IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 8851/2011 Judgment reserved on 27.10.2011. Date of decision: 11 .11. 2011 Pooja Devi …..Petitioner Versus State of H.P. and others. …..Respondents. Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ?1 yes For the Petitioner: Mr. Ashwani Pathak, Advocate. For the respondents: Mr. R.K. Bawa, Advocate General, with Mr. Ankush Sood, Addl. Advocate General and Mr. J.K. Verma, Dy. Advocate General, for respondent-State. Mr. Rajiv Rai, Advocate, for respondent No. 3. Justice Surinder Singh, Judge By means of present petition, the petitioner sought the following reliefs:- (i) That writ of certiorari and mandamus may kindly be issued and the impugned order passed by respondent No. 1,i.e., Divisional Commissioner, Mandi, dated 3.10.2011 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - vide Annexure P4, may kindly be quashed and set aside. (ii) That respondent No. 2 may kindly be directed to allow the petitioner to continue to work as Anganwari Worker in Anganwari Centre Bhapral, Tehsil Ghumarwin, District Bilaspur, H.P. 2. Facts giving rise to the present petition can be stated thus. As per scheme/guidelines issued by the State, the engagement of Anganwari workers/helper are to be made by a Selection Committee headed by the Sub-Divisional Officer (C) of the concerned Sub Division as the Chairman, the Child Development Project Officer (CDPO) and Tehsil Welfare Officer as its members. In the eligibility criteria laid therein, there are, inter alia, the conditions that those belonging to family which is legally separated as a separate family, as per procedure laid down in the Panchayati Raj Act and the Rules before 1.1.2004 and whose annual income does not exceed `12000/- by a certificate counter- signed by the officer not below the rank of Tehsildar. (ii). In the year 2007, there arose a vacancy of Anganwari Worker in Anganwari Centre Bhapral. Against that vacancy, five candidates, including the petitioner, 3rd respondent herein and one Smt. Soma - 3 - Devi applied for the said post. The petitioner herein obtained the highest marks, Soma Devi stood second and Kamlesh respondent obtained third position, as such 2nd respondent ordered for the appointment of petitioner as Anganwari Worker vide order dated 11.8.2007 (Annexure P1), which was challenged in appeal by 3rd respondent and Smt. Anju Devi, the another candidate, inter alia, on the ground that the petitioner has the registration of a Saw-mill in her name and she was allowed to shift it to her matrimonial place and further that she was accorded ‘no-objection certificate’ to open a Wood Sale depot in the name of Sanjeev Kumar her husband. That apart she was also paying LIC premium of ` 5102/- per annum (Annexure R3/5). Therefore, the income of the petitioner was more than the prescribed limit and the certificate of income furnished by her was wrong factually incorrect. (iii) Thus finding force in the contentions raised in appeal, the Deputy Commissioner, on the scrutiny of the record accepted the appeal vide order dated 28.9.2007 (Annexure R3). The selection of the petitioner was set aside. But the petitioner herein laid an unsuccessful challenge to it before the - 4 - Divisional Commissioner. Ultimately she filed CWP No. 1298/2008 in this Court which was disposed of with the direction to the appellate Authority to consider her case afresh in the light of the clarifications/directions/observations made in that order. (iv) The Deputy Commissioner, after remand of the case, assigned it to the Additional District Magistrate (ADM) Bilaspur for hearing and deciding the same in accordance with law. (v) During the course of hearing of the appeal, A.D.M gave opportunity to both the parties to file documents relating to their contentions. (v). The main issues which were contended before him remained same as before. Regarding separation of the family, a report was obtained from the BDO concerned vide letter dated 31.3.2011 which highlighted the illegality adopted by Panchayat Sahayak without any orders from the competent authority showing the family of the husband of the petitioner as separate unit in family register w.e.f. December, 2002 only on the basis of affidavit of Sh. Bansi Ram her father-in-law, attested by the Notary Public on 23.7.2002 without following the prescribed procedure. Thereafter Ration card - 5 - bearing Sr. No. 348 for the year 2003-2004 was also issued. Pertinently, BDO in his report stated that the procedure prescribed under Rule 21 (2) of the H.P. Panchayati Raj General Rules, 1997 was not followed. Though admitting this position, A.D.M conveniently ignored the fact and projected his own ethics saying that she or any other family member might not be in know of the procedure and cannot be blamed for adopting the incorrect procedure, but he forgot that the law was required to be followed by the public functionaries under the Act. (vi). With respect to the second issue relating to income certificate, he committed another illegality by relying upon the inquiry report already conducted by Naib Tehsildar on the complaint of 3rd respondent but ADM did not think it proper to get it re-verified from the Executive Magistrate despite the request already made by the 3rd respondent. But however, dismissed the appeal. (vii). 