Madhya Pradesh High Court
Smt Anjul Kushwaha W/O Shri Bal Govind vs State Of M.P.Th; Principal Secretary on 1 February, 2018
WP No. 1763/2009
The High Court of Madhya Pradesh
Bench at Gwalior
SINGLE BENCH
: (Vivek Agarwal, J.)
Writ Petition No. 1763/2009
Smt. Anjul Kushwaha
Vs.
State of M.P.
Whether approved for reporting :
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Shri K.B. Chaturvedi, learned senior counsel with Shri G.P.
Chaurasiya, learned counsel for the petitioner.
Shri Harish Dixit, learned Govt. Advocate for the respondent/State.
Shri R.S. Rathore, learned counsel for respondent No. 5.
JUDGMENT
(01.02.2018) Petitioner has filed this petition being aggrieved by order dated 13.03.2009 passed by Commissioner, Chambal Division, Morena, whereby appeal filed by the private respondent- Smt. Neelam Rathore has been accepted and the appointment order as Anganwadi Karyakarta issued through the order of the Collector in favour of the present petitioner, who was respondent No. 1 before the Court of Commissioner, has been set aside.
2. Petitioner's contention is that the petitioner belongs to BPL category as can be seen from Ration Card (Annexure P/5) in which her name is mentioned alongwith her sister-in-law (Nanad) Rajabeti. Further reliance has been placed on affidavit (Annexure P/5-A) in which the petitioner depicted herself as a deserted woman and mentioned in the affidavit that for last one year her husband is torturing her and, therefore, she is a deserted woman. Third ground is that petitioner has certificates of teaching 16 persons as Guruji as WP No. 1763/2009 The High Court of Madhya Pradesh Bench at Gwalior contained in Annexure P/9 and another certificate from Govt. Primary School, Lahari, Bhind showing herself as Voluntary Teacher who worked from 01.10.2006 to 30.04.2007. The petitioner has also enclosed copy of one certificate as Anganwadi Karyakarta as contained in Annexure P/17, wherein it has been shown that the petitioner worked as Anganwadi Karyakarta w.e.f. 10.11.2008 to 09.12.2008. Placing reliance on such certificates, petitioner submits that in terms of the scheme of appointment of Anganwadi Karyakarta petitioner should have been granted 10 marks for BPL card holder, 10 marks for being a deserted woman and 10 marks for her experience as Guruji/Anganwadi Karyakarta/teaching experience in primary school. The fourth ground which has been taken by the petitioner is in regard to limitation that private respondent No. 5 had not filed the appeal before the Commissioner within the prescribed period of limitation, which has been shown to be 10 days in the policy (Annexure P/2) and therefore, the appeal was barred by time and such appeal should not have been entertained by the Commissioner. In support of this ground, learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the case of Ragho Singh Vs. Mohan Singh reported in (2000)2 MPWN 267, wherein it has been held that if there is no application for condonation filed and appeal is barred by limitation, then the limitation cannot be condoned in the absence of such application for condonation of delay.
3. Learned counsel for the petitioner has also taken this Court through the representation which was made by her to the Project Officer as is contained in Annexure P/13 dated 15.09.2007. This representation addressed to the Project Officer reveals that she had sought marks on two grounds namely; 10 marks for being a BPL card holder and 10 marks for her experience as a teacher (Shishu Didi WP No. 1763/2009 The High Court of Madhya Pradesh Bench at Gwalior Padhna Badhna Anubhav), however, she had not claimed any mark for being a deserted woman in the representation which was filed before the Project Officer. This was the first representation made by the petitioner against the Provisional Select List issued by the respondent.
4. It is petitioner's contention that since the representation was not decided by the Project Officer and he had issued an appointment order in favour of respondent No. 5 Ku. Neelam Rathore on 25.10.2007, therefore, the petitioner had filed an appeal before the Collector, Bhind which has been decided vide order dated 18.09.2008 (Annexure P/15).
5. This appeal has been decided by Collector only on the sole ground that the petitioner is a deserted woman and therefore, if 10 marks would have been granted to her she would get 43 marks as against 36 marks secured by private respondent Ku. Neelam Rathore. On the basis of such analysis, when the Collector, Bhind allowed the appeal then private respondent Neelam Rathore had filed second appeal before the Court of Commissioner, Chambal Division, Morena.
6. It will be necessary to point out that Collector did not consider any other ground namely BPL card holder and her experience (Shishu Didi Padhna Badhna Anubhav) and treated her to be a deserted woman and directed for issuance of order in her favour.
7. These arguments gave rise to following issues namely :-
(i). Whether the certificate obtained by the petitioner as Anganwadi Karyakarta after the selection process is valid certificate?
