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2012 DIGILAW 204 (HP)

Jasbir Kaur v. State Of Himachal Pradesh

2012-04-18

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

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JUDGMENT : Dharma Chand Chaudhary, J. By means of this writ petition, the petitioner has claimed the following reliefs: "(a) That the instant petition may very kindly be allowed with costs in favour of the petitioner and this Hon'ble court may very kindly be pleased to issue a writ in the nature of certiorari, quashing and setting aside the order dated 17.11.2009 passed by the learned Addl. District Magistrate, Kangra at Dharamshala (Annexure P2) in appeal No.40/2007 and order dated 6.3.2010 passed by the learned Divisional Commissioner, Kangra (Annexure P-4) in Appeal No.513/2009. (b) That this Hon'ble court may further be pleased to issue writ in the nature of Mandamus, directing the respondents to permit the present petitioner to work on the post of Anganwari Worker in the Anganwari Centre, Paral, Tehsil Indora, District Kangra, H.P., with all consequential benefits." 2. The challenge in the present writ petition is to the order dated 17.11.2009, Annexure P-2, passed by the Appellate Court (Additional District Magistrate, Kangra at Dharamshala), in Appeal No.40 of 2007, whereby the appointment of the petitioner as Anganwari Worker has been set aside and also the order dated 6.3.2010 Annexure P-4, passed by the Divisional Commissioner, Kangra Division at Dharamshala, in second appeal No.513/2007, whereby the order Annexure P-2 has been upheld. 3. The legality and validity of the impugned orders Annexures P-2 and P-4 has been assailed on the grounds, inter alia , that the same are neither legally nor factually sustainable and rather are unjust, unreasonable and arbitrary. The provisions contained in Clause 4(e) of the Policy Annexure P-1 could not have been interpreted in a manner that a candidate belonging to a family separated after 1.1.2004, is not eligible to apply for the post of Anganwari worker. The Appellate Courts below are stated to have committed a grave illegality while concluding that separation of a family after 1.1.2004 is a disqualification and no member of such family can be considered for the post, in question. 4. In this behalf, it is clarified that the requirement of separation of a family as on 1.1.2004 is only for a limited purpose, i.e. to treat a family as a separate unit for the purpose of computation of its income from all sources. 4. In this behalf, it is clarified that the requirement of separation of a family as on 1.1.2004 is only for a limited purpose, i.e. to treat a family as a separate unit for the purpose of computation of its income from all sources. Thus, on the basis of such provision in the policy, it cannot be concluded by any stretch of imagination that a member of a family bifurcated after 1.1.2004, is not qualified for being considered to the post, in question, and that it is only those candidates , whose families were separated as on 1.1.2004, are eligible for being considered to the post, in question. It has been pointed out that the own income of the petitioner and also her family, from all sources, was Rs. 6000/- per annum, as per the income certificate Annexure P-5, issued by the competent authority. According to the petitioner, this certificate should have been treated as a conclusive proof for the purpose of her appointment as Anganwari Worker and the Selection Committee did so while recommending her appointment as Anganwari worker. The approach to the contrary, adopted by both Appellate Authorities is stated to be highly illegal, arbitrary and unjustifiable. It has further been pointed out that the petitioner was actually residing separately since the year 2000, however, this fact came to be recorded in the record of the Panchayat only on 17.6.2004. It has further been pointed out that the 3rd respondent, who filed appeal against the petitioner, was herself not eligible for being considered to the post, in question. She has thus no locus standi to challenge the appointment of the petitioner. It has also been pointed out that her husband is a physically handicapped person and suffering from locomotive disability to the extent of 40%. 5. In a nutshell, it is submitted that the impugned orders have resulted in gross-miscarriage of justice to the petitioner, besides she being subjected to unwarranted harassment. Hence, the present writ petition. 6. Pursuant to the process issued by this court, the 3rd respondent is duly served and present in person. 7. 5. In a nutshell, it is submitted that the impugned orders have resulted in gross-miscarriage of justice to the petitioner, besides she being subjected to unwarranted harassment. Hence, the present writ petition. 6. Pursuant to the process issued by this court, the 3rd respondent is duly served and present in person. 7. Since it is the only question as to whether the separation of a family as on 1.1.2 004, is a disqualification for being considered to the post of Anganwari Worker involved to be adjudicated upon in this writ petition and it being legal in nature and matter of interpretation of the provisions of the Scheme, therefore, we proceed to dispose of this writ petition in limine. 8. We would like to make a reference to Clauses 4(e) and 4(f) of the Scheme/Guidelines, notified vide notification dated 11.4.2007, Annexure P-1. The same read as under: "(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 1st January, 2004. (f) Those whose annual income does not exceed Rs. 8000/- per annum to be certified/ countersigned by an officer not below the rank of Tehsildar." 