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2012 DIGILAW 396 (HP)

Karmi Devi v. State Of H. P.

2012-07-20

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT : Dharam Chand Chaudhary, J. By means of this writ petition, the petitioner has claimed the following reliefs: a) That a writ in the nature of certiorari may kindly be issued for quashing Annexure P-6 dated 4.3.2011, Annexure P-7 dated 29.03.2011 & Annexure P-8 dated 11.08.2011 passed/issued by the respondents no. 6,3 & 2 respectively keeping in view the facts and circumstances of the present case, particularly contents of para 8(iii) to (vi), in the interest of law and justice. b) That a writ in the nature of Mandamus may also be issued directing the Respondents No. 1 to 5 to appoint the present petitioner as Anganwari worker in Anganwari Centre Bajwa Tehsil Bhoranj Distt. Hamirpur with all consequential benefits including back wages and seniority and further to treat the petitioner as having been in the service throughout from the date of judgment dated 11.2.2008 passed by the respondent No. 3. The challenge in the writ petition is to Annexure P-6, report dated 4.3.2011 submitted by the 6th respondent to the 3rd respondent reporting thereby that during the course of inquiry conducted to ascertain the genuineness of income certificate to the tune of Rs. 11,500/- for the period 2006-07 issued in favour of the 5th respondent, the same was found genuine. The order dated 29.3.2011, Annexure P-7 whereby the 3rd respondent while accepting the report Annexure P-6 supra had decided the matter in favour of the 5th respondent and Annexure P-8 passed by the 2nd respondent whereby the appeal, the petitioner had preferred against the order Annexure P-7 was dismissed and the order Annexure P-7 was upheld. 2. The legality and validity of the orders Annexures P-6, P-7 and P-8 has been assailed by the petitioner on the grounds inter-alia that the same are neither legally nor factually sustainable and rather contrary to the material, Annexure P-9(Colly.) qua the income of the 5th respondent produced by her during the course of inquiry conducted by the 6th respondent. 3. On the other hand, the factum of the family of petitioner having separated in the year 1998-99 and also a family duly identified to be living below poverty line by Gram Panchayat, Tikkar Bhula, Tauni Devi has not been taken into consideration and the certificates produced to this effect were erroneously ignored. 3. On the other hand, the factum of the family of petitioner having separated in the year 1998-99 and also a family duly identified to be living below poverty line by Gram Panchayat, Tikkar Bhula, Tauni Devi has not been taken into consideration and the certificates produced to this effect were erroneously ignored. It has also been pointed out that initially the 3rd respondent while accepting the appeal preferred by the petitioner vide order dated 12.2.2008, Annexure P-4 had observed that marks for personal interview were given only to the 5th respondent and not to the other two candidates i.e. the petitioner and one Smt. Kamla Devi without recording any reason thereto and that it vitiated the entire selection process. Also that no doubt the appointment of the 5th respondent was set aside, however, it was further observed that in case the petitioner and said Smt. Kamla Devi were not found eligible, they should have not been called for interview. Thus while setting aside the appointment of the 5th respondent, the Child Development Project Officer, Tauni Devi, 4th respondent was directed to call fresh applications and conduct the interview for the post in question by 31.3.2008. This aspect of the matter is stated to be not taken into consideration by the 2nd and 3rd respondents while deciding the appeal(s), she preferred vide impugned orders Annexures P-7 and P-8. 4. In a nut-shell it has been claimed that income of the 5th respondent and also her husband from the agricultural land and other sources such as seeds shop, PCO and a private clinic, which were being run by her husband and also from the contractor-ship, as he was a registered contractor with the H.P. Public Works Department was not correctly computed by the 6th respondent during the course of inquiry. The report Annexure P-6, he submitted is stated to be not correct and the impugned order Annexure P-7 passed by the 3rd respondent and Annexure P-8 by the 2nd respondent, on the basis thereof are stated to be neither legally nor factually sustainable. 5. On the very first day of hearing i.e. 2.1.2012, the order passed by this Court reads as follows: No notice need be issued to the fifth respondent. 5. On the very first day of hearing i.e. 2.1.2012, the order passed by this Court reads as follows: No notice need be issued to the fifth respondent. There will be a direction to the sixth respondent to file an affidavit as to the computation of the income of both the petitioner and the fifth respondent, within six weeks. 6. Accordingly, the 6th respondent had filed the affidavit, as directed by this Court stating therein the income of the petitioner and the 5th respondent and computation of their respective income from all sources. As per report Annexure P-6 and the affidavit filed by the 6th respondent, the income of the petitioner and the 5th respondent for the period from June, 2006 to 31st May, 2007 (one year) was computed. There is no quarrel qua this aspect of the matter. The affidavit was perused on the next date i.e. 26.3.2012, on which date the following order came to be passed: Notice. Mr. J.K. Verma, Deputy Advocate General appear and waives service of notice onbehalf of respondents No. 1 to 4 & 6. There will be a direction to respondents No. 4, 5 & 6 to be present before this Court. The petitioner shall also be present on 23.4.2012. 