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2018 DIGILAW 774 (ORI)

Nayana Kumari Samal v. Add. D. M. , Jagatsinghpur

2018-08-29

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S. N. PRASAD, J. - This writ petition under Article 226 and 227 of the Constitution of India has been filed against the order dated 25.11.2010 passed by the Additional District Magistrate, Jagatsinghpur in Anganwadi Appeal Case No.26 of 2010 whereby and where under selection of the petitioner has been cancelled with direction upon the C.D.P.O.,Balikuda to prepare merit list afresh for selection of Anganwadi Worker in Tainkum (Biridua) Anganwadi Centre. 2. At the outset this Court, before entering into the factual aspect, needs to refer that one Vakalatnama has been filed by one Dr.J.K.Lenka and Mr.P.K.Behera to represent the petitioner after taking no-objection from the erstwhile counsel. The same has been kept on record. 3. Learned counsel for the parties have been heard. The factual aspect revolve in this case is that an advertisement was published for selection of Anganwadi Worker, applications were to be submitted by 29.9.2009, date of scrutiny was fixed to 30.9.2019 and on 1.10.2009 for filing written objection, the petitioner as also the opposite party no.3 apart from other candidates have participated in the selection process. The selection committee has selected the petitioner which has been questioned by the opposite party no.3 by filing writ petition before this Court being W.P.(C) No.763 of 2010, this Court has disposed of the writ petition by allowing the opposite party no.3 to file appeal, in terms thereof, an appeal has been filed being Anganwadi Appeal No.17 of 2010. The opposite party no.3 has taken plea that the original mark-sheet of the H.S.C. Examination has not been furnished by the opposite party no.3 and taking it into consideration her candidature was rejected and therefore the petitioner has been found to be more meritorious being candidate under the SEBC and as such selected but the Additional District Magistrate without taking it into consideration has held that the decision taken by the selection committee is illegal on the pretext when there is contradiction in the statement as to whether original mark-sheet was submitted by the opposite party no.3 or not,came to conclusion that the selection committee has erred in selecting the petitioner even though original certificate was produced by the opposite party no.3. Learned counsel for the petitioner has further submitted that by showing certified copy of letter issued by the C.D.P.O. ,Balikuda dated 23.6.2010 addressed to the A.D.M., Jagatsinghpur that Smt. Sujata Mallick has not produced original H.S.C. mark-sheet taking the plea that the mark-sheet was destroyed by white ants and therefore the application filed by Smt.Sujata Mallick was rejected after scrutinizing the same on the same date, the aforesaid plea of the C.D.P.O. has not been taken into consideration by the A.D.M. 4. Mr.Amit Patnaik, learned Additional Government Advocate has submitted that although counter affidavit has not been filed but perusing the documents furnished by the competent authority which contains the comparative assessment of the candidatures of one or the other candidates wherein under the remarks column it has been shown that the opposite party no.3 has not submitted the original mark sheet. In view thereof, it has been submitted by Mr.Patnaik that the selection committee has not erred in appointing the petitioner as Anganwadi Worker, hence the finding given by the Additional District Magistrate is contrary to record. 5. Heard learned counsel for the parties, gone across the relevant documents on record as also the documents placed by the petitioner as well as the State counsel which has been taken on record. The undisputed fact in this case is that in pursuance to the advertisement the petitioner along with the opposite party no.3 and other five candidates have participated in the selection process. Five candidates were absent, only four candidates have participated in the selection process along with the petitioner as well as the opposite party no.3. Petitioner belongs to SEBC category while the opposite party no.3 belongs to Scheduled Caste category. The selection committee, after examining the documents as per the stipulation made in the notice inviting applications, has rejected the candidature of the opposite party no.3 on the ground that on the date of scrutiny the original mark-sheet of H.S.C. Examination has not been submitted by her, hence selected the petitioner. The selection committee, after examining the documents as per the stipulation made in the notice inviting applications, has rejected the candidature of the opposite party no.3 on the ground that on the date of scrutiny the original mark-sheet of H.S.C. Examination has not been submitted by her, hence selected the petitioner. Selection of the petitioner has been questioned by the opposite party no.3 by filing W.P.