CHARULATA BEHERA Vs. PRAVATI PARIDA & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1322 of 2015, Judgment Date: Jan 30, 2015

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 1322  OF 2015
                 [Arising out of S.L.P.(C) No.10183 of 2012]


Charulata Behera                                       .....Appellant

                                   Versus

Pravati Parida & Ors.                                 .....Respondents


                               J U D G M E N T

SHIVA KIRTI SINGH, J.

Heard the parties.  Leave granted.
The appellant  as  well  as  respondent  no.1  applied  in  response  to  an
advertisement dated  02.02.2009  for  engagement  as  Anganwadi  Worker  for
Urumukhi-3 Anganwadi Center, Bhushandpur, Tangi, Odisha.  She  is  aggrieved
by the judgment under appeal dated 18.07.2011 whereby the Division Bench  of
Orissa High Court set aside the order of a learned Single Judge of the  High
Court dated 09.08.2010.  The effect of the  impugned  order/judgment  is  to
allow the writ petition  preferred  by  respondent  no.1  and  as  a  result
selection and appointment of the appellant  stands  set  aside  and  instead
respondent no.1 has been appointed as Anganwadi  Worker  for  the  concerned
centre.
The moot question to be answered in this  appeal  is  whether  the  Division
Bench should have allowed the writ appeal only on technicalities and on  the
basis of certain orders passed earlier when on facts there was no  ambiguity
that respondent no.1 was not a resident of the concerned  centre  and  hence
lacked the basic eligibility for engagement  as  Anganwadi  Worker  for  the
centre.
Learned counsel for the appellant has taken us through the  relevant  orders
and enquiry reports which show that even before the appellant  was  engaged,
as soon as respondent no.1 came  to  know  that  in  the  selection  process
appellant had secured highest marks  and  was  likely  to  be  engaged,  she
approached appellate/higher authority - respondent no.3, the  Sub-Collector,
Khurda.   By  order  dated  26.12.2009,   respondent   no.3   noticed   that
appellant's sister was engaged as Anganwadi Worker in  another  centre  and,
therefore, without  waiting  for  the  order  of  engagement,  as  appellate
authority - respondent no.3 set aside the  orders  selecting  the  appellant
and the matter was remanded back to the Child Development Project Officer  -
respondent no.4 to reconsider the case of the respondent  no.1  as  per  the
Government guidelines.  The Selection Committee  reconsidered  the  relevant
facts in a meeting held on  04.06.2010  attended  by  five  members  of  the
Selection Committee including the Sub-Collector,  Khurda  who  had  remanded
the  matter  for  reconsideration.   The  minutes  of  the  proceedings   of
Selection  Committee  dated  04.06.2010  have  also  been  signed  by   Sub-
Collector, Khurda and they disclose that appellant was found to be the  most
eligible candidate for appointment.  In the meantime,  respondent  no.1  had
preferred a writ petition  bearing  W.P.(C)No.9300  of  2010  in  which  her
simple grievance was that order of Sub-Collector,  Khurda  dated  26.12.2009
was not being implemented. That writ petition was disposed of on  20.05.2010
with a direction to implement the order of Sub-Collector within four weeks.
Respondent no.1 challenged the decision of  the  Selection  Committee  dated
04.06.2010 directly through  a  writ  petition  bearing  W.P.(C)No.11960  of
2010.  The writ petition was dismissed on  09.08.2010  on  the  ground  that
appellant had  secured  more  marks  in  the  selection  and  there  was  no
illegality in the selection process.  A liberty,  however,  was  granted  to
the respondent no.1 that as per Government guidelines,  she  may  prefer  an
appeal before the Additional District Magistrate against  the  selection  of
the appellant.  The respondent no.1 did not prefer  any  appeal  before  the
Additional District Magistrate or any other authority and instead  preferred
Writ Appeal No.430 of 2010 which was allowed  on  18.07.2011  by  the  order
under appeal.
The Division Bench has interfered with  the  appointment  of  the  appellant
only on the basis of appellate authority's order dated  26.12.2009  and  the
order dated 20.05.2010 passed in W.P.(C)No.9300 of 2010 in which the  simple
direction was to implement the remand order passed by Sub-Collector,  Khurda
on 26.12.2009.  According to the Division Bench, the  aforesaid  two  orders
had not been, and therefore ought to be complied, particularly  when  nobody
had objected to those orders by preferring any review or appeal.
In our considered view, the Division Bench erred in ignoring the  fact  that
order dated 26.12.2009 was an order  whereby  the  Selection  Committee  was
required only to reconsider the relevant matters and hence by completion  of
necessary exercise on 04.06.2010,  the  order  of  remand  dated  26.12.2009
stood complied even in terms of  directions  of  the  learned  Single  Judge
made on 20.05.2010 in W.P.(C)No.9300 of 2010.  The Division Bench  erred  in
presuming that the remand order required rejection of appellant's  case  and
appointment of respondent no.1.  The Division Bench also  failed  to  notice
that the Sub-Collector, Khurda who passed the order dated 26.12.2009  was  a
member of the Selection Committee and party to the decision taken in  favour
of appellant on 04.06.2010.  The Division Bench further  erred  in  ignoring
the case of  the  official  respondents  that  respondent  no.1  lacked  the
eligibility qualification for selection and engagement because she  was  not
a resident of the centre in question.
In the aforesaid facts and circumstances, we have no option  but  to  accept
the contention advanced on behalf of the  appellant  that  the  order  under
appeal has been passed without looking into the relevant facts and  ignoring
the well settled principle in  respect  of  exercise  of  writ  jurisdiction
under Article 226 of  the  Constitution  of  India  that  such  jurisdiction
should not be exercised on mere technicalities especially if the  result  of
such exercise will amount to perpetuation of  illegality.   In  the  present
case the appointment of respondent no.1 made pursuant to order under  appeal
is clearly illegal as she did not have the eligibility  qualification.  This
is also the stand of official respondents  even  in  the  counter  affidavit
filed before this Court.
As a result, the appeal is allowed.  The impugned judgment and order of  the
Division Bench dated 18.07.2011 is set  aside  and  as  ordered  by  learned
Single Judge, the writ petition  preferred  by  the  respondent  no.1  shall
stand dismissed. Consequently,  the  appellant's  engagement  would  revive.
The appellant shall  be  permitted  to  resume  her  work  on  the  post  of
Anganwadi Worker at the concerned centre  forthwith  so  that  she  may  not
suffer further loss of remuneration etc. unnecessarily.   In  the  facts  of
the case, there shall be no order as to costs.

                       ...........................................J.
                                                    [ANIL R. DAVE]

                       ............................................J.
                                               [SHIVA KIRTI SINGH]
New Delhi.
January 30, 2015.

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