7. Consequently, the record was produced by the 4th and 6th respondents on the date fixed, which was perused and the order passed on that day inter-alia reads as follows: 7. In view of the inquiry conducted and record available prima facie the assessment of income of the 5th respondent seems to be not fair and impartial. We, however, refrain ourselves from making any other and further observations in this behalf at this stage and leave it open for consideration after taking on record the version of the respondents and also the private respondent. 8. Issue notice Dasti to the 5th respondent for 3rd May, 2012 on taking steps within 24 hours. Whether the 5th respondent in such a situation can be allowed to continue as Anganwari Worker or not shall also be taken on that date. 'Dasti' notice be handed over to the Learned Counsel for the petitioner immediately. Post on 3rd May, 2012. Report qua the service of second respondent be also made available for the date. 8. Consequently, reply to the writ petition on behalf of respondents No. 1 to 4 came to be filed. 'Dasti' notice be handed over to the Learned Counsel for the petitioner immediately. Post on 3rd May, 2012. Report qua the service of second respondent be also made available for the date. 8. Consequently, reply to the writ petition on behalf of respondents No. 1 to 4 came to be filed. The 5th respondent has also filed separate reply thereto. 9. The only point in issue which needs adjudication in the present writ petition is as to whether the appointment of the 5th respondent as Anganwari Worker at Anganwari Centre, Bajwa, Tehsil Bhoranj, Distt. Hamirpur is the result of concealment of factual position qua her income from all sources and whether the petitioner being duly eligible under the guidelines for being appointed as such, however, was ignored erroneously. 10. Before entering into the above controversy on merits, the guidelines attracted in the given facts and circumstances need to be discussed first. The guidelines framed by the Department of Social Justice and Empowerment and prevalent at the relevant time when the petitioner and the 5th respondent were considered for appointment as Anganwari Worker are annexed to this writ petition as Annexure P-1. Clause 4 thereof provides for eligibility criteria which reads as follows: 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; 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 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. 11. 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. 11. Item No. 7 of Annexure P-1, which reads as follows, is also relevant for the adjudication of the present controversy; Marks Selection shall be based on merit out of the total marks of 20 marks will be awarded as follows :- a) Maximum 9 Marks for educational qualification will be in the following manner:- Anganwadi Worker Percentage of marks in matric divided by 10 subject to the maximum of 9 marks. Anganwari Helper Primary pass - 9 marks b) 2 marks for experience. (1 mark is to be awarded for every year experience as Anganwadi Helper/Balsevika/Balwadi Teacher/Nursery Teacher/Shishu Palak/ ECCE subject to a maximum 2 marks) c) 2 marks for State Home/Balika Asharam Inmates/Orphans/widow's/destitute. Provided that these additional 2 marks will not be given to those widows who are obtaining family pension from the govt. d) 2 marks for SC/ST/OBC and those belonging to ex-service men category/widow and ward of freedom fighter. e) 1 mark for disabled. f) 4 marks for personal interview. 12. The record discloses that both the petitioner and the 5th respondent are resident of village Bajwa where the Anganwari Centre is situated. They both fulfil the educational qualification and also belong to such families from which there is none in the Government job. Even as per the income certificates, they had initially produced alongwith their applications while the income of the petitioner from all sources is Rs. 11880/-, it is Rs. 11,500/- of respondent No.5. 13. On behalf of the petitioner, much has been said qua authenticity and genuineness of the certificate of income produced by the 5th respondent. It is relevant to point out here that income of the petitioner and the 5th respondent for the period preceding one year from the date of their selection i.e. 1.6.2006 to 31.5.2007 has been taken into consideration because the process for filling up the post in question was initiated somewhere in the month of June/July, 2006. 14. It is relevant to point out here that income of the petitioner and the 5th respondent for the period preceding one year from the date of their selection i.e. 1.6.2006 to 31.5.2007 has been taken into consideration because the process for filling up the post in question was initiated somewhere in the month of June/July, 2006. 14. The report Annexure P-6 submitted by the 6th respondent to the 3rd respondent after holding inquiry into the genuineness of the income certificate issued to the 5th respondent and also the affidavit filed by the said respondent, pursuant to this Court's order dated 2.1.2012, it is amply clear that the 6th respondent had computed the income of the said respondent from the land belonging to her husband on the basis of letter No. 513- 17/92/SK/OK/30.1.1992 of the Deputy Commissioner, Hamirpur, the income from the STD/PCO booth, seeds shop and from the Vaid's profession he was running/carrying. The same in all comes to Rs. 11,492/- (11,500). 