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2014 DIGILAW 600 (ORI)

Kanchanmani Jena v. State of Orissa

2014-09-17

AMITAVA ROY, B.R.SARANGI

body2014
Judgment The subject matter of assailment in the instant appeal is the judgment and order dated 5.9.2014 passed in W.P.(C) No. 1905 of 2012 setting at naught the appointment of the present appellant as Anganwadi Worker of Batapada Anganwadi Centre at the instance of the present respondent No.5. 2. We have heard Mr. Milan Kanungo, learned counsel on behalf of the appellant. 3. Facts in brief are that an advertisement was published on 30.07.2007 initiating the process for appointment, amongst others, to the above post, to which the appellant and the respondent No.5 along with other candidates offered their candidature. The process was to be governed by a set of guidelines dated 2.5.2007 formulated for the said purpose. In the scrutiny that followed, the appellant was found to have secured highest marks and the respondent No.5, second highest marks. Prior thereto, the Government of Odisha in the Women and Child Development Department did issue a letter dated 17.10.2007 to all the Collectors through its Commissioner-cum-Secretary, revising its earlier circular/guidelines dated 2.5.2007, by providing preferential marks to the effect that if the candidate was an ECCE Worker under the Sarba Sikhya Abhiyan/ NPEGEL, she would be entitled to 5 marks per year of service rendered with a ceiling of 15 marks. This letter, however, did not indicate that it would apply to the selection process already underway. Be that as it may, the appellant herein was extended the benefit thereof and she was awarded marks as contemplated in the revised guidelines dated 17.10.2007 for which, she secured the highest marks over the respondent No.5. Being aggrieved, respondent No.5 initially approached this Court in W.P.(C) No. 16050 of 2009 and later on withdrew the same and preferred an appeal before the competent authority. The said appeal having been disposed of with a direction to the concerned C.D.P.O. to issue engagement order in favour of the befitting candidate after according the benefit of weightage to the E.C.C.E. candidates, respondent No.5 preferred A.W. Appeal No.2 of 2010 before the Collector, Puri, which was disposed of on 13.10.2011 with an observation that the appellant herein had been rightly engaged as Anganwadi Worker. Against the said decision, the respondent No.5 turned to this Court in W.P.(C) No. 1905 of 2012 contending, inter alia, that it having been mentioned in the advertisement dated 30.06.2007 that the recruitment process would be conducted in terms of the guidelines dated 02.05.2007, the benefit of preferential marks to the ECCE candidates in terms of the revised guidelines dated 17.10.2007 could not have been extended. 4. In the counter filed by the State-respondent, it was averred that as the process initiated in terms of the advertisement dated 30.07.2007 was yet to be completed while the revised guidelines was introduced, the same was finalized by awarding the preferential marks to the appellant, as prescribed by the said revised guidelines, and therefore she had been rightly selected. 5. The appellant in her counter also took the same stand. 6. The learned Single Judge, however, being of the view that the revised guidelines was inapplicable to the process, as it had been initiated in terms of the advertisement dated 30.07.2007 to be governed by the guidelines dated 2.5.2007 and that the preferential marks, as prescribed under the revised guidelines dated 17.10.2007, could not have been accorded to the appellant, interfered with her selection. The instant appeal seeks to assail this finding. 7. Mr. Kanungo has urged, with special reference to the decision of the Hon’ble apex Court in Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors., AIR 2008 SC 1913 , that the revised guidelines dated 17.10.2007 was validly applied to the process of selection and thus the conclusion to the contrary arrived at by the learned Single Judge in the impugned judgment and order is wholly unsustainable in law and on facts and is thus liable to be interfered with. As the guidelines are not of any statutory bearing, the same are not binding, he urged. The learned counsel also pleaded estoppel against the respondent No.5 contending that she having participated in the selection process without any demur, it was not permissible for her to turn around and question the validity thereof. 8. We have considered the pleaded facts and documents on record and have applied ourselves to the arguments advanced. 9. Admittedly on the date on which the selection process was initiated, the guidelines dated 2.5.2007 for appointment of Anganwadi Workers were in force. 8. We have considered the pleaded facts and documents on record and have applied ourselves to the arguments advanced. 9. Admittedly on the date on which the selection process was initiated, the guidelines dated 2.5.2007 for appointment of Anganwadi Workers were in force. It is not disputed as well that on 17.10.2007 when the revised guidelines were introduced, the said exercise had not ended. That the appellant had secured highest marks only for being awarded the preferential marks as ECCE worker pursuant to the revised guidelines dated 17.10.2007 is also admitted. In Dhananjaya Mallik (supra), their Lordships of the apex Court had reiterated that the Government could fill up the gaps and supplement the Rules by issuing instructions not inconsistent with the Rules already framed. 10. This oft quoted proposition is beyond any doubt. However, in absence of any indication in the letter dated 17.10.2007 that the clause therein would be applicable also to the ongoing process, in terms of fundamental principles of applicability of an instrument having the force of law or of the nature of guidelines in absence of law providing a frame work for action of public authorities, we are of the considered opinion that the revised guidelines were intended to be given a prospective effect. In other words, the revised guidelines dated 17.10.2007, in absence of any contrary intention suggested thereby to the effect that the same would be applicable to a process already initiated for the appointment of Anganwadi Workers prior to its formulation, cannot be said to have retrospective effect and the proposition to the contrary is too primary to be dilated upon. It is a trite legal principle that any process initiated for the purpose of appointment to a public office has to be essentially governed by the law and/or norms as applicable thereto and in force on the date of initiation thereof and that no change in the rules of the game is permissible midway. 11. Further, the invocation of the revised guidelines dated 17.10.2007 to the process involved being fundamentally illogical and impermissible, the plea of estoppel is inconsequential. The grant of benefit of the preferential marks to the appellant on the basis of the revised guidelines had irreversibly vitiated her selection. The respondent No.5 herein cannot be non-suited her for mere participation in the exercise. 12. The grant of benefit of the preferential marks to the appellant on the basis of the revised guidelines had irreversibly vitiated her selection. The respondent No.5 herein cannot be non-suited her for mere participation in the exercise. 12. On a perusal of the impugned judgment and order, we are of the unhesitant opinion that learned Single judge had approached the issue in the correct legal and factual perspectives. We find no cogent reason to interfere with the impugned decision. The appeal thus fails and is dismissed.