HIGH COURT OF ORISSA: CUTTACK W.A.No. 535 of 2011 From order dated 29.09.2011 passed by the learned Single Judge in W.P. (C) No.12246 of 2011. -------- Puspanjali Champati D/o. Bhagirathi Champati, At : Beguniamul Patna, P.O. Asarala, P.S. Bolgarh, Dist : Khurda …Appellant -Versus- Sub-Collector, Khurda and others …Respondents For Petitioner : Mr. S.P. Mishra, Sr. Advocate M/s K.C.Rajguru Mohapatra, B.Mohanty & S.Mishra For Respondents : Addl. Government Advocate (for R-1 & R-2) Mr. S.K.Das, Sr. Advocate, M/s S.Swain & O.Devdas (For R-3) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Heard and Disposed of on 01.12.2011 B.N. Mahapatra, J. This writ appeal has been filed challenging the correctness of the order dated 29.09.2011 passed by a learned Single Judge in W.P.(C) No.12246 of 2011 in which the learned Single Judge held that the order of the Sub-Collector, Khurda is just and proper and needs no interference. 2. The facts and circumstances giving rise to the present appeal in brief are that respondent No.2-Child Development Project Officer, Bolagarh (for short, “CDPO”) has issued an advertisement No.393 dated 20.11.2009 (Annexure-2) inviting applications from the intending candidates for filling up the post of Anganwadi Workers in respect of 46 Additional Anganwadi Centres including Beguniamul Patna Anganwadi Centre. In response to such advertisement, the appellant-petitioner submitted her application form along with required documents with other applicants. On 05.12.2009, the application forms were scrutinised. The CDPO published the name of all the candidates on 08.12.2009 in respect of Beguniamul Patna Anganwadi Centre where the appellant’s name found place at serial No.2 and invited public objection relating to educational qualification, residential status and caste of the candidates. When it came to the knowledge of the appellant that Damayanti Pradhan, the present respondent No.3, who was not a resident of village Beguniamul Patna, has submitted her application for the post in question, the appellant along with other villagers made a representation on 07.12.2009 to the Collector, Khurda recommended by the Sarpanch and Chairman, Zilla Parishad alleging therein that respondent No.3 could be able to obtain a residential certificate from the Tahasildar, Bolgarh even though she is not a resident of village Beguniamul Patna. Pursuant to the said representation of the appellant, the Revenue Supervisor and the CDPO, Bolagarh conducted an enquiry and submitted their report that Damayanti Pradhan is not a resident of village Beguniamul Patna and she has not married to anybody. 3. The CDPO issued engagement order dated 30.12.2009 under Annexure-6 in respect of 54 Anganwadi Centres where appellant- petitioner’s name finds place at serial No.1 as she secured highest mark against Beguniamul Patna Anganwadi Centre. Thereafter, respondent No.3- Damayanti Pradhan filed a writ petition bearing W.P.(C) No.2960 of 2010 before this Court making false allegation that Gitanjali Champati has 2 practised fraud and impersonated herself as Puspanjali Champati and applied for the said post by using the testimonials of the appellant- Puspanjali taking advantage of the fact that they are twins. The said writ petition was disposed of 03.03.2010 with an observation that the question which is required to be determined in this case is definitely recording and appreciation of evidence etc. which cannot be done effectively in a writ petition and since there is a provision for appeal in the revised Scheme of guidelines to the Sub-Collector, the respondent No.3 was given liberty to prefer appeal before the Sub-Collector. While the appellant was discharging her duty as Anganwadi Worker in respect of Beguniamul Patna Anganwadi Centre, received a notice from the Sub-Collector, Khurda to be present for hearing of the Misc. Appeal No.30 of 2010 filed by respondent No.3- Damayanti Pradhan. In response to such notice of the Sub-Collector, the appellant and other parties appeared. The appellant vehemently and seriously opposed the assertion made by respondent No.3 and submitted that no fraud has been committed by her as she has submitted all the documents of her own. The CDPO submitted an enquiry report stating that the photograph of appellant attached to the application form does not tally with the photograph of the College Admission Register. Before the Sub- Collector, Khurda, the appellant raised the question of jurisdiction of the Sub-Collector for hearing such appeal as by that time the guideline having been changed the Addl. District Magistrate has been designated as the appellate authority by the Government. In view of such submission of the appellant, the Sub-Collector vide order dated 11.06.2010 transferred the appeal to the Court of the A.D.M., Khurda fixing the date of hearing to 02.07.2010. Even though the case was transferred to the Court of the 3 A.D.M., Khurda, the final order was passed by the Sub-Collector as per direction of the A.D.M., Khurda. However, the Sub-Collector allowed the appeal filed by respondent No.3, inter alia, observing that on perusal of appeal memo, documents, written notes of argument, report of CDPO, Bolgarh, and verification of the Admission Register of Maa Sarada Devi Women’s College, Tikatala, that Gitanjali Champati was found applied for the post of Anganwadi Worker in respect of Beguniamul Patna Anganwadi Centre utilizing the name and testimonials of her sister Puspanjali Champati. With these observations, the Sub-Collector, directed the CDPO to take necessary steps as per the Government guidelines. Against that order of the Sub-Collector, Khurda the appellant filed a writ petition bearing W.P.