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2019 DIGILAW 929 (HP)

Sunita v. State of Himachal Pradesh

2019-07-12

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The case has a long-drawn chequered history. Interviews for the post of 'Anganwari Worker' at Anganwari Centre, Devthana by the Integrated Child Development Project Officer, Sangrah, District Sirmaur, were held during the year 2007, in which the petitioner came to be selected. However, her appointment was challenged by respondent No.5 before the Deputy Commissioner, Sirmaur (first appellate authority) on the ground of higher family income, who set aside the selection of the petitioner vide order dated 10.06.2008. The petitioner assailed the order before the Divisional Commissioner, Shimla, who vide his order dated 09.07.2009 dismissed the appeal filed by the petitioner by upholding the order passed by the Deputy Commissioner. 2. The petitioner thereafter approached this Court by filing CWP No.2605/2009 and the same was decided by this Court on 17.05.2010 along with bunch of similar cases with the direction to the appellate authority to hear afresh all these matters in light of the directions/clarifications given by this Court. 3. In compliance to such directions, the issue of income of the petitioner was got verified from the Naib Tehsildar, Sub Tehsil, Nohra, who vide report dated 15.01.2011 (Annexure P-5) reported that income of the family of the petitioner during the year 2007 was Rs. 11,000/- and, therefore, income certificate issued to her was correct. However, the Sub Divisional Magistrate, Rajgarh, in his report dated 25.03.2009 (Annexure P-7) reported that the family of the petitioner had separated on 02.07.2006 (i.e. after 01.01.2004, the date prescribed in the guidelines). He further reported that the husband of the petitioner was employed in the Home guards and had received an amount of Rs.6,300/- as wages during 2006-07, therefore, the income of the petitioner should be taken to be Rs.16,300/- or more. On the basis of such report, the Deputy Commissioner set aside the selection of the petitioner vide his order dated 23.06.2011 (Annexure P-6). Even though, this order was again assailed before the Divisional Commissioner by the petitioner but the appeal so preferred came to be dismissed vide order dated 25.05.2015 (Annexure P-9), constraining the petitioner to file the instant writ petition. 4. The petitioner has filed the writ petition mainly on the ground that the findings recorded by the authorities below are perverse. I have heard the learned counsel for the parties and gone through the material placed on record. 5. 4. The petitioner has filed the writ petition mainly on the ground that the findings recorded by the authorities below are perverse. I have heard the learned counsel for the parties and gone through the material placed on record. 5. At the outset, it needs to be observed that the petitioner has not approached the authorities and even this Court with clean hands manipulating material facts in support of her petition, more particularly, her income based on false certificate. This is clearly evident from the material placed on record by the respondents along with their reply. 6. Annexure R-5/1 is the certificate of income issued in favour of the petitioner dated 14.05.2007 wherein her income is shown as Rs.16,150/- per annum from all sources. Annexure R-5/2 is the document supplied to the husband of respondent No.5 under Right to Information Act regarding salary details of the husband of the petitioner which reveals that during the relevant time with effect from 01.04.2007 to 07.07.2007, the total income of the husband of the petitioner for these 98 days alone was Rs.12,740/- against the prescribed income of Rs.12,000/-. Notably, this is the income of the husband of the petitioner alone and does not include the income of the petitioner and her other family members. 7. Strong reliance is then placed by the learned counsel for the petitioner on the report of the Patwari and the inquiry conducted by the Naib Tehsildar, Nohra. 8. As regards the report of Patwari, the same has been annexed with the writ petition as Annexure P-8 along with its translation Annexure P-8/T and reads as under:- "(English translation of Annexure P-8) Annexure P-8/T Statement of Shri Khajan Singh Patwari Halqa Devimanal, Sub-Tehsil Nohra, District Sirmaur, H.P. Stated that the Naib Tehsildar Nohra had called me in his office for hearing in Appeal Case No. 44/04-2010 Sunita Devi V/s Santosh Kumari. It is true that in the Income Report which was issued by me on dated 13.1.2006 in favour of Sunita Devi w/o Raghubir Singh, r/o Devamanal, I have mentioned in detail therein that the family of Sunita Devi and Raghubir Singh was separated from the year 2006 and the family consists of four members, out of which two are elders and two are younger and the duty of Shri Raghubir Singh, husband of Sunita, has been mentioned in the Home Guards for three months and his wages have been mentioned as Rs.70/- per day. There is total 10-03 bighas land in the name of family, out of 2-6 bighas is Majrua and 7-17 bighas is Gair Majrua and the annual income of the family is assessed at Rs.11000/- from all sources and the report issued by me is based on the true and correct facts. This is my statement. RO and AC Sd/- V.R.O. Devamanal Sd/- 7-1-2011 7-1-11 Naib Tehsildar Nohra." 