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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1322  OF 2015 [Arising out of S.L.P.(C) No.10183 of 2012]

Charulata Behera        …..Appellant

Versus

Pravati Parida & Ors.          …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Heard the parties.  Leave granted.  

2. The  appellant  as  well  as  respondent  no.1  applied  in  

response to an advertisement dated 02.02.2009 for engagement  

as  Anganwadi  Worker  for  Urumukhi-3  Anganwadi  Center,  

Bhushandpur, Tangi, Odisha.  She is aggrieved by the judgment  

under appeal dated 18.07.2011 whereby the Division Bench of  

Orissa High Court set aside the order of a learned Single Judge of  

the High Court dated 09.08.2010.  The effect of the impugned  

order/judgment  is  to  allow  the  writ  petition  preferred  by  

respondent no.1 and as a result selection and appointment of the  

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appellant stands set aside and instead respondent no.1 has been  

appointed as Anganwadi Worker for the concerned centre.

3. The moot question to be answered in this appeal is whether  

the Division Bench should have allowed the writ appeal only on  

technicalities and on the basis of certain orders passed earlier  

when on facts there was no ambiguity that respondent no.1 was  

not  a  resident  of  the  concerned  centre  and  hence  lacked  the  

basic  eligibility  for  engagement  as  Anganwadi  Worker  for  the  

centre.

4. 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  

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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.

5. 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  

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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.

6. The Division Bench has interfered with the appointment of  

the  appellant  only  on  the  basis  of  appellate  authority’s  order  

dated 26.12.2009 and the order dated 20.05.2010 passed in W.P.

(C)No.9300  of  2010  in  which  the  simple  direction  was  to  

implement the remand order passed by Sub-Collector, Khurda on  

26.12.2009.  According to the Division Bench, the aforesaid two  

orders  had  not  been,  and  therefore  ought  to  be  complied,  

particularly  when  nobody  had  objected  to  those  orders  by  

preferring any review or appeal.

7. In our considered view, the Division Bench erred in ignoring  

the fact that order dated 26.12.2009 was an order whereby the  

Selection Committee was required only to reconsider the relevant  

matters  and  hence  by  completion  of  necessary  exercise  on  

04.06.2010,  the  order  of  remand  dated  26.12.2009  stood  

complied even in terms of  directions of the learned Single Judge  

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made on 20.05.2010 in W.P.(C)No.9300 of 2010.  The Division  

Bench  erred  in  presuming  that  the  remand  order  required  

rejection of appellant’s case and appointment of respondent no.1.  

The Division Bench also failed to notice that the Sub-Collector,  

Khurda who passed the order dated 26.12.2009 was a member of  

the Selection Committee and party to the decision taken in favour  

of appellant on 04.06.2010.  The Division Bench further erred in  

ignoring the case of the official respondents that respondent no.1  

lacked the eligibility qualification for selection and engagement  

because she was not a resident of the centre in question.

8. 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  

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qualification. This is also the stand of official respondents even in  

the counter affidavit filed before this Court.

9. 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.

     …………………………………….J.       [ANIL R. DAVE]

      ……………………………………..J.                  [SHIVA KIRTI SINGH]

New Delhi. January 30, 2015.

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