Charulata Behera vs Pravati Parida & Ors

Learned counsel for the appellant has taken us through the relevant orders and enquiry reports which show that even before the appellant was engaged, as soon as respondent no.1 came to know that in the selection process appellant had secured highest marks and was likely to be engaged, she approached appellate/higher authority - respondent no.3, the Sub-Collector, Khurda. By order dated 26.12.2009, respondent no.3 noticed that appellant's sister was engaged as Anganwadi Worker in another centre and, therefore, without waiting for the order of engagement, as appellate authority - respondent no.3 set aside the orders selecting the appellant and the matter was remanded back to the Child Development Project Officer - respondent no.4 to reconsider the case of the respondent no.1 as per the Government guidelines. The Selection Committee reconsidered the relevant facts in a meeting held on 04.06.2010 attended by five members of the Selection Committee including the Sub-Collector, Khurda who had remanded the matter for reconsideration. The minutes of the proceedings of Selection Committee dated 04.06.2010 have also been signed by Sub- Collector, Khurda and they disclose that appellant was found to be the most eligible candidate for appointment. In the meantime, respondent no.1 had preferred a writ petition bearing W.P.(C)No.9300 of 2010 in which her simple grievance was that order of Sub-Collector, Khurda dated 26.12.2009 was not being implemented. That writ petition was disposed of on 20.05.2010 with a direction to implement the order of Sub-Collector within four weeks. Respondent no.1 challenged the decision of the Selection Committee dated 04.06.2010 directly through a writ petition bearing W.P.(C)No.11960 of 2010. The writ petition was dismissed on 09.08.2010 on the ground that appellant had secured more marks in the selection and there was no illegality in the selection process. A liberty, however, was granted to the respondent no.1 that as per Government guidelines, she may prefer an appeal before the Additional District Magistrate against the selection of the appellant. The respondent no.1 did not prefer any appeal before the Additional District Magistrate or any other authority and instead preferred Writ Appeal No.430 of 2010 which was allowed on 18.07.2011 by the order under appeal.

In the aforesaid facts and circumstances, we have no option but to accept the contention advanced on behalf of the appellant that the order under appeal has been passed without looking into the relevant facts and ignoring the well settled principle in respect of exercise of writ jurisdiction under Article 226 of the Constitution of India that such jurisdiction should not be exercised on mere technicalities especially if the result of such exercise will amount to perpetuation of illegality. In the present case the appointment of respondent no.1 made pursuant to order under appeal is clearly illegal as she did not have the eligibility qualification. This is also the stand of official respondents even in the counter affidavit filed before this Court.

As a result, the appeal is allowed. The impugned judgment and order of the Division Bench dated 18.07.2011 is set aside and as ordered by learned Single Judge, the writ petition preferred by the respondent no.1 shall stand dismissed. Consequently, the appellant's engagement would revive. The appellant shall be permitted to resume her work on the post of Anganwadi Worker at the concerned centre forthwith so that she may not suffer further loss of remuneration etc. unnecessarily. In the facts of the case, there shall be no order as to costs.

January 30, 2015.