Hemalata Mohapatra vs Collector, Bhadrak and Others

S.N. Prasad, J—Petitioner has approached this Court for quashing notification No. 42 dated 9.1.2014 (Annexure-2) so far as it relates to Chandrakant Bindha Anganwadi Centre with further direction to select candidate who has been declared successful in view of last selection process.

Brief facts of the case which has been pleaded in the writ petition is that a notification has been issued for inviting applications for the post of Anganwadi Worker in Chandrakant Bindha Anganwadi Centre under Daulatpur Grama Panchayat in the district of Bhadrak in the year 1997. Petitioner being an application was called for to participate in the interview which was held on 2.12.1997, she was asked to produce testimonials by the C.D.P.O., Tihidi vide order dated 30.4.1998 she complied the same but no further step has been taken by the authorities. A writ petition has been filed by Maitriprava Nayak and Smt. Chanchala Das vide O.J.C. No. 17306 of 1997 before this Court and vide order dated 12.12.1997 passed in Misc. Case No. 14875 of 1997 this Court has directed that any appointment of Anganwadi Worker in the centre shall be subject to result of the writ petition. In the said writ petition C.D.P.O., Tihidi has been arrayed as opposite party No. 3 and when petitioner has not been engaged petitioner has made an application for intervention in O.J.C. No. 17306 of 1997 which was allowed vide order dated 23.10.2006, petitioner has also filed Misc. Case No. 906 of 2006 praying therein for vacating the interim order dated 12.12.1997. This Court vide order dated 23.10.2006 in Misc. Case No. 906 of 2006 arising out of O.J.C. No. 17306 of 1997 has clarified the previous interim order dated 12.12.1997 to the effect that any appointment of Anganwadi Worker in Chandrakant Bindha Anganwadi Centre will be subject to result of the writ petition.

It is alleged that the opposite parties are not appointing anybody treating the interim order to be an order of Stay, this Court has clarified that there is no restrain on the part of the opposite parties to appoint Anganwadi Worker in Chandrakant Bindha Anganwadi Centre who has been selected in due process, order dated 12.12.1997 has clarified to the said extent. The writ petition being O.J.C. No. 17306 of 1997 has also been dismissed by this Court vide order dated 23.7.2007 but even thereafter the petitioner has not been selected.

Grievance of the petitioner that instead of selection the petitioner and other successful candidates in pursuance to the advertisement issued in the year 1997 which was the subject matter of O.J.C. No. 17306 of 1997 the authorities have come out with fresh advertisement dated 9.1.2014 inviting applications from fresh candidates, immediately thereafter this writ petition has been filed and this Court vide order dated 3.2.2014 has passed interim order to the effect that any appointment made in pursuance to the advertisement dated 9.1.2014 shall be subject to result of the writ petition.

Further grievance of the petitioner that the authorities have proceeded in pursuance to the advertisement dated 9.1.2014 and engaged opposite party No. 4 which is arbitrary, and illegal action on the part of the authorities. The petitioner has taken various grounds like

(i) Advertisement has been issued in the year 1997, petitioner has been directed to produce testimonials which she has produced, however interview held in pursuance to the earlier advertisement which has been challenged in O.J.C. No. 17306 of 1997 but however, this Court has passed earlier an interim order directing that any appointment is subject to the result of the writ petition vide order dated 12.12.1997 but said order was modified on 23.10.2006 by clarifying that the authorities can appoint and select candidate in view of the earlier advertisement as Anganwadi Worker in the centre in question but no step has been taken even after modification of the interim order dated 12.12.1997.

(ii) Not only that the writ petition was filed but the same was dismissed vide order dated 23.7.2007 even thereafter no action has been taken by the authorities hence petitioner is filing representations before the authority concerned for redressal of her grievance but however no effect, but in the meanwhile a fresh advertisement has been issued by the authorities on 9.1.2014 which is highly illegal and arbitrary in view of the fact that once selection process has been started, candidate has been considered but no finally selected, in the meanwhile that selection process has been made subject matter of judicial review before the court of law then the authority is supposed to wait for the outcome of the writ petition and not to go for fresh advertisement. However, court has passed interim order in earlier writ petition being O.J.C. No. 17306 of 1997.

(iii) Due to arbitrary action of the authority candidature of the petitioner has not been finally considered.

Opposite party-State has filed counter affidavit wherein plea has been taken that it is only due to the lapse of more than 17 years from the earlier advertisement since relevant file is not available with the department the authority have no option but to go for fresh selection.

It has been contended that in the meanwhile petitioner has also attained age of 51 years while requirement is that candidate must be in between 18 and 42 years.

It has further been contended that in pursuance to the advertisement dated 9.1.2014 Anganwadi Worker has been selected.

Opposite party has put her appearance through an Advocate and learned counsel for the opposite party No. 4 has submitted that in view of the second advertisement she had made application, considered and finally selected and discharging her duty as Anganwadi Worker. It has been contended that opposite party No. 4 cannot be put at loss which will be done if the relief sought for by the writ petitioner will be allowed because there is no fault on the part of the opposite party No. 4.

