Orissa High Court
Kumari Khara vs State Of Odisha And Others on 18 June, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA Nos.766 and 767 of 2023
Appeals arising out of W.P.(C) Nos.16096 & 13154 of 2022
WA No.766 of 2023
Kumari Khara .... Appellant
-Versus-
State of Odisha and others .... Respondents
Advocates appeared in this case:
For Appellant : Ms. Sujata Jena, Advocate
Ms. Sonali Panda, Advocate
For Respondents : Mr. Debaraj Mohanty, AGA
(for opposite party nos.1 to 4)
Mr. Swapna Kumar Ojha, Advocate
(for opposite party no.6)
WA No.767 of 2023
Kumari Khara .... Appellant
-Versus-
State of Odisha and others .... Respondents
Advocates appeared in this case:
For Appellant : Ms. Sujata Jena, Advocate
Ms. Sonali Panda, Advocate
For Respondents: Mr. Debaraj Mohanty, AGA
(for opposite party nos.1 to 4)
Page 1 of 19
Mr. Swapna Kumar Ojha, Advocate
(for opposite party no.6)
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
18.06.2025
PER MRUGANKA SEKHAR SAHOO, J.
Both the writ appeals are taken up together as they
bring into question the legality of the common judgment
and order dated 24.02.2023 passed by the learned single
Judge dismissing the writ petition W.P. (C) No.16096 of
2022 filed by the appellant in Writ Appeal No.767 of 2023
who was the petitioner in the writ petition. The W.P.(C)
No.16096 of 2022 was filed challenging order of the A.D.M.,
Jajpur dated 13.04.2022 directing fresh selection to be done
for ‘Jari North’ Anganwadi Centre. Writ Appeal No.766 of
2023 is also filed by the appellant also challenging the
common judgment and order dated 24.02.2023 allowing the
writ petition W.P.(C) No.13154 of 2022 filed by the present
WA Nos.766 & 767 of 2023 Page 2 of 19
respondent no.6. By the said judgment and order, the
learned single Judge has set aside the order dated
13.04.2022 passed by the Additional District Magistrate,
Jajpur (hereafter the A.D.M.) in Anganwadi Worker Misc.
Appeal [A.W.W. Misc. (Appeal) case No.03/2021: Smt.
Kumari Khara vrs. Smt. Sunita Mallik], upholding selection
of respondent no.6 as Anganwadi Worker.
2. The appeal before the A.D.M. was filed as provided in
the guidelines governing selection of Anganwadi Worker
challenging selection of Anganwadi Worker for ‘Jari North’
Anganwadi Centre in village-Jari, Gram Panchayat-Jari in
the district of Jajpur. The A.D.M. set aside the selection and
directed for fresh advertisement and selection. The selection
that was challenged was pursuant to the advertisement
dated 19.07.2021 (Annexure-1 to the writ appeal), the
English translation of which has also been filed on
03.07.2023. Pursuant to the said selection as per the
advertisement, the respondent no.6 was selected as the
Anganwadi Worker (AWW) by the committee. In the appeal
before the A.D.M. the appellant challenged the selection and
WA Nos.766 & 767 of 2023 Page 3 of 19
engagement order issued by the Child Development Project
Officer, Binjharpur issued in favour of respondent no.6 as
Anganwadi Worker.
2.1. The grounds of challenge in the appeal before the
A.D.M. were, inter alia, as follows:
“(i) The respondent No.1 is not an
inhabitant/residing of the center area of Jari North
AWC i.e. Rama Chandra Mallik house to Jadaba
Jena house.
(ii) The respondent No.1 is not known the Oriya
language as well as not able to read and write.”
It was also alleged that selection committee had not
properly verified the documents furnished by the
respondent no.6.
2.2 Before the A.D.M., present respondent no.6 being
arrayed as respondent no.1 filed her written submission in
response to the appeal enclosing documents she relied
upon. The respondent no.3 before the A.D.M. [Child
Development Project Officer (CDPO), Binjharpur,
respondent no.5 in the present appeal] also filed a written
submission enclosing documents taking a stand that the
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selection of the respondent no.6 was on the basis of merit
list prepared after consideration of all the candidates. The
selected candidate had ‘knowledge in Odia’ and the
respondent no.6 can speak, write and read in Odia. A
similar stand was taken by the respondent no.6 before the
A.D.M. that she can speak, writ and read Odia language.
The A.D.M. took note of the written submission of the
respondent no.6, wherein it was stated that she had passed
5th Class in Odia medium in Ahamadpur Primary School,
Rajkanika, Kendrapara for which she filed School Leaving
Certificate (S.L.C.)/Transfer Certificate (T.C.) of Class-V of
Ahamadpur Primary School, Rajkanika, Kendrapara.
