Himachal Pradesh High Court
Smt. Rajni Devi vs State Of H.P. And Others on 13 May, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 797 of 2009 a/w
CWP No. 6749 of 2013-E
Reserved on : 11.05.2016
Date of Decision: 13.05.2016
.
______________________________________________________________________
CWP No.: 797 of 2009
Smt. Rajni Devi
......Petitioner.
Vs.
State of H.P. and others
.....Respondents.
CWP No.: 6749 of 2013
Aarti Devi
of
......Petitioner.
Vs.
State of Himachal Pradesh and others .....Respondents.
Coram:
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
CWP No.: 797 of 2009
For the petitioner: Mr. Adarsh K. Vashishta, Advocate.
For the respondents: Mr. V.S. Vhauhan, Addl. A.G., with Ms.
Parul Negi, Dy. A.G., for respondents
No. 1 to 6.
Mr. Vijay Verma, Advocate, for
respondent No. 7.
CWP No. 6749 of 2013
For the petitioner: Ms. Ambika Kotwal, Advocate.
For the respondents: Mr. V.S. Vhauhan, Addl. A.G., with Ms.
Parul Negi, Dy. A.G., for respondents
No. 1 to 5.
Mr. Vijay Verma, Advocate, for
respondent No. 6.
Ajay Mohan Goel, J. :
Both these petitions are being disposed of by common judgment as the factual controversy involved in both the petitions is the same.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 2CWP No.: 797 of 2009
2. CWP No. 797 of 2009 has been filed by Rajni Devi wherein she has inter alia prayed for the quashing of order dated 04.03.2009 passed by the Divisional Commissioner, Mandi (Annexure P-2) with .
further prayer that respondents No. 5 and 6 be directed to allow the petitioner to continue working as Anganwadi Worker in Anganwadi Centre Dhalara, Tehsil Sarkaghat, District Mandi, H.P. Her case is that she was selected against the above post of Anganwadi Worker and she of joined as such on 17.08.2007. Her appointment was challenged by Rano Devi (present respondent No. 7) by way of an appeal before the Deputy rt Commissioner Mandi, on the ground that as per revised guidelines for engagement of Anganwadi Workers/Helpers on honorary basis under ICDS scheme run by Social Justice & Empowerment Department, only such voluntary candidates were eligible to apply for Anganwadi Worker/Helper who inter alia belong to a family which was legally separated as a separate family as per procedure laid down in the Panchayati Raj Act and Rules framed thereunder before 01.01.2004, whereas the petitioner was living jointly with her in-laws till the year 2005 as per the parivar register.
3. This appeal was dismissed by the Deputy Commissioner, Mandi on the ground that though in parivar register the date of separation of family was 18.01.2005, however, the application vide which the Block Development Officer had asked the Secretary to submit the report with regard to the status of the family of the petitioner was filed in ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 3 the year 2003, from which it stood proved that the family was separated in the year 2003.
4. This order was challenged by Rano Devi before the Divisional Commissioner, Mandi Division. Vide Annexure P-2 dated 04.03.2009, the .
Divisional Commissioner, Mandi Division allowed the appeal by holding as under:
"5. I have examined the relevant record carefully and heard the arguments advanced by the of counsels for both the parties and also gone through the Scheme/guidelines for the engagement of Anganwari Workers/Helpers. On the basis of copy of family register of respondent No. 2 it is evident that the family rt of respondent No. 2 was separated on 18.01.2005, i.e., after cut of date and as such, the status of her family is to be considered that of a joint family and the income of the family of respondent No. 2 is above the prescribed limit and as such, she is not eligible for the post and the court below has wrongly set aside her selection/appointment.
5. In view above findings, the appeal is accepted and the order of learned Deputy Commissioner, Mandi dated 02.06.2008, is set-aside. The Child Development Project Officer, Dharampur is directed to give the appointment to Smt. Rano Devi, the appellant who is next in merit.
6. A copy of this order be sent to the Deputy Commissioner, Mandi and Child Development Project Officer, Dharampur, Tehsil Sarkaghat, District Mandi. The record of lower court be returned. The file of this Court be consigned to Record Room after completion."
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 45. Feeling aggrieved by the said order passed by the Divisional Commissioner, Mandi Division, the present writ petition has been filed by Smt. Rajni Devi.
CWP No. 6749 of 2013.
6. This petition has been filed by one Aarti Devi again against the order passed by the Divisional Commissioner, Mandi Division dated 04.03.2009, which is also the subject matter of CWP No. 797 of 2009.