9. Adverting to the report of the Naib Tehsildar, the translated copy whereof is annexed with the writ petition as Annexure P-5/T and reads as under:- "English translation of Annexure P-5 Annexure P-5/T Office of Naib Tehsildar, Sub-Tehsil Nohra, District Sirmour High Court matter Time Bound Sr.No. 96-Reader/2011 dated 15-1-11 To The Deputy Commissioner, Nahan, District Sirmour. Subject: Appeal No. 44/4 of 2010 titled Sunita Devi Vs. Santosh Kumari AWW Devthana ICDS Block Sangrah (CWP No. 2605/2009) Fixed for 28-1-2011 Sir, With reference to your office Letter No. Reader- DC/2010-56493 dated 31.12.2010 on the subject cited above, it is requested that as per your order, Sunita Devi and Santosh Kumari both the parties were called through summonses on 7-1-2011 and both were heard and their statements were recorded, which are enclosed and Patwari Halqa Devamanal was also called. His statement was also recorded, which is enclosed. The income certificate issued to Sunita Devi, which was later on cancelled, was also perused. The income certificate dated 14.11.2006 of Rs.11000/-(Eleven Thousand), which was issued by the Executive Magistrate Nohra in favour of Smt. Sunita Devi, was later on cancelled by the Naib Tehsildar Nohra on dated 29.10.2007. As per Sunita Devi, the income certificate which was issued to her is correct and according to that, she was given appointment in Anganwari and she had joined her duties on 8.8.2007 and the income certificate has been cancelled on dated 29.10.2007. As per Sunita Devi, the income certificate which was issued to her is correct and according to that, she was given appointment in Anganwari and she had joined her duties on 8.8.2007 and the income certificate has been cancelled on dated 29.10.2007. On perusal of the aforesaid facts and documents, it is found that at the time of interview, the family should be separate prior to 1-1-2004, but the family of Sunita has been shown to be separated in the year 2006, on the basis of which, the Sub Divisional Officer (Civil) had ordered for cancellation of Income Certificate. But as per the documents and spot report, the joint family income of Smt. Sunita during the year 2006 also comes to Rs.11,000/-, because no member from her family was in Government/Semi Government service. The respondent Santosh has told that her husband is appointed in Home Guard, which is wrong, because in this regard the certificate issued by the Commandant, Home Guard, fourth battalion, Nahan is enclosed, from which it is clear that no wages of any kind is paid to him by the department. The report, therefore, is submitted for further action. Encls: 4 Nos. Sd/- Naib Tehsildar Sub-Tehsil Nohra, District Sirmaur Certified to be true English Translation Sd/- (Neel Kamal Sood) Advocate." 10. In light of the material placed on record, especially, the information obtained by the husband of respondent No.5 under Right to Information Act, it can safely be held that the statement of Patwari as also report submitted by Naib Tehsildar, Sub Tehsil, Nohra, are not only false, but the same have been issued solely with the intention to illegally help the petitioner or else being custodian of the official records, there was no occasion or reason for both these officials to have given false reports regarding the income of the petitioner. 11. Admittedly, interviews for the post in question were held in August, 2007 and as per information (Annexure R-5/3), the husband of the petitioner with effect from 01.04.2007 to 07.07.2007 received an amount of Rs.12,740/- at the rate of Rs. 130/- per day, whereas, Patwari, in his statement has though stated that the husband of the petitioner had been engaged as Home Guard for three months, but his wages were only Rs.70/- per day. 130/- per day, whereas, Patwari, in his statement has though stated that the husband of the petitioner had been engaged as Home Guard for three months, but his wages were only Rs.70/- per day. As regards, the Naib Tehsildar, he has clearly submitted in his report that even though the husband of the petitioner was appointed as Home Guard, but no wages of any kind were paid to him by the department. 12. Therefore, this is a fit case where departmental inquiry, apart from any other action, that may be taken, needs to be initiated against both these officials, irrespective of the fact whether they are still serving or have retired. 13. Since, the petitioner was not even eligible for being considered to the post of 'Anganwari Worker', therefore, there is no question of her being selected to the said post. 14. It is unfortunate that the petitioner from the year 2007 on one pretext or the other has managed to deprive respondent No.5 from her appointment and thereby converted the litigation into a fruitful industry. 15. The Hon'ble Apex Court in Indian Council for Enviro-Legal Action versus Union of India and others, (2011) 8 SCC 161 examined the principles of restitution and the abuse of process of Court and issue of doctrine of unjust enrichment of unscrupulous litigants and in order to ensure that the abuse of legal process is not done, it was also held that Court should adopt a pragmatic approach and also impose realistic costs since litigation has been turned into a fruitful industry by such litigants. The relevant observations of the Hon'ble Apex Court are as under:- "191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation. 192. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 197. The other aspect which has been dealt with in great detail is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:- (1) It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. (2) When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. (3) Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the court. (4) A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. (5) No litigant can derive benefit from the mere pendency of a case in a court of law. (6) A party cannot be allowed to take any benefit of his own wrong. (7) Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. (8) The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts." 16. (7) Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. (8) The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts." 16. In view of the aforesaid discussion, not only there is no merit in this writ petition, but the same is liable to be dismissed with costs which are assessed at Rs.25,000/- to be paid to respondent No.5. Ordered accordingly. Pending application (s), if any, also stands disposed of. 17. However, before parting, the State Government is directed to initiate departmental proceedings against Shri Khajan Singh, the then Patwari Halqua, Devimanal, Sub Tehsil Nohra, District Sirmaur, H.P. and the then Naib Tehsildar, for having submitted false reports to the Deputy Commissioner. The inquiry be conducted within six months and report thereof be submitted to this Court on 10.01.2020, on which date the case be again listed before this Court.