Heard learned counsel for the petitioner, Mr. Amit Patnaik, learned Additional Government Advocate for the State and learned counsel for the opposite party No. 4.

Undisputed that in this case is that one advertisement was issued in the year 1997. In pursuance to such advertisement petitioner being one of the candidates had participated, called for to appear in the interview held on 2.12.1997, she appeared and directed to produce testimonial before the C.D.P.O., Tihidi by 30.4.1998 which has been complied with. Thereafter a writ petition being O.J.C. No. 17306 of 1997 has been filed by Maitriprava Naik and Chanchala Das questing the interview held on 2.12.1997 in pursuance to the advertisement of the year 1997 and also prayed to stay further engagement by way of filing Misc. Case No. 1487 of 1997, this Court vide order dated 12.12.1997 passed interim order making appointment subject matter of the writ petition. Selection process has been started. Petitioner being aggrieved has filed one intervention application and the said application was allowed vide order dated 23.10.2006 in Misc. Case No. 906 of 2006 praying for vacating he interim order dated 12.12.1997. This Court vide order dated 23.10.2006 has passed the following order:

"This is an application for vacation of the interim order dated 12.12.1997.

None appears for he petitioners. Heard learned counsel for the intervenors and the learned counsel for the State.

As it appears, by virtue of order dated 12.12.1997 passed in Misc. Case No. 14875 of 1997, this Court directed that any appointment of Anganwadi Worker in Chandrakant Bindha Anganwadi Centre will be subject to the result of the writ petition. It is alleged that the O.Ps. are not appointing anybody treating this order to be an order of stay.

I may make it very clear that there is no restraint on the part of the O.Ps to appoint Anganwadi Worker in Chandrakant Bindha Anganwadi Centre, who has been selected in due process.

The order dated 12.12.1997 is clarified to the aforesaid extent."

After modification of the order dated 23.10.2006 authorities have not proceeded with conclusion of the selection process in terms of the advertisement issued in the year 1997. Writ petition being O.J.C. No. 17306 of 1997 has been dismissed vide order dated 23.7.2007 which is being quoted for ready reference.

"This writ petition has been filed assailing the irregularities committed in the recruitment process held on 02.12.1997 for filling up the post of Anganwadi Worker at Chandrakant Bindha Anganwadi Centre in the district of Bhadrak. Ten years have passed in the meanwhile. I am therefore not inclined to entertain this writ petition.

The same is accordingly dismissed."

Grievance of the petitioner is that even after disposal of the writ petition, she has not been selected and she is waiting for selection and decision to be taken in this regard by the authorities who have not taken any decision on the garb of pendency of O.J.C. No. 17306 of 1997. The authority intends to conclude selection process has come out for fresh advertisement dated 9.1.2014, petitioner immediately approached this Court by way of this writ petition wherein initially following interim order was passed on 3.2.2014 in Misc. Case No. 1173 of 2014 which is being quoted hereinbelow:

"Any engagement against the post of Anganwadi Worker under Chandrakant Bindha Anganwadi Centre under Daulatpur Gram Panchayat pursuant to advertisement under Annexure-2 shall be subject to result of the writ petition."

Thereafter the said order was modified vide order dated 21.2.2014 which is being quoted hereinbelow:

"As prayed for by the learned counsel for the State, put up the matter on 6.3.2014 for obtaining instruction/filing counter.

Interim order dated 3.2.2014 passed in Misc. Case No. 1173 of 2014 is modified and it is directed that the selection process pursuant to advertisement dated 9.1.2014 under Annexure-2 shall proceed but no engagement of Anganwadi Worker shall be made without leave of this Court."

Thus this Court has made order in pursuance to the advertisement dated 9.1.2014 initially subject to outcome of the writ petition, subsequently directed the authorities to go with the selection process but not to engage any Anganwadi Worker.

In this context, argument advanced by learned counsel for the State as well as opposite party No. 4 that selection process has come to end due to lapse of 17 years from the date of initiation of advertisement in the year 1997 and in the meanwhile original record has been misplaced so the authority has no option but to go for fresh advertisement and accordingly fresh advertisement has been issued in the year 2014.

This argument of the opposite party-State is surprising and so casual approach in the matter of selection process of Anganwadi Worker and become the authority has to give its logical conclusion by concluding selection process which would only said to be concluded after making selection if petitioner is eligible or if the petitioner is not eligible then the authority can go for fresh advertisement but the ground which is taken in issuing fresh advertisement that the records has been misplaced hence fresh advertisement has been made. The said ground cannot be accepted because of the following reasons:

(i) Writ petition being O.J.C. No. 17306 of 1997 was pending before this Court since 1997.

(ii) Interim order was passed on 12.12.1997, in view thereof selection process was installed by the authority.

