JUDGEMENT Mihir Kr.Jha, J. 1. I.A. No. 4495/2009: Having heard learned counsel for the appellant as also the learned counsel for respondents no. 1 to 7 and for the reasons mentioned in this application the delay of 101 days in filing of this appeal is condoned. 2. I.A. No. 4495/2009 is accordingly allowed. L.P.A. No. 933/2009 3. Having condoned the delay the parties we are also inclined to dispose of this appeal at the stage of admission. We have accordingly heard the parties at length. 4. This appeal is directed against the order of the learned Single Judge dated 5.3.2009 in C.W.J.C. No. 3037/2009 whereby and whereunder the order dated 19.12.2008 passed by the District Magis- trate-cum-Collector, Bhojpur remaining (sicremoving ?) the appellant-writ petitioner from the post of Anganwari Sevika has been upheld while dismissing her writ application. 5. Counsel for the appellant-writ petitioner has submitted that the solitary ground, on which the appointment of the appellant-writ petitioner has been set aside by the Collector of the district, that she had produced a fake certificate in support of her age at the time of her selection and appointment on the post of Anganwari Sevika is itself based on non est and non-existent material. Counsel in this regard has also submitted that such finding of the Collector of the district in fact is perverse, inasmuch as the date of birth of the appellant-writ petitioner being 10.10.1984 has been duly recorded in her Madhyama Examination certificate issued by the Bihar Sanskrit Shiksha Board, in terms whereof she was fully eligible in terms of the Guidelines issued by the State Government for selection and appointment on the post of Anganbari Sevika, prescribing the mandatory requirement of being in the age group of 18 to 40 years. It has also been sought to be explained that in fact the case for selection and appointment of the appellant alongwith the two other candidates, namely, Babita Devi and Meena Devi was taken up and considered by Gram Sabha, Badaura Gram Panchayat in Garhani Block of District Bhojpur and as the appellant had secured higher marks to Meena Devi (Respondent No. 8) in the qualifying matriculation or its equivalent examination, she was selected and appointed as Anganwari Sevika in the month of April, 2007 and was also sent for training whereafter she was given her appointment letter on 22.6.2007. 6. 6. It has been further submitted that while the appellant-writ petitioner was working as Anganwari Sevika, her services were terminated all of a sudden under the orders of the Collector-cum-District Magistrate, Bhojpur as communicated to her in the consequential order dated 23.11.2007 issued by the Child Development Project Officer (C.D.P.O.), Garhani, Bhojpur. In this context it has also been pointed out that as the appellant-writ petitioner was never given any show cause notice and/or opportunity of hearing prior to termination of her service and in fact was not even made aware of the reasons for such termination of her service on the post of Anganwari Sevika. The appellant has also claimed that she had later on requested the Respondents 5 to 7 for being made aware of the reasons for termination of her service under the Right to Information Act whereafter from the office of the District Magistrate-cum-Collector, Bhojpur had given a note-sheet of a file from which it appeared that her services were terminated on a report submitted by the C.D.P.O., Garhani on an allegation that her age on the basis of her date of birth as declared by her i.e. 10.10.1984 could not be treated to be authentic, inasmuch as the date of birth of her son was 8.10.1992 and thus leaving only a gap of 7 years 11 months and 28 days in their difference of age. It has therefore been projected before us that it was actually on this adverse report of C.D.P.O. alone that the Collector-cum-District Magistrate of the District by an order dated 16.10.2007 in a note-sheet in the file had agreed with the proposal submitted by his office for cancellation of selection and appointment of the appellant writ petitioner on the post of Anganwari Sevika. 