Himachal Pradesh High Court
Sumna Devi vs State Of H.P. And Others on 5 May, 2016
Bench: Chief Justice, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.132 of 2015 Judgment reserved on 28th April, 2016 Date of decision: 5th May, 2016 .
Sumna Devi ..Appellant
Versus
State of H.P. and others ..Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice of The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
rt For the appellant: Mr. R.L. Chaudhary, and Mr. H.R. Sidhu, Advocates, For the respondents: Mr.Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 4. Mr. Ajay Sharma, Advocate, for respondent No.5.
Mansoor Ahmad Mir, Chief Justice.
[ This Letters Patent Appeal is directed against the judgment dated 30.7.2015 made by the learned Single Judge of this Court in CWP No. 445 of 2015, titled Sumna Devi versus State of H.P. and others, whereby the writ petition filed by the petitioner/appellant herein came to be dismissed for short "the impugned judgment" on the grounds taken in the memo of appeal.
::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 2Brief facts.
2. It appears that Sumna Devi writ petitioner/appellant herein was appointed as Anganwari .
Worker in Anganwari Centre, Sayokar, District Hamirpur, H.P. on 8.8.2007. She joined as such on 9.8.2007 in the said Anganwari Centre. One Anjana Devi, who had not participated in the selection process, questioned the of appointment of Sumna Devi, by the medium of appeal before the Deputy Commissioner, Hamirpur, H.P. rt
3. The Deputy Commissioner, vide order dated 6.2.2008 cancelled the appointment of Sumna Devi/appellant herein and directed the DPO(ICAS) to invite fresh applications for the post of Anganwari Worker at Anganwari Centre Sayokar, by giving wide publicity.
4. Sumna Devi/appellant herein aggrieved by the said order of the Deputy Commissioner, filed an appeal before the Divisional Commissioner, who, vide order dated 25.6.2008, accepted the appeal and set aside the order dated 6.2.2008 made by the Deputy Commissioner and Sumna Devi/appellant herein was allowed to continue to work as such. It is apt to reproduce para 4 of the said order herein.
::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 3"I have examined the relevant record carefully and heard the arguments advanced by both the parties. I have also gone through the law/guidelines on the relevant points carefully. On the basis of facts and law applicable in this case, the appeal is accepted and the order of learned Deputy Commissioner, .
Hamirpur dated 6.2.2008 passed in AWH case No. 60/07 is set aside. The candidate appointed by the Selection Committee shall continue to work as such."
5. Feeling aggrieved, Anjana Devi filed CWP No. 1792 of 2008 before this Court. This Court, vide judgment of and order dated 5th November, 2012 remanded the case to the Deputy Commissioner, Hamirpur for decision afresh rt on certain points which are indicated in para 2 of the said judgment.
6. Appellant Sumna Devi, feeling aggrieved by the judgment delivered by the learned Single Judge, filed LPA No. 68 of 2013 before the Division Bench. The Division Bench vide judgment and order dated 29.4.2013, dismissed the appeal directing the Deputy Commissioner to decide the proceedings within two weeks.
7. The Deputy Commissioner, in compliance to the aforesaid judgments, made order dated 16.5.2013, whereby appointment of Sumna Devi/appellant herein was set aside and the CDPO Bijhari was directed to invite fresh applications for the post of Anganwari worker at Anganwari Centre, Sayokar.
::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 48. In terms of the said directions, fresh advertisement notice was issued and the last date of receipt of applications was fixed on 14.1.2014 and .
interviews were to be held on 17.1.2014.
9. The fresh advertisement notice was not on record. Thus, vide order dated 28.4.2016, Child Development Project Officer, Bijhari, District Hamirpur, of H.P. was directed to produce the record. Record has been produced which do disclose that fresh advertisement rt notice has been issued in Hindi. Thus, we deem it proper to translate the said advertisement notice and reproduce the relevant portion of the same herein.
"Office of the Child Development Project Officer, Bijhari District Hamirpur HP.
No. WL.CD(b)-1-9/97 Dated
Press Note.
Under the Child Development Project Bijhari following posts of Anganwari worker and Anganwari Helper will be filled up and the applications are invited for the same.
Sr. Name of Name of Name of Post.
No. Circle Panchayat Centre
1. Bani Jodeamb Siyokar Anganwari
worker
2. Dhangota Dhanghota Dhangota Anganwari
Helper
3. Raily Baragram Baragram Anganwari
Helper
4. Raily Jajri Thana Anganwari
Helper
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5
The date of interview for filling up the aforesaid posts has been fixed on 17.1.2014 at 10.30 a.m. in the office of the undersigned.
