Smita Manjari Rout and Others vs State of Orissa and Others

S.N. Prasad, J.—Heard learned counsel for the petitioner and learned counsels appearing for the opposite parties.

In all these three writ petitions since common issue is involved hence these three writ petitions are disposed of by this common order.

In W.P.(C) No. 13065 of 2015 the petitioner has challenged the order of Collector dated 10th July, 2014 passed in Anganwadi Misc. Case No. 14 of 2013.

The brief facts of the case is that in the year 2009 applications were invited for the post of Anganwadi Worker for the Bhandaripada Anganwadi Centre in Sribantpur Gram Panchayat within the jurisdiction of Rasulpur Block in the district of Jajpur, pursuant to such advertisement the petitioner along with other candidates applied for selection by submitting necessary documents. Consequent upon submission of application the selection committee took note of the candidature of all the applicants and prepared a select list. During the said stage another applicant, namely, Bharati Barik raised objection regarding the nativity as well as residential certificate submitted by one Smita Manjari Rout, opposite party No. 6, in addition to such objection said Bharati Barik also challenged the order of Tahasildar granting such residential certificate to the petitioner before the Sub-Collector, Jajpur in Misc. Appeal No. 4 of 2010. While deciding the appeal the Sub-Collector has passed an order setting aside the residential certificate issued by Tahasildar on 16.11.2009 in Misc. Case No. 5710 of 2009. During the process of selection the candidature of opposite party No. 6 stood cancelled on the ground that the residential certificate issued by the Tahasildar has been cancelled by the Sub-Collector vide order dtd. 16.11.2009 passed in Misc. Case No. 5710 of 2009 and the petitioner found to be more meritorious than Bharati Barik and was engaged vide order of engagement dtd. 28.8.2010. Pursuant to such engagement the petitioner started discharging her duty as Anganwadi Worker.

Being aggrieved with the selection the opposite party No. 6 approached this court vide W.P.C. No. 12826 of 2010 assailing the order of Sub-Collector, Jajpur but the writ petition was dismissed against which appeal was preferred which was also dismissed vide order dtd. 2.4.2012 passed in Anganwadi Appeal No. 5 of 2012.

Opposite party No. 6 during pendency of W.P. (C) No. 12826 of 2010 had also filed another writ petition being W.P.(C) No. 1136 of 2011 seeking therein to appoint her as Anganwadi Worker in place of the present petitioner. In view of order passed in W.P.(C) No. 1136 of 2011 this court has passed an order of stay of operation of the Sub-Collector pending final adjudication of the writ petition but after the order passed in W.P.(C) No. 12826 of 2010 which has been confirmed by this court by Writ Appeal No. 5 of 2012 the W.P.(C) No. 1136 of 2011 has become infructuous. The opposite party No. 6 has again filed another writ petition being W.P.(C) No. 20211 of 2013 and this court has passed order on 11.9.2013 directing the Collector to dispose of the writ petition. In view thereof the Collector has passed an order by which the Collector has rendered the order passed in W.P.(C) No. 12826 of 2010 and Writ Appeal No. 5 of 2012 as redundant as if he was an appellate court over and above order passed by this court. The order passed by the Collector is impugned in this writ petition on the ground that the Collector cannot give altogether a different finding regarding the residential certificate which was issued to the opposite party No. 6 having been set aside by a Single Judge of this Court in W.P.(C) No. 12826 of 2010 and Writ Appeal No. 5 of 2012 and by setting aside the order passed in Misc. Case No. 4 of 2010 the petitioner was directed to be disengaged with a direction that the opposite party No. 6, namely, Smita Manjari Rout is entitled to be engaged as Anganwadi Worker since she has secured highest marks in the said selection process.

W.P.(C) No. 21473 of 2014 has been filed by the petitioner who was opposite party No. 6 in W.P.(C) No. 13065 of 2014 to quash the order dtd. 24.7.2014 under annexure-1 by which the engagement of the petitioner of this case has been cancelled allowing the opposite party No. 8, petitioner in writ petition No. 13065 of 2014 to be engaged and the said order is under challenge in this writ petition.

Thus the consequence of W.P.(C) No. 13065 of 2014 will be of vital importance and the outcome of this writ petition will govern the case in W.P.(C) No. 21473 OF 2014 as such writ petition No. 13065 of 2014 is first dealt with and discussed.

Both State as well as opposite party No. 6 have put their appearance. The stand of opposite party No. 2, i.e. Collector, Jajpur in the counter affidavit is that the opposite party No. 6 belongs to the centre area and as such the residential certificate issued by the Tahasildar in favour of the opposite party No. 6 was challenged before the Sub-Collector which was registered as Misc. Case No. 4 of 2010 but the Sub-Collector without conducting any enquiry of his own found that the residential certificate issued by the Tahasildar in favour of opposite party No. 6 is illegal.

It has further been stated that the opposite party No. 6 filed writ petition being W.P.(C) No. 12826 of 2012 challenging the order passed by the Sub-Collector. However, this court was declined to interfere and the subsequent writ appeal against such order has also been dismissed. After disposal of W.P.(C) No. 12826 of 2010 and Writ Appeal No. 5 of 2012 a fresh writ petition was filed being W.P.(C) No. 20211 of 2013 in which this court has directed the Collector to dispose of the representation and in view of the said direction the representation was disposed of. It has been stated by the Collector that the order passed by the Sub-Collector declaring the residential certificate issued in favour of opposite party No. 6 to be illegal was not based upon the facts and the Sub-Collector without conducting enquiry in this regard has passed the said order hence the Collector in order to rectify the factual aspect has passed this order hence there is no illegality.

Opposite party No. 6 has also appeared and reiterated the same thing which is the stand of the Collector.