2.3 Objections were raised by the appellant before the
A.D.M. regarding genuineness of the said S.L.C./T.C. of the
respondent no.6 of Class-V of Ahamadpur Primary School.
The A.D.M. directed the appropriate authority i.e. the
District Education Officer (hereafter the D.E.O.),
Kendrapara under whose jurisdiction the said school was
functioning. The D.E.O., Kendrapara submitted detailed
report to the A.D.M. in the proceeding along with the
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relevant documents that was taken on record. In the report,
finding was given by the D.E.O., Kendrapara after proper
enquiry that the S.L.C./T.C. produced by respondent no.6
is faked/forged.
2.4 Before the A.D.M. the clarification dated 22.05.2010
issued by the Director, Social Welfare, Government of
Odisha regarding High School Certificate examination
conducted by other States without Odia-Language as a
subject, in connection with Anganwadi Worker selection
was produced. The A.D.M. referred to the said clarification
and relied on the aspect that ‘as the Anganwadi Worker has
to deal with very small children, pregnant and lactating
mothers, conduct pre-school education, it is mandatory that
she knows Oriya. Hence knowledge of Oriya for Anganwadi
Worker selection is mandatory’. The A.D.M. concluded that
during selection of the Anganwadi Worker for Jari North
Anganwadi Centre, the selection committee have not
properly verified the documents produced by the respondent
no.6 and had not followed the guidelines of the Women &
Child Development Department regarding selection of the
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Anganwadi Worker. Thus, the A.D.M. set aside the
selection, directed the cancellation of engagement of
respondent no.6 and further directed the authority to take
appropriate step for fresh selection of Anganwadi Worker of
Jari North Anganwadi Centre as per provision and
guidelines of the Women & Child Development Department,
Government of Odisha.
3. In view of the setting aside of the entire selection
process, the present appellant (in both the writ appeals)
who claimed before the A.D.M. that she being the candidate
who should have been selected in place of the respondent
no.6 whose selection was set aside by the A.D.M. (in the
appeal referred above), filed writ petition W.P. (C) No.16096
of 2022. By filing W.P.(C) No.13154 of 2022 the present
respondent no.6 being the petitioner therein challenged
setting aside of her selection as Anganwadi Worker.
4. Ms. Sujata Jena, learned counsel for the appellant and
Mr. S.K. Ojha, learned counsel for the respondent no.6 were
heard at length.
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5. Ms. Jena, learned counsel for the appellant submits
that once the selection of the respondent no.6 was set aside
without there being any finding by the A.D.M. that selection
of the appellant is flawed in any manner, she should have
been given appointment as Anganwadi Worker instead of
setting aside the entire process of selection. Mr. Ojha,
learned counsel for the respondent no.6 supports the order
passed by the learned single Judge.
6. It is agreed at the Bar that in the selection process as
has been found by the learned single Judge, the appellant
Kumari Khara secured 66.83% of marks placed at serial
no.2 and the respondent no.6 securing 72% of marks placed
at serial no.1. The learned single Judge has held that the
Court did not find any fault with the decision of the
selection committee appointing respondent no.6 as
Anganwadi Worker. The learned single Judge has relied
upon the written submission of the C.D.P.O., Binjharpur
before the A.D.M. that the candidate should have knowledge
in Odia and the respondent no.6 can speak, write and read
Odia. However, at paragraph-7 of the judgment the learned
WA Nos.766 & 767 of 2023 Page 8 of 19
single Judge has relied on the communication dated
30.01.2023 from the C.D.P.O. addressed to the Advocate
General, wherein she has stated thus (reproduced from the
judgment):
“Smt. Sunita Mallik secured highest mark as per the
evaluation. The committee during interaction with the
candidates on the date of verification was convicted
that Smt. Sunita mallik could speak and understand
Odia. She was also able to sign in Odia. Apart from
this, the residential certificate of Smt. Mallik shows
that she is residing in area since three years. In view
of the above, the Committee was convinced that Smt.
Mallik secured the highest mark.”
(Emphasis Supplied)
7. The contention of the respondent no.6 as opposite
party no.5 before the learned single Judge that the
respondent no.6 had not produced the school leaving
certificate that was found to be forged/fake by the D.E.O.,
Kendrapara and accordingly rejected by the A.D.M. in the
appeal has been rejected by the learned single Judge
holding the contention to be “a palpably unbelievable plea”.
The said finding has not been challenged by the respondent
no.6.