7. It is also the case of the appellant writ petitioner that since such order of termination of her service was appealable, she had preferred an appeal before the Commissioner of Patna Division who vide his order dated 4.6.2008 in Misc. Appeal Case No. 25/2008 had set aside her order of termination and had remitted the matter back to the Collector-cum-District Magistrate, Bhojpur for passing a fresh speaking order after affording an opportunity of hearing to the appellant-writ petitioner. Appeal Case No. 25/2008 had set aside her order of termination and had remitted the matter back to the Collector-cum-District Magistrate, Bhojpur for passing a fresh speaking order after affording an opportunity of hearing to the appellant-writ petitioner. The impugned order dated 19.12.2007 assailed in the connected writ application in fact had been passed by the Collector-cum- District Magistrate, Bhojpur wherein he once again had reiterated his earlier decision by holding that there was no scope for taking a different view. 8. Learned Counsel for the appellant has submitted that the Collector of the district had passed a wholly illegal order which could not be sustained either on facts or in law and in this regard he also assailed the impugned order of learned Single Judge upholding the order of the District Magistrate on a number of grounds to which we would refer to the following paragraphs of this judgment. 9. First of all from the perusal of the impugned order passed by the Collector- cum-District Magistrate of Bhojpur District it would transpire that he has basically found the declaration of the age by the appellant-writ petitioner to be false and in fact based on her incorrect declaration of the date of birth as recorded in her Madhyama Certificate and in this regard he has proceeded to hold that the appellant-writ petitioner, had suppressed her real age as would be evidenced from the following operative portion of his order: "..... JH^d w£t ^ 3JTOK ), Mt^rgr srt t^ f%qT w ^g^fir #i tj^rt 3n^5r 3H««4*dl ^ tl ?W TOR 3«3Rchl ^ OT%^T T? 3fit 31* p > 10. It is also clear from the reading of the impugned order that for reaching to the aforementioned conclusion the Collec- tor-cum-District Magistrate, Bhojpur has taken only the following two circumstances into consideration, namely: (i) The date of birth of the appellant-writ petitioner as recorded in her Madhyama certificate issued by the Bihar Sanskrit Shiksha Board being 10.1.1984 and that of her son Vikash Kumar being 5.3.1993, it was apparent that the appellant-writ petitioner had got a false and incorrect age recorded in her Madhyama certificate. (ii) The name of the appellant-writ petitioner had figured in the voter list of the year 1995 showing her to be the wife of Harendra Kumar Singh and aged about 22 years which by itself was sufficient to falsify the plea of appellant-writ petitioner that the said son Vikash Kumar was born from the first marriage of her husband Harendra Kumar Singh with Uma Kumari and that she was only the second wife of Harendra Kumar Singh and was married to him in the year 1997 after the death Uma Kumari specially when she had failed to produce the death certificate of Uma Kumari. 11. Counsel for the appellant-writ petitioner has, therefore, submitted that a delicate and intricate issue of determination of age of the appellant and declaration that her date of birth as recorded in Madhyama Certificate was false has been decided by the Collector of the district in a slipshod manner and in fact on mere his assumptions. He has also submitted that at least on the basis of date of birth of Vikash Kumar and/or entry in the voter list such crucial issue of age of the appellant and also as to whether she was the first or the second wife of Harendra Kumar Singh could/should not have been decided by the District Magistrate, Bhojpur. Counsel in this context had also emphasised that whatever reason has been given in the impugned order by the District Magis- trate-cum-Collector of the District is based on his mere ipsi dixit only with a view to reiterate/reaffirm his earlier decision and order by hook or crook. 12. Counsel for the State, on the other hand, while supporting the impugned order passed by the learned Single Judge approving the order of the Collector-cum- District Magistrate, Bhojpur had submitted that the same was based on objective consideration of the Collector who had before him the report of the C.D.P.O. as also the voter list of 1995 showing appellant to be aged about 22 years and as such the conclusion arrived by him that the appellant had got her age falsely recorded in her Madhyama Certificate was well supported and proved from the documents. 13. 