Ganesha Devi vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:-

1) “The orders dated 05.02.2013 (Annexure P-1), 25.10.2013 (Annexure P-2) and 14.11.2013 (Annexure P-3) may be ordered to be quashed and set aside by issuing a writ of certiorari.

2) That the writ of mandamus may also be issued with a direction to allow the petitioner to continue to work as Anganwari worker at Anganwari Center Bharsar, District Chamba.”

Brief facts necessary for the adjudication of this petition are that in a process that was initiated by the Department to fill up the post of Aaganwari Worker in Aaganwari Centre Bharsar, District Chamba, the petitioner and the private respondent participated in the said process. The process was initiated in the year 2007. The petitioner was successful in the process and was offered appointment.

To cut the controversy short, the appointment of the petitioner was assailed by the private respondent, which culminated into passing of impugned order Annexure P-2 by the Appellate Authority, which is dated 25.10.2013.

In terms of this order, the appointment of the petitioner has been set aside by the Appellate Authority, inter alia, on the ground that in order to verify the veracity of the income certificate of the petitioner as well as the private respondent, the matter was referred to Tehsildar, who in terms of his order Annexure P-1 dated 05.02.2013, held that the income certificate of both the petitioner as well as the private respondent were prepared on false facts and cancelled the certificate.

Record demonstrates that this petition was admitted on 13.03.2014. Thereafter, process was issued for the service of respondent No.5 and in terms of the order passed by this Court on 17.10.2014, the respondent No.5 stood duly served, but none appeared on her behalf.

Learned Senior Counsel for the petitioner argued that the order passed by the Appellate Authority as well as the order passed by the Tehsildar which stand impugned by way of this writ petition are not sustainable in the eyes of law. By referring to the order passed by the Tehsildar dated 05.02.2013 (Annexure P-1), learned Senior Counsel submitted that this order was cryptic, vague and not sustainable in the eyes of law. Learned Senior Counsel argued that in terms of this order, the income certificate issued to the petitioner was set aside, but, there is not even a whisper as to what actually as per the authority was the annual family income of the petitioner so as to render her ineligible to be considered for appointment against the post of Aanganwari Worker. Learned Senior Counsel submitted that minimum that was required to be done by the Tehsildar was that he should have had returned a positive finding about the total family income of the petitioner by substantiating the same with material on record. Learned Senior Counsel submitted that in the absence of this, the order passed by Tehsildar is bad in law. Learned Senior Counsel argued that this extremely important aspect of the matter stood ignored by the learned Appellate Authority while allowing the appeal. Learned Senior Counsel submitted that in the absence of their being any material on record that actually the family income of the petitioner was in excess, than, what was permitted by the policy, in terms whereof the petitioner was appointed as an Aaganwari Worker, the impugned order passed by the Appellate Authority was also bad and the same was liable to be set aside alongwith the order of termination.

On the other hand, learned Assistant Advocate General supported the order passed by the Authority and submitted that as in the course of the inquiry held by the Tehsildar, it was found that the husband of the petitioner was engaged as a labourer in a private company i.e., Gurucharan Industry Sanjauli, Shimla, therefore, the cancellation of the income certificate of the petitioner cannot be termed to be bad in law. He submitted that in the light of the order passed by the Tehsildar, as obviously, the income certificate on the strength whereof, the petitioner was given appointment stood cancelled, the Appellate Authority rightly set aside the appointment of the petitioner. Accordingly, he prayed that as there is no merit in the present petition, the same be dismissed.

I have heard learned Senior counsel for the petitioner as well as learned Assistant Advocate General and have also gone through the pleadings as well as the documents on record.

Before proceeding further, it is pertinent to mention at this stage itself that after the appointment of the petitioner as an Aaganwari Worker, she joined as such on 04..08.2007 and till date she is working as such. Before this Court, when this case was listed for the first time on 29.11.2013, the operation of order of termination Annexure P-3 dated 14.11.2013 was stayed by the Court.

It is not in dispute that the Appellate Authority allowed the appeal filed by the private respondent solely on the basis of the order passed by the Tehsildar. Learned Appellate Authority held that in the light of the fact that the income certificate on the basis of which the petitioner was offered appointment stood cancelled by the Tehsildar, therefore, the appointment of the petitioner was liable to be terminated. This demonstrates that the foundation of the order passed by the Appellate Authority is the order passed by the Tehsildar.

In this backdrop, if we peruse the order passed by the Tehsildar, one finds that in terms of said order i.e., Annexure P-1, the income certificate of the petitioner was cancelled by the Tehsildar by returning the findings that the petitioner had appeared before the Tehsildar, her statement stood recorded, and in terms of her statement, her husband was engaged in Gurucharan Industry Sanjauli as a labourer.

There is not even a whisper thereafter as to what was the income of the husband of the petitioner, how the engagement of the husband of the petitioner as a labourer with one Gurucharan Industry Sanjaul, rendered the income certificate issued in favour of the petitioner to be bad in law, because, this Court is of the considered view that the certificate could not have been cancelled only on the ground that the husband of the petitioner was engaged as a labourer in some industry. What was required from the Tehsildar was that the Authority should have returned findings to the effect that the husband of the petitioner was earning. Said amount should have been mentioned in the order and thereafter finding should have been returned that the income of the husband of the petitioner when added with the annual income reflected earlier, rendered the petitioner ineligible to be considered for the post of Aaganwari Worker. This Court does not know what wages were being earned by the husband of the petitioner. There is no finding returned by the Tehsildar that in fact while issuing the earlier income certificate, the income of the husband of the petitioner was not taken into consideration. These are the minimal findings which were required to be returned by a quasi- judicial authority when it was deciding the right of a party.

In the light of what has been observed hereinabove, this Court concurs with the submissions made by learned Senior Counsel for the petitioner that the order passed by the Tehsildar is vague and cryptic. In the absence of their being a definite finding returned in the impugned order mentioning therein as to what was the annual family income of the petitioner in the relevant year by adding the income of the husband of the petitioner, the Authority could not have had cancelled the earlier income certificate.

Therefore, this Court has no hesitation in holding that the order passed by the Tehsildar is non-est in the eyes of law and the same is hereby quashed and set aside. Now, as the foundation of the order passed by the Appellate Authority was the order passed by the Tehsildar which has been set aside by this Court, obviously, the appellate order is also not sustainable in the eyes of law and the same is also set aside alongwith the order of termination. As a consequence thereof, this petition is allowed and the impugned orders are set aside. Pending miscellaneous applications, if any, also stand disposed of.