Himachal Pradesh High Court
Kaushlya Devi vs Hansa Devi & Ors on 23 September, 2024
Author: M. S. Ramachandra Rao
Bench: M. S. Ramachandra Rao
( 2024:HHC:8961-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 106 of 2017.
.
Reserved on : 11th September, 2024.
Date of Decision : 23rd September, 2024.
Kaushlya Devi ....Appellant.
Versus
Hansa Devi & Ors. ....Respondents.
Coram:
The Hon'ble Mr. Justice M. S. Ramachandra Rao, Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? No.
For the Appellants: Mr. G.R. Palsra, Advocate.
For the Respondents: None for respondents no.1 and 4.
Mr. Pranay Pratap Singh, Additional
Advocate General for respondents no. 2
and 3.
Satyen Vaidya, Judge.
By way of instant Letters Patent Appeal, the appellant has
assailed judgment dated 24.08.2017 passed by learned Single Judge of
this Court in CWP No. 6234 of 2012, whereby the order dated
30.09.2011 passed by the Sub Divisional Collector, Chachoit at Gohar,
District Mandi in File No. 9 of 2011 along with inquiry report submitted
by Tehsildar Thunag, District Mandi have been quashed and the official
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respondents have been directed to dispense with the services of the
.
appellant herein as Anganwari Worker at Aganwari Centre Gad,
District Mandi, and to offer appointment to the person who was second
in the merit or in the alternative to fill up the post afresh after initiating
the process as per the guidelines.
2. Appellant was selected as Anganwari Worker at Anganwari
Centre Gad, District Mandi in August, 2007. Her appointment was
challenged by respondent No.1 by filing first appeal under
Scheme/Guidelines for engagement of Anganwari Worker (for short
"the scheme") before the Deputy Commissioner Mandi, which was
allowed vide order dated 9.6.2008 passed in case No.697 of 2007.
3. The appellant assailed the said order of Deputy
Commissioner by way of second appeal before the Divisional
Commissioner, Mandi under the provisions of the scheme. The
Divisional Commissioner Mandi allowed the appeal of the appellant by
setting aside the order passed by the Deputy Commissioner Mandi.
4. Aggrieved against the order passed by the Divisional
Commissioner, Mandi, respondent No.1 preferred Civil Writ Petition
No. 786 of 2009 before this Court. A large number of writ petitions had
filed in this Court assailing the orders of 1 st and 2nd Appellate Authorites
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under the scheme. Numerous issues had been raised by way of such
.
writ petitions. This Court vide judgment dated 17.05.02010 decided the
issues raised in the bunch of petitions with CWP No. 1096 of 2010,
titled Raksha Devi vs. State of H.P. and others as lead case. CWP No.
786 of 2009 filed by 1st respondent herein also was part of the above
mentioned bunch of Writ petitions.
5. One of the issue before this Court was with respect to the
income certificates produced before the authorities under the scheme by
the candidates seeking employment as Anganwari Workers. The
income of a candidate was one of the fixed criteria under the scheme.
Another issue was with respect to the family status of the candidate on a
fixed cut off date i.e. on 01.01.2004. Both these issues had co-relation
also.
6. This Court vide judgment dated 17.05.2010 while deciding
the issue regarding proof of income took notice of the fact that there
existed a mechanism which provided for the authority and procedure to
issue income certificate; that the income certificate so issued by the
competent authority was subject to challenge before the same authority,
which had been vested with jurisdiction to cancel the certificate, if
found to have been issued wrongly. This Court also noticed that instead
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of adjudication on the validity of the income certificate by the
.
competent authority, the Appellate Authority under the scheme had
conducted independent inquiry and had thereby arrived at the conclusion
that the certificate of income issued by the competent authority was not
proper.
7. In the above background, this Court remanded back all the
cases involving the above fact situation with direction to the Appellate
Authorities under the scheme to get the dispute as to the validity of
income certificate processed by the competent authority. It was further
directed that competent authority would afford an opportunity to the
affected party to participate in the proceedings. The Appellate
Authorities were directed to take further action in the appeals pending
before them subject to the outcome of action taken by the competent
authority on the income certificate already issued to the incumbent.
8. CWP No.786 of 2009 filed by the 1st respondent herein was
also remitted back in terms of above directions and thereafter inquiry
was conducted by the Tehsildar Thunag, District Mandi which
culminated into issuance of inquiry report favouring the appellant. This
inquiry report and the order of Sub Divisional Collector Chachoit,
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District Mandi affirming the said inquiry report in appeal were under
.
challenge before the learned Single Judge.
