Karnataka High Court
Rashmi W/O Shivappa Vandal vs Smt. Yallavva W/O Gangappa Wari on 20 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WA No. 100669 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO. 100669 OF 2023 (S-RES)
BETWEEN:
RASHMI W/O SHIVAPPA VANDAL
AGE. 25 YEARS, OCC. ANGANWADI WORKER,
R/O. AT. HIREGULBAL, TQ.DIST. BAGALKOT-587101
...APPELLANT
(BY SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
AND:
1. SMT. YALLAVVA W/O GANGAPPA WARI
AGE. 40 YEARS, OCC. NIL
R/O. AT. HIREGULBAL, TQ.DIST. BAGALKOT-587101
2. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF WOMEN AND CHILD WELFARE
M.S.BUILDING, BENGALURU-01
SHIVAKUMAR
HIREMATH 3. THE DEPUTY COMMISSIONER
BAGALKOT DISTRICT
Digitally signed by
SHIVAKUMAR NAVANAGAR, BAGALKOT-587101
HIREMATH
Date: 2023.12.22 4. THE DEPUTY COMMISSIONER
10:35:22 +0530
WOMEN AND CHILD DEVELOPMENT DEPARTMENT
NAVANAGAR, BAGALKOT-587101
5. THE WOMEN AND CHILD DEVELOPMENT OFFICER
BAGALKOT, SECTOR NO.18
NAVANAGAR
BAGALKOT-587101
...RESPONDENTS
(SRI. GIRISH A. YADAWAD, ADV. FOR R1;
SRI. G.K.HIREGOUDAR, GOVT. ADV. FOR R2 TO 5)
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WA No. 100669 of 2023
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO, SET-ASIDE
THE ORDER DATED 30/08/2023 PASSED BY LEARNED SINGLE JUDGE
IN W.P.NO.102135/2023 (GM RES) IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR PRELIMINAR HEARING, THIS
DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court appeal is filed by the respondent
No.5 before the Single Judge assailing the order dated
30.08.2023 passed in W.P.No.102135/2023, wherein the
writ petition filed by the respondent No.1 herein was
allowed by quashing the order dated 18.01.2023 passed
by 5th respondent herein and further directed to appoint
the respondent No.1 herein as a Anganwadi Worker if she
is otherwise eligible within four weeks.
2. The respondent No.1 has contended that, the
respondent-authorities have issued notification calling for
applications for appointment to the post of Anganwadi
Worker and pursuant to the said notification the
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respondent No.1 has submitted the online application
claiming a preferential appointment on the ground of
permanent physical disability. It is averred that, along with
the application all the documents including the disability
certificate was uploaded, however, the respondent No.5
published the provisional selection list on 20.09.2022
selecting the appellant as the Anangwadi Worker. It is
further submitted that, the respondent No.1 has filed
objections to the provisional selection list with a request to
reconsider the application of the respondent No.1 by
giving preference in view of her permanent disability. The
respondent-authorities without considering the objections
passed an order dated 18.01.2023 selecting the appellant
for the post of Anganwadi Worker on the ground that, the
disability certificate is not uploaded along with the
application. Considering the rival contentions, urged by the
parties learned Single Judge has allowed the writ petition.
Under such factual matrix, the present appeal is filed.
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3. Sri. Mallikarjunaswamy B. Hiremath, learned
counsel appearing for the appellant submits that, the order
of the learned Single Judge is contrary to the guidelines
issued for appointment of Anganwadi Worker. It is
submitted that, in terms of the guidelines governing the
appointment of Anganwadi Worker the disability should
not exceed 60% and if the disability is more than 60%
such a person cannot be appointed as a Anganwadi
Worker. It is further submitted that, the respondent No.1
has produced the disability certificate issued in the year
2016 which indicates that the respondent No.1 has
permanent physical disability to the extent of 46% by
suppressing the subsequent disability certificate obtained
by her on 17.01.2021 which indicates that the respondent
No.1 has 75% of permanent disability. It is also submitted
that, based on the disability certificate dated 17.01.2021
the respondent No.1 is receiving physical handicapped
pension of Rs.1,400/- every month and by suppressing all
these facts the writ petition was filed and learned Single
Judge has proceeded to allow the writ petition by directing
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the authorities to appoint the respondent No.1 as a
Anganwadi Worker.
