Orissa High Court
Afr vs State Of Odisha & Others ......... Opp. ... on 6 April, 2021
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 10149 OF 2013
In the matter of an application under Articles 226 and
227 of the Constitution of India.
AFR -----------
Runi Jena ........ Petitioner
-Versus-
State of Odisha & others ......... Opp. Parties
For petitioner : Mr. S.K. Rath & Ms. M. Behera,
Advocates
For opp. parties : Mr. S.K. Samal,
Addl. Standing Counsel
(O.Ps. No.1 to 4)
M/s.A.K. Mishra-2 & B.C. Pradhan,
Advocates
(O.P. No.5)
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PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 06.04.2021
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DR. B.R. SARANGI,J. The petitioner, who is continuing as "Asha Worker" in respect of Baradang-II Anganwadi Centre, has filed this writ petition to quash the order // 2 // dated 18.08.2012 under Annexure-2, whereby the Collector, Kendrapara in Asha Appeal No.1 of 2012 has set aside the selection and engagement of the petitioner as Asha Worker and directed for fresh selection; as well as the order dated 27.02.2013 passed by the Collector, Kendrapara rejecting Misc. Case No.31 of 2012 filed by the petitioner for recalling the order dated 18.08.2012.
2. The factual matrix of the case, in hand, is that pursuant to notice dated 04.04.2011 inviting applications from the female candidates of Baradang-II Anganwadi Centre for selection of Asha Worker, the petitioner applied for on 04.06.2011 by submitting relevant documents, such as, School Leaving Certificate of Class-VII from Languleswar U.P.M.E. School showing that she had secured 336 marks, Transfer Certificate of Jagmohan High School, Baradang showing that she had studied up to Class-X, mark sheet issued by the Board of Secondary Education showing appearance in the Annual H.S.C. Examination, 2002 and certificate of the Headmaster of Jagmohan High School certifying that she // 3 // had studied in U.P.M.E. School and acquired 336 marks. On consideration of such application and documents, the petitioner was selected and engaged on 08.09.2011 as Asha Worker in respect of Baradang-II Anganwadi Centre in which she is continuing till date.
2.1 Challenging the selection and engagement of the petitioner as Asha Worker, opposite party no.5 filed Asha Appeal No.1 of 2012 before the Collector, Kendrapara alleging that the petitioner had not studied Class-VIII and produced forged certificate showing 336 marks of Languleswar U.P.M.E. School and the said school was not in existence. She further pleaded that she had studied up to Class-IX and the petitioner had not fulfilled the age criteria. Though opposite party no.5 preferred appeal at a belated stage, the same was entertained by the Collector, Kendrapara and notice was issued to the petitioner. The petitioner could not appear before the Collector, Kendrapara, but the Collector, Kendrapara, upon hearing the appellant (opposite party no.5), by the impugned order dated 18.08.2012 in // 4 // Annexure-2, allowed the appeal and set aside the selection and engagement of the petitioner as Asha Worker in respect of Baradang-II Anganwadi Centre, also directed the Child Development Project Officer (CDPO), Kendrapara to issue necessary instructions to the selection committee for fresh selection, by holding that the petitioner was absent on repeated call, and that there was doubt about the validity of the certificate issued by Languleswar U.P.M.E. School, and that the petitioner was below 25 years of age on the date of application. 2.2 The petitioner, having come to know the order dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012, filed Misc. Case No.31 of 2012 for recalling of the said order, but the said misc. case was dismissed by order dated 27.02.2013 holding that the order dated 18.08.2012 was passed after taking into consideration all the documents/papers filed by both the parties. Hence this application.
// 5 //
3. Mr. S.K. Rath, learned counsel appearing for the petitioner argued with vehemence that the order impugned has been passed ex parte without giving opportunity of hearing to the petitioner. As such, she was deprived of place the documents and participating in the proceeding while appeal was heard. The appeal suffered from delay and laches, because the selection was held on 08.09.2011 and the appeal was preferred in the year 2012 beyond the reasonable period of 30 days. Without condoning the delay, the ex parte order has been passed on 18.08.2012. More so, the said order is hit by the principle of promissory estoppels, as envisaged under Section 115 of the Evidence Act, 1872. It is further contended that the selection committee on verification of documents found that the date of birth of the petitioner is 05.05.1987 and by the time advertisement was issued on 04.04.2011, she was aged 24 years and 29 days. The minimum requirement of age being 25 years, the selection committee had condoned the age and permitted the petitioner to participate in the selection and // 6 // subsequently, she was found suitable and issued with engagement order. Thereby, the order dated 18.08.2012 passed by the Collector-Kendrapara cannot sustain in the eye of law. It is further contended that this Court, while entertaining the writ petition, vide order dated 01.05.2013 in Misc. Case No.9586 of 2013 passed an interim order, pursuant to which the petitioner is continuing in the post of Asha Worker. In the meantime, 10 years have been passed. If any order is passed, it will unsettle the settled position. It is further contended that the petitioner is a landless lady and her husband is a daily labourer, she is leading her life on consolidated salary of Rs.3500/- per month. In the event the order dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012 is given effect to, it will prejudice to the petitioner.
