Karnataka High Court
Rashmi W/O Shivappa Vandal vs Smt. Yallavva W/O Gangappa Wari on 20 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:15008-DB
WA No. 100669 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO. 100669 OF 2023 (S-RES)
BETWEEN:
RASHMI W/O SHIVAPPA VANDAL
AGE. 25 YEARS, OCC. ANGANWADI WORKER,
R/O. AT. HIREGULBAL, TQ.DIST. BAGALKOT-587101
...APPELLANT
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
AND:
1. SMT. YALLAVVA W/O GANGAPPA WARI
AGE. 40 YEARS, OCC. NIL
R/O. AT. HIREGULBAL, TQ.DIST. BAGALKOT-587101
2. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF WOMEN AND CHILD WELFARE
M.S.BUILDING, BENGALURU-01
SHIVAKUMAR
HIREMATH 3. THE DEPUTY COMMISSIONER
BAGALKOT DISTRICT
Digitally signed by
SHIVAKUMAR NAVANAGAR, BAGALKOT-587101
HIREMATH
Date: 2023.12.22 4. THE DEPUTY COMMISSIONER
10:35:22 +0530
WOMEN AND CHILD DEVELOPMENT DEPARTMENT
NAVANAGAR, BAGALKOT-587101
5. THE WOMEN AND CHILD DEVELOPMENT OFFICER
BAGALKOT, SECTOR NO.18
NAVANAGAR
BAGALKOT-587101
...RESPONDENTS
(SRI. GIRISH A. YADAWAD, ADV. FOR R1;
SRI. G.K.HIREGOUDAR, GOVT. ADV. FOR R2 TO 5)
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NC: 2023:KHC-D:15008-DB
WA No. 100669 of 2023
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO, SET-ASIDE
THE ORDER DATED 30/08/2023 PASSED BY LEARNED SINGLE JUDGE
IN W.P.NO.102135/2023 (GM RES) IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR PRELIMINAR HEARING, THIS
DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court appeal is filed by the respondent No.5 before the Single Judge assailing the order dated 30.08.2023 passed in W.P.No.102135/2023, wherein the writ petition filed by the respondent No.1 herein was allowed by quashing the order dated 18.01.2023 passed by 5th respondent herein and further directed to appoint the respondent No.1 herein as a Anganwadi Worker if she is otherwise eligible within four weeks.
2. The respondent No.1 has contended that, the respondent-authorities have issued notification calling for applications for appointment to the post of Anganwadi Worker and pursuant to the said notification the -3- NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 respondent No.1 has submitted the online application claiming a preferential appointment on the ground of permanent physical disability. It is averred that, along with the application all the documents including the disability certificate was uploaded, however, the respondent No.5 published the provisional selection list on 20.09.2022 selecting the appellant as the Anangwadi Worker. It is further submitted that, the respondent No.1 has filed objections to the provisional selection list with a request to reconsider the application of the respondent No.1 by giving preference in view of her permanent disability. The respondent-authorities without considering the objections passed an order dated 18.01.2023 selecting the appellant for the post of Anganwadi Worker on the ground that, the disability certificate is not uploaded along with the application. Considering the rival contentions, urged by the parties learned Single Judge has allowed the writ petition. Under such factual matrix, the present appeal is filed. -4-
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3. Sri. Mallikarjunaswamy B. Hiremath, learned counsel appearing for the appellant submits that, the order of the learned Single Judge is contrary to the guidelines issued for appointment of Anganwadi Worker. It is submitted that, in terms of the guidelines governing the appointment of Anganwadi Worker the disability should not exceed 60% and if the disability is more than 60% such a person cannot be appointed as a Anganwadi Worker. It is further submitted that, the respondent No.1 has produced the disability certificate issued in the year 2016 which indicates that the respondent No.1 has permanent physical disability to the extent of 46% by suppressing the subsequent disability certificate obtained by her on 17.01.2021 which indicates that the respondent No.1 has 75% of permanent disability. It is also submitted that, based on the disability certificate dated 17.01.2021 the respondent No.1 is receiving physical handicapped pension of Rs.1,400/- every month and by suppressing all these facts the writ petition was filed and learned Single Judge has proceeded to allow the writ petition by directing -5- NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 the authorities to appoint the respondent No.1 as a Anganwadi Worker.
4. Sri. G.K.Hiregoudar, learned Government Advocate submits that, the respondent No.1 has suppressed the material fact of disability certificate dated 17.01.2021 and has also suppressed the fact that, she is receiving pension. Based on such certificate the learned Single Judge has proceeded to pass the order directing the authorities to appoint the respondent No.1 as a Anganwadi Worker. He prays that the appeal may be allowed.