4. Sri. G.K.Hiregoudar, learned Government
Advocate submits that, the respondent No.1 has
suppressed the material fact of disability certificate dated
17.01.2021 and has also suppressed the fact that, she is
receiving pension. Based on such certificate the learned
Single Judge has proceeded to pass the order directing the
authorities to appoint the respondent No.1 as a Anganwadi
Worker. He prays that the appeal may be allowed.
5. Per contra, Sri. Girish A. Yadwad, learned
counsel appearing for the contesting respondent No.1
submits that, there is no suppression of fact as contended
by the learned counsel for the appellant and Government
Advocate. It is submitted that, the certificate at Annexure-
A issued in the year 2016 clearly indicates that the
respondent No.1 has a permanent disability of 46% and
based on the said certificate she has filed an application to
be appointed as a Anganwadi Worker by providing
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preference to the physically handicapped candidate and
issuance of subsequent certificate by the authorities is
only for the purpose of pension and the subsequent
certificate dated 17.01.2021 indicates that, 75%
permanent physical disability is relating to her left leg and
not to the whole body. Hence, out of the 75% of the
disability 1/3rd has to be taken as a whole body disability
for the purpose of considering her eligibility to be
appointed as a Anganwadi Worker. Hence, he supports the
impugned order of the learned Single Judge and seeks
dismissal of the appeal. In support of his contention he
has placed reliance on the decision of the learned Single
Judge in W.P.No.73036/2012 dated 09.02.2017 and the
decision of the Division Bench in W.A.No.100166/2017
dated 17.02.2018 by contending that the disability
specified under the guidelines are only the preferential
disability and there is no hard and fast rule to select the
candidate who has the disability up to 60%.
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6. Having heard the learned counsel for the
appellant, learned counsel for the respondent No.1 and
learned Government for the respondent Nos.2 to 5.
Perused the material available on record.
7. The respondent-State Government has issued
notification for appointment for the post of Angnawadi
Worker/Helper on 29.7.2021 and pursuant to the said
notification the appellant as well as the respondent No.1
have filed an application to the said post. The respondent
No.1 has filed a writ petition on the ground that, her name
is not found in the selection list and her objection to the
provisional list was rejected on the ground that, she has
failed to upload the disability certificate. The learned
Single Judge has recorded the finding that, despite the
respondent No.1 suffering 46% of disability as per the
disability certificate dated 29.06.2016, the authorities
have failed to consider her candidature for appointment as
Anganwadi Worker/Helper by referring to the various
decisions of the Hon'ble Apex Court to the effect that, the
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authorities are not justified in denying the candidature on
curable defects by setting aside the impugned order dated
18.01.2023 and further directing to appoint the
respondent No.1 as Anganwadi Worker.
8. On perusal of the guidelines issued for selection
of Anganwadi Workers it is evident from clause 4 (ಋ)
that, the persons with disability up to 60% can apply for
the post of Anganwadi worker. Pursuant to the notification
the respondent No.1 has applied to the post of Anganwadi
worker and her claim was directed to be considered by the
learned Single Judge based on the disability certificate
issued by District Hospital, Bagalkote dated 20.09.2016 at
Annexure-A. On further perusal of the disability certificate
at Annexure-A it is evident that, the disability is shown as
Locomotor disability at 46%. The said disability certificate
indicates that the said certificate is valid for a particular
period, however, those columns of the disability certificate
are unfilled. Hence, it is unclear with regard to the validity
of the disability certificate at Annexure-A. The disability
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certificate of the respondent No.1 dated 17.01.2021
placed by the appellant along with the application for
production of additional document filed under Order XLI
Rule 27 of the Code of Civil Procedure, 1908 evidences
that, the disability certificate is issued by Department of
Empowerment of Persons with Disabilities, Ministry of
Social Justice and Empowerment, Government of India,
which indicates that the respondent No.1 suffers from
'Locomotor disability', the diagnosis in her case is PPRP Lt
lower limb, she has 75% permanent disability in relation
to her left leg as per the guidelines issued under RPWD
Act, 2016. Admittedly, the respondent No.1 was having
the disability certificate dated 17.01.2021 prior to the
filing of the application for appointment of Anganwadi
Worker/Helper. The sequence of event and the dates
clearly indicates that, the respondent No.1 has
conveniently suppressed the disability certificate dated
17.01.2021 before the authority as well as before the
learned Single Judge. If the respondent No.1 had placed
the disability certificate dated 17.01.2021 before the
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learned Single Judge, the out come of the writ petition
would have been different. The respondent having
obtained the disability certificate dated 17.01.2021 and
based on the said disability certificate she is receiving the
disability pension from 21.02.2020 as is evident from the
document No.3 filed along with an application for
additional document which further makes it clear that, the
respondent No.1 has suppressed the receipt of pension
based on the disability certificate dated 17.01.2021. This
Court deprecates the conduct of the respondent No.1 in
suppressing the vital document and relevant facts before
the learned Single Judge.
