Orissa High Court
Afr Dharitri Mohanty vs State Of Odisha & Others ....... Opp. ... on 25 April, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 2201 of 2025
(Application under Articles 226 & 227 of Constitution of India)
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AFR Dharitri Mohanty ...... Petitioner
- Versus -
State of Odisha & Others ....... Opp. Parties
Advocate(s) appeared in this case:-
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For Petitioner : M/s. Raghunath Biswal, S.K. Mohanty,
A. Biswal, S. Sahoo & D. Parida, Advocates.
For Opp. Parties : Mr. S. Behera,
Addl. Government Advocate
M/s. Akshaya Kumar Jena, S.S. Mohapatra,
R.N. Swain, A.P. Rath, P. Sinha, A. Biswal,
S.K. Behura, Advocates [For O.P. No.6]
______________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
25th April, 2025 SASHIKANTA MISHRA, J. The petitioner in the present writ application challenges the order dated 07.11.2024 passed by the Additional District Magistrate (ADM), Jagatsinghpur in Anganwadi 1st Appeal No.2/2024.
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2. The facts of the case, briefly stated, are that an advertisement was issued by the C.D.P.O., Balikuda inviting applications for engagement of Anganwadi Worker in Rayarpur- A Anganwadi Center. The last date of receipt of applications was 03.08.2023. The petitioner, private opposite party No.6 and other candidates submitted their applications. In the selection process, the petitioner was found to have secured the highest marks and was thus selected. She was subsequently issued with order of engagement on 28.08.2023, pursuant to which she joined as Anganwadi Worker. Her selection was challenged by private opposite party No.6 before this Court in W.P.(C) No. 28402 of 2023, but said writ application was disposed of by order dated 21.06.2024 granting liberty to her to prefer appeal. As such, the opposite party No.6 preferred the above mentioned appeal before the ADM. After hearing the parties and on verification of relevant documents, the appellate authority held that the selection committee had not acted as per the guidelines issued by the Government as also the stipulation in the advertisement for which the selection and engagement of Page 2 of 16 the petitioner was not just and proper. Accordingly, the selection of the petitioner was set aside. Be it noted that the appeal was filed on two grounds- (i) that the petitioner was not a resident of the service area of the Anganwadi Center and (ii) she had not submitted a valid resident certificate within the stipulated date. The petitioner's response was that she was a resident of the service area and the resident certificate submitted by her had been issued prior to five years, for which she applied for a fresh certificate and submitted an undertaking before the selection committee to produce the same within seven days, which she did.
3. Counter affidavit has been filed by the State opposite parties (opposite party Nos. 2 & 5). It is stated that the petitioner, pursuant to the advertisement, had applied online and submitted all required certificates including residential certificate issued by the Tahasildar, Balikuda but the same was more than five years old. The same was therefore, treated as invalid by the selection committee. However, she submitted a fresh resident certificate, which was accepted and as she had Page 3 of 16 secured highest marks, she was selected. The appellate authority rightly set aside her engagement.
4. Counter affidavit has also been filed by opposite party No.6 stating that the petitioner had failed to submit resident certificate issued by the Tahasildar within a period of five years as stipulated in the advertisement. As such, she was not eligible for being considered for selection. The certificate submitted by her was not valid as per the advertisement, but the same was wrongly considered by the selection committee. Despite endorsing the remark that the certificate was not valid the selection committee went ahead and selected her. As per the settled position of law, the petitioner had not submitted a valid resident certificate by the last date and hence, was ineligible.
5. The petitioner has filed a rejoinder seeking to refute the averments made in the counter affidavit. It is stated that the list of candidates was published by the selection committee on 25.08.2023 in the website and the notice board of the office inviting objections within seven days. No objection was received Page 4 of 16 within the stipulated period, for which the petitioner having secured the highest marks was selected. The resident certificate uploaded by the petitioner along with the online application was issued on 05.10.2015 but on local enquiry, the selection committee found that she is a native of village Rairangpur and also a resident of the service area of the Anganwadi Center. As she could not find sufficient time to obtain fresh resident certificate from the Tahasildar, she uploaded the old certificate and submitted an undertaking to produce the fresh certificate within seven days. She also submitted the fresh certificate on 08.08.2023. The counter affidavit filed by the State Authorities in the writ application filed by the opposite party No.6 is also enclosed to the rejoinder, wherein the above fact has been mentioned.