According to petitioner-Aarti Devi, she had also participated for being of engaged as Anganwadi Worker at Anganwadi Centre, Dhalara in the same process in which Rajni Devi and Rano Devi had appeared. Her contention rt is that marks detail sheet of the interview held on 07.08.2007 (which is appended with the petition as Annexure P-2) demonstrates that out of the three participants who appeared for being engaged as Anganwadi Workers, Rajni Devi had obtained first position, whereas she had obtained second position. Therefore, according to her, order passed by the Divisional Commissioner, Mandi Division directing the respondents-
authorities to give appointment to Smt. Rano Devi was apparently bad and factually incorrect because Rano Devi was not next in merit and it was she who was next in merit. Therefore, according to said petitioner, though the order passed by the Divisional Commissioner holding that Rajni Devi was wrongly engaged as Anganwadi Worker is correct, but the subsequent direction issued by the Divisional Commissioner of engaging Rano Devi being next in merit is bad and is liable to be quashed and set aside and the appointment has to be offered to her.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 5It is in this factual matrix that the order passed by the Divisional Commissioner has to be judicially reviewed by this Court.
7. Before proceeding further, it is pertinent to take note of the relevant scheme which was prevailing at the time when petitioner Rajni .
Devi was appointed as Anganwadi Worker at Dhalara. This scheme is on record with CWP No. 797 of 2009 as Annexure R-7. The scheme has been notified vide notification dated 11th April, 2007. Clause-4 of the Scheme is relevant for the purpose of adjudication of the present case, which is of being quoted hereinbelow:
"4. Eligibility Criteria rt Only such female candidates are eligible to apply for the post of Anganwadi Worker or Helper who are:
(a) Resident of the village (in case of Rural Area)/ward (in case of Urban Area) where Anganwadi Centre is located or belongs to feeding villages/wards of the Anganwadi area;
(b) For Anganwadi worker minimum qualification shall be Matric or equivalent and for Helper minimum Primary.
(c) Age between 21-45 years;
(d) From whose family no one is in
Government/Semi Government employment/service.
(e) Those belonging to a family which was legally separated as a separate family as per procedure laid down in the Panchayati Raj Act and Rules before 1st January, 2004.
(f) Those whose annual income does not
exceed Rs.8000 per annum to be
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP
6
certified/countersigned by an officer not below the rank of Tehsildar."
8. Rule-21 of the Himachal Pradesh Panchayati Raj (General) .
Rules, 1997 deals with Pariwar Register and registration of births, deaths and marriages. The said Rule reads as under:
21. Pariwar Register and registration of births, deaths and marriages.-
(1) After the Government has established a of Sabha by a notification under sub-section(1) of section 3, a Pariwar Register shall be prepared for every Gram Sabha in Form-19 appended to these rules. It rt shall contain the names and particulars of all persons, family-wise, who are the bonafide residents of the village which forms part of the Sabha area. The register shall be prepared by the Panchayat Secretary and shall be verified by the Panchayat Inspector of the concerned Block.
(2) At the close of each calendar year, the entries in the Pariwar Register, required to be prepared under sub-rule(1) shall be revised and all entries pertaining to births, deaths and marriages shall be made in the register which had taken place during the preceding year i.e. up to the 31st day of December. No other addition or alternation may be made without any authenticated evidence or certificate of the member of concerned constituency of the Gram Panchayat. In the event of division of the family, separation of family may only be entered in the Pariwar Register on the decision of the Gram Sabha by passing a resolution by majority in its general or special meeting on an application made by ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 7 the head of family concerned. However, the Gram Sabha shall take into consideration the definition of the family as defined under clause (13-A) of section 2 of the Act while deciding the matter regarding division of family.
.
(3) The register shall be revised and brought upto-date under subrule(2) by 31st January of each year and public notice will be issued to the effect that -
(a) the register has been revised and brought upto- date under sub rule(2);
of
(b) the register, as revised, is available for public inspection for a period of fifteen days(excepting the public holidays) between 10 AM to 5 PM in the office of the Gram Panchayat ;
rt
(c) if any person has to make any objection with regard to any entry or any omission in the register, he may make the objection to that effect to the Secretary of the Gram Panchayat within the said period of fifteen days. The notice shall be pasted in the office of the Gram Panchayat and other conspicuous places in a Gram Sabha area.
(4) The revised entries made in the register under sub-rule(2) and the objections received under sub-rule(3), shall be taken into consideration and disposed off and verified by the Panchayat Inspector after having given an opportunity of being heard to the person(s) concerned.
