Himachal Pradesh High Court
Smt. Sunita Devi vs State Of H.P& Ors on 19 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2293 of 2011 .
Date of Decision:19th December,2016 Smt. Sunita Devi .........Petitioner.
Versus State of H.P& Ors ............Respondents of Coram Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
rt For the petitioner: Mr. Dushyant Dadwal, Advocate.
For the respondents: Mr. P.M. Negi, Addl. Advocate General, with Mr. Ramesh Thakur, Deputy Advocate General, for respondents No. 1 to 3.
Sandeep Sharma,(oral) By way of instant writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:-
"(i) That the present petition may kindly be allowed and the impugned order dated 18.12.2010, supplied to the petitioner on 8.4.2011(Annexure P-7), vide which the respondent No.4, appeal has been allowed and the appointment of the petitioner has been cancelled contrary to the facts and in Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -2-
an illegal manner, may kindly be quashed and set-aside by issuing the within of certiorari keeping in view the fact and circumstances in the case and in the interest of justice, with the further direction .
to the respondents to allow the petitioner to work as such being a duly qualified and selected candidate on this post of Angan Wadi Worker in Angan Waid Centre Gwal, Tikkar, under Kand Panchayat, Tehsil Palampur, District Kangra, HP in the interest of justice.
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2. Briefly stated facts, as emerged from the record are that pursuant to the advertisement/notification issued by the rt respondents in February, 2007, present petitioner applied for the post of Anganwadi Worker at Aganwadi Centre Gwal, Tikkar, Post office Kand, Gwal Tikkar, Tehsil Palampur, District Kangra, H.P. The petitioner as well as other candidates including respondent No.4 presented themselves in the office of Child Development Project Officer( hereinafter referred to as the 'CDPO'), Baijnath, for interview pursuant to their applications.
But fact remains that Selection Committee selected present petitioner for the post of Anganwadi worker in Anganwadi Centre, Gwal Tikkar under Panchayat Kand Gwal Tikkar and accordingly issued appointment letter to her with the direction to join her duties on 9th August, 2007.
::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -3-3. Respondent No.4, being dissatisfied with the appointment of present petitioner, made complaint to the .
Deputy Commissioner, Kangra at Dharamshala alleging therein that the income of the petitioner is much more than the income, as prescribed under the Rules and as such, her selection deserves to be quashed and set-aside. Learned Deputy of Commissioner on the basis of the record submitted by the 'CDPO', rejected/dismissed the complaint having been filed by rt the respondent No. 4.
4. Being aggrieved and dissatisfied with the order dated 8.10.2008 (Annexure P-2) passed by the Deputy Commissioner, respondent No.4 filed an appeal before the Divisional Commissioner, Kangra at Dharamshala. The Divisional Commissioner, Kangra after taking note of the grounds of appeal, set-aside the impugned order dated 8.10.2008, passed by the Deputy Commissioner and accordingly remanded the case back to him vide order dated 26.2.2009(Annexure P-4) with the direction to enquire into the annual income from all sources of both the parties. The Divisional Commissioner further ordered that in case both the candidates are found ineligible, a fresh selection process may be initiated.
::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -4-5. Pursuant to aforesaid direction contained in order dated 26.2.2009 (Annexure P-4), Deputy Commissioner, Kangra .
heard the matter afresh and came to the conclusion that income of both the applicants i.e. petitioner as well as respondent No.4 is more than the income fixed in the eligibility criteria for the appointment of Anganwadi Worker and as such, of cancelled the appointment/ selection of the petitioner with the direction to 'CDPO' to conduct fresh interviews after following due procedure.
rt In the aforesaid background, petitioner, who was initially selected as Aganwari Worker, approached this Court by way of present writ petition seeking reliefs, as have been reproduced hereinabove.
6. Mr. Dushyant Dadwal, learned counsel representing the petitioner, vehemently argued that impugned order (Annexure P-7), passed by Deputy Commissioner is not sustainable and as such, same deserve to be quashed and set-
aside. Mr. Dadwal, further contended that the Deputy Commissioner, while deciding the case at hand exceeded his jurisdiction, which was vested in him by virtue of the revised guidelines issued by the Government of Himachal Pradesh on 1.4.2007, wherein it was made clear that an appeal against the ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -5- appointment of any Anganwadi Worker or Helper can be filed within a period of 15 days before the Deputy Commissioner .
