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2013 DIGILAW 398 (ORI)

Kunimani Mallik v. Collector, Puri

2013-09-20

A.K.RATH

body2013
JUDGMENT : Dr. A.K. RATH, J. The sole question that hinges for my consideration is as to whether the Child Development Project Officer, Pipili can extend the date of verification of documents of the candidates applying for the post of Anganwadi Worker in respect of Anganwadi Centre, Binayakpur, when a cut-off date is provided in the guideline issued by the Commissioner-cum-Secretary to Government, Women and Child Development Department, Government of Orissa vide Annexure-1. 2. Adumbrated in brief, the case of the petitioner is that Commissioner-cum-Secretary to Government, Women and Child Development Department has formulated a revised guideline dated 2.5.2007 vide Annexure-1 for engagement of Anganwadi Workers. The said guideline is a set of codified executive instruction, which provides the qualification required for selection of Anganwadi Workers and the procedure to be followed in making the selection. The Child Development Project Officer, Pipili (hereinafter referred to as "CDPO") had issued an advertisement on 15.2.2008 vide Annexure-2 for selection of Anganwadi Worker in respect of Anganwadi Centre, Binayakpur. The advertisement clearly spells out that the applications shall be received between the period from 15.2.2008 to 29.2.2008 from the eligible candidates. Clause 13 of the advertisement provides that the application forms so received shall be scrutinized on 1.3.2008 in presence of the candidates. It is further provided that at the time of such scrutiny/verification, the candidates shall remain personally present with original certificates and testimonials. It further provides that the application of absentees shall not be taken into consideration. The petitioner as well as other persons submitted applications along with required documents for engagement as Anganwadi Worker. On the date of scrutiny i.e. 1.3.2008, out of four candidates, the petitioner and one Sabita Satapathy attended the scrutiny/verification process. After due consideration, the petitioner was declared to have secured the first position in the merit list. As per the provision of the scheme, a notice was published by the CDPO inviting objection to the selection of any of the two candidates, wherein it was indicated that the objection, if any, should be preferred by 10.3.2008 and, thereafter no objection shall be entertained. The further case of the petitioner is that opposite party No. 5 was not present at the time of verification/scrutiny i.e. on 1.3.2008. The further case of the petitioner is that opposite party No. 5 was not present at the time of verification/scrutiny i.e. on 1.3.2008. After issuance of general notice on 3.3.2008 inviting public objections, the selection committee held its meeting on 12.3.2008 and allowed the absentee candidates to produce their original certificates on 19.3.2008 for verification/scrutiny. Being aggrieved by the action of the selection committee, the petitioner preferred an A.W.W. Misc. Appea1 No. 39 of 2008 before the Sub-Collector, Puri. The Sub-Collector by order dated 23.10.2008 set aside the engagement of opposite party No. 5 and directed the CDPO to issue engagement order in favour of the petitioner holding, inter alia, that the selection committee had not followed the revised guideline issued by the Government. In consonance with the order of the Sub-Collector, the CDPO issued engagement order in favour of the petitioner on 27.10.2008. Thereafter, the petitioner joined as an Anganwadi Worker. 3. While the matter stood thus, opposite party No. 5 preferred an appeal before the Collector, Puri, which was registered as A.W.W. Appeal Case No. 60 of 2008, pursuant to the observations of this Court in W.P. (C) No. 15820 of 2008. In the said writ application, no notice was issued to her. The Collector, who has no jurisdiction to entertain the appeal filed at the behest of opposite party No. 5, examined the merit of the selection process and tenability of the findings recorded by the Sub-Collector in A.W.W. Misc. Appeal No. 39 of 2008, by order dated 2.3.2009 came to hold that the Committee had not committed any illegality by extending the time for verification/scrutiny and thereby granting time in favour of opposite party No. 5. 4. Pursuant to issuance of notice, the CDPO, opposite party No. 4 has entered appearance and filed counter affidavit. The sum and substance of the case of opposite party No. 4 is that in response to the advertisement dated 15.2.2008, four candidates submitted their applications for engagement of Anganwadi Worker including the petitioner and opposite party No. 5. After verification/scrutiny of their original documents, the selection committee informed them to remain present on 1.3.2008, which was duly communicated to all the candidates. Opposite party No. 5 filed a time petition supported by a medical certificate showing that she was ill and unable to attend in the verification process. After verification/scrutiny of their original documents, the selection committee informed them to remain present on 1.3.2008, which was duly communicated to all the candidates. Opposite party No. 5 filed a time petition supported by a medical certificate showing that she was ill and unable to attend in the verification process. The selection committee in its meeting on 12.3.2008 considered the aforesaid application of opposite party No. 5 along with another candidate Smt. Diptimayee Satpathy and allowed them for verification/scrutiny of their original certificates. The resolution was signed by the President