6. Heard Mr. R. Biswal, learned counsel for the petitioner, Mr. S. Behera, learned Addl. Government Advocate for the State and Mr. S.S. Mohapatra, learned counsel for opposite party No.6.
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7. Mr. Biswal would argue that it is nobody's case that the petitioner had produced any false or fabricated documents rather, she had produced a resident certificate which was issued before five years, but as required in the advertisement, she submitted an undertaking to submit a fresh certificate, which she did on 08.08.2023. Even though seven days' time was granted by the selection committee to all concerned to submit objection, the opposite party No.6 never raised any such objection. The appellate authority has not taken into consideration the fact that the petitioner is a resident of the service area.
8. Mr. Behera, learned State Counsel would submit that as per the settled position of law, all documents are required to be submitted by candidates by the cut-off date, which cannot be extended under any circumstances. The selection committee must therefore, be held to have erred in law by accepting the resident certificate submitted by the petitioner five days after the cut-off date. The selection and Page 6 of 16 engagement of the petitioner was therefore, rightly held to be illegal by the appellate authority.
9. Mr. Mohapatra, learned counsel for the private opposite party would argue that as per the advertisement, a resident certificate issued within five years before the date of advertisement should be filed. Admittedly, the certificate filed by the petitioner was issued much prior to the said period and was therefore, not valid. Further, there is no provision for accepting any undertaking in this regard. The selection committee committed an illegality in accepting such undertaking but also the fresh resident certificate issued by the petitioner after the cut-off date. In view of the position of law, as settled by this Court in the case of Smita Panda vs. State of Odisha and others1, the above action was entirely bad in law, for which the appellate authority rightly set aside the engagement of the petitioner.
10. Be it noted at the outset that the revised guidelines issued by the Government in Women & Child Development Department on 15.03.2023 provides the remedy of second 1 OLR 2020 (I) 171 Page 7 of 16 appeal against the order passed by the ADM as the First Appellate Authority. Notwithstanding the above, this Court has entertained the writ application as at the time of admission it was contended on behalf of the petitioner and accepted by this Court that the matter involves no disputed questions of fact but is solely confined to interpretation of the guidelines issued by the Government.
11. The advertisement dated 18.07.2023 specifically provided that the applicant must be a permanent resident of the service area of the Anganwadi Center and for such purpose, only eligible persons included in the survey list of the area could apply. The advertisement further provides that the applicants shall upload copy of the resident certificate which must have been issued within five years from the date of advertisement. It is admitted that the petitioner uploaded a resident certificate issued on 05.10.2015, which is obviously issued before five years of the date of application, but then reference to the guidelines dated 15.03.2023 reveals that there is no such stipulation therein requiring the candidates to Page 8 of 16 submit such a certificate. The only requirement as is evident from Clause-1 of the advertisement, which is reproduced below, is that the applicant must be a person residing in the said village/Anganwadi Center area:
"1. Application for selection of volunteers to work as Anganwadi Workers will be invited for each village / Anganwadi Center area from women residing in the said village / Anganwadi Center area. However, if eligible candidates from within the AWC area are not available, candidates from same village area may be taken. If eligible candidate from village area not available, then candidates from adjacent village within G.P area may be considered for selection of Anganwadi Workers."
12. As regards submission of certificates, Clause-8(b) is relevant and reads as follows:
"8(b).. 15 days' time will be given to the candidates to apply to the CDPO along with the documents in support of nativity, educational qualification, caste and any other. The receipt of the application shall be acknowledged by the CDPO."
13. Therefore, there is an apparent conflict between the advertisement and the guidelines issued by the Government. It is the settled position of law that in such situation, the guidelines will prevail. Reference in this regard may be had to Page 9 of 16 The Employees' State Insurance Corporation v. Union of India & Ors.,2, wherein the apex Court held as follows:-
"20. The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission a two-judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service Commission and held:
"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
21. In Ashish Kumar v. State of Uttar Pradesh a two- judge Bench of this Court followed the decision in Malik 2 (2022) 1 SCR 373 Page 10 of 16 Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held:
"27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence......"
Be it noted that in the absence of any statutory rules, executive instructions issued in the form of revised guidelines dated 02.05.2007 shall have binding force. As such, the principle enunciated in the cited judgment would be applicable.
