Madhya Pradesh High Court
Smt Prasandna vs The State Of Madhya Pradesh on 31 January, 2019
Equivalent citations: AIRONLINE 2019 MP 1141
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HIGH COURT OF MADHYA PRADESH : JABALPUR
(Before Hon'ble Shri Justice J.K.Maheshwari)
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Writ Petition No. 21440/2017
Smt. Prasandana
-Versus-
State of Madhya Pradesh & others
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Shri Aditya Sharma, Advocate for the petitioner.
Shri Bramhadatt Singh, Government Advocate for respondent
Nos. 1 to 4/State.
Shri D.K. Tripathi, Advocate for respondent No. 5.
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ORDER
(31/01/2019)
1. This petition under Article 226 of the Constitution of India has been filed challenging the order Annexure P-9 dated 20.11.2017 passed by the Additional Commissioner, Sagar Division, Sagar setting aside the order Annexure P-4 dated 22.7.2017 passed by the Additional Collector, District Damoh by which the appointment of respondent No. 5 on the post of Aanganwadi Worker was found illegal because of securing 10 marks under the BPL category.
2. On perusal of the facts of the case, it is apparent that the applications were invited for the post of Aanganwadi Worker of the Aanganwadi Center, Khiriya Lakhroni, District Damoh. Total Five applications were received. Respondent No. 5 was appointed on the said -2- post vide order dated 17.10.2016 on being received highest marks in the final list prepared by the Project Officer, Integrated Child Development Services, Pathariya, District Damoh. The said order was challenged by the present petitioner by filing an appeal before the Additional Collector, Damoh, which was allowed vide order dated 22.7.2017 and the order of appointment of respondent No. 5 was set aside. It was observed that before the District Level Objection Removal Committee, the petitioner objected on the BPL Card of respondent No. 5, the scrutiny of the same was made by Janpad Panchayat, Pathariya. It was further observed that nothing is available on record that on the application submitted by the present petitioner to the Collector on 1.8.2016, he has taken any action. Thereafter referring the documents of educational qualification and other documents like Aadhar Card, Voter ID, BPL card submitted by respondent No.5 and also referring the arguments advanced by the parties, it was observed by the Additional Collector that in the Samagra ID 39543029 the names of family members are mentioned as Rajkumar Lodhi and Bharti Lodhi. An amount of Rs.12,000/- has been sanctioned to both Santosh Singh and Rajkumar separately for construction of lavatory though in one Ration Card of Santosh Singh, the names of Rajkumar Lodhi and his wife respondent No. 5 was not mentioned, therefore, it is clear that the families of Santosh Singh and Rajkumar are different and they are residing separately, in such circumstances, the benefit of BPL card of Santosh Singh (the father of the husband of respondent No. 5) cannot be extended to respondent No.5 and she is not entitled to get 10 marks on the said basis under BPL category. Accordingly, the appeal filed by the present -3- petitioner was allowed. The District Project Officer was directed to prepare fresh merit list after reducing 10 marks of respondent No. 5 and accordingly, the present petitioner was appointed on the said post as per order Annexure P-5 dated 15.9.2017.
3. Being aggrieved by the order Annexure P-5 dated 15.9.2017, an appeal was preferred by respondent No. 5 before the Additional Commissioner, Sagar Division, Sagar which was allowed by the order impugned Annexure P-9 dated 20.11.2017 and the order passed by the Additional Collector was set aside. It is relevant to note here that prior to passing the orders by the Additional Collector and the Additional Commissioner, the objection raised by the present petitioner on the BPL Card of respondent No. 5, was accepted by the Tahsildar and vide Annexure P-8 dated 3.11.2017 name of the father of the husband of respondent No. 5 from the BPL list was deleted.
4. The Additional Commissioner while deciding the appeal has referred the findings of the Additional Collector but later referring the BPL card to which an enquiry was done by the Janpad Panchayat and a report has also been received from the Secretary and also on perusal of the Ration Card, it has been observed that there were six persons in the family of Santosh Singh (the father of the husband of respondent No. 5) and on the date of selection of respondent No. 5, the said BPL card was in existence, therefore, the appointment of respondent No. 5 extending the benefit of 10 marks under the BPL category is justified.
