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2011 DIGILAW 231 (ORI)

SAKHI PRADHAN v. STATE OF ODISSA

2011-04-13

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT : V. Gopala Gowda, CJ. 1. The unsuccessful opposite party no.5 in W.P. (C) No.6615 of 2010 is the appellant in this appeal questioning the correctness of the order dated 4.11.2010 passed by the learned Single Judge in W.P.(C) No.6615 of 2010 allowing the writ petition urging certain grounds and prayed for setting aside the impugned order and restoring the order dated 20.3.2010 of the appellate authority in A.W.W.Misc.(A) No.47 of 2008. 2. Brief facts are stated for the purpose of appreciating the rival legal contentions urged in this appeal to find out as to whether the appellant is entitled for the relief claimed. (a) The writ appellant claims that she is a resident of village Nadakhanda and applied for the post of Anganwadi Worker in Nadakhanda Anganwadi Centre under Satyabadi Block pursuant to the advertisement issued by respondent no.3. With her application, she filed an undertaking to submit the residential certificate before her appointment. It is alleged that the Tahasildar being politically pressurized did not issue the residential certificate to deprive her from getting the post though she is more meritorious candidate than that of respondent no.5 who was the writ petitioner. Respondent no.4 rejected her application for non-production of the residential certificate as required under the Scheme framed by the State Government for the purpose of filling up of the post of Anganwadi Worker and engagement order was issued to respondent no.5 who is otherwise not eligible for the said post. (b) The appellant challenged the arbitrary action of respondent no.4 in giving appointment to respondent no.5 as Anganwadi Workder in the aforesaid Centre. She filed W.P.(C) No. 10060 of 2008. In the said writ petition, she specifically pleaded about the mala fide intention of the opposite parties therein for which she could not get the residential certificate to be produced before the opposite party no.4 on or before the date fixed in the advertisement. Opposite party no.5 who was fully aware of the fact that if the appellant does not produce the residential certificate, she would secure highest mark than the appellant and she would be appointed against the post. Therefore, she filed objection before the Tahasildar in the misc. case filed by the appellant for issuance of residential certificate. The Tahasildar being politically pressurized in collusion with respondent no.5 intentionally delayed the matter in issuing the residential certificate. Ultimately, her application was rejected. Therefore, she filed objection before the Tahasildar in the misc. case filed by the appellant for issuance of residential certificate. The Tahasildar being politically pressurized in collusion with respondent no.5 intentionally delayed the matter in issuing the residential certificate. Ultimately, her application was rejected. This Court considering the submissions made by the learned counsel for the appellant with regard to the mala fide intention on the part of the opposite parties in depriving her to be appointed as Anganwadi Worker, by order dated 21.8.2008 disposed of the writ petition with liberty to file an appeal before respondent no.3 urging all the grounds. Pursuant to the liberty given by this Court in the said order, the petitioner filed an appeal before respondent no.3. In the order of this Court the appellate court was directed to consider her appeal if the said authority is satisfied that the irregularities as alleged pass necessary orders strictly in consonance with law and guidelines prescribed as expeditiously as possible within a period of six months. Pursuant to the said order, appeal was filed by the appellant before respondent no.3. The appellate authority heard both the parties and passed the order impugned in the writ petition and set aside the engagement order of respondent no.5 issued by respondent no.4 on 11.8.2008. It is the case of the appellant that the respondent no.3 in his order has given a categorical finding that the certifying officer illegally rejected the appellant's application for issuance of residential certificate to her on 27.5.2008. He further held that the appellant has secured highest mark as per her educational certificates but she was deprived of the post for non-issuance of the certificate. Therefore, he found that the appellant was a befitting candidate to be appointed to the post and held that the selection and appointment order issued to respondent is illegal and improper.. The said order was challenged by respondent no.5 in the writ petition which was allowed holding that the appellant have failed to substantiate proof of residence and thereby having failed to fulfill the requirement under the guidelines was rightly considered by the Selection Committee to be not eligible for engagement on the date of selection. Aggrieved by the said order, the present appeal is filed. 3. Aggrieved by the said order, the present appeal is filed. 3. It is contended by the learned counsel for the appellant that the learned Single Judge quashed the order impugned in the writ petition by placing reliance on the decision of the Supreme Court in Dipitimayee Parida Vs. State of Orissa and Others, which is not applicable to the fact situation of the case. Therefore, the order is bad in law. The second ground of attack is that the learned Single Judge while passing the impugned order has taken note of the findings of the appellate authority that the appellant who is a meritorious candidate and who has secured the highest mark in the selection process was deprived of her right to be appointed against the post for the non-production of the residential certificate required to be issued by the Tahasildar but set aside the order of the appellate authority on the ground that the appellant's candidature could not have been taken into consideration for non-production of residential certificate as required by the guidelines which is bad in law. 4. The said order was sought to be justified by the respondent no.5 strongly placing reliance upon the decision of the Supreme Court in Diptimayee Parida referred to supra and the guidelines enumerated under the Scheme framed by the State Government in exercise of executive power under rule 162. Further learned counsel Mr.Misra has also placed reliance upon another decision of the Supreme Court reported in State of Rajasthan v. Hitendra Kumar Bhatt, AIR 1998 SC 91 in support of the proposition of law that the cut of date for ascertaining the eligibility as prescribed in the advertisement is the date of application. The respondent was not eligible on the said date. She was appointed on account of interim order of the Court which was made subject to out come of the petition. The writ petition was dismissed by the Supreme Court. The Supreme Court made observation that she services of the selected candidates are liable to be discontinued. Sympathetic view on ground that respondent had been continued and subsequently been confirmed cannot be taken into consideration because ignoring cut-off date by which all the requirements relating to qualifications have to be met cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualification was flexible. There may be other persons who would have applied had they known that the date of acquiring qualification was flexible. Relaxing the prescribed requirements in the case of an individual may therefore cause injustice to others who had not applied because of the cut of date. Therefore, learned counsel submits that the order of the learned Single Judge does not require interference by this Court as there is no substantial question of law that would arise for consideration of this Court. 