ORDER
S.B. Roy, C.J.
1. The appellant in this letters patent appeal calls in question the legality of the order dated 10.1.2005 passed in W.P.(C) No. 12290 of 2004 by the learned Single Judge of this Court.
2. The appellant was the writ petitioner in the above mentioned writ application challenging the order dated 1.11.2004 passed by the Collector, Nayagarh wherein the Collector, Nayagarh directed to conduct a fresh interview of the candidates for appointment as Anganwadi Worker for Govindpur Centre.
3. It is revealed from the facts of the case that in the writ petition, the opp. party No. 5, namely, Mamini Sarangi who is respondent No. 5 in this appeal previously approached this Court in W.P.(C) No. 7136 of 2004. The same was disposed of by order dated 30.7.2004 directing the Collector, Nayagarh to cause an enquiry by calling for the records of the Selection Committee and issuing notice to the persons who may be affected by the enquiry and to pass a reasoned order after such enquiry (emphasis supplied). The appellant herein as well as respondent No. 5 were noticed by the said Collector to appear before him to hold the enquiry pursuant to the direction of this Court. The said Collector after hearing the appellant and the respondent No. 5 passed the order dated 1.11.2004 directing fresh interview to be held taking into consideration the applications already received earlier for Govindpur Anganwadi Centre. The relevant portion of the said order dated 1.11.2004 is quoted hereunder:
"xxx xxx xxx On perusal of the records, it is revealed that in the pre-interview mark Pramodini Rath has secured 49.555 marks whereas Mamini Sarangi has secured 47.857 marks. Mamini Sarangi has been awarded extra three marks for being the widow as per the rule. The viva voce test was conducted by the Selection Committee consisting of Chairman, Panchayat Samiti, Medical Officer, PHC, DSWO, CDPO and SEO of the Block.
For the interview marks, it is seen that while four members have awarded 9 marks each to Manini Sarangi out of 10, the C.D.P.O. has awarded 3 marks. Whereas she has awarded 9 marks to Pramodini Rath. From the above indiscriminate marking by CDPO, it is revealed that she has awarded less mark to Mamini Sarangi with mala fide intention.
Thus, I sense foul play by the CDPO in selection process. Hence, it is ordered that fresh interview should be held taking into consideration the application already received earlier for Govindpur A.W. Centre.
Sd/-
Collector, Nayagarh.”
4. The appellant challenged the said order of the Collector in the aforementioned W.P.(C) No. 12290 of 2004 on the ground that the finding of the Collector, that the C.D.P.O. having awarded 9 marks to the appellant in the interview has acted with mala fide intention, is not supported by any material available before him and there is absolutely no basis for the said finding. The appellant further contended in the writ petition that the observations of the Collector made in his order dated 1.11.2004 impugned in the said writ petition, regarding the fact that the father-in-law of the appellant was working as Pujari and his husband is working in a private shop at Nayagarh, were absolutely uncalled for and had no nexus with regard to the enquiry which was directed to be conducted by this Court regarding validity of the process of selection of the appellant for being appointed as Anganwadi Worker.
5. Mr. Sahoo, learned counsel for the appellant submitted that the conclusion of the Collector, Nayagarh in the impugned order dated 1.11.2004 which was sought to be quashed in the writ application is ex facie illegal and unsustainable on the face of it. He submitted that finding of the Collector that there was indiscriminate marking by the C.D.P.O. in awarding 9 marks to the appellant in the interview and such award of marks was with mala fide intention, is not based on any materials available before the Collector. He further contended that it is not permissible under law to hold the action of an authority to be mala fide, without specific pleading and discharge of onus of proof by the party alleging such mala fide and without affording opportunity to the concerned authority whose action is held to be mala fide, to explain his conduct. Mr. Sahoo, therefore, submitted that the learned Single Judge in the impugned order dated 10.1.2005 while dismissing the writ petition has misdirected himself in observing as follows :
“After considering the entire scenario and after hearing the parties, I find no infirmity in the order passed by the Collector, Nayagarh vide Annexure-3 and I am, therefore, not inclined to entertain this writ petition and direct that fresh interview should be held as directed by the Collector taking into consideration of applications already received earlier for Govindapur Anganwadi Centre and the said selection shall be made keeping in view the provisions of the Scheme as expeditiously as possible.
