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2014 DIGILAW 1328 (HP)

Sukanya Devi v. Karmi Devi

2014-09-24

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. 1. The respondent is the writ petitioner, who had filed the writ petition claiming therein 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 and 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 District, 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." 2. The official respondents conducted interview for the post of Anganwari Workers for Anganwari Centre, Bajwa, Tehsil Bhoranj, District Hamirpur, wherein the writ petitioner, appellant and one Smt. Kamla Devi wife of Karan Singh appeared on 7.8.2007. Appellant was selected and given appointment. The writ petitioner filed an appeal before the Deputy Commissioner, who vide his order dated 17.8.2008 held that neither the writ petitioner nor the appellant nor Smt. Kamla Devi were eligible for appointment and directed the respondent No. 4 to hold fresh interviews by 31.3.2008. The appellant aggrieved by the aforesaid order filed an appeal before the Divisional Commissioner, Mandi, who vide his order dated 25.6.2008 accepted the appeal and set-aside the order of Deputy Commissioner and the appellant, who had been selected for the post of Anganwari Worker was permitted to continue. 3. Against this order, the writ petitioner preferred CWP No. 1844 of 2008, which came to be allowed by this court and the matter was remanded back to the Deputy Commissioner. The Deputy Commissioner while deciding the case called for the report of Naib Tehsildar, who held an inquiry and thereafter based on this report he vide his order dated 29.3.2011 rejected the appeal preferred by the writ petitioner. The writ petitioner thereafter again approached the Divisional Commissioner by filing an appeal, who rejected the same vide his order dated 11.8.2011. 4. The writ petitioner thereafter again approached the Divisional Commissioner by filing an appeal, who rejected the same vide his order dated 11.8.2011. 4. The writ petitioner thereafter filed CWP No. 11699 of 2011-J before this court and the learned single Judge vide judgment dated 20.7.2012 was pleased to partly allow the writ petition by upholding the income certificate issued in favour of the appellant, but at the same time held her selection to be illegal and invalid and consequently the selection of the appellant was quashed and set-aside and the official respondents were directed to initiate the process afresh for filling up the post strictly as per the 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 and CWP No. 1096 of 2010 titled Raksha Devi vs. State of H.P. 5. The learned single Judge for arriving at such conclusion had accorded the following reasons:- "22. 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 documents 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. 23. 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. 23. 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 Annexure P-7 & P-8 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. 24. 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." 6. Aggrieved by the orders passed by the learned single Judge, the appellant has approached this court by way of the present appeal and has challenged the orders on various grounds set out in the memo. Till then the 5th respondent shall continue as Anganwari Worker at Anganwari Centre, Bajwa." 6. Aggrieved by the orders passed by the learned single Judge, the appellant has approached this court by way of the present appeal and has challenged the orders on various grounds set out in the memo. We need not delve in detail on those grounds in view of the legal submissions made by the appellant to the effect as to whether it was open to the writ petitioner to have challenged the orders passed by the two authorities below by contending that they have not taken into account her eligibility and suitability to the post which ground in fact had not been taken or agitated either before the Deputy Commissioner or the Divisional Commissioner and had been abandoned. 7. The writ petitioner has placed on record, copies of appeal preferred by her after the case had initially been remanded by the Divisional Commissioner vide order dated 25.6.2008. Now in case the appeal filed before the Sub Divisional Magistrate, Bhoranj is perused, nowhere has the writ petitioner made mention of her eligibility and as a matter of fact she did not even lay her claim for the post in question. After setting out the case history, the appeal preferred before the Sub Divisional Magistrate only contains the following averments:- "3. That the A.C. Second Grade Bhoranj has not properly inquired about the income certificate nor tender the documents on record and sent a false report to D.C. Hamirpur in result of this the petition of the appellant was dismissed by the D.C. Hamirpur. 