REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6158 OF 2008
(Arising out of SLP (C) No. 13164 of 2006)
DIPITIMAYEE PARIDA ... APPELLANT
Versus
STATE OF ORISSA & ORS. ...
RESPONDENTS
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Appellant is before us aggrieved by and dissatisfied with the
judgment and order dated 10.4.2006 passed by a Division bench of the
High Court of Orissa at Cuttack dismissing an appeal against the
judgment and order dated 30.3.2005 passed by a learned single judge of
the said Court in Writ Petition (C) No. 1952 of 2003 allowing the writ
application filed by respondent No. 5 herein.
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3. The State of Orissa in terms of the Integrated Child Development
Scheme of the Central Government issued an advertisement for
appointment of Anganwadi Workers. A check list laying down
guidelines for selection of Anganwadi Workers was also issued. The
Constitution of the Committee as also the marks to be allotted on
different items were specified therein. A Circular Letter dated 7.10.1998
was furthermore issued by the W.E.C.D. Department of Government of
Orissa for selection of Anganwadi Workers laying down minimum
educational qualifications and as also other criteria therefor; the relevant
clause whereof reads as under:
“8) Candidates who have been included in the
panel mentioned above, will be called for an
interview and marks will be awarded to them in
the following manner:
a) Percentage of marks obtained in that
Matriculation examination or percentage
of marks obtained in the written test for
non-matriculates as may be relevant.
b) 3 marks if the candidate is intermediate or
equivalent or has higher qualification.
c) 5 marks if the candidate belongs to S.C.
and S.T. category.
d) 3 marks if she is married and additional 3
marks if she is a widow or a divorcee (i.e.
where marriage has been dissolved by a
court degree) provided she resides in that
village.
e) Marks to be awarded for experience out
of a maximum of 5. The experience
relevant for this purpose will be
3experiences in any area of the duties of
Anganwadi worker acquired in
Government employment or in
employment in a programme under a
registered voluntary organization funded
by the State/Central Govt. for this
purpose.
f) Marks obtained in the interview which
will be out of a maximum of 10 marks.
Note:- Marks awarded to candidate in
accordance with clause (a) to (e) shall be
notified prior to holding of interview.”
Rule 10 provides for composition of Selection Committee.
Different Selection Committees were constituted for rural and urban areas
separately.
4. Appellant filed an application for recruitment as an Anganwadi
Worker, the last date wherefor was 20.9.2000. Admittedly, at that time,
she was not married. She was married in 2001. She secured 43% in HSC
Examination + 3 marks in Intermediate and 9 marks in viva voce, totaling
55 marks. However, she was awarded 3 more marks on the ground that
she got married although as noticed hereinbefore she on the last specified
date for filing of the application was not married.
Respondent No. 5 also filed an application for her recruitment as
Anganwadi Worker. She secured 49.8% marks in HSC examination, + 3
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marks in Intermediate, + 3 marks for marriage, + 2 marks for viva-voce
examination, thus, totaling 57.8% marks.
5. Contending that the Selection Committee had no jurisdiction to
award 3 marks to appellant, respondent filed a writ petition before the
High Court of Orissa. The said writ petition was allowed by a learned
single judge of the said Court by a judgment and order dated 30.3.2005,
opining:
“A candidate who acquired the prescribed
qualifications or extra qualification subsequent
to such prescribed date cannot be considered at
all. Admittedly on the date of publication of the
Notification and the date fixed for submission
of application the petitioner was not married
though she got married subsequently. The
authorities awarded three marks in her favour.
In view of the ratio of the Supreme Court
judgment in the case of Ashok Kumar Sharma
(supra), the petitioner is not entitled to the said
three marks and only the eligibility and the
qualifications possessed by the opposite party
no. 5 on the date prescribed in the notification is
to be taken into consideration. In view of the
clear position of law, I find that the authorities
acted illegally and with material irregularity in
awarding extra three marks to the opposite party
no. 5. If the aforesaid three marks were
deducted from 58% then the opposite party no.
5 would secure 55% marks whereas the
petitioner would secure 57.8% marks. This
aspect was not kept in mind by the Collector.
Therefore, I have no hesitation to set aside the
order passed by the Collector and direct that the
petitioner be engaged as an Anganwadi Worker
in the centre in question, if there is no other
impediment.”
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As indicated hereinbefore, on an intra court appeal preferred
thereagainst by the appellant, the Division Bench passed the impugned
judgment dismissing the same.
6. Mr. Anukul Chandra Pradhan, learned counsel appearing on behalf
of appellant would submit that the question as to whether a woman is
married or not although not wholly relevant, but being not an essential
qualification for appointment as an Anganwadi Worker, the learned
single judge as also the Division Bench of the High Court committed a
serious error in passing the impugned judgments.
7. Mr. Shibashish Misra, learned counsel appearing on behalf of the
contesting respondent, on the other hand, would support the impugned
judgment contending that the Selection Committee could not have
granted three marks in favour of the appellant on the premise that she was
married.
8. The matter relating to recruitment of Anganwadi Workers is not
governed by any statute. Recruitments are made pursuant to a Scheme
framed by the Central Government. The State, therefore, while making
recruitments in such projects in exercise of its jurisdiction under Article
162 of the Constitution of India, may issue such guidelines and/or
circulars as it may seem fit and proper.
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The said guidelines are ordinarily binding on all the functionaries
working in terms of the `scheme’ including the Selection Committees
constituted for recruitment of Anganwadi worker.
