HIGH COURT OF ORISSA: CUTTACK W.A. No.571 of 2011 This appeal arises out of order dated 03.11.2011 passed by the learned Single Judge in W.P.(C) No.23288 of 2010. ---------Smt. Tejaswini Panigrahi, W/o Shri Kailash Chandra Tripathy, AT: Jamchhapar, PO: Seledi, PS: Binka, Dist: Sonepur. … Appellent … Respondents -Vrs.Government of Odisha and others For Appellant : For Respondents : M/s Goutam Misra & M.Panda M/s. Pratyusha, G.R.Mohapatra & A.Dash. ----------- P R E S E N T: THE HON’BLE JUSTICE SHRI I.MAHANTY AND THE HON’BLE JUSTICE SHRI B.N. MAHAPATRA ------------------------------------------------------------------------------------------Date of Judgment :
13. 09.2013 ------------------------------------------------------------------------------------------B.N. Mahapatra, J.The Appellant in the present Writ Appeal assails the legality/validity of the order dated 03.11.2011 passed by the learned Single Judge in W.P.(C) No.23288 of 2010 dismissing the Writ Petition and upholding the order dated 26.11.2010 passed by respondent No.3Additional District Magistrate, Subarnapur in rejecting selection of the appellant as Anganwadi Worker for Jamchhapar Anganwadi Centre”
2. The fact of the case in a nutshell is that respondent No.2- Child Development Project Officer, Binka (for short, ‘the CDPO’) issued an Advertisement on 14.01.2010 (Annexure-1) inviting applications for selection of Anganwadi Workers for various Anganwadi Centres including Jamchhapar Anganwadi Centre. In the said Advertisement, it was specified that the candidates were to submit their application forms on working days from 10 AM to 5 PM till 31.01.2010 in the office of respondent No.2. Pursuant to the above Advertisement, appellant submitted her application form on 29.01.2010 along with all required documents and certificates as mentioned in the advertisement for selection of Anganwadi Worker for Jamchhapar Anganwadi Centre. Respondent No.5 submitted her incomplete application form, i.e., without Nativity Certificate for the above Anganwadi Centre. Respondent No.2, after verification of applications of Jamchhapar Anganwadi Centre, vide Notification No.138 dated 05.02.2010 invited objections against candidates short-listed in the said Notification. In the said Notification, appellant and respondent No.5 were both short-listed for Jamchhapar Anganwadi Centre. The Selection Committee headed by the Sub-Collector, Sonepur-respondent No.4 on 07.04.2010 met for selection of Anganwadi Workers for various Anganwadi Centres as advertised under Annexure-1. As the respondent No.5 was not issued with a Nativity Certificate within the date line of filing of application form, which was issued by the Additional Tahasildar, Binka on 01.02.2010, the Selection Committee did not consider her candidature though respondent No.5 had secured the 3 highest point. Pursuant to the result of the Selection process, the CDPO vide order dated 16.04.2010, selected the appellant as Anganwadi Worker for Jamchhapar Anganwadi Centre, as she was the only eligible and successful candidate. Thereafter, the appellant immediately joined on receiving the order of her selection. While the appellant was discharging her duties to the utmost satisfaction of all concerned, respondent No.5 preferred an appeal before respondent No.3-Additional District Magistrate, Subarnapur vide A.W.W. Appeal Case No.88 of 2010, challenging the selection and engagement of appellant as Anganwadi Worker, Jamchhapar Anganwadi Centre. The sole ground of challenge of selection of the respondent no.5 was that she was more qualified than the appellant but her application was rejected at the time of selection as the Nativity Certificate was submitted after the last date of submission of application forms. The further case of respondent No.5 was that the last date of receipt of the application was fixed to 31.01.2010 which was a Sunday. Thus, she submitted her Nativity Certificate on 01.02.2010. Respondent No.3 vide his order dated 26.11.2010 allowed the appeal of respondent No.5 with the observation that as 31.01.2010, which was the last date of receipt of the application form was a Sunday, the next working day should have been treated as the last date of receipt of the application. Further, respondent No.3 held that as respondent No.5 had applied on 30.01.2010, i.e., prior to the last date but without a Nativity Certificate, her application should not have been rejected merely on the ground that the Nativity Certificate was produced on 01.02.2010. Pursuant to the above order of 4 respondent No.3-ADM, Subarnapur, respondent No.4-Sub-Collector, Sambalpur by his order dated 24.12.2010 directed for disengagement of the appellant/petitioner. Pursuant to the direction of respondent No.4Sub-Collector, respondent No.2 also issued order of the even date to the appellant to hand over the charge.
