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2010 DIGILAW 748 (ORI)

Padmabati Pattnaik @ Nayak v. State of Orissa

2010-11-04

B.K.PATEL

body2010
JUDGMENT B.K. PATEL, J. — The petitioner has assailed the legality of order dated 20.3.2010 passed by Sub-Collector, Puri in A.W.W. Misc (A) No.47 of 2008 setting aside the order of engagement of the petitioner as Anganwadi Worker (for short, ‘A.W.W.’) of Nadakhanda (Indupur-2) Anganwadi Centre (for short, ‘A.W.C.’), directing her disengagement and to issue fresh order of engagement in favour of the opposite party No.5. 2.Pursuant to advertisement under Annexure-1 petitioner and opposite party No.5 submitted applications for engagement as A.W.W. The last date of submission of application was 16.2.2008. It was also indicated under Annexure-1 that applicants shall remain present during scrutiny on 18.2.2008. In the advertisement it was stipulated that the applicant must be a permanent resident of the village under A.W.C.. Also the format of application prescribed submission of certificate of permanent residence obtained within preceding six months from the Tahasildar along with the application form. Though the petitioner produced all the requisites including permanent residence certificate, opposite party No.5 did not produce permanent residence certificate along with her application. However, she was granted time to produce the same by 20.2.2008. She could not produce permanent residence certificate on that date also as her application for grant of the certificate was rejected by the Additional Tahasildar, Satyabadi. In such circumstances, though opposite party No.5. secured more points on merit than the petitioner, the petitioner was engaged as A.W.W.. Subsequently by order dated 10.4.2008 passed by the Sub-Collector, Puri in Resident Misc. (A) No.25 of 2008 under Annexure-A/5 preferred by opposite party No.5 against order passed by the Additional Tahasildar rejecting application to grant permanent resident certificate, opposite party No.5 was held to be a permanent resident of concerned village in view of her marriage with a permanent resident of the said village and accordingly permanent residence certificate was issued in her favour on 27.5.2005. 3.Impugned order was passed on the basis of residential certificate obtained by the opposite party No.5 as stated above. 4.It is averred in the counter affidavit filed by opposite party No.5 that the Additional Tahasildar illegally rejected her application for residential certificate. Said order was set aside and residence certificate was directed to be issued by the Sub-Collector holding that the opposite party No.5 was married to a permanent resident of concerned village prior to the date of submission of application for engagement as A.W.W.. Said order was set aside and residence certificate was directed to be issued by the Sub-Collector holding that the opposite party No.5 was married to a permanent resident of concerned village prior to the date of submission of application for engagement as A.W.W.. Therefore, application of opposite party No.5, who was a permanent residence of the concerned village, had been rejected illegally while engaging the petitioner as A.W.W. By the impugned order illegality committed by the Selection Committee was rectified. 5.In the counter-affidavit filed by the opposite parties 2 to 4, though prayer has been made to dismiss the writ petition, it has been pleaded in paragraph-7 : “xxx Opposite party No.5 could not produce the resident certificate according to her undertaking. The Additional Tahasildar did not issue the residence certificate of Nadakhanda in favour of opposite party No.5. Since she was not belonging to Nadakhanda. After the selection process was over, she married to Kalu Ch. Pradhan of Nadakhanda and got resident certificate from Tahasildar, Satyabadi pursuant to the direction of appellate authority.” 6.Learned counsel for the petitioner would submit that the guidelines issued by the State Government prescribes requisite conditions to be eligible for being considered as A.W.W. The foremost condition is that the applicant must be a resident of village included under the A.W.C. The applicant is required to establish her credentials with regard to fulfilment of eligibility criteria on the date of application. Admittedly, opposite party No.5 failed to substantiate her claim of residence not only while filing application but also by the extended date allowed by the C.D.P.O. She got married to a resident of concerned village only after selection of the petitioner as A.W.W. As she was not eligible to be considered for engagement at the time of selection, learned Sub-Collector committed illegality in setting aside the petitioner’s engagement and directing engagement of the opposite party No.5. In support of the contentions learned counsel for the petitioner relied upon decision of the Hon’ble Supreme Court in Diptimayee Parida v. State of Orissa and others: (2008)10 S.C.C. 687 . 7.Learned counsel for the opposite party No.5 submitted that grant of residential certificate was illegally rejected by the Additional Tahasildar though the opposite party No.5 was entitled to the required residential certificate in view of her marriage with a permanent resident of concerned village prior to the date of application. 