Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1088 (ORI)

Sanjita Behera v. ADM, Subarnapur

2017-09-20

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Article 226 and 227 of the Constitution of India wherein the order dated 7.12.2015 passed in Anganwadi Appeal No.105 of 2010 passed by the Addl. District Magistrate, Subarnapur is under challenge whereby and where under the appellate authority has cancelled the appointment of the petitioner as Angawadi Worker of Hirapali Anganwadi Center and orders for engagement of private opposite party by observing all formalities. 2. Grievance of the petitioner is that in pursuance of advertisement No.851 dated 23.12.2009, she along with others had applied to be considered for engagement as Anganwadi Worker for Hirapali Anganwadi Center falling in the district of Subarnapur. The Selection Committee has found the petitioner suitable for the post, accordingly selected and engaged her vide order dated 22.06.2010. 3. Opposite party no.3 being aggrieved with the selection of the petitioner has approached before the A.D.M., Subarnapur to cancel the appointment of the petitioner on the ground that due to wrong awarding of preferential marks in favour of the petitioner, she has been selected and engaged. According to her, the petitioner is not entitled to get preferential marks of having ECCE certificate which provides to award 15 extra marks but the marks awarded is not in consonance with the guideline issued by the State authorities. Further case of the opposite party no.3 before the ADM was that 5 extra marks has also been awarded for having more qualification i.e. +2 pass certificate but the petitioner has got ECCE certificate as well as +2 pass certificate simultaneously, which is not permissible since the +2 Class was regularly to be attended by her and in course thereof she has obtained ECCE certificate which cannot be said to be proper of awarding preferential marks on the strength of the ECCE certificate. Further case is that a criminal case has been instituted against the petitioner for commission of forgery in which cognizance has been taken by the competent court of jurisdiction and the trial is going on. Further case is that a criminal case has been instituted against the petitioner for commission of forgery in which cognizance has been taken by the competent court of jurisdiction and the trial is going on. It is the further submission of the opposite party no.3 that on merit she has obtained more marks in comparison to that of the petitioner and even she would be given 5 preferential marks on account of having more qualification i.e., +2, even then 15 marks which has been awarded to her on account of having ECCE certificate, if will not be taken into consideration, she would have been selected by the Selection Committee but giving weightage of extra preferential marks on account of having ECCE certificate to the extent of 15 marks, the opposite party no.3 has been deprived from the chance of her selection. It has further been submitted that either way i.e. either of the marks of +2 or the ECCE certificate, if deducted from the total marks in both the conditions she will be held to be more meritorious in comparison to that of the petitioner. 4. The appellate authority taking into consideration this aspect of the matter has cancelled the engagement of the petitioner against which this writ petition has been filed. 5. While on the other hand, learned counsel for the petitioner deprecating the order passed by the ADM on the ground that she is more meritorious in comparison to that of opposite party no.3 by awarding 5 preferential marks on account of having more qualification i.e. +2 as well as possessing ECCE certificate, she has been shown to be more meritorious and in pursuance thereof, she has been selected, hence there is no illegality in engaging her as Anganwadi Worker for the center in question. Further case of the petitioner is that the ADM has taken into consideration a guideline issued on 16.06.2010, but the advertisement since was issued prior to that, hence the clarification issued by the authority will not be given retrospective application, so far as the contention of the opposite party no.3 that she has got the certificate of ECCE simultaneously attending the Class of +2 but that question cannot be raised without seeking prayer to cancel either of the certificate i.e. +2 or the ECCE certificate and as such the decision of the Selection Committee cannot be said to be illegal in appointing her. He further submits that by virtue of interim order passed by this Court, she was continuing but the petitioner subsequently has occupied the post and now she is working, hence there is violation of interim order passed by this Court against which contempt petition has also been filed. Heard the learned counsel for the parties and perused the documents available on record. 