WA Nos.766 & 767 of 2023 Page 9 of 19
8. The learned single Judge has however proceeded to
hold that the conditions of the engagement as per guidelines
issued by the Government in W & CD Department do not
mandate that the candidate must possess any qualification
in Odia. All that is required is their ability to read and speak
Odia. The selection committee categorically observed that
Smt. Sunita Mallik is capable of speaking, writing and
reading Odia. It was further held by the learned single
Judge that even ignoring the certificate supposedly
produced by the respondent no.6 before the A.D.M., still she
would be found eligible to be appointed. At paragraph-7 of
the judgment, the learned single Judge has referred to the
advertisement to be providing the candidate ‘must be able to
write and read odia language’.
9. The merit list of the selection of the Anganwadi
Workers by the selection committee containing the
educational certificate of respondent no.6, i.e., certificate
issued by the Central Board of Secondary Education in the
name of the respondent no.6 having passed Delhi Senior
WA Nos.766 & 767 of 2023 Page 10 of 19
School Certificate Examination, 2013, indicates she
studying the following subjects:
“1. Sanskrit Core 2. Hindi Elective 3. Political Science
4. Sociology 5. Physical Education 6. Home Science
7. Work Experience 8. Phy & Health Educa 9.
General Studies”
The selection committee has not given the details
before the A.D.M. how it evaluated respondent no.6 to be
able to read and write Odia. The learned single Judge did
not delve into such aspect of the selection but has observed
that the selection committee has observed the respondent
no.6 is capable of speaking, writing and reading Odia. The
A.D.M. had relied upon the guidelines/clarification dated
22.05.2010 issued by the Director, Social Welfare regarding
High School Certificate Examination conducted by the other
states without Odia subject. Concededly, the respondent
no.6 produced certificate to have passed Delhi Senior
School Certificate Examination with the subjects as
indicated above and did not have Odia-Language as a
subject. Conspicuously, the CDPO in her instruction by
letter dated 30.01.2023 provided to the learned Advocate
WA Nos.766 & 767 of 2023 Page 11 of 19
General which forms part of the record in the writ petition,
i.e., W.P.(C) No.16096 of 2022, has stated “The Committee
during interaction with the candidates on the date of
verification was convinced that Smt. Sunita Mallik could
speak and understand Odia. She was also able to sign in
Odia.”
10. In our considered opinion, the selection committee
cannot be given such wide discretion to determine in the
process of evaluation, to such an extent of subjectivity that
without any records/certificates of education/and or ability,
the committee itself can decide the evaluation criteria as
prescribed at sl. No.4 of the advertisement dated 19.07.2021
that a candidate should be able to read and write Odia. The
records of selection that were provided along with the letter
dated 30.01.2023 contain the certificates and testimonials
furnished by respondent no.6. None of those certificates
indicate that she can read and write Odia as per her
education.
11. Learned counsel for the respondent no.6 fairly
submitted that the respondent has not challenged the
WA Nos.766 & 767 of 2023 Page 12 of 19
finding of the learned Single Judge rejecting her contention
that she did not produce the S.L.C. that was found to be
forged/fake. He only reiterated her plea though
rejected by the learned Single Judge that she has no idea
who obtained and produced the certificate and that in all
probability her lawyer has produced the certificate.
12. The certified copy of orders of the proceeding before the
A.D.M. in the AWW Misc. Appeal No.03 of 2021 is available
in the writ petition marked as Annexure-4 series. By order
dated 10.11.2021 the A.D.M. has recorded “… The learned
Advocate for the respondent No.1 also filed School
Leaving/Transfer Certificate of the respondent no.1 of Class-
VI of Ahamadpur Primary School, Rajkanika, Kendrapara.
Perused the submissions of both the parties along with
School Leaving/Transfer Certificate of the respondent no.1.
Ask the D.E.O., Kendrapara to instruct the Headmaster
Ahamadpur Primary School, Rajkanika, Kendrapara whether
the certificate is genuine or not and report compliance to this
court on or before the date fixed. Copy of School
WA Nos.766 & 767 of 2023 Page 13 of 19
Leaving/Transfer Certificate is enclosed herewith for your
reference. …”
In view of Section 106 of the Indian Evidence Act,
1872 (since repealed) when any fact especially is within
knowledge of any person, the burden of proving that fact is
upon him. The principle underlying the section is that the
burden to establish those facts, which are within his
personal knowledge is cast on the person concerned, and if
he fails to establish or explain those facts, an adverse
inference may be drawn against him : Tomaso Bruno v.
State of U.P. : (2015) 7 SCC 178.
13. In any event the contention subsequently raised by
the respondent no.6 that she did not produce the S.L.C. was
never taken before A.D.M. The records of the proceeding
before A.D.M. indicate that it was filed on behalf of
respondent no.6 and was taken on record. It was forwarded
to the concerned higher authority, District Education Officer
to furnish a report. The report was furnished and was acted
upon by the A.D.M. The learned Single Judge rejected the
WA Nos.766 & 767 of 2023 Page 14 of 19
contention of the respondent no.6 that she did not produce
it in the proceeding before A.D.M. Both the findings of the
A.D.M. as well as the learned Single Judge remain
unchallenged. Therefore, the contention of respondent no.6
that she did not produce the certificate has also to be
rejected by us. Implication of Section 106 of the Indian
Evidence Act is also against such stand of the respondent
no.6.