14. Be that as it may, the petitioner submitted an undertaking to produce a fresh certificate which she had applied on 03.08.2023. In fact, she did produce the fresh certificate issued in her favour on 07.08.2023. The selection committee though noted that the resident certificate originally submitted was not valid yet, went on to select her. As already stated, the opposite party no.6 challenged the selection of the Page 11 of 16 petitioner on the ground that she was not a resident of the service area without saying anything more. This is obviously not an acceptable stand for the reason that it was incumbent upon her to say as to which place the petitioner was a resident of, if not the area in question. In any case, this is contrary to the resident certificate which clearly shows the petitioner to be a resident of the Rayarpur village. Interestingly, in the counter affidavit filed by the CDPO on behalf of the State opposite parties in the earlier writ application (W.P.(C) No. 28402 of 2023), the following has been stated in paragraph-7.
"7. xxxxxxxxxxxxx As regards to the validity of residence certificate produced by the Opp.PartyNo.6 selected candidate, it is to submit that the Residence certificate as uploaded in the online application is found to have been issued on 5.10.2015 which is more than 5 years old. But, from local inquiry it is ascertained that the Opp.Party No.6 is a native of village Rayarpur and residing within the jurisdiction of Anganwadi Centre thereby she is eligible for this post. In order to applying for this post she could not find sufficient time to obtain the fresh resident certificate from local Tahasildar and hence she uploaded the old certificate she had. During scrutiny Opp.Party No.6 filed an undertaking to produce the fresh certificate within 7 days and accordingly she also submitted the same in time i.e. on 08.08.2023. Copies of the undertaking alongwith the receipt showing application for fresh residential certificate & Residential certificate of Opp.Party No.6 are annexed herewith as Annexures A/5 and B/5 respectively.Page 12 of 16
15. Needless to mention, this is contrary to the stand taken by the same CDPO in the counter affidavit filed in the present writ application. This also goes against the finding of the appellate authority that a detailed field enquiry had not been done for which a doubt arises whether the petitioner belongs to the service area or not. Since the CDPO has stated on affidavit that the petitioner is residing within jurisdiction of the Anganwadi Center and it has not been demonstrated that such statement is factually wrong, there is no reason to not accept the same. So, even if the undertaking and the fresh residence certificate are ignored still, the fact of the petitioner being a resident of the service area stands valid.
16. In the case of Smita Panda (supra) cited by learned counsel for opposite party No.6, the applicant therein had not submitted disability certificate before the last date of submission of application. The present case stands on a different footing inasmuch as the petitioner had submitted a resident certificate, which this Court referring to the guidelines dated 15.03.2023 has held to be valid. So this is not a case Page 13 of 16 where no certificate had been submitted. The said judgment is therefore, not applicable.
17. From a conspectus of the discussion made hereinbefore, this Court holds that there being no requirement in the relevant guidelines for submission of resident certificate issued within five years before the date of advertisement, such stipulation in the advertisement cannot be utilized to reject the certificate submitted by the petitioner along with her application. That apart, there being no specific evidence led either before the appellate authority or before this Court to show that the petitioner is not a resident of the service area of the center and on the contrary the CDPO having certified on affidavit before this Court in the previous writ application that from local enquiry it was ascertained that the petitioner is a resident of the service area, the finding of the ADM to the contrary cannot be sustained.
18. For the foregoing reasons therefore, the writ application is allowed. The impugned order passed by the ADM is hereby quashed. The opposite party authorities are directed Page 14 of 16 to reinstate the petitioner, if she is found to have been disengaged consequent upon passing of the impugned order as early as possible.
19. Before parting, this Court would observe that in view of the multiple litigations before this Court arising out of the interpretation of the conditions imposed in the advertisements issued by the competent authorities at different places in the State, it is seen that there is no uniformity regarding the requirement of furnishing valid residential certificates by the candidates. For instance, the advertisement in the present case requires the candidates to produce residential certificates issued within five years prior to the date of the advertisement. However, this Court, while dealing with similar matters, has come across advertisements, wherein the requirement is for furnishing residential certificates issued within six months prior to the date of the advertisement. As already noted in the judgment, the guidelines do not prescribe any such period for the issuance of the residential certificate. This is definitely a grey area which leads to lack of uniformity across the State. Page 15 of 16
This Court, therefore, feels it proper to observe that the concerned authorities should consider issuing specific guidelines to be uniformly followed by all competent authorities across the State regarding the requirement of producing residential certificates by the applicants.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 25th April, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: OHC, CUTTACK Date: 01-May-2025 13:00:19 Page 16 of 16