ORISSA HIGH COURT: CUTTACK WRIT PETITION (CIVIL) No.13810 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------Kabita Swain ……… Petitioner ……… Opposite Parties -versusState of Orissa and others For petitioner : For opp. parties : Mr.Asotosh Panda Mrs.A.Mohanty, Addl. Standing Counsel (for O.Ps. 1 to
6) M/s.Sarathi Jyoti Mohanty, and Durga Dutta Sahu (for O.P.
5) PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 22.11.2013 | Date of judgment : 05.12.2013 Dr. B.R.Sarangi, J.The petitioner in this writ petition seeks for quashing of the order/advertisement dated 27.7.2010 under Annexure-5 series issued by opposite party no.5 inviting applications for engagement of Anganwadi Workers in different Anganwadi Centres including Kulinda Anganwadi Centre under Mahajanpur Gram Panchayat when the merit list prepared by the Selection Committee pursuant to the notification under Annexure-1 was valid and in force. 2 2. The factual matrix of the case in hand is that the Government of Orissa issued a revised guideline for selection of Anganwadi Workers superseding the previous guidelines on 2nd May, 2007, basing upon which notification no.119 was issued on 16.2.2009 by the C.D.P.O., opposite party no.5 vide Annexure-1 inviting applications for engagement of Anganwadi Worker in various Anganwadi centres, which included Kulinda Anganwadi Centre of Mahajanpur Gram Panchayat, which stands at Sl.No.2 of the said list. Pursuant to such notification, five candidates including the petitioner and one Kiran Prava Sahoo applied for the same. On receipt of the application forms vide Annexure-2, the opposite party no.5 by notice dated 11.8.2009 called upon the candidates for production of relevant documents for verification on 27.8.2009. On the said date, the petitioner objected to the candidature of Kiran Prava Sahoo and without considering such objection, opposite party no.5 postponed the certificate verification on the very same day, but final merit list was prepared vide Annexure-12 on 12.1.2010 wherein Kiran Prava Sahoo was shown at Sl.No.1 and the petitioner was at Sl.No.2. On 13.1.2010 engagement order was issued in favour of Kiran Prava Sahoo. However, to substantiate the objection raised by the petitioner at the time of verification of documents, the petitioner sought for information under the Right to Information Act, 2005 from the Headmaster of Vivekananda Vidyapitha, Bahugram with regard to 3 the date of birth of Kiran Prava Sahoo. In response to the same, communication was made by the Headmaster of Vivekananda Vidyapitha, Bahugram vide Annexure-3 on 9.3.2010 indicating that the date of birth of Kiran Prava Sahoo is 13.1.1965. On receipt of such information, the petitioner represented to the opposite parties 2,3 and 4 regarding the illegalities committed by opposite party no.5 in selecting Kiran Prava Sahoo as Anganwadi Worker taking into account her date of birth as 13.1.1967 on the basis of the information supplied by her in the application form whereas her real date of birth is 13.1.1965 as per the information provided by the Headmaster of Vivekananda Vidyapitha, Bahugram. These facts having been brought to the notice of the authorities, Kiran Prava Sahoo herself resigned from her service in June, 2010. The engagement of Kiran Prava Sahoo being bad in law inasmuch as the same was obtained by playing fraud and the petitioner being the next person in the merit list ought to have got the engagement order as the list so prepared is valid for a period of one year in absence of any Rules governing the field. Instead of giving engagement order in favour of the petitioner, who is a handicapped person, the opposite party no.5 issued fresh advertisement on 27.7.2010 under Annexure-5 series inviting fresh applications for engagement of Anganwadi Worker in respect of Kulinda Anganwadi Centre. The petitioner raised objection by filing representations to the authorities vide Annexure-6, which has been 4 duly acknowledged by the competent authorities. Since no action was taken, finding no other alternative, she approached this Court by filing the present writ petition.
