IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.933 of 2009 MANORAMA DEVI, wife of Harendra Singh @ Harendra Kumar Singh, resident of village Bahadurpur Tola, P.S. Garhani, District Bhojpur … Petitioner-Appellant Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Social Welfare Department, Bihar, Patna 3. The Director, I.C.D.S. Directorate, Bihar, Patna 4. The Commissioner, Patna Division, Bihar 5. The District Magistrate, Bhojpur, Ara 6. The District Programme Officer, Bhojpur, Ara 7. The Child Development Project Officer, Garhani, District Bhojpur 8. Meena Devi, wife of Dharmendra Kumar, resident of village Bahadurpur Tola, P.O. Bagwan, P.S. Agiaon, Anchal Garhani, District Bhojpur … Respondents-Respondents. ---------- For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Anil Kumar Singh-2, Advocate For the State : Mr. R.C.P. Bharti, S.C.-14 Mr. Ajay Kumar, A.C. to S.C.-14 Mr. Sadanand Paswan, A.C. to S.C.-14 For the Respondent no. 8 : Mr. R.C. Sinha, Advocate Mr. Ram Bacchan Singh, Advocate ----------- P R E S E N T HON'BLE THE CHIEF JUSTICE HON'BLE MIHIR KUMAR JHA, J. ----------- As per Mihir Kr. Jha, J. I.A. No. 4495/2009 1. Having heard learned counsel for the appellant as also the learned counsel for respondents no. 1 to 7 and for the reasons mentioned in this application the delay of 101 days in filing of this appeal is condoned. 2. I.A. No. 4495/2009 is accordingly allowed. - 2 - L.P.A. No. 933/2009 3. Having condoned the delay the parties we are also inclined to dispose of this appeal at the stage of admission. We have accordingly heard the parties at length. 4. This appeal is directed against the order of the learned Single Judge dated 5.3.2009 in C.W.J.C. No. 3037/2009 whereby and whereunder the order dated 19.12.2008 passed by the District Magistrate cum Collector, Bhojpur remaining the appellant- writ petitioner from the post of Anganwari Sevika has been upheld while dismissing her writ application. 5. Counsel for the appellant-writ petitioner has submitted that the solitary ground, on which the appointment of the appellant- writ petitioner has been set aside by the Collector of the district, that she had produced a fake certificate in support of her age at the time of her selection and appointment on the post of Anganwari Sevika is itself based on non-est and non- existent material. Counsel in this regard has also submitted that such finding of the Collector of the district infact is perverse, inasmuch as the date of birth of the appellant- writ petitioner being 10.10.1984 has been duly - 3 - recorded in her Madhyama Examination certificate issued by the Bihar Sanskrit Shiksha Board, in terms whereof she was fully eligible in terms of the Guidelines issued by the State Government for selection and appointment on the post of Anganbari Sevika, prescribing the mandatory requirement of being in the age group of 18 to 40 years. It has also been sought to be explained that infact the case for selection and appointment of the appellant along with the two other candidates, namely, Babita Devi and Meena Devi was taken up and considered by Gram Sabha, Badaura Gram Panchayat in Garhani Block of District Bhojpur and as the appellant had secured higher marks to Meena Devi (Respondent no. 8) in the qualifying matriculation or its equivalent examination, she was selected and appointed as Anganwari Sevika in the month of April, 2007 and was also sent for training whereafter she was given her appointment letter on 22.6.2007. 