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2018 DIGILAW 12 (ORI)

Priyashree Mishra v. State of Orissa

2018-01-02

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT : B.R. SARANGI, J. 1. This is an intra-Court appeal preferred against the order dated 18.06.2015 passed by the learned Single Judge in W.P. (C) No. 9055 of 2010 confirming the order dated 08.10.2009 and 09.10.2009 passed by the Sub-Collector, Bhubaneswar in Anganwadi Misc. Appeal No. 3 of 2009 (I.C.D.S.) refusing to set aside the selection of respondent no. 5 as Anganwadi Worker in Khajuriapada (Bhoisahi) Anganwadi Centre made by the Child Development Project Officer, Balipatna-respondent no. 4. 2. The factual matrix of the case in hand is that the appellant is a resident of Khajuriapada, PO/GP Nariso, P.S. Balipatna, District Khurda. She is a Graduate from Utkal University, Bhubaneswar. Pursuant to the notification dated 02.05.2007 of the Government of Odisha issuing Revised Guidelines for selection of Anganwadi Workers, Child Development Project Officer-respondent no. 4 issued an advertisement on 17.02.2009 inviting applications for engagement of Anganwadi Worker in respect of Khajuriapada (Bhoisahi) Additional Anganwadi Centre newly opened. The appellant and respondent no. 5, along with others, submitted their applications for selection and appointment of Anganwadi Worker. The objections were also invited from the general public regarding eligibility of candidates for selection, pursuant to which the appellant and two others submitted their representations on 23.06.2009 with regard to the candidature of Kunilata Satpathy and Sandhyarani Mohapatra stating that they are non-resident of ward no. 6 and, therefore, they are ineligible for consideration as Anganwadi Worker in respect of Anganwadi Centre in question. Finally, Child Development Project Officer-respondent no. 4 selected respondent no. 5 as Anganwadi Worker, taking into account her experience as ex-organizer for more than 5 years, and prepared the final select list on 29.07.2009, even though she had secured less percentage of mark than that of the appellant. The appellant challenged the selection of respondent no. 5 by filing representation dated 03.08.2009. The same having not been considered, she filed W.P. (C) No. 12138 of 2009, which came to be disposed of, vide order dated 08.09.2009, directing the appellant to submit an appeal before the Sub- Collector, Khurda-respondent no. 3 within a period of two weeks from the date of passing the order, which shall be disposed of by affording opportunity of personal hearing to the parties within six weeks from the date of filing the appeal. In response to the same, the appellant preferred an appeal registered as Anganwadi Misc. 3 within a period of two weeks from the date of passing the order, which shall be disposed of by affording opportunity of personal hearing to the parties within six weeks from the date of filing the appeal. In response to the same, the appellant preferred an appeal registered as Anganwadi Misc. Appeal No. 3 of 2009 (I.C.D.S.) and the Sub-Collector, Khurda by affording opportunity of hearing dismissed the same vide order dated 08.10.2009 and 09.10.2009. Against the said order, the appellant preferred W.P. (C) No. 9055 of 2010, which was also dismissed by the learned Single Judge vide order dated 18.06.2015, hence this appeal. 3. We have heard Mr. P.K. Rath, learned counsel appearing for the appellant, Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for respondent nos. 1 to 4 and Mr. Maheswar Das, learned counsel appearing for respondent no. 5 and perused the record. 4. Mr. P.K. Rath, learned counsel appearing for the appellant contended that respondent no. 5 had no requisite experience of five years as per clause-4 of the Guidelines and the appellant, having secured higher percentage of mark, should have been selected as Anganwadi Worker in place of respondent no. 5. Had the experience of five years not been counted in favour of respondent no. 5, she would not have been selected, as she had secured less percentage of mark than that of the appellant. It is further contended that though several other grounds were taken in the writ petition, the same have not been considered by the learned Single Judge, while passing the order impugned, as such, the same is liable to be set aside. 