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2017 DIGILAW 507 (HP)

Tara Devi v. State of HP

2017-05-12

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of present writ petition, the petitioner has mainly prayed for the following reliefs:- a. Writ of certiorari be issued quashing the orders dated 28/6/2009 (Annexure P4) passed by the respondent No.4 and orders dated 22.10.2011 (Annexure P6) passed by the respondent No.3 and the petitioner be appointed on the said post. b. Writ of mandamus be issued declaring the selection of respondent No.5 to be illegal, arbitrary and in violation of Clause 4(e) of the Scheme (Annexure P7). 2. Feeling aggrieved by the appointment of respondent No.5 as Anganwari Helper in Anganwari Centre Sasuya, PO Piplughat, Tehsil Arki, District Solan, HP., which appointment took place in the month of July, 2007, the present petitioner filed an appeal before Additional District Magistrate, Solan under Clause 12 of Scheme/Guidelines for the engagement of Anganwari Helper i.e. Appeal No. 12/8 of 2007. The appointment of the selected candidate, namely, Sunita Devi (respondent No.5) in the present writ petition was, inter alia, assailed on the grounds that the petitioner was more meritorious than the selected candidate and that the selected candidate was not having any experience of tailoring etc. Besides this, her selection was also assailed on the ground that respondent No.4 (Sunita Devi) was not having separate family status as on 1.1.2004, she was living in a joint family, and this aspect of the matter has not been taken into consideration by the appointing authority. Appointment was also assailed on the ground that the income of the present petitioner was less than the selected candidate and that she was more qualified both educationally as well as experience wise for appointment as Anganwari Helper in place of the selected candidate. 3. First appellate authority i.e. Additional District Magistrate, Solan vide order dated 29.6.2009 (Annexure P4) dismissed the appeal so filed by present petitioner. 4. While dismissing the appeal it was observed by learned first appellate authority in its order:- “x x x x The appellant has not produced neither any documentary evidence in support of her allegation nor could submit any other documents to prove her case for selection to the post. The respondent No.1 to 3 have relied upon all documents submitted by the respondent No.4 at the time of selection viz income certificate, non-employment certificate and copy of Pariwar Register. x x x x” 5. The respondent No.1 to 3 have relied upon all documents submitted by the respondent No.4 at the time of selection viz income certificate, non-employment certificate and copy of Pariwar Register. x x x x” 5. On these bases, learned first appellate authority dismissed the appeal by holding that there was no merit in the same. 6. Feeling aggrieved, the present petitioner preferred further appeal before learned Divisional Commissioner Himachal Pradesh Shimla Division Shimla as was provided under the Scheme/Guidelines for the engagement of Anganwari Helper. Grounds of appeal are available on record as Annexure P5. 7. A perusal of the same demonstrates that the findings returned by learned first appellate authority to the effect that the present petitioner had not produced any documentary evidence in support of her contentions, were assailed in the following terms:- “x x x x In this connection it is stated that the present appellant had filed and produced as many as 12 documents on record along with memorandum of appeal from Annexures A-1 to Annexures A-12, the detail of which is given below: a. Interview letter Annexure A-1 b. Non Employment Certificate dated 16.5.2007 Annexure A-2 c. Certificate of bonafide Himachali Annexure A-3 d. Copy of Parivar register Annexure A-4 e. Character certificate Annexure A-5 f. Certificate of income dated 11.5.2007 Annexure A-6 g. Certificate of IRDP/BPL Annexure A-7 h. Birth Certificate Annexure A-8 i. Certificate dated 17.6.1996 Annexure A-9 j. Middle standard certificate Annexure A-10 k. Matriculation certificate Annexure A-11 l. Certificate issued by Principal dated 2.5.1998 Ann. R-12 The above mentioned documents are lying in the record of the case file of the learned trial court but the learned trial court did not care to see and look the above mentioned documents from Annexures A-1 to A-12 and hence it has wrongly been mentioned in the impugned order that the appellant has not produced any documentary evidence in support of her allegations nor could sum it any other document to prove her case. In fact all the above mentioned documents have not been seen, considered and appreciated by the learned trial court on record and hence the impugned order is a nullity and is against the record and as such is liable to be set aside on this ground alone.” 8. In fact all the above mentioned documents have not been seen, considered and appreciated by the learned trial court on record and hence the impugned order is a nullity and is against the record and as such is liable to be set aside on this ground alone.” 8. As there was an amendment carried out in the Scheme/Guidelines pertaining to the appointment of Anganwari Helper as per which learned Deputy Commissioner of the concerned district was competent to hear the second appeal, the appeal so filed by present petitioner was accordingly adjudicated by learned Deputy Commissioner Solan vide decision dated 22.10.2011, Annexure P6. Said authority also did not found merit with the appeal so filed before it by present petitioner and dismissed the same. 9. Feeling aggrieved the petitioner has filed the present writ petition. 10. Mr. Vijay Chaudhary learned counsel for the petitioner has primarily assailed both impugned orders on the grounds that the first appellate authority passed an order without even caring to look into the records wherein documents were duly placed by the present petitioner in support of her contention and the second appellate authority did not even care to peruse as to what were the grounds of appeal on which the order passed by learned first appellate authority was assailed, and it went on to dismiss the appeal of the present petitioner in a slipshod manner by passing a non speaking and unreasoned order. No other point was urged. 