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2016 DIGILAW 799 (GAU)

Dalimi Das v. State of Assam

2016-08-23

MANOJIT BHUYAN

body2016
JUDGMENT : Heard Mr. D.K. Saikia, learned counsel for the petitioners as well as Mr. B.K. Sharma, learned counsel representing respondent nos. 1, 2, 3 and 4. Ms. M. Bordoloi, learned counsel represents the private respondent nos. 5, 6, and 7. 2. The petitioner no. 1 Smt. Dalimi Das had offered her candidature for engagement as Anganwadi Worker in the Kaibartapara Anganwadi Centre. Similarly, the petitioner no. 2 i.e. Smt. Punam Chetry and the petitioner no. 3 i.e. Smt. Bhanumati Boro applied against Nepali Basti Anganwadi Centre and Sonalitari Anganwadi Centre respectively. Each of the Anganwadi Centres above falls under Boko-Bongaon ICDS Project, in the district of Kamrup. Challenge is made to the appointment of respondent no. 5 as Anganwadi Worker at Kaibartapara Anganwadi Centre and that of the respondent no. 6 at Nepali Basti Anganwadi Centre as well as the appointment of respondent no. 7 at Sonalitari Anganwadi Centre. Grounds urged is that the respondent no. 5 could not have been selected for appointment in view of the fact that her selection had been withheld by the State Level Committee on ground of anomalies detected. Challenge to the appointments of the respondent nos. 6 and 7 are made primarily on the ground that the said respondents are outsiders and not local women residing at the village where the concerned Anganwadi Centres are located. Having regard to the guidelines regarding engagement of Anganwadi Helpers and Anganwadi Workers, Mr. Saikia submits that the selection and appointment of the private respondent nos. 5, 6 and 7 are wholly illegal. 3. Mr. B.K. Sharma, on the other hand, submits that the appointments so made under the Boko-Bongaon ICDS Project and at the Anganwadi Centres in question, the same had been made by the State Level Committee after due verification of the entire records of the selection process. Although the State Level Committee in its Meeting dated 03.03.2010 had taken decision for withholding the results of certain centres, the result in respect of Kaibartapara Centre, so reflected at serial no. 35 of the Select List, had been inadvertently shown as withheld. However, the error was rectified and the Roll numbers of the selected candidates have been duly published in the newspaper. Mr. Sharma submits that serial no. 35 and 36 of the Select List makes mention of 2(two) Anganwadi Centres, going for the names of Kaibartapara (Jalukbari) and Kalitapara (Jalukbari) respectively. However, the error was rectified and the Roll numbers of the selected candidates have been duly published in the newspaper. Mr. Sharma submits that serial no. 35 and 36 of the Select List makes mention of 2(two) Anganwadi Centres, going for the names of Kaibartapara (Jalukbari) and Kalitapara (Jalukbari) respectively. Although in terms of the Minutes of the Meeting of the State Level Committee, held on 03.03.2010, anomalies/irregularities were found in respect of Kalitapara (Jalukbari), however, due to typographical error, result of Kaibartapara (Jalukbari) at serial number 35 was also shown to have been withheld. According to Mr. Sharma and as clarified in the affidavit-in-opposition, there were no anomalies/irregularities in respect of selection of the respondent no. 5 against the Kaibartapara Anganwadi Centre. 4. I have heard the learned counsels for the parties. In so far as the selection and appointment of the respondent no. 5 is concerned, the statements made at paragraph 5 of the affidavit-in-opposition appears to have clarified the controversy. The Minutes of the State Level Committee dated 03.03.2010 also categorically shows that anomalies/irregularities were detected only in respect of Kalitapara Anganwadi Centre. The said Minutes of the Meeting, which is enclosed as Annexure-1 to the affidavit-in-opposition, do not disclose any anomalies/irregularities in respect of Kaibartapara Anganwadi Centre. In this respect, the selection and appointment of the respondent no. 5 cannot be held to have been vitiated. In so far as the selection and appointment of respondent nos. 6 and 7 are concerned, no documents have been placed on record by the writ petitioners demonstrating that they are outsiders and/or are not local women residing in the village within the Nepali Basti Anganwadi Centre and Sonalitari Anganwadi Centre respectively. For invoking the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India, the petitioner will have to come up with a clear case supported by documentary evidence. In the instant case the allegation that the respondent nos. 6 and 7 are rank outsiders, the same do not find established as no documents in that regard have been placed on record. 