5. Mr. B.P. Pradhan, learned Addl. Government Advocate has tried to justify the order passed by the Sub-Collector in Anganwadi Misc. Appeal No. 3 of 2009 (I.C.D.S.) and stated that the same, having been passed in compliance of the order passed by this Court by affording opportunity of hearing to all concerned and being a reasoned and speaking one, should not be interfered with lightly. 6. Mr. Maheswar Das, learned counsel appearing for respondent no. 5 vehemently contended that since respondent no. 6. Mr. Maheswar Das, learned counsel appearing for respondent no. 5 vehemently contended that since respondent no. 5 had been working as an organizer w.e.f. 21.08.2000 and continued for a period of 9 years with a remuneration of Rs.20/-and as such rendered more than five years of service, taking into consideration her experience as per clause-4 of the Guidelines, even though she has secured less percentage of mark, she has been preferred and given engagement order as Anganwadi Worker in respect of newly created Anganwadi Centre at Khajuriapada (Bhoisahi). In view of the extra mark given for acquisition of experience, the respondent no. 5 having been selected by the authority, no illegality or irregularity has been committed so as to warrant interference of this Court at this stage. 7. Undisputedly, appellant and respondent no. 5 were the applicants for the post of Anganwadi Worker in respect of Angawanwadi Centre at Khajuriapada (Bhoisahi), whose candidatures were considered for selection against such post. The respondent no. 5, having been selected taking into consideration her experience as an organizer for more than five years, has been given engagement on verification of relevant documents. Her selection was challenged by the appellant by way of an appeal to the Sub-Collector as per the Guidelines, but the Sub-Collector by affording opportunity of hearing and on perusing the records dismissed the appeal by passing a reasoned order, the relevant part of which reads as follows: “The advocate re-presenting the appellant presented the arguments that the application of the appellant should have merited consideration as she was the highest mark getter after elimination of two other applications on the grounds of residence. The appellate authority went through the proceeding of the selection committee which was headed by the Vice-Chairman of Balipatna Panchayat Samiti. The relevant para of the proceedings of the meeting held on 19.07.2009 mentions about the aspects of residence of Ms. Sandhyarani Mohapatra and Tuni Lata Satpathy as alleged by the appellant Priyashree Mishra. The CDPO, Bailpatna stated that the appellant’s objection in respect of the candidate at S. No. 4 i.e. Smt. Jyoshnarani Dash goes out to steam on account of the fact that Smt. Dash had been working as an organizer in the same centre at Khajuriapada Bhoisahi getting monthly remuneration of Rs. 20 for last nine years. The CDPO presented a copy of guidelines with regard to selection of the Anganwadi Worker. 20 for last nine years. The CDPO presented a copy of guidelines with regard to selection of the Anganwadi Worker. Para 4 of the guidelines says that Anganwadi Helper and Organiser if having the requisite qualification and are found to be suitable, shall be selected as Anganwadi Worker provided they have worked for more than five years. Ms. Jyoshnarani Dash fulfilled all the minimum criterions as enshrined in the guidelines for application of this protective provision. As it was informed by the CDPO, the other aspects of objections were not taken into account as Ms. Jyoshnarani Dash fulfilled the minimum eligibility criteria as an experienced organizer to be considered for appointment as Anganwadi Worker. The advocate representing the appellant expressed doubt about genuinity of the papers showing experience of Ms. Jyoshnarani Dash as the organizer who was working in the Anganwadi Centre of that village. In this regard the appellate authority observed that this apprehension can be allayed or set aside if an appropriate inquiry is conducted by the SSWO to ascertain the veracity of the statements given by the CDPO and genuinity of the papers presented by her to this effect. In response the SSWO conducted a through inquiry into the matter and furnished a detailed report on this account on 09.10.2009. The report form a part of this case record. Therein it is mentioned that the required formalities have been observed with scruple. Besides it is said that letter of engagement which was issued by the then CDPO in favour of Ms. Jyoshnarani Dash as organizer in respect of Khajuriapada centre is genuine. A copy of the said order of engagement is placed on this case record. SSWO has also examined the acquittance roll testifying receipt of remuneration by Smt. Dash as Anganwadi worker and found the same genuine. In the context of the above, the undersigned is inclined to reject the appeal petition field by the appellant and declare the appointment of Ms. Jyoshnarani Das as Anganwadi worker in the centre as valid inconformity to the established procedure.” 