Smt. Savitari Devi vs State of H.P.

Justice V.K. Ahuja, J.—The petitioner, Savitari Devi has filed the present writ petition under Article 226 of the Constitution of India challenging the order dated 2.4.2010, Annexure P-1, passed by the learned ADM, Mandi, vide which he had accepted the appeal filed by the private respondent Vijay Raj Laxmi and set aside the selection of the petitioner to the post of Anganwari worker in Hansal Behna, P.O. Jamni, Tehsil Sarkaghat, Distt. Mandi, H.P. A notice of the petition was issued to the respondents, who filed the reply.

I have heard the learned counsel for the parties and have gone through the record of the case.

A perusal of order passed by the Deputy Commissioner, Mandi on 11.4.2008 Annexure P-2, shows that the appeal filed by the petitioner, Savitri Devi against the selection of private respondent as Anganwari worker was set-aside. It was directed that the Chief Development Project Officer, Gopalpur at Sarkaghat, Distt. Mandi will appoint next in merit.

An appeal was preferred by the private respondent against the above mentioned order Annexure P-2, and the learned Divisional Commissioner, Mandi dismissed the appeal filed by the private respondent and it was held that fresh interviews be held to the post, if there is no candidate next in merit. It was also observed till the appointment of new incumbent, private respondent Vijay Raj Laxmi, who was selected by the Selection Committee, shall continue the work as such. Thereafter, the petitioner, Savitri Devi was selected as Anganwari worker. The said order was challenged by the private respondent Vijay Raj Laxmi and the learned Additional District Magistrate vide order dated 2.4.2010 set-aside the appointment of the petitioner as Anganwari worker. Being aggrieved, the said order has been challenged by the petitioner, since there is no provision in the new Rules for an appeal before the Divisional Commissioner. It is clear that in passing the orders, the learned ADM had not relied upon the certificate of income of the petitioner as Rs. 11,200/- produced by her and also included a sum of Rs. 18,000/- as salary of the petitioner from the income which she earned as Anganwari worker and it was held that the total income of the petitioner comes to Rs. 29,200/-. A reference was also made to the income of husband of the petitioner by running fruit and vegetables shop for the last 14-15 years. In case, the certificate issued by the Executive Magistrate, in favour of the petitioner that she was earning having an income of Rs. 11,200/- was not relied upon, the steps should have been taken for cancellation of the said certificate before passing the impugned order until and unless the certificate of income produced by the petitioner was cancelled. The appointment could not have been set-aside by the learned ADM, Mandi.

The attention has been drawn to the decision of the Division Bench of this Court in similar case Raksha Devi Versus State of H.P. & others, 2010 (2) Him. L.R. (DB) 964, wherein, it was observed by the Division Bench that in case there is a computation of income was not properly made by the authority, who issued the certificate, there is a due process under the law by which such a certificate could have been cancelled after issuing notice to the affected party. It was also observed that in case the certificate is not based on proper computation of income, it will be open to the competent authority to take steps to cancel the same. Therefore, applying the above decision and the facts of the present case, it is desirable that an enquiry shall be got conducted by the learned ADM and the certificate of income if found incorrect, shall be liable to be cancelled after holding an enquiry and thereafter, the appeal shall be heard afresh by the learned ADM, Mandi.

During the course of arguments, objection has also been taken that the appeal was found beyond 15 days as provided in the earlier Rules and therefore, the learned ADM had no power to condone the delay in filing the appeal and passing the impugned order. The matter shall be considered by the learned ADM as per the policy and Rules prevalent at that time and he shall decide the question afresh in regard to the limitation also since under the previous Rules prior to the year 2009. There was no provision that the appeal had to be filed within 15 days and now the Rules have been changed and there has been change in the Rules which shall be considered by the learned ADM and then he shall decide the matter. The impugned order passed by the learned ADM is set-aside and the order of status quo shall be maintained as it exists today and in case, the petitioner had been working as Anganwari worker, she shall continue to hold the post till the order are set-aside in an appeal to be disposed of by the learned ADM afresh. The order dated 2.4.2010 is set-aside. The petition stands allowed accordingly. The question of the income of the private respondent also having been raised. The same shall also be considered by the learned ADM at the time of deciding the appeal as per Rules. Steps shall be taken by the learned ADM to decide the appeal as far as possible within a period of four months after calling the report of the Revenue Officer concerned, from the date the copy of order produced before him by either of the parties. The petition stands disposed of accordingly, so also the pending application(s), if any.