Misc. Appeal No. 45 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3990 of 2013 ====================================================== Indu Kumari Wife Of Sri Shiv Kumar Verma Resident Of Village - Ganpat Bigha, P.S. - Hilsa, District - Nalanda .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Welfare Department, Govt. Of Bihar, Patna 2. Commissioner Patna Division, Patna 3. District Magistrate Nalanda At Biharsharif 4. District Programme Officer, Nalanda At Biharsharif 5. District Welfare Officer, Nalanda At Biharsharif 6. Child Development Project Officer, Hilsa, Nalanda 7. Sunita Kumari W/O Of Sri Dharmendra Kumar Resident Of Village Dayalpur, P.S. - Hilsa, District - Nalanda .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Pramod Kumar, Adv. For the Respondent/s : Mr. SC14 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA C.A.V. ORDER 4 03-07-2013 Heard counsel for the parties. 2. In this writ application the petitioner has prayed for the following relief: “(a) The order dated 25.2.2012 passed by the Commissioner, Patna Division, Patna in Misc. Appeal No. 45 of 2011 be quashed. (b) The order dated 9.12.2010 passed by the District Magistrate, Nalanda in Misc. Case No. 86 of 2009 be quashed. (C) The respondents be commanded/ directed to consider the case of the petitioner for her appointment to the post of anganwari Sevika and further to hold her earlier appointment by letter no.78 dated 11.9.2007 as legal and valid and continuity of service and other
Legal Reasoning
Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 2 financial benefits be allowed to the petitioner through out till date. (d) The order dated 13.1.2010 passed by the District Magistrate, Nalanda in misc. (Anganwari) Case No. 86 of 2009 be also quashed.”
Legal Reasoning
3. Learned counsel for the petitioner has submitted that the petitioner’s selection and appointment on the post of Anganwari Sevika in view of the decision taken by the Aam Sabha on 25.4.2007 could not have been disturbed, inasmuch as though the petitioner was placed at serial no.3 in the panel below one Mala Devi and Sunita Kumari (respondent no.7) but then as Mala Devi was found to be over-age and thus ineligible and the appointment of Sunita Kumari was not made on the ground of her producing forged Intermediate Examination certificate, the consequential appointment of the petitioner made on 25.4.2007 ought to have been not disturbed especially when she is a 1st Divisioner in Intermediate Examination. Learned counsel has also submitted that as a matter of fact respondent no.7 had produced her Intermediate certificate on 28.3.2007 through her husband which in course of verification was found to be false and forged. He has also explained that when Sunita Kumari (respondent no.7) had filed a writ application, C.W.J.C.No. 7188/2007 the respondents had filed their counter affidavit wherein it was stated Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 3 that the appointment of respondent no.7 could not be made because she had produced a forged certificate. In this background learned counsel has assailed the order passed by the Collector of Nalanda District dated 9.12.2010 wherein according to him the Collector had contrary to the materials on record gone to hold that respondent no.7 was only Matriculate and had never claimed to be Intermediate either in her application or even otherwise. He has also submitted that when the petitioner had filed an appeal against the aforementioned order of the Collector the appellate authority had given no reasons for dismissing the appeal. 4. Learned counsel for the respondents, on the other hand, has submitted that admittedly respondent no.7 was better in merits as compared to the petitioner on the basis of her Matriculation marks and when she had not even claimed in her application to have passed Intermediate Examination, there was no question of her producing a certificate of Intermediate Examination and as such, the view taken by the Collector would require no interference. 