Ramna Devi vs State Of H. P. & Ors

Tarlok Singh Chauhan, J

Aggrieved by the dismissal of the writ petition by the Writ Court, the appellant has filed the instant appeal.

The case has a chequered history. The appellant was appointed as Anganwari Worker on the strength of an Income Certificate No. 706/MC issued

in her favour by the concerned Tehsildar on 14.05.2007. The income depicted therein was Rs.7000/- per annum.

Respondent No. 5 assailed the selection/appointment of the appellant on the ground that the income certificate of the petitioner was not in

consonance with the law and facts inasmuch as, the appellant’s mother-in-law Smt. Hari Devi’s, income that was required to be included

while computing appellant’s income had not been taken into consideration.

During hearing of the appeal on 10.02.2010, the Appellate Court pursuant to judgment passed by learned Division Bench of this Court on

17.05.2010 in CWP No. 1096 of 2010, titled as Raksha Devi vs. State of H.P. (leading a bunch of writ petitions including CWP No. 1555 of 2010,

Ramna Devi vs. State of H.P.), directed the competent authority to enquire into the veracity of the Income Certificates issued to the parties as on the

relevant date.

In compliance to the aforesaid directions, the Tehsildar, Dehra, vide order dated 23.07.2011, verified the correctness of the income certificate

issued in favour of the appellant and respondent No. 5, to which there was no objection even by the appellant as reflected in the statement recorded to

this effect. Accordingly, there being no objection with regard to the veracity of income certificate of respondent No. 5, the order dated 23.07.2011

was affirmed.

However, the appeal filed against this order came to be allowed by the Sub Divisional Magistrate (SDM), Dehra on 26.12.2011 and the matter was

remanded back to the Tehsildar for afresh decision.

On remand, the Tehsildar, after examining the matter afresh, vide its order dated 07.08.2014, held that the appellant had not separated from her

mother- in- law in accordance with the procedure prescribed under Rule 21(2) of Himachal Pradesh Panchayati Raj (General) Rules, 1997 (for short

the ‘Rules’), as existed on the date of alleged separation and further held the deletion of the name of the mother-in-law of the appellant from

the ‘Pariwar Register’ to be illegal. It was further held that the pension of Smt. Hari Devi, mother-in-law of the appellant was required to be

included while computing the income of the appellant. Consequently, the certificate dated 14.05.2007, issued in favour of the appellant, reflecting the

annual income of the appellant as Rs.7000/- was ordered to be cancelled.

The oder so passed was unsuccessfully assailed before the SDM, Dehra, who vide his order dated 20.02.2017, dismissed the appeal filed by the

appellant.

The appellant thereafter filed CWP No. 1478 of 2017 before this Court assailing therein the order dated 20.02.2017 but the said petition was

withdrawn on 28.08.2017 with liberty to file afresh.

Thereafter CWP No. 2944 of 2017 was preferred by the appellant and the same came to be allowed by this Court vide order dated 10.12.2018

and the impugned order passed by the SDM was quashed and set aside on the basis of ‘mutually agreed terms’ between the parties. The SDM,

Dehra was directed to consider and decide the matter afresh on its own merits in accordance with law.

In compliance to the aforesaid directions, the SDM, Dehra, heard the matter and vide order dated 14.02.2019, reached at the same conclusion that

was drawn earlier vide order dated 20.02.2017, meaning thereby, that the order passed by the Tehsildar on 07.08.2014, cancelling the income

certificate of the appellant dated 14.05.2007, was upheld.

The appellant assailed the aforesaid order by filing CWP No. 683 of 2019 before the learned Writ Court, which came to be dismissed vide

impugned judgment dated 02.11.2020 and aggrieved thereby the appellant has filed the instant appeal.

Mr. Sanjeev Kumar Suri, Advocate, has vehemently argued that the pension of the mother-in-law of the appellant could not have been added to

the income of the appellant, as she had been separated from the family vide Resolution No. 2 passed by the Gram Panchayat. It was further argued

that the order passed by the SDM, Dehra was non-speaking one, therefore, the same ought to have been set aside on this ground alone. It was further

argued that it would be totally unjust to set aside the appointment of the appellant, which was made nearly one and half decades back.