(C) No.763 of 2010 and this Court while disposing of the writ petition has given liberty to the opposite party no.3 to approach before the appellate authority, in terms thereof an appeal has been filed wherein selection of the petitioner has been reversed with direction upon the C.D.P.O. to prepare a fresh merit list. This Court has gone across the impugned order, respective assessments of one or the other candidates as furnished by the learned Additional Government Advocate which is on record and has found that the original H.S.C. mark-sheet was not submitted by the opposite party no.3 and hence considering the provision of the guideline dated 2.5.2007 which provides that original mark-sheet certificate is to be produced at the time of verification of the documents. The opposite party no.3 has not furnished original H.S.C. mark-sheet which is substantiated from the communication issued by the C.D.P.O., Balikuda dated 23.6.2010 addressed to the A.D.M., Jagatsinghpur as contained in letter No.261, stating therein that the opposite party no.3 could not have produced her original H.S.C. mark-sheet on the plea that the said mark-sheet was destroyed by white ants and on the basis of that in the remarks column of the comparative assessment of the merit list at the time of accepting application forms along with documents, it has been noted that the opposite party no.3 has not submitted original H.S.C. mark-sheet which is mandatory condition as required in the guideline dated 2.5.2007. The petitioner, therefore, has been declared to be successful candidate since the candidature of the opposite party no.3 was rejected on the ground of non-submission of original H.S.C. mark-sheet for its verification on the date of verification. The petitioner, therefore, has been declared to be successful candidate since the candidature of the opposite party no.3 was rejected on the ground of non-submission of original H.S.C. mark-sheet for its verification on the date of verification. She, however, taken plea before the Additional District Magistrate that she had produced the original certificate but it was not legible and therefore she has made an application before the Board of Secondary Education for getting its duplicate and after obtaining the duplicate copy it was submitted for its verification which was filed by her Advocate before the Additional District Magistrate, who on its perusal, found that the original mark-sheet of the opposite party no.3 is cleary legible and tallied with the duplicate mark sheet, hence came to conclusion that since the opposite party no.3 has secured highest marks in comparison to that of the petitioner, has cancelled the entire selection process with direction to prepare a fresh merit list. 6. This Court, after taking into consideration the stand taken by the C.D.P.O., Balikuda before whom the original H.S.C. mark-sheet has not been produced on verification, found that the original H.S.C. mark sheet was not produced before the C.D.P.O., Balikuda rather it was produced before the Additional District Magistrate, who on its perusal has found that there is no difference in the duplicate H.S.C. mark sheet with that of the original, according to the considered view of this Court, the Additional District Magistrate in exercise of appellate power only is to look into the legality and propriety of the selection process and if any document required as per the guideline, has not been produced by any of the candidates within the time stipulated in the notice inviting application, the Additional District Magistrate under its appellate authority was not competent to look into any certificate and stay the entire selection process, reason is that if the candidate is not producing the entire complete application, it is the selection committee who is scrutinizing and accepting the candidature or rejecting it if any document is not there, it cannot be made a part of the application by the appellate authority . However, the opposite party no.3 has secured highest mark but the fact remains that the opposite party no.3 has not submitted original H.S.C. mark sheet for its verification before the competent authority on the ground that the same has been destroyed by white ants and subsequently thereafter she has got it duplicate, the error already occurred at the time of submission of application by the opposite party no.3 cannot be rectified in later stage. In that view of the matter, the Additional District Magistrate, without taking into note the legal position, has passed order of cancellation of the selection of the petitioner which, according to the considered view of this Court, is not proper, hence the order dated 25.11.2010 passed by the Additional District Magistrate, Jagatsinghpur in Anganwadi Appeal Case No.26 of 2010 is not sustainable in the eye of the law, hence the same is quashed. In the result, the writ petition is allowed. Petition allowed.