With the aforesaid observation, this writ petition is dismissed.”
6. We have perused the Annexures made to the writ application and more specifically the order dated 1.11.2004 passed by the Collector, Nayagarh which was sought to be quashed in the writ application (W.P. (C) No. 12290 of 2004.) From the above quoted observation made by the learned Single Judge, the sole question that arises for our consideration in this appeal is as to whether the learned Single Judge was correct in holding that there is no infirmity in the order passed by the Collector, Nayagarh under Annexure-3 to the writ application.
7. On a reading of the order of the Collector in Annexure-3 to the writ application, it is clear that just because the C.D.P.O. awarded 9 (nine) marks to the appellant and 3 (three) marks to the respondent No. 5 in the interview, the Collector came to a conclusion that the said action of the C.D.P.O. amounts to indiscriminate marking and awarding less marks to the respondent No. 5 was with mala fide intention. It also appears that the C.D.P.O. was not called by the Collector to disclose the reason for which she awarded more marks to the appellant and less marks to the respondent No. 5 in the viva voce test.
8. In the case of The State of Punjab and Anr. v. Gurdial Singh and Ors., , the Supreme Court explained what is mala fide in the jurisprudence of power and answered as follows :
“bad faith which invalidates the exercise of power -sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfaction – is the attainment of ends beyond the sanctioned purpose of power by simulation or pretension of gaining a legitimate goal…. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which power is vested, the Court calls it a colourable exercise….”
9. It is trite to state that there must be specific pleadings regarding mala fide on the basis of which one can arrive at such conclusion. Mere use of the words, such as, “mala fide”, “corruption”, “corrupt practice”, “colourable exercise of power” is not enough. Law requires full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. In the present case, the records do not disclose that there was any specific allegation of mala fide made against the C.D.P.O. by the respondent No. 5 inasmuch as it appears that before the Collector came to the conclusion that the C.D.P.O. has acted mala fide and in an indiscriminate manner by awarding less marks to the respondent No. 5 and more to the appellant, no opportunity was given to the C.D.P.O. to explain her conduct. We are also of the view that unless cogent materials are available, the marks awarded by any member of the selection committee in a viva voce test, to a particular candidate cannot be called in question. As early as 1964, in the case of S. Pratap Singh v. State of Punjab, , the Supreme Court observed:
“We must, however, demur to the suggestions that mala fide in the sense of improper motive should be established only by direct evidence, that is, that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts.”
10. Considering the facts of the present case and the submissions made by the learned counsel for the parties as we find that there were no materials available before the Collector to hold the action of the C.D.P.O. to be mala fide inasmuch as no allegations to that effect were made by the respondent No. 5 and also the said Collector has assigned no reasons in support of the said conclusion in spite of the specific direction of this Court in its order dated 30.7.2004 passed in W.P.(C) No. 7136 of 2004, the order of the Collector impugned in the writ petition (W.P.(C) No. 12290 of 2004) could not have been accepted by the learned Single Judge. We are, therefore, of the view that the learned Single Judge was in error in holding that there is no infirmity in the order dated 1.11.2004 passed by the Collector, Nayagarh and in dismissing the writ petition.
11. We, therefore, set aside the order dated 10.1.2005 passed by the learned Single Judge in W.P.(C) No. 12290 of 2004 and quash all further action taken pursuant to the above order of the Collector, Nayagarh in causing a fresh selection for selecting Anganwadi Worker for the Govindpur Centre. We further direct that the appellant-Pramodini Rath should be allowed to continue/re-engage as Anganwadi Worker in Govindpur Anganwadi Centre.
12. The appeal is accordingly allowed but in the circumstances without any order as to costs.
M.M. Das, J.
I agree.