(5) The Secretary of the Gram Panchayat shall undertake registration of births and deaths in accordance with the provisions of the Registration of Births and Death Act, 1969 and rules made thereunder.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 8(6) The officer or employee of the Gram Panchayat, appointed as Registrar of Marriages, shall undertake registration of marriages in accordance with the provisions of the Himachal Pradesh Registration of Marriages Act, 1996 and the Himachal .
Pradesh Registration of Marriages Rules, 2004."
9. A perusal of the said Rule demonstrates that there is a detailed procedure laid down with regard to the entries to be made in the of parivar register which is to be maintained in the Panchayat and how said register is to be revised.
10. Mr. Adarsh K. Vashishta, learned counsel for the petitioner in rt CWP No. 797 of 2009 has vehemently argued that the order passed by Divisional Commissioner dated 04.03.2009 in Misc. Appeal No. 578/08 is perverse and not maintainable in the eyes of law. His contention is that the husband of the petitioner Rajni Devi was living separately from in-
laws of Rajni Devi since the year 2003. According to him, this fact was evident from Annexure P-3 dated 08.07.2003, i.e. the application filed by the husband of the petitioner to the Block Development Officer, Dharampur for being entered as a separate family in parivar register. He further contends that there is a Note appended in parivar register Annexure P-4 also that the family of the petitioner was living separately since the year 2003. Therefore, according to him, the finding returned by the Divisional Commissioner that on the basis of the parivar register of petitioner it was evident that her family was separated on 18.01.2005, i.e. after the cut off date mentioned in the scheme for appointment of Anganwadi Workers was bad.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 911. According to Mr. Vashishta, simply because in the parivar register the date of separation of family is mentioned as 18.01.2005, it will not make any difference because the factum of the husband of the petitioner having filed an application for being entered as separate family .
as far back as in the year 2003, which was admittedly before the cut off of date envisaged in the scheme, could not have been ignored by the Divisional Commissioner. On these basis, he contends that the findings of the Divisional Commissioner are liable to be quashed and set aside and of there was no infirmity with the engagement of petitioner Rajni Devi as Anganwadi Worker.
12. rt Mr. Vijay Verma, learned counsel appearing for respondent No. 7-Rano Devi has supported the order passed by the Divisional Commissioner. According to him, the date of filing application to be treated as a separate family cannot be treated as the date on which the family was actually entered as a separate family in the parivar register because if this contention of the petitioner is accepted, then it will make mockery of the provisions of the Himachal Pradesh Panchayati Raj Act and the Rules framed thereunder. Thus, according to him, there was no perversity in the order passed by the Divisional Commissioner and the findings returned by the Authority to the effect that the family of the petitioner was not a separate family before the cut off date envisaged in the scheme were correct findings.
13. Learned Additional Advocate General has also supported the findings arrived at by the Divisional Commissioner, Mandi Division, H.P. According to him also, it is not the date of application but the date of ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 10 actual entry in the parivar register after having followed the procedure laid down in Rule-21 which is to be construed as the date on which the family is to be treated as separate family.
14. Ms. Ambika Kotwal, learned counsel appearing for the .
petitioner Aarti Devi in CWP No. 6749 of 2013 has adopted the arguments of the State as far as the findings arrived at by the Divisional Commissioner with regard to the date of separation of family of the petitioner are concerned. However, she has argued that the subsequent of direction given by the Divisional Commissioner to the effect that appointment be offered to Smt. Rano Devi being next in merit is per se rt bad because the same is contrary to the records. Rano Devi was not next in merit and it was Aarti Devi who was next in merit. Therefore, her prayer is that the direction issued by the Division Commissioner to the extent that appointment be offered to Rano Devi is liable to be set aside and she has prayed that this Court may direct the respondents-
authorities to offer appointment to petitioner Aarti Devi in place of Rano Devi.
15. As far as this aspect of the matter is concerned, learned Additional Advocate General has submitted that it is apparent from the records that it was not Rano Devi who was next in merit, but it was Aarti Devi who was next in merit. Learned counsel appearing for Rano Devi also could not satisfactorily rebut the factual submission of Ms. Ambika Kotwal.
16. I have heard the learned counsel for the parties and also gone through the records of the case.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 1117. In my considered view, the findings arrived at by the Divisional Commissioner to the effect that family of petitioner Rajni Devi was separated on 18.01.2005, i.e. after the cut off date envisaged in the scheme are correct.
.
