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2015 DIGILAW 555 (ORI)

Sebati Patra v. State of Orissa

2015-09-23

S.N.PRASAD

body2015
JUDGMENT : S.N. Prasad, J. 1. This writ petition has been filed assailing the order dated 15.4.2011 passed in AW Misc. Case No. 4 of 2011(Annexure-5) by which engagement of the petitioner has been held to be in contravention of the guideline and as such it was set aside and accordingly the authorities have been directed to take necessary steps for selection of Anganwadi Helper of the centre from amongst the applicants. 2. Brief facts of the case is that one advertisement was issued for engagement of Anganwadi Helper in respect of Gohirapadi Anganwadi Centre and accordingly eight candidates including the petitioner as well as the opposite party No. 5 had submitted applications for consideration and selection as Anganwadi Helper for the said Centre. The candidature of the petitioner and others have been considered in the light of the guideline of the Government of Orissa, issued by the Women and Child Development Depart vide letter No. 9994 dated 24.11.1997. Petitioner found fit to be eligible was subjected to suitability test along with other participants and accordingly petitioner since secured 10 marks has been selected and engaged. Selection and engagement of the petitioner has been objected by the opposite party No. 5 on the ground that she being widow, ought to have been given preference and thereby was to be selected but giving go by to the preferential guideline dated 24.11.1997, the petitioner has been selected and engaged. Sub-Collector after accepting the appeal, after hearing the parties has passed order declaring the selection and engagement of the petitioner to be in contravention of the guideline and as such same was set aside with a direction to take necessary steps for selection of Anganwadi Helper of the centre from amongst the applicants giving due preference to the opposite party No. 5 for her being widow. 3. Petitioner has challenged the order passed by the Sub-Collector, Bhadrak on the following grounds: "(1) Guideline dated 24.11.1997 issued by the Women & Child Development Department provides eligibility conditions under Clause (i), (ii)(iii), (iv), (v) and Clause (v) being preference clause should be given to Orphan, Widow, Separated Divorced or Deserted Woman. 3. Petitioner has challenged the order passed by the Sub-Collector, Bhadrak on the following grounds: "(1) Guideline dated 24.11.1997 issued by the Women & Child Development Department provides eligibility conditions under Clause (i), (ii)(iii), (iv), (v) and Clause (v) being preference clause should be given to Orphan, Widow, Separated Divorced or Deserted Woman. (2) A Helper will be selected by a Committee consisting of following members: (i) C.D.P.O. of the Project being Chairperson; (ii) Supervisor in-charge of the area and (iii) A.N.M. in-charge of the area being other members." The above committee will select the Helper in consultation with the Women Groups of the village. In case, for any reasons, to be recorded in writing, it is not possible to make the selection in a particular village the selection may be made in the Project Headquarters by the above mentioned committee. However, the candidate selected should fulfill all the eligibility criteria as mentioned at para-1 above. 4. Learned counsel for the petitioner has submitted "(i) Petitioner being found suitable on the basis of the decision taken by the Committee to go for written and viva voce tests secured highest marks in the selection process, she has rightly been engaged. (ii) Petitioner is eligible as per clause-1 and it is only after her eligibility she was directed to go for suitability test in which she has found to be highest securer of marks. (iii) Preference cannot override the merit position rather preference can only be given if two candidates are found to be on same footing. Meaning of preference cannot be misconstrued to give undue weight age over and above meritorious candidates. (iv) Clause-1(v) stipulates that preference should be given to an Orphan, Widow, Separated Divorced or Deserted Woman, purpose is to support these categories of the candidates but for getting the support it is incumbent upon these categories of candidates to prove that they are really in need of any support and they are not financially capable for sustaining life. (iv) Clause-1(v) stipulates that preference should be given to an Orphan, Widow, Separated Divorced or Deserted Woman, purpose is to support these categories of the candidates but for getting the support it is incumbent upon these categories of candidates to prove that they are really in need of any support and they are not financially capable for sustaining life. (v) Widow or separated or divorced woman, if so facto, cannot be given benefit of preference if they are not in penury i.e. without any means of livelihood, there may be situation that widow, separated, divorced and deserted woman is capable after being inherited property from the deceased-husband or give financial help by the court of law to the divorcee or deserted woman and as such for getting benefit of preference clause a candidate is suppose to make out her case regarding need of financial help which can be given to them in the shape of engaging them as Anganwadi Helper." All these are lacking and has not been raised before the appellate authority, without considering these aspect of the matter and only on the preference clause, selection made on the basis of the merit is held to be illegal. 