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2019 DIGILAW 676 (ORI)

Mamina Ojha v. C. D. P. O. , Jagatsinghpur

2019-12-19

S.K.SAHOO, SANJU PANDA

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JUDGMENT : S.K. Sahoo, J. 1. Heard Mr. Kali Prasanna Mishra, learned Counsel for the appellant and Mr. V. Narasingh, learned counsel for the respondent no. 4. In this writ appeal, the appellant Mamina Ojha (opposite party no. 3 to the writ petition) seeks to set aside the impugned judgment and order dated 04.11.2019 passed by the learned Single Judge in W.P.(C) No. 6787 of 2013 in quashing order dated 13.03.2013 passed by the Child Development Project Officer, Jagatsinghpur (respondent no. 1) vide Annexure-7 to the writ petition whereby the CD.P.O. allowed the appellant to continue as Anganwadi Worker. The learned Single Judge further directed the respondent no. 1 to give fresh appointment order in favour of the respondent no. 4 Rashmiprava Moharana (writ petitioner). 2. The case of the appellant Mamina Ojha is that an advertisement dated 08.09.2009 was issued by the C.D.P.O., Jagatsinghpur inviting applications from the eligible women candidates for engagement of Anganwadi Workers in various Anganwadi Centers including Odiso (Kha)(i) Anganwadi Centre under Jagatsinghpur Block. The appellant along with the respondent no. 4 Rashmiprava Moharana and other candidates applied for the said post. The respondent no. 4 in her application had mentioned that she is physically handicapped and has secured 50.93% of marks in matriculation, whereas the appellant had mentioned her qualification as matriculation and she has secured 54.01% of marks. At the time of submission of application form or verification of documents, the appellant had neither mentioned nor submitted any document with regard to her higher qualification but only during the period of objection, i.e. from 12.10.2009 to 19.10.2009, she produced the documents with regard to her qualification i.e. +2 Arts pass. During the process of selection, the selection committee awarded 55.93% marks to the respondent no. 4, including 5% extra marks on the basis of physical handicapped certificate, whereas the appellant was awarded 59.13% marks, including 5% extra marks given on the basis of her higher qualification and was selected for the post of Anganwadi Worker. Challenging the selection of the appellant, the respondent no. 4 filed an appeal before the respondent no. 2. The appellate authority, vide order dated 24.05.2012 disposed of the appeal observing therein that illegality was committed during the selection process and the appellant was illegally appointed, for which her selection was cancelled and the respondent no. Challenging the selection of the appellant, the respondent no. 4 filed an appeal before the respondent no. 2. The appellate authority, vide order dated 24.05.2012 disposed of the appeal observing therein that illegality was committed during the selection process and the appellant was illegally appointed, for which her selection was cancelled and the respondent no. 2 Sub-Collector, Jagatsinghpur was directed to prepare a merit list ignoring the higher qualification of the appellant and also the physical handicapped certificate of the respondent no. 4 on the ground that the respondent no. 4 is physically handicapped to the extent of 15% on the basis of the report of the H.O.D., Department of Orthopedics, S.C.B. Medical College and Hospital, Cuttack. Challenging the order dated 24.05.2012 passed by the appellate authority, the respondent no. 4 filed W.P.(C) No. 12322 of 2012 and the appellant filed W.P.(C) No. 10472 of 2012. This Court heard both the cases analogously and passed a common order on 12.02.2013 observing therein that if a candidate is physically handicapped, she is entitled to get 5% extra mark as per the revised guidelines and the selection committee has to follow the guidelines. The order passed by the appellate authority was set aside and the selection committee was directed to issue engagement order in favour of the candidate having possessed higher percentage of marks. In pursuance of the order dated 12.02.2013, the selection committee selected the appellant as Anganwadi Worker by awarding her 5% marks for her higher qualification and issued appointment order in her favour. 