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2017 DIGILAW 1308 (ORI)

Manjulata Mallick @ Das v. State of Odisha

2017-11-14

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 9.6.2015 passed by the Additional District Magistrate, Jajpur in A.W.W. Misc. Appeal No.10 of 2015 vide Annexure-1 is under challenge whereby and whereunder the engagement of the petitioner has been found to be illegal and consequently, direction has been issued to engage opposite party no.5. 2. The case of the petitioner, in brief, is that she along with opposite party no.5 and others had participated in the selection process for engagement as Anganwadi Worker in pursuant to an advertisement published on 11.02.2014 for fulfilling the post of Kachahudi Sahi Anganwadi Centre under Vyasanagar Municipality. The candidature of the petitioner as well as opposite party no.5 and others have been scrutinized by the selection committee and in course thereof, the petitioner has been found to secure highest marks i.e. 59.4% while the opposite party no.5 has secured 52.46% marks. The opposite party no.5 has filed a writ petition being W.P.(C) No.12353 of 2014 wherein prayer has been made to engage her as Anganwadi Worker for the centre in question keeping in view her eligibility as per the advertisement. A coordinate Bench of this Court, while disposing of the said writ petition vide order dated 5.11.2014, has directed the Sub-Collector, Jajpur to consider and take a decision on petitioner’s representation under Annexure-7 within a period of four weeks from the date of production of certified copy of the order along with the copy of the writ petition. The Sub-Collector had taken decision by appreciating the plea of the opposite party no.5 by converting the representation to Misc. Case (A.W.W.) No.23 of 2015 and the same was disposed of vide order dated 21.1.2015 whereby and whereunder the Sub-Collector, Jajpur has found no illegality in the selection process finalized by the Child Development Project Officer, Korei and accordingly, directed to finalize the selection procedure with immediate effect basing on merit. According to the petitioner, in pursuant to the order passed by the Sub-Collector, Jajpur, he has been engaged in service vide order dated 28.1.2015. Hence, the opposite party no.5 has again approached before this Court vide W.P.(C) No.2672 of 2015 whereby and whereunder the residential certificate of the petitioner as also the order of engagement dated 28.1.2015 have been questioned by her. Hence, the opposite party no.5 has again approached before this Court vide W.P.(C) No.2672 of 2015 whereby and whereunder the residential certificate of the petitioner as also the order of engagement dated 28.1.2015 have been questioned by her. A coordinate Bench of this Court, while disposing of the said writ petition vide order dated 19.03.2015, has directed the A.D.M., Jajpur to conduct an inquiry and dispose of the application under Annexure-9 after giving opportunity of hearing to all concerned within a period of two weeks from the date of production of certified copy of the order along with the writ petition. The A.D.M., Jajpur, in terms of the order dated 19.3.2015 passed by this Court in W.P.(C) No.2672 of 2015, has passed the order on 09.06.2015 in A.W.W. Misc. Appeal No.10 of 2015 whereby and whereunder the petitioner has been found to be illegally engaged and accordingly, she has been disengaged and in her place, opposite party no.5 has been directed to be engaged. 3. The petitioner, being aggrieved with the said order, is before this Court by way of this instant writ petition on the following grounds:- (i) The opposite party no.5 has never questioned the order dated 21.1.2015 passed by the Sub-Collector, Jajpur passed in Misc. Case (A.W.W.) No.23 of 2015, rather she has challenged the engagement order dated 28.1.2015 passed by the Child Development Project Officer, Korei and it is settled that unless the foundation would be challenged, the consequence cannot be said to be illegal. (ii) The opposite party no.5 has suppressed the material fact before the A.D.M., Jajpur or even before this Court in filing the writ petition since the order passed by the Sub-Collector, Jajpur has neither been placed before the A.D.M., Jajpur at that time of adjudication of the matter in connection with A.W.W. Misc. Appeal Case No.10 of 2015 nor before this Court in the earlier round of litigation, i.e., in W.P.(C) No.2672 of 2015 otherwise the A.D.M., Jajpur would not be passed the said order. Appeal Case No.10 of 2015 nor before this Court in the earlier round of litigation, i.e., in W.P.(C) No.2672 of 2015 otherwise the A.D.M., Jajpur would not be passed the said order. (iii) The A.D.M., Jajpur has erred in passing the order merely on the basis of the affidavits dated 06.02.2010 and 22.02.2014 without taking into consideration the fact that the residential certificate which is being questioned by the opposite party no.5 have never been questioned by her before the competent forum under the Odisha Miscellaneous Certificates Rules, 1984 and as such, so long as the document is in existence, its veracity cannot be questioned and in that view of the matter, the nativity of the petitioner cannot be said to be illegal. 