8. In the context of the above, the undersigned is inclined to reject the appeal petition field by the appellant and declare the appointment of Ms. Jyoshnarani Das as Anganwadi worker in the centre as valid inconformity to the established procedure.” 8. The above finding of the Sub-Collector-cum-appellate authority was challenged in W.P. (C) No. 9055 of 2010 and the learned Single Judge dismissed the writ petition by order dated 18.06.2015 with the following observation:- “The fact which is not in dispute is that candidature of the petitioner as well as the private opposite party was considered, but the private opposite party having been given extra marks over the experience head, was selected. However, the same was disputed by the petitioner before the Sub-Collector by way of appeal, the Sub-Collector for adjudicating the matter has conducted enquiry by issuing direction upon the Deputy Collector, who has submitted report on 9.10.2009 and after receiving the said report the Sub-Collector has passed order on the basis of the said enquiry report which confirmed the experience of the private opposite party on the basis of verification of the relevant documents as would be evident from Anexure-11 annexed to the writ petition. Guideline also provides that excess marks would be given to the candidate if the candidate has achieved experience as Organizer. When the matter was disputed by the petitioner, the Sub-Collector has verified the same by directing the Deputy Collector to conduct inquiry and submit report and the Deputy Director has verified the old records regarding engagement order of C.D.P.O. Balipatna vide letter dated 21.8.2000 of Smt. Jyoshnarani Dash as Organizer, the joining report dated 21.8.2000, acquaintance roll on payment of remuneration to the Organizer and found that the private opposite party has received the remuneration from the date of her joining. Hence the experience certificate of the private opposite party is genuine and valid. Apart from the above, learned counsel for the petitioner has not pointed out any illegality in the impugned order.” 9. Learned counsel for the appellant during course of hearing drew our attention to the counter affidavit (Annexure-C/4) filed by the State in W.P. (C) No. 9055 of 2010 and stated that if computation is made with regard to experience of respondent no. Learned counsel for the appellant during course of hearing drew our attention to the counter affidavit (Annexure-C/4) filed by the State in W.P. (C) No. 9055 of 2010 and stated that if computation is made with regard to experience of respondent no. 5, it will be seen that totally she has rendered 40 months, which is less than five years and, therefore, she could not have got the benefit of clause-4 of the Guidelines dated 02.05.2007. Even though the counter affidavit had been filed stating that respondent no. 5 was having experience of working as an organizer for five years, but in the rejoinder affidavit nothing has been mentioned to controvert the same. Therefore, in absence of any reply, it is admitted that respondent no. 5 had worked for more than five years as an organizer and thus she is entitled to get the benefit of clasue-4 of the Guidelines dated 02.05.2007. Furthermore, even though the appellant had taken several grounds before the writ Court, the same having not been pleaded in course of hearing, as admitted by learned counsel for the appellant, it has to be presumed that the grounds which were not pleaded, were abandoned. 10. Considering the matter from different angles, this Court is of the opinion that no illegality or irregularity has been committed by the learned Single Judge in passing the impugned order dated 18.06.2015, whereby the order dated 08.10.2009 and 09.10.2009 passed by the Sub-Collector-respondent no. 3 in Anganwadi Misc. Appeal No. 3 of 2009 (I.C.D.S.) has been confirmed, so as to warrant interference of this Court. Accordingly, we find no merit in this appeal, which is hereby dismissed.