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2022 DIGILAW 290 (ORI)

Bandita Rout v. State of Orissa

2022-07-15

V.NARASINGH

body2022
JUDGMENT : V. Narasingh, J. 1. The lis relates to selection of Anganwadi Worker of Chhandamunda Anganwadi Centre. The petitioner and the Opposite Party No.5 were applicants to be engaged as Anganwadi workers of the Centre in question. The selection committee after due scrutiny found the petitioner to be eligible and accordingly she was engaged as such. 2. During her incumbency as Anganwadi Worker Chhandamunda Anganwadi Centre, assailing her appointment the Opposite Party No.5 preferred an appeal before the statutory Appellate Authority that is A.D.M. Jajpur by filing A.W.W. Misc. (Appeal) No.05 of 2018. The appellate Authority by order dated 13.02.2019 after giving all concerned opportunity of hearing set aside the selection of the petitioner and directed the Administrative Authority that is C.D.P.O. Binjharpur to take appropriate steps to “engage the appropriate candidate observing all formalities”. Consequent upon the same the petitioner was disengaged and the Opposite Party No.5 was engaged as such. Assailing such order of the Appellate Authority dated 13.02.2019 at Annexure-7 the present Writ Petition has been filed. 3. Learned counsel for the petitioner Mr. Ojha submits that the appellate Authority has committed manifest error in failing to note the that admittedly no mark-sheet was submitted by the Opposite Party No-5 in terms of the advertisement. It is also further contended that the mark-sheet submitted by the said Opposite Party at the stage of verification is at variance with the mark-sheet originally submitted. 4. Hence, it is stated that the Appellate Authority has committed material irregularity in allowing the appeal and thereby it is submitted that petitioner right for consideration has been violated infringing his right guaranteed under Article 14 and 16(1) of the Constitution and undue advantage has been given to the Opposite Party No.5 in patent violation of the guidelines. 5. Learned counsel for the Opposite Party No.5 on the basis of his recitals in the counter affidavit states that there has been no material omission as canvassed by the counsel by the petitioner in as much as admittedly he has submitted the mark-sheet issued by the Headmaster of her school and along with the H.S.C certificate and at the time of verification the mark-sheet issued by the Board has been submitted and as such the Selection Committee ought to have taken such mark-sheet into consideration. More so admittedly, when there is no variance in the marks and the petitioner being more meritorious deserves to be engaged as AWW in preference to the petitioner and as such there is no illegality in the Appellate order warranting interference by this Court. 6. The State Authorities have filed two counter affidavits one by Opposite Party Nos.3 and 4 and the other by Opposite Party No.2, the appellate authority. 7. The counsel for the Parties to substantiate their submissions have relied on the several judgments. 8. Learned counsel for the petitioner Mr. Ojha has relied on the judgment of the Apex Court in the case Union of India and Another Vs. Sarwan Ram and Another dated 08.10.2014 SLP No.706 of 2014 and the decision of this Court dated 20.03.2019 in W.P.(C) No.6355 of 2019. 9. It is stated at the bar that the order of the Hon’ble Single Judge in W.P.(C) No.6355 of 2019 was affirmed Writ Appeal. 10. To decide the lis, it is necessary to refer to the advertisement dated 27.06.2017 which is at Annexure-1. There is a stipulation in the advertisement as to the documents which are required to be enclosed to the application form. The same has been stated in Odisa and is reproduced in Vernacular. xxxxx “Matric pass Pramana Patra and number talika.” x x x x x English Translation: Matriculation certificate and mark list. 11. The revised guidelines on the basis of which the candidature for engagement of AWW is being considered specifically refer to the marks secured in matriculation since it is the minimum educational qualification prescribed. Paragraph 3 of the revised guidelines at Annexure-2 (Page 19-20) is quoted hereunder; Page-20: x x x x x “3. The minimum educational qualification for selection will be Matriculation. In the ITDA and MADA areas, however, if no Matriculate candidate is available, the educational qualification may be relaxed for the tribal candidates and SC candidates to Class-VIII examination from a recognized High School. Percentage of marks obtained in the Matriculation examination shall be the basis of drawing a merit list amongst the applicants.” x x x x x 12. The proceedings of the Selection Committee is on record at Annexure-3 page 25. The concerned Anganwadi Centre is at Serial No.5 Chhandamunda-3 at Page 28-29. 