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2014 DIGILAW 95 (ORI)

BAIJAYANTIBALA BHUYA v. COLLECTOR-C-DISTRICT

2014-02-05

A.K.GOEL, A.K.RATH

body2014
JUDGMENT : Dr. Akshaya Kumar Rath, J. - Challenge is made to the order dated 7.8.2013 passed by the learned single Judge in WP(C) No. 4974 of 2008, whereby and whereunder the writ application was dismissed. Pursuant to the advertisement issued by the Child Development Project Officer, Barachana, respondent No. 2, for filling up of the post of Anganwadi Worker in respect of Ekadalia Anganwadi Centre in the district of Jajpur, the appellant made an application. The last date for submission of the application was 18.8.2007. Respondent No. 3 having been selected, the appellant filed writ petition being WP(C) No. 4974 of 2008, inter aha, on the ground that respondent No. 3 had submitted residential certificate on 20.8.2007 i.e. two days after the cut off date. By order dated 7.8.2013, learned single Judge dismissed the writ application holding, inter alia, that the respondent No. 3 has been engaged as Anganwadi Worker and in the meantime eight years have elapsed. 2. We have heard Mr. Mishra, learned counsel for the appellant and Mr. Panda, learned Addl. Government Advocate. 3. In course of hearing, Mr. Mishra submitted that the application of respondent No. 3 was not complete in all respects inasmuch as she filed her residential certificate two days after the cut off date. In view of the same, the order passed by the learned single Judge is liable to be interfered with. 4. In course of hearing, Mr. Mishra, learned counsel for the appellant, cited the decisions of the Apex Court in the cases of Japani Sahoo Vs. Chandra Sekhar Mohanty, ; State of Maharashtra through CBI, Anti Corruption Branch, Mumbai Vs. Balakrishna Dattatrya Kumbhar State of Rajasthan and Another Vs. Kulwant Kaur Dipitimayee Parida Vs. State of Orissa and Others, . 5. In the case of Japani Sahoo Vs. Chandra Sekhar Mohanty an application u/s 482, Cr. P.C. was filed before this Court for quashing of cognizance taken by the learned S.D.J.M., Bhubaneswar on the ground, inter alia, that no cognizance could have been taken by the Court after the period of one year of limitation prescribed for the offence under Sections 294 & 323, I.P.C. and thus the complaint was barred by limitation. The same having been allowed, the complainant approached the Apex Court. The same having been allowed, the complainant approached the Apex Court. The Apex Court held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. The said case is not applicable to the facts and circumstances of the present case. 6. A judgment of a criminal case cannot be cited as an authority in a service matter when contextually both the matters are different. 7. In Balakrishna Dattatrya Kumbhar (supra), the same is a case u/s 389 (1), Cr. P.C. The same has also no application under the facts and circumstances of the case in view of the analysis made over. 8. In State of Rajasthan and Another Vs. Kulwant Kaur the respondent was appointed as a Grade-Ill Teacher on 25.11.1983 by the Panchayat Samiti, Padampur. The minimum qualification required for the post of Primary School Teacher was the Matriculation and Basic Short Training Certificate Course. The services of the respondent were terminated in the year 1984 but she was appointed on a temporary basis. The Director, Primary and Secondary Education issued a circular directing termination of the services of temporary teachers who possessed only Diploma in Tailoring. The services of the respondent pursuant to the said circular had also been terminated. Relying on the said circular dated 11.05.1987, she filed a writ petition before the Rajasthan High Court wherein an order of stay was passed. She was allowed to continue in service. The writ petition having been allowed, the State of Rajasthan approached the Apex Court. In para 13 of the report, the Apex Court has observed that the respondent did not possess the requisite qualification. Only because the order of termination of service of respondent was directed to be stayed and in obedience of the interim order passed by the High Court, she was allowed to continue in services, the same, cannot lead to the conclusion that she had been validly holding the post or the order of termination was bad in law. 9. So far as in the case of Diptimayee Parida (supra) is concerned, the appellant was not married at the time of making an application for recruitment as an anganwadi worker and the last date where for was 20.09.2000. 9. So far as in the case of Diptimayee Parida (supra) is concerned, the appellant was not married at the time of making an application for recruitment as an anganwadi worker and the last date where for was 20.09.2000. She married in the year 2001. But then, 3 marks more were awarded on the ground that she got married. On the said context, the Apex Court was one thing to say that the criteria fixed for the purpose of the recruitment of anganwadi workers were illegal or ultra vires but it was another thing to say that although they were valid, in their application some relaxation could be granted. When marks were fixed specifying the criteria in the rule, the same should be strictly followed. It is further held that the selection committee was not conferred with any power to grant relaxation. The ratios of State of Rajasthan and Another Vs. Kulwant Kaur, and Dipitimayee Parida Vs. State of Orissa and Others, have no application in the facts and circumstances of the case. The same are clearly distinguishable. 10. In Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others the Supreme Court held that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Constitution Bench of the Supreme Court in the case of Union of India (UOI) Vs. Chajju Ram (Dead) by Lrs. and Others, has held as under :-- It is not well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts may lead to a different conclusion. 11. A judgment of the Court is not to be read as a statute as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. Substantial flexibility; one additional or different fact may make a world of difference between the conclusions in two cases. ( Ashwani Kumar Singh Vs. U.P. Public Service Commission and Others, ). 12. In course of hearing, we put a specific question to Mr. Substantial flexibility; one additional or different fact may make a world of difference between the conclusions in two cases. ( Ashwani Kumar Singh Vs. U.P. Public Service Commission and Others, ). 12. In course of hearing, we put a specific question to Mr. Mishra, learned counsel for the appellant, as to whether the respondent No. 3 is eligible and more meritorious than the appellant. His answer is in affirmative. Mr. Panda, learned Addl. Govt. Advocate submits that the respondent No. 3 is not only eligible, but also more meritorious than the appellant. In the meantime, eight years have elapsed and she is continuing in the said post. He further submits that the judgments cited by Mr. Mishra are distinguishable in the facts and circumstances of the present case. In view of the fact that respondent No. 3 has been continuing as anganwadi worker for the last eight years and she is more meritorious than the appellant, we are not inclined to interfere with the order passed by the learned single Judge. The Writ Appeal is accordingly dismissed. There shall be no order as to cost. Final Result : Dismissed