Sushama Bag Vs Kemati Kharsel

IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.1155 of 2024

Arising out of the order dated 16.04.2024 passed by the learned Single Judge in W.P. (C) No.14728 of 2013.

Sushama Bag … Appellant -versus1.Kemati Kharsel 2.State of Odisha 3.The Addl. District Magistrate, Balangir …. Respondents 4.C.D.P.O., Muribahal

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Advocates appeared in this case through Hybrid Mode :

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For Appellant : Mr.A.K.Panda, Advocate

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For Respondent : Mr.Saswat Das, AGA (for Respondents No.2 to 4)

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CORAM:

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HON’BLE THE CHIEF JUSTICE AND

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HON’BLE MS. JUSTICE SAVITRI RATHO

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.…………………………………………………………………………………..

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Date of Judgment : 04.07.2024

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…………………………………………………………………………………….

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SAVITRI RATHO, J. In this intra court appeal, the appellant has challenged

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the judgment dated 16.04.2024 passed by a learned Single Judge in W.P. (C) No.14728 of 2013, allowing the writ petition and setting aside the order

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dated 24.04.2013 passed by the learned Addl. District Magistrate (in short

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“ADM”), Balangir in Appeal Petition No.11/2011 and directing for issue of

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engagement order in favour of the writ petitioner (Respondent No.1) as

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Anganwadi Worker of Dunguriguda Additional Anganwadi Centre.

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W.A. No.1155 of 2024

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Page 1 of 8

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Respondent No.1 had filed the writ petition stating that pursuant to

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the advertisement by the C.D.P.O., Muribahal for engagement of Anganwadi Worker for Dunguriguda Anganwadi Centre dated 08.07.2009, she had submitted her application and secured the highest marks as per the selection of the selection committee meeting held on 07.08.2009. The private opposite party No.4 (present appellant) was placed in the 2nd rank. But the selection was withheld and subsequently the advertisement was cancelled. On 02.06.2010, another advertisement was published and an order of engagement was issued in favour of the present appellant. On enquiry, the writ petitioner came to know that her candidature was rejected on the ground that she had failed in Odia subject in Class-VII. She approached this Court in W.P. (C) No.18391 of 2012, which was disposed of directing her to submit a representation before the ADM, Balangir with further direction to the ADM to consider the same within two weeks. She filed appeal before the ADM, Balangir but as the same was dismissed for default, she filed W.P. (C) No.15783 of 2012 challenging the order and it was disposed of on 12.11.2012 by this Court setting aside the order of the ADM and directing for fresh disposal. Pursuant to such order, the ADM heard the appeal and dismissed the same by order dated 24.04.2013 on the ground that she had failed in Odia Subject in Class-VII, securing 20 marks out of 100, whereas the private opposite party No.4 (present Appellant) had secured 30 marks.

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W.A. No.1155 of 2024

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Page 2 of 8

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Counter affidavit was filed in W.P. (C) No.14728 of 2013 by the State justifying the order of the ADM. It was stated therein that the original selection process pursuant to the advertisement dated 08.07.2009 was cancelled as some doubts had crept in with regard to residential certificate submitted by the appellant. Pursuant to direction of the Sub-Collector, the CDPO again published advertisement on 02.06.2010, pursuant to which three applications were received which included that of the writ petitioner and the present appellant. The candidature of the third candidate was rejected as she was found to belong to a different service area. In respect of the writ petitioner, who had submitted H.S.C. certificate obtained from the NOIDA Board, the selection committee sought clarification from the State Government. Clarification was received from the Government vide letter No. 11260/WCD dated 25.06.2010 to the effect that the candidates having requisite qualification from the institutes approved by the Government of Odisha having Odia up to 7th Standard may be allowed to take part in selection of Anganwadi Workers. The writ petitioner had produced two different School Leaving Certificates showing different marks secured by her in Class-VII, one dated 28.06.2002 with total 139 marks and the other dated 02.07.2011 with total 169 marks. It was also averred that as the petitioner had failed in Odia in Class-VII, the ADM rightly dismissed the appeal.

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Page 3 of 8

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The writ petitioner (Respondent No.1 in this Appeal) had filed a rejoinder refuting the averments in the counter affidavit. It was her specific case that the School Leaving Certificate dated 28.06.2002 showing 139 marks was cancelled as it had been wrongly issued which would be evident by totaling the marks secured by her in all subjects. It was further alleged that the CDPO being gained over by the appellant utilized the cancelled certificate with a malafide intention, which is an act of fraud.

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In the writ petition, counter affidavit has also been filed by the present appellant stating that knowledge of Odia is a mandatory requirement for the post of Anganwadi Worker and the writ petitioner had submitted 10th pass certificate issued by the Board outside Odisha without Odia as a subject and she had not passed Odia in her Class-VII examination. As regards the two certificates, it was stated that the subsequent certificate issued on 03.07.2011 cannot be accepted as it was issued after the last date of submission of application. In the absence of any certificate in support of the writ petitioner passing Odia, it cannot be presumed that the petitioner being an Odia is able to read and write Odia and as the appellant had admittedly secured more marks in Odia than the writ petitioner, she was rightly selected.