3. Without prejudice to the claim involved in the writ petition, the petitioner participated in the selection process pursuant to the fresh advertisement under Annexure-5 series. In the said selection one Sumitra Swain, opposite party no.7 was selected and engagement order was issued in her favour on 9.9.2010 though she received the same on 13.9.2010, but did No.join. Hence, the post of Anganwadi Worker in respect of Kulinda Anganwadi Centre was remained vacant till date. The petitioner brought to the notice of this Court the said fact by filing Misc. Case No.13020 of 2010 with a prayer to stay the advertisement dated 27.7.2010 under Annexure-5 and this Court by order dated 15.9.2010 observed that the engagement of Anganwadi Worker in respect of Kulinda Anganwadi Centre shall be subject to the result of the writ petition.
4. On being noticed, the opposite parties have entered appearance. Opposite parties 2, 3 and 4 filed counter affidavit justifying their action, but raised a contention that pursuant to the advertisement under Annexure-5 series the petitioner having participated and No.selected, she canNo.turn around and say that selection is bad and therefore, she should be given engagement. Apart from the same, the authorities have justified the selection of 5 Kiran Prava Sahoo on the basis of the date of birth provided by her in the application, but admitted that tampering of date of birth in the certificate has been made by Kiran Prava Sahoo and on the basis of the information received from the Secretary, Board of Secondary Education, Orissa, Cuttack with regard to the date of birth of Kiran Prava Sahoo recorded as 13.1.1965, which was received on 8.6.2010, i.e. after selection was over, when the authorities proposed to take steps against Kiran Prava Sahoo, she resigned from the post. Therefore, to fill up the vacancy caused by the resignation of Kiran Prava, Annexure-5 series has been issued by the authorities inviting fresh application for engagement of Anganwadi Worker in respect of Kulinda Anganwadi Centre. Therefore, the authorities have No.committed any advertisement illegalities without or giving irregularities engagement by to issuing the fresh petitioner, admittedly whose position is at Sl.No.2 in the merit list pursuant to the advertisement in Annexure-1.
5. The petitioner by filing rejoinder affidavit states that the action of the authorities is absolutely illegal, arbitrary and just to deprive her from getting her legitimate claim and therefore, seeks for interference of this Court.
6. Mr.A.Panda, learned counsel for the petitioner strenuously urged that when the merit list prepared by the authorities vide Annexure-12 pursuant to the advertisement under Annexure-1 is 6 valid, there is no justification to issue fresh advertisement under Annexure-5 inviting applications afresh from the candidates for filling up of the vacancy caused due to resignation of Kiran Prava Sahoo, who had got illegal engagement by showing wrong date of birth in respect of Kulinda Anganwadi Centre. He further urged that even though the petitioner has applied for the post pursuant to Annexure5, but such application was without prejudice to her claim involved in the writ petition and as such, this Court on 15.9.2010 passed interim order stating that the engagement of Anganwadi Worker in Kulinda Anganwadi Centre shall be subject to the result of the writ petition. Mr.Panda further brought to the notice of this Court that though pursuant to the advertisement under Annexure-5 series, opposite party no.7 was selected and engagement order was issued in her favour, she did No.join in the said post and therefore, the said post has remained vacant till date. In support of his submission, Mr.Panda relies upon the judgments in State of Rajasthan and others v. Jagdish Chopra, 2007(6) Supreme, 242, M/s.Pannalal Binjraj and others v. Union of India and others, AIR 1957 SC 397, Dr.G.Sarana v. University of LuckNo.and others, AIR 1976 SC 2428, State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22. 7 7. Mrs. A. Mohanty, learned Addl. Standing Counsel appearing for the State strenuously urged that the petitioner has no locus standi to approach this Court by filing the present writ petition as she has participated in the selection process pursuant to the fresh advertisement under Annexure-5 and having No.been selected, she canNo.claim for such engagement.