4. Learned counsel for the petitioner on merit has submitted that the petitioner is residing in the centre area prior to her marriage and that has been reflected in the application submitted by her before the competent authority for obtaining the residential certificate, but after marriage she also residing in her parental house since last 8 years and for the reason that the husband is also working in a plant situated in the same locality. He has further submitted that the purpose for nativity certificate is to see as to whether a candidate is residing in centre area permanently or not for the reason of smooth functioning of the centre and when the nativity certificate has been issued proving her a resident of the area where the centre is situated and the said certificate is still in operation, questioning the engagement on the basis of mere saying that the certificate is fraudulent is absolutely illegal and unreasonable and the A.D.M., Jajpur, without consideration this aspect of the matter, has disengaged. Hence, the order is not sustainable in the eye of law. 5. While, on the other hand, learned counsel appearing for the State-opposite parties has submitted that the petitioner is not a resident of the centre area at least after solemnization of her marriage and as such, the A.D.M., Jajpur, taking note of affidavits dated 6.2.2010 as well as 22.2.2014, has rightly passed the order. Hence, the same needs no interference. 6. While, on the other hand, learned counsel appearing for the State-opposite parties has submitted that the petitioner is not a resident of the centre area at least after solemnization of her marriage and as such, the A.D.M., Jajpur, taking note of affidavits dated 6.2.2010 as well as 22.2.2014, has rightly passed the order. Hence, the same needs no interference. 6. Learned counsel appearing for the opposite party no.5 has vehemently argued the case, while arguing, he has submitted that there is no suppression on the part of the opposite party no.5 regarding the suppression of material fact since the opposite party no.5 has challenged the engagement order of the petitioner and as such, A.D.M., Jajpur has taken decision in cancelling the engagement of the petitioner. He has further submitted that as per the guideline dated 2.5.2007 issued by the Women & Child Development Department, Government of Odisha, the mandatory requirement for a candidate to be eligible for consideration of candidature for one or the other candidates is that one should be a permanent resident to be residing in the centre area, but the petitioner although was residing prior to solemnization of her marriage, but the moment she become married, she will hold the nativity on the basis of her in-laws house and not on the basis of her parental house. He has further submitted that the petitioner has made an application for getting nativity certificate on the ground of residing in the parental house by filing an affidavit by giving the address of her in-laws house and also she has sworn her father has without any son. Hence, she has committed forgery. In that view of the matter, the order passed by the A.D.M., Jajpur cannot be said to be illegal. 7. While responding to the said argument, learned counsel for the petitioner has submitted that so far as the contention of the nativity is concerned, there is no suppression of any material fact rather, a true declaration has been given by showing the address of the father as well as husband and taking into account this aspect of the matter, the residential certificate has been issued. Hence, there is no forgery on her part. Hence, there is no forgery on her part. He has further submitted that giving declaration of the fact that the father of the petitioner is without any son is not material and even accepting that it is material, the proper course available to the opposite party no.5 is to file an appeal before the competent authority for cancelling of the residential certificate. He has further submitted that in the inquiry conducted by the Revenue Inspector before granting certificate that the same has been taken into consideration wherein it has come that before solemnization of marriage, she was residing in the parental house and even after solemnization her marriage, she is residing in her parental house. Hence, there is no illegality even issuing the residential certificate. 8. Heard the learned counsel for the parties and perused the documents available on record. 9. It is evident from the appreciation of the rival submissions of the parties that in pursuant to an advertisement for fulfilling the post of Anganwadi Worker, the petitioner, opposite party no.5 and others had participated in the selection process. The petitioner has been found to be secured of highest marks as 59.4% while the opposite party no.5 has secured 52.46% marks. When the selection process was not being concluded, the opposite party no.5 has filed a writ petition being W.P.(C) No.12353 of 2014 praying therein to issue appropriate direction upon the opposite parties to engage her as Anganwadi Worker for the centre in question keeping in view her eligibility as per the advertisement. A coordinate Bench of this Court, while disposing of the said writ petition vide order dated 5.11.2014, has passed the following order:- “Heard. As prayed for by the learned counsel for the petitioner, the writ petition is disposed of directing opp. party no.1-Sub-Collector, Jajpur to consider and take a decision on petitioner’s representation under Annexure-7 within a period of four weeks from the date of production of certified copy of this order along with a copy of the writ petition.” 