5. Opposite party-State has filed counter affidavit stating, inter alia, therein that for deciding the suitability written test and viva voce was conducted for selection of Anganwadi Helper in which petitioner has secured highest marks, i.e. 10 marks while opposite party No. 5 has secured only 4 marks, hence in order not to compromise with the merit, selection committee has taken decision by engaging the petitioner. It has been submitted that preference does not mean that suitability will be ignored rather implied meaning of preference is that if two candidates are on same footing then only preference clause is to be applied. 6. Opposite party No. 5 has put her appearance through learned Advocate who has argued the case at length and submitted that engagement relates to Anganwadi Helper. 6. Opposite party No. 5 has put her appearance through learned Advocate who has argued the case at length and submitted that engagement relates to Anganwadi Helper. The procedure for engagement of Helper has been given in the guideline dated 24.11.1997, Clauses provides that for being a candidate, should be lady of the locality and acceptable to the Anganwadi Worker, should not be less than 18 years of age, preference should be given to Orphan, Widow, Separated Divorced or Deserted Woman, opposite party No. 5 being widow ought to have been given benefit of preference clause as provided in the guideline but not given. In order to emphasize these argument, learned counsel for the opposite party No. 5 has submitted that Anganwadi Helper is not a civil post rather Anganwadi Helper is suppose to help Anganwadi Worker in the matter of cooking and other needs, hence for cooking there is no need to go for written as well as Viva voce test which is not prescribed in the guideline dated 24.11.1997 which provides that selection is to be made through a committee consisting of three members of which C.D.P.O. of the Project would be Chairperson and Supervisor In-charge and A.N.M. in-charge would be two other members which itself suggest that selection is to be made on the basis of selection with consultation with the Women Group of village, there is no reference to go for written test or Viva voce test. Since the State authorities have gone for written or viva voce test and on that test petitioner has secured 10 marks while opposite party No. 5 has secured 4 marks, since there is no procedure for selection test, engagement of the petitioner cannot be said to be selection in consonance with the guideline dated 24.11.1997. If there would not have been any written or viva voce test then opposite party No. 5 on the basis of preference clause, since she was widow, would have been selected but it is only in order to deprive the opposite party No. 5 legitimate claim for giving the benefit of preference, the authorities have gone for written and viva voce tests even the same was not provided in the guideline dated 24.11.1997. 7. Heard learned counsel for the parties and perused the documents on record. 8. 7. Heard learned counsel for the parties and perused the documents on record. 8. Fact which is not in dispute in this case is that an advertisement was issued in which eight candidates have participated. The authorities have issued advertisement on the basis of the guideline dated 24.11.1997 for engaging Anganwadi Helper. Guideline provides the following eligibility criteria: "(i) She must be a lady of the locality and acceptable to the Anganwadi Worker, (ii) She should not be of less than 18 years of age. (iii) She can continue in the job till she discharges her duty efficiently. (iv) The C.D.P.O. is competent to appoint and discharge the Helper. (v) Preferences should be given to an Orphan, Widow, Separated Divorced or Deserted Woman." The guideline further provides for selection: "(i) C.D.P.O. of the Project ... Chair-person (ii) Supervisor in-charge of the area ... Member (iii) A.N.M. in-charge of the area ... Member" From perusal of clause-1 regarding eligibility conditions although five conditions have been given, only two conditions can be said to be eligibility condition i.e. (i) She must be a lady of the locality and acceptable to the Anganwadi Worker and (ii) She should not be of less than 18 years of age. Condition No. (iii) which provides continuation of Helper in the job. Condition No. (iv) prescribes for competent authority for appointment and discharge of the Helper. Condition No. (v) prescribes preferences to be given to an Orphan, Widow, Separated, Divorced or Deserted Woman. Preference cannot be said to be an eligibility condition. Under Clause-2 procedure for selection has been given, according to which an Helper is supposed to be engaged by a committee consisting of three members, C.D.P.O. of the project will be Chairperson while Supervisor in-charge and A.N.M. in-charge of the area will be two other members. The above committee should select Helper in consultation with the Women Group of the village. In case, for any reasons, to be recorded in writing, it is not possible to make the selection in a particular village the selection may be made in the Project headquarters by the above mentioned Committee. However, the candidate selected should fulfill all the eligibility criteria as mentioned at para-1 above. Thus power for engagement has been vested upon the committee who will select in consultation with the Women Group of the village. However, the candidate selected should fulfill all the eligibility criteria as mentioned at para-1 above. Thus power for engagement has been vested upon the committee