8. It is the admitted fact of the parties that pursuant to the advertisement under Annexure-1 merit list under Annexure-12 has been prepared in which the name of the petitioner finds place at Sl.No.2. It is further admitted that Kiran Prava Sahoo, whose name finds place at Sl.No.1 in the merit list and who got engagement fraudulently by giving wrong date of birth, has in the meantime resigned from the said post, thereby a vacancy has been caused in respect of Anganwadi Worker of Kulinda Anganwadi Centre. The merit list was prepared on 12.1.2010, Kiran Prava Sahoo was engaged on 13.1.2010 and she resigned from her post in June, 2010. The select list prepared in absence of any rule shall remain valid for a period of one year, that means it will expire on 11.1.2011. During subsistence of the select list, there was no valid reason available with the authorities to issue fresh advertisement under Annexure-5 series. Since the petitioner stood 2nd in the merit list under Annexure-12 and Kiran Prava Sahoo has resigned, she has got legitimate expectation to get engagement against the vacancy caused. 8 9. The principle of doctrine of legitimate expectation came up for consideration by this Court in similar situation in Rajashree Samal v. State of Orissa and others, reported in 2008(II) OLR 976 in which the selection to the admission of MBBS course was under consideration and the serial number of the merit list having No.turned up, the petitioner in the said writ petition being stood 2nd should have got admission. But the authorities admitted the candidate at Sl.No.4 of the merit list, which was challenged before this Court and after due adjudication this Court set aside the selection of the candidate at Sl.No.4, who was admitted into MDS course and directed the Sl.No.2 (petitioner in the said case) to be admitted in MDS course. In paragraph 10 of the said judgment, this Court dealt with the doctrine of legitimate expectation, which reads as follows : “The doctrine of legitimate expectation evolved in England, but has been followed in English Speaking countries including India by application of which the Court insists a duty to hear upon an administrative authority in cases where otherwise, the affected individual had no right to be hard. While the common law rule of natural justice applied only to 9a) the exercise of statutory power, and (b) where the interest affected is only a privilege or benefit and it is No.existing but prospective. This doctrine of legitimate expectation can be considered to be an off-shoot of the general doctrine that every public authority must act fairly. In England, it has been held that the plea of legitimate expectation provides a sufficient interest to a person to enable him to have judicial review in a case where he canNo.point to the existence of a substantive right. (See (1984) 3 All E.R. 801 (Findlay v. Secy of State). Of course, a mere hope of a person that he would obtain or enjoy the benefits would No.suffice the doctrine. In order to constitute a legitimate expectation, the same must have a reasonable basis. In the case of T.C.I. v. K.C.F.I., (1993) 1 SCC 71, the Supreme Court held that mere reasonable or legitimate expectation of a citizen may No.by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of 9 due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. In the case of Union of India and others v. Hindustan Development Corpn. And others, AIR 1994 SC 988, the Supreme Court elaborately dealt with the doctrine of legitimate expectation. The Supreme Court held that the concept of legitimate expectation in administrative law has No.undoubtedly gained sufficient importance. “Legitimate expectation”. is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action and this creation takes its place besides such principle as the rules of natural justice, unreasonableness, the fiduciary duty of legal authorities and in future perhaps, the principles of proportionality”.. While dealing with the doctrine, the Supreme Court also held that the legitimate expectation may come in various forms and owe their existence to different kind of circumstances and it is No.possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. Thus, observing, the Supreme Court also concluded that after a denial of legitimate expectation in a given case whether it amounts to denial of rights guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violations of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 of the Constitution, but a claim based on a mere legitimate expectation without anything more canNo.piso faco give a right to invoke these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference and it depends very much on the facts and the recognized general principle of administrative law applicable to such facts and the concept of legitimate expectation is “No.the key which unlocks the treasury of natural justice and it ought No.to unlock the gates which shuts the Court out of review on the merits.”
. The aforesaid judgment of the learned Single Judge was challenged before the Division Bench in Writ Appeal No.143 of 2008 by the candidate, whose name finds place at Sl.No.4 and this Court dismissed the same, which has been reported in CLT (2008) Supp.678 (Dr.Rashika Bharadwaj v. State of Orissa and four others), thereby the judgment of the learned Single Judge was upheld by the Division Bench in the writ appeal. Against the said 10 judgment of the Division Bench, the candidate at Sl.No.4 approached the apex Court in S.L.P (Civil) No.21111 of 2008, but the same was also dismissed. Therefore, the legitimate expectation of candidate, who stood 2nd in the merit list to get admitted into the course, is made confirmed by the apex Court.