5. Per contra, Sri. Girish A. Yadwad, learned counsel appearing for the contesting respondent No.1 submits that, there is no suppression of fact as contended by the learned counsel for the appellant and Government Advocate. It is submitted that, the certificate at Annexure- A issued in the year 2016 clearly indicates that the respondent No.1 has a permanent disability of 46% and based on the said certificate she has filed an application to be appointed as a Anganwadi Worker by providing -6- NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 preference to the physically handicapped candidate and issuance of subsequent certificate by the authorities is only for the purpose of pension and the subsequent certificate dated 17.01.2021 indicates that, 75% permanent physical disability is relating to her left leg and not to the whole body. Hence, out of the 75% of the disability 1/3rd has to be taken as a whole body disability for the purpose of considering her eligibility to be appointed as a Anganwadi Worker. Hence, he supports the impugned order of the learned Single Judge and seeks dismissal of the appeal. In support of his contention he has placed reliance on the decision of the learned Single Judge in W.P.No.73036/2012 dated 09.02.2017 and the decision of the Division Bench in W.A.No.100166/2017 dated 17.02.2018 by contending that the disability specified under the guidelines are only the preferential disability and there is no hard and fast rule to select the candidate who has the disability up to 60%. -7-
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6. Having heard the learned counsel for the appellant, learned counsel for the respondent No.1 and learned Government for the respondent Nos.2 to 5. Perused the material available on record.
7. The respondent-State Government has issued notification for appointment for the post of Angnawadi Worker/Helper on 29.7.2021 and pursuant to the said notification the appellant as well as the respondent No.1 have filed an application to the said post. The respondent No.1 has filed a writ petition on the ground that, her name is not found in the selection list and her objection to the provisional list was rejected on the ground that, she has failed to upload the disability certificate. The learned Single Judge has recorded the finding that, despite the respondent No.1 suffering 46% of disability as per the disability certificate dated 29.06.2016, the authorities have failed to consider her candidature for appointment as Anganwadi Worker/Helper by referring to the various decisions of the Hon'ble Apex Court to the effect that, the -8- NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 authorities are not justified in denying the candidature on curable defects by setting aside the impugned order dated 18.01.2023 and further directing to appoint the respondent No.1 as Anganwadi Worker.
8. On perusal of the guidelines issued for selection of Anganwadi Workers it is evident from clause 4 (ಋ) that, the persons with disability up to 60% can apply for the post of Anganwadi worker. Pursuant to the notification the respondent No.1 has applied to the post of Anganwadi worker and her claim was directed to be considered by the learned Single Judge based on the disability certificate issued by District Hospital, Bagalkote dated 20.09.2016 at Annexure-A. On further perusal of the disability certificate at Annexure-A it is evident that, the disability is shown as Locomotor disability at 46%. The said disability certificate indicates that the said certificate is valid for a particular period, however, those columns of the disability certificate are unfilled. Hence, it is unclear with regard to the validity of the disability certificate at Annexure-A. The disability -9- NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 certificate of the respondent No.1 dated 17.01.2021 placed by the appellant along with the application for production of additional document filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 evidences that, the disability certificate is issued by Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, which indicates that the respondent No.1 suffers from 'Locomotor disability', the diagnosis in her case is PPRP Lt lower limb, she has 75% permanent disability in relation to her left leg as per the guidelines issued under RPWD Act, 2016. Admittedly, the respondent No.1 was having the disability certificate dated 17.01.2021 prior to the filing of the application for appointment of Anganwadi Worker/Helper. The sequence of event and the dates clearly indicates that, the respondent No.1 has conveniently suppressed the disability certificate dated 17.01.2021 before the authority as well as before the learned Single Judge. If the respondent No.1 had placed the disability certificate dated 17.01.2021 before the
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 learned Single Judge, the out come of the writ petition would have been different. The respondent having obtained the disability certificate dated 17.01.2021 and based on the said disability certificate she is receiving the disability pension from 21.02.2020 as is evident from the document No.3 filed along with an application for additional document which further makes it clear that, the respondent No.1 has suppressed the receipt of pension based on the disability certificate dated 17.01.2021. This Court deprecates the conduct of the respondent No.1 in suppressing the vital document and relevant facts before the learned Single Judge.
9. The learned counsel for the respondent No.1 has filed I.A.No.5/2023 seeking for appointment of competent medical board as a Court Commissioner to clinically examine the respondent No.1 and to submit the report to this Court with regard to the percentage of disability of the respondent No.1 and further contend that, the disability of the respondent No.1 being seriously
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 disputed by the authorities and the certificate dated 17.01.2021 indicates 75% of permanent disability in relating to her left leg only, hence, the same cannot be treated as permanent disability to the whole body. Such a contention of the learned counsel for the respondent No.1 does not merit consideration in the absence of any corroborative evidence on record. Neither this Court nor the respondent No.1 has any expertise in the field of determining the disability of the respondent No.1, as already the competent authority has assessed the disability of respondent No.1 and issued the certificate dated 17.01.2021. The attempt of the respondent No.1, seeking for appointment of the medical board as a Court Commissioner to assess the disability cannot be accepted as the competent authority under the provision of law has issued the disability certificate dated 17.01.2021, hence, this Court cannot sit as a appellate authority over the authority which has issued the disability certificate dated 17.01.2021. There is no justification whatsoever to disbelieve the disability certificate dated 17.01.2021 nor
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 there is any necessity to re-assess the disability already assessed by the competent Doctors. The assertion of the respondent No.1 in the affidavit accompanying the application has no basis and cannot be relied upon to come to the conclusion that, the disability of 75% is only to the lower leg and not to the whole body. Such a exercise sought by the respondent No.1 is impermissible under Article 226 of the Constitution of India. Hence, there is no merit in the application filed by the respondent No.1. The further contention of the respondent No.1 to consider 1/3rd of 75% disability as a whole body disability by holding the respondent No.1 as eligible to appoint the Anganwadi Worker/Helper does not merit consideration in view of the reasons stated supra. This Court cannot apply any such unscientific yardstick in assessing the disability at 1/3rd of the assessed disability of 75% by experts.
10. The further contention of the learned counsel for the respondent No.1 that, the guidelines for appointment of Anganwadi worker with the condition for
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 providing preference to the disabled candidate is only a directory in nature and not mandatory is required to be rejected. He has placed reliance on the decision of the learned single Judge in W.P.No.73036/2012 which has been affirmed by the Division Bench in Writ Appeal No.100166/2017 would not come to the aid of the respondent No.1 as the observation of the learned single Judge in the aforesaid Judgment makes passing reference and the learned Single Judge has dismissed the writ petition mainly on the ground that, the selected candidate was working for more than six years and it would not be appropriate to disturb her appointment at this length of time. Similarly the Division Bench has taken note of the length of service of the selected candidate and dismissed the appeal. Clause 4 of the aforesaid guideline clearly indicates the object and reason for stipulation of up to 60% disability is with an intention to ensure the efficiency of work. This Court does not wish to add its wisdom to the wisdom of the selecting authority in stipulation of condition or by treating the guidelines to be directory. Admittedly in
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 the instant case there is no challenge to the guideline. Hence, on this ground also the appeal is required to be allowed.
11. It will be useful to refer the decision of the Hon'ble Supreme Court in the case of Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others, reported in (2013) 11 SCC 531, paragraph Nos.42 to 46 reads thus;
"Suppression of fact:
42. While dealing with the conduct of the parties, we may also notice the submission of learned counsel for respondent No.1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2nd May 2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.
43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2nd May 2003 was undoubtedly not filed, its existence was not material in
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 view of subsequent developments that had taken place. We cannot agree.
44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows:
"......It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 dismissed. The appellant will pay the costs of the respondent."
46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:
"The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
In the case of Ramjas Foundation and another Vs. Union of India and others, reported in (2010) 14 SCC 38, paragraph No.21 reads thus;
"21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case."
12. The Hon'ble Supreme Court in the aforesaid decision has held that, the conduct of the party by suppression of material fact from the Court and approaching the Court with unclean hand does not entitle any discretionary relief under Article 226 of the Constitution of India.
13. In the instant case, the respondent No.1 has conveniently suppressed the material fact and the documents before the learned Single Judge that and she has obtained disability certificate dated 17.01.2021 which is much prior to the last date for filing of an application for the post of Anganwadi worker/Helper and based on such a disability certificate the authorities have issued unique
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NC: 2023:KHC-D:15008-DB WA No. 100669 of 2023 disability Identity Card which also indicates the disability at 75% and based on the said disability certificate the respondent No.1 is receiving the pension at the rate of Rs.1,400/- from 19.02.2020 to till 17.11.2023. Taking into account the disability of the respondent No.1 as per the disability certificate dated 17.01.2021 this Court is of the considered view that, the respondent No.1 is not eligible to be appointed as a Anganwadi worker/Helper as per the prevailing guidelines. This Court refrains itself from imposing costs on the respondent No.1 for suppression of material facts before the learned Single Judge only on the ground that, the respondent No.1 is physically handicapped candidate aspiring for an appointment.
14. For the aforementioned reasons, we proceed to pass following:
ORDER
(i) The writ appeal is allowed;
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NC: 2023:KHC-D:15008-DB
WA No. 100669 of 2023
(ii) The impugned order of the learned
single Judge dated 30.08.2023 passed
in W.P.No.102135/2023 is set aside;
(iii) The respondent-authorities are directed
to appoint the appellant as a
Anganwadi worker as per the selection
list.
(iv) No orders as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
List No.: 2 Sl No.: 1