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The learned Single Judge after referring to writ petition, counter affidavits and the submission of the counsel, has held that the ADM went

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W.A. No.1155 of 2024

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Page 4 of 8

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beyond the guidelines/advertisement/clause to prefer the claim of the writ petitioner and allowed the writ petition. Paragraph-10 of the judgment which is relevant is extracted below:

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“10. The question is, whether the petitioner fulfilled the condition of being able to read and write Odia. Neither the State nor the private opposite party have stated anywhere that the petitioner cannot read or write in Odia language. Their only contention is that she has not passed in Odia subject in her Class-VII examination. This Court would not like to enter into the factual controversy as regards the genuineness of two certificates issued in favour of the petitioner by the concerned School for the reason that in either case it is seen that she had Odia as a subject in ClassVII. This by itself is adequate to hold that she was capable of writing and reading Odia as otherwise she could not have secured 18 or 20 marks as the case may be in Odia. As already stated, neither the guidelines nor the advertisement requires a candidate to have passed in Odia in Class-VII. It has been argued that the petitioner has not passed Class-VII, which is an absurd proposition for the reason that she has undisputedly submitted a matriculation certificate, which could not have been issued had she not passed in Class-VII. The ADM has referred to the clarification issued by the Government on 25.06.2010 that “the candidate having requisite qualification from institute approved by the Government of Odisha and Odia up to VIIth standard may be allowed to take part in selection of Anganwadi Worker”.

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W.A. No.1155 of 2024

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Page 5 of 8

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Copy of the clarification has not been brought on record by any of the parties, for which this Court has no other option than to rely on the impugned judgment where the above has been quoted. Be that as it may, even the Government clarification does not say that the candidate must have passed Odia in VIIth standard, rather, the requirement is she must have Odia as a subject in the 7th standard for being eligible to take part in the selection process. The ADM by ignoring the advertisement, the revised guidelines dated 02.05.2007 and the clarification of the Government took into consideration the VIIth Class Certificate, wherein the petitioner was found to have failed in Odia subject by securing 20 out of 100 marks. This is a clear case of exceeding the brief by the ADM. As such, the impugned order cannot be sustained in the eye of law as no authority can be permitted to go beyond the guidelines or the terms of the advertisement.”

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Heard Mr.A.K.Panda, learned counsel for the appellant and Mr. Saswat Das, learned Addl. Government Advocate appearing for respondents No.2 to 4 and perused the advertisement dated 08.07.2009 and the order of the learned Single Judge.

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Mr.Panda, learned counsel for the appellant submits that as the writ petitioner had not passed Odia in Class-VII, her candidature had been rightly rejected by the ADM as reading and writing in Odia is an essential eligibility criteria. Her two certificates show that she has not passed Odia.

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W.A. No.1155 of 2024

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Page 6 of 8

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Knowledge of Odia is essential in view of the nature of work to be performed by her. She had passed Class-X from an outside Board without Odia as a subject, so she lacked the essential qualification. The writ petitioner had produced two mark sheets with different total marks for which her candidature was rightly rejected.

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Mr.Saswat Das, the learned Addl. Government Advocate submits that as the Respondent No.1 had not passed Odia in Class-VII so it can be presumed that she did not know to read and write in Odia which is an essential eligibility criteria. He finally submits that submission of two mark sheets was also one of the reasons why her appeal was rejected by the ADM and rightly so.

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The advertisement dated 08.07.2009 is Annexure-4 to the writ petition. The subsequent advertisement issued on 08.06.2010 was not annexed with the writ petition. The learned Single Judge has observed that the eligibility conditions laid down in advertisement dated 08.07.2009 were reiterated in the second advertisement. It was also observed that the basic educational qualification is matriculation and that the candidate should be able to read and write in Odia language and it is not mentioned that he/she is required to pass Odia in Class-VII. The revised guidelines dated 02.05.2007 of the Government in Women and Child Development also does not require this qualification. In the selection, the writ petitioner

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Page 7 of 8

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secured 57 marks, while the appellant secured 39.2 marks. We find no substance in the submission of learned counsel for the appellant that the second mark sheet of the petitioner should not have been considered. We

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are of the view that since both the mark sheets indicated that the writ petitioner had studied Odia up to Class-VII, difference in marks were of no consequence as pass marks in Odia subject was not an essential eligibility criteria.

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As the petitioner has read Odia in Class-VII and secured some marks, it is to be presumed that she can read and write Odia, even if she failed in the subject as pass marks in Class-VII was not the requirement in the eligibility criteria.

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Considering the facts and circumstances of the case, this Court finds no illegality in the impugned judgment and therefore no merit in this writ appeal, which is accordingly dismissed.

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(Chakradhari Sharan Singh) Chief Justice

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(Savitri Ratho) Judge

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Signature Not Verified

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Orissa High Court, Cuttack Dated 4^th July, 2024/Bichi

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Digitally Signed Signed by: BICHITRANANDA SAHOO Dated 4^th Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 26-Jul-2024 17:13:51

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W.A. No.1155 of 2024

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Sushama Bag v. Kemati Kharsel

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Sushama Bag v. Kemati Kharsel

Case brief

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