from the date of appointment of the order. Mr. Dadwal, further contended that since there was no provision contained in the guidelines to condone the delay, if any, in filing the appeal, Deputy Commissioner ought to have dismissed the appeal of having been preferred by respondent No.4 on the ground of delay only. Learned counsel representing the petitioner rt strenuously argued that respondent No.2 has miserably failed to apply his/her mind to the fact that when a certificate issued by IPH Department and the Panchayat, clearly indicating therein that at the time of appointment of petitioner as Aganwadi worker, the brother-in-law of the petitioner was not paid anything till 28.8.2007, it could not be concluded that at the time of appointment of the petitioner as Aganwadi worker, her brother in law was working. Mr. Dadwal, further contended that Courts below have miserably failed to appreciate that it was not open for respondent No.4 to challenge the appointment of the petitioner on the basis of the income of her family, which was admittedly of prior to the date of appointment. While concluding his arguments, Mr. Dadwal, forcibly contended that till the time ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -6- income certificate having been issued by the competent authority i.e. Tehsildar was not cancelled, Deputy Commissioner .
had no authority/power to cancel the appointment of the petitioner having been made by the respondents on the ground of income certificate. In the aforesaid background, Mr. Dadwal, prayed that present petitioner may be allowed to continue of against the post of Aganwadi Worker after setting-aside the order having been passed by the Deputy Commissioner, Kangra.
7. rt Mr. P.M. Negi, Additional Advocate General, duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, supported the impugned order passed by Deputy Commissioner, Kangra. Mr. Negi, vehemently argued that there is no illegality and infirmity in the order having been passed by learned Deputy Commissioner, which is based upon the report of the Tehsildar, which clearly suggests that income of the petitioner family Smt. Sunita Devi as well as respondent No.4, Smt. Sartanjla Devi was more than the income fixed in the eligibility criteria for the appointment of Aganwadi Worker and as such, learned Deputy Commissioner rightly directed the 'CDPO' to conduct fresh interview after following due procedure. Learned Additional Advocate General, further contended that present ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -7- petition is not maintainable, especially in view of the fact that the petitioner without resorting to the alternate remedy of .
appeal available to her has approached this Court directly and as such 'same deserve to be dismissed on this sole ground only.
8. I have heard learned counsel for the parties as well carefully gone through the record.
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9. Record reveals that learned Divisional Commissioner vide order dated 26.2.2009(Annexure P-4), remanded back the rt case to the Deputy Commissioner, Kangra with the direction to enquire the annual income from all sources of both the parties.
Perusal of order, dated 18.12.2010(Annexure P-7), clearly suggests that pursuant to aforesaid direction having been passed by learned Divisional Commissioner, Deputy Commissioner on the request of both the parties, directed the Tehsildar Baijnath, to verify the annual income of both the parties i.e. petitioner as well as respondent No.4. It further emerge from the impugned order passed by the Deputy Commissioner that Tehsildar, Baijnath referred the matter to Tehsildar, Palampur to verify the income of both parties because their area was under his jurisdiction. As per the report, Tehsildar, Palampur conducted the inquiry by associating both ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -8- the parties and submitted his/her report on 19.10.2010, which was agreed by both the parties. Impugned order further .
suggests that the report submitted by Tehsildar was made available to both the parties, qua which they did not raise any objection. As per the report submitted by the Tehsildar, the total income of Smt. Sunita Devi i.e. petitioner from all sources of works out to be `56,612/-, whereas total income of respondent No.4, Smt. Sartanjla Devi from all sources works out to be rt `24,004/- and as such, learned Deputy Commissioner rightly came to the conclusion that petitioner as well as respondent No.4 are not eligible to be appointed to the post of Aganwadi worker, since they have income more than the income fixed in the eligibility criteria for the appointment of Anganwadi worker.
10. After perusing the impugned order having been passed by the Deputy Commissioner, this Court sees no force in the contention put forth on behalf of the learned counsel for the petitioner that at the time of making report, parties were not associated because order clearly reveals that report of the Tehsildar was made available to both the parties, but despite that no objection, whatsoever, were raised to the same by either of the parties. Hence, this Court sees no reason to ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP -9- disbelieve the report having been submitted by the Tehsildar, whereby he specifically came to conclusion that income of both .
the parties i.e petitioner as well as respondent No.4 is more than the income fixed in the eligibility criteria for the appointment of Anganwadi worker.
11. In view of the above, this Court sees no of illegality and infirmity in the order passed by learned Deputy Commissioner and as such, same needs to be upheld. At this rt stage, Mr. Dushyan Dadwal, learned counsel representing the petitioner, invited the attention of this Court to the Judgment passed by the Division Bench of this Court in case Raksha Devi versus State of H.P and others 2010(2) Him. L.R.(DB) 964, to suggests that since income certificate issued by the authority concern was not cancelled, petitioner could not be deprived of her post. This Court, with a view to ascertain the genuineness and correctness of the statement having been made by learned counsel for the petitioner, carefully perused the judgment passed by the Division Bench of this Court. It would be profitable to reproduce para Nos. 5 to 7 of the judgment herein:-
"5. In case the authority is of the view that the income certificate issued to any Anganwadi Worker/Helpers in these cases, is not based on proper computation of ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP
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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 of appointed, based on the income certificates, they produced at the relevant time.