of the selection committee, who is the Vice-President of Pipili Panchayat Samiti. It is further stated that on 24.3.2008, the selection committee taking into account the candidature of four candidates took a decision that since opposite party No. 5 has secured the highest mark as per the guideline of the State Government, selected her as Anganwadi Worker. It is further stated that granting extension of time for scrutiny of the documents by the selection committee cannot be termed as illegal, since for unavoidable and bona fide reasons, opposite party No. 5 was prevented from appearing on the date of scrutiny as has been found by the selection committee in its meeting dated 12.3.2008. The further case of the opposite party No. 4 is that the guideline for selection is an executive instruction, which should be followed in spirit, even though in the present case, the time scheduled was breached by mechanical reasons, but has not affected in selecting the most meritorious candidate. 5. Opposite party No. 5 has also filed a counter affidavit. Case of opposite party No. 5 is that four candidates had applied to the post of Anganwadi Worker at Binayakpur, out of them, one Sabita Satpathy and petitioner were present on the date of scrutiny. She was ill on the date of scrutiny/verification of documents. Thereafter she filed an application before the CDPO requesting her to verify documents. The selection committee on 12.3.2008 decided to allow the candidates for verification of their documents on 19.3.2008 and after a thorough verification, it was found that amongst the four candidates, she has secured the highest mark and, accordingly, selected her. It is further stated that the petitioner had not raised any objection against the decision of the authority on 12.3.2008. The selection committee on 12.3.2008 decided to allow the candidates for verification of their documents on 19.3.2008 and after a thorough verification, it was found that amongst the four candidates, she has secured the highest mark and, accordingly, selected her. It is further stated that the petitioner had not raised any objection against the decision of the authority on 12.3.2008. The further stand of opposite party No. 5 is that nowhere in the guideline, there is any restriction/prohibition upon CDPO from giving a notice to the candidate asking his/her to remove the defects, if any. 6. In course of hearing, Mr. P.K. Mohanty, learned counsel appearing for the petitioner submitted that under the guideline formulated by the Government vide Annexure-1, there is no provision for second appellate forum against the decision of the Sub-Collector in the matter of selection of Anganwadi Workers. The restricted appellate power conferred upon the Collector under the guideline is circumscribed by the provisions of Clause 7(i) and 7(iv) of the guideline, which can be invoked in the event of disengagement of an Anganwadi Worker on happening of any of the situations/contingencies enjoined in Clause 7 (iv). Such situations do not arise in the fact and circumstances of the present case. Furthermore, the Collector has delved into the tenability or correctness of the findings/conclusions arrived at by the Sub-Collector in purported exercise of a second appellate forum and hence the impugned order is without jurisdiction and is liable to be quashed. The second limb of submission of Mr. Mohanty is that the administrative guideline is clear and has woven stringent procedural requirements with definite time limits. The authorities derive powers from the guideline. They have duty to exercise such powers strictly as per the provisions enjoined in the guideline governing the field. The committee and authority have not been vested with sweeping unbridled power at their subjective discretion. The authority having acted beyond the scope of the provisions contained in the guideline and exercised powers in granting relaxation in favour of opposite party No. 5, which is dehors the provision of the guideline, the action is indefensible and is liable to be struck down. Mr. Mohanty further submitted that in absence of any statutory provision, the guideline issued by the Commissioner-cum-Secretary has the force of law and has to be strictly followed. Mr. Mohanty further submitted that in absence of any statutory provision, the guideline issued by the Commissioner-cum-Secretary has the force of law and has to be strictly followed. The selection committee or the authority lacks power and jurisdiction to act in violation of the guideline and conferring opportunity to the absentee candidates for scrutiny of their documents beyond the date fixed as per the notification and thereby making the entire selection process, which had been completed as per the guideline, to a meaningless formality. 7. Per contra, learned Addl. Government Advocate appearing for the opposite party No. 4 submitted that the selection committee by its meeting dated 12.3.2008 considered the application of opposite party No. 5, who was ill on the date of verification/scrutiny and allowed her time for verification of the document on 19.3.2008. On 24.3.2008, the selection committee considered the applications of four candidates and found opposite party No. 5 to be suitable and, accordingly, issued engagement order in their favour, since she has secured highest mark. Learned Addl. Government Advocate further submitted that granting extension of time for scrutiny of the documents by the selection committee cannot be termed as illegal, since for unavoidable and bona fide reasons, opposite party No. 5 was prevented from appearing on the date of scrutiny of the documents as found by the selection committee on 12.3.2008. Learned Addl. Government Advocate further submitted that the guideline for selection is an executive instruction, which should be followed in spirit, even though in the present case, the time scheduled was breached by mechanical reasons, but the same has not affected in selecting the meritorious candidate. 