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2019 DIGILAW 196 (UTT)

Hema Devi v. State of Utttarakhand

2019-03-14

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. Heard Mr. Yogesh Pacholia, learned counsel for the appellant in Special Appeal No.1002 of 2018, Mr. D.K. Joshi, learned counsel for the respondent-writ petitioner and the appellant in Special Appeal No.994 of 2018, and Mr. Anil K. Bisht, learned Standing Counsel for the State. Parties, in these two appeals, shall hereinafter be referred to as they are arrayed in the Writ Petition. These two appeals are preferred one by the writ petitioner, and the other by the sixth respondent in the writ petition, aggrieved by the order of the learned Single Judge in Writ Petition (S/S) No.1020 of 2016 dated 13.11.2018. 2. Facts, to the limited extent necessary, are that the third respondent issued an advertisement on 16.10.2014 inviting applications from eligible candidates for being considered to be appointed to the post of Anganbadi Worker/Anganbadi Karyakarti in the vacancies available at different villages/wards of different blocks of District Bageshwar. 3. The advertisement dated 16.10.2014, whereby applications were invited, among others, for the Anganbadi centre at Baisni-II, required that the applicant should fall the Below Poverty Line (hereinafter referred to as “BPL”). The application required the applicant to furnish details of the BPL card as proof of her falling below the poverty line. The appellant (the sixth respondent in the Writ Petition) left the column in the application form, regarding the BPL ID Number, blank. She was, however, selected both on the ground that she fulfilled the eligibility criteria, and that she had secured more marks than the respondent-writ petitioner. 4. Aggrieved by the selection and appointment of the sixth respondent as an Anganbadi Karyakarti, the petitioner invoked the jurisdiction of this Court seeking a writ of certiorari to quash the appointment of the sixth respondent as an Anganbadi worker; and a writ of mandamus directing the respondents to appoint the petitioner in the post of Anganbadi worker (Karyakarti) at the Anganbadi centre Baisni-II, Block Kapkot, District Bageshwar with all consequential benefits. 5. 5. In the order under appeal, the learned Single Judge observed that the petitioner had specifically contended, in her Writ Petition, that the sixth respondent was living above the Poverty Line (APL); her selection was bad in view of the fact that she was appointed on the ground that she was BPL, whereas the application submitted by her showed that she was APL; as per the Government Order dated 24.02.2009, and the conditions of the advertisement dated 16.10.2014, only a candidate, who is BPL, is entitled to be considered; since the sixth respondent was appointed ignoring this crucial fact, her appointment was illegal; in response to this specific plea in the Writ Petition, the sixth respondent had nowhere denied the said plea in the counter-affidavit filed by her; in the absence of such a plea, the endeavour of the learned counsel for the sixth respondent to pass over a certificate which had been issued by the competent authority, allegedly showing that she was BPL, could not be accepted; when there was a specific plea raised against the sixth respondent, it was expected that a certificate, which had been issued in her favour at the time of selection or even prior thereto, should have been filed; and not having done so, the certificate to that effect, sought to be passed across the bar, could not be looked into. Holding that no material had been brought on record by the sixth respondent to show that she belonged to the BPL category, and she had left Column No.10 of her application form blank, the learned Single Judge held against the sixth respondent. The petitioner was, however, denied relief on the ground that, since applications were invited for Ward No.II of Baisni Village, and as neither the petitioner nor the sixth respondent belonged to Ward No.II of Baisni Village, the petitioner could not be appointed as an Anganbadi Karyakarti in the place of the sixth respondent. Aggrieved thereby these two appeals. 6. Mr. Yogesh Pacholia, learned counsel for the sixth respondent, would draw our attention to the counter affidavit filed by the State Government, and to the counter-affidavit filed by the sixth respondent, in the Writ Petition in support of his contention that the learned Single Judge had failed to take into consideration relevant pleadings which would establish that selection of the sixth respondent was valid. In the counter-affidavit filed by the District Programme Officer, Bageshwar, it is stated that the petitioner had produced the BPL certificate along with her application, and the sixth respondent had submitted her income certificate bearing No.0602051402052 dated 17.11.2014; as per the Government Order, it had been provided that the applicant can submit one of the certificates i.e. BPL Serial Number or Income Certificate; candidates who do not have BPL Serial Number or a BPL Certificate, can, in that case, produce a certificate to show that their annual income was below the poverty line; candidates residing in rural areas, having an annual income of less than Rs.15,976/-, fall under the BPL category; the Selection Committee, after scrutinizing the application forms of the candidates, had prepared the merit list; and appointment of the sixth respondent, pursuant to such a selection process, was valid. 