15. The petitioner has been afforded due opportunity of being heard by the 6th respondent while conducting the inquiry and assessing the income of the 5th respondent as Rs. 11,500/- during the period June, 2006 to 31st May, 2007 (one year). He however, was found to have not earned any income from the contractor-ship and rightly so because he was registered as a Contractor only on 11.4.2007, as is apparent from the office order issued by the Superintending Engineer, 8th Circle, H.P.P.W.D. Hamirpur on 28.4.2007, Annexure P-9 (Colly.). It is well established that he did not execute any work till 31.5.2007 during one month from his registration i.e. up to 31.5.2007 and even till date also. Rather his registration now stands cancelled and he is no more a contractor, as pointed out by Learned Counsel representing the 5th respondent, during the course of arguments. The claim of the petitioner that the 3rd respondent in the order Annexure P-4 has held that income of the petitioner was more than Rs. 12,000/- are without any substance for the reason that no such observations have been made in the said order. The petitioner has not brought on record any evidence suggesting that the income of the husband of the 5th respondent from agricultural land, STD/PCO, seeds shop and from his profession of Vaid was more than Rs. 11,500/-, at the relevant time. 12,000/- are without any substance for the reason that no such observations have been made in the said order. The petitioner has not brought on record any evidence suggesting that the income of the husband of the 5th respondent from agricultural land, STD/PCO, seeds shop and from his profession of Vaid was more than Rs. 11,500/-, at the relevant time. Thus, it cannot be said by any stretch of imagination that certificate of income produced by the 5th respondent is not genuine and rather false. 16. As regards, the income of the petitioner, there is no challenge thereto either on behalf of the 5th respondent or respondents No. 1 to 4 and the 6th respondent rather had certified her income from all sources during the aforesaid period as Rs.11,880/-. 17. It is thus seen that both the petitioner and the 5th respondent were eligible for being considered for appointment as Anganwari Worker in Anganwari Centre Bajwa. 18. The entire record pertaining to this selection was perused by this Court on 23.4.2012, as is apparent from the perusal of the order passed on that day. The record so perused discloses that besides the petitioner and the 5th respondent, one Smt. Kamla Devi were interviewed on 7.8.2007 for making selection against the post in question. The award list reveals that no marks were given to the petitioner for personal interview, whereas the 5th respondent was given 3 marks. Since, the marks for educational qualification given to the petitioner were more as compared to the marks given to the 5th respondent, therefore, had she been given marks for personal interview also her score would have gone higher as compared to that of the 5th respondent, and as a result thereof it is she who would have been selected. No apparent reason except that the petitioner had failed to produce the copy of parivar register, justifying the action of the Selection Committee in not awarding marks to the petitioner for personal interview could be ascertained from the perusal of the record. 19. It is pertinent to mention here that in the guidelines, the separation of family as on 1.1.2004 is one of the eligibility criteria for those candidates who have produced the certificate of income claiming that their family is separate and not joint family. 19. It is pertinent to mention here that in the guidelines, the separation of family as on 1.1.2004 is one of the eligibility criteria for those candidates who have produced the certificate of income claiming that their family is separate and not joint family. In case the family of such candidate is not found to be separated as on 1.1.2004 and rather joint, her candidature to the post can be rejected and she is not entitled to be called for the interview. It is also relevant to point out here that if a candidate is a member of a joint family, the income whereof does not exceed to Rs. 12,000/- per annum, her candidature cannot be rejected merely on this score that she is a member of joint family, because no such criteria is prescribed under the guidelines and rather separation as on 1.1.2004 is to be seen only in those cases where the income of a candidate has been computed on the basis of that of a separate family, whereas as per the record i.e. parivar register such family on that day was not separate. This question has been considered by a Division Bench of this Court in CWP No. 925 of 2010 titled Smt. Jasbir Kaur vs. State of Himachal Pradesh and others decided on 18th April, 2012. While following the ratio of an earlier judgment of a Co-ordinate Bench in CWP No. 1096 of 2010, titled Raksha Devi Vs. State of H.P. and others, it is held as under : 7. Since it is the only question as to whether the separation of a family as on 1.1.2004, 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. 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 had taken place in 5 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.6000/- per annum, as per the certificate of income issued by the Executive Magistrate, Dehra (Kangra), H.P. 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. 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 Authorities 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 Vs. State of H.P. 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. 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. 