Supreme Court of India

CHARULATA BEHERAversusPRAVATI PARIDA & ORS.

Citation: 2015 INSC 79
Decided: 30 January 2015
Disposal: Appeal(s) allowed
Bench: ANIL R DAVE

Holding

The Supreme Court held that the Division Bench erred in setting aside the appellant’s appointment as it failed to consider the factual eligibility and that writ jurisdiction under Article 226 must not be exercised on mere technicalities that would perpetuate an illegal appointment.

Summary

The appellant and respondent No.1 both applied for the post of Anganwadi Worker in Odisha. The selection committee initially appointed the appellant, but the Sub‑Collector remanded the case on 26‑12‑2009, leading to a reconsideration where the appellant again emerged as the most eligible candidate. Respondent No.1 filed writ petitions challenging the appointment, and the Division Bench of the Orissa High Court set aside the appellant’s appointment on the basis of the earlier remand order, appointing respondent No.1 instead. The Supreme Court held that the Division Bench ignored the factual record, including respondent No.1’s lack of residency eligibility, and wrongly presumed that the remand order required her appointment. It emphasized that writ jurisdiction under Article 226 should not be exercised on mere technicalities that would perpetuate an illegal appointment. Consequently, the Supreme Court set aside the High Court’s order, revived the appellant’s appointment, and dismissed the writ petition filed by respondent No.1.

Issues considered

Whether the Division Bench could set aside the appellant’s appointment solely on technical grounds without examining the factual eligibility of respondent No.1.
Whether the Sub‑Collector’s remand order of 26‑12‑2009 mandated the rejection of the appellant’s appointment and the appointment of respondent No.1.
Whether exercising writ jurisdiction under Article 226 to enforce a technically non‑compliant order would amount to perpetuating an illegal appointment.

Legislation cited

Constitution of Indias. Art.226

Subjects

service lawappointmentAnganwadi Workerwrit jurisdictionArticle 226eligibilityselection processillegal appointmentadministrative law

Judgment

                       [2015] 1 S.C.R. 844


A                      CHARULATA BEHERA
                                 v.
                     PRAVATI PARIDA & ORS.
                  (Civil Appeal No. 1322 of 2015)
                        JANUARY 30, 2015
B
         [ANIL R. DAVE AND SHIVA KIRTI SINGH, JJ.]

        Service Law:

C      Appointment - As Anganwadi Worker - Of the appellant
  - Set aside by appellate authority vide order dated
  26.12.2009- High court in the writ petition filed by respondent
  No. 1 passed direction to implement the order dated
  26. 12. 2009 - Writ petition challenging the decision of
D Selection Committee dismissed on the ground that there was
  no illegality in the selection process of the appellant - Writ
  appeal - Appointment of appellant set aside on the ground
  that the order dated 26. 12. 2009 was not complied with - As a
  result respondent No. 1 appointed - On appeal, held: The
E High Court order was passed without looking into the relevant
  facts - Jurisdiction u!Art. 226 should not be exercised on
  mere technicalities especially if the result of such exercise
  amounted to perpetuation of illegality - Appointment of
  respondent No. 1 was illegal as she did not have the eligibility
F qualification for appointment to the post - Appellant's
  appointment revived - Constitution of India, 1950 - Art. 226.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No(s),
    1322 of 2015.

G       From the judgment and Order dated 18.07.2011 of the
    High Court of Orissa at Cuttack in W. A. No. 430 of 2010.

        Shwetaketu Mishra, S. K. Das (For V. K. Monga) for the
    Appellant.

H                                844
 CHARULATA BEHERA v. PRAVATI PARIDA & ORS. 845


    Avijit Patnaik, S. Mohanty (For Amarjit Singh Bedi),             A
shibashish Misra for the Respondents.

    The Judgment of the Court was delivered by.

    SHIVA KIRTI SINGH, J. 1. Heard the parties. Leave
granted.                                                             B

     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          c
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           D
appointment of the 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       E
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.                                               F
     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             G
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 ttrat appellant's sister was engaged as Anganwadi
              '
Worker in another   centre and, therefore, without waiting for the
                                                                     H
    846      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A 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
B 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
c 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
D 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
E 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
F 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
G 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
H
 CHARULATA BEHERA v. PRAVATI PARIDA & ORS.                       847
           [SHIVA KIRT! SJNGH, J.]
implement the remand order passed by Sub-Collector, Khurda               A
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.
                                                                         B
     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             C
learned Single Judge made on 20.05.2010 in VV.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            D
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           E
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
                                                                         F
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 shoul9 not
be exercised on mere technicalities especially if the result of
such exercise will amount to r:>erpetuation of illegality. In the
present case the appointment of respondent no. f made                    G
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.

     9. As a result, the appeal is allowed. The impugned                 H
   848         SUPREME COURT REPORTS             [2015] 1 S.C.R.


A 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
8 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.
    Kalpana K. Tripathy                              Appeal allowed.

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