9. The joint reading of the above provisions, makes it abundantly clear that the income of a candidate eligible to apply for the post of Anganwari Worker should not be more than Rs. 8000/- per month and a candidate belonging to a separate family must show that separation of family ha d taken place in accordance with the procedure prescribed under the Panchayati Raj Act and the Rules framed thereunder, before 1.1.2004. The simple and plain meaning of the above provisions is that the income of a candidate and other members of her family should not exceed Rs. 8000/- per annum, and if the income of the family is within this range, it is immaterial whether such family is separate or joint. The question of separation of a family on or before 1.1.2004 will arise only in those cases, where a candidate for the post in question, produces a certificate of income issued to her by the competent authority, being a member of such separate family. The present is not a case of this nature, because irrespective of the family of the petitioner being joint or separate, her income and that of her family is only Rs. The present is not a case of this nature, because irrespective of the family of the petitioner being joint or separate, her income and that of her family is only Rs. 6000/- per annum, as per the certificate of income issued by the Executive Magistrate, Dehra (Kangra) , Himachal Pradesh It is not the case of anybody that the income of the family of the petitioner was more than Rs. 8000/- per annum at the relevant time or that she had obtained the certificate of her income by concealment of any information. 10. In this view of the matter, both the Additional District Magistrate, Kangra at Dharamshala and the Divisional Commissioner, Kangra Division at Dharamshala, have miserably failed to understand the true meaning of the provisions contained under clause 4(e) of the Scheme ibid, while arriving at a conclusion that since as per the Panchayat record the separation of petitioner's family had taken place on 17.8.2007, therefore, she was not eligible for being considered for appointment as Anganwari worker. 11. If the reasoning they have given to set aside the selection of the petitioner is taken as true, it would mean that simply being a member of joint family, one is not eligible for the post, in question, even if her own income as well as that of her family does not exceed Rs. 8000/- per annum. We are afraid, this was never the intention of the maker of the Scheme nor can any such interpretation be said to be legal and factually sustainable. To our mind, the Appellate Authoritie s below have either failed to understand the true spirit of such provisions in the Scheme or interpreted the same in a manner, as in the impugned orders, for some extraneous consideration or with malafide intention and some oblique motive, irrespective of this Court in CWP No. 1096 of 2010, tiled Raksha Devi v. State of Himachal Pradesh and others, and connected matters , in very simple and a few words, having interpreted this aspect of the matter as under: "12. For separation from the family, the relevant date is 1.1.2004 and it should be reflected in the Parivar Register that as on that date, the family stood separated in case income is computed on the basis of separate family." 12. For separation from the family, the relevant date is 1.1.2004 and it should be reflected in the Parivar Register that as on that date, the family stood separated in case income is computed on the basis of separate family." 12. The meaning of the provisions in clause 4(e) supra, is thus very simple that separation as on 1.1.2004 is to be seen only in those cases, where the income of a candidate was found to be computed on the basis of a separate family. We note it with pain and anguish and rather disheartening to note that the role of Administrative functionaries at various level, who are supposed to implement the Policies/Schemes/Guidelines, like the present one, framed by the Government for the welfare of socially and economically weaker sections of the society is not above board, because irrespective of the interpretation of various provisions in the Scheme, by this Court in a catena of judgments, including the one cited supra, the matters are still being processed in a cursory and mechanical manner and with out application of mind. We refrain ourselves from making any other and further observation in this behalf and leave it to the authorities, in the administration, at an appropriate level, to ensure the implementation of the scheme in its true spirit and with a positive approach to achieve the goal, i.e. the extension of the benefit under such Schemes to the beneficiaries thereunder and not to thwart it. 13. Now, if adverting to the case in hand, the petitioner belongs to a family, the income of which, from all sources, is Rs. 6000/- per annum. She fulfills all the criteria and as such was recommended to be appointed as Anganwari Worker in Anganwari Centre, Paral, Tehsil Indora, District Kangra, Himachal Pradesh Although her appointment has been set aside by the Additional Dsitrict Magistrate, Kangra at Dharamshala, vide order Annexure P-2, which even has been upheld by the Divisional Commissioner, Kangra at Dharamshala vide Annexure P-4, yet she is still continuing as such. 14. In the light of the observations made hereinabove, the impugned orders Annexures P-2 and P-4 are neither legally nor factually sustainable and the same as such deserve to be set aside and quashed. 15. In result, this writ petition succeeds and the same is accordingly allowed. Consequently, the impugned Annexures P-2 and P-4 are set aside and quashed. 14. In the light of the observations made hereinabove, the impugned orders Annexures P-2 and P-4 are neither legally nor factually sustainable and the same as such deserve to be set aside and quashed. 15. In result, this writ petition succeeds and the same is accordingly allowed. Consequently, the impugned Annexures P-2 and P-4 are set aside and quashed. The petitioner shall be allowed to continue as Anganwari Worker at Anganwari Centre, Paral, Tehsil Indora, District Kangra, pursuant to her selection made by a duly constituted Selection Committee. 16. In view of the disposal of the main writ petition, pending application(s), if any, will also stand disposed of.