Orissa High Court
Smt Jyotirmayee Khuntia vs The Collector And District Magistrate ... on 1 November, 2017
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.13254 of 2009
In the matter of an application under Article 226 and 227 of the Constitution of India.
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Smt. Jyotirmayee Khuntia ...... Petitioner
- Versus-
The Collector & District Magistrate, Bhadrak
and others ...... Opposite Parties
For Petitioner : M/s. Srikanta Kumar Sahoo, A.K. Sahoo &
B.B. Biswal.
For Opposite Parties : Mr. S. Mohanty,
Additional Standing Counsel
(For opposite parties no.1 to 4)
M/s. Bansidhar Satpathy & T.K. Nayak.
(For opposite party no.5)
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 01.11.2017
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S. N. Prasad, J.This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 22.6.2009 passed by the Sub-Collector, Bhadrak in Misc. Appeal No.14 of 2008 under Annexure-2 has been assailed.
2. The short controversy involved in this case is that the petitioner, being a candidate for selection as Anganwadi Worker for Jhutuna Jena Sahi Additional Anganwadi Centre, has applied and 2 accordingly, she was found to be more meritorious by giving 5% of extra marks under the guideline dated 2.5.2007 and accordingly, selected and engaged, but her engagement was questioned by the opposite party no.5 on the ground that the 5% marks which has been given to her on the strength of her claim of being a physically handicapped candidate is not proper, since she has not produced any handicapped certificate along with the application form.
3. The ground has been taken that the petitioner has been examined by the Medical Board after laps of five months from the last date of submission of application form. The Sub-Collector, Bhadrak, after considering this aspect of the matter and taking into consideration the specific condition put in the advertisement of submission of the documents like the educational qualification and other certificate basing upon which the candidate intends to take advantage of extra preference marks, has passed an order cancelling the selection of the petitioner by deducting the 5% marks from the total marks and thereby directed the authorities to select the opposite party no.5, since after making deduction of 5% extra marks, the opposite party no.5 has been found to be highest secure of marks.
4. The petitioner, being aggrieved with the said order, approached this Court by way of this instant writ petition challenging the 3 same on the ground that the petitioner has submitted the application form within time.
So far as the physically handicapped certificate is concerned, it has been asserted that by way of awarding 5%, an affidavit to that effect has been filed by giving declaration that she was physically handicapped. But due to absence of physically handicapped certificate, an undertaking has been given to submit the same before the selection and accordingly, she has been selected. But the Sub-Collector, when scrutinizing her selection, has not taken into consideration this aspect of the matter. Hence, finding given by the Sub-Collector, Bhadrak is not proper and also is not sustainable in the eye of law.
5. Per contra, learned counsel appearing for the State-opposite parties as well as the opposite party no.5 have jointly submitted that on the statement made by them in the counter affidavits that the Selection Committee although has selected the petitioner, but that selection cannot be said to be proper for the reason that if any condition is mentioned in the advertisement, it has to be strictly adhere to. The petitioner, who claims to be a candidate belonging to physical handicapped category, for which, guideline provides 5% extra marks and when the candidate, claiming 5% extra marks, is duty bound to produce the relevant document, since there snatching away right of the other candidates by taking aid of the extra preferential marks. But since the petitioner has 4 not submitted his physically handicapped certificate, as such, the decision taken by the Selection Committee in awarding 5% extra marks is nothing but an arbitrary exercise. Hence, the selection of the petitioner cannot be said to be justifiable. They have contended that the petitioner although has given an affidavit, but she for the first time was examined by the Medical Board on 11.10.2007, i.e., after lapse of more than five months from the last date of submission of application form and as such, giving premium by this way it is nothing but only to extend the benefit to the petitioner in order to provide her the benefit of engagement by putting the other candidate in disadvantageous position. It has been contended that when this point has been raised before the Sub-Collector, who happens to be the appellate authority, the Sub-Collector, after taking into consideration this aspect of the matter, has cancelled her selection. Hence, there is nothing illegality.
6. Learned counsel for the petitioner, in response, has submitted that since the petitioner is a physically handicapped candidate and as per the guideline dated 2.5.2007, she is entitled to get 5% extra marks and on technicality, if the Sub-Collector has cancelled the engagement, the same cannot be said to be proper.
7. Learned counsel for the petitioner has relied on a judgment rendered by Hon'ble the Supreme Court in the case of Ram Kumar 5 Gijroya v. Delhi Subordinate Service Selection Board and another, reported in AIR 2016 SC 1098.
8. Heard the learned counsel for the parties and perused the documents available on record and after appreciating the rival submission of the parties, the fact in the instant case which is not in dispute is that the advertisement was published vide letter No.125 dated 17.5.2007 whereby and whereunder the applications have been invited for selection of Anganwadi Worker for Jhutuna Jena Sahi Additional Centre. In the said selection process altogether six candidates including the petitioner and the opposite party no.5 have submitted their applications. The opposite party no.5 had submitted the application on 28.5.2007 and the petitioner had submitted her application on 6.6.2007.
9. It is evident from the material available on record that in the application filed by the petitioner, there is no reference that she is belongs to physically handicapped category. However, an affidavit has been filed by her showing therein that the handicapped certificate issued by the C.D.M.O., Bhadrak in her favour has been destroyed by flood, hence some time will be taken in producing the fresh certificate.