Heard learned counsel for the parties and perused the documents on record. The fact which is not in dispute in this case is

"(i) The petitioner was a candidate for consideration of candidature as Anganwadi Worker for the centre in question.

(ii) Opposite party No. 6 was also a candidate for consideration of candidature for Anganwadi Worker for the centre in question.

(iii) The petitioner has objected the residential certificate issued by the Tahasildar in Misc. case No. 5710 of 2009 and the Sub-Collector has set aside the same vide order passed by him in Misc. Appeal No. 4 of 2010.

The order passed by Sub-Collector in Misc. Appeal No. 4 of 2010 was challenged by the petitioner in W.P.(C) No. 12826 of 2010, the writ petition was dismissed against which writ appeal was preferred being Writ Appeal No. 5 of 2012 which was also dismissed."

These facts make the thing clear that the residential certificate issued in favour of opposite party No. 6 which was declared to be illegal by the Sub-Collector has attained its finality up to the level of Division Bench of this Court. the petitioner has been engaged in the meanwhile being meritorious and residing in the centre area which was questioned by opposite party No. 6 again by filing a fresh writ petition being W.P.(C) No. 20211 of 2013 and this court without entering into the merit of the claim of the petition has directed the Collector and District Magistrate to consider the representation and pass an order in accordance with law. In pursuance to the order in W.P.(C) No. 20211 of 2013 Sub-Collector has passed an order and has held the residential certificate issued in favour of the petitioner by Tahasildar on 16.11.2009 in Misc. Case No. 5710 of 2009 to be legal by setting aside the order passed by Sub-Collector in Misc. Appeal No. 4 of 2010 and thereby passed an order of disengagement of petitioner and engagement of opposite party No. 6 which is impugned in this writ petition.

Here the question which has been raised by learned counsel for the petitioner is as to whether the Collector has got any jurisdiction to sit over the order passed by this court in exercise of power conferred under Article 226 of the Constitution of India and also confirmed under its appellate jurisdiction, i.e. in writ appeal.

The fact which has already been discussed hereinabove which has also not been disputed by opposite party No. 6 is that residential certificate issued in her favour by the Tahasildar on 16.11.2009 in Misc. Case No. 5710 of 2009 was held to be illegal by the Sub-Collector in the order passed in Misc. Appeal No. 4 of 2010 which has been confirmed by this court. This court in W.P.(C) No. 20211 of 2013 has directed the Collector to decide the representation of the petitioner and to take decision strictly in accordance with law with the merit of the case. The Collector has passed an order sitting over the order passed by this court declaring the residential certificate which has been held to be illegal by this court by confirming the order passed by the Sub-Collector in Misc. Appeal No. 4 of 2010.

There is no dispute that this court in W.P.(C) No. 20211 of 2013 has remanded the matter before the Collector to pass an order but strictly in accordance with law. When a court of law used the work ''strictly in accordance with law'' which itself suggests that the order is to be passed after taking into consideration the order of the High Court or the higher forum or the Supreme Court. When High Court passed an order in exercise of power conferred under Article 226 of the Constitution of India confirmed by the appellate court under its writ jurisdiction the said order is binding unless it is reversed or reviewed by the Higher Court or by the same court but it is admitted case of the opposite party No. 6 that the order passed by this court in W.P.(C) No. 12826 of 2010 and Writ Appeal No. 5 of 2010 has not been reversed because they have filed a review which is pending.

It is evident from the order passed by the Collector that he even after knowing regarding the order passed by this court in W.P.(C) No. 12826 of 2010 and Writ Appeal No. 5 of 2012 has passed the order setting aside the order passed by Sub-Collector in Misc. Case No. 4 of 2010 but while doing this he has not taken into consideration regarding the order passed by this court with respect to the same issue and by ignoring this he has not only shown disregard to the order passed by this court but also exceeded his jurisdiction which is not expected from an authority like a Collector of the district.

In the counter affidavit he has given explanation that whatever order he has passed which is impugned in this writ petition is in terms of the order passed in W.P.(C) No. 20211 of 2013 but this court has never said to exercise appellate power over and above the order passed by this court under its writ jurisdiction or appellate jurisdiction rather the High Court has said to pass the order strictly in accordance with law. But even after knowing the order passed by this court the Collector has given altogether a contrary finding which has been given by the High Court. In view of this the order passed by the Collector cannot be held to be legal hence the same is set aside and accordingly W.P.(C) No. 13065 of 2014 stood allowed.

In the consequence the petitioner is entitled to be reengaged as per the order passed by the authorities in annexure-1 dtd. 24.07.2014 as contained in order No. 376 which is Annexure-1 to the W.P.(C) No. 21473 of 2014, but of course reengagement will depend upon the outcome of review application which has been said to be filed by the petitioner of W.P.(C) No. 21473 of 2014 as the learned counsel stated at Bar.

Before concluding it is necessary to say that the Collector has exceeded his jurisdiction and it seems that the Collector has passed the order without any application of mind.

In the result W.P.(C) No. 21473 of 2014 is dismissed.

In W.P.(C) No. 1136 of 2011 prayer has been made by the petitioner who is petitioner in W.P.(C) No. 21473 of 2014 and opposite party No. 6 in W.P.(C) No. 13065 of 2014 to issue engagement order in favour of the petitioner but the prayer made in the writ is rendered to be infructuous in view of the fact that during pendency of W.P.(C) No. 12826 of 2010 this writ petition was filed on the ground that this court has passed an order of stay of operation of order passed by the Sub-Collector pending final adjudication of W.P.(C) No. 21473 of 2014. But the moment the order has been passed by this court nothing remains to be decided in W.P.(C) No. 1136 of 2011.

In view thereof W.P.(C) No. 1136 of 2011 is rendered as infructuous.