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2019 DIGILAW 1902 (HP)

Roshani Devi v. State of Himachal Pradesh

2019-12-11

ANOOP CHITKARA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Anoop Chitkara, J. Smt. Roshani Devi (appellant in LPA No. 60 of 2015), who continues to perform her duties as Anganwari worker, under Child Development Project Officer, Karsog, District Mandi, HP, has come up before this Court by way of the instant Letters Patent Appeal, against dismissal of her writ petition by Single Judge of this Court, affirming the order passed by Divisional Commissioner, passed in her appeal under Clause 12 of the Scheme for the engagement of Anganwari workers/helpers, holding therein that the experience certificate granted to her by a private institution would not entitle her for two marks, and thus upholding the order passed by the Deputy Commissioner, setting aside her appointment, and directing the preparation of fresh merits list after deducting two marks allotted to her. 2. Smt. Rita Sharma (private respondent in LPA No. 60 of 2015) also filed writ petition (CWP No. 1400 of 2016) asking for inquiry against the erring officials and seeking recovery of the wages paid to Roshani Devi, the selected candidate, and also seeking issuance of appropriate directions for appointing her being the securer of the highest marks. 3. The LPA is being taken up as the main case and all references are in its context. The original petitioner Roshani Devi after qualifying for the post of Anganwari Worker/Helper joined at the Anganwari Centre, Baajhu under the Integrated Child Development Scheme (ICDS) Project, Karsog, Distt. Mandi, HP on Aug 10, 2007. Feeling aggrieved by her selection the private respondent Rita Sharma filed an appeal against her appointment under the Scheme/Guidelines for the engagement before Anganwari Workers/Helpers before the Deputy Commissioner, Mandi. The private respondent filed the said appeal on the grounds that petitioner Roshani Devi was given two marks for experience, however, the experience certificate was procured from a private institute, whereas as per Clause 7(1) of the Scheme the said two marks could have been awarded only if the experience was for working in a Government/Semi Government School. 4. Vide order dated Jan 4, 2008 the Deputy Commissioner, Mandi, accepted the appeal filed by the private respondent Rita Sharma and ordered that two marks awarded to petitioner Roshani Devi be deducted and fresh merit list be prepared and after that the candidate securing the highest marks in merit be offered appointment. 5. 4. Vide order dated Jan 4, 2008 the Deputy Commissioner, Mandi, accepted the appeal filed by the private respondent Rita Sharma and ordered that two marks awarded to petitioner Roshani Devi be deducted and fresh merit list be prepared and after that the candidate securing the highest marks in merit be offered appointment. 5. The present appellant Roshani Devi challenged the said order before the Divisional Commissioner, Mandi Division, Mandi, who vide order dated May 19, 2008, upheld the previous order dated Jan 4, 2008, passed by the Deputy Commissioner, dismissed the appeal. 6. Against the dismissal of her appeal by the Divisional Commissioner, Roshani Devi filed a writ petition in this Court which was registered as CWP No. 946 of 2008. Vide order dated May 17, 2010, a Division Bench of this Court disposed of the said writ petition with a direction to the Appellate Authority to consider the case afresh in the light of the clarification/ directions given in the said order. 7. After that, the private respondent Rita Sharma, filed a fresh appeal before the Additional District Magistrate, Mandi, who, vide order dated Aug 27, 2011, accepted the appeal ordered that two additional marks awarded to Roshani Devi be deducted and fresh merit list be prepared and thereafter the candidate scoring the highest marks in merit be offered appointment. 8. Again feeling aggrieved, Roshani Devi, appellant herein, challenged the said order dated Aug 27, 2011, by filing an appeal before the Divisional Commissioner, Mandi Division, Mandi, who vide order dated May 10, 2013, upheld the same, dismissing the appeal. 9. Roshani Devi, again challenged the said order by filing a writ petition before this Court which was registered as CWP No. 4873 of 2013. Vide judgment dated Nov 8, 2013 the Principal Division Bench of this Court disposed of the writ petition with a direction to the Divisional Commissioner, Mandi to hear the matter afresh. While disposing the writ petition the Principal Division Bench observed as follows: “3. The petitioner was appointed as Anganwari Worker in Anganwari Centre run by respondent No. 5. Her appointment was challenged by respondent No. 6, inter alia, on the ground that the Selecting Authority wrongly gave two additional marks to the petitioner, notwithstanding the fact that the experience certificate produced by the petitioner pertain to private institution. The petitioner was appointed as Anganwari Worker in Anganwari Centre run by respondent No. 5. Her appointment was challenged by respondent No. 6, inter alia, on the ground that the Selecting Authority wrongly gave two additional marks to the petitioner, notwithstanding the fact that the experience certificate produced by the petitioner pertain to private institution. The Additional District Magistrate, Mandi who heard the said complaint, accepted the said challenge and in his order dated 27th August, 2011 noted that the provisions of Clause 7(2) (b) & (c) of the Scheme/guidelines for appointment of Anganwari Worker and Helper, two additional marks could not be given on the basis of the experience certificate obtained from a private institution. 