Orissa High Court
Afr Smt. Manasi Bisi vs Addl. Dist. Magistrate on 10 March, 2021
Equivalent citations: AIRONLINE 2021 ORI 81
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 10016 OF 2012
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR Smt. Manasi Bisi ..... Petitioner
-Versus-
Addl. Dist. Magistrate, Bargarh ..... Opp. Parties
and others
For Petitioner : M/s. A.P. Bose, R.K. Mahanta,
N. Hota, S.S. Routray & V. Kar,
Advocates.
For Opp. Parties : Mr. B.P. Tripathy,
Addl. Govt. Advocate
(O.Ps. No.1 & 2)
M/s. L.N. Patel & N.K. Das,
Advocates
(O.P. No.3)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 10.03.2021 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order dated 18.04.2012 passed by opposite party no.1-Additional District Magistrate, Bargarh in AWW Appeal No. 31 of 2011, by 2 which the aforesaid appeal filed by opposite party no.3 has been allowed and engagement of the petitioner as Anganwadi Worker of centre no.2 of village Tinkani has been quashed.
2. The facts of the case, in brief, are that opposite party no.2 issued an advertisement inviting applications for filling up the post of Anganwadi Worker of centre no.2 of village Tinkani, pursuant to which, the petitioner, opposite party no.3 and proforma opposite parties no.4 to 6 applied for. The said applications were verified on 16.03.2011 and a merit list was accordingly prepared. The proforma opposite party no.4 got highest marks, but as she was an outsider and there were some allegations against her, she did not join. Consequentially, the petitioner, who stood second in the merit list, was issued with engagement letter vide Annexure-2 dated 23.04.2011 by opposite party no.2. Accordingly, the petitioner joined and continued to discharge her duty as Anganwadi Worker of centre no.2 of village Tinkani. 3 2.1 Opposite party no.3 challenged the selection and engagement of the petitioner before opposite party no.1-Additional District Magistrate, Bargarh by preferring AWW Appeal No.31 of 2011 stating, inter alia, that once a candidate was selected and she did not join in the said post for any reason whatsoever, opposite party no.2 should have issued fresh advertisement instead of issuing engagement order to the 2nd candidate, i.e. the petitioner.
2.2 Opposite party no.1, having heard the petitioner and opposite parties no.2 and 3, vide order dated 18.04.2012 in Annexure-1, came to a conclusion that since no provision was there in the proceeding for appointment of next meritorious candidate, if the selected candidate did not join in the post, the decision of the selection committee violated the government guidelines and thereby committed irregularities in giving engagement to the petitioner, who was the 2nd meritorious candidate, without inviting fresh applications through advertisement. Arriving at such a conclusion, he quashed the engagement 4 of the petitioner in the post of Anganwadi Worker of centre no.2 of village Tinkani made by opposite party no.2-Child Development Project Officer (CDPO), Barpali and allowed the appeal filed by opposite party no.3. Hence this writ petition.
3. Mr. A.P. Bose, learned counsel appearing for the petitioner contended that when the first candidate in the merit list did not join, as she was an outsider, the selection committee gave engagement to the 2nd meritorious candidate, i.e. the petitioner. Thereby, the engagement of the petitioner in the post of Anganwadi Worker of centre no.2 of village Tinkani by opposite party no.2-Child Development Project Officer (CDPO), Barpali is well justified. It is further contended that even if there is no provision in the advertisement that in case the 1st candidate in the merit list does not turn up, the 2nd candidate will get a chance, but that does not mean, opposite party no.2 or the selection committee is powerless to engage the next meritorious candidate when there is no bar for the same. Furthermore, it is contended that 5 opposite party no.1 should have called for opposite party no.2 to explain as to whether there is any contrary guideline to the effect that such engagement cannot be made and the same being not done, opposite party no.1 should not have passed the order impugned dated 18.04.2012 under Annexure-1 against the petitioner.
4. Mr. B.P. Tripathy, learned Additional Government Advocate, while justifying the order dated 18.04.2012 under Annexure-1 passed by the Additional District Magistrate, Bargarh in AWW Appeal No.31 of 2011, vehemently contended that either in the advertisement or in the procedure adopted by the selection committee since there was no provision or condition for engagement of the 2nd meritorious candidate from the merit list, in case the 1st meritorious candidate did not choose to join, the Additional District Magistrate, Bargarh directed for fresh selection holding the engagement of the present petitioner as illegal. Therefore, no illegality or irregularity can be said to have been committed by the 6 Additional District Magistrate, Bargarh in passing the order impugned.
5. Mr. L.N. Patel, learned counsel appearing for opposite party no.3 contended that in absence of provisions contained in the advertisement or any other document indicating that if 1st candidate in the merit list did not join, the 2nd candidate would be given engagement, the entire action taken by giving engagement to the petitioner cannot sustain in the eye of law. Thereby, no illegality or irregularity has been committed by the Additional District Magistrate, Bargarh by passing the order impugned dated 18.04.2012 directing for fresh selection, and this Court should not interfere with the same.
6. This Court heard Mr. A.P. Bose, learned counsel for the petitioner; Mr. B.P. Tripathy, learned Addl. Government Advocate appearing for the State opposite parties; and Mr. L.N. Patel, learned counsel for opposite party no.3; and perused the record. Since this matter is of the year 2012 and is a certiorari proceeding, this Court, 7 with the consent of learned counsel for the parties, proceeded to examine the correctness of the impugned order under Annexure-1 passed by the Additional District Magistrate, Bargarh and decide the matter finally at the stage of admission taking into account the counter affidavit filed by opposite parties no.1 and 2.
7. The facts mentioned above are not disputed. Pursuant to advertisement, five candidates applied for the post of Anganwadi Worker of centre no.2 of village Tinkani and on scrutiny of documents by following due procedure, the selection committee selected one Sangeeta Sethi for engagement as Anganwadi Worker on the basis of securing highest percentage of marks and issued engagement order in her favour, but she did not join in the said post. Consequently, the petitioner, who was 2nd in the merit list, was issued with the engagement order. Opposite party no.3 preferred appeal alleging that instead of going for fresh advertisement, the petitioner should not have been engaged as Anganwadi Worker, who 8 stood 2nd in the merit list, and contended that her engagement was done violating the government guidelines.
8. The materials available on record would go to show that the 1st candidate, namely, Sangeeta Sethi was selected on the basis of higher percentage of marks, but, she did not join. Since the post was lying vacant, the selection committee took a decision for engagement of the petitioner, who stood 2nd in the merit list, and accordingly issued engagement order in her favour. It is no doubt true, the proceedings of the selection committee nowhere indicate to give scope to the next eligible candidate, if the selected candidate did not join in the post within the time prescribed. Therefore, the contention has been advance that the selection committee has illegally took the decision for engagement of the petitioner without inviting fresh advertisement. But, it is well settled in law, if the selected candidate did not join for some reason or other and merit list was prepared, engagement should be given from the said list to a candidate who stood 2nd.
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9. In State of Bihar v. Kaushal Kishore Singh, AIR 1997 SC 2643 : (1998) 9 SCC 104, the apex Court held that after the selection process is complete, a merit list (also known as select list) has to be prepared. The normal criterion to be followed by the concerned authority in the case of selection is to prepare a list of candidates selected in the order of merit and then recommend to the government for appointment to the post advertised.
10. In State of Bihar v. Kumar Promod Narain Singh, (1997) 5 SCC 298, the apex Court held that if appointment is made without preparing a select list then the same will be arbitrary and illegal.
11. In K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, the apex Court held that persons who were not eligible candidates could not question the legality or otherwise of select list.
12. In State of Bihar v. The Secretariat Assistant Successful Examinees' Union, (1994) 1 SCC 10 126, the apex Court held that the empanelment of the candidate in the select list confers no right on the candidates to appointment on account of being so empanelled. At the best it is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed unless the service rules provide to the contrary.
The said principle has been followed in Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22, Union of India v. Kali Dass Batish, (2006) 1 SCC 779 and State of U.P. v. Om Prakash, (2006) 6 SCC 474.
13. Applying the above principles to the present case, as the 1st candidate did not join, the petitioner, who stood 2nd in the merit list, was given engagement from the valid empanelled list, which cannot be said to be illegal or arbitrary. This Court, while entertaining this writ petition, passed an interim order on 04.06.2012 in misc. case no. 8706 of 2012 that operation of the order dated 18.04.2012 passed by the learned Addl. District Magistrate, Bargarh in AWW Appeal No. 31 of 11 2011 vide Annexure-1 shall remain stayed till next date, pursuant to which the petitioner is still continuing in the post. In the meantime, more than nine years have passed. As such, this Court does not find any illegality or irregularity by giving engagement to the petitioner, who stood 2nd in the merit list. Thereby, the order dated 18.04.2012 passed by the Additional District Magistrate, Bargarh in AWW Appeal No.31 of 2011 cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed.
14. The writ petition is thus allowed. However, there shall be no order as to costs.
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DR.B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 10th March, 2021, Alok