14. The clarification issued by the Director, Social
Welfare dated 25.05.2010 requires that the candidate
mandatorily must know Odia. The advertisement required
the candidate must be able to read and write Odia.
15. Learned Single Judge has held that on the basis of a
letter purportedly written by the Headmaster of the
concerned school, it cannot be conclusively held that the
certificate in question is fake/forged. It is held by the
learned single Judge that without conducting a proper
enquiry into the school records the finding of A.D.M. has to
be held to be incorrect.
WA Nos.766 & 767 of 2023 Page 15 of 19
16. It is found from the records that the A.D.M. in the
proceeding before him by order dated 10.11.2021 had asked
the District Education Officer to conduct enquiry. The
District Education Officer being the head of the office of the
Education Department in the District had directed the
Headmaster, Ahamadpur Primary School to verify.
Thereafter, the verification report was furnished by the
D.E.O.
17. To rely on the report of the School Headmaster
regarding register maintained by the School containing
issuance of S.L.C./T.C. it would be apt to refer to the
judgment rendered by the Supreme Court in the case of
Mahila Bajrangi (dead) through L.Rs and others v.
Badribai and another; 2013 AIR SCW 129: (2003) 2SCC
464. In Mahila Bajrangi, it is held by the Supreme Court
that “… Entries in School Admission Register and School
Leaving Certificate describing deceased as father of
defendant made long before dispute arose can be relied
on….”
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18. Regarding admissibility of the entries in the school
admission register though the officer who made the entry is
not produced and examined as witness we rely on the
principles laid down in Harpal Singh and another v.
State of Himachal Pradesh : AIR 1981 SC 361: (1981) 1
SCC 560 is applied. In Harpal Singh (para-3 of SCC print)
rejecting the contention that in the absence of examination
of the officer concerned who recorded the entry, the register
is inadmissible in evidence the Supreme Court held “… We
cannot agree with him for the simple reason that the entry
was made by the concerned official in the discharge of his
official duties, that it is therefore clearly admissible under
Section 35 of the Evidence Act and that it is not necessary
for the prosecution to examine its author. …”
19. The discretion exercise by the selection committee to
arrive at a conclusion that the respondent no.6 can read
and write Odia without any supporting certificate or
document thereto is excessive and arbitrary, therefore,
cannot be approved. The reliance of the respondent no.6 on
the S.L.C./T.C. has also to be rejected/cannot be
WA Nos.766 & 767 of 2023 Page 17 of 19
countenanced as the document is found to be forged.
Further, the respondent no.6 has to be held responsible for
production of such certificate found to be forged/fake.
20. Accordingly, the writ appeals are allowed. The
common judgment and order dated 24.02.2023 passed by
the learned Single Judge in W.P.(C) No.13154 of 2022 and
W.P.(C) No.16096 of 2022; rejecting the W.P.(C) No.16096 of
2022 and allowing the W.P.(C) No.13154 of 2022 is set
aside. The writ petition W.P.(C) No.16096 of 2022 is allowed
and W.P. (C) No.13154 of 2022 is dismissed. The order of
the A.D.M. dated 13.04.2022 in AWW Misc. Appeal No.03 of
2021 setting aside the entire selection process is modified.
21. As a consequence the petitioner in aforesaid W.P.(C)
No.16096 of 2022, the present appellant having secured the
second position in the selection of AWW is held to be the
successful candidate as the selection of the respondent no.6
as the first candidate has been set aside by the A.D.M.. The
appellant, the candidate selected at Sl.no.2, being otherwise
eligible, is declared to be successful candidate for the post of
WA Nos.766 & 767 of 2023 Page 18 of 19
Anganwadi worker for Jari North Anganwadi Centre. The
appellant shall be given appointment as AWW of Jari North
AWC, village Jari in the district of Jajpur forthwith. Her
appointment shall be deemed to be with effect from
27.08.2021 i.e. the date of issuance of appointment order by
CDPO, Binjharpur.
22. Both the appeals are allowed and disposed of in
terms of the above order. In the facts and circumstances of
the case, there shall be no order as to costs.
Dixit Krishna Shripad
Judge
Mruganka Sekhar Sahoo
Judge
Orissa High Court, Cuttack
The 18th June, 2025/Dutta/Gs/Jyostna
Signature Not Verified
Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 25-Jun-2025 11:49:49
WA Nos.766 & 767 of 2023 Page 19 of 19