Orissa High Court
Dukhini Behera vs State Of Odisha And Others ....... Opp. ... on 26 July, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 9846 of 2017
Application under Articles 226 & 227 of Constitution of
India.
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Dukhini Behera ....... Petitioner
- Versus -
State of Odisha and others ....... Opp. Parties
Advocate(s) appeared in this case:-
_________________________________________________________
For Petitioner : M/s. Anjan Kumar Biswal
A.K. Muduli, Advocates.
For Opp. Parties : Mr. S.N. Pattnaik
Addl. Government Advocate
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
26th July, 2024 SASHIKANTA MISHRA, J.
The petitioner has approached this Court with the following prayer:
"It is, therefore, prayed that in the interest of justice this Hon'ble Court may graciously be pleased to admit this petition, issue Rule Nisi calling upon the opp.parties to show cause as to why the advertisement dt. 28.4.2017 (Annexure-5) for selection of Asha in respect to Page 1 of 11 Jhinkipada Ward No.1 and the selection as per the said advertisement shall not be quashed declaring the same as illegal & arbitrary and as to why the petitioner shall not be appointed as Asha as per the selection made on 8.2.2016 vide advertisement dt. 15.12.2015;
And If the opp.parties failed to show cause or show insufficient/irrelevant cause, than made the said Rule Nisi absolute;
And Pass any other order/s, direction/s as may deem fit and proper in the facts and circumstances of the case, And for this act of kindness the petitioner shall as in duty bound ever pray."
2. The facts of the case are that an advertisement was published on 30.12.2014 by the ANM, MPHW (F), Pedagadi Sub-Centre, Kaptipada C.H.C. in the district of Mayurbhanj (opposite party No.4) inviting applications from the eligible female candidates to fill up the post of 'Asha' of Jhinkipada village. The petitioner, being eligible having passed the course of ANM/Health Worker (Female), submitted her application along with all certificates and claims to have been selected in the selection committee meeting. However, instead of issuing the order of engagement in her favour, a fresh advertisement was published on 15.12.2015 for the same village. The petitioner again applied pursuant to such advertisement. Since no order of engagement was issued in Page 2 of 11 her favour, she approached the CDMO (opposite party No.5) by submitting a representation on 10.02.2016. Said representation did not evoke any response and while the matter stood thus, again another advertisement was published on 28.04.2017 by the opposite party No.4 inviting applications from the eligible candidates for their engagement as 'Asha' of Jhinkipada ward No.1, even though the earlier advertisements had been issued for the entire village. The petitioner being a resident of ward No.2 of the village was not eligible to apply. It is the further case of the petitioner that the advertisement is not in consonance with the guidelines and has been deliberately published by the authorities to deprive her from the post and to appoint their own candidate. On such facts, the petitioner has approached this Court in the present writ application with the prayer as quoted before.
3. Counter affidavit has been filed by the State opposite parties (opposite party Nos.3 & 5) justifying the publication of the third advertisement. It is stated that the advertisement dated 30.12.2014 was cancelled in view of the Page 3 of 11 guideline dated 27.09.2012 that the minimum qualification is to be Class-X pass. In the advertisement published on 15.12.2015 the selection committee prepared the selection list wherein the name of the petitioner was proposed for selection. However, on scrutiny it was found that she belongs to ward No.2 of Jinkipada village, where 'Asha' was already appointed. The villagers present at the time of selection also raised objection to the selection of the petitioner as she belongs to ward No.2 and advised to select a candidate belonging to ward No.1. In view of such objection, the earlier advertisement was cancelled and fresh advertisement was published on 28.04.2017 as advised by the Selection Committee. It is further stated that there are two wards in Jhinkipada village and 'Asha' of ward No.2 is filled up.
4. The petitioner filed rejoinder to the said counter stating therein that at no point of time it was stated that selection of 'Asha' is in respect of Jhinkipada ward No.1. Further, the petitioner was the only eligible candidate as per the two earlier advertisements and was selected. It is only Page 4 of 11 with the intention of depriving her from engagement that the third advertisement was issued imposing a condition, which is contrary to the relevant guidelines.
5. One Merry Mukhi, who was impleaded as opposite party no.6 also filed a counter. According to her, the advertisement published on 15.12.2015 was cancelled because of complaint by the Jhinkeswar Kalyan Samiti, SHG Group members and the villagers. Further, she was selected having secured the higher mark out of three candidates in the selection process held pursuant to the advertisement issued in the year 2017.
6. Heard Mr. A.K. Biswal, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State and Mr. Dharmendra Sethy, learned counsel appearing for private opposite party No.6.