4. That the respondent falsely obtained a income certificate and shown her income Rs. 11,500/- per annum which is not correct. In fact at the time of obtaining the income certificate the respondent concealed the actual facts before the concerned authority and only shown the income of her property, whereas, the husband of respondent is working as a contractor in HPPWD and I&PH Departments and also licence holder to carry on the business of seed dealer and also doing the work of Doctor at place Tikkar Khatrian for the last 10 years and the husband of respondent also installed a P.C.O. from where his income during the year 20062007 is 215.75/- per month and in the year 2007-08 his income is Rs. 212.16/- per month which comes Rs. 2848/- in 2006-07 and Rs. 212.16/- per month which comes Rs. 2848/- in 2006-07 and Rs. 2031/- in 2007-08 and the total income stands Rs. 13581/- per annum, and the income of the respondent exceeds to Rs. 12000/- per annum. All documents in this regard are enclosed herewith for the kind perusal of this Hon’ble court. 5. That the lower court has wrongly taken into consideration the case and not cancelled the income certificate of the respondent, hence the order of lower court is not sustainable in the eyes of law. 6. That more submissions will be submitted before this Hon’ble Court at the time of final arguments. 7. That the lower court has passed the impugned order on dated 8.3.2011 and the appellant applied for the copy of order on 5.4.2011 which supplied to him on 8.4.2011, hence the appeal of the appellant is within the period of limitation. It is, therefore, respectfully prayed that keeping in view the submissions made above the after hearing the parties and calling for the record of the case the appeal of the appellant may kindly be accepted and the income certificate obtained by the respondent fraudulently by concealing the actual income may kindly be cancelled and justice be done." 8. Even in the appeal filed thereafter before the Divisional Commissioner, the writ petitioner did not lay claim to the post in question nor did she even make a whisper regarding her eligibility. The appeal contains the following averments:- "4. That the appellant filed an application before D.C. Hamirpur for the rejectment of appointment of respondent No. 1 on the ground that at the time of selection of respondent No.1 she produce a false income certificate before the respondent No. 2 and has got the job on the basis of false income certificate. 5. That the respondent No. 1 has shown her income Rs. 11,500/- per annum in her income certificate, whereas her income is more than Rs. 12000/- per annum, hence the income shown by the respondent No. 1 is wrong and obtained the certificate on false statement and concealed the actual income. 6. That in fact the husband of the respondent No. 1 is working as contractor in HPPWD and I&PH Departments. He is licence holder of seed trader and also working as Doctor at place Tikkar Khatrian and also installed a P.C.O. on his name. 6. That in fact the husband of the respondent No. 1 is working as contractor in HPPWD and I&PH Departments. He is licence holder of seed trader and also working as Doctor at place Tikkar Khatrian and also installed a P.C.O. on his name. The copies of documents are attached for the kind perusal of this learned Court. 7. That the documents clearly shows the P.C.O. on the name of husband of the respondent No. 1 and he earned Rs. 215-75/- and Rs. 212.16 in the year 2006-07 and 2007-08 and the total income of the respondent is Rs. 2848/- and 2031 per annum from the P.C.O. in the abovementioned years except the contractorship and Doctor work but if this income calculated Rs. 11550/- from landed property and Rs. 2031/- from P.C.O. then it becomes Rs. 13581/- per annum which is exceeds the criteria of income i.e. Rs. 12000/- per annum for the selection of Anganwari worker and the respondent does not fall in the criteria of income for the selection of Anganwari worker as lay down by the Child Development Department. 8. That at the inquiry even the Naib Tehsildar not properly calculated the income of respondent No. 1 nor the Deputy Commissioner, Hamirpur tender this document on record and reached on wrong conclusion, hence this appeal. 9. That more submissions will be made at the time of final arguments before the Hon’ble Court. 10. That the lower Court decided the case on 29.3.2011 and the copy of impugned order supplied to the appellant on 8.4.2011, hence the appeal is well within the period of limitation. It is, therefore, respectfully prayed that keeping in view the submissions made above after calling for the record and hearing the parties and admitting the documents on record submitted by the appellant, properly assess the income of respondent No. 1 which exceed Rs. 12000/- per annum and cancel the income certificate of respondent and also the appointment of respondent No.1 be cancelled and the appeal of the appellant may kindly be accepted in the interest of justice and justice be done for which the appellant shall ever pray." 9. However, when the writ petition was filed, the writ petitioner staked her claim to the post in question, which hitherto before had never been claimed by her as the writ petitioner only kept on questioning the income certificate issued in favour of the appellant. However, when the writ petition was filed, the writ petitioner staked her claim to the post in question, which hitherto before had never been claimed by her as the writ petitioner only kept on questioning the income certificate issued in favour of the appellant. 