(iii) Petitioner being eligible in view of the advertisement made an application for intervention and modification of the interim order which was allowed vide order dated 23.10.2006 giving liberty to the petitioner to go for selection. Thus from 1997 till 2006 the authorities knowing the fact that the matter relating to selection process is under judicial scrutiny of this Court.

(iv) The writ petition was finally disposed of on 23.10.2007. The authority after final disposal of O.J.C. No. 17306 of 1997 has not taken any decision in view of the first advertisement fairly for long period and only on 9.1.2014 they have come out with fresh advertisement and when challenged ground is being taken that the file is misplaced.

This contention cannot be accepted due to the reason that if the file is misplaced and the writ petition has finally been disposed of on 23.10.2007, the authority would have come out for fresh advertisement only after disposal of O.J.C. No. 17306 of 1997 on 23.10.2007 but no steps has been taken fairly for a long period of about seven years. Secondly, if the file has been misplaced what action has been taken by the authority against the erring officers who were the custodian of the files. All these facts are lacking in the counter affidavit, hence submission made by learned counsel for the opposite parties cannot be accepted and is hereby rejected.

There is no dispute that in the selection process they are supposed to come to conclusion and it is settled that selection process will be said to be concluded the moment offer of appointment has been issued in favour of successful candidate. If however, successful candidate has not joined then the authorities after verifying the reasons can go for fresh advertisement, that is not done in this case.

Contention of the learned counsel for both the opposite party-State as well as opposite party No. 4 that the petitioner has approached this Court after lapse of 17 years and in the meanwhile opposite party No. 4 has been selected and engaged and now continuing.

In this context, it is to be referred that the selection and engagement of opposite party No. 4 is by virtue of interim order passed on 3.2.2014 and subsequent order dated 21.2.2014, hence opposite party No. 4 is also knowing about the fact of her engagement which has been made depending upon outcome of the writ petition. Hence opposite party No. 4 cannot take this ground at this stage since she has been selected if disturbed that will prejudice to her right by virtue of the reason if selection made which is on the basis of arbitrary and improper decision of the authority, the whole selection process has to be quashed.

So far as question of prejudice of right of opposite party No. 4 is concerned which has been raised for the reason that she has been engaged but subsequently on 21.2.2014 that will also not hold because order dated 21.2.2014 has been clarified the order dated 3.2.2014, wherein any appointment made in pursuance to advertisement dated 9.1.2014 has been made shall be subject to result of the writ petition even though opposite party No. 4 has been engaged prior to 21.2.2014 and this fact is know by the opposite party No. 4.

So far as delay part is concerned that the petitioner has approached this Court after delay of about 17 years, so she has no right to be engaged, this argument cannot be accepted on the ground that the petitioner has filed intervention application in O.J.C. No. 17306 of 1997 which was allowed and the interim order was modified clarifying that there is no restrain order upon the opposite parties to make selection process in the earlier advertisement but the authorities have no option but to go for fresh selection. Petitioner although has approached this Court but that does not mean that she will cease her right to approach this Court for redressal of her grievance and this Court has clarified the position regarding going for selection in view of the first advertisement but the authorities have not gone for fresh advertisement fairly for period of 17 years and finally come out fresh advertisement on 9.1.2014. Petitioner immediately after issuance of advertisement dated 9.1.2014 has approached this Court on 21.1.2014 (instant writ petition) in which court has passed an interim order stopping for engagement of Anganwadi Worker in pursuance of the second advertisement dated 9.1.2014 as subject matter of writ petition initially and subsequently go for selection process but no engagement of Anganwadi Worker shall be made without leave of this Court.

Thus, it is the authority who has not discharge the duties in proper manner and also not come out with clean hands before this Court since they have taken false averments regarding missing of records which is the ground for issuing second advertisement. It is not the case of the opposite parties that second advertisement was issued immediately after disposal of O.J.C. No. 17306 of 1997 which was disposed of on 23.10.2007 and the petitioner has not approached immediately thereafter, in that circumstances, plea of the opposite parties can be accepted but that is not the case here.

From the facts it can be said that the petitioner was waiting for final selection but immediately after issuance of second advertisement on 9.1.2014 petitioner has assessed that her right has finally been ceased, she approached this Court. Delay and latches is applicable to both the petitioner as well as the State functionaries. If State is taking plea of delay on the part of the petitioner the same will also equally applicable to the State authority who has waited for about 7 years for fresh advertisement without any valid reason.

In view of the foregoing reason, the advertisement dated 9.1.2014 cannot be approved. Engagement of opposite party No. 4 is also not sustainable and as such same is hereby quashed.

Authorities are directed to conclude selection process which has been initiated in terms of advertisement issued in the year 1997 which was the subject of O.J.C. No. 17306 of 1997 and select eligible candidate from the panel which was prepared on the basis of the interview held on 2.12.1997.

Decision in this regard shall be taken by the authorities without any further delay preferably within four weeks from the date of receipt of certified copy of this order.

With the aforesaid observation and direction, writ petition is disposed of.