To substantiate his contention, learned counsel for the petitioner has relied upon the judgment of the apex Court in Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 and Full Bench judgment // 7 // of this Court in Miss Reeta v. Berhampur University, AIR 1993 ORISSA 27.
4. Mr. S.K. Samal, learned Additional Standing Counsel for the State opposite parties, justifying the order dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012 in Annexure-2, contended that as per information obtained by opposite party no.5 under Right to Information Act, 2005, Languleswar U.P.M.E. School, where the petitioner was allegedly studying, was abolished more than 10 years ago. It is further contended that the fact that petitioner was below 25 years of age, she herself admitted in her affidavit dated 09.06.2011 showing her age as 24 years, and not only that, the certificate produced by her in support of her educational qualification shows that she was less than 25 years of age at the time of submission of application to get herself selected as Asha Worker. Thereby, he contended that the Collector, Kendrapara is well justified in passing the order impugned dated // 8 // 18.08.2012, which does not warrant interference by this Court.
5. Although Mr. A.K. Mishra-2, learned counsel has entered appearance for opposite party no.5, but he is not present when the matter is taken up, nor has he filed counter affidavit. It is opposite party no.5, who preferred appeal before the Collector, Kendrapara challenging the selection and engagement of the petitioner as Asha Worker and the order impugned has been passed at her behest. Her contention before the appellate authority was that minimum educational qualification for Asha Worker was Class-VII pass and minimum age should be 25 years and maximum age 45 years. Even though she (opposite party no.5) was aged about 30 years and studied up to Class-IX and secured 204 marks in Class-VII examination, she was not selected, but the petitioner was selected on the basis of forged school leaving certificate obtained by her from Languleswar U.P.M.E. School showing to have passed Class-VII securing 336 marks. It was further contended that the petitioner had incurred // 9 // disqualification because she was below 25 years of age, which is apparent from the affidavit dated 09.06.2011 showing her age as 24 years. Thereby, the selection made has to be cancelled.
6. This Court heard Mr. S.K. Rath, learned counsel for the petitioner and Mr. S.K. Samal, learned Additional Standing Counsel for the State opposite parties. Though Mr. A.K. Mishra-2, learned counsel entered appearance for opposite party no.5, he was not present at the time of call nor has he filed counter affidavit. Since this is a case of the year 2013, this Court, instead of granting adjournment, proceeded to dispose it of taking into consideration the grounds taken by opposite party no.5 in the appeal, out of which the order impugned dated 18.08.2012 has been passed by the Collector, Kendrapara.
7. On the basis of factual matrix, as discussed above, admittedly the petitioner has been selected as Asha Worker in respect of Baradanga-II Anganwadi // 10 // Centre on the basis of certificates produced by her. She has relied upon School Leaving Certificate of Class-VII pass obtained from Languleswar U.P.M.E. School showing that she has secured 336 marks, Transfer Certificate of Jagmohan High School, Baradang showing that the petitioner has studied up to Class-X, mark sheet issued by the Board of Secondary Education showing appearance in the Annual H.S.C. Examination, 2002 and certificate of the Headmaster of Jagmohan High School certifying that the petitioner has studied in Languleswar U.P.M.E. School and acquired 336 marks. The petitioner, being qualified in all respect, was selected and engaged as Asha Worker and has been discharging her duty at Baradang-II Anganwadi Centre. Opposite party no.5 preferred Asha Appeal No.1 of 2012 challenging the selection and engagement of the petitioner. Though the said appeal was barred by time, the Collector, Kendrapara entertained the same and without affording opportunity of hearing to the petitioner passed the order impugned dated 18.08.2012, which is evident on the face // 11 // of the order itself wherein in the 1st line of second paragraph a mention has been made that "the learned advocate for the appellant is present, O.Ps. are absent on call". The petitioner, being opposite party in the said appeal, was not present and, as such, the appeal was decided by the Collector, Kendrapara behind her back without giving opportunity of hearing, which amounts to violation of principles of natural justice.
8. The soul of natural justice is 'fair play in action' In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'.
In Fairmount Investments Ltd. v. Secy of State for Environment, 1976 2 All ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as 'a fair crack of the whip' In R. v. Secy. Of State for Home Affairs, ex p. Hosenball, Geoffrey Lane, LJ, 1977 3 All ER 452 // 12 // (DC & CA), preferred the homely phrase 'common fairness' in defining natural justice.
9. A.K. Kraipak and others v. Union of India, AIR 1970 SC 150= (1969) 2 SCC 262, is a landmark in the growth of this doctrine. Speaking for the Constitution Bench, Hegde,J. observed thus:
"If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have far reaching effect than a decision in a quasi-judicial enquiry".
In Maneka Gandhi v. Union of India, AIR 1978 SC 597 = (1978) 1 SCC 248, law has done further blooming of this concept. This decision has established beyond doubt that even in an administrative proceeding involving civil consequences doctrine of natural justice must be held to be applicable.
// 13 //
10. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the meaning of 'natural justice' came for consideration before the apex Court and the apex Court observed as follows:-
"The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self evident and urarguable truth".
