Himachal Pradesh High Court
Meena Devi vs State Of H.P. And Others on 9 May, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.W.P. No.1629 of 2015.
.
Judgment Reserved On : 27.4.2016
Date of decision: 09.5.2016
Meena Devi ....Petitioner
of
Versus
State of H.P. and others ...Respondents
Coram
rt
The Hon'ble Mr.Justice Vivek Singh Thakur Judge.
Whether approved for reporting? Yes
For the petitioner. : Mr. Lalit K. Sharma,
Advocate.
For the respondents. : Mr. Ramesh Thakur and
Mr. Pankaj Negi Deputy
Advocate Generals, for
respondents No.1 to 4.
Mr. Rajinder Sharma,
Advocate, for respondent
No.5.
Justice Vivek Singh Thakur, J.
The present petition has been filed by the petitioner, having aggrieved by the appointment of the respondent No.5, vide letter dated 11.8.2007 ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -2- (Annexure P-2/T) and impugned order dated 24.6.2014 (Annexure P-10) passed by the Divisional Commissioner, .
Mandi whereby the appeal filed by the present petitioner has been dismissed.
2. In the year 2007, respondents-State had appointed Meena Devi present petitioner as Anganwari of Worker in Anganwari Centre, Dhabiri-1 vide appointment letter No.BL.C.D/V/1-9/97-1656 dated 10.8.2007 and rt her appointment had been cancelled by respondent No.4, Child Development Project Officer, Bihri, District Hamirpur vide Memorandum No.BL.C.D/P/1-9/97-1820 dated 11.8.2007 (Annexure P-3) on a complaint that the petitioner was not the resident of Dhabiri-1 but resident of the feeder area Thalot Padhar, as per survey of the Department.
3. It is apparent from Memorandum No. BI.C.D./V/1-9/97-1656 dated 11.8.2007 (Annexure P-2) that respondent No.5 Shanti Devi had been appointed as Anganwari Worker in Anganwari Centre, Dhabiri-1 on 11.8.2007. Aggrieved by cancellation of her appointment as Anganwari Worker vide Annexure P-3 and appointment of Smt. Shanti Devi respondent No.5 in her ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -3- place, the petitioner had filed an appeal before Deputy Commissioner, Hamirpur which was accepted vide order .
dated 15.1.2008 (Annexure P-4). The said appeal had been accepted on the grounds that the petitioner should not be penalized for mistake committed by the department. The order dated 15.1.2008, (Annexure P-4) of had been challenged by respondent No.5 before Divisional Commissioner, Mandi and appeal of the respondent No.5 rt had been accepted by the Divisional Commissioner vide order dated 27.11.2008, (Annexure P-5). The findings returned by the Divisional Commissioner are as under:-
"It transpires from the record that the respondent applied to the post of the anganwari worker in Padhar Centre of Dhabiri Panchayat to which she belongs. It is on the record that her name was wrongly considered by the selection committee and was placed at the top of the merit in other centre Dhabiri-1. The CDPO, Bijhari issued appointment letter to the appellant whose name was at Sr.No.1 of the waiting list since she belongs to the feeder area of this centre. It is also on the record that the CDPO, Bijhari vide its letter dated 11.8.2007 addressed to the respondent clearly shows that the respondent was wrongly selected for centre Dhabiri-1 because of the fact that as per survey report she was not found to be resident of Dhabiri-1 but of Centre Ghalot+Pattar. The lower court has ignored this fact of residency ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -4- of feeder area of the respondent and has wrongly accepted the appeal of the respondent. This could have been possible in case there was no other .
candidate from the feeder area of Anganwari Centre, Dhabiri-1 at the time of interview."
4. The order dated 27.11.2008, passed by the Divisional Commissioner was assailed by the petitioner in of CWP No.2359/2009 which was disposed of by Division Bench of this Court on 17.5.2010, directing the Deputy rt Commissioner, Hamirpur to consider the controversy between the parties, as per prescribed guidelines, issued by the State Government in this regard. The Deputy Commissioner had dismissed the appeal filed by the petitioner vide order dated 25.11.2010, Annexure P-7.
The findings returned by the Deputy Commissioner are as under:-
"From the perusal of record, it is found that Smt. Meena Devi did not apply for Anganwari Centre, Dhabiri, and had applied for aganwari Centre Padhar. This mistake was corrected by the Department concerned. Therefore, keeping in view the above facts, the present appeal is dismissed."