6. It has been further submitted that while the appellant- writ petitioner was working as Anganwari Sevika, her services were terminated all of a sudden under the orders of the Collector cum District Magistrate, Bhojpur as communicated to her in the consequential - 4 - order dated 23.11.2007 issued by the Child Development Project Officer (C.D.P.O.), Garhani. Bhojpur. In this context it has also been pointed out that as the appellant- writ petitioner was never given any show cause notice and/or opportunity of hearing prior to termination of her service and in fact was not even made aware of the reasons for such termination of her service on the post of Anganwari Sevika. The appellant has also claimed that she had later on requested the Respondents 5 to 7 for being made aware of the reasons for termination of her service under the Right to Information Act whereafter from the office of the District Magistrate cum Collector, Bhojpur had given a note-sheet of a file from which it appeared that her services were terminated on a report submitted by the C.D.P.O., Garhani on an allegation that her age on the basis of her date of birth as declared by her i.e. 10.10.1984 could not be treated to be authentic, inasmuch as the date of birth of her son was 8.10.1992 and thus leaving only a gap of 7 years 11 months and 28 days in their difference of age. It has therefore been projected before us that it was actually on this adverse report of C.D.P.O. alone that the Collector cum District Magistrate of the District by an order dated 16.10.2007 - 5 - in a note-sheet in the file had agreed with the proposal submitted by his office for cancellation of selection and appointment of the appellant writ petitioner on the post of Anganbari Sevika. 7. It is also the case of the appellant writ petitioner that since such order of termination of her service was appelable, she had preferred an appeal before the Commissioner of Patna Division who vide his order dated 4.6.2008 in Misc. Appeal Case No. 25/2008 had set aside her order of termination and had remitted the matter back to the Collector cum District Magistrate, Bhojpur for passing a fresh speaking order after affording an opportunity of hearing to the appellant- writ petitioner. The impugned order dated 19.12.2007 assailed in the connected writ application in fact had been passed by the Collector cum District Magistrate, Bhojpur wherein he once again had reiterated his earlier decision by holding that there was no scope for taking a different view. 8. Learned Counsel for the appellant has submitted that the Collector of the district had passed a wholly illegal order which could not be sustained either on facts or in law and in this regard he also assailed the impugned - 6 - order of learned Single Judge upholding the order of the District Magistrate on a number of grounds to which we would refer to the following paragraphs of this judgment. 9. First of all from the perusal of the impugned order passed by the Collector cum District Magistrate of Bhojpur District it would transpire that he has basically found the declaration of the age by the appellant-writ petitioner to be false and infact based on her incorrect declaration of the date of birth as recorded in her Madhyama Certificate and in this regard he has proceeded to hold that the appellant-writ petitioner, had suppressed her real age as would be evidenced from the following operative portion of his order: ^^-----------mi;qZDr rdksaZ ds vk/kkj ij ;g izekf.kr gks tkrk gS fd vkosfndk }kjk viuk lgh mez fNik;k x;k gSA muds }kjk xyr mez izek.k i= nkf[ky fd;k x;k gSA mlh vk/kkj ij iwoZ esa mudk p;u vkazxuokM+h lsfodk ds in ij gqvk FkkA ftls rRdkyhu ftyk inkf/kdkjh] Hkkstiqj }kjk j} fd;k tk pqdk gSA mDr vkns'k esa fdlh izdkj ds jQkscny ;k ifjorZu dh vko';drk ugha gSA bl izdkj vkosfndk ds vkosnu i= dks vLohd`r fd;k tkrk gSA vxj ehuk nsoh dks izf'k{k.k ugha fnyk;k x;k gks rks 'kh?kz fnyk;k tk;A bl izdkj bl okn dk fujLrkj fd;k tkrk gSA………** - 7 - 10. It is also clear from the reading of the impugned order that for reaching to the aforementioned conclusion the Collector cum District Magistrate, Bhojpur has taken only the following two circumstances into consideration, namely, (i) The