We have heard learned counsel for the parties and have gone through the records of the case.

Coming to the first contention regarding the separation of the family, Rule 21(2) of the Himachal Pradesh Panchayati Raj (General) Rules, 1997

(for short the ‘Rules’), pertains to maintenance of Pariwar Register and Registration of Birth, Death and Marriages. It also lays down the

procedure to be followed in respect of separation of families. The Rule as it existed on the alleged dated i.e. 01.02.2002, reads as under:-

“21(2) At the close of each calendar year, the entries in the Pariwar Register, required to be prepared under sub-rule (1) shall be revised and all

entries pertaining to births, deaths and marriages shall be made in the register which had taken place during the preceding year i.e. upto the 31st day

of December. No other addition or alternation may be made without any authenticated evidence or certificate of the member of concerned

constituency of the Gram Panchayat. In the event of division of the family, separation of family shall only be entered in the Pariwar Register on the

recommendation of the Block Development Officer, given by him after due inquiry, and order thereon by SDO (Civil) concerned. It shall be the duty

of the Panchayat Inspector to verify these entries after satisfying himself about the reasons recorded by the Panchayat Secretary. He shall also put

his initials on the goshwara prepared by Panchayat Secretary on Form 19-A.â€​

The aforesaid Rule clearly provides that in the event of division of the family, the separation of family ‘shall only’ be entertained in the

Pariwar Register on the recommendation of the Block Development Officer after conducting due inquiry. It is only thereafter that an order can be

passed thereupon by the concerned Sub Divisional Officer (C), as held by the learned Division Bench of this Court in CWP No. 8851 of 2011, Pooja

Devi. Vs. State of H.P. and others, decided on 11.11.2011, wherein it was observed as under:-

“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

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.

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 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 @ Rs. 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.â€​

Indubitably, the mandatory procedure as prescribed in the Rules with respect to division of family has not been followed in the instant case. It is

well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all

and all other modes of performance are necessarily forbidden.

Equally settled is the preposition that when a procedure is laid down in the statute and there is no challenge to the said statutory procedure, the

Court should not, in the name of interpretation, lay down a procedure, which is contrary to the express statutory provision.

As observed above, the separation/deletion of the name of Smt. Hari Devi, mother-in- law of the appellant from her family was not in consonance

with the mandatory provision of the Rules. Therefore, in such circumstances, the appellant was not required to challenge Resolution No. 2 dated

01.02.2002, allegedly passed by the Gram Panchayat, regarding the separation of the family. Moreover, the cause of action for respondent No. 5 to

assail the selection/appointment of the appellant accrued not on the date of passing of the alleged Resolution dated 01.02.2002 but on the date of her

appointment as Anganwari Worker.

That apart, respondent No. 5, in an appeal against the selection/appointment of the appellant/petitioner had questioned the veracity of the income

certificate issued in favour of the appellant by specifically assailing therein that the pension received by the mother-in-law of the appellant Hari Devi

had to be included while computing the income of the appellant.

As regards the contention that the order passed by the SDM, Dehra, was a non-speaking one, the appellant had not argued this point before the

learned Writ Court and even otherwise it is too late in the day for the appellant to contend that the order passed by the SDM is non-speaking one.

That apart, the contention of the petitioner is otherwise factually incorrect as the order passed by the SDM is well reasoned order.

As regards the last contention, it is more than settled that when there is a conflict between law and equity, it is the law, which is to prevail. Equity

can only supplement the law, that too, when there is a gap in it, but under no circumstances can supplant the law.

Thus, equity considerations are not applicable in a case of clear statutory provisions nor are the Courts empowered to pass an order contrary to

law on the basis of ‘humanitarian consideration’ or other consideration.

As stated above, it is only when there is a gap in the law or there is any ambiguity in it, that equity can be applied. There is no gainsaying that even

if the law is hard, it is still the law.

In view of the aforesaid discussion and foregoing reasons, we find no merit in this appeal and the same is accordingly dismissed. Parties are left to

bear their own costs.