Himachal Pradesh High Court
Smt. Ramna Devi vs State Of Himachal Pradesh And Others on 2 November, 2020
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 683 of 2019
Date of decision: 02.11. 2020
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Smt. Ramna Devi ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
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Coram:
Ms. Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioner:
For the Respondents:
r to
Mr. Sanjeev K. Suri, Advocate
Mr. Amit Dhumal, Deputy Advocate
General, for respondents No. 1 to 4.
Mr. Abhinav Purohit, counsel for
respondent No. 5.
Through Video Conferencing
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Jyotsna Rewal Dua,J. (Oral)
An Income Certificate issued in favour of the petitioner was cancelled by Tehsildar Dehra, District Kangra, H.P. This order has been upheld by the Sub Division Magistrate/Collector Dehra, District Kangra, H.P. Aggrieved, the 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 2petitioner, an Anganwari Worker, has instituted instant writ petition.
2(i) Petitioner was appointed as an Anganwari Worker, .
inter alia, on the strength of an Income Certificate No. 706/MC issued in her favour on 14.05.2007 by the concerned Tehsildar. The Certificate depicted petitioner's income from all sources as Rs.
7,000/- p.a. 2(ii) Appeal was preferred by respondent No. 5 against selection and appointment of the petitioner specifically taking a ground that the Income Certificate of the petitioner was not in consonance with law and facts inasmuch as pension of petitioner's mother-in-law, Smt. Hari Devi, which was required to be included while computing petitioner's income, was not taken into consideration. During hearing of this appeal on 10.02.2010, the Appellate Authority pursuant to a judgment passed on 17.05.2010 in CWP No 1096 of 2010, Raksha Devi Vs. State of H.P. (leading a bunch of writ petitions including CWP No. 1555 of 2010, Ramna Devi Vs. State of H.P.) directed the Competent Authority-the concerned Tehsildar to inquire into the veracity of the Income Certificates issued to the parties as on the relevant date.
::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 32(iii) Vide order dated 23.07.2011, Tehsildar Dehra verified the correctness of Income Certificate issued in favour of the petitioner. Petitioner did not object to the Income Certificate .
issued in favour of respondent No. 5. She also recorded her statement to this effect. Accordingly, there being no objection, veracity of Income Certificate of respondent No. 5 was also affirmed in the order dated 23.07.2011.
2(iv) Appeal against the order dated 23.07.2011 was allowed by Sub Division Magistrate (SDM) Dehra on 26.12.2011 and the matter was remanded to the Tehsildar for fresh decision.
On remand, the Tehsildar after examining the matter afresh vide order dated 07.08.2014, held that the petitioner had not separated from her mother-in-law in accordance with the procedure prescribed under Rule 21(2) of Himachal Pradesh Panchayati Raj (General) Rules, 1997 as existed on the date of alleged separation.
Deletion of name of mother-in-law of the petitioner from the 'parivar register' was illegal. Therefore, pension of Hari Devi, mother-in-law of the petitioner was required to be included while computing petitioner's income. Consequently, the Certificate dated 14.05.2007 issued in favour of the petitioner reflecting her ::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 4 annual income as Rs. 7,000/- was cancelled. This order was upheld by SDM Dehra on 20.02.2017 in Appeal No. 25 of 2014, instituted by the petitioner. CWP No.1478 of 2017 preferred by the petitioner .
challenging the order dated 20.02.2017 was withdrawn on 28.08.2017 with liberty to file afresh. Fresh writ petition bearing No. 2944 of 2017 was allowed on 10.10.2018. The impugned order dated 20.02.2017 passed by SDM Dehra was quashed and set aside on the basis of 'mutually agreed terms' between the parties. SDM Dehra was directed to consider and decide the matter afresh on its own merits, in accordance with law.
2(v) After remand, SDM Dehra, District Kangra heard the petitioner and vide his order dated 14.02.2019 reached at the same conclusions as were drawn in the earlier order dated 20.02.2017.
The order passed by the Tehsildar on 07.08.2014 cancelling the Income Certificate of the petitioner dated 14.05.2007 was upheld.
Aggrieved against cancellation of her Income Certificate under the order dated 14.02.2019, passed by the Sub Divisional Magistrate Dehra affirming the order dated 07.08.2014 passed by the Tehsildar Dehra, petitioner has preferred instant writ petition.
::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 53. Heard learned counsel for the parties and gone through the record.
4. Learned counsel for the petitioner submitted that the .
authorities below had wrongly adjudicated the matter. Pension received by Hari Devi, mother-in-law of the petitioner could not be added to the petitioner's income as she had separated from the family vide resolution No. 2, dated 01.02.2002 passed by Gram Panchayat Tripal. Learned counsel further argued that this resolution has not been challenged by the private respondent till date. Name of mother-in-law of the petitioner stood deleted from the 'Parivar Register'. It is only the income of those family members whose names figure in the Parivar Register, which is to be taken into consideration while computing petitioner's income.
In this regard, learned counsel for the petitioner relied upon following paragraph from the judgment in Raksha Devi's case (supra) :-
"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 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 ::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 6 the family had not 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."