date of birth of the appellant- writ petitioner as recorded in her Madhyama certificate issued by the Bihar Sanskrit Shiksha Board being 10.1.1984 and that of her son Vikash Kumar being 5.3.1993, it was apparent that the appellant- writ petitioner had got a false and incorrect age recorded in her Madhyama certificate. (ii) The name of the appellant- writ petitioner had figured in the voter list of the year 1995 showing her to be the wife of Harendra Kumar Singh and aged about 22 years which by itself was sufficient to falsify the plea of appellant- writ petitioner that the said son Vikash Kumar was born from the first marriage of her husband Harendra Kumar Singh with Uma Kumari and that she was only the second wife of Harendra Kumar Singh and was married to him in the year 1997 after the death Uma Kumari specially when she had failed to produce the death certificate of Uma Kumari. - 8 - 11. Counsel for the appellant- writ petitioner has, therefore, submitted that a delicate and intricate issue of determination of age of the appellant and declaration that her date of birth as recorded in Madhyama Certificate was false has been decided by the Collector of the district in a slip slod manner and infact on mere his assumptions. He has also submitted that at least on the basis of date of birth of Vikash Kumar and/or entry in the voter list such crucial issue of age of the appellant and also as to whether she was the first or the second wife of Harendra Kumar Singh could/should not have been decided by the District Magistrate, Bhojpur. Counsel in this context had also emphasised that whatever reason has been given in the impugned order by the District Magistrate cum Collector of the District is based on his mere ipsi dixit only with a view to reiterate/reaffirm his earlier decision and order by hook or crook. 12. Counsel for the State, on the other hand, while supporting the impugned order passed by the learned Single Judge approving the order of the Collector cum District Magistrate, Bhojpur had submitted that the same was based on objective consideration of the Collector who had before him the report of the C.D.P.O. as also the - 9 - voter list of 1995 showing appellant to be aged about 22 years and as such the conclusion arrived by him that the appellant had got her age falsely recorded in her Madhyama Certificate was well supported and proved from the documents. 13. This Court having given anxious consideration to the aforementioned submissions as also the materials on record would find that somehow the procedure laid down by the Government for removal of a selected Anganwari Sevika, who had already completed the training and had been working on the post was not followed in letter and spirit. In this context from the guideline issued by the State Government under the signature of the Secretary of Welfare Department of the Government of Bihar, it would be found that Clause 8 lays down the manner of conducting a proceeding in case of detection of any irregularity in the selection/ appointment on the post of Anganwari Sevika. The relevant portion of Clause 8 is extracted hereinbelow: p;u laca/kh vfu;ferrk ij dkjZokbZ& ¼d½ lsfodk@lgkf;dk ds p;u esa cjrh xbZ fdlh Hkh vfu;ferrk ds laca/k esa vkjksi i= izkIr gksus ij [kkl O;fDr }kjk ¼fo/kk;d@lkaln dks NksM+dj½ vius uke@irk ds lkFk rFkk 'kiFk i= ¼uksVjh dk½ ds ek/;e ls lefiZr - 10 - djus ij mDr tkap&iM+rky ftyk inkf/kdkjh vFkok muds funsZ'k ij vuqeaMy inkf/kdkjh@ftyk dY;k.k@izksxzke inkf/kdkjh vFkok vuqeaMy inkf/kdkjh Lrj ls vU;wu Lrj ds inkf/kdkjh }kjk dh tk;sxhA ¼ [k½ uke ds lkFk xzkeh.k turk dk izkIr f'kdk;r i= ij Hkh tkap mi;qZDr foHkkxh; i= ds vkyksd esa fd;k tk;sxkA ¼ x½ xqeuke f'kdk;r i= ij fdlh izkdj dh tkap dh vko';drk ugha gksxhA vkjksiksa dh tkap lHkh lac} i{ksa ds le{k dh tk;sxh rFkk tkap ds dze esa vxj ;g ik;k tkrk gS fd ljdkj }kjk fuxZr