8. Mr. Rath, learned counsel appearing for opposite party No. 5 submitted that on the date of verification, since opposite party No. 5 was ill, she filed an application before the selection committee, which was accepted and, thereafter, a date was fixed for verification of the documents. No prejudice was caused to the petitioner when the date of verification of the documents was deferred by the CDPO. Furthermore, opposite party No. 5 was more meritorious than others for which she was selected. So far as the appeal filed before the Collector, Puri is concerned, Mr. Rath submitted that in pursuance of the direction of this Court passed in W.P. (C) No. 15820 of 2008, opposite party No. 5 filed appeal. Mr. Furthermore, opposite party No. 5 was more meritorious than others for which she was selected. So far as the appeal filed before the Collector, Puri is concerned, Mr. Rath submitted that in pursuance of the direction of this Court passed in W.P. (C) No. 15820 of 2008, opposite party No. 5 filed appeal. Mr. Rath fully supported the order passed by the Collector, Puri. Placing reliance on the order dated 26.2.2008 passed by this Court in the case of Smt. Jyotirekha Nayak v. Collector, Kendrapara and others, in Writ Appeal No. 81 of 2007, Mr. Rath submitted that there is no prohibition for the CDPO in fixing another date for scrutiny/verification of documents. 9. This Court, in the case of Hari Das v. Director of Fisheries, 103 (2007) CLT 254, 2007 (Supp.I) OLR 350 while dealing with the guideline held that when executive authorities themselves frame a procedure, they are bound by such procedure. While coming to such a conclusion, heavy reliance was placed on Ramana Dayaram Shetty v. The International Airport Authority of India and others, AIR 1979 SC 1628 . In Jyotirekha Nayak case, opposite party No. 3 filed a complaint before the Collector, Kendrapara to the effect that she made an application for the post of Anganwadi Worker of Hanumantpal (Paikrapur) Anganwadi Centre and that her application was rejected by CDPO, Kendrapara on the ground that her HSC mark sheet was not available in the application. In her complaint she had categorically stated that she had applied for the post along with the mark sheet and educational certificate within the stipulated time, but her application was rejected by detaching the HSC mark sheet from the application with some ulterior motive. The said complaint was inquired into by the Collector, who held that if the mark sheet was not available, the CDPO should have informed the candidate by allowing three days notice. This Court held that there is no prohibition for the CDPO from giving any notice to the candidate asking her to remove the defect, if any. The said observation is no authority for the proposition that when the Government have framed a guideline stipulating certain terms and conditions embodied therein for appointment of Anganwadi Worker, the Committee/CDPO on their sweet-will appoint Anganwadi Worker in contravention of the said guideline. The administrative guideline issued by the Government is clear and unambiguous. The said observation is no authority for the proposition that when the Government have framed a guideline stipulating certain terms and conditions embodied therein for appointment of Anganwadi Worker, the Committee/CDPO on their sweet-will appoint Anganwadi Worker in contravention of the said guideline. The administrative guideline issued by the Government is clear and unambiguous. The CDPO derives power from the said guideline. It is her bounden duty to see that time stipulation is strictly followed. Neittier the Committee nor the CDPO have been vested with any discretionary power to relax the norms. The procedure provided for selection of Anganwadi Worker vide Annexure-1 would show that there is a definite time limit for inviting applications, verification of documents and filing of objections, but no relaxation clause is there. Thus, the findings of the Collector, Puri is that if a candidate files application within the stipulated time, but nominal verification could not be made on any bona fide and unavoidable grounds by the stipulated date and verification of documents on a subsequent date decided by a statutory committee is not a wrong step or decision, is perverse and not in consonance with law. Neither the Committee nor the CDPO has any discretion to defer the date of scrutiny/verification of documents, when a definite time limit is provided under the guideline. There is also no provision for entertaining an application at the behest of a candidate to defer the date of verification of documents on the ground of illness. 10. On taking a holistic view of the matter, I am of the considered opinion that the order dated 2.3.2009 passed by the Collector, Puri in A.W.W. Appeal No. 60 of 2008 is not sustainable and liable to be quashed. Accordingly, the order dated 2.3.2009 passed by the Collector, Puri is quashed. Consequently, the engagement of opposite party No. 5 as Anganwadi Worker in Anganwadi Centre, Binayakpur is quashed. The CDPO, opposite party No. 4 is directed to issue engagement order in favour of the petitioner within a period of thirty days from the date of receipt of certified copy of the judgment. 11. In the result, the writ petition is allowed. No costs. Petition allowed.