3. Being aggrieved by the order dated 26.11.2010 (Annexure-7), the appellant assailed the same in W.P.(C) No.23288 of 2010, which was dismissed by a learned Single Judge of this Court vide order dated 03.11.2011 under Annexure-11. Hence, the present appeal.
4. Mr.M.Panda, learned counsel appearing on behalf of the appellant submitted that the learned Single Judge dismissed the Writ Petition without realizing/considering/appreciating the fact that as on the last date stipulated in the advertisement, respondent No.5 was not eligible and she had not got any Nativity Certificate at all, which was procured after the cut-off date prescribed in the advertisement, i.e., after 31.01.2010. The application submitted by respondent No.5 on 30.01.2010 without the required Nativity Certificate was incomplete. Therefore, the Selection Committee could not have accepted such an incomplete application by surpassing the laid down principles of law vis-à-vis the Anganwadi Worker Guidelines which mandate that an Anganwadi Worker should be a resident of the Anganwadi Centre for which she is applying. After submission of incomplete application, respondent No.5 should not have been allowed to rectify her mistake by curing the defect and submitting the Nativity Certificate, which is obtained beyond the last date 5 of submission of application. Respondent No.5 had also not given any undertaking to produce such Nativity Certificate on a subsequent date. As per the conditions stipulated in the Advertisement, every applicant interested for the post of Anganwadi Worker should file her application within 31.01.2010. It is an admitted fact that the application filed by respondent No.5 was incomplete as on 30.01.2010. Nativity Certificate of the respondent No.5 was not in existence till 30.01.2010. Thus, at the time of application, respondent No.5 was not eligible for the post of Anganwadi Worker for the Centre in question.
5. Further, placing reliance on the decision of this Court in the case of Madhumita Das Vs. State of Orissa and others, 100 (2005) CLT 66.it was submitted that qualification of a candidate has to be adjudged as on the date of filing of the application and therefore respondent No.5 could not have been engaged as Anganwadi Worker for lack of eligibility. The Anganwadi Workers do not carry out any functions of the State. They do not hold any post created under any statute. Hence, the recruitment rules ordinarily applicable to the employees of the State are not applicable to the case of Anganwadi Workers. Therefore, the learned Single Judge has committed wrong by applying the provisions of the General Clauses Act and by holding that when 31.01.2010 was a Sunday then 01.02.2010 was to be considered as last date of submission of application forms. Learned Single Judge, while passing the impugned order, failed to appreciate that the present appellant has been working in the said Anganwadi Centre for the past one and half years and was otherwise eligible in all respects. The 6 revised Guidelines for selection of Anganwadi Workers stipulate that “a candidate once selected and engaged to work as Anganwadi Worker will ordinarily continue to work till satisfactory discharge of duties”.. In the present case, no dissatisfaction has ever been attributed against the appellant’s duty as Anganwadi Worker. Hence, the disengagement of the appellant is unjustified. Concluding his argument, Mr.Panda submitted for quashing of the order dated 03.11.2011 passed by the learned Single Judge in W.P.(C) No.23288 of 2011 under Annexure-11 and order dated 26.11.2010 passed by respondent No.3 in A.W.W. Appeal Case No.88 of 2010 under Annexure-7 and to allow the appellant to continue in her service as Anganwadi Worker for Jamchhapar Anganwadi Centre in the district of Sonepur.
