
area of the Anganwadi Center in question. Her house
number is 177 having House Survey No.303 as per Survey
Register maintained for the said center. The present
center was carved out of the existing Roth-B Center taking
into consideration the population. The population of Roth-
C Center was 461 at the time when the center was opened
taking into consideration 177 houses. It is further stated
that opposite party No.6 was selected taking into
consideration the fact that she is a resident of the center
area and secured the highest marks, i.e., 75.6%. She
however, resigned as Anganwadi Worker on 26.11.2011
because she got engagement as Shikshya Sahayak.
Another advertisement was issued in the year 2012. The
candidate who was selected withdrew. So another
advertisement was issued on 22.10.2013 pursuant to
which the petitioner along with other candidates have
applied. Verification has also been conducted of all the
candidates including the petitioner. Therefore, having
participated in the selection process, it is not open to the
petitioner to challenge the said advertisement. In any
case, she is not prejudiced in any way because her right of
being considered as per the impugned advertisement is
not affected in any manner.
3. Heard Sri H.S. Mishra, learned counsel for the
petitioner and Sri. S. Behera, learned Addl. Government
Advocate for the State.
4. Sri Mishra would argue that the selection of
opposite party No. 6 must be held to be nonest in the eye
of law because of the cancellation of her residence
certificate by the Sub-Collector in the appeal filed by the
petitioner. Therefore, the petitioner having secured the
second highest marks ought to have been appointed. In
any case, opposite party No.6 having resigned and her
initial engagement being illegal, the authorities should
have engaged the petitioner in the vacancy instead of
going for a fresh advertisement. Even though the
Anganwadi Appeal filed by the petitioner was rejected, the
same cannot be a bar for accepting the contentions of the
petitioner as the residence certificate of opp. party No.6
was cancelled and she has also resigned. Under such
circumstances, the advertisement dated 22.10.2013 is
completely unnecessary and redundant.
5. Per contra, Sri Behera, learned State Counsel
would argue that the writ petition is not maintainable
being directed against the advertisement pursuant to
which the petitioner is herself a candidate and has also
gone through the process of selection. Having participated
in the selection process, it is not open to the petitioner to
challenge the advertisement. On merits, Sri Behera would
submit that the residence certificate issued by the
Tahasildar was set aside by the Sub-Collector in appeal
but the matter was remanded for fresh disposal. So it
cannot be treated as a final order. On the other hand, the
opposite party No.6 was found to be a resident of the
service area of the center in view of the Survey Register
and voter list. It cannot therefore, be said that her
selection was wrong. The impugned advertisement was
issued as per the Government guidelines, which lays down
that any vacancy caused can only be filled up by going for
fresh selection. Since the petitioner is already an
applicant, her case can be considered along with other
applicants on merits.
6. Admittedly, in the selection held pursuant to the
first advertisement the petitioner secured 60.2% marks
whereas the opposite party No.6 secured 75.6%. She was
therefore selected. Her selection was challenged by the
petitioner before the ADM specifically on the ground that
she did not belong to the service area. In course of hearing
of the appeal, the ADM verified the connected file
containing all requisite documents. He found the name of
opposite party No.6 in the voter list of 2011. At the same
time, the petitioner could not submit proof of cancellation
of the residence certificate of opposite party No.6. The
appeal thus came to be rejected. It has been argued that
the petitioner was unable to produce the order cancelling
the residence certificate of opposite party No.6 as the
same was passed on the very day the appeal was heard by
the ADM. Be that as it may, the petitioner has enclosed
the order passed by the Sub-Collector, Balangir in Misc.
Appeal No.1 of 2011 challenging the order of the
Tahasildar granting the residence certificate to the
opposite party No.6.
It is seen that after hearing the parties, the Sub-
Collector, inter alia, passed the following order:-
"Heard the learned advocates of both the parties
Gone through the lower court case record and the
documents placed therein. It is noticed that the order of
learned Addl. Tahasildar dtd.17,06.2010 is erroneous. No
report has been obtained from the concerned Revenue
Inspector. Even though, it has been mentioned about
submission of affidavit and other documents, no affidavit
is enclosed to the case record and there is no mention of
documents. In view of absence of report from the Revenue
Inspector, Addl. Tahasildar should not have issued the
residential certificate to the respondent. It indicates that no
enquiry has been conducted in the field. The certificate has
been issued in Accordingly, the order
haste.
dtd.17.06.2010 of learned Addl. Tahasildar, Balangir
in Mise. Certificate Case No.5732 of 2010 is set aside and
the case is remanded to Tahasildar, Balangir for fresh
disposal by affording due opportunity of being heard to'
both the parties. Accordingly, the appeal is allowed."
7. Bare look at the order quoted above makes it clear
that though the appeal was allowed and the order of the
Tahasildar granting residence certificate in favour of
opposite party No.6 was set aside, yet the matter cannot
be said to have attained finality in view of the order of
remand to the Tahasildar for fresh disposal. What
happened thereafter has not been stated nor brought on
record by any of the parties. Under such circumstances, it
is difficult to accept that the residence certificate issued in
favour of opposite party No.6 was finally cancelled.
8. As against the above, there is, prima facie,
evidence in the form of the survey list of the village
enclosed to the counter affidavit which shows the opposite
party No.6 of being a resident of the service area with her
house number being 177. In view of the above, it is
difficult to accept the contention advanced that the
selection of opposite party No.6 was illegal.
9. As regards maintainability of the writ petition, it
is the settled position of law that a person having applied
pursuant to the advertisement and participated in the
selection process cannot simultaneously question the
advertisement, as the same would amount to reprobation
and approbation, which is not permissible in law.
Reference in this regard may be had in the case of
Vijendra Kumar Verma v. Public Service Commission
Uttarkhand and Others1.
10. This Court is therefore, of the view that the
petitioner having applied pursuant to the impugned
advertisement and participated in the selection process
cannot challenge the same.
11. It is significant to note that as per letter dated
01.10.2010 of the Government, any vacancy caused either
by resignation, disengagement, death, retirement etc. has
to be filled up by fresh selection. Since this Court has
found nothing wrong in the selection of opposite party
No.6 in the first place and the fact that a vacancy was
caused because of her resignation subsequently, the
opposite parties-authorities have taken the right decision
to go for fresh advertisement which is in consonance with
the guidelines referred to above. This Court therefore,
(2011) 1 SCC 150
finds no reason to interfere with the impugned
advertisement.
12. For the foregoing reasons, this Court finds no
merit in the writ application, which is therefore,
dismissed.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu, Sr. Steno
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa High Court, Cuttack
Date: 05-Mar-2025 10:14:46