The terms and conditions to fill up the above mentioned posts are as under:
.
1. Only women candidates between the age of 21-45 shall be eligible.
2. Educational Qualification for the post of Anganwari Worker shall be minimum 10+2 and for Anganwari Helper the minimum educational qualification shall be 8th pass. Separate marks shall be for higher qualification.
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3. The candidates shall be from the same feeding village in which Anganwari Center the post is to be filled up. The certificate to this effect shall be obtained from the Incharge of Anganwari worker working in the said Anganwari Centre. rt
4. No person should be in government or semi government job from the family of the candidates.
5. The annual income of the family of candidate does not exceed Rs.20,000/- per annum
6. The family of the candidate shall be living separately legally before 1.1.2003, under the Panchayati Raj Rules.
7. Anganwari worker/Anganwari Helper shall be given honorarium as settled by the Government.
........ ........... ... ...... ...... CERTITICAES
1. Certificate showing date of birth.
2. Certificate showing educational qualification.
3. Income certificate which should be issued by the Tehsildar.
4. The certificate from concerning area/Feeder area shall be certified by the Pradhan of the Panchayat or Anganwari Worker or Circle Supervisors.
5. Pariwar Nakal should be issued by the Panchayat Secretary/Panchayat Assistant in which the date of separation from the family should be clearly indicated.
6. Caste certificate,
7. Experience certificate, if any,
8. Handicapped certificate, if any,
9. Widow/Orphan/ disability certificate, if the candidate fall within these category.
10. Bonafide Himachali certificate, ::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 6
11. Certificate to the effect that no member from the family of the applicant is in the government/semi government job.
Child Development Project Officer, Bijhari District Hamirpur, H.P. ..... ..... ...."
.
10. The appellant herein along with three other candidates appeared in the interview, in terms of the fresh advertisement and Sumna Devi came to be appointed as of Anganwari Worker. Sunita Devi, one of the candidates, who also participated in the selection process, challenged rt the said appointment before the Deputy Commissioner, Hamirpur, H.P.
11. The Deputy Commissioner, vide order dated 17.12.2014 set aside the appointment of Sumna Devi holding that her earlier appointment was illegal, she cannot be given marks for "experience" and her appointment was cancelled.
12. Feeling aggrieved, Sumna Devi, present appellant filed CWP No. 445 of 2015 which was dismissed by this Court vide judgment dated 30.7.2015 which is the subject matter of the LPA in hand.
13. The moot question for consideration is -
whether the experience gained by the appellant Sumna Devi can be taken into consideration for the purposes of ::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 7 awarding marks or grade? The answer is in affirmative for the following reasons.
14. Anjana Devi who had challenged the earlier .
selection and appointment of Sumna Devi before the various authorities and was subject matter of CWP No. 1792 of 2008 and LPA No. 68 of 2013, had also participated in terms of the fresh advertisement but was of not selected as she could not make a grade.
15. rt Sunita Devi who also participated in terms of the fresh advertisement, was not a party in the first round of litigation and even had not applied in terms of earlier advertisement notice in the year 2007, has questioned the selection and appointment of the appellant herein. Having said so, the rights and title have to be determined as per the revised Rules which were occupying the field on the date when the advertisement was issued. The eligibility criteria has been mentioned in the advertisement notice, quoted supra, which is in terms of the new policy made by the Government.
16. As per earlier policy/Rules, the income slab was Rs.18,000/- and as per the new Policy/ Rules, the income slab is Rs.20,000/-. Thus the petitioner/ appellant herein was falling within the income slab, as per the ::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 8 revised rules, in the year 2014. That is why the income certificate of the petitioner was not in dispute before the authorities or before this Court, in this round of litigation.
.
17. As stated above, the petitioner/appellant herein was allowed to continue in terms of order made by the Authorities and by the High Court, was not questioned by any of the parties.
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18. The petitioner has gained experience and it cannot be said that she has gained the experience rt because of any fraud. The authorities and the Courts have quashed the earlier income certificate and appointment of the petitioner but despite that she was allowed to continue.
In the given circumstances, how it can be said that the experience gained by her cannot be taken into account.
Allowing the petitioner to continue and retaining her in position was the decision made by the Authorities and the Courts.
19. The eligibility criteria, reproduced hereinabove nowhere provides that if any person has gained experience in terms of the Court orders, cannot be taken into account.
