Himachal Pradesh High Court
Hansa Devi vs Kaushalya Devi And Others on 24 August, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 6234 of 2012
Date of Decision: 24.08.2017
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______________________________________________________________________
Hansa Devi ....Petitioner.
Vs.
Kaushalya Devi and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1Yes.
For the petitioner: Mr. Mukesh Sharma, Advocate, vice Mr.
Paresh Sharma & Rajiv Rai, Advocates.
For the respondents: Ms. Leena Guleria, Advocate, vice Mr.
r G.R. Palsra, Advocate, for respondent No.
1.
Mr. Vikram Thakur, Deputy Advocate,
General, for respondents No. 2 and 3.
None for respondent No. 4.
Ajay Mohan Goel, Judge (Oral):
By way of this writ petition, the petitioner has prayed for the following reliefs:
"A. That the Hon'ble Court may kindly be pleased to issue the writ of certiorari whereby the order dated 30.09.2011 vide Annexure P/1 passed by the learned Sub-Divisional Collector, Chachyot, in appeal or Fine No. 09/11 may kindly be quashed and set aside.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 2B. That the Hon'ble Court may kindly be pleased to quash the inquiry report submitted by the learned Tehsildar, Thunag, vide Annexure .
P/2 in pursuant to the order of learned Additional District Magistrate vide office order No. ADM/Reader/2010-59439-41 dated 10.12.2010.
C. That the Hon'ble Court may kindly be
pleased to call entire record of the case.
D. That the present petition may kindly be
allowed with cost."
2. Undisputed facts as they emerge from the pleadings are that respondent No. 1 was appointed as an Anganwari Worker at Anganwari Centre Gad at Seraj Janjehali, Mandi in August 2007, which appointment was assailed by the present petitioner by way of an appeal before the learned Deputy Commissioner, Mandi. Learned Deputy Commissioner, Mandi vide order dated 09.06.2008 while allowing the appeal so filed by the present petitioner, set aside the appointment of the private respondent. The order so passed by the learned Deputy Commissioner, Mandi was assailed by the private respondent further by way of an appeal before the learned Divisional Commissioner, Mandi Division, who vide order dated 12.11.2008, set aside the order so passed by the learned Deputy Commissioner, Mandi dated 09.06.2008. The order passed by the learned Divisional Commissioner, dated 12.11.2008 stood assailed by way of a writ petition before this Court, i.e., CWP No. 786 of 2009. Said writ petition was disposed of by this Court vide order dated 17.05.2010 ::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 3 by way of remand of the matter to the authority concerned to decide the veracity of the income certificate of the selected candidate.
3. On the directions so issued by the learned Additional District .
Magistrate, Mandi, an inquiry was conducted by respondent No. 3, inter alia, qua the income of the selected candidate. Vide inquiry report appended with the petition as Annexure P-2, respondent No. 3, i.e., Tehsildar, Tehsil Thunag, District Mandi, upheld the income certificate so issued in favour of the private respondent by holding that Smt. Hansa Devi, i.e., the present petitioner had failed to substantiate the allegation/objections raised by her in the petition. The findings so returned in the inquiry report were assailed before the Sub-Divisional Collector, Chachiot by the present petitioner. Sub-Divisional Collector, Chachiot vide order dated 30.09.2011 (Annexure P-1) while upholding the findings so returned by respondent No. 3, dismissed the appeal so filed by the petitioner.
4. Feeling aggrieved, the petitioner has filed this writ petition praying for the reliefs already quoted above.
5. As per learned counsel for the petitioner, authorities below erred in not appreciating that the cut off date to ascertain family status was 01.01.2004 as per the Guidelines framed by the State for appointing Anganwari Workers and Anganwari Helpers and the findings returned by the authorities to the effect that because father of the private respondent had already moved an application for correction of family status to the ::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 4 Pradhan of the Gram Panchayat before 01.01.2004, therefore, it was to be construed that private respondent was a member of the family of her father are perverse findings.