18. Rule-21 of the Panchayati Raj Act deals with the maintenance and revision of parivar registers by the Panchayat. There is a detailed procedure laid down in the said Rule as to how revision has to be made in the parivar register. Rule 21(2) provides that in the event of of division of the family, separation of family may only be entered in the parivar register on the decision of the Gram Sabha by passing a rt resolution by majority in its general or special meeting on an application made by the head of family concerned. It is further mentioned that it shall be the duty of the Panchayat Inspector to verify these entries after satisfying himself about the reasons recorded by the Panchayat Secretary. He shall also put his initials on the goshwara prepared by Panchayat Secretary on Form 19-A. Rule 21(3) envisages that the register shall be revised and brought upto-date under sub rule (2) by 31st January of each year.
19. A perusal of the said provision makes it amply clear that revision of parivar register is a cumbersome process and the same is undertaken by complying with the procedural formalities which are envisaged in the Rules mentioned above. Therefore, the only prudent conclusion which can be drawn with regard to a family being treated as separate family as per the said Rules is that a family can be treated as a separate family only after it is duly entered as such in parivar register ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 12 after complying with all the procedural formalities contemplated in Rule 21 (supra).
20. Now, coming to the facts of the present case, the factum of the husband of petitioner Rajni Devi having moved an application in the .
year 2003 for being entered as a separate family in parivar register will not ipso facto make that family a separate family in the eyes of law, as envisaged under the Panchayati Raj Act and the Rules framed thereunder until and unless an entry to this effect is recorded in the parivar register of after complying with the provisions of Rule 21.
21. Mr. Vashishta has not disputed this fact that as per the rt parivar register, the date on which the family was separated is 18.01.2005. Therefore, in my considered view, the conclusions arrived at in this regard by the Divisional Commissioner in his order dated 04.03.2009 do not warrant any interference. The Divisional Commissioner has rightly come to the conclusion that as the family of petitioner Ranji Devi was separated on 18.01.2005, i.e. after the cut off date i.e. 01.01.2004, as envisaged in the Scheme/Guidelines framed by the State for engagement of Anganwadi Workers, therefore, the status of her family is to be considered that of a joint family and there is no infirmity in the conclusions arrived at by the Divisional Commissioner that income of the family of Rajni Devi was above prescribed limit and, as such, she was not eligible to engaged as Anganwadi Worker.
22. Mr. Vashishta has not been able to rebut this finding that income of the joint family of petitioner Rajni Devi was above the prescribed limit.
::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 1323. Therefore, the findings returned by the Divisional Commissioner to the effect that engagement of petitioner Rajni Devi as Anganwadi Worker was bad in law are up-held by this Court and accordingly the petition filed by Rajni Devi, i.e. CWP No. 797 of 2009 is .
dismissed.
24. Now, coming to the contention of petitioner Aarti Devi in CWP No. 6749 of 2013, the marks sheet of interview held on 07.08.2007 (Annexure P-2) clearly demonstrates that three candidates had appeared of in the interview held for engagement of Anganwadi Worker at Dhalara.
These candidates were:
(a)
(b) Rajni Devi;
rt Aarti Devi; and ( c) Rano Devi Their grand totals were as under:
Name of the candidate Grand Total
Rajni Devi 8.90
Aarti Devi 8.00
Rano Devi 7.50
25. Against the name of Rajni Devi, it was mentioned that she was first and against the name of Aarti Devi, it was mentioned that she was second. It was further mentioned that Smt. Rajni Devi at Sr. No. 1 is selected. The veracity of this marks sheet has neither been challenged by Rano Devi nor learned counsel appearing for Rano Devi in the present petition has been able to effectively say anything to rebut the genuineness of the contents of the said marks sheet. In this background, the findings returned by the Divisional Commissioner in order, dated 04.03.2009 that ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP 14 appointment be offered to Rano Devi who is next in merit are factually not sustainable. It appears that either the Divisional Commissioner was under this wrong impression that no other candidate had appeared in the selection process except Rajni Devi and Rano Devi or he was not informed .
that it was not Rano Devi who was next in merit but it was Aarti Devi.
26. Be that as it may, as this Court has upheld that part of the order passed by the Divisional Commissioner whereby he has held the selection of Rajni Devi as bad in law, therefore, the natural corollary of of the same is that appointment has to be ordered to be offered to the candidate who was next in merit because it is not Rano Devi who is next
27. rt in merit as per the marks sheet of the interview in issue.
Therefore, order passed by the Divisional Commissioner to the extent it directed the appointment to be offered to Rano Devi being next in merit is quashed and set aside and respondents-authorities are directed to offer appointment to petitioner Aarti Devi as Anganwadi Worker in Anganwadi Centre, Dhalara forthwith. Accordingly, CWP No. 6749 of 2013 is allowed.
28. Both the petitions are therefore disposed of in view of my findings given above. No order as to costs.
(Ajay Mohan Goel) Judge May 13, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:21:12 :::HCHP