6. Mr. Pratyusha, learned counsel appearing for respondent No.5 submitted that respondent No.5 submitted her application on 30.01.2010 without Nativity Certificate as the same was not issued to her. It is further submitted that the appellant has secured only 43.2% marks where respondent No.5 has secured 47.6% marks. Apart from that, respondent No.5 is otherwise more suitable. Thus, respondent No.5 is more meritorious than the appellant. The Selection Committee did not consider the candidature of respondent No.5 on the ground that the Nativity Certificate was not enclosed with the application form submitted on 30.01.2010; therefore they have selected the appellant. Learned Single Judge has analyzed the fact and law and come to the conclusion that there was no infirmity in the decision taken by the appellate authority. 7 Decision of the Appellate Authority being in consonance with the law does not call for any interference. Admittedly, according to the Notification, the last date to furnish all the documents was 31.01.2010, i.e., Sunday, which was a holiday. Respondent No.5 therefore submitted her Nativity Certificate on the very next day, i.e., 01.02.2010, which was a working day. Thus, the act of respondent No.5 is protected under Section 10 of the General Clauses Act. In support her contention, learned counsel for respondent No.5 relied upon the judgments of the Hon’ble Supreme Court in Mohd. Ayub Vrs. State of U.P. and others, 2010 (1) CLR (SC) 179 and Huda and another Vs. Babeswar Kanhar and another, 2005 (1) SCC 191.Concluding her argument, Ms. Praytusha submitted for dismissal of the Writ Appeal.
7. On the rival contentions the only question that falls for consideration by this Curt is as to whether the learned Single Judge is right in holding that since the last date of submission of application form for the post in question fell on Sunday, which was a holiday, the next working day should be treated as the last date and if an application was filed on that day, the same should be treated as valid application and filed within the cut-off date?.
8. Undisputed facts in the present case are that on 14.01.2010, respondent No.2-CDPO, Binka issued an advertisement inviting applications for selection of Anganwadi Workers for various Anganwadi Centres including Jamchhapar Anganwadi Centre. In the said Advertisement, it was specified that applications for engagement as 8 Anganwadi Workers shall be accepted by the said CDPO till 31.01.2010 during working days between 10 AM to 5 PM. In the present case, on 29.01.2010, the appellant filed her application along with all documents; however respondent No.5 submitted her application on 30.01.2010 without the Nativity Certificate, which was produced on 01.02.2010. It is also not in dispute that the appellant had secured only 43.2% marks whereas respondent No.5 had secured 47.6% marks. Despite the same, the Selection Committee did not select respondent No.5, as she had not submitted her application along with the Nativity Certificate on 30.01.2010 and the same was produced on 01.02.2010. The Selection Committee selected the appellant even though she secured less marks than respondent No.5. The Appellate Authority, i.e., ADM, Subarnapur before whom respondent No.5 filed A.W.W. Appeal Case No.88 of 2010 held that 31.01.2010 being a Sunday, the next working day, i.e., 01.02.2010 should have been treated as last date of receipt of the application form. The ADM further held that respondent No.2-CDPO, Binka has published in her Notification No.138 dated 05.02.2010 for inviting objections as per Guidelines Sl. No.7(ii)(d) indicating the name of respondent No.5. Hence, it would be presumed that her name had duly been accepted by the Selection Committee. With this finding, the appeal was allowed and selection of the appellant was set aside. Learned Single Judge also came to the conclusion that 31.01.2010 being a holiday, applying principles of natural justice and rule of prudence respondent No.5’s application should have been accepted on 9 the very next working day, i.e., 01.02.2010. With this observation, learned Single Judge has confirmed the decision of respondent No.3-ADM, Subarnapur, who has allowed the appeal of respondent No.5.
9. The order of the First Appellate Authority, which has been extracted in the order of the learned Single Judge reveals that respondent No.5 produced all the documents even the photocopy of the identity card along with her application dated 30.01.2010 but without Nativity Certificate. Learned Single Judge observed that “obviously, when the petitioner filed her application on 30.01.2010, she could not get her Nativity Certificate, though she had applied for the same much before, 31.01.2010 being a holiday”.. There is no denial to the above fact by the appellant. Moreover, had 31.01.2010 not been a holiday, respondent No.5 could have obtained the Nativity Certificate on that day which she obtained and submitted on the next day, i.e., 01.02.2010.
10. In the instant case, there is no dispute that the last date for submitting application was 31.01.2010 which was a holiday on account of Sunday and on the next date the petitioner filed her nativity certificate.
11. At this juncture, it would be profitable to refer to Section 10 of the General Clauses Act, which reads as follows:
“10. Computation of time.- (1) Where, by any [Central Act]. or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or Office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is 10 done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the [Indian Limitation Act, 1877 (15 of 1877]., applies. (2) This Section applies also to all [Central Acts]. and Regulations made on or after the fourteenth day of January, 1887.”
