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Orissa High Court · body

2016 DIGILAW 314 (ORI)

Sasmita Jena v. Addl. District Magistrate

2016-04-19

S.N.PRASAD

body2016
ORDER In both the writ petitions since common question involved, as such both the cases have been disposed of by this common order. W.P.(C) No. 18404 of 2012:- This writ petition has been filed for quashing the order dated 24.07.2012 passed by the C.D.P.O., Chandabali as contained in Annexure-9 and for issuance of direction upon the opposite parties to allow the petitioner to continue against the post of Anganwadi Worker. W.P. (C) No. 10738 of 2012 :- This writ petition has been filed assailing the order dated. 17.05.2012 passed by the ADM, Bhadrak in Anganwadi Appeal No. 43 of 2011 whereby and where under the engagement of the petitioner has been cancelled. The brief facts of the case is that the petitioners of both the cases have participated in the selection process for being engaged as Anganwadi Worker for the centre in question and in course of comparative assessment of candidature one Sasmita Jena, the writ petitioner in W.P.(C) No. 10738 of 2012 had been selected and engaged, her engagement was questioned by the other candidate namely, Kumari Basantilata Parhi, the writ petitioner in W.P.C. No. 18404 of 2012 and on her application an appeal was registered being Anganwadi Appeal No. 43 of 2011 which was decided vide order dated 17.5.2012 and the order was passed by the concerned A.D.M. disengaging Sasmita Jena and thereby directing for engagement of Basantilata Parhi, the said order was challenged by Sasmita Jena in W.P. (C) No. 10738 of 2012 and this Court vide order dtd. 25.06.2012 while issuing notice upon the opposite parties has passed an interim order to the effect that Sasmita Jena shall not be disengaged pursuant to the order under Annexure-3 dtd. 17.5.2012 passed by the A.D.M. in Anganwadi Appeal No. 43 of 2011 and in pursuance to the said interim order the C.D.P.O. has issued order dtd. 24.7.2012 allowing Sasmita Jena to continue with the post and in pursuance to the same Sasmita Jena has resumed her duty, immediately thereafter Basantilata Parhi has filed a separate writ petition being W.P.(C) No. 18404 of 2012 assailing the order dtd. 24.7.2012 and as such both the cases have been tagged together since the matter relates to the consequence of the order passed by the A.D.M. which is under challenge in W.P.(C) No. 10738 of 2012. 24.7.2012 and as such both the cases have been tagged together since the matter relates to the consequence of the order passed by the A.D.M. which is under challenge in W.P.(C) No. 10738 of 2012. The contention of the learned counsel representing the petitioner in W.P.(C) No. 10738 of 2012 is that on the date when the selection of Basantilata Parhi has been made, the residential certificate issued by the competent authority under the Miscellaneous Certificate Rules had already been cancelled but the A.D.M. exceeding his jurisdiction has given finding in the Anganwadi Appeal regarding legality and propriety of the cancellation order passed by the Addl. Tahasildar regarding cancellation of the residential certificate issued in favour of Basantilata Parhi. It has been submitted that the A.D.M. while deciding the issue related to Anganwadi Worker has got no jurisdiction to the legality or propriety of the residential certificate and he ought to have decided the appeal on the basis of the material available on record including the order of cancellation of residential certificate but exceeding his jurisdiction he has given a finding as if sitting as an appellate Court under the Miscellaneous Certificate Rules and accordingly passed the order of disengagement of the petitioner holding therein that the petitioner of W.P.(C) No. 18404 of 2012 who is also opposite party no. 4 in W.P.(C) No. 10738 of 2012 is residing in the village where the centre is situated, hence according to the petitioner the said finding is absolutely incorrect and illegal. While on the other hand learned counsel representing the petitioner in W.P. (C) No. 18404 of 2012 has submitted that this writ petition has been filed challenging the order passed by the C.D.P.O. on 27.7.2012 since the petitioner of W.P.(C) No. 10738 of 2012 was allowed to continue in service. So far as the issue raised by the petitioner, namely, Sasmita Jena in W.P.(C) No. 10738 of 2012 regarding exceeding the jurisdiction by seeing the legality and propriety of the residential certificate, it has been contended that there is no dispute about the fact that an authority deciding the appeal cannot look into the legality and propriety of the residential certificate which has been issued under a separate statue by the competent authority. Learned counsel representing for opposite party State has also not disputed this legal aspect. Heard the learned counsels for the parties and perused the documents on record. Learned counsel representing for opposite party State has also not disputed this legal aspect. Heard the learned counsels for the parties and perused the documents on record. The undisputed fact in this case is that the petitioner of both the writ petitions had participated in the selection process for engagement as Anganwadi Worker for the center in-question in which Sasmita Jena was selected, which was questioned by Kumari Basantilata Parhi, the other candidate in the selection process on the ground that she is not the native of the area where the centre is situated and on her objection a regular appeal was registered being Anganwadi Appeal No. 43 of 2011 which was decided vide order dtd. 17.5.2012. Admittedly on the date when the A.D.M. has passed the order on 17.5.2012 the residential certificate issued in favour of Kumari Basantilata Parhi in Misc. Certificate case No. 4329 of 2009 has been cancelled and it is admitted by the learned Counsel representing Basantilata Parhi who has also filed vakalatnama to represent Basantilata Parhi who is opposite party no. 4 has submitted that he has not challenged the cancellation of the residential certificate but however he has submitted that after conclusion of the selection process new residential certificate