"Natural justice" by Paul Jackson, 2nd Ed., page-
1. In course of time, judges nurtured in the traditions of British jurispruduence, often invoked it in conjuction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law".
"Natural justice" was considered as "that part of natural law which relates to the administration of justice."
11. In Basudeo Tiwary v Sido Kanhu University and others (1998) 8 SCC 194, the apex Court held that natural justice is an antithesis of arbitrariness. It, therefore, follows that audi alteram partem, which is facet of natural justice is a requirement of Art.14.
// 14 //
12. In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (2008) 16 SCC 276, the apex Court held as follows:
"The rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Thus, whenever a man's rights are affected by decisions taken under statutory powers, the court would presume the existence of a duty to observe the rules of natural justice. It is important to note in this context the normal rule that whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not permissible where the rule excludes expressly or by necessary intendment, the application of the principles of natural justice, but in that event, the validity of that rule may fall for consideration."
13. The apex Court in Uma Nath Panday and others v State of U.P. and others, AIR 2009 SC 2375, held that natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.
// 15 //
14. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416, the apex Court held as follows:
"Though the two rules of natural justice, namely, nemo judes in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait jacket. They are not immutable but flexible."
15. By passing the order impugned dated 18.08.2012, the petitioner is grossly prejudiced as because by virtue of the same she may lose her job. Since there is gross violation of principles of natural justice, as discussed above, the order dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012 cannot sustain in the eye of law. Even though the petitioner filed Misc. Case No.31 of 2012 for recalling of the order dated 18.08.2012, the Collector, Kendrapara // 16 // also dismissed the same vide order dated 27.02.2013 without application of mind.
16. If it is considered from other angle, undoubtedly the petitioner applied for the post of Asha Worker by furnishing relevant documents and, as such, the school leaving certificate produced by the petitioner indicates that by the time she made application, she was aged 24 years and 29 days, but the minimum age requirement was 25 years. But as a matter of fact the selection committee has condoned such deficiency and considered her application for selection to the post of Asha Worker. She having secured highest mark, i.e. 336, she was selected and engaged by the authority, pursuant to which the petitioner joined as Asha Worker and is continuing as such. It is no doubt true that condonation of the age deficiency and consideration of the application of the petitioner by the selection committee was to give benefit of engagement to the petitioner. If any action is taken against the petitioner on the basis of the appeal preferred by opposite party no.5, the same will hit the // 17 // principle of promissory estoppels. As the doctrine of promissory estoppels has been evolved by equity to avoid injustice, one who demands equity must do equity and must come with clean hands. Suppression of facts and recourse to falsehood would disentitle a person to claim this equitable relief.
17. Applying the above principle to the present context, the petitioner neither has suppressed any facts nor has given any falsehood so as to disentitle her to claim the equitable relief. As required, she had produced all the documents before the authority for selection and the selection committee, having condoned the age deficiency, selected and engaged her as Asha Worker, pursuant to which she has been discharging her duty. Subsequently, the authority cannot turn around and say that she suffers disqualification on the ground of insufficient age. Thereby, cancellation of her selection on the basis of appeal preferred by opposite party no.5 is hit by doctrine of promissory estoppels, as has been held by the Full Bench of this Court in Miss Reeta (supra).
// 18 //
18. In Sanatan Gauda (supra), even though the petitioner was admitted to law course by the law college and permitted by the University to appear in pre-law and intermediate law examinations and was also admitted to final year course, but subsequently the University refused to declare results of examinations of the petitioner on the ground of ineligibility to be admitted to law course. In that case, the apex Court held that such action of the University is barred by estoppels.
19. On the touchstone of the above principle, if the background facts of the instant case are examined, it would be seen that on the basis of documents furnished by the petitioner, if the petitioner had incurred disqualification for not attaining the required age, her case should not have been taken for consideration. But the selection committee, being well aware of such deficiency of age, condoned the same and selected the petitioner to be engaged as Asha Worker, pursuant to which order of engagement was issued and she was allowed to continue. That itself cannot disentitle her to // 19 // continue in the post and her selection and engagement should not have been set aside at the instance of opposite party no.5 without giving opportunity of hearing to the petitioner. Thereby, the order impugned dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012 in Annexure-2 also cannot sustain in the eye of law.
20. Needless to say that this Court, while entertaining this writ petition, vide interim order dated 01.05.2013 passed in Misc. Case No.9586 of 2013, directed that the operation of order dated 18.08.2012 passed by the Collector, Kendrapara in Asha Appeal No.1 of 2012 shall remain stayed till the next date. Pursuant to said order, the petitioner is continuing in the post. In the meantime more than 8 years have been passed. Thereby, this Court does not want to unsettle the settled position.
21. In view of the foregoing discussions, the impugned order dated 18.08.2012 passed by the // 20 // Collector, Kendrapara in Asha Appeal No.1 of 2012 is liable to be quashed and the same is hereby quashed.
22. The writ petition is thus allowed. However, there shall be no order as to costs.
.................................. (DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 6th April, 2021, Alok