13. Percentage of marks obtained in the Matriculation examination shall be the basis of drawing a merit list amongst the applicants.” x x x x x 12. The proceedings of the Selection Committee is on record at Annexure-3 page 25. The concerned Anganwadi Centre is at Serial No.5 Chhandamunda-3 at Page 28-29. 13. The proceeding of the committee relating to Chhandamunda is extracted here under for convenience of ready reference; x x x x x “(5) Chhandamunda-3:-Total 8(Eight) nos of applications were received for the said center & among of them Manorama Das, Snehanjali Bisoi & Anutapta Sahoo were absent on the date of verification. So their applications were not taken into consideration. On verification of remaining 5 nos of applications, Manisa Ghadai’s application was rejected due to Underage. At the same time Bandita Ghadai had withdrawn her application. Out of the rest 3 candidates, Biswabidita Ghadai’s application was rejected due to non attachment of HSC & +2 certificates to her application & Ranjita Pradhan’s application was rejected due to non attachment of HSC board mark sheet to her application. On through scrutiny/verification of their respective mark sheet and other documents attached to the application, the findings of the committee are as follows; 1) BISWABIDITA GHADAI D/O-BIBHUTIBHUSAN GHADA [Matric 78% (468/600) +5 (Qualification HSC above)] NO HSC, +2 ORIGINAL CERTIFICTE ATTACHED ON APPLICATION, REJECTED 2) BANDITA GHADAI, D/O. CHAKRADHAR GHADAI: Total 67% [Matric 62% (372/600) +5 (Qualification HSC above) WITHDRAW 3) MANORAMA DAS, D/O.SANATAN DAS: Total 42% [Matric 37% (281/750)+5(Qualification HSC above) ABSENT 4) RANJITA PRADHAN, D/O. PURNA CHANDRA PRADHAN: Total 69.4% [Matric 64.4% (483/750)+5 (Qualification HSC above)] NO ORIGINAL BOARD MARKSHEET ATTACHED ON APPLICATION, REJECTED 5) SNEHANJALI BISOI, D/O. BHARAT CHANDRA BISOI: Total 67% [Matric 62% (558/900)+5 (Qualification HSC above)] ABSENT 6) MANISHA GHADAI, D/O, ASUTTOSH GHADAI: Total 82.16% [Matric 77.16% (463/600) +5 (Qualification HSC above)] Underage 7) ANUTAPTA SAHOO, D/O. ANTARYAMI SAHOO: Total 41.6% {Matric 36.6% (275/750) +5 (Qualification HSC above)] ABSENT 8) BANDITA ROUT, D/O, BRAJASUNDAR ROUT: Total 38.33% [Matric 38.33% (230/600)] Among them BANDITA ROUT, D/O. BRAJASUNDAR ROUT has secured highest percentage of marks i.e. Total 38.33% [Matric 38.33 % (230/600)] and is selected as AWW by the committee for the said center.” x x x x x 14. The marks calculated on the basis of the proceeding in a tabular form is at page 45 of the Writ Petition which clearly indicates that the Opposite Party No.5 at Serial No.4 has secured 69.4 marks as the petitioner, at Serial No.8 secured 38.33 of marks. 15. There is no dispute regarding academic qualification of both the petitioner as well as Opposite Party No.5. 16. On a bare perusal of the advertisement adverted to herein above, it can be seen that the same stipulated for submission of self-attested Xerox copies of the documents relied upon, matriculation certificate and mark-sheet figured in the list of such documents. Admittedly, it did not state the authority by whom said certificate and mark sheet is to be issued obviously for the reason that there are number of academic bodies who are conducting matriculation or equivalent examination and issuing mark-sheets. 17. It is contended by the learned counsel for the petitioner with vehemence that since the mark list was admittedly not issued by Board of Secondary Education, Odisha (the Board conducting the examination in the case at hand) such mark list ought not to be taken into account and this goes to the root of the matter and the illegality could not have been condoned by the Appellate Authority. And as such, there was no irregularity in the Selection committee rejecting the claim of the Opposite Party No.5 on that ground. 18. On Close scrutiny of the condition stipulated regarding submitted documents, it is to be stated at the cost of repetition that the authority by whom such mark sheet was to be issued has not been prescribed and what has been stated is that certificate evidencing passing of matriculation and mark-sheet. 19. Hence, this Court is of the considered opinion that the Selection Committee misinterpreting the stipulations contained in the advertisement has wrongly rejected the mark-sheet submitted by the Opposite Party No.5. 20. 19. Hence, this Court is of the considered opinion that the Selection Committee misinterpreting the stipulations contained in the advertisement has wrongly rejected the mark-sheet submitted by the Opposite Party No.5. 20. Learned counsel for the petitioner further submits that it is on record that the Opposite Party No.5 has stated that she has submitted the mark-sheet issued by the council whereas in the case at hand it is not the “council” but the Board of Secondary Education which has submitted the mark sheet hence the finding by the Appellate Authority that the mark-sheet has been submitted by the Board is ex-facie outcome of non-application of mind and indicative of over jealousness of the Appellate Authority to favour the Opposite Party No.5. 