Himachal Pradesh High Court
Sanju Bala vs State Of H.P. And Others on 15 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.7379 of 2013 Decided on: 15th March, 2023
-------------------------------------------------------------------------------------
Sanju Bala .....Petitioner
.
Versus
State of H.P. and others .....Respondents
------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1 Yes For the Petitioner: Mr. K.S. Banyal, Senior Advocate with Mr. Arun Kumar, Advocate.
For the Respondents: Mr. Y.P.S. Dhaulta and Mr. Rupinder Singh Thakur, Additional Advocates General, for respondents No.1 to 3.
Mr. Pawan Gautam, Advocate, for respondent No.4.
------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Appointment of the petitioner as Anganwari Worker in Anganwari Centre Majheen, Tehsil Khundian, District Kangra, was set aside by the Appellate Authority vide order dated 15.03.2013. This order has been assailed by the petitioner in the instant writ petition.
2. Facts:-
2(i). The petitioner was appointed as Anganwari Worker on 13.08.2007 in Anganwari Centre Majheen, Tehsil Khundian, District Kangra, where she joined on 1 Whether reporters of print and electronic media may be allowed to see the order? Yes.::: Downloaded on - 18/03/2023 20:32:10 :::CIS 2
16.08.2007. Petitioner's appointment and selection to the post of Anganwari Worker was challenged by respondent No.4 (Smt. Mangla Devi) before the Deputy Commissioner.
.
The challenge was on the ground that in terms of the applicable eligibility criteria at the relevant time, the annual income ceiling of a candidate prescribed in the policy was Rs.12,000/- per annum, whereas petitioner's annual family income far exceeded the prescribed criteria. Hence, she was ineligible for the post in question.
2(ii). Appeal No.8/2007 preferred by respondent No.4 was allowed by the Appellate Authority-cum-Additional District Magistrate, Kangra at Dharamshala, vide order dated 06.10.2008. This order, inter alia, took note of the admission of the petitioner that her Mother-in-Law was a retired Teacher and owner of a vehicle bearing Registration No.HP-55A-0955. The order also kept in view the confirmation by the Divisional Forest Officer, Dehra that petitioner's husband was engaged as a Contractor in business of collecting resin from the pine trees in the year 2007. The order also returned the finding that the alleged separation of petitioner's family put forth by her was only in order to secure appointment to the post of Anganwari Worker. Such separation was null and void. The authority, ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 3 inter-alia, recorded:- "As a matter of common sense it is incredible to believe that the only son of a mother is residing separately in the same house, therefore, in my .
opinion, Ajay Kumar and her family are integral part of the family of Kanta Devi, who is a retired teacher and draws pension. She also owns a car bearing No.HP-55-A-0955".
2(iii). The Divisional Commissioner, Kangra, on 27.01.2009, allowed petitioner's appeal against the order dated 06.10.2008. Matter was ordered to be remanded for fresh decision on the ground that the Additional District Magistrate, Kangra had no power to hear and decide the appeals. On remand, the delegation of powers was conferred on the Additional District Magistrate, Kangra.
After hearing the parties afresh, the Appellate Authority once again set aside appointment of the petitioner vide order dated 14.09.2009. This order was upheld by the Divisional Commissioner, Kangra at Dharamshala, on 30.04.2010.
2(iv). Aggrieved against the aforesaid orders dated 14.09.2009 and 30.04.2010, the petitioner instituted CWP No.2100 of 2010. This writ petition was part of bunch matters with lead case being CWP No.1096 of 2010 (Raksha Devi Versus State of H.P. & Others). This bunch of petitions ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 4 was decided on 17.05.2010. One of the contentions before the Hon'ble Court in Raksha Devi's case, supra, was that "even assuming for arguments sake that the computation of .
income was not properly made by the authority, who issued the certificate, there is a due process under the law by which such a certificate could have been cancelled. Even now, that certificate of income, issued by the competent authority, for the purpose of appointment, has not been cancelled". While answering the above contention, the Hon'ble Division Bench found substance in the submission made by learned counsel for the petitioners that in case of allegations of obtaining appointment on false certificates of income, the competent authority should first take steps to cancel such certificates, based on which the appointments were made. The Court further held as under:-
"5. In case the authority is of the view that the income certificate issued to any Anganwadi Workers/Helpers in these cases, is not based on proper computation of income, it will be open to the competent authority to take steps to cancel the same. But it is made clear that such cancellation shall only be, after affording an opportunity for hearing to the incumbent concerned. So long as the cancellation is not made by the competent authority in accordance with law, and procedure for cancellation and in case notice is not given to the affected party in the enquiry, the incumbent concerned shall not be deprived of their posts, to which they were appointed, based on the income certificates, they produced at the relevant time.