5. In view of the discussions above, I find no merit in this writ petition and the same stands accordingly dismissed. The parties are left to bear their own costs. WP(C) 4252 of 2015 Heard Mr. K.R. Patgiri, learned counsel for the petitioner as well as Ms. M. Bhattacharjee, learned counsel representing respondent nos. 5. In view of the discussions above, I find no merit in this writ petition and the same stands accordingly dismissed. The parties are left to bear their own costs. WP(C) 4252 of 2015 Heard Mr. K.R. Patgiri, learned counsel for the petitioner as well as Ms. M. Bhattacharjee, learned counsel representing respondent nos. 1, 3, 4 and 6. Also heard Mr. U.K. Nair, learned counsel representing respondent nos. 2 and 5 whereas respondent no. 7 is represented by Mr. A. Hussain, Advocate. 2. The petitioner is the second wife of Late Abul Kashem Miah. Her husband, who served as Tax Collector of Ruposhi Anchalik Panchayat and Uttar Titapani Gaon Panchayat, retired from service on 31.01.2002 and eventually suffered demise on 22.11.2009. Grant of family pension was claimed by the first wife but in view of certain errors, the same was returned back to the Office of the Chief Executive Officer, Barpeta Zila Parishad, Barpeta. In the year 2015 and by Representation dated 13.05.2015, the petitioner claimed pensionary benefits as well as monthly family pension in equal share with that of the first wife of the deceased Abul Kashem Miah. The Representation made to the Chief Executive Officer, Barpeta Zila Parishad on 13.05.2015 did not reach any conclusion. Constrained thus, the petitioner instituted the present proceedings. 3. Claim for proportionate share of the pensionary benefits as well as monthly family pension is made on the basis of the Division Bench judgment of this Court in the case of Surajan Nessa Vs. State of Assam and Others, reported in 2011 (4) GLT 751. Mr. Patgiri submits that in the said case the second wife was made entitled to proportionate family pension. Strong reliance is placed in paragraph 18 of the judgment in support of the petitioner’s case. 4. Per contra, Mr. U.K. Nair submits that the basis on which the directions at paragraph 18 of the judgment was made was primarily on the findings of the Division Bench holding that any violation of the Assam Civil Services (Conduct) Rules, 1965 does not amount to declaring the second marriage between two Muslim spouses as void. Rule 24 of the aforesaid Conduct Rules prohibits a Government servant having a wife living to contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law. Mr. Rule 24 of the aforesaid Conduct Rules prohibits a Government servant having a wife living to contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law. Mr. Nair submits that, firstly, during the service tenure of the petitioner’s husband, no permission was obtained from the Government for contracting such marriage with the petitioner. The most vital aspect urged by Mr. Nair is that although the Division Bench in Surajan Nessa case (supra) have held that violation of the Conduct Rules would not amount to declaring the second marriage between two Muslim spouses as void, the said view has been answered in an altogether different manner by the Apex Court in the case of Khurshid Ahmed Khan Vs. State of Uttar Pradesh and Others, reported in (2015) 8SCC 439. 5. In Khurshid Ahmed Khan (supra), the Apex Court was seized with the issue as to whether the Conduct Rules could be held to be violative of Article 25 of the Constitution of India. While answering the said issue, the Apex Court discussed various judgments and views of the Bombay, Gujarat and Allahabad High Court. The final judgment rendered is that the Conduct Rules do not in any manner violate Article 25 of the Constitution of India. 6. To reiterate, in the present case, Rule 24 of the aforesaid Rules of 1965 clearly lays down that no Government servant who has a wife living can contract another marriage without first obtaining the permission of the Government, notwithstanding the fact that such subsequent marriage may be permissible under the personal law. Another submission of Mr. Nair in respect of Rule 143 of the Assam Services (Pension) Rules, 1969, more particularly to the Note under Clause (ii) of Rule 143 is also taken on board. The said provision prescribes that in case where there are two or more widows, pension will be payable to the next surviving widow, if any. The said Note also explains the term ‘eldest’ to mean seniority with reference to the date of marriage. Apparently, the petitioner is the second wife. 7. The directions at paragraph 18 of Surajan Nessa (supra) case has its basis on the observations made by the Division Bench at paragraph 16 thereof. The said Note also explains the term ‘eldest’ to mean seniority with reference to the date of marriage. Apparently, the petitioner is the second wife. 7. The directions at paragraph 18 of Surajan Nessa (supra) case has its basis on the observations made by the Division Bench at paragraph 16 thereof. The finding and decisions with regard the applicability of the Conduct Rules, as in the present case, have received a different interpretation of the Apex Court in the case of Khurshid Ahmed Khan (supra). Having regard to the same, I hold that the petitioner is not entitled to relief so claimed. As a necessary corollary, this writ petition must fail and, accordingly, the same stands dismissed. No costs. Interim order passed earlier stands recalled.