7. Referring to the guidelines issued by the National Rural Health Mission, Odisha on 28.06.2010, Mr. Biswal would argue that the same does not provide for selection and engagement of 'Asha' ward-wise in the village, rather, Page 5 of 11 the same only provide that the candidate must be a resident of the village. The authorities cannot impose a condition on their own beyond the guidelines. Mr. Biswal further argues that as per the guidelines issued by the Government of India, at best the norm of one 'Asha' for 1000 population can be adopted but under no circumstances, can a candidate be debarred on the ground of not being a resident of a particular Ward. Mr. Biswal also argues that the petitioner was admittedly selected in the earlier selection process and therefore, carries a legitimate expectation of being engaged, more so as in the meantime she has become overaged for any other public employment.
8. Mr. S.N. Pattnaik, learned Addl. Government Advocate would argue that Jhinkipada revenue village has a population of 1169 persons (at the relevant time) and is divided into two wards, therefore, engagement of two 'Ashas' is permissible as per the Government of India Guidelines. However, for better and effective functioning of 'Asha' in order to fulfil the objectives of the Scheme, it is desirable that the candidate must be a resident of the ward for which Page 6 of 11 the 'Asha' is to be selected. Mr. Pattnaik, therefore, contends that there is nothing wrong in the action of the authorities in cancelling the earlier advertisement of the year 2015 and in issuing the impugned advertisement.
9. Mr. D. Sethy, learned counsel appearing for the private opposite party would submit that there being requirement of two 'Ashas' in the village as per the population, the authorities rightly published the third advertisement. In the selection process, the opposite party No.6 was selected having secured the highest mark than the other applicants. She cannot therefore, be deprived of engagement as 'Asha' as she also satisfies the condition of being a resident of the ward in question.
10. The facts of the case are not disputed inasmuch as the first advertisement was published on 30.12.2014, followed by another advertisement on 15.12.2015. There seems to be nothing wrong in publication of the second advertisement in view of the guidelines of the Government of India that a candidate must have passed Class-X. Even so, Page 7 of 11 the petitioner was eligible and applied pursuant to the second advertisement and was also recommended for selection by the selection committee as admitted by the State opposite parties in their counter. Now the question is, was there any compelling necessity to cancel the second advertisement and issue a fresh advertisement. According to the State opposite parties some complaints were received during the selection process pursuant to the second advertisement. It has simply been stated that the villagers present at the time of selection raised objection to the selection of the petitioner as she belongs to ward No.2 of the village, where an 'Asha' had already been appointed. They apparently advised to select candidate belonging to ward No.1. While the guidelines provide for the selection meeting to be held in pursuance of Gaon Kalyan Samiti, Women SHG members, CBOs and the general public, yet it is trite that any objection raised by them has to be within the purview of the guidelines and not beyond it. This is being said for the reason that the guidelines, inter alia, provide that the 'Asha' must be woman (married/widow/divorced) Page 8 of 11 and resident of the village. Nowhere in the guidelines is it provided that the candidate has to be a resident of the particular ward in which the 'Asha' is to be engaged. As has already stated hereinbefore, Jhinkipada village having a population of more than 1000, is entitled to have two 'Ashas', one for each of its two wards, but then in the absence of any stipulation that the 'Asha' has to belong to the concerned ward, it is not open to the authorities to suo motu impose such a condition as it would amount to overreaching the guidelines. Such action obviously cannot be countenanced in law. It has not been disputed that the petitioner is otherwise eligible and was in fact recommended for selection pursuant to the advertisement dated 15.12.2015. Of course, this Court is conscious of the fact that mere inclusion of the name in the select list does not confer a vested right on a person to be appointed but then it is equally well settled that the selection cannot be cancelled without giving proper justification. Reference may be had in this regard to the decision of the Supreme Court in the oft- quoted judgment of the Constitution Bench in the case of Page 9 of 11 Shankarsan Dash v. Union of India1. Similar view was also taken by the Supreme Court in the case of East Coast Railway v. Mahadev Appa Rao2.
11. From what has been narrated hereinbefore, this Court is left with no doubt that cancellation of advertisement dated 15.12.2015 for the grounds cited was unjustified. Further, the petitioner having been recommended for engagement by the selection committee does acquire a reasonable or legitimate expectation of being so engaged, which cannot be brushed aside lightly particularly, on the face of an unjustified action by the authorities in cancelling her selection.
12. For the foregoing reasons therefore, this Court is of the considered view that the impugned advertisement having been issued contrary to the guidelines dated 28.06.2010 cannot be sustained in the eye of law.
13. Resultantly, the writ application is allowed. The impugned advertisement dated 28.04.2017 is hereby 1 (1991) 3 SCC 47 2 (2010) 7 SCC 678 Page 10 of 11 quashed. The concerned authorities are directed to take the selection process held pursuant to the advertisement dated 15.12.2015 to its logical conclusion by issuing necessary order of engagement in favour of the petitioner without any further delay and in any case, not later than two months from the date of production of certified copy of this order.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 26th July, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jul-2024 10:48:09 Page 11 of 11