fn'kk funsZ'kksa rFkk fu;qfDr ds fy;s fu/kkZfjr vgZrk@'kRkksZ dk mYya?ku dj p;u fd;k x;k gS rks%& ¼ 1½ ;fn lsfodk@lgkf;dk ds p;u dk dk;Z iw.kZ dj fy;k x;k gks ysfdu mls izf'k{k.k gsrq ukekadu i= fuxZr ugha fd;k x;k gS] ¼2½ ;fn p;fur lsfodk@lgkf;dk dks izf'k{k.k laca/kh ukekadu i= fuxZr dj fn;k x;k gS ysfdu og vizf'kf{kr gS] ¼ 3½ ;fn ukekafdr lsfodk@lgkf;dk dks izf'k{k.k esa Hkst fn;k x;k gS ;k izf'k{k.kksijkar p;u i= fuxZr dj fn;k x;k gS rFkk muds }kjk vkaxuckM+h dsUnz lapkfyr fd;k tk jgk gS rks bl ekeys esa tkap inkf/kdkjh lHkh lk{;ksa ds lkFk mUgsa p;u eqDr djus dk izLrko ftyk inkf/kdkjh dks nsaxsA ftyk inkf/kdkjh ,sls ekeys esa lacaf/kr i{kksa dks fof/kor lqudj ,oa lHkh rF;ksa@tkap izfrosnu ds vkyksd esa ,d ekg ds vanj eq[kj vkns'k (Speaking order) ikfjr djsaxsA vkjksi izekf.kr gksus ij ukekadu i= j| djrs gq, ftyk inkf/kdkjh lHkh rF;ksa ds lkFk lacaf/kr xzke iapk;r ds eqf[k;k dks lwfpr djsaxs fd os ljdkjh funsZ'k@ekin.Mksa - 11 - ds vkyksd esa lgh O;fDr dk p;u djsaA lkFk gh os lacaf/kr cky fodkl ifj;kstuk inkf/kdkjh dks ekxZnf'kZdk ds dafMdk 6 ds rgr p;u dh izfdz;k izkjEHk djus dk funsZ'k nsaxsaA tkap iwjh gksus ,oa p;ueqDr djus laca/kh dkjZokbZ ds fu"iknu rd dsUnz fdz;k'khy jgsxkA ¼ 4½ lsfodk@lgkf;dk }kjk LosPNk ls viuk R;kx i= fn;k tkrk gS ¼ 5½ ;fn mi;qZDr dafMdk 6 ,oa 8¼1½¼2½¼3½¼4½ esa of.kZr fn'kk@funsZ'kksa ds vuq:i vke lHkk dk vk;kstu ugha fd;k tkrk gS** 14. Thus from perusal of the aforementioned Clause 8 of the guideline, it would become clear that if a complaint is made with regard to the selection on the post of Anganwari Sevika an enquiry has to be held and the person concerned if she has already been selected undergone the training and had started working as Anganwari Sevika, as the case in hand of the appellant- writ petitioner is, she has to be furnished all such materials including the complaint and the enquiry report which would be borne out also from Clause 10 of the guideline which reads as follows: ^^lsfodk@lgkf;dk dks p;u eqDr djuk& mijksDr dafMdk 8 ,oa 9 ds lanHkZ esa lsfodk@lgkf;dk dks p;u eqDr djus laca/kh izkIr izLrko ij ftyk inkf/kdkjh leh{kksijkUr lacaf/kr lsfodk@lgkf;dk dks - 12 - viuk i{k j[kus dk ekSdk nsus ds i'pkr p;u eqDr djus laca/kh eq[kj vkns'k (Speaking order) fuxZr djsaxsA** 15. Apparently in the present case when the Collector cum District Magistrate of Bhojpur District by the order in the note sheet of the file had passed an order on 16.10.2007 for removal, no such procedure was followed, inasmuch as it appears that some sub-ordinate authority to the Collector of the District on receipt of an ex-parte enquiry report of C.D.P.O. had submitted a proposal for cancellation of selection and appointment of the appellant- writ petitioner as would be evidenced from the portion of the noting of the file being part of Annexure 5 which was supplied to the appellant- writ petitioner under the Right to Information Act. Annexure 5 reads as follows: ftyk inkf/kdkjh mi;qZDr dk;kZy; fVIi.kh dks d`i;k voyksdu djuk pkgsaxsA ;g ekeyk] xM+guh ifj;kstuk ds vUrZxr] xzke iapk;r cM+kSjk ds igjiqj Vksyk fLFkr vkaxuckM+h dsUnz ds fy;s p;fur lsfodk] Jherh euksjek nsoh }kjk mez fNikdj p;fur gksus ds lEcU/k esa] cky fodkl ifj;kstuk inkf/kdkjh] xM+guh }kjk izfrosnu izkIr gSA - 13 - izfrosnu esa Li"Vr% mYys[k fd;k x;k gS fd] p;fur lsfodk dh tUe frfFk 10-10-84 gS] rFkk lsfodk ds iq= dk tUe frfFk 8-10-92 gSA bl izdkj p;fur lsfodk ,oa mlds iq= ds mez esa ek= 7 o"kZ] X;kjg ekg 28 fnu dk vUrj gS tks Lor% vlaHko izrhr gksrk gSa ,slh ifjfLFkfr esa mDr lsfodk dk p;u jn~n fd;k tk ldrk gSA d`i;k vkns'kkFkZ g0@& vLi"V fnukad 16-10-07 ;FkizLrkfor g0@& vLi"V fnukad 17-10-07 lgk;d 16. From the perusal of the aforementioned note- sheet it is thus more than clear that the prescribed procedure for cancellation of selection of the appellant- writ petitioner on the post of Anganwari Sevika was not followed