13. This Court having given anxious consideration to the aforementioned submissions as also the materials on record would find that somehow the procedure laid down by the Government for removal of a selected Anganwari Sevika, who had already completed the training and had been working on the post was not followed in letter and spirit. In this context from the guideline issued by the State Government under the signature of the Secretary of Welfare Department of the Government of Bihar, it would be found that Clause 8 lays down the manner of conducting a proceeding in case of detection of any irregularity in the selection/ appointment on the post of Anganwari Sevika. The relevant portion of Clause 8 is extracted hereinbelow: w^ ?h% it ^rt °Mfad 5rt (ftyrq^rAira? ^t *4\4bi) m% ^m/Trn #r ^rT rmr sm Rl+Wd T^ TT ^ WQ JM^M pWJFT T3 (tt) jj*hw [Si+md *re rc ft^t sraw: *ffa ^ft m& TOT % *m ^t *## rPUT feP > frftfif^T 3lfrH/5ra? =PT JcrWH ^ *PH (1) ^ %f%^T/«glR+l ^ ^PH ^T (2) iffi Wtffa ^f^fST/^lR+l ^t t rlfaH ^F 3iyRl(SRT I", (3) ^fc HWlRxi %f^T/^IKl*l «fit gflrerii 3f ^rt fj&r ^kit t qr yRiylmw 3wm«iiII ^5 ^ra#RT feqT *rf tst f # ?*r im% ^f #^r tRiflJER# ^nft ^rrsqf £ ^m 3^ *ph 5^r ^% ^r ywm firar TT5iflpPi% ^r ^Jri ftrar Mii[sjw?l ^f ip# ^r ¦?(^rt ^ ^r RRl^d, ^nw ^ *mt rrsqf/^nlNT srfd^r ^ 3!^!^ ^T tJ^T ^TF % 3R* g^T 311^91 (Speaking order) ,:nfift tvft\ zrifa sp#rt % ^feqr ^r ^rt ^t f% % *i+i?1 f^T/^R^f #T 3lR%^ ^T BBt ^RT ^T ^fi ^INt ^ #1% ^ ^EPRg^rT ^r% mfii *1^|| % Rw4KH ^fT c&?T (*^l^llH ^TT! (4) %f%^T/BBTf^T 3RT #5ST % 3W^T rRm tr? f%qr ^rar ti (5) nfc ^n|^TT *T^*i 6 ^ 8(i)(2)(3)(4) 5r qfe feir/l^r % &$& sm ?m m 3n%3H ^# fW ^arar ti" 14. (4) %f%^T/BBTf^T 3RT #5ST % 3W^T rRm tr? f%qr ^rar ti (5) nfc ^n|^TT *T^*i 6 ^ 8(i)(2)(3)(4) 5r qfe feir/l^r % &$& sm ?m m 3n%3H ^# fW ^arar ti" 14. Thus from perusal of the aforementioned Clause 8 of the Guideline, it would become clear that if a complaint is made with regard to the selection on the post of Anganwari Sevika an enquiry has to be held and the person concerned if she has already been selected undergone the training and had started working as Anganwari Sevika, as the case in hand of the appellant-writ petitioner is, she has to be furnished all such materials including the complaint and the enquiry report which would be borne out also from Clause 10 of the Guideline which reads as follows: ^TCfaRT "*Rtal 8 ^ 9 ^T TR^ 3t %f^T/«?5lPHl ^t ^^PFT ^cT *J3tT *R% m *ct £* * 3fl^3T (Speaking order) PtfRT ^*%l" 15. Apparently in the present case when the Collector-cum-District Magistrate of Bhojpur District by the order in the note sheet of the file had passed an order on 16.10.2007 for removal, no such procedure was followed, inasmuch as it appears that some subordinate authority to the Collector of the District on receipt of an ex parte enquiry report of C.D.P.O. had submitted a proposal for cancellation of selection and appointment of the appellant-writ petitioner as would be evidenced from the portion of the noting of the file being part of Annexure-5 which was supplied to the appellant-writ petitioner under the Right to information Act. Annexure-5 reads as follows: f^gr_33©sS JM^d *l4f dd: J«U 4 f^Tf I^T t %, srqftrT %f%^iT"^t *FT frlfa 10.10.84 t, rftf *)fa-* >l ^ 5? ^T W*\ irrf^T 8.10.92 f I ^ VHnK *H)ldd 2lR*l ^ 3TI £ 5^ #T 35 *f IT? 7 3^, "TOW TTff 28 f^T «FT 3FtR t ^ ^Tdf: 3W*rar ^#tT ?fclT tl ^# ifrtM^ *f 3^T 3R+I ^FI ,EPH ^[W 3n^mfr f^RT 16.10.07 ^ywifad Ko / - 3rcw fcri^ 17.10.07 Tr?rqg7 16. ^T W*\ irrf^T 8.10.92 f I ^ VHnK *H)ldd 2lR*l ^ 3TI £ 5^ #T 35 *f IT? 7 3^, "TOW TTff 28 f^T «FT 3FtR t ^ ^Tdf: 3W*rar ^#tT ?fclT tl ^# ifrtM^ *f 3^T 3R+I ^FI ,EPH ^[W 3n^mfr f^RT 16.10.07 ^ywifad Ko / - 3rcw fcri^ 17.10.07 Tr?rqg7 16. From the perusal of the aforementioned note-sheet it is thus more than clear that the prescribed procedure for cancellation of selection of the appellant-writ petitioner on the post of Anganwari Sevika was not followed in the first instance and the order of the Collector dated 17.10.2007 in the file on the basis of which the appellant-writ petitioner was given the consequential order by the Child Development Project Officer on 23.11.2007 was rightly set aside by the Commissioner of the Division in exercise of his appellate power wherein he had held as follows: "3. ^Rt TSlf. ^T TJT% ?P1T dPlteT 3irfeT ^TPT TT5TR * >HMIdi *fr 31 ^4H % 3WtT 5f. qrar ^ f% ^ tpr?T % 31%rk# #t %gr #5ht 3FtT% 3TPFrar|f %f^Kr/4i??ift * >i ^ *t0H Wit *«fl * >Ts JM^lim ^t fdf > % arftreirPT 3t ii? ^ ¦^m ^t\" 17 Thus in view of the aforesaid operative portion of the appellate order as also Clause-8(ga) read with Clause-10 of the Guidelines, the Collector of the District, was required to at least apprise the appellant the nature of complaint received and enquired into by the C.D.P.O. as also the contents of enquiry report of C.D.P.O. and the copy of the voter list of 1995. It is however not in