caselaws
Supreme Court of India
Charulata Behera vs Pravati Parida & Ors on 30 January, 2015Author: S K Singh
Bench: Anil R. Dave, Shiva Kirti Singh
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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