5. The appeal preferred by the petitioner had also been dismissed by the Divisional Commissioner vide ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -5- order dated 12.5.2011, Annexure P-8. The findings returned by the Divisional Commissioner are as under:-
.
"The present appellant herself prayed in the appeal that she applied for the post of Anganwari Centre, Padhar and her version that cuttings were made by the supervisor by writing at Dhabiri is not tenable because if she did not want to be appointed as Anganwari Worker at Dhabiri of then why she had appeared in the said interview and why she had accepted the offer of appointment.
rt However, enquiry on the correct residence was made and the appellant has been informed by the CDPO, Bijhri vide No.1820, dated 11.08.2007. The appellant has not denied this point. Further the respondent has been appointed as such being a suitable and eligible candidate.
The Deputy Commissioner, Hamirpur has decided the case in accordance with the instructions and on law point.
On the above discussion, I find no force in this appeal and the same is accordingly dismissed."
6. The petitioner again assailed the order passed by the Divisional Commissioner by preferring CWP No.4047 of 2013 in this Court. In this petition, the petitioner has placed on record some new documents as Annexure P-9 to P-12 for the first time. The Division Bench of this Court vide order dated 18.6.2013, ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -6- Annexure P-9 had disposed of the petition with liberty to the petitioner to approach the Divisional Commissioner, .
Mandi and to bring these facts and documents in his notice with a direction to the Divisional Commissioner to consider these documents afresh after notice to the respondents and giving an opportunity to lead further of evidence.
7. The petitioner again approached the Divisional rt Commissioner who again dismissed the appeal vide order dated 24.6.2014 by returning the following findings:-
"Perusal of record reveals that the post of Anganwari Worker was advertised for Anganwari Centre Dhabiri-1. As per information supplied by the CDPO, Bijhri, the feeder area of Anganwari Centre Dhabiri-1 are villages Gohar, Kaukad, small portion of population of Ghori village, half portion of population of Tudan village, Ropari, half portion of population of Dhabiri Bazar and half portion of population of Dhabiri village.
Further information supplied by the CDPO reflects that the family of Smt. Shanti Devi W/o Surrender Kumar i.e. respondent No.1 was part of Anganwari Centre Dhabiri-1 in the year 2007 and the family of Meena Devi W/o Shri Chaman Lal i.e. appellant was part of Anganwari Centre Padhar. It clearly goes to show that the appellant was not resident of Anganwari Centre Dhabiri -1 and as such she was not eligible for appointment as Anganwari Worker in Anganwari Centre Dhabiri-1. The record of CDPO with regard to feeder area of Anganwari Centre ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -7- has to be relied upon as he is the basic functionary to maintain such records."
8. In the aforesaid facts and circumstances, the .
petitioner has filed the present petition and has also placed on record information received under RTI regarding list of families falling in Anganwari Centre, of Dhabiri-1 and Anganwari Centre, Padhar as per survey report of the department and the petitioner has also placed on record copies of applications submitted by the rt petitioner, the respondent No.5 and one Smt. Kamlesh W/o Sh. Dhani Ram, R/o Dhabiri Thalot for appointment as Anganwari worker in Ghori Dhabiri Ward No.1 Padhar, Dhabiri-1, Dhabiri Padhar Thalot, respectively alongwith certificates of respondent No.4 issued by Pardhan Gram Panchayat Ghori Dhabiri in favour of Smt. Meena Devi.
All these documents have been placed on record as part of Annexure P-12.
9. The petition has been opposed by respondents No.1 to 4, stating that interview for the post of Anganwari Worker in Anganwari Centre, Dhabiri-1 under integrated Child Development Service Project, Bijhri, District Hamirpur was held on 9.8.2007, in which petitioner and ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -8- respondent No.5 had appeared and the petitioner had been selected by the selection committee and respondent .
No.5 was placed at serial No.1 of the waiting list. Later on, it was found that the petitioner was resident of village Padhar and had applied for appointment in Anganwari Centre Padhar but was wrongly considered by the of selection committee for appointment of Anganwari Centre, Dhabiri-1 and therefore, the mistake was rectified rt by respondent No.4 and services of petitioner were terminated vide letter dated 11.8.2007 (Annexure P-3) and respondent No.5 being a candidate next in merit was given appointment vide order dated 11.8.2007 ( Annexure P-2).
10. It has been further stated in the reply on behalf of the State that the petitioner belongs to feeder area of Anganwari Centre, Padhar and not in Dhabiri-1 and as per guidelines for the recruitment of Anganwari Worker the candidate must belongs to feeder area Anganwari Centre and only in case of non availability of a candidate from feeder area of Anganwari Centre, the candidate from adjoining area can be considered for appointment as Anganwari Worker. It has been further ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP -9- averred that the department was justified to correct its mistake.
