Dipitimayee Parida vs State Of Orissa & Ors

DIPITIMAYEE PARIDA ... APPELLANT

Versus

STATE OF ORISSA & ORS. ... RESPONDENTS

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with the

judgment and order dated 10.4.2006 passed by a Division bench of the

High Court of Orissa at Cuttack dismissing an appeal against the

judgment and order dated 30.3.2005 passed by a learned single judge of

the said Court in Writ Petition (C) No. 1952 of 2003 allowing the writ

application filed by respondent No. 5 herein.

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3. The State of Orissa in terms of the Integrated Child Development

Scheme of the Central Government issued an advertisement for

appointment of Anganwadi Workers. A check list laying down

guidelines for selection of Anganwadi Workers was also issued. The

Constitution of the Committee as also the marks to be allotted on

different items were specified therein. A Circular Letter dated 7.10.1998

was furthermore issued by the W.E.C.D. Department of Government of

Orissa for selection of Anganwadi Workers laying down minimum

educational qualifications and as also other criteria therefor; the relevant

clause whereof reads as under:

"8) Candidates who have been included in the panel mentioned above, will be called for an interview and marks will be awarded to them in the following manner:

a) Percentage of marks obtained in that Matriculation examination or percentage of marks obtained in the written test for non-matriculates as may be relevant.

b) 3 marks if the candidate is intermediate or equivalent or has higher qualification.

c) 5 marks if the candidate belongs to S.C. and S.T. category.

d) 3 marks if she is married and additional 3 marks if she is a widow or a divorcee (i.e. where marriage has been dissolved by a court degree) provided she resides in that village.

e) Marks to be awarded for experience out of a maximum of 5. The experience relevant for this purpose will be 3

experiences in any area of the duties of Anganwadi worker acquired in Government employment or in employment in a programme under a registered voluntary organization funded by the State/Central Govt. for this purpose.

f) Marks obtained in the interview which will be out of a maximum of 10 marks.

Note:- Marks awarded to candidate in accordance with clause (a) to (e) shall be notified prior to holding of interview."

Rule 10 provides for composition of Selection Committee.

Different Selection Committees were constituted for rural and urban areas

separately.

4. Appellant filed an application for recruitment as an Anganwadi

Worker, the last date wherefor was 20.9.2000. Admittedly, at that time,

she was not married. She was married in 2001. She secured 43% in HSC

Examination + 3 marks in Intermediate and 9 marks in viva voce, totaling

55 marks. However, she was awarded 3 more marks on the ground that

she got married although as noticed hereinbefore she on the last specified

date for filing of the application was not married.

Respondent No. 5 also filed an application for her recruitment as

Anganwadi Worker. She secured 49.8% marks in HSC examination, + 3 4

marks in Intermediate, + 3 marks for marriage, + 2 marks for viva-voce

examination, thus, totaling 57.8% marks.

5. Contending that the Selection Committee had no jurisdiction to

award 3 marks to appellant, respondent filed a writ petition before the

High Court of Orissa. The said writ petition was allowed by a learned

single judge of the said Court by a judgment and order dated 30.3.2005,

opining:

"A candidate who acquired the prescribed qualifications or extra qualification subsequent to such prescribed date cannot be considered at all. Admittedly on the date of publication of the Notification and the date fixed for submission of application the petitioner was not married though she got married subsequently. The authorities awarded three marks in her favour. In view of the ratio of the Supreme Court judgment in the case of Ashok Kumar Sharma (supra), the petitioner is not entitled to the said three marks and only the eligibility and the qualifications possessed by the opposite party no. 5 on the date prescribed in the notification is to be taken into consideration. In view of the clear position of law, I find that the authorities acted illegally and with material irregularity in awarding extra three marks to the opposite party no. 5. If the aforesaid three marks were deducted from 58% then the opposite party no.

5 would secure 55% marks whereas the petitioner would secure 57.8% marks. This aspect was not kept in mind by the Collector.

Therefore, I have no hesitation to set aside the order passed by the Collector and direct that the petitioner be engaged as an Anganwadi Worker in the centre in question, if there is no other impediment."

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As indicated hereinbefore, on an intra court appeal preferred

thereagainst by the appellant, the Division Bench passed the impugned

judgment dismissing the same.

6. Mr. Anukul Chandra Pradhan, learned counsel appearing on behalf

of appellant would submit that the question as to whether a woman is

married or not although not wholly relevant, but being not an essential

qualification for appointment as an Anganwadi Worker, the learned

single judge as also the Division Bench of the High Court committed a

serious error in passing the impugned judgments.