. Thus, in view of the above provision of the General Clauses Act, the act of respondent No.5 in filing Nativity Certificate on 01.02.2010 shall be considered as done in due time.
12. Hon’ble Supreme Court in the case of Huda (supra) held as under:“5. What is stipulated in clause 4 of the letter dated 30-10-2001 is a communication regarding refusal to accept the allotment. This was done on 28-11-2001. Respondent 1 cannot be put to loss for the closure of the office of HUDA on 112-2001 and 2-12-2001 and the postal holiday on 30-11-2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari v. Ramasami Reddi1). The underlying object of the principle is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally v. Donzelle) Every consideration of justice and expediency 11 would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex not cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the forums below. However, the rate of interest fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 3-12-2001 i.e. the date on which the letter was received by HUDA.”
13. The matter can be looked at from a different angle. Law is well-settled that the Court has to consider the scope and application of doctrine of “lex not cogit at impossibilia”. (the law does not compel a man to do what he cannot possibly perform) and doctrine of “impossibilium nulla obligation est”. (the law does not expect the party to do the impossible). [See Kishoe Jha Vs. Mahaveer Prasad and others, (1999) 8 SCC 266].
14. The Hon’ble Supreme Court in Mohammed Gazi Vs. State of M.P. and others, (2000) 4 SCC 34.held as under:“7. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit — an act of the court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex not cogit ad impossibilia — the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the 12 consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey and Gursharan Singh v. New Delhi Municipal Committee.”
15. The Hon’ble Supreme Court in Gujarat Assembly Election Matter, (2002) 8 SCC 23.held as under “The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex not cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse.”
16. The law is understood to disclaim all intention of compelling to impossibilities and the administration of laws must adopt the general exception in the consideration of all particular cases. Therefore, there are implied obligations not to force a person to do something which is rendered impossible by causes beyond his control. (Vide Hick Vs. Rodocanachi, 1899 (2) QB 626.17. Admittedly, in the present case, the last date for submission of application was 31.01.2010, which was a holiday and therefore, the last date of submission of application shall be treated as the next working day, i.e., 01.02.2010 on which date respondent No.5 produced the Nativity 13 Certificate. Therefore, as on 01.02.2010, the application filed by respondent No.5 was complete in all respects. The position would have been different if 31.01.2010 would not have been a holiday and respondent No.5 filed her Nativity Certificate on 01.02.2010.
18. The decision of this Court in Madhumita Das (supra) has no application to the present case as the fact of that case is completely different from the facts of the present case. In that case, the petitioner did not submit her application complete in all respect by the last date of receipt of the application. Therefore, this Court did not find any infirmity in the action of the Commissioner in rejecting application of the petitioner in that case and not calling her for interview. However, in the present case, as stated above, the last date fixed for submission of application forms was a holiday. Therefore, the next working day is treated as last date for filing of the application forms and on that day wanting Nativity Certificate was filed. Thus, the decision of this Court in the case of Madhumita Das (supra) is of no help to the appellant.
19. Similarly, the decision of Hon’ble Supreme Court in Ashok Kumar Sonkar Vs. Union of India (2007) 4 SCC 5.is not similar to the facts of the present case. In that case the Hon’ble Supreme Court has not decided the validity of any application made for engagement in a post on the next working day of the cut-off date, which was a holiday. Therefore, this case is of no help to the appellant.
20. For the reasons stated above, we do not find any illegality in the order of the learned Single Judge dated 03.11.2011 passed in W.P.(C) 14 No.23288 of 2010 in rejecting the appellant/petitioner’s Writ Petition and upholding the order of the Additional District Magistrate dated 26.11.2010 passed in A.W.W. Appeal Case No.88 of 2010 who rejected the selection and engagement of the appellant as Anganwadi Worker for Jamchhapar Anganwadi Centre.
21. In the result, the Writ Appeal is dismissed. ………………………… B.N. Mahapatra,J.I. Mahanty,J.I agree. ………….…………. I.Mahanty,J.Orissa High Court, Cuttack The 13th September, 2013/ss/ssd/skj.