9. The learned counsel for the respondent No.1
has filed I.A.No.5/2023 seeking for appointment of
competent medical board as a Court Commissioner to
clinically examine the respondent No.1 and to submit the
report to this Court with regard to the percentage of
disability of the respondent No.1 and further contend that,
the disability of the respondent No.1 being seriously
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disputed by the authorities and the certificate dated
17.01.2021 indicates 75% of permanent disability in
relating to her left leg only, hence, the same cannot be
treated as permanent disability to the whole body. Such a
contention of the learned counsel for the respondent No.1
does not merit consideration in the absence of any
corroborative evidence on record. Neither this Court nor
the respondent No.1 has any expertise in the field of
determining the disability of the respondent No.1, as
already the competent authority has assessed the
disability of respondent No.1 and issued the certificate
dated 17.01.2021. The attempt of the respondent No.1,
seeking for appointment of the medical board as a Court
Commissioner to assess the disability cannot be accepted
as the competent authority under the provision of law has
issued the disability certificate dated 17.01.2021, hence,
this Court cannot sit as a appellate authority over the
authority which has issued the disability certificate dated
17.01.2021. There is no justification whatsoever to
disbelieve the disability certificate dated 17.01.2021 nor
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there is any necessity to re-assess the disability already
assessed by the competent Doctors. The assertion of the
respondent No.1 in the affidavit accompanying the
application has no basis and cannot be relied upon to
come to the conclusion that, the disability of 75% is only
to the lower leg and not to the whole body. Such a
exercise sought by the respondent No.1 is impermissible
under Article 226 of the Constitution of India. Hence, there
is no merit in the application filed by the respondent No.1.
The further contention of the respondent No.1 to consider
1/3rd of 75% disability as a whole body disability by
holding the respondent No.1 as eligible to appoint the
Anganwadi Worker/Helper does not merit consideration in
view of the reasons stated supra. This Court cannot apply
any such unscientific yardstick in assessing the disability
at 1/3rd of the assessed disability of 75% by experts.
10. The further contention of the learned counsel
for the respondent No.1 that, the guidelines for
appointment of Anganwadi worker with the condition for
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providing preference to the disabled candidate is only a
directory in nature and not mandatory is required to be
rejected. He has placed reliance on the decision of the
learned single Judge in W.P.No.73036/2012 which has
been affirmed by the Division Bench in Writ Appeal
No.100166/2017 would not come to the aid of the
respondent No.1 as the observation of the learned single
Judge in the aforesaid Judgment makes passing reference
and the learned Single Judge has dismissed the writ
petition mainly on the ground that, the selected candidate
was working for more than six years and it would not be
appropriate to disturb her appointment at this length of
time. Similarly the Division Bench has taken note of the
length of service of the selected candidate and dismissed
the appeal. Clause 4 of the aforesaid guideline clearly
indicates the object and reason for stipulation of up to
60% disability is with an intention to ensure the efficiency
of work. This Court does not wish to add its wisdom to the
wisdom of the selecting authority in stipulation of condition
or by treating the guidelines to be directory. Admittedly in
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the instant case there is no challenge to the guideline.
Hence, on this ground also the appeal is required to be
allowed.
11. It will be useful to refer the decision of the
Hon'ble Supreme Court in the case of Bhaskar Laxman
Jadhav and others Vs. Karamveer Kakasaheb Wagh
Education Society and others, reported in (2013) 11
SCC 531, paragraph Nos.42 to 46 reads thus;
"Suppression of fact:
42. While dealing with the conduct of the parties, we may
also notice the submission of learned counsel for
respondent No.1 to the effect that the petitioners are guilty
of suppression of a material fact from this Court, namely,
the rejection on 2nd May 2003 of the first application for
extension of time filed by the trustees and the finality
attached to it. These facts have not been clearly disclosed
to this Court by the petitioners. It was submitted that in
view of the suppression, special leave to appeal should not
be granted to the petitioners.