7. Mr. Shibashish Misra, learned counsel appearing on behalf of the

contesting respondent, on the other hand, would support the impugned

judgment contending that the Selection Committee could not have

granted three marks in favour of the appellant on the premise that she was

married.

8. The matter relating to recruitment of Anganwadi Workers is not

governed by any statute. Recruitments are made pursuant to a Scheme

framed by the Central Government. The State, therefore, while making

recruitments in such projects in exercise of its jurisdiction under Article

162 of the Constitution of India, may issue such guidelines and/or

circulars as it may seem fit and proper.

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The said guidelines are ordinarily binding on all the functionaries

working in terms of the `scheme' including the Selection Committees

constituted for recruitment of Anganwadi worker.

9. We have noticed hereinbefore that a Circular Letter had been

issued by the State Government on 7.10.1998; the validity whereof is not

in question. The manner in which the marks are to be distributed has

been laid down in clause 8 of the said circular letter.

Sub-Clause (d) of Clause 8 of the said Circular postulates that three

marks are to be granted if the candidate is a married woman and

additional three marks are to be granted if she is a widow or a divorcee.

As the Scheme deals with the welfare of the children, it is expected

that a married woman would be able to deal with them more efficiently;

widows and divorcees are granted additional marks in order to give

incentive to them to work with the children.

Ten marks had been fixed for viva-voce test. The marks which

have to be awarded in terms of clause 8 (a) to (e) were to be notified prior

to holding of interview.

The reason behind the same appears to be invoking the principle of

transparency in the Selection Process. Thus, as in terms of clause 8(a) to

(e), appellant got 55% marks; the Selection Committee could not have 7

awarded her three additional marks on the premise that she was married.

Even before the interview such marks could not have been awarded as the

authorities were not expected to be aware that she was married after filing

of the application for recruitment. It may or may not be for appellant to

bring the said subsequent event to the notice of the competent authority

so as to enable them to consider that although on the last date for filing of

the application she was not married but was married subsequently. We

say so because in terms of the rules it was for the competent Committee

to award marks in terms of clause 8(a) to (e) of the said Circular Letter

dated 7.10.1998. The Selection Committee could not have done so as it

was merely authorized to hold the viva-voce test wherefor only 10 marks

were specified.

10. We had adverted to this aspect of the matter so as to enable us to

consider the submissions made by Mr. Pradhan that the criterion of one's

marital status was not relevant. It is one thing to say that the criteria fixed

by the State for the purpose of recruitment of Anganwadi Workers are

illegal or ultra vires but it is another thing to say that although they are

valid, in their application some relaxation could be granted. When marks

are fixed specifying the criteria in the rule, the same should be strictly

followed. The Selection Committee was not conferred with any power to

grant relaxation. Stages for grant of marks having been fixed; one

Committee could not usurp the jurisdiction of the other. If the contention 8

of respondents is correct, then, for all intent and purport, the marks

awarded by the Interviewing Committee to the appellant would be 12 out

of 10, which was impermissible.

11. This Court in Pramod Kumar v. U.P. Secondary Education Services

Commission & ors. [2008 (4) SCALE 580] held:

"...Appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. It was, therefore, immaterial as to why and when the said proceeding had been initiated against him."

12. Even otherwise, ordinarily the qualification or extra-qualification

laid down for the recruitment should be considered as on the last date for

filing of the application. This has been so held in Rekha Chaturvedi v.

University of Rajasthan & ors. [1993 Supp. (3) SCC 168], stating:

"The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet acquire 9

the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question arc liable to be quashed."

13. Yet again, in Ashok Kumar Sharma & Ors. v. Chander Shekhar &

Anr. [1997 (4) SCC 18], this Court held:

"One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because 10

some of the person had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis."

{See also Ashok Kumar Sonkar v. Union of India & ors. [(2007) 4

SCC 54 Para 20], Rajasthan Public Service Commission v. Kaila Kumar

Paliwal and Anr.[(2007) 10 SCC 260 Para 20 and 21]}

14. In this view of the matter, we do not find any legal infirmity in the

impugned judgment. The appeal is dismissed accordingly. There shall,

however, be no order as to costs.

.....................................J. [S.B. Sinha]

.....................................J. [Cyriac Joseph] New Delhi;

OCTOBER 20, 2008