has been issued and as such she has a case. However, this has been disputed by the learned counsel representing Sasmita Jena by submitting that the selection committee is supposed to look into the document which is on record on the date of application or the date of its consideration and if any document is brought after conclusion of selection process, the same cannot be taken into consideration of selection process, the same cannot be taken into consideration by the selection committee. I find substance in the argument advanced on behalf of learned counsel representing Sasmita Jena due to the reason that the document and details of a candidate is supposed to be looked into by the selection committee which is available either on the date of advertisement or on the date of consideration. Admittedly, as has been admitted by the learned counsel representing Basantilata Parhi that on the date when the selection proceeding has commenced, the residential certificate issued in her favour by virtue of Misc. Certificate Case No. 4329 of 2009 has already been cancelled. Admittedly, as has been admitted by the learned counsel representing Basantilata Parhi that on the date when the selection proceeding has commenced, the residential certificate issued in her favour by virtue of Misc. Certificate Case No. 4329 of 2009 has already been cancelled. In the light of this situation it is held that since the residential certificate issued in favour of Kumari Basantilata Parhi in Misc. Certificate Case No. 4329 of 2009 has already been cancelled, hence there is no residential certificate available with her. However, this has been noted down by the A.D.M. in the order but he has given specific finding regarding legality and propriety of the order of cancellation of residential certificate having been issued in favour of Basantilata Parhi in Certificate Case No. 4329 of 2009. In this pretext the relevant provisions of Orissa Miscellaneous Certificate Rules, 1984 needs to be referred which confers power of issuance of residential certificate under the provision of Rule-6, Rule-7 provides power of review of the orders while Rule-8 provides power of appeal. The relevant provisions are being quoted herein below:- “6. Orders on the application – (1) If on the basis of the documents, records, and the result of the inquiry, if any, the Revenue Officer is of the view that the certificate applied for may be granted, he shall pass necessary orders in the case record and sign the appropriate certificate specifying the purpose solely for which it has been granted. The certificate shall be handed over to the applicant or his duly authorized agent or due acknowledgement of receipt. (2) If the Revenue Officer is of the view that the certificate applied for may not be granted, he shall pass necessary orders in the case record, briefly recording the reasons therefore. 7. Review of the orders –Notwithstanding anything contained in these rules, it is revealed on subsequent verification or otherwise that the certificate should not have been granted or the contents thereof require modification the Revenue officer or any officer superior to him in the Revenue Administrative hierarchy shall be competent to review the orders granting the said certificate and after giving the person concerned an opportunity of making any representation on which he may wish to make, pass such orders as he deems just and proper in the circumstances of the case.” 8. Appeal- (1) Any person aggrieved by an order passed by the Revenue Officer under Rule 6 may prefer an appeal before- (a) the Sub-divisional Officer concerned if the order was passed by a Revenue Officer, below the rank of the Sub-divisional Officer. (b) the Collector concerned if the order was passed by the Sub-divisional Officer or the Additional District Magistrate, and (c) The Revenue Divisional Commissioner concerned if the order was passed by the Collector; Provided that no appeal under these rules shall be entertained unless it is preferred within a period of three months from the date of the said order. (2) The orders of the appellate Authority shall be final” From perusal of these provisions it is evident that separate statutory provision has been made for issuance of residential certificate, for its review or the power of appeal. Hence admittedly, the A.D.M. has got no power to take any decision regarding legality and propriety of the residential certificate if cancelled by the competent authority. Moreover, in a proceeding like Anganwadi Worker wherein the A.D.M. has been conferred power by virtue of a guideline to entertain an appeal, the A.D.M. has got no jurisdiction to assume the power of Orissa Miscellaneous Certificate Rules, 1984 by giving finding regarding the residential certificate. In view thereof the order passed by the A.D.M. is without any jurisdiction. Accordingly, the order passed by the A.D.M. in Anganwadi Appeal No. 43 of 2011 dtd. 17.5.2012 quashed. Since in W.P.(C) No. 10738 of 2012 an interim order has been passed by directing the authority not to disengage the petitioner and by virtue of the said order the petitioner of W.P.(C) No. 10738 of 2012, namely, Sasmita Jena is continuing by issuance of fresh order dtd. 24.7.2012 which is under challenge in W.P.(C) No. 18404 of 2012, hence the order dtd. 24.7.2012 since been passed in compliance of the interim order passed by this Court in W.P.(C) No. 10738 of 2012, as such no relief can be granted to the petitioner of W.P.(C) No. 18404 of 2012. Since the order passed by the A.D.M. has been quashed by this Court and as such it is held here that the selection committee has not committed any illegality in selecting Sasmita Jena. In view thereof W.P.(C) No. 10738 of 2012 is allowed and W.P.(C) No. 18404 of 2012 is dismissed. The interim order dtd. Since the order passed by the A.D.M. has been quashed by this Court and as such it is held here that the selection committee has not committed any illegality in selecting Sasmita Jena. In view thereof W.P.(C) No. 10738 of 2012 is allowed and W.P.(C) No. 18404 of 2012 is dismissed. The interim order dtd. 25.6.2012 passed in W.P.(C) No. 10738 of 2012 is being made absolute. Ordered accordingly.