dispute that no documents/information was supplied by the Collector to the appellant at any stage. The prejudice to the appellants on this score is also writ large on the face of record inasmuch as it would be found that while the date of birth of Vikash Kumar the alleged son of the appellant to be 5.3.1993 was made the basis by the Collector to hold that she had suppressed her age, the same authority in this earlier order passed in the note sheet of the file as per the report of the C.D.P.O. had recorded the 8.10.1992 to be the date of birth of Vikash Kumar. Obviously if the enquiry report or the other materials referred to and relied in the impugned order could have been furnished to the appellant-writ petitioner she could have understood the nature of allegation in its proper prospective and could have also explained her defence in an effective manner. Thus in absence of supply of the relevant complaint and its document to her including the enquiry report it was in fact impossible for her to defend herself that her age recorded in her Madhyama Certificate was correct. That however was admittedly not done even after the order of the Divisional Commissioner and the Collector-cum-Dis- trict Magistrate only after hearing the parties had passed the impugned order. In that view of the matter there would be no difficulty for this Court in holding that Clause 8 and Clause 10 of the Guidelines, as quoted above, were not substantially complied in the case of the appellant-writ petitioner and the decision taken in the impugned order was vitiated once again on account of violation of the principle of natural justice. 18. This Court in fact is amazed with the logical skill of the Collector of the district who somehow has shifted the entire onus on the appellant-writ petitioner to prove that her age recorded in Madhyama certificate was correct, whereas the requirement of law was that such onus was to be discharged by the person alleging that the appellant-writ petitioner was aged more than 40 years on the date of her appointment and thus, disqualified on the date of her selection/appointment as Anganwari Sevika and that she had suppressed such real age by giving a false certificate in support of her age. This Court would however find from the impugned order that the onus to prove that the appellant-writ petitioner had suppressed her real age, instead of being placed on the person who had brought such allegation, was shifted on the appellant who now was burdened with the onus to prove that her date of birth as recorded in her matriculation (Madhyama) Certificate was correct. It is actually this perverse approach of the District Collector which has vitiated his decision making process and led to an obvious error in the impugned order. It is actually this perverse approach of the District Collector which has vitiated his decision making process and led to an obvious error in the impugned order. In the opinion of this court merely because the authentic document, matriculation certificate or its equivalent Madhyama certificate had recorded the age of the appellant-writ petitioner to be 10.10.1984, the same could not be doubted only on the basis that appellant-writ petitioner was the mother of Vikash Kumar whose date of birth in the school records was 5.3.1993 specially when there is nothing to prove that she was the real mother and not the stepmother. 19. We are also of the view that the Collector of the district, who under the circumstances was called upon to only to decide as to whether the appellant was eligible in terms of age as laid down in the Guidelines, ought to have refrained himself in deciding the issues of the appellant-writ petitioner to be the first or second wife of Harendra Prasad Singh or being own or stepmother of Vikash Kumar as vexatious questions of fact requiring leading and appreciation of evidence could not have been decided in a summary proceeding by the District Collector and that too only on the basis of school age certificate of Vikash Kumar or the voter list of the year 1995. Such issues in fact could be adjudicated by only the Civil Court and the District Collector, therefore, could have safely absolved himself only by confining his consideration as to whether the appellant in terms of the Guidelines was eligible in terms of her age. Admittedly the Collector has no power/ jurisdiction to cancel or annul the matriculation (Madhyama) Certificate of the appellant including the entry with regard to her recorded date of birth inasmuch which invariably is based on the records of the school. The Collector therefore ought to have left the complainant to get it adjudicated by a competent civil court by way of a declaration that the date of birth of the appellant as recorded in her matriculation (Madhyama) Certificate was fake in view of the fact she was actually first wife of Harendra Prasad Singh and also the own mother of Vikash Kumar having his date of birth as 5.3.1993. 