4. It is common ground that the Authority adverted to incorrect provisions of the Scheme, i.e., 7(2). That provision pertains to Anganwari Helpers whereas post in question, against which the petitioner has been appointed is Anganwari Worker. That is governed by clause 7 (1) of the Scheme and in particular clause (b) thereof, which reads thus:- “Maximum 2 marks for experience to be given as under:- One mark for candidates having experience as Anganwadi Helper/ Balsevika/ Balwadi Teacher/ Nursery Teacher for one year or Shishu Palak of ECCE center for 10 months. Or Two marks for candidates having experience as Anganwadi Helper/ Balsevika/ Balwadi Teacher/Nursery Teacher for two or more years.” 5. This Scheme nowhere mentions that the experience certificate must necessarily pertain to Government/semi Government institution. In other words, the experience certificate produced by the petitioner given by the private institution could not have been ignored in terms of this provision. 6. The decision of the Additional District Magistrate came to be confirmed by the Divisional Commissioner, Mandi vide order dated 10th May, 2013. Both these decisions are subject matter of challenge in the present petition. The respondents, however, in addition to clause 7 (1) of the Scheme have placed reliance on the communication issued under the signatures of the Director, Social Justice & Empowerment (HP) dated 1st December, 2006 to buttress reason recorded by the two Authorities, referred to above, at page 148, which reads thus:- “No.14-29/87-ICDS Directorate of Social Justice & Empowerment Himachal Pradesh. To 1. All the District Programme Officers in Himachal Pradesh. 2. All the Child Development Project Officers in Himachal Pradesh (through DPOs). Dated Shimla-9 1-Dec-2006. Subject: Guidelines for the appointment of Anganwari Workers/ Helpers clarification thereof. To 1. All the District Programme Officers in Himachal Pradesh. 2. All the Child Development Project Officers in Himachal Pradesh (through DPOs). Dated Shimla-9 1-Dec-2006. Subject: Guidelines for the appointment of Anganwari Workers/ Helpers clarification thereof. Sir, With regard to marks to be given for Nursery Teachers experience, clarifications are being sought by most of the CDPO through respective DPOs. In this regard it is clarified that candidates having DIPLOMA of Nursery teacher and on the basis of that diploma having experience of teaching in any Government/semi Government School may be given experience marks. Yours faithfully, Sd- Director Social Justice & Empowerment, (Himachal Pradesh)” 7. However, this communication has not been adverted to, either by the first Authority, or for that matter, by the Divisional Commissioner. They have decided the issue purely on the basis of provisions contained in clause 7(2) of the Scheme and nothing more. 8. As a result, we are inclined to set aside the order passed by the Divisional Commissioner and relegate the private parties once again before the Divisional Commissioner, Mandi for reconsideration of the matter. It will be open to the Divisional Commissioner to examine whether the communication issued by the Director dated 1stDecvember, 2006 is still holding the field and also whether the Director had authority to issue such instructions which are not part of the Scheme concerning appointment of the Anganwari Workers. All questions in that behalf are left open to be decided by the Divisional Commissioner. We are not expressing any opinion either way in that behalf.” 10. Vide order dated Nov 26, 2013 the Divisional Commissioner, Mandi Division, Mandi again dismissed the appeal filed by Roshani Devi, appellant herein, holding that the experience certificate issued in favour of Roshani Devi was by the Samaj Kalwan Avem Vikas Mandal, which is not a Government/Semi Government Institution/School. He also held that the appellant did not produce the Diploma of Nursery Teacher. The order further reads that the clarification issued by the Director, Social Justice and Empowerment, HP, was justifiable because it was issued by the head of the Department who was empowered to do so. A bare reading of this order reveals that the Divisional Commissioner, Mandi did not specifically give a finding that whether communication issued by the Director dated Dec 1, 2006, still holds the field or not. A bare reading of this order reveals that the Divisional Commissioner, Mandi did not specifically give a finding that whether communication issued by the Director dated Dec 1, 2006, still holds the field or not. All that the Divisional Commissioner decided was that the Director had the authority to issue such instructions. Furthermore, there is no finding that whether this clarification could have been issued or not. 11. Feeling aggrieved, Roshani Devi, appellant herein, again came to this Court by filing writ petition No. 9338 of 2013. Vide impugned judgment dated May 4, 2015, a Single Bench of this Court upheld the order dated Nov 26, 2013, passed by the Divisional Commissioner, Mandi Division, and dismissed the writ petition. 