Himachal Pradesh High Court
Smt. Dayawanti vs State Of Hp & Others on 16 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 11466 of 2011
Reserved on 4.9.2015
Decided on:16.9.2015
Smt. Dayawanti ...Petitioner
Vs
State of HP & others ...Respondents.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the Petitioner :
rt Mr. B.C. Verma, Advocate.
For the Respondents : Mr. V.K. Verma, Ms.Meenakshi
Sharma, Mr. Rupinder Singh, Addl.
AGs with Ms.Parul Negi, Dy.AG for
respondents 1 to 4.
Mr. Hamender Chandel, counsel for
respondent No.5.
Tarlok Singh Chauhan, Judge:
By the medium of this petition under Articles 226/227 of the Constitution of India, the petitioner has sought quashing of the order passed by respondent No.2 Additional District Magistrate,Shimla dated 15.12.2011, whereby appeal filed by respondent No.5 was allowed and consequently the appointment of the petitioner as Anganwari worker in Anganwari Centre, Nadukhar has been ordered to be set aside.
Facts, in brief, may be noticed.
2. Interviews for the post of Anganwari workers/ helper were conducted by the Child Development Project Officer, Basantpur on 17.3.2008. The petitioner along with other candidates including respondent No.5 participated in the ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 2 selection process and vide order dated 24.3.2008, petitioner came .
to be appointed and joined duties on 25.3.2008.
3. Respondent No.5 assailed the selection of petitioner by filing an appeal before the Deputy Commissioner, Shimla on 3.4.2008, however, the same was dismissed vide order dated of 1.7.2008.
4. This led to filing of second appeal at the instance of rt respondent No.5 before the Divisional Commissioner, Shimla, who vide his order dated 16.4.2009 allowed the same. However, the petitioner at that stage approached this court by filing CWP No. 1471 of 2009 and this court disposed of the same by remanding back the matter for decision afresh in light of the observations made in the judgment.
5. Respondent No.5, in light of the directions passed by this court, preferred an appeal before respondent No.2, who allowed the same by concluding that the petitioner was not a member of the family of Sh. Khem Raj as on the cut off date i.e. 1.1.2004 and that husband of the petitioner had not separated from the family in accordance with the provisions of the Panchayati Raj Act and Rules. It is this order which has been assailed on various grounds as taken in the petition.
6. The official respondents have opposed the petition by filing a reply wherein they have justified the order impugned herein. Similarly, the respondent No.5 has filed a separate reply, ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 3 opposing the claim of the petitioner and at the same time .
supporting the order impugned herein.
I have the learned counsel for the parties and have gone through the records of the case.
7. It is not in dispute that prior to the passing of the of impugned order by respondent No.2, an inquiry had been got conducted through SDM, Shimla (Rural) and even the original rt records had been summoned from the Secretary, Gram Panchayat, Basantpur. Further, in order to satisfy the correctness of the order passed by respondent No.2, even this court vide order dated 27.8.2008 had called for the complete records pertaining to the family of the petitioner.
8. A perusal of the original parivar register maintained by the Panchayat reveals that there is an entry "Parivar Alag/12/2003", but there is no contemporaneous record supporting such entry. In fact, there is no mention as to when the petitioner was entered in the parivar register and as to who is the actual head of the family.
9. The name of the petitioner has been entered at serial No.9 and similarly names of her two children stand entered at serial Nos. 11 and 12 in a joint family. In case the petitioner would have been separated from the joint family, as is contended by her, then I see no reason why the names of her children, who were born in the year 2005 and 2006 respectively, have been ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 4 shown in the joint family. Therefore, in such circumstances, no .
fault can be found with the order passed by respondent No.2 when he observes that in case the husband of the petitioner had in fact separated from the principal family, then there should have been separate entries reflecting therein the head of the family and of thereafter separate serial numbers were required to be assigned to the members of such separated family.
rt
10. At this stage, it is apt to refer to Rule 21(2) of the H.P. Panchayati Raj (General) Rules, 1997, which governs the procedure for family separation and reads thus:
"(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. upto 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 shall only be entered in the Pariwar Register on the recommendation of the Block Development Officer, given by him after due inquiry, and order thereon by Sub Divisional Officer (C ) concerned. 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 ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 5 on the goshwara prepared by Panchayat Secretary .
on Form 19-A."
11. Evidently, the procedure as prescribed above has not been followed in the case of the petitioner. In fact, there is neither of any reference of recommendation of BDO/ order of Sub Divisional Magistrate nor any verification of separate family rt done by the Panchayat Inspector is available on record, which clearly establishes that the procedure as prescribed in Rule 21(2) (supra) has not been followed in the case of the petitioner and, therefore, mere entry of 'Parivar Alag/12/2003' is of no assistance to the petitioner.
12. Having said so, no fault can be found with the impugned order which has been passed strictly in accordance with law.
13. Learned counsel for the petitioner would, however, argue that even respondent No.5 who has been ordered to be appointed in place of the petitioner is herself not eligible. It is contended that her family does not belong to the feeding area and that apart she herself is living in a joint family and having landed property at revenue villages Bagain, Taror and Shakrori from which the joint family is deriving an income of more than Rs.
1.00 lac. In addition to the aforesaid, the mother- in-law of respondent No.5 is also getting pension.
::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 614. I have considered the aforesaid submissions, but .
find myself unable to adjudicate on these questions for the simple reason that none of the contentions as raised herein were ever raised before the authorities below. The essential feature of a writ of 'certiorari' is that the control which is exercised through it of over judicial or quasi-judicial Tribunals or bodies is not in an appellate, but supervisory capacity. In granting a writ of rt 'certiorari', the superior court does not exercise the powers of appellate Tribunal. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior Tribunal.
15. In view of the aforesaid discussion, I find no merit in the petition and the same is accordingly dismissed, leaving the parties to bear the costs.
(Tarlok Singh Chauhan), Judge.
September 16, 2015 (sl) ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP