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Heera Mani vs State Of H.P. & Ors on 21 May, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2772 of 2017.

Reserved on :4.5.2019
Decided on: 21st May, 2019.

_

.

Heera Mani ..Petitioner.

Versus

State of H.P. ors. …Respondents.
Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner : Ms. Shalini Thakur, Advocate.

For the respondents : Mr. S.C. Sharma, Mr. Shiv Pal Manhans and
Mr. P.K. Bhatti, Addl. Advocate Generals
with Mr. Raju Ram Rahi, Dy. Advocate
General, for the respondents-State.

r Mr. Dinesh Kumar, Advocate, for
respondent No.4.

Chander Bhusan Barowalia , Judge

The present writ petition is maintained by the petitioner

against the respondents praying therein that :

“i) That writ of mandamus or any other appropriate

writ may kingly be issued and the respondents may be

directed to appoint the petitioner as anganwadi worker
and other consequential benefits.

ii) That writ of mandamus or any other appropriate

writ may kindly be issued to quash the order passed by
the learned Divisional Commissioner dated 6.10.2017
whereby he had dismissed the appeal of the petitioner
on ground of limitation whereas the appeal was within
limitation.

iii) Writ of mandamus quashing the enquiry report
may kindly be passed in the interest of justice.”

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2

2. Brief facts, giving rise to the present petition is that the

petitioner belongs to BPL family and is unemployed divorced lady.

The petitioner alongwith other candidates appeared in the interview

.

for the post of Anganwadi worker in the Anganwadi Centre Janual

under ICDS Block Seraj. The result was declared in favour of the

petitioner, vide order dated 4.8.2007, passed by respondent No.2.

Respondent No.4 being aggrieved and maintained appeal against

the appointment of petitioner before the Deputy Commissioner,

Mandi, which was decided on 17.4.2008. The appeal maintained by

respondent No.4 was accepted and selection of the petitioner was

set aside. Being aggrieved by the said order, petitioner maintained

appeal before the learned Divisional Commissioner, which was

dismissed. Thereafter, the petitioner against the impugned order

passed by the learned Divisional Commissioner, maintained writ

petition before this Court, whereby this Court remanded back the

matter to it and directed to decide the matter afresh, whereby the

learned Deputy Commissioner, Mandi, decided afresh on 16.3.2011

and dismissed the appeal of respondent No.4. Thereafter,

respondent No.4 again maintained second appeal before the

learned Divisional Commissioner, Mandi, which stands dismissed.

Further, both the parties maintained writ petition, which was

disposed by Hon’ble Division Bench, dated 26.11.2012, relevant

portion of the order reads as under :

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“That is not an issue which can be decided in the
writ proceedings. It is for the Tehsildar to decide
whether the petitioner was living separately or with her
father after recording evidence to be led by both the
sides and thereafter the Tehsildar shall decide whether

.

the petitioner was a member of the family of her father

or not. If she was living with her father in a joint house
and kitchen, then obviously she will be deemed to be

the member of her father’s family and then his income
shall have to be counted. The parties are directed to
appear before the Tehsildar on 19.12.2012. Both the
writ petitions are disposed of. The pending

application(s), if any, are also disposed of.”

3. In reply to respondents No.1 to 3 have stated that the

petitioner belongs to BPL family/Scheduled Caste as per certificates

issued by the concerned Panchayat besides divorced lady. It is

undisputed that the petitioner was appointed as Angnawadi worker,

vide appointment order, dated 4.8.2007 issued by respondent No.3.

Respondent No.4 maintained an appeal before the learned

Appellate Authority against the appointment order of the petitioner,

which was accepted by the learned Appellate Authority i.e. Deputy

Commissioner, Mandi, vide its order dated 17.4.2008. Feeling

aggrieved by the said order, Deputy Commissioner, the petitioner

preferred an appeal before the Divisional Commissioner, Mandi and

the same was dismissed by the competent authority, vide order

dated 25.9.2008 on the sole ground that her income was found

beyond the prescribed limited of `12,000/- per annum at the

relevant time. Therefore, respondent No.3 was directed by the

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learned Divisional Commissioner to give appointment to the

candidate next in merit. The petitioner approached before this

Court in CWP No.1949 of 2008, whereby direction was given to the

.