(C) No.12246 of 2011 which was dismissed by the learned Single Judge. Hence, the present appeal. 4. Mr. S.P. Mishra, learned Senior Advocate appearing on behalf of the appellant submits that the order of the learned Single Judge has been passed on mis-representation of facts and law. The order of the appellate authority is based on the report of the CDPO, Bolagarh, who submitted her enquiry report stating therein that the photograph attached to the application form of the appellant does not tally with the College Admission Register; whereas the appellant has specifically pleaded that a black and white photograph of the year 2000 cannot give sufficient and clear picture regarding their identity in the year 2010 as because the appearance of a girl in natural course changes from time to time. This aspect was not taken into consideration either by the appellate authority or by the Hon’ble Single Judge while confirming the order of the appellate authority. The finding of the appellate authority is not based upon any clear and cogent evidence as 4 required under the law rather his finding is merely based on surmises and conjectures. It is settled position of law that the allegation of fraud must be proved beyond all reasonable doubt but not by surmises and conjectures. It is further submitted that except the report of the CDPO, there was no other single document available with the Sub-Collector, Khruda to arrive at such conclusion and as such the same is bad in law and liable to be set aside. Therefore, the observation of learned Single Judge that the findings of the Sub-Collector are not only based on the report of the CDPO but also various other documents is not correct. Since the appeal was filed much after 04.03.2010, the learned Single Judge is not correct in holding that the Sub- Collector has jurisdiction to entertain the appeal. The learned Single Judge has committed an error in holding that the provisions of Civil Procedure Code is only applicable to the Civil Suit and not to any other proceedings which resulted in miscarriage of justice. The CDPO is not expert to give opinion as to identity of the photographs. The fact remains that both the twin sisters have studied in same School and same College which was not taken into consideration by the learned Single Judge, who wrongly held that the authenticity of the School Register and the College Register are the basis of conclusion arrived at by the Sub-Collector. 5. Mr.S.K. Das, learned Senor Advocate appearing for respondent No.3 submits that the appeal is bad in law for non-joinder of necessary party, i.e., Gitanjali Champati, who was respondent No.3 in Misc. Appeal No.30 of 2010 filed before the Sub-Collector, Khurda as well as opposite party No.6 in W.P.(C) No.2960 of 2010 filed by respondent No.3. Respondent No.3 is a resident of the Anganwadi area in question and Resident Certificate was duly issued in her favour by the Revenue Officer, Bolgarh on 5 01.12.2009 in Misc. Certificate Case No.3298 of 2009. Respondent No.3 passed the HSC Annual Examination in the year 2001 in 2nd Division securing 387 marks, C.H.S.E. (Arts) Examination, 2003 in 3rd Division securing 434 marks and the Degree Examination, 2006 securing 591 marks. 6. In the Annual H.S.C. Examination, 2000, the appellant- Puspanjali Champati secured 388 marks and her twin sister Gitanjali Champati secured 365 marks in the said examination. In other words, Gitanjali Champati secured 22 marks less than respondent No.3 but the appellant secured one mark more than the respondent No.3. The dispute is that the appellant had not applied for the post of Anganwadi Worker pursuant to the advertisement dated 20.11.2009 but her twin sister Gitanjali had applied for the said post on 04.12.2009 in the name and testimonials of the appellant. In her application dated 04.12.2009, she affixed her passport size photograph but she furnished the documents including the H.S.C./+2 mark sheets relating to her twin sister, the appellant-Puspanjali Champati, who has secured one mark more than respondent No.3. On the other hand, Puspanjali Champati, the appellant is residing in her maternal uncle’s house since long. The appellant and respondent No.3 are neighbourers. The minimum qualification for Anganwadi Worker is matriculation with preference to higher percentage of marks in the said examination. Gitanjali Champati by practising fraud, impersonating herself as Puspanjali Champati, who is her twin younger sister, applied for the post in question and got the appointment, took training, received the articles required for the Centre and discharged the duties etc. fraudulently. 6 7. Pursuant to this Court’s order in earlier writ petition bearing W.P.(C) No.2960 of 2010, respondent No.3 preferred appeal and succeeded, as a result of which, the CDPO, Bolagarh vide office order dated 03.05.2011 engaged respondent No.3 as Anganwadi Worker of Beguniamula Anganwadi Centre in place of the appellant. Being aggrieved by the order of engagement dated 03.05.2011 issued by the learned Sub-Collector, Khurda, the appellant filed W.P.