.
11. The respondent No.5 has filed a separate reply, stating that respondent No.5 is a poor lady and no one from her family is in Government service whereas two sons of petitioner are serving in Army and the said fact of has been concealed by the petitioner. The respondent No.5 has placed on record Annexure R-5/1, copy of rt Pariwar Register of the family of the petitioner having endorsement against her two sons as serving in Army. It has been further stated in the reply by respondent No.5 that as per the Policy of the Government the person whose family members are in Government service or in Semi Government Service are not eligible for the post of Anganwari Worker, therefore, the petitioner has no right to claim the appointment for the post of Anganwari Worker. As per respondent No.5, the petitioner and respondent No.5 are the residents of village Dhabiri but this village has been divided into three Anganwari Centers i.e. Dhabiri-1, Dhabiri-II and Padhar and the petitioner falls in feeder area of Anganwari Centre Padhar and respondent No.5 is resident of feeding area ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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Anganwari Centre Dhabiri-1. With these averments, the respondent No.5 has supported the cancellation of .
appointment of the petitioner and further rejection of petitioner's claim by the Authority.
12. I have heard learned counsel for the petitioner, learned Deputy Advocate General for of respondents No.1 to 4 and learned counsel for respondent No.5. I have also gone through the documents placed on rt record by the parties.
13. The Scheme/Guidelines for the engagement of the Anganwari Workers/Helpers has been placed on record as Annexure P-1. The Clause-4 of the said guidelines provides eligibility criteria which reads as under:-
Clause-4: "Eligibility Criteria Only such female candidates are eligible to apply for the post of Anganwadi Worker or Helper who are:
(a) Resident of the village (in case of Rural Area)/ward ( in case of Urban Area) where Anganwadi Centre is located or belongs to the feeding villages/wards of the Anganwadi area;::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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(b) For Anganwadi worker minimum qualification shall be Matric or equivalent and for Helper minimum Primary.
.
(c) Age between 21-45 years;
(d) From whose family no one is in Government/Semi
Government employment/service.
(e) 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 of Ist January, 2004.
(f) Those whose annual income does not exceed Rs.8000 per annum to be certified/countersigned rt by an officer not below the rank of Tehsildar."
14. The application filed by the petitioner (placed on record as part of Annexure P-12) reflects that she had filed an application stating therein that it has come in her knowledge that Anganwari Centre is going to be opened in Ghouri Dhabiri Ward No.1 Padhar where she is interested to serve as a teacher. Information placed on record by the petitioner as part of Annexure P-12 indicates that respondent No.5 had applied for the post of Anganwari Worker in Anganwari Centre Dhabiri-1 and one Smt. Kamlesh Kumari had applied for the post of Anganwari Worker in Anganwari Centre Dhabiri Padhar(Thalot).
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15. The lists of families falling in area of Anganwari Centre Dhabiri-1 and Padhar have been .
placed on record by the petitioner as part of Annexure P-
12. From these lists, it is evident that family of the petitioner is at serial No.63 in the list of families as falling in Anganwari Centre Padhar. It is not in dispute that of house of respondent No.5 falls in the feeder area of Anganwari Centre Dhabiri-1.
rt
16. In the present case there is one village but having three Anganwari Centers which have different and distinct feeding area. Sub clause (a) of Clause-4 of Guidelines reflects that primarily resident of the village, where Anganwari Centre is located, is eligible for the post of Anganwari Worker. However, in the same clause there is mention that 'or' a person belonging to the feeding villages/ward of Anganwari area is to be considered eligible to apply for the post of Anganwari Worker in an Anganwari Centre. It is true that where there is only one Anganwari Centre in a village, all residents of the said village, subject to other eligibility conditions, will be eligible to apply for the post of Anganwari Worker.
However, in case, like present one where three Anganwari ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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Centers are there in a village, second part of sub clause
(a) of Clause-4 of the guidelines will be relevant and the .
person belonging to feeder ward/area of a particular Anganwari area will be eligible for the post of Anganwari Worker in the said particular Anganwari Centre. When a person is available from feeder area of Anganwari Centre of then the said person will have to be given preferential right over the person belonging to out side the feeder area rt of Anganwari Centre.
17. It is admitted position in the present case that the petitioner is resident of a feeder area of Anganwari Centre Padhar and respondent No.5 is resident of Anganwari Centre Dhabiri-1. Therefore, the petitioner was having secondary right to be considered to the post of Anganwari Worker in comparison to the right of the respondent No.5.