Appellate Authority to consider the case afresh and take

appropriate action within a period of six months. Consequently,

Deputy Commissioner, Mandi, complying with the directions of this

Court decided the appeal on 16.3.2011 and dismissed the appeal of

respondent No.4. Further, both the parties maintained two

separate CWP No.3575 of 2012 and 9637 of 2012 before this Court,

which were disposed of by the learned Division Bench, dated

26.11.2012. In compliance to the directions passed by this Court,

Tehsildar, after hearing the parties and going through the entire

record, income of the petitioner was found to the tune of

`1,63,000/- per annum, therefore, earlier income certificate issued

in her favour was cancelled. Consequently, respondent No.4 was

ordered to join as Anganwari worker against Anganwari Centre,

Janaul, Sub Tehsil Balichowki, District Mandi.

4. Learned counsel appearing on behalf of the petitioner

has argued that the petitioner is not member of her parents family,

as she is a divorcee, but the Authority below has taken the income

of her father, as member of her family and so, she is not given

appointment. She has argued that she is having one son and is

residing separately from her parents and she is the most eligible

person to be appointed to the job, but action of the respondents is

wholly arbitrary.

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5. On the other hand, learned counsel appearing on behalf

of respondent No.4 has argued that in the divorce petition, the

petitioner has given her address, as she has infact residing with her

.

father and is a member of her parents and the Authority below has

committed no illegality, taking into consideration the income of the

parents while considering the eligibility of the petitioner for the post

of Anganwadi worker. He has further argued that though the

petitioner has remarried, but there is no evidence on record to that

effect. He has argued that Tehsildar after visiting the spot, as per

the orders passed by this Court in CWPs No.3575 and 9637 of

2012, has categorically given findings that the petitioner is living

with her parents and resultantly the income certificate, which was

issued in favour of the petitioner was cancelled and respondent

No.4-Jaiwanti is appointed to that post, as she is the only eligible

candidate. He has argued that respondent No.4-Jaiwanti is working

for the last six years and she is otherwise also right to continue for

the same post. He has argued that the factum of petitioner living

separately is otherwise question of fact and that cannot be looked

into the present case. He has argued that the impugned order(s)

passed by the Tehsildar, Deputy Commissioner and Divisional

Commissioner, Mandi, regarding the income of the petitioner has

already attained finality and so, no interference is required for.

6. Learned Deputy Advocate General, has argued that since

income certificate of the petitioner has already attained finality and

so, no interference is called for.

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6

7. In rebuttal, learned counsel for the petitioner has argued

that petitioner is paying Chulah tax since the year 2004 and she is

living separately.

.

8. I have heard learned counsel appearing on behalf of the

parties and gone through the record in detail.

9. After taking into consideration the fact that whether the

petitioner is treated as a member of her father’s family or not.

Perusal of the documents on record shows that although the

petitioner is divorcee, living separately from the father and yet

residing in her father’s house. Whether the petitioner can be

treated as a family member of the father, when she is divorced is a

question of fact and whether the order passed by the respondents

is legal or not, is also a question of fact. Howsoever, taking into

consideration the long litigation between the parties, which has

come on record, before this Court, number of times and also the

situation of respondent No.4, who is working on the post for the

last more than six years, this Court finds that prima facie when the

petitioner is a divorcee, she cannot be taken as a family member of

her father for the purpose of income, now much water has flown

and respondent No.4, has also worked for more than eight years at

the same place. In these circumstances, this Court finds that the

interest of justice will be met, in case, respondents/competent

authority are directed to consider the case of petitioner for

appointment as Anganwadi worker in and around the place of her

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residence in near future, whenever the vacancy, so arises. Ordered

accordingly.

10. Accordingly, the petition is disposed of in the aforesaid

.

terms. No order as to costs. Pending application(s), if any, also

stands disposed of.

(Chander Bhusan Barowalia)
21st May, 2019 Judge
(CS)

r to

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