7. In her counter-affidavit, the sixth respondent has stated that the Government of Uttarakhand had issued Government Order dated 03.09.2009 amending the earlier Government Order dated 24.02.2009; the Government Order dated 03.09.2009 provided that such other candidates, who did not possess a BPL certificate but their income was equivalent to BPL families, would be considered for appointment to the post of Anganbadi worker (Karyakarti); and a copy of the Government Order dated 03.09.200 was being enclosed along with the counter-affidavit. 8. It is not in dispute that, in terms of the Government Order dated 03.09.2009, persons, who do not possess a BPL certificate but their income is equivalent to BPL families, are also eligible to be considered for appointment. While the sixth respondent has referred to the Government Order, which has prescribed equivalence, in her counter-affidavit she neither referred to her having been issued a certificate, nor did she annexe a copy thereof. The fact however remains that the District Programme Officer, in her counter-affidavit dated 20.07.2016, has (in Paragraph 19 thereof) specifically asserted that the sixth respondent had submitted her income certificate bearing No.0602051402052 dated 17.11.2014; and, as per the Government Order, the applicant could submit one of the certificates i.e. BPL Serial Number or Income Certificate. This specific plea of the District Programme Officer has not been taken into consideration by the learned Single Judge, in the order under appeal. 9. Mr. This specific plea of the District Programme Officer has not been taken into consideration by the learned Single Judge, in the order under appeal. 9. Mr. D.K. Joshi, learned counsel for the respondent-writ petitioner, would submit that, apart from the failure of the sixth respondent to specifically refer to the contents of the said certificate in her counter-affidavit, the District Programme Officer has also not specifically stated, in her counter-affidavit, that the sixth respondent fell the Below Poverty Line. Learned counsel would rely on Bharat Singh & others vs. State of Haryana & others, (1988) 4 SCC 534 , wherein the Supreme Court observed:- “…….As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit…...” (emphasis supplied) 10. The distinction between pleadings in a Suit, and those in writ proceedings, is that in a Writ Petition, not only facts, but also evidence in proof thereof, must be stated. 11. In the present case, the counter-affidavit filed by the District Programme Officer refers to an income certificate having been issued to the sixth respondent, and as proof thereof the certificate number has also been detailed therein. The respondent-writ petitioner, in her rejoinder-affidavit, has not questioned the genuineness of this assertion. It is true, as contended by Mr. D.K. Joshi, learned counsel for the respondent-writ petitioner, that the counter-affidavit of the District Programme Officer, while referring to the income certificate number, does not furnish details of the income of the sixth respondent. To satisfy ourselves, that nothing was amiss, we directed the official respondents to produce the records. 12. The records placed for our perusal disclose that the certificate issued by the Naib Tehsildar (Certificate No.0602051402052 dated 17.11.2014) states that the monthly income of the sixth respondent was Rs.1,250/-which, in effect, would mean Rs.15,000/-per annum, which is well below the ceiling limit of Rs.15,976/-to be treated as BPL. The submission of Mr. D.K. Joshi, learned counsel for the writ petitioner, that the number given to these documents in the file creates a doubt as to whether this certificate was enclosed subsequently, does not merit acceptance, as the certificate number has been specifically referred to in the counter-affidavit of the District Programme Officer filed as early as in July, 2016, long before the order under appeal was passed by the learned Single Judge on 13.11.2018. 13. We are satisfied, therefore, that the learned Single Judge was not justified in setting aside the appointment of the sixth respondent as the specific averments, in the counter-affidavit filed by the District Programme Officer, regarding her income certificate, were not noticed. 14. For the reasons stated hereinabove, the order under appeal must be and is, accordingly, set-aside. 15. 13. We are satisfied, therefore, that the learned Single Judge was not justified in setting aside the appointment of the sixth respondent as the specific averments, in the counter-affidavit filed by the District Programme Officer, regarding her income certificate, were not noticed. 14. For the reasons stated hereinabove, the order under appeal must be and is, accordingly, set-aside. 15. With regards the conclusion of the learned Single Judge that neither the petitioner nor the sixth respondent were eligible to be appointed as an Anganbadi Karyakarti, as neither of them belonged to Ward-II of Baisni Village, it is necessary to note that the advertisement only refers to the Anganbadi centre at Baisni-II. Learned counsel on either side are in agreement that reference to Baisni-II in the advertisement was only because there already existed another Anganbadi centre at Baisni Village. The fact remains that the advertisement does not stipulate that only members from Ward No.II of Baisni Village are eligible to be considered for appointment as an Anganbadi Karyakarti. In any event, this question was not put in issue by the petitioner in the Writ Petition. It was wholly unnecessary, therefore, for the learned Single Judge to have non-suited the parties on this ground. 16. Special Appeal No.1002 of 2018 is allowed, and Special Appeal No.994 of 2018 is dismissed. However, in the circumstances, without costs.