3. The case of the respondent no. 4 Rashmiprava Moharana is that pursuant to advertisement dated 08.09.2009 issued by the Child Development Project Officer (CDPO), Jagatsinghpur, she along with the appellant and other candidates applied for the post of Anganwadi Worker in Odiso (Kha)(i) [Odiso B(i)] Anganwadi Centre under Jagatsinghpur Block. She comes under physically handicapped category and is entitled 5% extra mark, whereas the appellant had produced the certificate for acquisition of her higher qualification only at the time of scrutiny and thus she is not entitled to get 5% extra mark, as she has not produced such certificate at the time of submission of her application. She comes under physically handicapped category and is entitled 5% extra mark, whereas the appellant had produced the certificate for acquisition of her higher qualification only at the time of scrutiny and thus she is not entitled to get 5% extra mark, as she has not produced such certificate at the time of submission of her application. Therefore, the higher qualification acquired by the appellant and the certificate produced thereof at the time of scrutiny could not have been taken into consideration, as the last date of submission of application was over and at the time of scrutiny, the authority could not have entertained such documents. If the certificate of the appellant with regard to acquisition of her higher qualification is not taken into consideration, then the respondent no. 4 is the only eligible candidate, who is to get the appointment as Anganwadi Worker. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Diptimayee Parida vrs. State of Orissa and others, (2008) 10 SCC 687 . 4. The learned Single Judge in the impugned judgment and order has been placed to hold that the appellant produced her certificate of acquisition of higher qualification at the time of scrutiny but not at the time of submission of application and therefore, the same should not have been taken into consideration by the authority. If the extra 5% marks is taken into consideration so far as the physical handicapped category is concerned then the respondent no. 4 having secured 55.93% of marks, would be selected and given an appointment order as Anganwadi Worker instead of the appellant, inasmuch as if the extra 5% marks given to the appellant for acquisition of higher qualification gets deducted/excluded, she cannot be eligible for such appointment. Accordingly, the impugned order dated 13.03.2013 vide Annexure-7 passed by C D P.O., Jagatsinghpur to the said writ petition in allowing the appellant to continue as Anganwadi Worker was held to be not sustainable in the eye of law and accordingly, quashed. Since on the basis of such calculation, the respondent no 4 secured higher percentage of marks than the appellant, she was held to be entitled for appointment as Anganwadi Worker and the learned Single Judge directed the Sub-Collector, Jagatsinghpur (respondent no. 2) to give fresh appointment order in favour of the respondent no. Since on the basis of such calculation, the respondent no 4 secured higher percentage of marks than the appellant, she was held to be entitled for appointment as Anganwadi Worker and the learned Single Judge directed the Sub-Collector, Jagatsinghpur (respondent no. 2) to give fresh appointment order in favour of the respondent no. 4 within a period of one month from the date of communication of the order. 5. Mr. Kali Prasanna Mishra, learned counsel appearing for the' appellant contended that even though the respondent no. 4 produced the disability certificate issued by the District Medical Board, Jagatsinghpur dated 16.09.2009 in which it is mentioned that she has loco motor disability to the extent of 40% but when the genuineness of such certificate was verified at a later stage on the basis of Letter no. 3079/21.05.2010 of the C.D.M.O., Jagatsinghpur by the Professor and H.O.D., Department of Orthopaedics, S.C.B. Medical College and Hospital, Cuttack, it was found that she was having an old injury in the left hip joint and post traumatic pain and stiffness of hip joint and the percentage of disability is 15%. Basing on such report of the Professor and H.O.D., dated 28.06.2010, the C.D.M.O. treated the disability certificate issued by the Board on 16.09.2009 as cancelled. It is contended that the respondent no. 4 basing on such disability certificate dated 16.09.2009 was awarded 5% extra marks and if such extra mark is deducted in view of the order dated 03.07.2010 passed by the C.D.M.O., Jagatsinghpur under Annexure-1, then respondent no. 4 would secure less mark than the appellant, in the event of which the appellant would be selected for the post. He placed the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter 1995 Act') and contended that since the learned Single Judge has committed patent error in not considering the definition of 'person with disability' and 'disability' as occurred in section 2 of the 1995 Act and passed the impugned order, the same is liable to be set aside. 