20. As per ratio of the judgment extracted supra, it is crystal clear that had the income certificate produced by the petitioner been not as per the guidelines, her candidature would have been cancelled and not considered for the post in question. Above all, if the record such as parivar register or extract thereof was not produced by her to prove separation of her family as on 1.1.2004, it is not understandable as to why her application, being not accompanied by the requisite documents, was entertained. Above all, the guidelines nowhere provide that a candidate who failed to produce any document is not entitled to the award of marks for personal interview. Above all, the guidelines nowhere provide that a candidate who failed to produce any document is not entitled to the award of marks for personal interview. The record produced in the Court and perused was suggestive of the fact that in the award list against the name of the petitioner below column for personal interview entry "copy of parivar register not produced" was found to be made. It is the case of the petitioner that all the requisite documents were submitted by her alongwith the application. No doubt, copy of parivar register available on record is dated 16.10.2006, however, in remarks column, another date i.e. 8.8.2007, a day after the interview, find mentioned. The marks under the head "personal interview" are required to be awarded towards general awareness, personality and competency etc. of a candidate. The then Deputy Commissioner was absolutely justified to observe in the order Annexure P-4 passed during the 1st round of litigation, as follows: However, only the respondent have given interview marks. No interview marks were given to the other two candidates. In the result sheet, following the remarks have been made in front of name of candidate at Sr. No. 2 Smt. Kamla Devi date of family separation given as 31.12.02 and candidate at Sr. No. 3 Karmi Devi-". Joint family. The stipulation that family should be separated as on 1.1.04 given in the guidelines issued by the department of social justice and empowerment was for the purpose of a curtaining whether any family member was in government service or that income of joint family was more than Rs. 12,000/-. It was a disqualification criteria per se. If the candidates at Sr. No. 1 and Sr. No. 2 were not eligible then they should not have been issued interview and call letters. 21. No doubt, as held hereinabove, the income certificate produced by the 5th respondent is genuine and otherwise also she is eligible for being considered for appointment as Anganwari Worker. However, the act on the part of the Selection Committee in not awarding any marks to the petitioner for personal interview is neither legally or factually sustainable for the reasons recorded hereinabove. In my considered opinion, as already observed, had the requisite document(s) been not produced by the petitioner alongwith the application, her candidature should have been cancelled and not called for interview. In my considered opinion, as already observed, had the requisite document(s) been not produced by the petitioner alongwith the application, her candidature should have been cancelled and not called for interview. However, when interviewed, she is legally entitled to the award of marks on account of personal interview. The selection of the 5th respondent in such a situation cannot be said to be legal and valid and the Appellate Authority should have quashed and set aside the same. Her selection, however, has been upheld only on the ground that the income certificate produced by her is genuine. Grievance of the petitioner against not awarding marks to her for interview is erroneously brushed aside and not entertained at all. In such a situation, I find the present a fit case where the appointment of the 5th respondent deserves to be quashed and set aside, on this score and the process to fill up the post in question should be initiated afresh. 22. In view of all the reasons hereinabove, the report Annexure P-6 submitted by the 6th respondent being in accordance with factual position is absolutely legal and as such deserves to be upheld. The orders Annexures P-7 & P8 to the extent of the same are based upon the report are also legal and valid, however to the extent of not contain any discussion or findings qua the grievance of the petitioner that is, not awarding any marks to her for personal interview are bad in law and as such deserves to be quashed and set aside. 23. Consequently, this writ petition partly succeeds and the same is accordingly allowed. Since due to non-award of marks to the petitioner for personal interview, the entire selection process is vitiated, therefore, the appointment of the 5th respondent as Anganwari Worker in Anganwari Centre, Bajwa, Tehsil Bhoranj, Distt. Hamirpur is hereby quashed and set aside, however, with a direction to respondents No. 1 to 4 to initiate the process afresh for filling up the said post strictly as per guidelines and also the law laid down by this Court in CWP No. 925 of 2010 titled Smt. Jasbir Kaur vs. State of Himachal Pradesh and others & CWP No. 1096 of 2010, titled Raksha Devi Vs. State of H.P. cited supra by inviting fresh applications from the desirous candidates including the petitioner and the 5th respondent within two weeks from the date of production of a copy of this judgment by the petitioner before them and make selection within two months thereafter. Till then the 5th respondent shall continue as Anganwari Worker at Anganwari Centre, Bajwa. Pending application(s), if any, shall also stand disposed of. No orders as to costs.