10. Keeping in view the aforesaid analogy, since the petitioner’s name finds place at Sl.No.2 and the candidate at Sl.No.1 resigned from the post, the petitioner should have been given engagement order without issuing any fresh advertisement.
11. Mr.Panda relies upon the judgment of the apex Court State of Rajasthan v. Jagdish Chopra (supra) wherein in para-7 the apex Court observed thus: “Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does No.specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous years and No.in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar and others v. Amrendra Kumar Mishra 2006(9) Scale 5491, this Court opined : “In the aforementioned situation, in our opinion, he did No.have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel”. It was further held : 11 The decisions noticed hereinbefore are authorities for the proposition that even the waitlist must be acted upon having regard to the terms of the advertisement and in any event canNo.remain operative beyond the prescribed period.”
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12. Mr.Panda contended that in view of the law laid down by the apex Court, in the absence of any Rule, the ordinary period of validity of select list should be one year. Applying the said principle, since the merit list in Annexure-12 has been prepared on 12.1.2010, one year will expire on 11.1.2011 and in the meantime Kiran Prava Sahoo, who stood 1st in the merit list having resigned since June, 2010, the petitioner being stood 2nd in the merit list should have been engaged by the authorities.
13. The contention raised by the learned Addl. Standing Counsel that the petitioner having participated in the selection process pursuant to the fresh advertisement under Annexure-5 series and opposite party no.7 having been issued with the engagement order, the petitioner canNo.No.claim that she should be given engagement order as per the merit list under Annexure-12, is absolutely a misconceived one. In view of the fact that challenging the advertisement under Annexure-5 series the petitioner approached this Court and this Court specifically observed that engagement of Anganwadi Worker in respect of Kulinda Anganwadi Centre shall be subject to the result of the writ petition, the authorities should No.have proceeded with the selection process and should have awaited the out-come of the writ petition. This clearly indicates that the 12 authorities are biased against the petitioner. Even though the selection has been over pursuant to Annexure-5 series and opposite party no.7 has been selected, she had no legal right to get engagement order.
14. Learned counsel for the petitioner relies upon paragraph -8 of the judgment in State of Rajasthan v. Jagdish (supra) and states that the opposite party no.7 has no legal right to be appointed in view of the settled principles of law that even selected candidate does No.have legal rights merely her name finds place in the select list. His aforesaid stand is supported by the judgments in Food Corporation of India and others v. Bhanu Lodh and others, (2005) 3 SCC 618 and Pitta Naveen Kumar and others v. Raja Narasaiah Zangiti and others, (2006) 10 SCC 261.
15. Accepting the principles laid down by the apex Court, opposite party no.7 has no legal right to claim engagement order pursuant to the advertisement in Annexure-5 series. As it reveals from the pleadings, although she has been selected and issued with the engagement order in respect of Anganwadi Worker of Kulinda Anganwadi Centre, she did No.join. Mr.Sarathi Jyoti Mohanty, learned counsel appearing for opposite party no.7 on being asked fairly submitted on instruction that his client does No.want to join against the post of Anganwadi Worker in respect of Kulinda Anganwadi Centre 13 for which she has been selected pursuant to the advertisement under Annexure-5 series.
16. In view of such position, the advertisement issued in Annexure-5 series during the validity of the select list pursuant to Annexure-1 amounts to arbitrary and unreasonable exercise of power of the authorities, which is hit by Article 14 of the Constitution of India and accordingly, the advertisement under Annexure-5 series is hereby quashed and the opposite parties 1 to 6 are directed to take necessary steps in accordance with the provisions of law for issuance of engagement order in favour of the petitioner, who stood 2 nd in the merit list under Annexure-12 pursuant to Annexure-1, in respect of Anganwadi Worker of Kulinda Anganwadi Centre, within a period of four weeks from the date of communication of the order. The authorities are directed to act on production of a certified copy of this judgment.
17. The writ petition is allowed. No costs. ….…………………………….. Dr.B.R.Sarangi, J.Orissa High Court, Cuttack The 5th December, 2013/PKSahoo