Himachal Pradesh High Court
Smt. Raksha Devi vs State Of H.P. And Others on 29 July, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 11890 of 2011
.
Reserved on: 27.07.2016
Date of decision: 29.07.2016
Smt. Raksha Devi .... Petitioner
of
Versus
State of H.P. and others .... Respondents
Coram :
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. H.S. Rana, Advocate.
For the respondents: Ms. Parul Negi, Deputy Advocate
General, for respondents No. 1 to 5.
Mr. Rajiv Rai, Advocate, for respondent
No. 6.
Ajay Mohan Goel, J.:
This writ petition has been filed praying for the following reliefs:-
"1. That the orders of Additional District Magistrate dated 06/07/2011 (Annexure P-7) and order dated 14/12/2011 of Divisional Commissioner, Mandi (Annexure P-8) may kindly be set aside being totally against the directions of this Hon'ble High Court in CWP No. 2044/2008 dated 17/05/2010 (Annexure P-6) and being totally wrong, illegal, arbitrary, 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:55:22 :::HCHP 2
discriminatory and against the principles of natural justice.
2. That the appointment of Respondent no. 6 .
may kindly be set aside being wrong and illegal as the Respondent no. 6 was not in the selection list.
3. That the appointment of the petitioner may be held valid and may be allowed to work as of Anganwari worker at Dolra in continuation of her initial appointment.4.
rt That the order of CDPO in setting aside the appointment of petitioner dated 03/10/2008 (Annexure P-3) may also be set aside being wrong and illegal.
5. That record of the case may be summoned for the kind perusal of this Hon'ble High Court."
2. Brief facts necessary for the adjudication of the present case are that the present petitioner was appointed as Anganwari Worker at Anganwari Centra, Dolra, District Bilaspur, in the year 2007, which appointment of her was challenged by one Smt. Meena Devi (respondent No. 6 in the present petition) before the Appellate Authority prescribed under the scheme/guidelines for the engagement of Anganwari Workers/Helpers i.e. Deputy Commissioner, Bilaspur. The Appellate Authority vide order dated 29.02.2008 set aside the appointment of the present petitioner as Anganwari Worker at Anganwari Centre, Dolra, on the ground that income of the family of the present petitioner was more than Rs.12,000/- per annum, which rendered her ineligible for the post of Anganwari worker. This order was challenged by the petitioner ::: Downloaded on - 15/04/2017 20:55:22 :::HCHP 3 before the next Appellate Authority provided under the scheme i.e. Divisional Commissioner, Mandi Division. Said authority also .
dismissed the appeal filed by the petitioner and upheld the order passed by the first Appellate Authority vide order dated 26.09.2008.
3. These two orders were challenged by the petitioner of before this Court by way of CWP No. 2044 of 2008, which petition was disposed of by this Court vide judgment dated 17.05.2010 rt alongwith other connected matters, in which, it was inter alia held:-
"4. Learned Senior Additional Advocate General submits that the Anganwadi Workers/Helpers, in these cases, had made an attempt to steal an appointment, based on false certificates of income. Even assuming so, the competent authority should have first taken steps to cancel such certificates, based on which the appointments were made. So long as the same having not been done, we find force in the submission made by the learned counsel for the petitioners that there is an irregularity, if not illegality, in the process of cancellation of appointment.
5. In case the authority is of the view that the income certificate issued to any Anganwadi Workers/ Helpers in these cases, is not based on proper computation of 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 ::: Downloaded on - 15/04/2017 20:55:22 :::HCHP 4 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 appointed, based on the .
income certificates, they produced at the relevant time.
6. There will be a direction to the appellate authority in these cases, to take appropriate steps in the cases where a dispute on income is involved, to of 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 rt 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."
4. Pursuant to the said judgment, the case with regard to the appointment of the petitioner was again heard by the Appellate Authority, which Authority again held the appointment of the petitioner to be bad vide order dated 06.07.2011. It was ::: Downloaded on - 15/04/2017 20:55:22 :::HCHP 5 held by the Appellate Authority that it was evident from the Parivar Register of the husband of the petitioner that the family was .
separated on 23.09.2005 and before the said date petitioner Raksha Devi was part of joint family and on these basis, the said authority held that the certificate of income procured by Raksha Devi showing her family as separate unit cannot be treated as of a valid one for the purpose of her selection to the post of Anganwari Worker.
5. rt In appeal, the next Appellate Authority i.e. Divisional Commissioner, vide order dated 14.12.2011, upheld the order dated 06.07.2011 passed by the first Appellate Authority.
6. Feeling aggrieved by these two orders, the petitioner has filed the present writ petition.
7. No reply has been filed to the writ petition, nor the same was intended to be filed by either of the respondents and accordingly, the case was heard on merit.