10. A point having been abandoned in pleadings and inviting a judgment on the strength of the record as it is before the two authorities below cannot be allowed to be re-agitated for the first time in writ petition. A similar issue came up before this court in Ravi Kant vs. Bhupender Kumar AIR 2008 H.P. 31 wherein it was held as follows:- "12. The matter can be considered from another angle. A point having been abandoned in pleadings and inviting a judgment on the strength of the record as it is before the trial Court cannot be allowed to be re-agitated in appeal. 13. In Shaikh Tufail Ahmad vs. Mt. Umme Khatoon and other, AIR 1938 Allahabad 145, the High Court of Allahabad has held:- "It is argued on behalf of the defendant that the plea of Marz-ul-maut which was entertained and given effect to by the learned District Judge had not been raised in the pleadings or at any stage before the trial Court. It is also argued that the learned Judge has taken an erroneous view of what Marz-ul-maut is according to Mahomedan law. It is quite correct to say that the point was taken for the first time in appeal. It involves a question of fact and the defendant must have been prejudiced by the plea being take at a late stage. The judgment of the trial Court does not show that this aspect of the case was discussed before it. The plaintiffs themselves produced no evidence to show that the lady was suffering from Marz-ul-maut. We think that the plea should not have been entertained at that stage." 14. To similar effect, in Gowardhandas Rathi vs. Corporation of Calcutta and another, AIR 1970 Calcutta 539, the Hon'ble High Court of Calcutta held:- "21. In support of that assumption, however, there are no materials on the present record and no such contention appears to have been raised in the court below, either in the pleading or in the argument there." 15. The Hon'ble Supreme Court in M.P. Shreevastava vs. Mrs. In support of that assumption, however, there are no materials on the present record and no such contention appears to have been raised in the court below, either in the pleading or in the argument there." 15. The Hon'ble Supreme Court in M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC 1193 , has held that a plea abandoned before the Courts below, cannot be allowed to be raised in appeal before this Court. It was held:- "4. It was never argued on behalf of the appellant in the Court of First Instance and the High Court that attempts proved to have been made by the respondent to resume conjugal relations could not in law amount to satisfaction of the decree, and we do not think we would be justified at this stage in allowing that question to be raised for the first time in this Court." 16. Similarly, in Shanbhagakannu Bhattar vs. Muthu Bhattar and another, 1972(4) SCC 685 , it is held:- "4. The matter was taken in second appeal to the High Court. Kailasam J. has stated in unequivocal terms in his judgment that the only question that was argued before him on behalf of the plaintiff was that the will and the gift were invalid because pooja rights and inam rights were inalienable except to the immediate heir and that too without consideration. As by the gift the properties were not given to the immediate heir the gift was not valid. The learned Judge discussed mainly the various decisions of the Madras High Court and upheld the decision of the first appellate Court that the gift deed was valid. An appeal was filed under clause 15 of the letters Patent to a Division Bench by the plaintiff. Before the Division Bench the plaintiffs counsel sought to raise a new point that the alienation relied upon, though termed as a deed of gift, was in fact an alienation for consideration and therefore invalid within the well established principles. This point was permitted to be raised because it was considered that the determination of the question did not depend upon the decision as to, facts which were in dispute. The bench came to the conclusion that by reason of the discharge of the encumbrance the donee relieved from the encumbrance properties other than those which were the subject-matter of the gift. The bench came to the conclusion that by reason of the discharge of the encumbrance the donee relieved from the encumbrance properties other than those which were the subject-matter of the gift. It was consequently held that the alienation evidenced by ext. B-9 which purported to be a deed of gift was for consideration. The real question on which the litigation had been fought in all the courts was decided because of the above conclusion." "5. We are wholly unable to appreciate how on any principle or authority the Division Bench had, in an appeal under the Letters Patent, allowed a point which involved not only law but also facts to be agitated when that point had never been taken even in the plaint or before the trial Court, the first appellate Court and the High Court in second appeal. It had not been raised even in the memorandum of appeal at any stage. It was never pleaded, asserted or claimed by the plaintiff that any consideration had passed for the properties which were the subject matter of the gift by Parvathiammal in favour of Duraiswami. In such a situation it was not open to the Division Bench of the High Court to allow the question of consideration to be raised for the first time and that also without any amendment of the pleadings being allowed and without the defendants having a proper opportunity to meet the case. (Emphasis supplied) 17. In Chevalier I.I. lyyappan and another vs. Dharmodayam