12. The judgment dated Nov 8, 2013, rendered by the Principal Division Bench of this Court in CWP No. 4873 of 2013 virtually gave binding guidelines to the Divisional Commissioner, Mandi to decide the matter. The Principal Bench had specifically stated that the directions issued by the Department of Social Justice & Empowerment, restricting the issuance of experience certificate to Government/Semi Government Institutes was still in force or not. 13. This matter has become a tennis ball swinging from one Court to another. Perusal of the income certificate of Roshani Devi (Annexure P-5) gives a painful reading wherein it is mentioned that the income of the appellant from all sources does not exceed Rs. 7500/- per annum as on May 15, 2007. 14. To adjudicate this matter the controversy narrows down to the restriction imposed upon the experience certificate issued by a non-government institute. Clause 7 (1) of the Scheme deals with this question. This Scheme which is annexed as Annexure P-4 is dated Oct 5, 2009, and the Notification reads that it is in super session of earlier notifications dated 11.4.2007, 6.7.2007, 20.9.2007, 17.6.2008, 18.11.2008 and 7.1.2009 and for the appointment of Anganwari Workers/Helpers under ICDS Programme in Himachal Pradesh. Clause 7 (1)(B) of the Scheme which mentions about two marks to be given for experience, reads as follows: “B) Maximum 2 marks for experience to be given as under:- One mark for candidates having experience as Anganwadi Helper/ Balsevika/Balwadi Teacher/ Nursery Teacher for one year or Shishu Palak of ECCE center for 10 months. Or Two marks for candidates having experience as Anganwadi Helper/ Balsevika/ Balwadi Teacher/Nursery Teacher for two or more years.” 15. Or Two marks for candidates having experience as Anganwadi Helper/ Balsevika/ Balwadi Teacher/Nursery Teacher for two or more years.” 15. Such Scheme does not discriminate between Government/Semi Government/Private Institute. In fact the Appellate Authority, that is, the Divisional Commissioner, Mandi Division had placed reliance on communication dated Dec 1, 2006 which had restricted the issuance of experience certificate only to Government/Semi Government School. The said communication reads as follows: “No.14-29/87-ICDS Directorate of Social Justice & Empowerment Himachal Pradesh. To 1. All the District Programme Officers in Himachal Pradesh. 2. All the Child Development Project Officers in Himachal Pradesh (through DPOs). Dated Shimla-9 1-Dec-2006. Subject: Guidelines for the appointment of Anganwari Workers/Helpers clarification thereof. Sir, With regard to marks to be given for Nursery Teachers experience, clarifications are being sought by most of the CDPO through respective DPOs. In this regard it is clarified that candidates having DIPLOMA of Nursery teacher and on the basis of that diploma having experience of teaching in any Government/semi Government School may be given experience marks. Yours faithfully, Sd- Director Social Justice & Empowerment, (Himachal Pradesh)” 16. Because of the latest notification superseding all earlier schemes wherein reference was not made to this communication dated Dec 1, 2006, and when revised scheme/guidelines were framed, no such restrictions were placed as already mentioned above. 17. In view of the fact that the new Scheme did not discriminate between experience from private institute or not, as such, it was wrong on the part of the Deputy Commissioner as well as the Divisional Commissioner to set aside the appointment by ordering deduction of two marks which were given to appellant Roshani Devi on the basis of experience certificate given by a private institute. 18. Furthermore, Annexure P-11, which is issued by the concerned Agency which had issued the experience certificate (Annexure P-3) to appellant Roshani Devi, reads as follows: “… In connection with experience certificate which has given to Mrs. Roshani Devi w/o Sh. Daulat Ram R/o Vill. Baju, P.O. Bakhrot, Teh. Karsog, Distt. Mandi, (H.P.) worked in our creche Centre Mandhel Patla as teacher for three years. It has Govt. sponsored programme and it has been supported by Central Social Welfare Board through State Social Welfare Board under Ministry of Women and Child Development, Govt of India. Roshani Devi w/o Sh. Daulat Ram R/o Vill. Baju, P.O. Bakhrot, Teh. Karsog, Distt. Mandi, (H.P.) worked in our creche Centre Mandhel Patla as teacher for three years. It has Govt. sponsored programme and it has been supported by Central Social Welfare Board through State Social Welfare Board under Ministry of Women and Child Development, Govt of India. In this regard sanction order and bond signed by us enclosed herewith.” It was also clarified that the work was of Government sponsored programme and supported by Central Social Welfare Board through State Social Welfare Board. As such, the appellant Roshani Devi was entitled for two marks on the basis of her experience certificate. 19. Consequently, the judgment dated May 4, 2015, passed by the learned Single Judge in CWP No. 9338 of 2013, is set aside. Order dated Nov 26, 2013, passed by the Divisional Commissioner, Mandi Division, Mandi in Case No. 54 of 2011 is also set aside and order dated Aug 27, 2011, passed by Additional District Magistrate, Mandi, in Appeal file No. 62 of 2011 is also set aside and initial appeal filed by private respondent Rita Sharma fails. 20. Resultantly, the present LPA No. 60 of 2015 is allowed in the aforesaid terms by holding that there is no error in the initial appointment of appellant Roshani Devi as Anganwari Worker/Helper. Also in view of the aforesaid discussions, the connected writ petition being CWP No. 1400 of 2016 fails being devoid of any merits, and is accordingly dismissed. 21. No order as to costs.