10. In view of the said order, the Sub-Collector, Jajpur has entertained the representation and instituted it as Misc. party no.1-Sub-Collector, Jajpur to consider and take a decision on petitioner’s representation under Annexure-7 within a period of four weeks from the date of production of certified copy of this order along with a copy of the writ petition.” 10. In view of the said order, the Sub-Collector, Jajpur has entertained the representation and instituted it as Misc. Case (A.W.W.) No.23 of 2015 whereby and whereunder the Sub-Collector has given its finding on the basis of the fact that the petitioner has secured highest marks and coming within the centre area and prior to selection process, she was working as Anganwadi Helder, hence the selection process finalize by the C.D.P.O., Korei has been upheld and accordingly, the C.D.P.O., Korei has been directed to finalize the selection process with immediate effect basing on merit. The C.D.P.O., Korei has issued the engagement order in favour of the petitioner on 21.8.2015 vide Order No.48. 11. Opposite party no.5 has again approached this Court vide W.P.(C) No.2672 of 2015. Now, she has challenged the nativity certificate of the petitioner as also the engagement order dated 28.1.2015 and a coordinate Bench of this Court, while disposing of the said writ petition vide order dated 19.03.2015, has directed the A.D.M., Jajpur to conduct an inquiry and dispose of the application under Annexure-9 after giving opportunity of hearing to all concerned. 12. It is evident from Annexure-9 annexed to the said writ petition that the petitioner has prayed to consider her candidature to the post of Anganwadi Worker for of the centre in question following the Hon’ble High Court’s decision taken in W.P.(C) No.12353 of 2014 by rejecting/cancelling the residential certificate of Manjulata Das. 13. The A.D.M., Jajpur has considered the issue and passed order on 9.6.2015 whereby and whereunder the engagement of the petitioner has been said to be illegal. The said order is under challenge in the writ petition. 14. It is admitted position that opposite party no.5 has approached before this Court in W.P.(C) No.12353 of 2014 and in view thereof, the Sub-Collector, Jajpur has passed an order directing the C.D.P.O., Korei to finalize the selection procedure with immediate effect basing on merit, the said order has been passed considering the decision of the selection committee, who has found that the petitioner has secured highest marks and coming within the centre area. The opposite party no.5 has not challenged at ever the order dated 21.1.2015 passed by the Sub-Collector. It is also admitted position that in compliance of the order dated 21.1.2015 passed by the Sub-Collector, Jajpur the order of engagement has been passed on 28.1.2015. The said order has been challenged by the opposite party no.5 in W.P.(C) No.2672 of 2015. Thus, it is evident that the petitioner has been engaged in pursuant to the order dated 21.1.2015 passed by the Sub-Collector, Jajpur and the said order has not been assailed. The engagement order is in consequence to the order dated 21.1.2015 passed by the Sub-Collector, Jajpur. 15. It is settled proposition of law that without challenging the foundation, the consequence cannot be questioned. Reference in this respect may be made to the judgment rendered by Hon’ble the Apex Court in the case of Edukanti Kistamma (Dead) through LRs. and others v. S. Venkatareddy (Dead) through LRs. and others, reported in (2010) 1 SCC 756 wherein at paragraph-22 it has been held regarding the settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. 16. In view of such a legal settled proposition, the order of disengagement cannot be said to be illegal until and unless the order passed by the Sub-Collector will be said to be illegal by any court of law, but since it has not been declared illegal, the order of disengagement cannot be said to be illegal. It is further evident from the contention made by the learned counsel for the petitioner that the opposite party no.5 has never brought to the notice about the order dated 21.1.2015 either before this Court by filing a writ petition being W.P.(C) No.2672 of 2015 or before the A.D.M., Jajpur in course of adjudication of her grievance and as such, there is suppression of material fact. It is not in dispute that every suppression cannot be said to resulting dismissal of the litigation, rather the suppression, if material, then only it will be said to be a ground for dismissal of the petition. It is not in dispute that every suppression cannot be said to resulting dismissal of the litigation, rather the suppression, if material, then only it will be said to be a ground for dismissal of the petition. But here in the instant case, the order passed by the Sub-Collector, Jajpur by which, the petitioner has been said to be legally appointed will be said to be a material decision and that has been passed by the Sub-Collector in pursuant to the order passed in W.P.(C) No.12353 of 2014, but very surprisingly, opposite party no.5 has not brought to the notice either before this Court in W.P.(C) No.2672 of 2015 or before the A.D.M., Jajpur. 17. It is settled proposition of law that in writ court being the court of equity, it is the duty of the litigant to approach the court of equity by disclosing all the facts and it is not upon the litigant to decide what fact is material for adjudication the case, rather the duty of the litigant is to bring everything to the notice of the court of law pertaining to the case. Reference in this respect may be made to the judgment rendered by Hon’ble the Apex Court in the case of Bhaskar Laxman Jadhav & Others v. Karamveer Kakasaheb Wagh Education Society & Others, reported in 2013 0 AIR (SC) 523 paragarhs-46 and 48 wherein at paragraphs-46 and 48 it has been held as follows:- “46. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality. 48. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality. 48. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: “The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Article 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case.”” 18. It is also the fact that the opposite party no.5 has never been challenged the residential certificate of the petitioner before the competent authority as provided under the Odisha Miscellaneous Certificates Rules, 1984 wherein the Tahasildar has been conferred with the power to issue residential certificate in exercising of the power conferred under Rule-6 of the said provision while the power of appeal has been provided under the provision of Rule-8 of the said statute, but instead of invoking jurisdiction before the competent authority for cancelling of the residential certificate is only questioning the engagement of the petitioner which is based upon an instrument which has been issued by the competent authority. 19. 19. It is settled that if an act or decision or an order or other instrument, if invalid, it should, in principle, being null and void for all purposes and it has been said that there are no nullity even such act is wrong and lacking jurisdiction, however, if subsists and remains full effective unless and until it is said satisfied by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved. Reference in this respect may be made to the judgment rendered by Hon’ble the Apex Court in the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and others, reported in 1996 0 AIR (SC) 906. 20. So far as the merit of the order of the A.D.M., Jajpur is concerned, the A.D.M., after going through the two affidavits, has taken decision for disengagement of the petitioner. This Court has perused the affidavits and from its perusal, it is evident that the petitioner in the affidavit dated 6.2.2010 has disclosed her address of Sobara while in the affidavit dated 22.2.2014 wherein declaration has been given after solemnization of her marriage by reflecting her husband name and for whom the address has been given of her in-laws house while giving the present address of his parental house. It is not in dispute that the petitioner before solemnization of her marriage was working as Anganwadi Helper for the centre in question which also carries the same eligibility condition of residing in the centre area, but in the year 2010, after solemnization of her marriage, the dispute has been raised that after solemnization of her marriage, she will said to be residing in her in-laws house, but the fact herein is that the petitioner has got the residential certificate on the basis of a declaration given under the affidavits dated 6.2.2010 and 22.2.2014 showing her permanent resident of village-Sobara while showing the in-laws house of Ahamadpur of Kendrapada District and the competent authority has conducted the inquiry and found that the petitioner, even after solemnization of her marriage, is residing in the centre area, as would be evident from the report dated 20.1.2014. The competent authority, on the basis of the report of the Revenue Inspector, has issued the residential certificate showing her the permanent resident of village-Sobara of District-Jajpur, on the basis of which she has been engaged as Anganwadi Worker. The competent authority, on the basis of the report of the Revenue Inspector, has issued the residential certificate showing her the permanent resident of village-Sobara of District-Jajpur, on the basis of which she has been engaged as Anganwadi Worker. The A.D.M., Jajpur ought to have taken into consideration the fact that so long as residential certificate is in existence and have not been annulled or cancelled by any competent authority or court of law, the same is to be given reliance and merely on the basis of two affidavits, the residential certificate issued by the competent authority under the statutory provision cannot be said to lost its force. The Sub-Collector, Jajpur, after taken into consideration this aspect of the matter and when found that she is residing in the centre area as also found the petitioner to be more meritorious in comparison to that of the opposite party no.5, has directed the C.D.P.O., Korei to finalize the selection procedure and select in accordance with the merit of one or other candidates and in view thereof, the petitioner has been selected vide engagement order dated 28.1.2015 and the said order has never been brought to the notice of the A.D.M., Jajpur. Thus, there is suppression of material fact by the opposite party no.5. 21. As has been stated hereinabove that so long as the instrument is in existence and have not been annulled and quashed, the same is to be given effect to and considering this aspect of the matter, the petitioner has been engaged on the strength of the residential certificate of showing her permanent village-Sobara. 22. On the basis of the facts stated hereinabove, the order dated 09.06.2015 passed by the A.D.M., Jajpur is not sustainable in the eye of law. Accordingly, the same is quashed. In the result, the writ petition is allowed.