Co., Trichur, AIR 1966 SC 1017 , the Hon'ble Supreme Court has held:- "8. The appellant in this Court has mainly relied on the plea that he had been granted a licence and acting upon the license he had executed a work of a permanent character and incurred expenses in the execution thereof and therefore under Section 60(b) of the Indian Easements, Act, 1882 (5 of 1882), hereinafter referred to as the Act), which was applicable to the area where the property is situate and therefore the license was irrevocable. Now in the trial Court no plea of license or its irrevocability was raised but what was pleaded was the validity of the trust tin Exhibit X. In the judgment of the trial Court no such question was discussed. In the grounds of appeal in his appeal. Now in the trial Court no plea of license or its irrevocability was raised but what was pleaded was the validity of the trust tin Exhibit X. In the judgment of the trial Court no such question was discussed. In the grounds of appeal in his appeal. Now it is not open to a party to change his case at the appellant stage because at the most the case of the appellant in he trial Court was what was contained in paragraph 11 of the Written Statement where the question of estoppel was raised and the plea taken was that the respondent company was estopped from claiming any right to the building after accepting the offer of the appellant pursuant to which the appellant had expended a large amount of money." 18. In Karpagathachi and other vs. Nagarathinathachi, AIR 1965 SC 1752 , the Hon'ble Supreme Court has held:- "4. The second contention of Mr. Viswanatha Sastry must also be rejected. A partition may be effected orally. By an oral partition, the two widows cold adjust their diverse rights in the entire estate, and as part of this arrangement, each could orally agree to relinquish her right of surviorship to the portion allotted to the other. In the trial Court, the suit was tried on the footing that the partition was oral, and that the two partition lists were merely pieces of evidence of the oral partition, and no objection was raised with regard to their admissibility in evidence. In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered. The point cold not be decided without further investigation into questions of fact, and in the circumstances, the High Court rightly ruled that this new contention could not be raised for the first time in appeal. We think that the appellants ought not to be allowed to raise this new contention." 19. The principle of abandonment of an issue has been considered in Mohammed Seraj vs. Adibar Rahaman Sheikh and other, AIR 1968 Calcutta 550, where the High Court of Calcutta held that once an issue is not pressed before the trial Court, it is not open to the party to agitate it before the appellate Court. It has been held:- "16. The principle of abandonment of an issue has been considered in Mohammed Seraj vs. Adibar Rahaman Sheikh and other, AIR 1968 Calcutta 550, where the High Court of Calcutta held that once an issue is not pressed before the trial Court, it is not open to the party to agitate it before the appellate Court. It has been held:- "16. Now, once an issue is not pressed before the trial Court, it is not open to the party doing so, to agitate it over again the court of appeal." (Emphasis supplied) 20. A Full Bench of Kerala High Court considered the matter in Velayudhan Gopala Panickan vs. Velumpi Kunji, Second Plaintiff, AIR 1958 Kerala 178, holding that:- "8. The next aspect to be considered is whether the appellants who had given up their objections to the maintainability of the suit when it came up for hearing, are entitled to agitate the matter again in the appellate Court. The lower appellate Court answered the question in favour of the appellants. The two reasons which weighed with that court for taking up such a stand are:- (1) That the contentions raised by defendants 63 and 64 related to a question of law. (2) That their counsel had no authority to give up that contention. These reasons do not appeal to us. No abstract question of law is involved in the objection to the maintainability of the suit. As we have already explained the Court was bound to go into the question of the maintainability of the suit only if the contesting defendants persisted in their objection to the plaintiffs' claim for compulsory partition. It was perfectly open to these defendants to agree to the plaintiffs getting their shares and going out of the tarwad in case they succeeded in making out their claim as members of the common tarwad. At the stage of the hearing of the suit, the contesting defendants chose to adopt such a course, as is obvious from paragraph 57 of the trial Court judgment. There it is stated that the objection that the suit is not maintainable under the Ezhava Act was not pressed at the time of arguments. It has to be presumed that the defendants' counsel gave up that contention as per instructions from them. There is nothing to show that the counsel acted on his own responsibility in that matter. There it is stated that the objection that the suit is not maintainable under the Ezhava Act was not pressed at the time of arguments. It has to be presumed that the defendants' counsel gave up that contention as per instructions from them. There is nothing to show that the counsel acted on his own responsibility in that matter. No such complaint appears to have been raised before the lower appellate Court by defendants 63 and 64 while preferring their appeal against the trial Court's decree." 