(ii). Whether the certificate produced by the petitioner of working as Guruji and also as a voluntary teacher as are contained in Annexure P/9 and P/10 will entitle the petitioner to get 10 marks as per sub para 4 of clause 2(A) of the policy (Annexure P/2)?WP No. 1763/2009
The High Court of Madhya Pradesh Bench at Gwalior
(iii). Whether the BPL card obtained by the petitioner alongwith her sister-in-law can be said to be a valid card entitling her to secure 10 marks on account of her place in BPL category?
(iv). Whether the Commissioner exceeded his jurisdiction in condoning the delay in filing the appeal as was filed by the private respondent?
8. As far as issue No. 1 is concerned, learned counsel for the petitioner gracefully admits that the certificate (Annexure P/17) is for the period after recruitment process was complete is of no value to her, therefore, next issue which arises is whether certificate contained in Annexure P/9 and P/10 pertaining to teaching experience can be considered for granting 10 marks as per sub para 4 of clause 2 (A) of the Policy (Annexure P/2):-
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9. Reading of sub para 4 of the Policy in clause 2(A) reveals that:-
(i). When circular dated 10.07.2007 is read with Circular dated 27.07.2000, as has been discussed by the High Court at Principal Seat, Jabalpur in case of Smt. Shashikala Patel Vs. State of M.P. decided in W.P. No. 3673/2013, on 03.12.2013, it is apparent that 10 weightage marks are given in lieu of 5 years experience as Didi.
Since petitioner did not possess 5 years teaching experience as didi she is not entitled for 10 weighted marks.
(ii). Secondly, marks for teaching in Balwadis being run by Urban Development Authorities are to be given. But Annexure P/9 is from WP No. 1763/2009 The High Court of Madhya Pradesh Bench at Gwalior Gram Panchayat and not from a Balwadi of a Urban Development Authority.
10. There are no weightage marks prescribed for experience vide Annexure P/10 as a voluntary teacher, therefore, petitioner is not entitled to any marks on account of her teaching experience as is contained in Annexure P/9 and P/10.
11. As far as her status as a deserted woman is concerned, Commissioner has categorically recorded a finding that though the petitioner has filed an affidavit that she is a deserted woman but in the form which was filled by her for appointment as Anganwadi Karyakarta, she has shown her status as that of a married woman and not of a deserted woman, therefore, it can be conveniently concluded that the petitioner was not a deserted woman as per the application form. Besides this, petitioner has not disclosed any ground for claiming any marks on the basis of she being a deserted woman before the Project Officer as can be seen from her first application (Annexure P/13).
12. This Court is of the opinion that subsequently merely to seek an appointment petitioner has suppressed the fact of residing with her husband and close relatives and projected herself to be a deserted woman. Thus, on the ground of being a deserted woman, petitioner is also not entitled to claim any marks and she could not have secured any marks on this ground, therefore, the Collector erred in granting marks treating petitioner to be a deserted woman.
13. As far as BPL card is concerned, petitioner has placed reliance on the fact that Anneuxre P/5 i.e. BPL card is a public document and therefore, it cannot be disputed.
14. The petitioner has failed to explain that how sister-in-law (Nanad) will be construed as a family of petitioner when her husband is still alive and has not treated her as a wife who has been WP No. 1763/2009 The High Court of Madhya Pradesh Bench at Gwalior deserted. The petitioner may have in individual capacity/identity or alongwith her husband and her in-laws but by no stretch of imagination status of sister-in-law as per the Hindu Law and customs can be considered to be head of family of the petitioner being a married woman and therefore, family card showing herself in BPL category will not give assistance to the petitioner and therefore, the petitioner is not entitled to claim any marks for being a BPL Card holder when she has tried to claim this status on the strength of Family Card issued to her Nanad especially when her husband is alive.
15. Now the only issue survives for adjudication is the ground of condonation of delay. The main order reveals that the Commissioner has considered the issue of delay and after considering the grounds, has condoned the delay. Once the delay has been condoned and ground was made out to condone the delay, there is no material to show that there was no application before the Commissioner to condone the delay, therefore, the ratio of the law laid down in the case of Ragho Singh (supra) will not be applicable to the facts and circumstances of the case. Even otherwise it is settled principle of law that technicalities should never be used to defeat the substantial rights of the other party. In the present case, the petitioner has not approached any of the forum as has been narrated above with clean hands, therefore, questioning the jurisdiction of the Commissioner on the basis of technicality, no relief can be granted. Thus, the petition fails and is dismissed.
(Vivek Agarwal) Judge Digitally signed by NEETU SHASHANK Date: 2018.02.16 16:40:33 +05'30'