43. Learned counsel for the petitioners submitted that no
material facts have been withheld from this Court. It was
submitted that while the order dated 2nd May 2003 was
undoubtedly not filed, its existence was not material in
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view of subsequent developments that had taken place. We
cannot agree.
44. It is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the
obligation of a litigant to disclose all the facts of a case and
leave the decision making to the Court. True, there is a
mention of the order dated 2nd May 2003 in the order
dated 24th July 2006 passed by the JCC, but that is not
enough disclosure. The petitioners have not clearly
disclosed the facts and circumstances in which the order
dated 2nd May 2003 was passed or that it has attained
finality.
45. We may only refer to two cases on this subject. In Hari
Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on
litigants eschewing inaccurate, untrue or misleading
statements, otherwise leave granted to an appellant may
be revoked. It was observed as follows:
"......It is of utmost importance that in making material
statements and setting forth grounds in applications for
special leave, care must be taken not to make any
statements which are inaccurate, untrue or misleading. In
dealing with applications for special leave, the Court
naturally takes statements of fact and grounds of fact
contained in the petitions at their face value and it would
be unfair to betray the confidence of the Court by making
statements which are untrue and misleading. That is why
we have come to the conclusion that in the present case,
special leave granted to the appellant ought to be revoked.
Accordingly, special leave is revoked and the appeal is
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dismissed. The appellant will pay the costs of the
respondent."
46. More recently, in Ramjas Foundation v. Union of India,
(2010) 14 SCC 38 the case law on the subject was
discussed. It was held that if a litigant does not come to
the Court with clean hands, he is not entitled to be heard
and indeed, such a person is not entitled to any relief from
any judicial forum. It was said:
"The principle that a person who does not come to the
court with clean hands is not entitled to be heard on the
merits of his grievance and, in any case, such person is not
entitled to any relief is applicable not only to the petitions
filed under Articles 32, 226 and 136 of the Constitution but
also to the cases instituted in others courts and judicial
forums. The object underlying the principle is that every
court is not only entitled but is duty bound to protect itself
from unscrupulous litigants who do not have any respect
for truth and who try to pollute the stream of justice by
resorting to falsehood or by making misstatement or by
suppressing facts which have a bearing on adjudication of
the issue(s) arising in the case."
In the case of Ramjas Foundation and another
Vs. Union of India and others, reported in (2010) 14
SCC 38, paragraph No.21 reads thus;
"21. The principle that a person who does not come
to the Court with clean hands is not entitled to be heard on
the merits of his grievance and, in any case, such person is
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not entitled to any relief is applicable not only to the
petitions filed under Articles 32, 226 and 136 of the
Constitution but also to the cases instituted in others courts
and judicial forums. The object underlying the principle is
that every Court is not only entitled but is duty bound to
protect itself from unscrupulous litigants who do not have
any respect for truth and who try to pollute the stream of
justice by resorting to falsehood or by making
misstatement or by suppressing facts which have bearing
on adjudication of the issue(s) arising in the case."
12. The Hon'ble Supreme Court in the aforesaid
decision has held that, the conduct of the party by
suppression of material fact from the Court and
approaching the Court with unclean hand does not entitle
any discretionary relief under Article 226 of the
Constitution of India.
13. In the instant case, the respondent No.1 has
conveniently suppressed the material fact and the
documents before the learned Single Judge that and she
has obtained disability certificate dated 17.01.2021 which
is much prior to the last date for filing of an application for
the post of Anganwadi worker/Helper and based on such a
disability certificate the authorities have issued unique
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disability Identity Card which also indicates the disability
at 75% and based on the said disability certificate the
respondent No.1 is receiving the pension at the rate of
Rs.1,400/- from 19.02.2020 to till 17.11.2023. Taking into
account the disability of the respondent No.1 as per the
disability certificate dated 17.01.2021 this Court is of the
considered view that, the respondent No.1 is not eligible to
be appointed as a Anganwadi worker/Helper as per the
prevailing guidelines. This Court refrains itself from
imposing costs on the respondent No.1 for suppression of
material facts before the learned Single Judge only on the
ground that, the respondent No.1 is physically
handicapped candidate aspiring for an appointment.
14. For the aforementioned reasons, we proceed to
pass following:
ORDER
(i) The writ appeal is allowed;
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(ii) The impugned order of the learned
single Judge dated 30.08.2023 passed
in W.P.No.102135/2023 is set aside;
(iii) The respondent-authorities are directed
to appoint the appellant as a
Anganwadi worker as per the selection
list.
(iv) No orders as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