11. On the other hand Mr. Vikram Thakur learned Deputy Advocate General as well as Mr. Naresh Verma appearing for the respective respondents have supported the impugned orders by stating that there was neither any infirmity nor any perversity with the orders so passed by both the learned courts below and that findings returned by learned appellate authority were duly borne out from the records of the case. 12. I have heard learned counsel for the parties and have also gone through the records of the case as well as the orders passed by both the learned courts below. 13. Learned first appellate authority vide order dated 29.6.2009 rejected the appeal of the present petitioner, inter alia, by holding that the appellant had not produced any documentary evidence to substantiate her allegations in support of her case. 13. Learned first appellate authority vide order dated 29.6.2009 rejected the appeal of the present petitioner, inter alia, by holding that the appellant had not produced any documentary evidence to substantiate her allegations in support of her case. Feeling aggrieved by the adjudication so made by said authority, present petitioner filed further appeal and in the grounds of appeal the findings so returned by learned first appellate authority was assailed and the said authority failed to take into consideration that as many as 12 documents were filed along with the first appeal by the present petitioner which was available on the records of the case file, however, learned first appellate authority had not even cared to peruse the same. 14. Second appellate authority while dismissing the appeal so filed by present petitioner vide order dated 22.10.2011, Annexure P6, rather than taking into consideration the grounds of appeal on which the order passed by learned first appellate authority was assailed went on to dismiss the same by passing totally a non speaking order. The relevant extract of the order passed by learned second appellate authority is quoted hereinbelow: “As per the guideline issued by the Hon’ble High Court of HP an opportunity of being heard was given to the affected party to participate in the proceedings. In my view the order dated 29.6.2009 passed by the ld. A.D.M Solan is genuine and reasoned order. The appellant is not eligible for the grant of extra marks for the post of Anganwari helper on the ground of allied experience in both typing and tailoring.; Moreover, these certificates have been issued/obtained from un-registered/unauthorized persons which were however not required for this post. On the perusal of the entire record placed on case file and issues in dispute I have come to the conclusion that there is no need to interfere the selection of the respondent made by the selection committee. Therefore, the appeal of Smt. Tara Devi is dismissed. A copy of this order be made available to both the contesting parties and file be consigned to G.R.R. after due completion in all respect.” 15. From the above it is evident that in the order so passed by Deputy Commissioner Solan neither did he discuss the grounds which were taken in appeal before it by the appellant therein nor any adjudication is there on the said grounds in the impugned order. From the above it is evident that in the order so passed by Deputy Commissioner Solan neither did he discuss the grounds which were taken in appeal before it by the appellant therein nor any adjudication is there on the said grounds in the impugned order. This Court is not suggesting as to what final adjudication was to be made by the authority concerned in appeal, however, least that was expected from the said authority was that as it was performing a quasi judicial function and was adjudicating upon the rights of the parties, it should have had taken into consideration the grounds on which the appeal was filed before it as well as the respective contentions of the parties and after discussing the same, the said authority should have had returned its findings along with reasoning. As the same has not been done by the said authority while passing impugned order dated 22.10.2011, Annexure P6, the said order is thus not sustainable in law and is liable to be quashed and set aside. There is no discussion in the impugned order from which it can be inferred as to what weighed with the learned appellate court while it dismissed the appeal so filed before it by the present petitioner. 16. In this view of the matter as the order dated 22.10.2011 Annexure P6 passed by learned second appellate authority prima facie is non speaking and unreasoned order, the same is quashed and set aside and the matter is remanded back to the second appellate authority with a direction to decide the appeal afresh after affording opportunity of being heard to both the parties. Said authority shall also grant one opportunity to each of the parties to place on record documents if they so desire to produce in support of their respective contentions. Parties are directed to appear before the learned second appellate authority on 29.5.2017. Said authority is directed to decide the same as expeditiously as possible and in any eventuality on or before 31st October, 2017. Till then private respondent shall be permitted to perform her duty. It is clarified that this court has not made any observation on the merits of the case and the authority shall be at liberty to adjudicate upon the appeal strictly on the basis of material on record. Till then private respondent shall be permitted to perform her duty. It is clarified that this court has not made any observation on the merits of the case and the authority shall be at liberty to adjudicate upon the appeal strictly on the basis of material on record. The petition is allowed in the above terms, so also pending miscellaneous application if any.