Learned counsel for respondent No. 5 contended that alleged separation of Hari Devi, mother-in-law of the petitioner, was not in consonance with the mandatory procedure prescribed under the Himachal Pradesh Panchayati Raj (General) Rules.
Therefore, pension received by Hari Devi had to be reflected and included in the Income Certificate of the petitioner.
On the strength of reply filed by respondents No. 1 to 4, Mr. Amit Dhumal, learned Deputy Advocate General supported the impugned decisions rendered by the authorities below.
5. Rule 21(2) of the Himachal Pradesh Panchayati Raj (General) Rules 1997 pertains to maintenance of Parivar Register and registration of birth, death and marriages. It also provides for the procedure to be followed in respect of separation of families.
The rule as it existed on the alleged date of separation i.e. 01.02.2002 reads as under :-
::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 7"21(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 SDO(Civil) 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 on the goshwara prepared by Panchayat Secretary on Form 19-A. "
A reading of above extracted rule makes it evident that in the event of division of the family, the separation of the family 'shall only' be entered in the Parivar Register on the recommendation of Block Development Officer after conducting due inquiry. Thereafter an order has to be passed thereupon by the concerned Sub Divisional Officer (C). Reference in this regard can also be made to a Division Bench judgment of this Court in CWP No 8851 of 2011, Pooja Devi Vs. State of H.P. and others, decided on 11.11.2011. The relevant paragraph of the same is extracted hereinbelow :-
::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 8"7. It is not out of place to mention here that at that time, i.e., in year 2007 "Himachal Pradesh Panchayati Raj (General) Rules, 1997" were in vogue. Chapter III thereof governs, the conduct of business, functions and powers of the Gram Panchayat. Section 21 .
thereof lays down the procedure for maintaining Pariwar Register(s) etc. and sub-rule (2) of rule 21, ostensibly says that in the event of division of family, separation of family shall only be entered in the Pariwar Register on the recommendation of the BDO, given by him after due enquiry, pursuant to order thereon by the Sub Divisional Officer (Civil) concerned. It shall also be the duty of the Panchayat Inspector to verify these entries after satisfying himself about the reasons recorded by the Panchayat Secretary and he shall also put his initials on the Goshwara prepared by Panchayat Secretary on Form 19-A appended to the Rules. But no such procedure has been complied with, which is certainly required to check unscrupulous and wrong entries made to ditch the authorities/public by ultimate beneficiaries in collusion with corrupt officials.
8. Further 4 (e) of the guidelines/Scheme of Anganwari Helpers/workers says that 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 shall be construed a separate family. It appears that to meet this requirement a fraud was played in collusion with Panchayat Sahayak to show it a separate family unit, ignoring the legal procedure. Thus, ADM was not justified in accepting the petitioner's family as a separate Unit from her father-in-law Bansi Lal, a retiree getting monthly pension @ Rs. 16693/- (Annexure R3/7) which was patently and apparently illegal. Instead of lodging an enquiry against the Panchayat Secretary/ Sahayak for committing this illegality, he virtually tried to legalize the illegality, which is absolutely deplorable."::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 9
Admittedly, the mandatory procedure as prescribed in the Himachal Pradesh Panchayati Raj (General) Rules 1997 with respect to division of family was not followed in the instant case.
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The judgment in Pooja Devi's case (supra) was delivered later in point of time and is applicable to the case. Para 7 of the judgment in Raksha Devi's case (supra) dealt with issue of eligibility conditions viz-a-viz cut off date of separation and family status as recorded in pariwar register. The Rule 21(2) of Himachal Pradesh Panchayati Raj (General) Rules was not involved in that case. In the instant case, record demonstrates that separation/deletion of name of Hari Devi, mother-in-law of the petitioner from her family was not in consonance with mandatory provisions of Himachal Pradesh Panchayati Raj (Geneal) Rules 1997 as they existed on the alleged date of separation i.e. 01.02.2002. The argument that respondent No. 5 was required to challenge Resolution No. 2 dated 01.02.2002 allegedly passed by Gram Panchayat regarding separation of petitioner from her mother-in-law's family cannot be accepted especially when deletion of name of Smt. Hari Devi-the mother-in-law from petitioner's family was not carried out in consonance with the mandatory procedure prescribed under Rule ::: Downloaded on - 03/11/2020 20:18:51 :::HCHP 10 21(2) of the Himachal Pradesh Panchayati Raj (General) Rules 1997 as they existed on alleged date of separation. Cause of action accrued to respondent No. 5 when petitioner was selected as an .
Anganwadi Worker and not on the date of passing of alleged resolution dated 01.02.2002. Respondent No. 5 in her appeal against the selection and appointment of the petitioner as an Anganwari Worker had questioned veracity of the Income Certificate issued to the petitioner by asserting that the pension received by petitioner's mother-in-law Smt. Hari Devi had to be included while computing petitioner's income. She has been pursuing her legal remedies in respect of the incorrect computation of the petitioner's income right from the very beginning.
In view of the above discussion, I find no infirmity in the impugned orders passed by learned Authorities below cancelling Income Certificate issued in favour of the petitioner.
The writ petition, therefore, is dismissed without there being any merit. Pending applications, if any, also stand disposed of.
2nd November, 2020 (K) Jyotsna Rewal Dua,
Judge
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