20. 20. That apart, if the District Collector on the basis of the age of the appellant shown to be 22 years in the voters list of 1995 was of the opinion that she was born in or around 1973 and not on 10.10.1984 the date of birth as recorded in her Madhyama Certificate, he could have got age of the appellant determined by the Civil Surgeon through the Medical Board by adopting the process of ossification test as is usually resorted to in case of dispute of age. It has to be kept in mind that even if the Collectors own assumption on the basis of Electoral Roll of the year 1995 showing the appellant- writ petitioner 22 years is taken to its logical conclusion the age of the appellant-writ petitioner in that case also in the year 2007, when the appellant was appointed as Anganwari Sevika would be around 34 years only and that being not beyond the prescribed age of 40 years, the Collector of the District had to give the benefit of doubt to the appellant- writ petitioner. 21. The closed mind of the District Collector and his defiant attitude to stick to his earlier decision, already set aside by the appellate authority namely the Divisional Commissioner, is however clearly reflected from the operative portion of the impugned order wherein despite setting aside of his earlier order terminating of the service of the appellant, he has gone to reaffirm his own order which in fact was no longer in existence. The concept of the post decisional hearing by way of compliance of the principles of natural justice in some cases by the Apex Court has been held to be its substantial compliance but if the authority, who even after extending the opportunity of post decisional hearing remains adamant to reaffirm his earlier view, he cannot be said to have acted fairly and objectively. It was in this context that the Apex Court in the case of Shephard V/s. Union of India reported in 1987(4) S.C.C. 431 had recorded the pitfalls of the post decisional hearing in the following words: "..........It is common experience that once a decision has been taken there is a tendency to uphold it and a representation may not yield any fruitful purpose.........." 22. The Collector of the District in fact after setting aside of his earlier order regarding cancellation of selection and appointment of the appellant-writ petitioner in our opinion was therefore required to act more objectively with an open mind but it is sad for us to record that he has miserably failed in his duty. We would not like to say anything more but at the same time we would fail in our duty if we do not express our disgust as to the manner in which the Collector has drawn adverse interference against the appellant for non- production of the death certificate of the first wife of her husband after 14 years of her death. In the opinion of this Court the post decisional hearing given by the Collector of the District under the direction of the appellate authority, the Commissioner of the Division, has been turned into a futile exercise on account of pre-conceived notion and closed mind of the Collector of the District as is also clearly reflected in the impugned order. 23. Consequently, the impugned order passed by the Collector of the District as also the order of the learned Single Judge is set aside. 24. We however in order to do complete justice between the parties we would, direct the Commissioner of Patna Division, the appellate authority, to get the age of the appellant-writ petitioner determined by a duly constituted Medical Board within a period of three months from the date of receipt/production of a copy of this order and in the event the Medical Board finds the age of the appellant-writ petitioner to be less than 40 years as on the date of her appointment i.e. in the month of May, 2007, she will be reinstated back in service with consequential benefits but if the Medical Board would find the appellant-writ petitioner to be beyond the age of 40 years as in the month of May, 2007, there would be no question of her being reinstated in service. 25. With the aforementioned observations and directions, this appeal is allowed. There would be, however, no order as to costs. Dipak Misra, J. 26 I agree.