9. Learned Single Judge had quashed the inquiry report as
also the appellate order by holding that the said orders were in violation
of the provisions of the scheme and rather amounting to re-writing the
scheme. Learned Single Judge thereafter not only quashed the inquiry
report and the appellate order but also proceeded to set aside the
appointment of the appellant as Anganwari Worker by impliedly
quashing the income certificate issued in favour of the appellant by the
competent authority.
10. We have heard learned counsel for the parties and have also
gone through the entire record carefully.
11. Chapter 28 of the Himachal Pradesh Land Records Manual
1992 (for short "the Manual") contains provisions for grant and
cancellation etc. of the certificate of income. Clause 28.1 vests the
power to issue income certificate with the jurisdictional Tehsildar/Naib
Tehsildar.
12. Clause 28.20 deals with the cancellation of income
certificate issued under Clause 28.1. The power to cancel the income
certificate is also vested with the issuing authority, who after
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entertaining the belief either on a complaint or on receipt of information
.
from any source, that the certificate had been issued wrongly, may
cancel such certificate.
13. An appeal is provided under Clause 28.21, against the order
of cancellation, to the Sub Divisional Officer (C), who has power to
reverse or affirm the cancellation order.
14. It is not in dispute that the competent authority had issued
the income certificate in favour of the appellant on 15.05.2007. The
appellant had taken the benefit of said income certificate for the purpose
of securing appointment as Anganwari Worker. Admittedly, none had
challenged the validity of the income certificate issued in favour of the
appellant in terms of the provisions of Chapter 28 of the Himachal
Pradesh Land Records Manual.
15. It was only in appeal filed by 1st respondent under the
Scheme against the appointment of the appellant that the income
certificate issued by the competent authority in favour of the appellant
came to be challenged collaterally. The First Appellate Authority under
the scheme decided in favour of the 1st respondent and 2nd Appellate
Authority decided in favour of the appellant and finally the matter came
to be remitted back by this Court as noticed above.
...7... ( 2024:HHC:8961-DB )
16. The facts as detailed above, clearly reveal that there exists
.
two separate and independent branches, one dealing with the issuance
and cancellation of the income certificate and the other dealing with the
legality of the appointment to the post of Anganwari Worker under the
scheme. Both operate in their independent fields. The power and
jurisdiction of Appellate Authority under the scheme to deal with the
collateral challenge to the income certificate has already been dealt with
by this Court while delivering judgment dated 17.05.2010 in bunch of
matters with CWP No.1096 of 2010 as lead case and thereafter only the
matters were remitted to the appellate authorities.
17. In the facts of the case in hand, income certificate issued in
favour of the appellant on 15.05.2007 had not been challenged by
anyone in accordance with the procedure provided under Chapter 28 of
the H. P. Land Records Manual. The said certificate came to be
inquired by Tehsildar Thunag after remittance of CWP No. 786 of 2009
by this Court. Tehsildar Thunag after fact finding inquiry found the
certificate to have been rightly issued. No appeal could be filed against
said order as under Clause 28.21, the appeal could be preferred against
the order challenging the income certificate.
...8... ( 2024:HHC:8961-DB )
18. Learned Single Judge while passing the impugned
.
judgment did not consider that the inquiry conducted by Tehsildar
Thunag was in compliance to order passed by this Court, which had
further directed the Appellate Authority under the scheme to decide the
appeal by considering such report. Since, the inquiry so conducted by
Tehsildar Thunag was an outcome of the collateral challenge to the
income certificate in appeal filed under the scheme, the effect of such
inquiry report was to be adjudicated by the Appellate Authority under
the Scheme.
19. It also appears that the aspect of non availability of right of
appeal against the inquiry report of Tehsildar Thunag and consequently
the order passed on such appeal being without jurisdiction, was not
brought to the notice of the learned Single Judge.
20. The inquiry report as held above was to be considered by
the Appellate Authority under the scheme. Since, the disputed
questions of facts were also involved, the writ court, instead of delving
into such facts itself should have left the same to be decided by the
authorities vested with powers to do so. Rights available to the
appellant under the scheme have definitely been prejudiced by the
findings recorded in the impugned judgment.
...9... ( 2024:HHC:8961-DB )
21. In light of above discussion, the appeal is allowed;
.
Impugned judgment dated 24.08.2017 passed in CWP No. 6234 of 2012
is set aside. The parties shall be at liberty to raise all pleas before the
Appellate Authority under the scheme as available to them in
accordance with law. We were informed that the final decision in appeal
before appellate authority under the scheme has been delayed on
account of pendency of proceedings before this Court. We hope and
expect that the appellate authority will expedite the adjudication on the
appeal filed by the 1st respondent herein.
22. The appeal is accordingly disposed of, so also, the pending
applications, if any.
(M.S. Ramachandra Rao)
Chief Justice.
(Satyen Vaidya)
Judge
23rd September, 2024.
(jai)