9. We have noticed hereinbefore that a Circular Letter had been
issued by the State Government on 7.10.1998; the validity whereof is not
in question. The manner in which the marks are to be distributed has
been laid down in clause 8 of the said circular letter.
Sub-Clause (d) of Clause 8 of the said Circular postulates that three
marks are to be granted if the candidate is a married woman and
additional three marks are to be granted if she is a widow or a divorcee.
As the Scheme deals with the welfare of the children, it is expected
that a married woman would be able to deal with them more efficiently;
widows and divorcees are granted additional marks in order to give
incentive to them to work with the children.
Ten marks had been fixed for viva-voce test. The marks which
have to be awarded in terms of clause 8 (a) to (e) were to be notified prior
to holding of interview.
The reason behind the same appears to be invoking the principle of
transparency in the Selection Process. Thus, as in terms of clause 8(a) to
(e), appellant got 55% marks; the Selection Committee could not have
7
awarded her three additional marks on the premise that she was married.
Even before the interview such marks could not have been awarded as the
authorities were not expected to be aware that she was married after filing
of the application for recruitment. It may or may not be for appellant to
bring the said subsequent event to the notice of the competent authority
so as to enable them to consider that although on the last date for filing of
the application she was not married but was married subsequently. We
say so because in terms of the rules it was for the competent Committee
to award marks in terms of clause 8(a) to (e) of the said Circular Letter
dated 7.10.1998. The Selection Committee could not have done so as it
was merely authorized to hold the viva-voce test wherefor only 10 marks
were specified.
10. We had adverted to this aspect of the matter so as to enable us to
consider the submissions made by Mr. Pradhan that the criterion of one’s
marital status was not relevant. It is one thing to say that the criteria fixed
by the State for the purpose of recruitment of Anganwadi Workers are
illegal or ultra vires but it is another thing to say that although they are
valid, in their application some relaxation could be granted. When marks
are fixed specifying the criteria in the rule, the same should be strictly
followed. The Selection Committee was not conferred with any power to
grant relaxation. Stages for grant of marks having been fixed; one
Committee could not usurp the jurisdiction of the other. If the contention
8
of respondents is correct, then, for all intent and purport, the marks
awarded by the Interviewing Committee to the appellant would be 12 out
of 10, which was impermissible.
11. This Court in Pramod Kumar v. U.P. Secondary Education Services
Commission & ors. [2008 (4) SCALE 580] held:
“…Appellant, however, has filed a writ
application for issuance of or in the nature of a
writ of mandamus. He, therefore, must establish
existence of a legal right in himself and a
corresponding legal duty in the State. If he did
not possess the requisite qualification to hold a
post, he could not have any legal right to
continue. It was, therefore, immaterial as to
why and when the said proceeding had been
initiated against him.”
12. Even otherwise, ordinarily the qualification or extra-qualification
laid down for the recruitment should be considered as on the last date for
filing of the application. This has been so held in Rekha Chaturvedi v.
University of Rajasthan & ors. [1993 Supp. (3) SCC 168], stating:
“The contention that the required qualifications
of the candidates should be examined with
reference to the date of selection and not with
reference to the last date for making
applications has only to be stated to be rejected.
The date of selection is invariably uncertain. In
the absence of knowledge of such date the
candidates who apply for the posts would be
unable to state whether they are qualified for the
posts in question or not, if they are yet acquire
9the qualifications. Unless the advertisement
mentions a fixed date with reference to which
the qualifications are to be judged, whether the
said date is of selection or otherwise, it would
not be possible for the candidates who do not
possess the requisite qualifications in praesenti
even to make applications for the posts. The
uncertainty of the date may also lead to a
contrary consequence, viz., even those
candidates who do not have the qualifications in
praesenti and are likely to acquire them at an
uncertain future date, may apply for the posts
thus swelling the number of applications. But a
still worse consequence may follow, in that it
may leave open a scope for malpractices. The
date of selection may be so fixed or manipulated
as to entertain some applicants and reject others,
arbitrarily. Hence, in the absence of a fixed date
indicated in the advertisement/notification
inviting applications should be judged, the only
certain date for the scrutiny of the qualifications
will be the last date for making the applications.
We have, therefore, no hesitation in holding that
when the Selection Committee in the present
case, as argued by Shri Manoj Swarup, took into
consideration the requisite qualifications as on
the date of selection rather than on the last date
of preferring applications, it acted with patent
illegality, and on this ground itself the
selections in question arc liable to be quashed.”
13. Yet again, in Ashok Kumar Sharma & Ors. v. Chander Shekhar &
Anr. [1997 (4) SCC 18], this Court held:
“One reason behind this proposition is that if it
were known that persons who obtained the
qualifications after the prescribed date but
before the date of interview would be allowed to
appear for the interview, other similarly placed
persons could also have applied. Just because
10some of the person had applied notwithstanding
that they had not acquired the prescribed
qualifications by the prescribed date, they could
not have been treated on a preferential basis.”
{See also Ashok Kumar Sonkar v. Union of India & ors. [(2007) 4
SCC 54 Para 20], Rajasthan Public Service Commission v. Kaila Kumar
Paliwal and Anr.[(2007) 10 SCC 260 Para 20 and 21]}
14. In this view of the matter, we do not find any legal infirmity in the
impugned judgment. The appeal is dismissed accordingly. There shall,
however, be no order as to costs.
……………………………….J.
[S.B. Sinha]
……………………………….J.
[Cyriac Joseph]
New Delhi;
OCTOBER 20, 2008