6. The undisputed fact in this case is that an advertisement was published on 23.12.2009 seeking application from one or the other candidates to fill-up the post of Anganwadi Worker for Hirapali Anganwadi Center in the district of Subarnapur. The petitioner along with others had participated in the selection process in which the petitioner has been shown to be securer of highest marks, accordingly selected and engaged. The Selection Committee in course of assessing the merit of one or the other candidates has awarded the petitioner 5 extra preferential marks on account of having more qualification i.e., of +2 certificate and 15 marks on account of having ECCE certificate as per the provision made in the guideline. It is the further admitted position that the selection has been made in pursuance of the guideline dated 2.5.2007, wherein under the provision of Clause-3 in addition to the educational qualification certain preferential marks has been decided to be given to one or the candidates. In the original guideline there was no prescription to award any weightage of marks in case of possessing ECCE certificate, however the same was introduced by the Women and Child Development Department vide resolution dated 17.10.2007 addressed to all Collectors, wherein the provision has been made to award 5 marks per year of service rendered with a ceiling of 15 marks, if the candidate is an ECCE Worker under Sarha Sikhya Abhiyan/NPEGEL and this has been directed to be appended to the list of categories as indicated under paragraph 3 of the revised guidelines. The part of the decision taken on 17.10.2007 is being reflected herein below for ready reference:- “In partial modification of the revised guidelines for selection of Anganwadi Workers issued vide this Department Letter No.145/SWCD dt.02.05.2007 read with clarifications issued in this Departmental Letter No.18416/WCD dt. 04.08.2007. I am to say that the following category has been appended to the list of categories as indicated under paragraph 3 of the Revised Guidelines referred to above. 04.08.2007. I am to say that the following category has been appended to the list of categories as indicated under paragraph 3 of the Revised Guidelines referred to above. Category Preferential marks If the candidate is an ECCE Worker under Sarha Sikhya Abhiyan/NPEGEL @ 5 marks per year of service rendered with a ceiling of 15 marks This should apply to the new centers as well as the existing ones where there is a vacancy.” The Women and Child Development Department has further come out with one clarification on 16.06.2010 and that was addressed to the D.S.W.O., Bhadrak whereby and where under the following decision has been taken; “From Smt. D.N. Sahoo, O.A.S., Under Secretary to Govt. Sub:- Clarification regarding admissibility of ECCE Certificate issued by NGO. Sir/Madam, I am directed to invite reference to the subject noted above and to clarify as under – (i) The experience certificate issued by an NGO to an ECCE worker will not be accepted for AWW selection. (ii) An ECCE worker can be considered for selection as AWW provided that she had worked as ECCE worker in that particular village.” It is evident from the content of clarification dated 16.06.2010 that the preference upon possessing ECCE certificate is to be given to such employees provided that she has worked as ECCE worker in that particular village. The guideline dated 2.5.2007 contains a provision to provide 5 extra marks on the basis of having more qualification as has been provided under the provision of Clause 3, wherein it has been stipulated that if the candidate is intermediate or equivalent or has higher qualification, 5% marks will be given by way of additional percentage. 7. It is evident from the comparative statement of the mark-sheet as has been annexed in the counter affidavit filed by the opposite party no.3 under Annexure-C/3 that the petitioner namely Sanjita Behera has got 41.06% marks but she has been given 5 point on account of having higher qualification and 15 point on account of having ECCE worker certificate and in aggregate she has been given 61.06 while on the other hand opposite party no.3 namely Smt. Soudamini Pradhan has got 56.66% marks and on conversion it into point she has got 56.66 point. The Selection Committee on the basis of comparative assessment of total point has selected the petitioner since she has got 61.06 point. 8. The Selection Committee on the basis of comparative assessment of total point has selected the petitioner since she has got 61.06 point. 8. The opposite party no.3 being aggrieved with the decision of the Selection Committee on account of the fact that she has got +2 pass certificate while continuing her study as regular candidate in the College in question and simultaneously during the said period only, she has also got training of ECCE worker, hence 15 extra marks has also been allotted to her, making her securer of highest marks. According to opposite party no.3, the petitioner cannot be allowed to take advantage of both the points i.e. on higher qualification as well as ECCE certificate since either of these two can be obtained in one time. 9. This Court on examination of the factual aspect and the pleading made by the parties which is not in dispute, has come across this fact that the petitioner while continuing as +2 Class has also worked as ECCE worker. It is not permissible for a candidate to get the +2 certificate simultaneously with the other certificates while the period of going into both the Courses/Business, the time period is the same. 10. It is evident from the record that the petitioner has obtained +2 certificate as a regular student of VSS Mahavidyalaya, Jujumura in the district of Sambalpur District, when she was serving as ECCE worker in Sonepur District, which has been verified from the Principal, VSS Mahavidyalaya, Jujumura vide office letter No.9345 dated 12.11.2015 by which he was requested to submit a detail report towards the educational period of the petitioner for the year 2007-08 to 2008-09 and in reply to the same the Principal vide his letter No.101/VSSM/2015 dtd. 20.11.2015 has reported regarding the genuineness of the fact and the same has been brought before the ADM by the CDPO, Birmaharajpur reporting therein that during the period of working as ECCE worker