20. What does word "experience" mean, has been defined in "Black Law Dictionary" as under.
::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 9"Experience. A state, extent, or duration of being engaged in a particular study or work; the real life as contrasted with the ideal or imaginary. A word implying skill, facility, or practical wisdom gained by personal knowledge, feeling, and action, and also the course or process by which one .
attains knowledge or wisdom."
21. The word "experience" has been defined in Webster's Encyclopedic Unabridged Dictionary as of under.
"Experience. 1. A particular instance of personally rt encountering or undergoing something. My encounter with the bear in the woods was a frightening experience. 2. The process or fact of personally observing, encountering, or undergoing something, business experience. 3. The observing, encountering, or undergoing of things generally as they occur in the course of time: to learn from experience, the range of human experience. 4. knowledge or practical wisdom gained from what one has observed, encountered, or undergone: a man of experience. 5. Philos.
The totality of the conditions given by perception; all that is perceived, understood, and remembered. 6. To have experience of; meet with undergo; feel: to experience nausea 7. To learn by experience. 8 experience religion, to undergo a spiritual conversion by which one gains or regains faith in God."
22. Thus, experience means knowledge or skill gained.
23. This question arose before the apex Court in case titled State of M.P. and others versus Jagdish Singh Thakur and another reported in (2004) 13 SCC ::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 10
408. It is profitable to reproduce para 3 of the said judgment herein.
"3. The new Rules do not speak of any renewal but relate to .
the initial appointment of a person to the post of SSS. The new Rules also do not give any preferential right to anyone who has served as SSS. All teachers in government schools including non-formal schools have been treated on a par. Therefore, irrespective of the nature of the appointment of those persons appointed pursuant to the of unamended 2001 Rules, for the purposes of appointment under the amended Rules, there is no question of any renewal or preferential right being given. However, if these rt appointees have served as teachers within the explanation to the amended Rules, this fact can be taken into account for the purpose of determining their de facto experience which may or may not have been as an SSS."
[Emphasis supplied]
24. The question is what does experience "de facto" mean. It has been defined in Black Dictionary as under.
"De facto. In fact, in deed, actually. This phrase is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate. Thus, an office, position or status existing under a claim or color of right such as a de facto corporation. In this sense it is the contrary of de jure, which means rightful, legitimate, just, or constitutional. Thus, an officer, king, or government de facto is one who is in actual possession of the office or supreme power, but by usurpation, or without lawful title; while an officer, king, or governor de jure is one who has just claim and rightful title to the office or power, but has never had plenary possession of it, or is not in actual possession. Macleod v. United States, 229 U.S. 416, 33 S.Ct. 955,57 L.Ed. 1260. A wife de facto is one whose marriage is ::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 11 voidable by decree, as distinguished from a wife de jure, or lawful wife. But the term is also frequently used independently of any distinction from de jure; thus a blockade de facto is a blockade which is actually maintained, as distinguished from a mere paper blockade.
.
Compare de jure."
"De facto doctrine" will validate, on grounds of public policy and prevention of failure of public justice, the acts of officials who function under color of law. People v. Davis 86 Mich. App. 514, 272, N.W 2d 707, 710.
As to de facto corporation; Court; Domicile;
of Government, Merger, and officer, see those titles.
In old English law it means respecting or concerning the principal act of a murder, which was technically rt denominated factum."
[Emphasis added]
25. Oxford English Dictionary contains the meaning of de facto as under.
"De facto. In fact, whether by right or not: Often contrasted with de jure. Adj. existing or holding a specified position in fact but not necessarily by legal right: de facto censorship of the news media by the wealthy."
26. Keeping in view the definitions reproduced hereinabove; the de facto experience is also an experience in the eyes of law.
27. Applying the test, it can be safely said that granting of "3" marks for experience by the authorities is right decision. Thus, the authorities have rightly made the engagement of the petitioner/appellant herein.
::: Downloaded on - 15/04/2017 20:16:35 :::HCHP 1228. It is worthwhile to record herein that Sunita Devi cannot claim any right in terms of the previous litigation because she had not applied and participated in .
that process and was not a party to that litigation. Had Anjana Devi not questioned the selection and appointment of appellant Sumna Devi in earlier round of litigation, Sumna Devi would not have got chance to apply in terms of of fresh advertisement. Sumna Devi would have been in position till today without any disturbance.
rt
29. Having said so, the impugned judgment is set aside; LPA and the writ petition are allowed. The order made by the Deputy Commissioner is set aside and engagement of the writ petitioner/appellant herein is upheld.
(Mansoor Ahmad Mir)
Chief Justice
May 05 , 2016. (Sandeep Sharma)
(cm Thakur) Judge
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