(C) No.12246 of 2011. The learned Single Judge confirmed the order of the Sub-Collector, Khurda holding that the Sub- Collector has passed a just and proper order, which needs no interference by this Court. The Sub-Collector on perusal of the appeal memo, documents, written notes of argument, report of the CDPO, Bolgarh and verification of records found that Gitanjali Champati applied for the post of Anganwadi Worker in question in the name and with the testimonials of Puspanjali Champati, the appellant. But in the said application, she affixed her photograph. The photograph given in the application form clearly justified the photograph of Gitanjali Champati. By efflux of time, one resemblance will not differ. The learned Sub-Collector has also taken the signature of the two sisters, their sample handwritings and recent photographs and their physical appearance in course of hearing of the appeal. On perusal of the same along with other records and with the Anganwadi Application Form with its enclosures applied by Gitanjali Champati impersonating herself as Puspanjali Champati, the Sub-Collector, Khurda came to a finding that Gitanjali Champati has committed fraud. Thus, the said finding of the learned Sub-Collector based on various other documents. The CDPO, Bolagarh has no authority to enquire for grant of residential certificate under the Rules. The CDPO and the Revenue 7 Supervisor has submitted false/fake reports in connivance with the present appellant only to victimise the respondent No.3. As such, those reports are not sustainable in the eye of law. The Tahasildar, being dissatisfied has not yet cancelled/modified the Resident Certificate issued in favour of respondent NO.3. The appellant filed a Misc. Appeal No.35 of 2010 challenging the Resident Certificate of respondent No.3 before the Sub- Collector. The learned Sub-Collector vide order dated 12.07.2010 after perusal of the records and hearing the parties found that there was no illegality in the orders of Lower Court in issuing Resident Certificate in favour of respondent No.3, and accordingly dismissed the said appeal. Thereafter, the appellant filed W.P.(C) No.14205 of 2010 challenging the said order of the learned Sub-Collector, Khurda and the same is pending consideration before this Court. At this juncture, it is wrong to say that respondent No.3 does not belong to village Beguniamul Patna. After participating in the hearing, the appellant has no right to raise objection as to the jurisdiction of the Sub-Collector when the order goes against her. Although the Appellant-Puspanjali and Gitanjali are twin sisters but some differences are there in their facial appearance. The appellant could have filed the voter identity card to substantiate her claim. 8. Learned Additional Government Advocate appearing on behalf of the State-opposite parties supports the order of the learned Single Judge, who confirmed the order of the Sub-Collector, Khurda. 9. On the rival contentions advanced by the parties, the only question that falls for consideration by this Court is as to whether Gitanjali Champati impersonating herself as Puspanjali Champati has applied for the post of Anganwadi Worker in Beguniamul Patna and got the appointment. 8 10. The facts which are not in dispute are that required qualification for appointment as Anganwadi Worker is matriculation and admittedly Puspanjali Champati, who is appellant herein has secured the highest mark than respondent No. 3. The contention of Mr. Das, that some weightage should be given to the higher qualification acquired by respondent No.3 is not acceptable for the simple reason that the advertisement or the guideline for appointment of Anganwadi Worker does not contain any such criterion. Therefore, the appellant is the eligible candidate to be appointed as Anganwadi Worker in the Anganwadi Center in question. Now the only question that arises for consideration is whether Gitanjali Champati impersonating herself as Puspanjali Champati has got appointment as Anganwadi Worker and worked as such. On 17.11.2011, the twin sisters were present before this Court. There was hardly any material difference in appearance of the two sisters except little difference in colour. They were also asked to put their signatures both in Odia and English on a plain white paper in these proceedings and the same were countersigned by their Advocates. No difference is noticed on perusal of the comparison of the signatures of the appellant with that of the signature in Vakalatnama filed. The enquiry report of the CDPO, Bolgarh reveals that on 16.04.2010 both had been to village on the allegation of respondent No.3. When the villagers were asked to identify the two sisters, the villagers expressed that they cannot distinguish them. Similarly, the Headmaster of their School also could not distinguish them. 11. In view of the above, we are of the considered opinion that the finding of the Sub-Collector, Khurda which was confirmed by the learned Single Judge in the impugned order based on the difference between the 9 photographs attached to the application form of the appellant and photograph in College Admission register cannot be allowed to sustain in the facts and circumstances of the case. 12. In the result, we set aside the impugned order dated 29.09.2011 (Annexure-1) passed by the learned Single Judge in W.P.(C) No.12246 of 2011 as well as quash the order of the Sub-Collector, Khurda by allowing this writ appeal and writ petition. The CDPO, Bolgarh is directed to give appointment to the appellant-Puspanjali Champati forthwith. 13. With the aforesaid observations and direction, the writ appeal is allowed. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. ……………………….. Chief Justice Orissa High Court, Cuttack The 1st December, 2011/skj/ss/ssd 10