6. There will be a direction to the appellate authority in rt these cases, to take appropriate steps in the cases where a dispute on income is involved, to get the same 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.::: Downloaded on - 15/04/2017 21:46:31 :::HCHP
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7. Coming to the other cases, issues involved pertain to eligibility conditions other than income. In some cases .
issue raised is as to the computation of income, based on the family status. Family status is to be decided, based on the cut off date, namely 1.1.2004. The Parivar Register is the basic and conclusive evidence with regard to the family status. Therefore, computation of income should be on the basis of the members of the of family, entered in the Parivar register as on 1.1.2004 and not on any other certificate. We find that in some of the cases, for the only reason that the family had not rt been separated as on 1.1.2004, the candidates were disqualified. The separation of the family as on 1.1.2004, is not a pre requisite condition to make a person eligible for appointment. The eligibility criterion, as appearing in the Guidelines, at 4(e) reads as follows:-
" 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"
Clause 4 (f) also has to be read, in conjunction with clause(e), which reads"-
"Those whose annual income does not exceed Rs.8000/- per annum, to be certified/ countersigned by an officer not below the rank of Tehsildar."
12. True, it is that perusal of the aforesaid judgment passed by the Division Bench of this Court, clearly suggests that if income certificate issued to any Anganwadi Workers/Helpers is not based on proper computation of income, it will be open to the competent authority to take steps to cancel the same but cancellation, if any, shall only be, after affording an opportunity ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP
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of hearing to the incumbent concerned. Aforesaid judgment further suggests that if 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 posts, to which he/she was appointed, based on the income of certificate produced by her at the relevant time.
13. In the instant case, as clearly emerged from the rt order passed by the Deputy Commissioner, authority concerned who had issued income certificate i.e Tehsildar, Palampur/ Baijnath was called upon by the Deputy Commissioner to submit detailed report, who after ascertaining the facts from the field and after associating both the parties submitted his/her report dated 19.10.2010 stating therein that income of both the parties i.e. petitioner as well as respondent No.4 is more than the income fixed in the eligibility criteria for the appointment of Anganwardi worker. Since, Tehsildar, Palampur/ Baijnath submitted his/her report dated 19.10.2010 after associating parties concerned, who had not raised any objection to his/her report, this Court has no hesitation to conclude that it can be safely inferred that income certificates issued in favour of the ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP
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petitioner and respondent No.4 were duly cancelled by the authority concerned and as such, it cannot be accepted that no .
opportunity, whatsoever, was afforded to the person concerned before cancelling the income certificate issued in their favour. In the instant case, it also emerge from the record that during this aforesaid process of verification, present petitioner had been of working as Anganwadi worker in terms of order dated 18.4.2011, passed by this Court and at no point of time she was rt removed from the post.
14. Moreover, perusal of the aforesaid judgment passed by the Division Bench of this Court, clearly suggests that authority concerned is/was required to afford an opportunity to affected parties to participate in the verification process before cancellation of their income certificate. In the instant case, as has been discussed hereinabove, Tehsildar before making detailed report dated 19.10.2010, associated both the parties and submitted his/her report on the basis of facts ascertained by him/her from the field and as such, there is no illegality and infirmity in the order passed by the Deputy Commissioner, Kangra.
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15. It also emerged from the record that present petitioner directly approached this Court by way of instant writ .
petition against the order dated 18.12.2010, passed by Deputy Commissioner without availing the remedy of appeal before the Division Commissioner, who had actually remanded the case back to the Deputy Commissioner, Kangra. Hence, this Court of sees substantial force in the arguments having been made by learned Additional Advocate General that at first instance rt petitioner ought to have filed an appeal before the Division Commissioner, laying challenge therein to the order passed by the Deputy Commissioner.
16. Consequently, in view of the aforesaid discussion made hereinabove, the present petition is dismissed being devoid of any merit. However, 'CDPO', Baijnath is directed to conduct fresh interviews, as has been ordered by Deputy Commissioner, Kangra, after following due procedure and complete the process within a period of four weeks from today, wherein petitioner as well as respondent No.4 are also at liberty to participate, if they are eligible. Since the petitioner has been continuously working as Aganwardi worker for considerable ::: Downloaded on - 15/04/2017 21:46:31 :::HCHP
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time, she may be allowed to work in the same capacity till the time fresh selection is made by 'CDPO,' Baijnath.
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Accordingly, the present petition is disposed of alongwith pending application(s), if any.
December 19, 2016 (Sandeep Sharma),
( Shankar) Judge.
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