6. Mr. V. Narasingh, learned counsel for the respondent no. 4, on the other hand, contended that while issuing revised guidelines for the selection of Anganwadi Workers by the Commissioner-cum-Secretary to Government, Women and Child Development Department, Govt. 6. Mr. V. Narasingh, learned counsel for the respondent no. 4, on the other hand, contended that while issuing revised guidelines for the selection of Anganwadi Workers by the Commissioner-cum-Secretary to Government, Women and Child Development Department, Govt. of Odisha, it was stipulated that a preferential additional percentage of 5% would be given to physically handicapped woman and as on the date of submission of application, a certificate issued by a competent Board which is dated 16.09.2009 was produced in which it is mentioned that the loco motor disability is 40% and merely because at a subsequent stage i.e. after nine months of issuance of such certificate, the percentage of disability was reduced from 40% to 15%, it cannot be said that the respondent no. 4 is not coming within the physically handicapped woman and therefore, the learned Single Judge has rightly held the respondent no. 4 to have secured higher percentage of mark than the appellant basing on such 5% extra marks and therefore, entitled to be appointed as Anganwadi Worker. 7. A writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench. Adverting to the contentions raised by the learned counsel for both the parties, it appears that advertisement was issued by the CD.P.O., Jagatsinghpur on 08.09.2009 inviting applications from the eligible candidates for filing up of the post of Anganwadi Worker in Odiso (Kha)(i) [Odiso B(i)] of Jagatsinghpur Block and the respondent no. 4 submitted her application indicating therein that she is a physically handicapped person on the basis of the certificate issued by the District Medical Board, Jagatsinghpur dated 16.09.2009 and therefore, the authority calculated the marks of respondent no. 4 to be 55.93% which includes 5% of mark on the basis of such disability certificate. So far as the appellant is concerned, she was awarded 59.13% of mark including 5% of mark on the basis of higher qualification acquired by her. The learned Single Judge held that since the higher qualification certificate was produced at the time of scrutiny but not filed at the time of submission of application, therefore, the same should not have been taken into consideration by the authority. We find no illegality or infirmity with such finding. So far as the case of the respondent no. 4 is concerned, it is not in dispute that at the time of filing of the application, she had filed the disability certificate issued by the District Medical Board, Jagatsinghpur which is dated 16.09.2009 in which her loco motor disability percentage was reflected to be 40% and therefore, as per the revised guidelines issued by the Commissioner-cum-Secretary, she is entitled to get the preferential additional percentage of 5% which is available for physically handicapped woman. In 1995 Act, the definition of 'disability' has been mentioned in section 2(i)which includes loco motor disability and section 2(t) defines "person with disability" which means a person suffering from not less than 40% of any disability as certified by a medical authority. It is also not dispute that the District Medical Board, Jagatsinghpur issued the disability certificate under rule 4(2) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1995. It is also not dispute that the District Medical Board, Jagatsinghpur issued the disability certificate under rule 4(2) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1995. It is also not dispute that nine months after issuance of such certificate, the Professor and H.O.D. of Department of Orthopaedics has assessed the percentage of disability to be 15% and accordingly, the C.D.M.O. held that the disability certificate issued by the Board stands cancelled but the fact remains that in the revised guidelines for selection of Anganwadi Workers, it is not mentioned that what would be the percentage of disability for a physically handicapped woman to get preferential additional percentage of 5%. Since it is simply mentioned that a physically handicapped woman is entitled to get preferential additional percentage of 5% marks and nowhere it is mentioned that the definition of 'disability' and 'person with disability' as per 1995 Act are to be adopted for verifying whether a woman is physically handicapped or not, we are of the humble view that even though the respondent no. 4 is assessed to be having disability percentage of 15% by the Professor and H.O.D. of Department of Orthopedics at a later stage, she is entitled to get the preferential additional percentage of 5% as per the revised guidelines for selection of Anganwadi Workers. Once the respondent no. 4 gets the preferential additional percentage of 5%, she scores more marks than the appellant and therefore, the learned Single Judge has rightly held the respondent no. 4 to have secured higher percentage of marks than the appellant and also holding her entitled to be appointed as Anganwadi Worker. After careful analysis of the impugned order, the case records, the related Act and the guidelines of the Government, we find that view taken by the learned Single Judge is reasonable and logical and there is no illegality or infirmity in the impugned judgment and order of the learned Single Judge. Accordingly, the writ appeal being devoid of merits, stands dismissed.