in the first instance and the order of the Collector dated 17.10.2007 in the file on the basis of which the appellant- writ petitioner was given the consequential order by the Child Development Project Officer on 23.11.2007 was rightly set aside by the Commissioner of the Division in exercise of his appellate power wherein he had held as follows:- - 14 - ^^3- nksuksa i{kksa dks lquus rFkk vihy vkosnu ds lkFk layXu dkxtkrksa ds voyksdu ds mijkUr eSa ikrk gwW fd bl ekeys esa vihydRrkZ dks p;ueqDr djus ds laca/k esa lesfdr cky fodkl lsok ;kstuk vUrxZr vkaxuckM+h lsfodk@lgkf;dk ds p;u laca/kh ekxZnf'kZdk] 2006 dh dafMdk 8 ,oa 10 esa fu/kkZfjr izfdz;k ds vuqlkj dkjZokbZ ugha dh x;h gSA 4- vr% mi;qZDr of.kZr ifjfLFkfr esa ftyk inkf/kdkjh] Hkkstiqj dk vkns'k tks cky fodkl ifj;kstuk inkf/kdkjh] xM+guh ¼Hkkstiqj½ ds vkns'k Kkikad 126 fnukad 23-11-2007 ls lalwfpr gS] dks fujLr fd;k tkrk gS rFkk bl ekeys dks ftyk inkf/kdkjh] Hkkstiqj dks remand djrs gq, funs'k fn;k tkrk gS fd os vihydRrkZ dks viuk i{k izLrqr djus gsrq lquokbZ dks ekSdk nsus ds mijkUr bl ekeys dk fu"iknu Speaking order ls bl vkns'k dh izfr dh izkfIr@miLFkkiu dh frfFk ls vf/kdre nks ekg ds Hkhrj djsaA** 17. Thus in view of the aforesaid operative portion of the appellate order as also Clause-8(ga) read with Clause-10 of the Guidelines, the Collector of the District, was required to at least apprise the appellant the nature of complaint received and enquired into by the C.D.P.O. as also the contents of enquiry report of C.D.P.O. and the copy of the voter list of 1995. It is however not in dispute that no documents/information was supplied by the Collector to the appellant at any stage. The prejudice - 15 - to the appellants on this score is also writ large on the face of record inasmuch as it would be found that while the date of birth of Vikash Kumar the alleged son of the appellant to be 5.3.1993 was made the basis by the Collector to hold that she had suppressed her age, the same authority in this earlier order passed in the notesheet of the file as per the report of the C.D.P.O. had recorded the 8.10.1992 to be the date of birth of Vikash Kumar. Obviously if the enquiry report or the other materials referred to and relied in the impugned order could have been furnished to the appellant- writ petitioner she could have understood the nature of allegation in its proper prospective and could have also explained her defence in an effective manner. Thus in absence of supply of the relevant complaint and its document to her including the enquiry report it was infact impossible for her to defend herself that her age recorded in her Madhyama Certificate was correct. That however was admittedly not done even after the order of the Divisional Commissioner and the Collector cum District Magistrate only after hearing the parties had passed the impugned order. In that view of the matter there would be no difficulty for this Court in holding that - 16 - Clause 8 and Clause 10 of the Guidelines, as quoted above, were not substantially complied in the case of the appellant- writ petitioner and the decision taken in the impugned order was vitiated once again on account of violation of the principle of natural justice. 18. This Court in fact is amazed with the logical skill of the Collector of the district who somehow has shifted the entire onus on the appellant- writ petitioner to prove that her age recorded in Madhyama certificate was correct, whereas the requirement of law was that such onus was to be discharged by the person alleging that the appellant- writ petitioner was aged more than 40 years on the date of her appointment and thus, disqualified on the date of her selection/ appointment as Anganwari Sevika and that she had suppressed such real age by giving a false certificate in support of her age. This Court would however find from the impugned