21. Lastly, the decision of the Hon'ble Supreme Court in The Sales Tax Officer, Banaras and other vs. Kanhaiya Lal Makund Lal Saraf, AIR 1959 SC 135 , may be noticed. In this case, the Hon'ble Supreme Court was seized of an appeal against the judgment and order of the High Court. The points sought to be urged in support of the appeal had been abandoned before the High Court. In these circumstances, the Hon'ble Supreme Court held that they could not be raised or agitated in appeal. 22. The record of the trial Court shows a clear and unequivocal abandonment of the issue available to the defendant-appellant. No foundation having been laid in the amended written statement which was filed after the death of defendant No. 2, no right claimed on behalf of the defendant, nor any foundation laid for the proposition that the suit was bad for non-joinder of necessary parties, maintainability of the suit and that it must fail and that decree passed would be a nullity because of insufficient representation of the estate of the deceased; no evidence having been led on this point, the appellant cannot now be allowed to raise this point." 11. We have referred to the pleadings of writ petitioner before the learned authorities below only to show that petitioner at no point of time had laid claim to the post in-question and had thereby abandoned her right. Therefore, having abandoned her claim, the writ petitioner could not have raised the same for the first time in the writ petition. 12. Now, in case the findings as contained in paras 22 to 24 recorded by the learned writ court are perused, it would be seen that selection of the appellant has been quashed and set-aside only on the ground that writ petition had not been awarded marks for personal interview. 12. Now, in case the findings as contained in paras 22 to 24 recorded by the learned writ court are perused, it would be seen that selection of the appellant has been quashed and set-aside only on the ground that writ petition had not been awarded marks for personal interview. But, then this was not even the ground raised by her in the appeal preferred by her initially before the Sub Divisional Magistrate and thereafter before the Divisional Commissioner and the same was only an afterthought and surreptitiously introduced for the first time in the writ petition. 13. Under Article 226 of the Constitution, the High has jurisdiction to quash the decision or orders of subordinate Tribunals and statutory authorities entrusted with precise judicial functions, if they act without jurisdiction or in excess of it or in violation of the principles of natural justice or if there is an error apparent on the face of the record. The jurisdiction of the High Court is though wide, yet it is limited as it exercises supervisory jurisdiction over the subordinate tribunals, courts or authorities and it does not exercise appellate jurisdiction. However, extensive the jurisdiction may be it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or order to be made. The court cannot substitute its own opinion for that of the subordinate tribunal or authority, unless the order is shown to be passed on no evidence or if the findings are arbitrary and so capricious that no reasonable person can come to those findings. 14. Indisputably while adjudicating upon the writ petition the writ court was exercising the powers of judicial review, the scope of which in the given facts and circumstances was extremely narrow and was required to be determined on the basis of the pleadings and evidence led before the learned authorities below. In no event could the pleas which had been abandoned before the authorities below be permitted to be raised for the first time in the writ petition. Once the writ petitioner had not laid any claim based on her eligibility before the authorities below, their orders could not have been interfered with on this score. In no event could the pleas which had been abandoned before the authorities below be permitted to be raised for the first time in the writ petition. Once the writ petitioner had not laid any claim based on her eligibility before the authorities below, their orders could not have been interfered with on this score. The writ court could have tested the correctness of the decision rendered by the authorities below only on the basis of the plea set up and the material placed before these authorities. Not only this, nothing extraneous that too without leave of the court could have been introduced in the writ petition. In fact the ground of eligibility of the writ petitioner was impermissible and could not have been raised by her since she had already forsaken this claim. 15. Since the income certificate issued in favour of the writ petitioner has been found to be in order even by the learned single Judge and writ petitioner had never set up a claim regarding her eligibility before the two authorities below, therefore, the findings recorded by the learned single judge upholding the claim of the writ petitioner are not sustainable and are accordingly set-aside. Resultantly, the appeal is allowed, leaving the parties to bear their own costs.