6. There will be a direction to the appellate authority in these cases, to take appropriate steps in the cases where a dispute on income is involved, to get the same ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 5 duly processed by the competent authority, in the matter of cancellation. Necessary steps in that regard will be taken and action finalized within a period of four months from the date of production of this judgment to the competent authority. That competent authority will also afford an opportunity to the affected party to .
participate in that proceedings. Subject to the outcome of the action thus taken by the competent authority, on the income certificate already issued to the incumbent, the appellate authority will take appropriate action within two months. We also make it clear that in the event of any appointment being cancelled, the appellate authority will also issue necessary directions for the next person from the list, to be appointed, in case a list is available. Needless to say that until the process, as above said, is completed, the incumbents now working, will be continued. We may make it clear that the inquiry will be on the basis of the Policy/Guidelines as existed at the time of appointment."
2(v). The writ petition instituted by the petitioner was disposed of and the matter was remanded to the competent authority to be decided afresh in light of the directions issued in the judgment. On remand, the competent authority reconsidered the matter. Report on income certificates issued to the petitioner and respondent No.4 was called from the Tehsildar Khundian. The Tehsildar Khundian heard the parties and held that the income certificate issued to the petitioner on 15.05.2007, which was the basis of her securing appointment to the post of Anganwari Worker, was issued on wrong computation of income. He also held that the petitioner had concealed the facts pertaining to the income of her family.
::: Downloaded on - 18/03/2023 20:32:10 :::CIS 62(vi). The petitioner assailed the order of cancellation of her income certificate dated 15.05.2007 before the Sub-
Divisional Officer (Civil), Dehra. Her appeal was dismissed .
on 19.01.2012. No further challenge was laid by the petitioner to the order cancelling her income certificate dated 15.05.2007.
2(vii). Based upon the order of the Tehsildar Khundian, cancelling petitioner's income certificate dated 15.05.2007 and dismissal of petitioner's appeal by the Sub-
Divisional Officer
r (Civil), Dehra on 19.01.2012, the
Appellate Authority, i.e. Additional District Magistrate, Kangra at Dharamshala, on 15.03.2013, decided the main appeal instituted by respondent No.4 against selection and appointment of petitioner, setting aside her appointment as Anganwari Worker. Aggrieved against setting aside of her appointment as Anganwari Worker, the petitioner has assailed the order dated 15.03.2013 in the instant writ petition.
3. Submissions:-
I have heard Mr. K.S. Banyal, learned Senior Counsel for the petitioner, Mr. Y.P.S. Dhaulta, learned Additional Advocate General for respondents No.1 to 3- ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 7 State and Mr. Pawan Gautam, learned counsel for respondent No.4.
The only stance taken for the petitioner is that .
she has by now rendered more than fifteen years of service as Anganwari Worker, therefore, her appointment should not be interfered at this stage. In support of such submission, reliance was placed upon (2009) 1 SCC 768 (Tridip Kumar Dingal and others Versus State of West Bengal and others), (2001) 3 SCC 328 (Buddhi Nath Chaudhary and r others Versus Abahi Kumar and others), 1994 Supp (2) SCC 591 (Gujarat State Dy.
Executive Engineers' Association Versus State of Gujarat and others and (1991) 3 SCC 368 (Munindra Kumar and others Versus Rajiv Govil and others).
Learned Senior Counsel also highlighted the fact that respondent No.4 stands appointed as Asha Worker in the year 2015, therefore, she does not stand to gain anything by dislodging the petitioner from the post of Anganwari Worker.
Learned Additional Advocate General defended the impugned order and submitted that the experience gained by the petitioner was only on account of interim orders passed in the litigations instituted by the petitioner.::: Downloaded on - 18/03/2023 20:32:10 :::CIS 8
The petitioner had obtained the income certificate by concealing the relevant facts. Her appointment to the post based on this invalid income certificate was illegal. It was .
correctly set aside by the Appellate Authority.