order that the onus to prove that the appellant- writ petitioner had suppressed her real age, instead of being placed on the person who had brought such allegation, was shifted on the appellant who now was burdened with the onus to prove that her date of birth as recorded in her matriculation (Madhyama) Certificate was correct. It is - 17 - actually this perverse approach of the district Collector which has vitiated his decision making process and led to an obvious error in the impugned order. In the opinion of this court merely because the authentic document, matriculation certificate or its equivalent Madhyama certificate had recorded the age of the appellant- writ petitioner to be 10.10.1984, the same could not be doubted only on the basis that appellant- writ petitioner was the mother of Vikash Kumar whose date of birth in the school records was 5.3.1993 specially when there is nothing to prove that she was the real mother and not the step mother. 19. We are also of the view that the Collector of the district, who under the circumstances was called upon to only to decide as to whether the appellant was eligible in terms of age as laid down in the Guidelines, ought to have refrained himself in deciding the issues of the appellant-writ petitioner to be the first or second wife of Harendra Prasad Singh or being own or step mother of Vikash Kumar as vexatious questions of fact requiring leading and appreciation of evidence could not have been decided in a summary proceeding by the district Collector and that too only on the basis of school age - 18 - certificate of Vikash Kumar or the voter list of the year 1995. Such issues infact could be adjudicated by only the Civil Court and the district Collector, therefore, could have safely absolved himself only by confining his consideration as to whether the appellant in terms of the Guidelines was eligible in terms of her age. Admittedly the Collector has no power/jurisdiction to cancel or annul the matriculation (Madhyama) Certificate of the appellant including the entry with regard to her recorded date of birth inasmuch which invariably is based on the records of the school. The Collector therefore ought to have left the complainant to get it adjudicated by a competent civil court by way of a declaration that the date of birth of the appellant as recorded in her matriculation (Madhyama) Certificate was fake in view of the fact she was actually first wife of Harendra Prasad Singh and also the own mother of Vikash Kumar having his date of birth as 5.3.1993. 20. That apart, if the district Collector on the basis of the age of the appellant shown to be 22 years in the voters list of 1995 was of the opinion that she was born in or around 1973 and not on 10.10.1984 the date of birth as recorded in her Madhyama Certificate, he could - 19 - have got age of the appellant determined by the Civil Surgeon through the Medical Board by adopting the process of ossification test as is usually resorted to in case of dispute of age. It has to be kept in mind that even if the Collector’s own assumption on the basis of Electoral Roll of the year 1995 showing the appellant- writ petitioner 22 years is taken to its logical conclusion the age of the appellant-writ petitioner in that case also in the year 2007, when the appellant was appointed as Anganbari Sevika would be around 34 years only and that being not beyond the prescribed age of 40 years, the Collector of the District had to give the benefit of doubt to the appellant- writ petitioner. 21. The closed mind of the District Collector and his defiant attitude to stick to his earlier decision, already set aside by the appellate authority namely the Divisional Commissioner, is however clearly reflected from the operative portion of the impugned order wherein despite setting aside of his earlier order terminating of