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5. Learned counsel for the petitioner has filed various documents such as Job Card issued under Mahatma Gandhi National Rural Employment Guarantee Act wherein in front of the name of the husband of respondent No. 5, it is mentioned that he does not belong to the BPL category and his family ID is 38A. He has also filed another job card wherein he has been shown in the APL category (Above Poverty Line). These cards have been issued on 30.8.2016 indicating the position of Rajkumar from 4.1.2014 to 9.1.2016, therefore, the husband of respondent No. 5 does not fall in the BPL category, however, grant of 10 marks to respondent No. 5 on the basis of which she was placed above in the merit list from petitioner, is unjustified. It is also contended that after initiation of the proceedings of selection, the objection on the BPL card was raised before the competent authority i.e. the Tahsildar, who passed the order on 3.11.2017. It is clear that the family of the father of the husband of respondent No. 5 consists of two brothers and the father (total three). They were having about 7.41 hectares land in their names. If it is divided in three parts, each of them will have about 2.47 hectares land in his name apart from Pakka house, tractor and other equipment, which have been admitted by them. However, their names mentioned in the BPL list at Serial Number 17834 have been deleted. Meaning thereby the husband of respondent No. 5 was not in the BPL category since inception and the BPL card has wrongly been issued in the name of the father of the husband of respondent No. 5 showing his name, which has rightly been deleted by the Tahsildar, therefore, the benefit of 10 marks as given to respondent No. 5 on the basis of said card is unsustainable though during the period in which the husband of the -5- petitioner got registered under Mahatma Gandhi National Rural Employment Guarantee Act, he has not shown himself in the BPL category but shown in the APL category, therefore, the selection of respondent No. 5 extending the benefit of 10 marks in BPL category is wholly unjustified. The Additional Commissioner committed error of law to uphold the appointment of respondent No. 5.
6. Per contra, learned counsel representing respondent No. 5 has strenuously urged that the advertisement was issued for appointment of Aanganwadi Worker of village Khiriya Lakhroni on 9.8.2016 and the order of appointment of respondent No. 5 was issued on 17.10.2016. However, respondent No. 5 was possessing the BPL card, relying thereto if the marks have been allotted to him, which has been cancelled later on by the Tahsildar, it would not have retrospective effect and the benefit which has been extended on the basis of said BPL card cannot be withdrawn after selection. In support of the said contention, reliance has been placed on the order of this Court in W.P. No. 19884/2017 (Smt. Prem Bai Vs. The State of M.P. and others) passed on 5.7.2018. It is further a contention of respondent No. 5 that the order passed by the Additional Commissioner is based on the circular issued by the Department on 15.5.2017 whereby the position of BPL Card holder is required to be seen on the date of advertisement. It is said, if respondent No. 5 possesses the BPL card on the date of advertisement, 10 marks have rightly been awarded to her as observed by the Additional Commissioner. In such a case interference by this Court is not warranted. It is a further contention of respondent No. 5 -6- that the Tahsildar has not mentioned the status on the date of issuance of advertisement, which is under challenge in this case. However, the order of Tahsildar cannot be used against him cancelling the BPL card subsequently. In view of the foregoing, it is urged that considering the qualification, which was existing on the date of advertisement, appointment of respondent No. 5 has rightly been made, however, subsequent cancellation of the BPL card after completion of process of selection is of no help to the petitioner, therefore, the order of the Additional Commissioner may be upheld dismissing this petition. It is further urged that at the time of pendency of the second appeal the said ground was not in existence, therefore, it was not available to respondent No. 5 before the Additional Commissioner and also even before this Court, however, considering the same interference in the order of the Additional Commissioner is not warranted.
7. Learned Government Advocate representing the State has filed the return and supported the order passed by the Additional Commissioner inter alia contending that after process of selection, cancellation of BPL Card having no consequence affecting the selection already taken place in view of the policy of the State Government referred by the Additional Commissioner in the order impugned. In view of the foregoing it is urged that the order passed by the Additional Commissioner is justified, which does not warrant any interference in this petition.