It is further evident that after long gap of more than seven months, i.e., on 21.01.2007, the meeting of Selection Committee was held on that date. The petitioner has been given advantage of the additional 6 marks of 5% and accordingly, she get 5% extra marks on the strength of disability certificate produced by her on 12.10.2007.
It is further evident that the declaration which has been furnished by the petitioner in the affidavit, it has been disclosed that the medical certificate was destroyed in the flood, but the Sub-Collector, while taking into consideration the declaration given by her in the affidavit, has observed that if any certificate has been issued which having been destroyed in any causality, the proper course would be to issue duplicate, but not the new one. This casted doubt. The Sub- Collector, after taking into consideration the fact that the petitioner has given 5% extra marks as per the provision made in the guideline dated 2.5.2007 and thereby she has secured 60.71 % marks and while the opposite party no.5 has secured 56.53 marks. Accordingly, the petitioner has been selected over and above of the opposite party no.5. The Sub- Collector, after considering the veracity of the disability certificate as also since she has not submitted the same along with the application form rather, has submitted after five months from the last date of submission of application form and even after the date of scrutiny of the document, has cancelled the engagement of the petitioner, which is under challenge in this writ petition.
10. There is no dispute about the settled proposition of law that if any condition put in the advertisement or in the guideline for the 7 recruitment, it is to be followed by everyone including the Selection Committee or its members otherwise there will be no meaning to put any condition in the advertisement or rule for regulation. Reference in this respect may be made to the judgment rendered by Hon'ble the Apex Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India and others, reported in (1979) 3 SCC 489 at paragraph-10. The guideline or the recruitment rule is meant in order to follow the principle of equality and if any deviation will be made, ultimately the principle of equality will suffer and that would not be proper in the matter of recruitment, since the same will lead to unfairness and non-transparency.
11. In the State Government, the Women & Child Development Department, has issued a guideline dated 2.5.2007 wherein the interest of certain categories of the members of the society has been given preference. One of it is the physically handicapped category, who has been decided to be given 5% extra marks on account of benefit of physically handicapped as per provision made by the State Government.
12. In view of the provision of the Persons with Disabilities Act, 1995, it is settled that if any preferential marks is given to any of the candidate in the selection process is to be given in accordance with law, since by giving extra preferential marks, the right of the other candidates is being snatched away.
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13. There is dispute about the fact that the advertisement has come on 17.5.2007 with clear-cut stipulation to submit the application form along with the all relevant documents. The petitioner since claims 5% extra marks, it was incumbent upon her to give certificate of getting 5% extra marks on account of having been given under the physically disability category, but the same has not been submitted rather, one affidavit has been submitted giving therein a declaration that the physically handicapped certificate has been destroyed in flood. Hence, the requisition has been made before the competent authority to get a fresh one.
14. The Selection Committee has considered the affidavit and when the Selection Committee convened its meeting on that date, the medical certificate has been produced by the petitioner and accordingly 5% extra marks has been awarded to her leading to secure highest marks and accordingly, she has been selected and engaged as Anganwadi Worker for the centre in question.
15. The question here is that whether in absence of a certificate, a candidate can be given 5% extra marks or any other weightage as per the provision made in the guideline or the rule, the question will be certainly in negative for the reason that by giving extra marks to any of the candidate that is by overlooking the merit of the other candidates and by giving marks will lead such candidate to jump over other candidates. If 9 any premium is given to such candidate, the foremost requirement for the Selection Committee would be to look into the certificate, but here in the instant case admittedly the physically handicapped certificate has not been produced by the petitioner along with the application or even not on the date of the scrutiny of the original documents rather, it was placed after lapse of five months from the last date of submission of application form that is when the Selection Committee has convened its meeting for scrutinizing the candidature of one or the other candidates. The question is that why the Selection Committee has given such premium to the petitioner. The same has not been explained by the learned counsel for the petitioner.
16. Be that as it may, in the matter of appointment, the principle of fairness and transparency is to be maintained. But after going through the factual aspect, it is evident that the fairness and transparency has not been maintained by the Selection Committee which has been taken note of the Sub-Collector and accordingly, cancel the selection process.
17. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court rendered in the case of Ram Kumar Gijroya (supra), but the fact of the said case is entirely different to that of the present case, since in that case the ratio laid down by Hon'ble the Supreme Court is giving benefit to the reservation to the members of the O.B.C. Category and the fact leading to the said case was that the 10 requirement of submission of O.B.C. Certificate was introduced by the respondent only while declaring the result, as would be evident from the paragraph-8 of the submission made by the appellants therein, but here the fact is that right from the very beginning the last date of submission of application form is there and the guideline dated 2.5.2007 is to be followed in the selection wherein the provision to be given extra marks. The petitioner is very much knowing this fact that for getting the benefit of 5% extra marks as per provided in the guideline dated 2.5.2007 a physically handicapped certificate is necessary to produce, but she has not produced rather, she has produced after lapse of five months from the last date of submission of application form.
18. In that view of the matter, she will not be entitled to get any benefit of that physically handicapped certificate for the reason stated hereinabove.
19. In view of the forgoing discussion, the finding given by the Sub-Collector, Bhadrak needs no interference by this Court.
Accordingly, the writ petition fails and it is dismissed.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 1st November, 2017/D. Aech