3rd respondent felt aggrieved by the order of A.D.M. thus preferred appeal No. 24 of 2011 before the Divisional Commissioner which succeeded on the ground that the legal procedure for separating the family was not adopted. - 6 - Therefore, the family of the petitioner and her husband cannot be treated to be separate. Thus taking it one unit, their in come was more than the prescribed limit. Further that the registration of the saw-mill was transferred in the name of the petitioner by the D.F.O concerned vide letter dated 28.9.2005 and on the perusal of the record he also came to the conclusion that her husband had applied to Pradhan Gram Panchayat for installing timber sale depot and this fact was apparent from the recommendations made in the resolution of the Panchayat dated 5.12.2006. Also that the father-in- law of the petitioner was a retiree, getting pension and as such the annual income of the family of the petitioner and her husband has been more than `12000/- per annum. (viii) Finding merit in the contention raised by 3rd respondent, the order of ADM upholding her selection was set aside by the Divisional Commissioner. Thus, 3rd respondent was ordered to be given appointment of Anganwari worker as Soma Devi who was second in merit had withdrawn from the race. 3. Again, feeling aggrieved by the order of the Divisional Commissioner, petitioner filed CWP No. - 7 - 370 of 2011 which was disposed of with consent of parties on 1.8.2011. While setting aside order dated 5.5.20111 (ananexureP6) a direction was issued to decide appeal after affording reasonable opportunity of hearing to both parties by a speaking order in a time bound manner (Annexure R3). 4. The Divisional Commissioner after reconsidering the matter and hearing the parties dismissed the appeal by a speaking order Annexure P4 dated 3.10.2011 which is now impugned in the present petition. 5. We have heard the learned counsel for the parties and have perused the requisite record placed before us by the respondents. 6. On perusal of entire record, we find great force and substance in the contentions raised by the 3rd respondent. The perusal of the record produced before us by the forest department and the documents annexed with the reply make a revealing story to us. In fact the saw-mill was owned by the father of petitioner. After his death, it was transferred in the name of the petitioner in the year 2005 on her request, she was permitted to shift near to her matrimonial home. Its renewal was also made after spot inspection in the year 2010 for a period of - 8 - five years. The petitioner contended that it was not in existence on the spot and refers to the report of Naib Tehsildar but the fact is that it stood in her name even now and report of Naib Tehsildar made in the year 2010 is of no consequence. The possibility of its renewal cannot be ruled out. The position has to be seen at the time of appointment in the year 2007. Although her husband sought employment on 17.1.2008 on contract basis as Trainer in COE Chamba but sale-depot was in his name . Further we also find that petitioner is paying LIC premium @ `5102/- per annum (Annexure R3/5). Her contention that it was being paid by her mother is devoid of any force. The Divisional Commissioner rightly observed in his order Annexure P/4 dated 26.4.2011 that the enquiry which was required to be conducted by the ADM per policy/guidelines as it existed at the time of appointment in the year 2007, was not done. 7. It is not out of place to mention here that at that time, i.e., in year 2007 “Himachal Pradesh Panchayati Raj (General) Rules, 1997” were in vogue. Chapter III thereof governs, the conduct of business, functions and powers of the Gram Panchayat. Section 21 thereof lays down the - 9 - procedure for maintaining Pariwar Register(s) etc. and sub-rule (2) of rule 21, ostensibly says that in the event of division of family, separation of family shall only be entered in the Pariwar Register on the recommendation of the BDO, given by him after due enquiry, pursuant to order thereon by the Sub- Divisional Officer (Civil) concerned. It shall also be the duty of the Panchayat Inspector to verify these entries after satisfying himself about the reasons recorded by the Panchayat Secretary and he shall also put his initials on the Goshwara prepared by Panchayat Secretary on Form 19-A appended to the Rules. But no such procedure has been complied with, which is certainly required to check unscrupulous and wrong entries made to ditch the authorities/public by ultimate beneficiaries in collusion with corrupt officials. 8. Further 4 (e) of the guidelines/Scheme of Anganwari Helpers/workers says that those belonging to a family which was legally separated as a separate family as per procedure laid down in the Panchayati Raj Act and Rules before 1st January, 2004 shall be construed a separate family. It appears that to meet this requirement a fraud was played in collusion with Panchayat Sahayak to show - 10 - it a separate family unit, ignoring the legal procedure. Thus, ADM was not justified in accepting the petitioner’s family as a separate Unit from her father-in-law Bansi Lal, a retiree getting monthly pension @ ` 16693/- (Annexure R3/7) which was patently and apparently illegal. Instead of lodging an enquiry against the Panchayat Secretary/ Sahayak for committing this illegality, he virtually tried to legalize the illegality, which is absolutely deplorable. 8. Thus keeping in view the above facts, we find that there is no error or illegality in the order dated 3.10.2011 Annexure P4 passed by the Divisional Commissioner. Consequently, the petition is dismissed and the interim orders dated 13.10.2011 passed by this Court are hereby vacated. The petitioner shall cease to work as Anganwari worker and the third respondent, the next eligible candidate shall be appointed forthwith. (Justice Kurian Joseph), Chief justice November 11, 2011 (Justice Surinder Singh), (cm) Judge.