18. The respondent No.5 has also placed on record copy of Pariwar Register of the petitioner indicating that two sons of the petitioner are serving in Army. The said allegation has not been controverted by the petitioner. As per sub clause(d) of Clause-4 of the Guidelines, only that candidate will be eligible for ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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applying to the post from whose family no one is in Government/Semi Government employment/service. On .
this count also the petitioner was not eligible to be considered to the post of Anganwari Worker. This issue had not been raised in appeals before Divisional Commissioner or Deputy Commissioner. But exercising of original side jurisdiction under Article 226 of the Constitution of India, this Court can consider material rt placed on record to do substantial justice. However, even ignoring this issue, the petition is otherwise devoid of merit.
19. It has also come on record in the order dated 12.5.2011 (Annexure P-8) placed on record by the petitioner herself that the petitioner had herself prayed in the appeal filed before Divisional Commissioner that she had applied for the post of Anganwari Worker Centre, Padhar. Perusal of application submitted by the petitioner which is part of Annexure P-12 also reflects that the petitioner had applied for the post in Anganwari Centre Ghori Dhabiri-1 Padhar. Though the petitioner has stated that department had wrongly processed her application. However, in present petition or at any other ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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point of time, the petitioner has not sought the appointment as Anganwari Worker in Anganwari Centre, .
Padhar. Whereas right course to the petitioner was to assert her right to the post of Anganwari Centre, Padhar, but she has not chosen to do so for reasons best known to her.
of
20. The petitioner was entitled to be considered in Anganwari Centre, rt Padhar, however, in present petition/litigation the petitioner has neither claimed for the same nor has she arrayed candidate working as Anganwari Worker in Anganwari Centre, Padhar as party i.e. respondents in the present petition.
21. Minute perusal of the application preferred by the petitioner indicates that the petitioner had very cleverly mentioned name of Anganwari Centre as Ghori Dhabiri-1 Padhar. It appears that the petitioner had deliberately done so to take a chance in Dhabiri-1 knowingly well that her entitlement for consideration was for Anganwari Centre, Padhar imitating that the petitioner was not keen for consideration of her application for Padhar but Dhabiri-1 for reasons best known to her despite having knowledge that her ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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residence/house was in feeder area of Anganwari Centre, Padhar. Besides, the petitioner has mentioned name of .
Centre as Ghori Dhabiri-1 Padhar whereas there is no Anganwari Centre named as Ghori Dhabiri-1 Padhar.
22. The petitioner has also raised plea that the petitioner has been removed from the service without of issuing any notice or giving opportunity of being heard.
In the facts and circumstances of the present case, this rt plea is of no help to the petitioner as the petitioner has failed to establish her right to the post of Anganwari Worker in Anganwari Centre Dhabiri-1. The petitioner has failed to establish her legal right to the post in question even after her removal from the service despite agitating the matter since 2007 before various Courts/forums. In present case sufficient post decisional hearing availed by the petitioner has served the purpose of being heard nullifying the plea of violation of Principles of Natural Justice.
23. It is also settled law that the authorities have right to rectify mistake as and when it is noticed. No doubt, the authorities are supposed to follow the principle ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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of natural justice, so that no prejudice is caused to a person.
.
24. In the present case, the petitioner has failed to show that non-issuance of notice and denial of pre-
decision hearing has prejudicially affected the petitioner and in case of notice, the petitioner would have placed of material before authorities which would have resulted into decision different to the impugned decision.
rt
25. The petitioner has also taken a plea that the application was wrongly processed by the department officials and for that fault of the department, the petitioner should not suffer. However, interestingly the petitioner has not lodged claim for the post of Anganwari Worker in the Anganwari Centre, Padhar, but she participated in interview to the post of Anganwari Worker in Anganwari Centre Dhabiri-1 and still agitating for posting in Anganwari Centre Dhabiri-1. Therefore, this plea is not tenable as the conduct of the petitioner amounts to wavier of her right qua the post in Anganwari Centre, Padhar.
26. The findings returned in the impugned order, does not suffer any arbitrariness, infirmity, perversity, ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP
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illegality or material irregularity, warranting interference of this Court.
.
27. In view of my above discussion, the present petition, being devoid of merit, is dismissed with no order as to costs.
( Vivek Singh Thakur ), of Judge May 9, 2016 (Sks) rt ::: Downloaded on - 15/04/2017 20:18:05 :::HCHP