who will select in consultation with the Women Group of the village. It is right that modes of selection process has not been given in the guideline dated 24.11.1997. It is settled that if there is no selection method prescribed in the guideline or Rule, the appointing authority or the competent authority is competent to evolve policy for making appointment in order to adopt fair play and transparent recruitment process. In this case, although engagement of Helper is to be made, prime work of Helper is to cook which is to be provided to small children. Cooking also needs some expertise, if a candidate whose prime duty is to cook it is expected from the said helper to cook properly, feed in proper manner so that food which is to be provided to small children be taken with all interest. Keeping this fact in mind authorities have decided to go for selection test of course with consultation of the Women Group. In the selection, as has been stated by the learned counsel for the opposite party-State, question related to cooking was asked for from the candidates in which all the members have awarded marks in written and viva voce test. The petitioner has secured 6 marks out of 10 highest marks in the written test and 4 marks out of 10 in viva voce test total comes to 10 marks while the opposite party No. 5 has secured only one mark out of 10 in written test and 3 marks out of 10 in the viva voce test total comes to 4 marks. Allotting of marks also suggests that no unfair play has been played because the petitioner in the written test has secured 6 marks while opposite party No. 5 has secured only one mark and in the interview petitioner has secured 4 marks while opposite party No. 5 has secured 3 marks. 9. On the basis of the highest marks petitioner was directed to be selected and accordingly engaged. 9. On the basis of the highest marks petitioner was directed to be selected and accordingly engaged. After engagement opposite party No. 5 has challenged the decision of the selection committee on the ground that she has not been given benefit of preference clause since she was widow and as such she ought to have been engaged irrespective of the marks obtained by her and the authorities should not have been gone for written or viva voce tests since not provided in the guideline dated 24.11.1997. 10. As has already been indicated hereinabove regarding second ground that decision of the authority going for written and viva voce test was wrong, it is settled that authorities is competent enough to go for any procedure of selection in order to test the suitability of a candidate, the same cannot be questioned by a candidate after her participation in the selection process. Here, opposite party No. 5 without any objection at any corner has participated in the selection process, but when became unsuccessful she is questioning the decision of going for written as well as viva voce test which is not permissible in view of the settled proposition of law that once a candidate has participated in the selection process she cannot challenge the same. Reference may be to the judgment rendered by the Hon'ble Supreme Court in the case of Marripati Nagaraja and others v. Government of A.P. and others, reported in (2007) 11 SCC 522 wherein their Lordships held at paragraph-19 which is being quoted below. "The other contention of Mr. Rao that the candidates had given only seven days" time for making preparation to appear in the second screening test, cannot, in our considered view, give rise to a ground for setting aside the entire selection process. The Tribunal did not make any discrimination. One screening test had already been held. The number of candidates appeared in the first screening test was 510. The Commission obtained the permission of the Tribunal for holding the second screening test. It issued a notification on 12.12.2000 stating that such a test would be conducted on 7.1.2001. All the candidates were given the same time for preparation. Only because the appellants herein were employees at the relevant time, the same by itself could not confer on them any special privilege to ask for an extended time. They had no legal right in relation thereto. All the candidates were given the same time for preparation. Only because the appellants herein were employees at the relevant time, the same by itself could not confer on them any special privilege to ask for an extended time. They had no legal right in relation thereto. Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process." And in the case of Vijendra Kumar Verma v. Public Service Commission Uttarakhand and others reported in (2011)1 SCC 150 wherein their Lordships held at paragraph-27 which is being quoted below. "In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 in para 18 it was held that: "18. ..... It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same." In view of the settled position of law learned counsel for the opposite party No. 5 is not accepted. It is also not accepted due to the reason that this point has not been raised before the appellate authority. 