Himachal Pradesh High Court
Heera Mani vs State Of H.P. & Ors on 21 May, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2772 of 2017.
Reserved on :4.5.2019 Decided on: 21st May, 2019.
______________________________________________ .
Heera Mani ..Petitioner.
Versus
State of H.P. & ors. ...Respondents.
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 No. For the petitioner : Ms. Shalini Thakur, Advocate.
For the respondents : Mr. S.C. Sharma, Mr. Shiv Pal Manhans and Mr. P.K. Bhatti, Addl. Advocate Generals with Mr. Raju Ram Rahi, Dy. Advocate General, for the respondents-State.
r Mr. Dinesh Kumar, Advocate, for
respondent No.4.
Chander Bhusan Barowalia , Judge
The present writ petition is maintained by the petitioner against the respondents praying therein that :
"i) That writ of mandamus or any other appropriate writ may kingly be issued and the respondents may be directed to appoint the petitioner as anganwadi worker and other consequential benefits.
ii) That writ of mandamus or any other appropriate writ may kindly be issued to quash the order passed by the learned Divisional Commissioner dated 6.10.2017 whereby he had dismissed the appeal of the petitioner on ground of limitation whereas the appeal was within limitation.
iii) Writ of mandamus quashing the enquiry report may kindly be passed in the interest of justice."1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 22. Brief facts, giving rise to the present petition is that the petitioner belongs to BPL family and is unemployed divorced lady.
The petitioner alongwith other candidates appeared in the interview .
for the post of Anganwadi worker in the Anganwadi Centre Janual under ICDS Block Seraj. The result was declared in favour of the petitioner, vide order dated 4.8.2007, passed by respondent No.2.
Respondent No.4 being aggrieved and maintained appeal against the appointment of petitioner before the Deputy Commissioner, Mandi, which was decided on 17.4.2008. The appeal maintained by respondent No.4 was accepted and selection of the petitioner was set aside. Being aggrieved by the said order, petitioner maintained appeal before the learned Divisional Commissioner, which was dismissed. Thereafter, the petitioner against the impugned order passed by the learned Divisional Commissioner, maintained writ petition before this Court, whereby this Court remanded back the matter to it and directed to decide the matter afresh, whereby the learned Deputy Commissioner, Mandi, decided afresh on 16.3.2011 and dismissed the appeal of respondent No.4. Thereafter, respondent No.4 again maintained second appeal before the learned Divisional Commissioner, Mandi, which stands dismissed.
Further, both the parties maintained writ petition, which was disposed by Hon'ble Division Bench, dated 26.11.2012, relevant portion of the order reads as under :
::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 3"That is not an issue which can be decided in the writ proceedings. It is for the Tehsildar to decide whether the petitioner was living separately or with her father after recording evidence to be led by both the sides and thereafter the Tehsildar shall decide whether .
the petitioner was a member of the family of her father or not. If she was living with her father in a joint house and kitchen, then obviously she will be deemed to be the member of her father's family and then his income shall have to be counted. The parties are directed to appear before the Tehsildar on 19.12.2012. Both the writ petitions are disposed of. The pending application(s), if any, are also disposed of."
3. In reply to respondents No.1 to 3 have stated that the petitioner belongs to BPL family/Scheduled Caste as per certificates issued by the concerned Panchayat besides divorced lady. It is undisputed that the petitioner was appointed as Angnawadi worker, vide appointment order, dated 4.8.2007 issued by respondent No.3.
Respondent No.4 maintained an appeal before the learned Appellate Authority against the appointment order of the petitioner, which was accepted by the learned Appellate Authority i.e. Deputy Commissioner, Mandi, vide its order dated 17.4.2008. Feeling aggrieved by the said order, Deputy Commissioner, the petitioner preferred an appeal before the Divisional Commissioner, Mandi and the same was dismissed by the competent authority, vide order dated 25.9.2008 on the sole ground that her income was found beyond the prescribed limited of `12,000/- per annum at the relevant time. Therefore, respondent No.3 was directed by the ::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 4 learned Divisional Commissioner to give appointment to the candidate next in merit. The petitioner approached before this Court in CWP No.1949 of 2008, whereby direction was given to the .
