Smt. Anju Raikwar vs The State Of Madhya Pradesh
2023 Latest Caselaw 13456 MP

                             1                   WP No.4871/2021


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 18th OF AUGUST, 2023
              WRIT PETITION No.4871 of 2021
BETWEEN:-

SMT. ANJU RAIKWAR W/O SHRI PARMANAND
RAIKWAR, AGED ABOUT 23 YEARS, OCCUPATION:
MINI ANANGANWADHI WORKER R/O VILLAGE,
NARAYANPURA DHIMROLA, BLOCK-BALDEVGARH
DISTT. TIKAMGARH (MADHYA PRADESH)



                                                 .....PETITIONER
(BY SHRI SHRIKANT SHRIVASTAVA - ADVOCATE)

AND

1.    STATE OF MADHYA PRADESH THR THE
      PRINCIPAL SECRETARY OF WOMEN AND CHILD
      DEVELOPMENT VALLABH BHAWAN BHOPAL
      (MADHYA PRADESH)



2.    COMMISSIONER (REVENUE) SAGAR DIVISION
      SAGAR, SAGAR (MADHYA PRADESH)



3.    COLLECTOR TIKAMGARH DISTT. TIKAMGARH,
      (MADHYA PRADESH)



4.    PROJECT OFFICER WOMEN AND             CHILD
      DEVELOPMENT     DEPARTMENT            DISTT.
      TIKAMGARH (MADHYA PRADESH)
                                     2                      WP No.4871/2021



5.      CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
        DISTT. TIKAMGARH (MADHYA PRADESH)



6.      SMT. KUSUM RAJAK D/O DAYARAM RAJAK,
        VILLAGE      NARAYANPURA,      BLOCK
        BALDEVGARH, DISTT. TIKAMGARH (MADHYA
        PRADESH)



                                                        .....RESPONDENTS
(SHRI K.S. BAGHEL - GOVERNMENT ADVOCATE FOR RESPONDENTS
NOS.1 TO 5/STATE, SHRI PARAS NATH DAS - ADVOCATE FOR
RESPONDENT NO.6)
        This petition coming on for admission this day, the court passed the

ollowing:

                                   ORDER

This petition under Article 226 of Constitution of India has been filed against order dated 11.02.2021 passed by Additional Commissioner, Sagar Division, Sagar in Case No.1702/Appeal/A- 89/19-20 by which second appeal filed by petitioner against order of Collector, Tikamgarh has been rejected.

2. The facts necessary for disposal of present petition in short are that respondent No.5 issued an advertisement for the post of Mini Anganwadi Up-Karyakarta for Center of Village Narayanpur Dhimrola. Merit list was prepared and as per the said merit list, petitioner got 73.77 marks whereas respondent No.6 was awarded 58.33 marks and accordingly, petitioner was appointed on the said post by order dated 16.08.2019. Petitioner submitted her joining on 19.08.2019.

3. Being aggrieved by appointment of petitioner, respondent No.6 filed an appeal before Collector, Tikamgarh. Collector, Tikamgarh by

order dated 28.01.2020 passed in Appeal No.52/Appeal/2016-17 allowed the appeal and cancelled appointment of petitioner and directed for appointment of respondent No.6. In order to arrive at aforesaid conclusion it was held by Collector, Tikamgarh that award of 10 marks to petitioner for holding BPL card was erroneous and similarly respondent No.6 should have been awarded 10 marks being a deserted woman.

4. Being aggrieved by said order, petitioner preferred second appeal before Commissioner, Sagar Division, Sagar which has been dismissed by impugned order dated 11.02.2021.

5. Challenging the orders passed by Collector as well as Commissioner, Sagar Division, Sagar, it is submitted by counsel for petitioner that although respondent No.6 in her application had claimed herself to be a deserted woman, but did not file any document issued by competent authority alongwith her application. It appears that at a later stage she filed a copy of order dated 29.01.2015 passed by Principal Judge, Family Court, Tikamgarh in M.Cr.C. No.254/2014 by which she was awarded maintenance under Section 125 of Cr.P.C. It is submitted that since the aforesaid order was not filed alongwith application, therefore, Collector should not have considered the said document. To buttress his contention, counsel for petitioner has relied upon an order passed by Division Bench of this Court in the case of Smt. Anita Vs. State of Madhya Pradesh and others decided on 04.03.2022 in W.A. No.290/2019. It is further submitted that petitioner was wrongly denied 10 marks for not holding BPL card and accordingly, it is submitted that orders passed by Collector, Tikamgarh and Commissioner, Sagar Division, Sagar be quashed.

6. Per contra, it is submitted by counsel for respondents that filing of a document alongwith an application may not be fatal in case where circumstances/qualifications were already in existence on the last date for submission of application or the date of advertisement as it may be.