11. So far as main thrust of argument by learned counsel for the opposite party No. 5 regarding preference clause as contained in Clause-1(v) and as per the argument opposite party No. 5 ought to have been selected being a widow irrespective of marks or irrespective of any suitably condition. In order to deal with the circumstance of preference it is necessary to see the judgment of the Apex Court in the case of Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and others, reported in (2003) 5 SCC 341 wherein at paragraph-10 it has been held that preference envisaged has to be given only when claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-à-vis others in the matter of actual selection. Another judgment of the Hon'ble Supreme Court rendered in the case of State of U.P. and another v. Om Prakash and others, reported in (2006) 6 SCC 174 wherein at paragraph-19 which is being quoted herein below: "The word "preference" would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-à-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability." 12. It is settled that preference cannot be equated with the benefit of reservation. Even in the matter of extending benefit of reservation to the members of backward communities, candidates belonging to other backward community, the candidates have to show that he is not in the creamy layer. In this context, judgment of the Hon'ble Supreme Court in the case of Indra Sawhney & Ors v. Union Of India & Ors reported in 1992 Supp.(3) SCC 217 may be referred to. Applying the same principle, preference cannot be given as a matter of right and the guideline suggests to give preference to Orphan, Widow, divorced or deserted woman for extending monetary help for the purpose of making them independent so that these categories of candidate may survive on their own leg but for getting this benefit this category of candidate has to substantiate that they are actually in need of preference otherwise there will be no meaning to give preference if it will be given to these categories of candidate who are financially sound. For example, there may be of situation in this category that if a candidate is widow, there may be circumstances that husband might have left substantial means for her survival, in case of divorcee or deserted women after decree of divorce has been passed by the competent court of law she must have got some alimony for maintenance, meaning thereby merely being in the category of widow, separated divorced or deserted woman, benefit of preference cannot be given and if candidate wants to take benefit of preference they have to come out with specific case that they are in actual need of help, but even then there would not be any compromise with the quality efficiency and merit, due to the settled principle of law that benefit of preference can only be given if two candidates are on same footing otherwise not. Applying the same principle merely because opposite party No. 5 is widow cannot claim as a matter of right the benefit of preference being a widow by engaging her unless and until she will prove that she is actually in need of engagement. 13. Thus the settled position of law that preference can only be given when candidates are on similar footing. If a candidate although is not on same footing with respect to suitability and if on the basis of preference engagement has been made then it will certainly lead to inefficiency in discharge of duty and will be compromising with the efficiency. In this regard, submission of the learned counsel for the opposite party No. 5 that engagement relates to Anganwadi Helper and work of Anganwadi Helper is not so important or serious that requires assessment on merit. This argument cannot be accepted because of the reason that a candidate cannot be engaged without testing suitability and merit may be the post is of contractual nature or any of the work like cooking etc. Everywhere merit/suitability is necessary to be seen before induction of a candidate in a job. In this case consideration of engagement of Anganwadi Helper is involved who is supposed to cook food, nourish small children, all these requires expertise and without any expertise in the matter of cooking and nourishing, maximum utilization of work cannot be taken out from the said candidate. In this case consideration of engagement of Anganwadi Helper is involved who is supposed to cook food, nourish small children, all these requires expertise and without any expertise in the matter of cooking and nourishing, maximum utilization of work cannot be taken out from the said candidate. Here the guideline dated 24.11.1997 does not provide any process of selection and in such situation the selection committee was competent enough to adopt selection process to test the suitability, as such the authority has taken decision to go for selection test by written and viva voce tests and in the said test question related to cooking had been asked and accordingly the Committee has assessed that the petitioner is more meritorious than the opposite party No. 5. Petitioner has secured 10 marks while opposite party No. 5 secured four marks. So in between these two candidates there is no comparison of merit due to long gap in marks obtained by these two candidates. Thus, both of the candidates are not on similar footing, hence opposite party No. 5 cannot claim any benefit on the basis of preference. 14. Sub-Collector while entertaining the complaint of opposite party No. 5 has not taken into all these aspect of the matter and came to conclusion that selection of the petitioner is contrary to the guideline, but how it is contrary to the guideline has not been discussed in the order. 15. In view of the foregoing reasons I am of the considered view that the order of the Sub-Collector dated 15.4.2011 suffers from infirmity, order having been passed without taking into consideration all these aspects of the matter as discussed hereinabove, hence same is not sustainable, accordingly quashed. 16. In the result, writ petition is allowed.