Madhya Pradesh High Court
Smt. Sudha Gupta W vs The State Of Madhya Pradesh on 2 August, 2024
1 WP-10040-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 2 nd OF AUGUST, 2024
WRIT PETITION No. 10040 of 2011
SMT. SUDHA GUPTA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Gopal Singh - Advocate for the petitioner.
Shri Kamal Nath Nayak - Panel Lawyer for the State.
Shri Rohit Sohgaura - Advocate for the respondent No.6.
ORDER
The present petition has been filed challenging the order Annexure P-
13 passed by the Additional Commissioner, whereby the order Annexure P-
10 dated 31.01.2011 passed by the Collector has been set aside.
2. Learned counsel for the petitioner has argued that the petitioner -
Smt. Sudha Gupta as well as the respondent No.6 - Smt. Rannu Gupta were
contenders for the same post of Aanganwari worker and as per the merit list
drawn by the authorities, the petitioner obtained 51.22 marks while the
respondent No.6 obtained 57.57 marks. It is contended that the respondent
No.6 was awarded 10 marks for being a deserted woman and 6 bonus marks
for having worked as Didi in Shishu Siksha Kendra.
3. Learned counsel for the petitioner by taking this Court through the
findings recorded by the Collector vide Annexure P-10 has argued that the
respondent No.6 got 10 bonus marks for being a deserted woman, but as
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recorded by the Collector in the order Annexure P-10, the first intimation of
her husband being missing since last 7 years was given only on 31.07.2009
and the period of 7 years was not over, which is mandatory in view of
Section 13(i)(vii) of Hindu Marriage Act. Thus, the Collector held that the
bonus marks of being a deserted woman were wrongly awarded to the
respondent No.6.
4. Learned counsel for the petitioner further submits by placing
reliance on documents Annexure P-18 filed along with I.A. No.10945/2024
that the name of the respondent No.6 was subsequently deleted from the BPL
list and therefore, the marks awarded to the respondent No.6 for being a
below poverty line candidate are also bad-in-law. Learned counsel for the
petitioner has further argued that the Collector has held that 6 marks for
having work as Didi were also wrongly awarded to the respondent No.6.
5. Per contra, it is argued by learned counsel for the respondent No.6
that the aspect of missing of the husband for more than 7 years in terms of
Section 13(i)(vii) of Hindu Marriage Act is relevant for the purpose of
decree of divorce or may be relevant for purpose of presumption of death of
the person. The respondent No.6 had submitted an application to the police
that her husband had gone out of village for earning livelihood, but has not
returned back till since last 7 years. Thus, the Collector has wrongly applied
the law relating to presumption of death and law relating to entitlement for
decree of divorce to hold that the respondent No.6 is not a deserted woman.
On the aspect of subsequent cancellation of BPL card vide Annexure P-18, it
was argued by learned counsel for the respondent No.6 that since the
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petitioner had entered employment as Aanganwari Worker, she started
earning salary and therefore, the BPL card was rightly cancelled on a
subsequent date, i.e. in the year 2015-16. The posts were advertised in the
year 2009 and the position of family income as on that date was relevant. It
was further argued by learned counsel for the respondent No.6 that the
Collector had also held the appointment of the respondent No.6 as Didi to be
proper, which is to be found at internal page Nos.3 and 4 of the order of the
Collector Annexure P-10. It is further argued by learned counsel for the
respondent No.6 by relying to page 12 of additional return that the petitioner
got order of getting name inserted in BPL list on 11.08.2009 and submitted
application form on 13.08.2009, but subsequently, the said order dated
11.08.2009 was set aside in appeal vide Annexure R-7 dated 30.11.2012,
which would relate back to 11.08.2009 and thus, as on 11.08.2009 the BPL
status of the petitioner has been wiped off and therefore, the petitioner also
was not entitled for BPL marks.
6. In rejoinder submission, it was contended by learned counsel for the
petitioner that as per the judgment of Division Bench of this Court reported
in Renu Vishwakarma v. Tulsi Vishwakarma, (2019) 3 MP LJ 51 , it has been
held that subsequent cancellation of BPL certificate is of no avail and the
position as on the date of application has to be seen.
7. Heard learned counsel for the parties.
8 . In the present case, the issue relates to granting 10 marks for
desertion to the respondent No.6, which were held to be illegal by the
Collector, but the said order was set aside in appeal by the Additional
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Commissioner. The Collector has adverted to the provisions of Hindu
Marriage Act, which relates to the opposite party to marriage having a right
to the decree of divorce on account of the spouse not being known as being
alive for a period of 7 years or more. The said provision is not at all relevant
for the purpose of desertion of wife. The Collector had committed illegality
in relying on a provision relating to divorce for the purpose of desertion.
Learned counsel for the petitioner was at loss to state that whether till date
the husband of the respondent No.6 has returned or that even as of now the
respondent No.6 is living along with her husband. Thus, no fault can be
found in the order of Additional Commissioner on that aspect.
9. The aspect of BPL marks was argued by rival parties at length. It is
evident that the petitioner got her name entered in the BPL list by order
dated 11.08.2009, which has been set aside in appeal on 30.12.2012. Thus,
the order dated 11.08.2009 having been set aside, it would relate back to
11.08.2009 and it is to be deemed that as on 11.08.2009 the name of
petitioner was not there in BPL list. Learned counsel for the petitioner when
faced with query of the Court whether the order dated 30.12.2012 passed in
appeal has been set aside in any appeal for revision etc., learned counsel for
the petitioner fairly admitted that the said order has not been reversed,
modified or set aside till date.
10. So far as the reliance placed in the case of Renu Vishwakarama
(supra) is concerned, the said case related to subsequent cancellation of a
BPL card, which was validly issued on a particular date. This judgment
would not apply to the petitioner, because her very issuance order has been
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set aside in appeal and it is not a case of subsequent cancellation, but the
initial certificate having been cancelled in appeal meaning thereby the
benefits drawn by the petitioner on the basis of initial certificate would get
wiped off. Thus, the petitioner is not entitled to get benefit of 10 bonus marks
of being a candidate of BPL category.
11. So far as the aspect of name of respondent No.6 having been
deleted from BPL list, the said issue is not at all relevant and in fact, the case
of the respondent No.6 is covered by the Division Bench judgment in the
case of Renu Vishwakarama, because her name has been subsequent deleted
on account of she having entered employment and getting salary.
12. So far as the respondent No.6 getting 6 bonus marks as Didi is
concerned, the said aspect was not upheld in favour of the petitioner even by
the Collector by order Annexure P-10, which was on other grounds in favour
of the petitioner. Thus, nothing has been brought on record to show that the
six additional marks given to the respondent No.6, for having worked as Didi
are illegal. Even otherwise, even deleting the marks earned by the respondent
No.6 for having worked as Didi, she would still remain above, the petitioner,
even if, the petitioner is treated to be a candidate of BPL category.
13. Consequently, no ground is made out for interference in the order
Annexure P-13 passed by the Additional Commissioner. The petition being
devoid of merits stands dismissed.
(VIVEK JAIN)
JUDGE
rj