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8. After hearing learned counsel for the parties, it is not in dispute that process of selection for the post of Aanganwadi Worker was started in August, 2017. It is also not in dispute that the petitioner, respondent No. 5 and other candidates applied for the same. It is also not in dispute that respondent No. 5 was awarded 10 marks under the BPL category thereby she secured 12 marks and placed above in the merit list. It is also not in dispute that the petitioner was placed below to respondent No. 5 because of grant of 10 marks under BPL category. The attack made in this petition is based upon the existence of BPL card of respondent No. 5 inter alia contending that grant of 10 marks to her under the BPL category is unjustified otherwise the petitioner would have been entitled for appointment being above on merit.
9. To substantiate the argument, the petitioner has produced the identity card issued under the Mahatma Gandhi National Rural Employment Guarantee Act of the husband of respondent No. 5 wherein it is apparent that he did not fall within the category of BPL. The said certification was issued by the authority on 30.8.2016 for the period 4.1.2014 to 9.1.2016. Another Job Card which is available on record indicates that the husband of respondent No. 5 was in APL category during such period.
10. The Tahsildar as per order Annexure P-8 dated 3.11.2017 after taking report from the Revenue Officer, opined that the father of the husband of respondent No. 5 are two brothers and having their father. -8- They have about 7.41 hectares of land on their joint names in the village. However, if it is divided in three parts, each of them would have 2.47 hectares of land having Pakka house, tractor and other ancillary equipment, therefore, deleted the name of Santosh Singh, the father of Rajkumar Singh, who is husband of respondent No. 5 from the BPL list due to not coming in the BPL category.
11. Certainly the said order has been passed by the Tahsildar after selection of respondent No. 5 but the name of the father of the husband of respondent No. 5, has been deleted from the BPL list on account of possessing substantial land, tractor, pakka house etc. indicating wrong existence of his name in the BPL list, therefore, they do not come within the purview of BPL category. If they acquired the benefit of the BPL which is available to the persons below poverty line such benefit cannot be continued merely because selection process has already taken place. In addition to the aforesaid, when the husband of respondent No. 5 got registered himself under the Mahatma Gandhi National Rural Employment Guarantee Act, he knowing fully well that he does not come under the BPL category got registered himself in the APL category and that registration is for the period of 4.1.2014 to 9.1.2016 as certified by the competent authority, his wife cannot come in the BPL category. It is not the case of respondent No. 5 that after 9.1.2016, the husband of respondent came in the BPL category. In that view of the matter, selection of respondent No. 5 extending the benefit of 10 marks under the BPL category is wholly unjustified and is not sustainable. The judgment of Smt. Prem Bai (supra) -9- is on different facts in which petitioner of the said case had not approached to the Court with the clean hands, therefore, of no avail.
12. It is to note here that if a person does not come in the BPL category and even then derives the benefit producing the forged certificate, whosoever is involved in issuance of those certificates, is required to be dealt with in accordance with law by the authority because the intention of Policy framers is to extend the benefit of BPL to the genuine BPL Card holders and not to the persons who obtained such cards in a forged and fabricated way. In that view of the matter, the argument advanced that after selection, cancellation of BPL card would not debar respondent No. 5, is having no substance. The person who does not come in the BPL category and by getting a certificate manipulates them though as per law possesses the land more than the limit so prescribed and thereafter got registered his name in the BPL list and secured the job, cannot be protected by the Court, therefore, order passed by the Additional Commissioner stands set aside.
13. During course of hearing after perusal of return, nothing is available on record that the order of Tahsildar deleting the name of the father of the husband of respondent No. 5 from the BPL list has been challenged anywhere in the higher forum. Learned counsel for respondent No. 5 wants to explain the said order inter alia contending that the existence of land on the date of selection has not been specified but no such plea has been -10- taken in the pleading of the return by him, therefore, he cannot be permitted to give such explanation orally before this Court.
14. In view of the foregoing discussion, this petition succeeds and is hereby allowed. The impugned order Annexure P-9 dated 20.11.2017 passed by the Additional Commissioner, Sagar Division, Sagar stands set aside upholding the order Annexure P-4 dated 22.7.2017 passed by the Additional Collector. Petitioner is directed to continue in the employment if she is already working and if she is discontinued, her order of continuation be passed within 15 days from the date of production of certified copy of this order.
Certified copy as per rules.
(J.K. Maheshwari) Judge PB Digitally signed by PRADYUMNA BARVE Date: 2019.02.06 17:30:55 +05'30'