Allahabad High Court
Smt. Saroj Devi vs State Of U.P. And Others on 20 July, 2010
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
Court No. - 30 Case :- WRIT - A No. - 23269 of 2007 Petitioner :- Smt. Saroj Devi Respondent :- State Of U.P. And Others Petitioner Counsel :- Suneet Kumar Respondent Counsel :- C.S.C.,A. Chaudhary Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and the learned standing counsel for the respondent nos. 1 to 4 and Sri Anshu Chaudhary for the respondent no.5.
The petitioner claims appointment as Aaganbari Karyakarti. The dispute arose on account of a complaint being lodged by the respondent no.5 on the ground that the petitioner is not a resident of Village Antahiya where the appointment has to be made.
The essence of the compliant was that the petitioner is married to one Chandra Bhushan Dwivedi who is a resident of Village Panasa and therefore the petitioner will be deemed tobe a resident of the said Village for which evidence was produced in the shape of voters list and extract family register.
The respondent no.5 approached this Court by filing a Writ Petition No. 5657 of 2006 in which a direction was issued on 11.10.2006 to examine her claim and then pass an order. The Sub Divisional Magistrate Karchana district Allahabad passed the impugned order on 4.3.2007 recording that the petitioner is neither a divorcee nor she has a declaration from the appropriate court declaring that her husband will be deemed to be dead as he is untraceable for the past 10 years . On these two grounds the claim of the petitioner has been rejected. An interim order was passed on 16.5.2007 and the contesting respondent was called upon to file a counter affidavit. A counter affidavit has been filed to which rejoinder affidavit has also been filed by the said contesting respondent.
Learned counsel for the petitioner contends that the impugned order proceeds on erroneous assumptions of law in as much as the fact in relation to the husband of the petitioner that he is untraceable remains uncontested and in that event, there was no occassion for the the Sub Divisional Magistrate to have non-suited the petitioner on the ground that the petitioner ought to have obtained a declaraion from the court of competent civil jurisdiction.
The second ground in relation to the residence of the petitioner has been met by inviting the attention to the recital contained in the order dated 4.3.2007 that the petitioner after her husband became untraceable is residing of with her father in Village Antahiya. It is submitted that on both counts in facts and law the order impugned is erroneous and is liable to be set aside.
Sri Chaudhary learned counsel for the respondent contends that after the marriage of the petitioner the petitioner will be treated to be a resident of the same village where her husband belongs to namely Panasa.
Learned counsel for the petitioner in rejoinder invitied the attention of the court to the certificate issued by the Gram Pradhan of Village Antahiya to urge that since 1999 the petitioner is residing in village Antahiya itself.
Having considered the aforesaid submissions and the affidavits exchanged between the parties and after having heard learned standing counsel, the position that emerges is that according to the relevant government order a candidate has to be a resident of the same village where the appointment is to be made.
Learned counsel for the respondent has urged that the government order does not acknowledge the status of the applicant as a person or candidate entitled for the benefit of appointment in that category. The aforesaid submission in my opinion is devoid of merit inasmuch as the petitioner has come out with a case that once the whereabouts of her husband are not known for the past 20 years and the aforesaid fact remains undisputed, then in that view of the matter the civil death of that person will be presumed and she will belong to the category of single status woman as indicated in the government order. In such circumstances in my opinion the government order will have to be interpreted so as to extend the benefit to such category of women as well. The petitioner was entitled to the benefit of the government order and the finding recorded by the Sub Divisional Magistrate that a declaration from competent court was necessary is absolutely unsustainable in law.
Accordingly the order dated 4.3.2007 is set aside in view of the decisions of the Apex Court in the case of Ram Bilas and another Vs. Jagat Narain Shrivastava reported in 1994 Supp (2) SCC 113 and Hemant Kishore Vs. Brij Raj Kishore reported in AIR 1998 Allahabad
328. So far as the question of the residence of the petitioner is concerned the petitioner relies on the certificate issue by the Gram Pradhan. The impugned order does not indicate any consideration of the said certificate nor does it examine the question of the status of the residence of the petitioner at Village Antahiya.
In such circumstances the S.D.M.,Karchana, Allahabad shall proceed to pass a fresh order in the light of the observations made hereinabove within3 months from the date of production of a certified copy of this order before him.
The writ petition allowed. No order as to costs.
Order Date :- 20.7.2010 mna