she pursued her studies as regular student under the Sambalpur University and got the certificate. Subsequently, a criminal case has also been instituted against the petitioner which is pending adjudication before the competent court of criminal jurisdiction after cognizance having been taken against her. 11. Subsequently, a criminal case has also been instituted against the petitioner which is pending adjudication before the competent court of criminal jurisdiction after cognizance having been taken against her. 11. The ADM taking a conscious view by not making any comment upon +2 pass certificate on account of the fact that a criminal case is pending and if any order would be passed by him, it will ultimately prejudice her defence before criminal court. But he has taken other aspect of the matter i.e. the reliance put by the Selection Committee upon the ECCE certificate which according to him is not said to be perfect and proper. Accordingly, he has deducted the 15 marks from 61.06 marks and thereby the total point of the petitioner comes to 46.06 making the opposite party no.3 as more meritorious in comparison to her. The ADM has taken into consideration regarding the preferential marks which is to be awarded to such candidate who have obtained ECCE certificate and while deducting the said marks, he has considered the modification made in the revised guideline dated 17.10.2007, wherein for the first time preferential mark has been decided to be given to the ECCE worker. The other clarification has come on 16.06.2010 with respect to the fact that if the ECCE worker has worked in particular village, where the engagement is to be made, then only the preferential marks is to be awarded to such candidate. The material available on record suggests that the petitioner has served as ECCE worker in the village Balipali and not in Hirapali where the center situates. 12. Learned counsel for the petitioner has raised the question of applicability of the clarification dated 16.06.2010 by submitting that since the advertisement is of 23.12.2009, hence the clarification dated 16.06.2010 will not affect her selection. 13. While rebutting his argument, learned counsel for opposite party no.3 has submitted that the clarification dated 16.06.2010 is not the original document rather it is the clarification of the modification made in the revised guideline dated 2.5.2007 issued on 17.10.2007 and it is settled proposition that if any clarification will come it relates to original, hence applicability of the clarification dated 16.06.2010 will also be applicable w.e.f. 17.10.2007, as such there is no question of retrospectivity in applying the principle of adding extra marks on account of having ECCE certificate. 14. 14. This Court after appreciating the rival submission is of the considered view that the position of law is settled that if any clarification is made with respect to any statute or guideline, it relates to the date of issuance of guideline or the date of amendment made in the statute, since it is not by way of amendment rather it is by way of clarification, if the amendment is made, the matter would be different but going through the clarification dated 16.06.2010 it is only clarification of the revised guideline dated 17.10.2007, hence the argument advanced on behalf of the petitioner has got no substance. This Court has also considered the arguments of the opposite party no.3 that in any way she cannot be allowed to take advantage of additional marks both on account of having +2 qualification or 15 marks on account of having ECCE worker certificate since both the certificates has been obtained simultaneously as discussed above which is not permissible, if either of these two marks will be deducted from her total marks in both the eventuality, the opposite party no.3 would be more meritorious in comparison to that of the petitioner. 15. This Court is in agreement with the submission of the opposite party no.3 as because the factual aspect of the matter is not in dispute regarding having +2 pass certificate as well as ECCE worker certificate simultaneously, hence the petitioner can only be allowed to take advantage of additional marks either of these two, if either of these two will be deducted from the total marks, in both the eventuality the opposite party no.3 will be more meritorious in comparison to that of the petitioner. This Court after going through the order passed by the ADM has found that the ADM has taken into consideration the entire aspect of the matter which is based upon the legal foundation and as such the same needs no interference. 16. This Court after going through the order passed by the ADM has found that the ADM has taken into consideration the entire aspect of the matter which is based upon the legal foundation and as such the same needs no interference. 16. So far as the submission of the learned counsel for the petitioner that by virtue of interim order, she has been allowed to continue in service but subsequently the petitioner has again resumed the post when disengaged by the opposite party-State against which contempt has also been filed but it is being clarified here that the interim order is during pendency of the writ petition and that will depend upon the final outcome of the writ petition, since this Court is passing this order affirming the order passed by the ADM, hence the same will govern the situation henceforth. In view of the facts and circumstances and as per the observation made herein above, I find no reason to interfere with the writ petition. Accordingly, the writ petition fails and dismissed.