8. Mr. H.S. Rana, learned counsel appearing for the petitioner has strenuously argued that the impugned orders i.e. order dated 06.07.2011 (Annexure P-7) and order dated 14.12.2011 (Annexure P-8) passed by the authorities below were not sustainable in law because the appeal filed by the private respondent against the selection of the petitioner as Anganwari Worker was not adjudicated by the first Appellate Authority in consonance with the directions issued by this Court in CWP No. 2044 of 2008. According to Mr. Rana, this Court vide its judgment dated 17.05.2010 in CWP No. 2044 of 2008 and other connected ::: Downloaded on - 15/04/2017 20:55:23 :::HCHP 6 matters, had directed that in those cases where income certificate of an incumbent was in dispute then the same shall be duly .
processed by the competent authority and the competent authority will afford an opportunity to the affected party to participate in the proceedings commenced in this regard and the Appellate Authority will take appropriate action in the matter depending upon of the outcome of the action thus taken by the competent authority on the income certificate already issued to the incumbent. Mr. rt Rana submitted that this direction of the Court was not followed while deciding the appeal because the matter with regard to the veracity of the income certificate of the petitioner was not referred to the competent authority and the Appellate Authority ventured to adjudicate upon the validity of the same itself without following the directions issued by the Court in CWP No. 2044 of 2008. Mr. Rana argued that this important aspect of the matter was also ignored by the next Appellate Authority in the appeal which was filed by the present petitioner before it. On this ground, Mr. Rana submitted that the orders passed by both the authorities below were not sustainable in law.
9. On the other hand, learned counsel for the respondents have submitted that there was no infirmity with the orders which had been passed by the authorities below because the appointment of the petitioner was rightly set aside as she was not eligible to be appointed as Anganwari Worker as per norms of the scheme. According to them, the orders passed by the ::: Downloaded on - 15/04/2017 20:55:23 :::HCHP 7 authorities below were self speaking and the same required no interference.
.
10. I have heard learned counsel for the parties.
11. In my considered view, there is considerable force in the arguments of Mr. Rana. It is evident from perusal of orders dated 06.07.2011 and 14.12.2011 that while passing the said of orders the authorities concerned have not taken into consideration the directions which were issued by this Court in CWP No. 2044 of 2008 pertains rt to the veracity of the income certificate of an incumbent. It is not in dispute that the appointment of the petitioner has been set aside on the ground that the income certificate on the basis of which she was appointed was not a valid one. However, the Appellate Authority before deciding the appeal did not refer the matter to the competent authority and resultantly, no findings were returned in the matter with regard to the veracity of the income certificate of the petitioner, on the basis of which, the Appellate Authority was to take appropriate action.
Not only this, this Court in unambiguous terms had held that till the time income certificate is held to be bad by the competent authority an adverse inference cannot be drawn with regard to the validity of the same. This important aspect of the matter has also been ignored by the Appellate Authority while passing order dated 06.07.2011. Besides, even the second Appellate Authority has ignored this very important aspect of the matter while upholding the order passed by the first Appellate Authority dated 06.07.2011.
::: Downloaded on - 15/04/2017 20:55:23 :::HCHP 812. Therefore, in my considered view, orders dated 06.07.2011 and 14.12.2011 passed by the Appellate Authorities .
are not sustainable in law.
13. Mr. H.S. Rana, learned counsel for the petitioner has also submitted that he has placed on record certain documents of from which it is evident that the income certificate which has been procured by the private respondent is also not a valid certificate rt and there is tampering in the records of the Panchayat pertaining to the entries in the Panchayat Register qua the private respondent.
14. In my considered view, it will not be appropriate for this Court to go into these issues which have been raised by Mr. H.S. Rana and all the parties shall be at liberty to produce all relevant documents before the Appellate Authority to substantiate their case.
15. Accordingly, this writ petition is allowed and order passed by the Additional District Magistrate dated 06.07.2011 (Annexure P-7) and order passed by the Divisional Commissioner, Mandi Division, dated 14.12.2011 (Annexure P-8) are quashed and set aside and the case is remanded back to the first Appellate Authority with directions to decide the same afresh after affording opportunity to all the parties to putforth their cases in accordance with the directions passed by this Court in CWP No. 2044 of 2008 ::: Downloaded on - 15/04/2017 20:55:23 :::HCHP 9 within a period of two months from today. Till the decision of the appeal, respondent No. 6 shall be permitted to continue as .
Anganwari Worker in Anganwari Centre, Dolra. No order as to cost. Miscellaneous application(s) pending, if any, also stand disposed of.
of
(Ajay Mohan Goel),
July 29, 2016 Judge
(BSS) rt
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