Appellate Authority to consider the case afresh and take appropriate action within a period of six months. Consequently, Deputy Commissioner, Mandi, complying with the directions of this Court decided the appeal on 16.3.2011 and dismissed the appeal of respondent No.4. Further, both the parties maintained two separate CWP No.3575 of 2012 and 9637 of 2012 before this Court, which were disposed of by the learned Division Bench, dated 26.11.2012. In compliance to the directions passed by this Court, Tehsildar, after hearing the parties and going through the entire record, income of the petitioner was found to the tune of `1,63,000/- per annum, therefore, earlier income certificate issued in her favour was cancelled. Consequently, respondent No.4 was ordered to join as Anganwari worker against Anganwari Centre, Janaul, Sub Tehsil Balichowki, District Mandi.
4. Learned counsel appearing on behalf of the petitioner has argued that the petitioner is not member of her parents family, as she is a divorcee, but the Authority below has taken the income of her father, as member of her family and so, she is not given appointment. She has argued that she is having one son and is residing separately from her parents and she is the most eligible person to be appointed to the job, but action of the respondents is wholly arbitrary.
::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 55. On the other hand, learned counsel appearing on behalf of respondent No.4 has argued that in the divorce petition, the petitioner has given her address, as she has infact residing with her .
father and is a member of her parents and the Authority below has committed no illegality, taking into consideration the income of the parents while considering the eligibility of the petitioner for the post of Anganwadi worker. He has further argued that though the petitioner has remarried, but there is no evidence on record to that effect. He has argued that Tehsildar after visiting the spot, as per the orders passed by this Court in CWPs No.3575 and 9637 of 2012, has categorically given findings that the petitioner is living with her parents and resultantly the income certificate, which was issued in favour of the petitioner was cancelled and respondent No.4-Jaiwanti is appointed to that post, as she is the only eligible candidate. He has argued that respondent No.4-Jaiwanti is working for the last six years and she is otherwise also right to continue for the same post. He has argued that the factum of petitioner living separately is otherwise question of fact and that cannot be looked into the present case. He has argued that the impugned order(s) passed by the Tehsildar, Deputy Commissioner and Divisional Commissioner, Mandi, regarding the income of the petitioner has already attained finality and so, no interference is required for.
6. Learned Deputy Advocate General, has argued that since income certificate of the petitioner has already attained finality and so, no interference is called for.
::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 67. In rebuttal, learned counsel for the petitioner has argued that petitioner is paying Chulah tax since the year 2004 and she is living separately.
.
8. I have heard learned counsel appearing on behalf of the parties and gone through the record in detail.
9. After taking into consideration the fact that whether the petitioner is treated as a member of her father's family or not.
Perusal of the documents on record shows that although the petitioner is divorcee, living separately from the father and yet residing in her father's house. Whether the petitioner can be treated as a family member of the father, when she is divorced is a question of fact and whether the order passed by the respondents is legal or not, is also a question of fact. Howsoever, taking into consideration the long litigation between the parties, which has come on record, before this Court, number of times and also the situation of respondent No.4, who is working on the post for the last more than six years, this Court finds that prima facie when the petitioner is a divorcee, she cannot be taken as a family member of her father for the purpose of income, now much water has flown and respondent No.4, has also worked for more than eight years at the same place. In these circumstances, this Court finds that the interest of justice will be met, in case, respondents/competent authority are directed to consider the case of petitioner for appointment as Anganwadi worker in and around the place of her ::: Downloaded on - 22/05/2019 21:57:29 :::HCHP 7 residence in near future, whenever the vacancy, so arises. Ordered accordingly.
10. Accordingly, the petition is disposed of in the aforesaid .
terms. No order as to costs. Pending application(s), if any, also stands disposed of.
(Chander Bhusan Barowalia)
21st May, 2019 Judge
(CS)
r to
::: Downloaded on - 22/05/2019 21:57:29 :::HCHP