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6. On the other hand, learned counsel for the private respondent argued that as before 01.01.2004 father of the private respondent had filed an application for correction of the family status and the correction was carried out, though after 01.01.2004, therefore, the private respondent cannot be made to suffer because of the family status as was there in the Parivar register as on 01.01.2004, as fault stood committed by the concerned Gram Panchayat.
7. I have heard the learned counsel for the parties and have also gone through the documents appended with the pleadings by the parties.
8. A perusal of the order passed in appeal by Sub-Divisional Collector, Chachiot demonstrates that the said authority held that the private respondent had asserted that she had been staying with her father as he was her natural guardian and her name entered with her brother was because of some error in the Panchayat record and when the said error came to the notice of her father, he had submitted written requests on 10.07.2002 and 06.01.2003 to Pradhan, Gram Panchayat, namely, Sh. Dhim Kataru for correcting the said entry and recording her as a member of his family, but the Panchayat officials did not take any action on the said application till 17.07.2005, when the said wrong entry ::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 5 was corrected. On these basis, it was held by the learned Appellate Authority that there was sufficient enough evidence to prove that respondent was living with her father before 01.01.2004, i.e., cut off date .
qua separation of family and entry in Panchayat record was an error on the part of the Panchayat officials and thus calculating the income of the respondent showing her as member of her brother's family was incorrect.
9. In my considered view, the findings so returned by the learned Appellate Authority are perverse. Guidelines framed by the respondent-State for engaging Anganwari Workers/Helpers provide that the cut off date for ascertaining status of the family as is contained in the Parivar Register is 01.01.2004. In other words, what is contained in the Parivar Register as on 01.01.2004 has to be taken as the basis while calculating the family income of a candidate. It is not in dispute that as per the Parivar Register, as on 01.01.2004, the private respondent was being reflected as part of the family of her brother. The justification of the private respondent, which in my considered view, has been erroneously accepted by Sub Divisional Collector, Chachiot, is this that her name was being wrongly reflected in the family of her brother and for correction of the same, her father had already moved an application before the appropriate authorities before 01.01.2004. Be that as it may, the fact of the matter still remains that the application so filed by the father of the private respondent had not been acted upon as on 01.01.2004 and correction in Parivar Register came to be incorporated only after ::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 6 01.01.2004. In this view of the matter, it was neither open to the Tehsildar nor to the Appellate Authority to have had come to the conclusion that because there was an application filed on behalf of the .
father of the private respondent for correction in the Parivar Register, therefore, it was to be deemed that the private respondent was not part of the family of her brother as was being reflected in the Parivar Register.
This is because family status had to be ascertained as on 01.01.2004. In fact, what has been held by the learned Appellate Authority by way of impugned order amounts to both re-writing the Guidelines framed by the State for appointment of Anganwari Workers as well as supplanting the Clause contained therein qua the cut off date for ascertaining the family status. Hence, as the Guidelines very clearly, categorically and unambiguously contemplate that cut off date to ascertain family status is 01.01.2004, the findings to the contrary returned by way of impugned orders by the authorities below are therefore not sustainable in the eyes of law. Both the authorities thus erred in holding that income certificate submitted by the private respondent was a valid income certificate.
10. In view of the above discussion, this petition is allowed and Annexures P-1 and P-2 are quashed and set aside with all consequences.
Respondents are directed to forthwith dispense with the services of the private respondent as Anganwari Worker at Anganwari Centre Gad at Seraj Janjehali, Mandi and take consequential action in this regard. As no prayer has been made in the writ petition by the petitioner for offering ::: Downloaded on - 31/08/2017 22:55:11 :::HCHP 7 her appointment against the post of Anganwari Worker, therefore, the State may either offer appointment to the person who was second in merit or State shall be at liberty to fill up the post afresh after initiating .
process for filling up the post as per the Guidelines. Miscellaneous applications, if any, also stand disposed of. No order as to costs.
(Ajay Mohan Goel)
Judge
August 24, 2017
(bhupender)
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