7. It is submitted by Shri Das that a coordinate Bench of this Court in the case of Smt. Jamna Vs. State of M.P. and others decided on 20.01.2022 in W.P. No.697/2022 has held that an order passed under Section 125 of Cr.P.C. is sufficient to hold that candidate was a deserted woman.

8. Heard learned counsel for parties.

9. Whether respondent No.6 was rightly awarded 10 marks being a deserted woman or not?

10. It is the case of petitioner that although respondent No.6 had claimed herself to be a deserted woman in her application for recruitment but she did not file a copy of any certificate issued by authority and an order under Section 125 of Cr.P.C. was submitted by her at a later stage and therefore, order under Section 125 of Cr.P.C. cannot be relied upon.

11. Supreme Court in the case of Dolly Chhanda Vs. Chairman, Jee and others reported in (2005) 9 SCC 779 has held as under:

7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are

documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure.

Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.

8. This principle was explained and applied in Charles K. Skaria v. Dr. C. Mathew [(1980) 2 SCC 752 : 1980 SCC (L&S) 305] . The controversy here related to admission to a postgraduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or subspecialty and this benefit could be given only if the candidate's success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in an authentic or acceptable manner. The prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their applications. Their admission to postgraduate course was set aside by the High Court on the ground that their applications, wherein they claimed the benefit of diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below: (SCC pp. 762 &

763) "20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum

of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. ... Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.

***

24. It is notorious that this formalistic, ritualistic approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative,

judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from overemphasis on the external rather than the essential. We think the Government and the Selection Committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like marklists from universities, why, even bail orders from courts and government orders from public offices."

(emphasis in original)

12. Thus, it is clear that non-filing of a document alongwith an application is not always fatal. Division Bench of this Court in the case of Smt. Anita (supra) has held that candidate was not holding the certificate of desertion on the last date of submission of application form but the said certificate was issued after 2 months from the last date for submission of application form. Therefore, it is clear that facts in the case of Smt. Anita (supra) are distinguishable.

13. The counsel for petitioner also could not point out name of any authority, who can issue a certificate of desertion under any statute/special statute.

14. In case of Smt. Anita (supra) the certificate was not in existence on the last date of submission of application form. However, in the present case, order under Section 125 of Cr.P.C. was passed by Principal Judge, Family Court, Tikamgarh on 29.01.2015 in M.Cr.C. No.254/2014 by which a monthly maintenance of Rs.2,000/- was awarded to respondent No.6. Principal Judge, Family Court had also

given a specific finding that respondent No.6 is residing separately because of reasonable reasons and she is unable to maintain herself. A finding was also given by Principal Judge, Family Court that no steps were taken by husband of respondent No.6 to bring her back. Thus, there was a judicial pronouncement by the Court of Principal Judge, Family Court, Tikamgarh in M.Cr.C. No.254/2014 that respondent No.6 is a deserted woman.

15. Under these circumstances, this Court is of considered opinion that merely because copy of order dated 29.01.2015 passed by Principal Judge, Family Court, Tikamgarh was filed at a later stage would not nullify the effect of said order and in light of judgment passed by Supreme Court in the case of Dolly Chhanda (supra), subsequently filed order under Section 125 of Cr.P.C. should have been considered and it was rightly taken note of by the Collector for awarding 10 marks to respondent No.6 being a deserted woman.

16. Whether petitioner was entitled for 10 marks for holding BPL card or not?

17. By referring to findings recorded by Commissioner, Sagar Division, Sagar, it is submitted by counsel for respondent No.6 that BPL card which was filed by petitioner alongwith her application was having overwriting and name of petitioner was subsequently added. Petitioner did not file any document to show that name of her husband or her name was added as per any procedure prescribed under the law.

18. From impugned order, it is clear that petitioner had also accepted in her written arguments that BPL card produced by her may be treated as suspicious. Collector Tikamgarh has also held that samagra I.D. of husband as well as petitioner were separate and different from other family members.

19. Under these circumstances, this Court is of considered opinion that deduction of 10 marks awarded to petitioner for holding BPL card cannot be said to be bad in law. Admittedly, after deducting 10 marks petitioner had got 63.77% marks whereas respondent No.6 after addition of 10 marks had got 68.33 marks and thus, respondent No.6 was rightly appointed on the post of Mini Anganwadi Up-Karyakarta for Center of Village Narayanpur (Dhimroula).

20. Accordingly, order dated 28.01.2020 passed by Collector, Tikamgarh in Appeal No.52/Appeal/2016-17 as well as order dated 11.02.2021 passed by Additional Commissioner, Sagar Division, Sagar in Case No.1702/Appeal/A-89/2019-20 are hereby affirmed.

21. Petition fails and is hereby dismissed with no order as to costs.

(G.S. AHLUWALIA) JUDGE vc

VARSHA CHOURASIYA 2023.08.18 19:19:38 +05'30'