21. This Court had occasion to scrutinize the mark-sheet issued by the Headmaster and the mark-sheet issued by Board of Secondary Education and it is worth noting that there is no variance in the mark-sheet issued by the Headmaster in which the roll number of the petitioner has been mentioned and it has also been stated that she has secured 1st division having got 483 marks out of 750. Both the mark sheets issued by the Headmaster and the Board are on record as part of Annexure-C/5 Series (running Page 63 & 64). 22. Adverting to the judgments relied upon by the learned counsel for the Petitioner, it is seen that the judgment of the Apex Court in the Case of Union of India and Another Vs. Sarwan Ram and another (Supra) relates to recruitment of posts of Group-D, Ex-Service Man quota and in that particular case, the Apex Court took exception to the non-pasting of the Photograph, inter alia, on the ground that pasting of such Photograph was required to eliminate the possibility of fake persons getting recruited and it was held that condition was mandatory in nature and could not have been given a go by. 23. The other judgment relied on by the learned counsel for the petitioner of the Hon’ble Single Judge of this Court relates to the grant of additional marks on the basis of a disability certificate which was admittedly submitted beyond the stipulated time. 24. The factual matrix of both the cases cited are of no assistance to the petitioner and the judgments passed therein have no application to the facts of the present case. 24. The factual matrix of both the cases cited are of no assistance to the petitioner and the judgments passed therein have no application to the facts of the present case. In persuading this Court to rely on these judgment, the statutory principles of interpretation of judgments has escaped the careful attention of the learned counsel for the petitioner in as much as it is the settled principle of interpretation of judgments that judgments are not to be read as “Euclid’s Theorem” and in this context this Court refers to the judgment of the Apex Court in the case of Haryana State Financial Corporation vs. Jagdamba Oil Mills reported in (2002) 3 SCC 496 and this Court in impelled to reiterate with profound respect the immortal words of Lord Denning referred to in the case of Haryana State Financial Corporation (supra); “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the board resemblance to another case is not at all decisive.” ** * “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could implede it.” (At Page 509) 25. The learned counsel for the Opposite Party no.5 has relied on the judgment of the apex Court in the case Western Railway and Another vs. Harendra Gawaria reported in 2022 SCC Online Raj 463, more particularly Para-16 order of which is quoted hereunder; xxxxx “16. It is the settled position of law that whenever there is a conflict between the substantial justice and hyper-technicality then the substantial justice should be preferred to avoid the defeat for the ends of justice. If the hyper-technical stand of the petitioner is allowed to stand as it is then it would amount to failure of justice. It is the settled position of law that whenever there is a conflict between the substantial justice and hyper-technicality then the substantial justice should be preferred to avoid the defeat for the ends of justice. If the hyper-technical stand of the petitioner is allowed to stand as it is then it would amount to failure of justice. The judgments cited by the counsel for the petitioners are not applicable to the facts of the present case.” x x x x x 26. As per the norms of selection of Anganwadi the mark secured in the matriculation is of primary consideration. On perusal of the materials on record it is seen that admittedly the Opposite Party No.5 is more meritorious than the petitioner and this Court is persuaded to hold that the mark sheet submitted by the Opposite Party No.5 which was issued by the Headmaster of the school conforms the stipulation of the advertisement relating to submission of Photostat copy of the mark sheet. The selection committee in rejecting her candidature has virtually rewritten the stipulations relating to the submission of mark sheet to be submitted which is ex-facie not permissible. 27. Hence on a conspectus of materials on record this Court does not find any illegality in the order passed by the appellate authority and consequential appointment of Opposite Party No.5 so as to warrant inference in exercise of its plenary jurisdiction. 28. The Writ application accordingly stands dismissed. 29. There shall be no order as to cost.