4. Observations:-
4(i). It is not in dispute that at the time of initiation of the recruitment process to the post in question, one of the eligibility condition prescribed in the applicable policy was that the annual family income of the participating candidates should r not be more than Rs.12,000/-.
Alongwith petitioner's application, she had appended the income certificate dated 15.05.2007, issued to her, showing the annual income of her family to be not more than Rs.12,000/-, i.e. in terms of the stipulations in the applicable guidelines. It is a fact that during the inquiry got conducted by the Appellate Authority, it has come that the petitioner had obtained the said income certificate by concealing the relevant material facts. The petitioner did not apprise the competent authority that her Mother-in-Law was a retired Teacher, in receipt of pension and was owner of a four wheeler. That petitioner's husband was the only son of her Mother-in-Law and working as a Contractor in the Forest Department. The entire family was joint and ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 9 living together. These facts, as noticed in the order passed by the Appellate Authority-cum-Additional District Magistrate, Kangra at Dharamshala, have been again .
highlighted by respondent No.4 in her reply filed to the writ petition. Petitioner has not controverted these facts. No rejoinder has been filed by her. Thus, it has to be taken that the petitioner has admitted not only that her family income at the relevant time far exceeded the limit prescribed in the applicable policy, but also that she had obtained income certificate dated 15.05.2007 by concealing relevant materials from the competent authority.
4(ii). It has also to be kept in mind that pursuant to the directions issued by this Court in judgment dated 17.05.2010, rendered in CWP No.2100 of 2010, the Tehsildar Khundian, District Kangra, had set out to determine the veracity of income certificate dated 15.05.2007 issued to the petitioner. After conducting the inquiry in accordance with law, this certificate was cancelled by him. The petitioner challenged the cancellation of her income certificate by filing an appeal. Her appeal was dismissed by the Sub-Divisional Officer (Civil), Dehra on 19.01.2012. No further challenge was laid by the petitioner to the cancellation of her income certificate. The issue has ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 10 thus attained finality. Once petitioner's income has been conclusively held to be beyond the limit prescribed under the policy and once the petitioner has accepted this finding, .
the Appellate Authority had no other option, but to set aside her selection and appointment as Anganwari Worker.
The impugned order dated 15.03.2013 was, thus, justly passed in the facts and circumstances of the case. It calls for no interference.
4(iii). So far as petitioner's plea for saving her appointment on the basis of her long experience is concerned, suffice to observe that the judgments cited for the petitioner are in given facts of those cases. The position in this case is different. Petitioner's appointment was first set aside on 06.10.2008. Petitioner continued to serve on the post on account of interim orders passed in the petitions instituted by her. There is no denial by her to the fact that her appointment was void from the very beginning.
She had secured this appointment on the strength of an income certificate obtained by her by concealing material facts. She had given misleading information to the authority at the time of procuring income certificate that led to her appointment. During hearing of the case, these aspects were not even disputed for the petitioner. In (2009) 15 SCC ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 11 436 (Shesh Mani Shukla Versus District Inspector of Schools, Deoria and others), the effect of continuous working of a person whose appointment was void, had been .
observed as under:-
"19. It is true that the appellant has worked for a long time.
His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio.
If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. of India v. Ashis Kumar Ganguly.) Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. (See State of M.P. v. Sanjay Kumar Pathak.)"
It would also be apt to refer to (2010) 10 SCC 63 (M.S. Patil (Dr.) Versus Gulbarga University and others), where plea of long continuation was pressed into service for saving an invalid appointment:-
"16. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned Senior Counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as Lecturer and from where he had resigned to join to this post.
17. We are impressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the ::: Downloaded on - 18/03/2023 20:32:10 :::CIS 12 matter, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour."
5. The conclusion is that the petitioner was .
ineligible for the post. She had secured the appointment dishonestly and fraudulently. Her mere long service rendered as such cannot protect her appointment.
In view of the above, I find no merit in the instant petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
March 15, 2023 Judge
Mukesh
::: Downloaded on - 18/03/2023 20:32:10 :::CIS