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. 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 bethe 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 pendingapplication(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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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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