7.Learned counsel for the opposite party No.5 submitted that grant of residential certificate was illegally rejected by the Additional Tahasildar though the opposite party No.5 was entitled to the required residential certificate in view of her marriage with a permanent resident of concerned village prior to the date of application. In the appeal filed against the order of the Additional Tahasildar rejecting application for resident certificate, Sub-collector categorically came to a finding that opposite party No.5 had got married to a permanent resident of concerned village and thereby acquired residential status prior to the date of application. Therefore, there is no scope to interfere with the impugned order. 8.Learned counsel for the State appearing for the opposite parties 1 to 4 would submit that opposite party No.5 secured more points on merit. Though she could not produce required residence certificate along with her application, Sub-Collector was satisfied regarding status of opposite party No.5 as a permanent resident of the village under A.W.C. Opposite party No.5 being more meritorious than the petitioner, her engagement as A.W.W. is in the interest of beneficiaries of the project for which A.W.Cs function. 9.As has been observed in Diptimayee Parida v. State of Orissa and others (supra) the matter relating to recruitment of A.W.W. is not covered by any statute. Recruitments are made pursuant to the scheme framed by the Central Government. The State, therefore, while making recruitments in such project in exercise of jurisdiction under Article 162 of the Constitution of India, may issue such guidelines and/or circulars as it may deem fit and proper. The said guidelines are ordinarily binding on all the functionaries working in terms of the “scheme” including the Selection Committees constituted for the recruitment of A.W.W. When marks are fixed specifying the criteria in the rule, the same should be strictly followed. The Selection Committee has not been conferred with any power to grant relaxation. Stages for grant of marks having been fixed; one committee cannot usurp the jurisdiction of the other. 10.It is also well settled principle that if a thing is required to be done in a particular way it should be done in that way or it should not be done at all. Other methods of performance are impliedly or necessarily forbidden. Stages for grant of marks having been fixed; one committee cannot usurp the jurisdiction of the other. 10.It is also well settled principle that if a thing is required to be done in a particular way it should be done in that way or it should not be done at all. Other methods of performance are impliedly or necessarily forbidden. 11.Rule 1 of the guidelines for selection of A.W.Ws provides : “Applications for selection of Volunteers to work as Anganwadi Workers will be invited for each village/Anganwadi Centre area from women residing in the said village/Anganwadi Centre area.” 12.Condition No.1 under Annexure-1 translated into English reads: “Applicant should be a permanent resident of the concerned village/A.W.C. area” 13.Annexure-2, the format of application form provides at serial No.7 for enclosing residential certificate obtained from the Tahasildar within six months prior to the date of application. 14.There being no dispute that residential certificate was issued to opposite party No.5 long after the date of selection of A.W.W., obviously application submitted by the opposite party No.5 was incomplete in respect of residential certificate. Residential certificate was issued pursuant to order dated 10.4.2008 passed by the Sub-Collector in Resident Misc. Appeal No.25 of 2008 on the basis of finding with regard to disputed questions of date of marriage of opposite party No.5. Notwithstanding issuance of residential certificate in favour of opposite party No.5 at a subsequent date, Selection Committee which rejected opposite party No.5’s candidature on the ground of want of proof regarding permanent residence, could not have considered application of the opposite party No.5 as the Selection Committee took decision of engagement of the petitioner in the manner prescribed by the guidelines. As has been observed earlier, Selection Committee has not been conferred with any power to grant relaxation. 15.In Diptimayee Parida v. State of Orissa and others (supra) it as been reiterated that ordinarily the qualification or extra qualification laid down for the recruitment should be considered as on the last date for filing of application. Opposite party No.5 having failed to substantiate her claim of qualification for engagement for want of proof regarding permanent residence of the concerned village, there was no illegality in the engagement of the petitioner. Therefore, the impugned order passed on the basis of a certificate subsequently issued and produced is not sustainable in law. Guidelines have been issued to ensure transparency and to prevent arbitrariness. Therefore, the impugned order passed on the basis of a certificate subsequently issued and produced is not sustainable in law. Guidelines have been issued to ensure transparency and to prevent arbitrariness. Opposite party No.5 having failed to substantiate proof of residence and thereby having failed to fulfil the requirement under the guidelines, was rightly considered by the Selection Committee to be not eligible for engagement on the date of selection. 16.Therefore, the writ application is allowed and the impugned order is quashed. Application allowed.