5. With reference to the rival legal contentions, we have carefully examined the impugned order to find out whether the impugned order suffers from erroneous finding or wrong in law. The aforesaid point is required to answer against the appellant for the following reasons. 6. It is an undisputed fact that for filling up the post of Anganwadi Worker in the centre the procedure is to be strictly adhered to as per the Guidelines framed under the Scheme. It is an undisputed fact that on the date of filing of application before opposite party no.4 as required under Rule 1 of the Guidelines for Selection of Anganwadi Workders, production of the residential certificate is very essential as condition no.1 of the advertisement Annexure-1 clearly states that applicant should be a permanent resident of the concerned village/Anganwadi Centre area. No doubt, the appellant claims that she is a permanent resident of the village in question as she got married to the resident of the said village. On the last date of receipt of application, she did not produce the residential certificate as her application was rejected and given an undertaking to respondent no.4 the same will be produced. The allegation made against the certifying officer is that at the instance of respondent no.5 political pressure was exerted upon him not to issue the residential certificate to the Appellant for the reason that she is a meritorious candidate than respondent no.5 is the basis on which the writ petition was filed before this Court being registered as W.P.(C) No. 10060 of 2005. The said writ petition was disposed of on 12.8.2008 with liberty to the Appellant to file an appeal against the order of rejection before respondent no.3. This Court further directed that if such appeal is filed, the same shall be considered and disposed of in accordance with law. The said writ petition was disposed of on 12.8.2008 with liberty to the Appellant to file an appeal against the order of rejection before respondent no.3. This Court further directed that if such appeal is filed, the same shall be considered and disposed of in accordance with law. The appellate authority set aside the order of engagement of the Respondent No.5 and directed for engagement of the writ appellant by disengaging the writ petitioner. Though setting aside the rejection of the application of the appellant for not granting permanent resident certificate is justified but direction should not have been given to respondent no.4 to disengage respondent no.5 and accept the residential certificate and appoint the appellant in her place as she has secured more marks is beyond the power and authority of the Sub-Collector for the reason that the same is contrary to the guidelines enumerated in the scheme as the appellant was required to produce the residential certificate along with the application which she did not do. Undisputedly on the last date of filing of application the same could not be filed before respondent no.4. Therefore, the appellate authority's power is only to examine the correctness of the rejection order of the certificate officer but not to relax the guidelines framed under the Scheme by the State Government for producing the certificate to prove that she is a permanent resident of the concerned village/A.W.C. area. Non-filing of the certificate along with application pursuant to condition no.1 of Annexure-1 has rendered the application invalid. Therefore the application of the appellant could have been rejected by respondent no.4 for non-production of resident certificate. Since the requirement was that the applicant should be a permanent resident of the concerned village/A.W.C. area, non-production of the residential certificate to prove permanent resident-ship is itself a ground for rejection of the application on the ground that it is not a valid application. Appellant's selection on the basis of the marks secured is illegal. The same could not have been interfered with by respondent no.3 in exercise of appellate jurisdiction while examining the correctness of the order of the Tahasildar stating that she has given undertaking that the residential certificate would be produced. Such observation and direction contained in the impugned order passed by respondent no.3 is wholly without jurisdiction. The same could not have been interfered with by respondent no.3 in exercise of appellate jurisdiction while examining the correctness of the order of the Tahasildar stating that she has given undertaking that the residential certificate would be produced. Such observation and direction contained in the impugned order passed by respondent no.3 is wholly without jurisdiction. Therefore, the learned Single Judge has rightly made observation that the appellant was required to adhere to the guidelines enumerated under the Scheme that the applicant should furnish the resident certificate. If the same is not produced, the application is not a legally valid one and the same is treated as no application in the eye of law. Such observation is in conformity with the well settled principles of law as held by the Supreme Court in AIR 1999 SC 1230 and further the learned Single Judge has rightly quashed the impugned order to respondent no.3 and allowed the writ petition. The said decision is in conformity with the judgment of the Supreme Court referred to in the impugned judgment and also in accordance with another decision of the Supreme Court in State of Rajasthan v. Hitendra Kumar Bhatt upon which reliance is placed by the learned counsel for respondent no.5. 7. For the reasons stated supra, we do not find any good reason to interfere with the reasons recorded by the learned Single Judge as it is neither vitiated on account of erroneous finding nor error of law. On the other hand, the order of respondent no.3 in setting aside the engagement of respondent no.5 is illegal as the same is without jurisdiction. The appeal must therefore fail and is accordingly rejected. Final Result : Allowed