5. Having regard to the aforementioned issues raised by the learned counsel for both the parties this Court had thought it necessary to get the records of C.W.J.C.No. 7188/2007 filed by respondent no.7 and from its perusal it would become clear that Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 4 the application filed by respondent no.7 for the post of Anganwari Sevika on 9.2.2007 did not mention of respondent no.7 having passed Intermediate Examination, inasmuch as column of educational qualification which has been filled up by respondent no.7 only in respect of Matriculation leaving Intermediate, Graduation and Post-graduation blank. The enclosures also with the said application do not mention of Intermediate Examination undertaken by respondent no.7 in presence of authentic document (Annexure 6). This court therefore would find it difficult to accept the submission of the learned counsel for the petitioner that respondent no.7 had ever claimed to have passed Intermediate Examination so as to disqualify her on the ground of her producing forged Intermediate certificate. 6. It is true that a counter affidavit was filed in C.W.J.C.No. 7188/2007 but the respondents did not produce any document to show that the certificate of Intermediate Education was produced by respondent no.7. In fact the proceedings of the Gram Sabha has been enclosed as part of the counter affidavit to substantiate that aspect but then this Court by an order dated 26.11.2009 while disposing of C.W.J.C.No. 7188/2007 did not decide this question of fact and had directed only the Collector of the District to examine the original documents to find out as to Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 5 whether respondent no.7 had claimed to have passed Intermediate Examination and had produced her certificate which was found to be forged. Thus, whatever had been stated by the respondents in C.W.J.C.No. 7188/2007 cannot be held to be final and conclusive and it is in this respect that the finding of the Collector in his order dated 13.1.2010 passed in compliance of the order of this Court dated 26.11.2009 in C.W.J.C.No. 7188/2007 (filed by respondent no.7) assumes significance. The relevant portion of the said order reads as follows: ^^mijksDr of.kZr rF;ksa ij lE;d fopkjksijkar ;g fu"d"kZ fudyrk gS fd p;u lfefr }kjk vkosfndk ds vkosnu dks bUVj ds tkyh vad i= ij lefiZr djus ds vk/kkj ij mudk p;u j| fd;k x;k gS tcfd vkosfndk }kjk vkaxuokM+h lsfodk ds in ij p;u gsrq lefiZr vkosnu i= esa bUVj dk vad i= tek djus dk dksbZ mYys[k ugha ik;k x;k gSA bl izdkj vkosfndk dks es?kk lwph esa nwljs LFkku ij gksus ds dkj.k mudk p;u fd;k tkuk pkfg, FkkA ijarq p;u lfefr }kjk es?kk lwph esa rhljs LFkku ij vofLFkr bUnq dqekjh ifr f’ko dqekj oekZ xzke&x.kirfoxgk dk p;u fd;k x;k tks fu;elaxr ugha gSA vr% vkosfndk Jherh lquhrk dqekjh ifr /kesUnz dqekj xzke&x.kirfoxgk Fkkuk&fgylk ftyk ukyank ds vkosnu dks Lohd‘r fd;k tkrk gSA Jherh bUnw dqekjh ifr f’kodqekj oekZ xzke&x.kirfoxgk vkaxuokM+h lsfodk dk p;u tks iwoZ esa vU; vfu;ferrk ds vkjksi esa p;ueqDr fd;k tk pqdk gSA ftls lEiq"V fd;k tkrk gSa cky fodkl ifj;kstuk inkf/kdkjh] fgylk dks funs’k fn;k tkrk gS fd iwoZ esa izdkf’kr es?kk lwph dks vk/kkj ekurs gq, vkosfndk lquhrk dqekjh dks vkaxuokM+h lsfodk ds in ij fu;ekuqlkj cgky fd;k tk;A** Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 6 7. The aforementioned order dated 13.1.2010 having been passed by the Collector of Nalanda District the petitioner had moved this Court with a grievance that she was not heard by the Collector of the District while passing the order dated 13.1.2010 and as such, when this Court by an order dated 16.9.2010 in C.W.J.C.No. 15002/2010 had directed the Collector of the District to consider the grievance of the petitioner of not being heard, the Collector of the District had again examined the matter after giving notice to the petitioner as also respondent no.7 and had reiterated his order by holding that there was no question of appointment of the petitioner who was at serial no.3 of the panel, especially when respondent no.7 had never claimed to have passed the Intermediate Examination. It is against this order dated 9.12.2010 that the petitioner had again moved this Court in C.W.J.C.No. 1275/2011 and the same was disposed of by giving liberty to file an appeal against the order of the Collector. It is thereafter that the appellate order came to be passed on 25.2.2012 wherein the appeal of the petitioner has been rejected. 8. As this Court has found for itself from the verification of the records of C.W.J.C.No. 7188/2007 that in the original application filed by respondent no.7 for the post of Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 7 Anganwari Sevika she had never claimed to be Intermediate, the rest of the contention of the learned counsel for the petitioner that the mark-sheet or Intermediate certificate of respondent no.7 was forged has to be only noted for its being rejected. In fact the petitioner has produced an application of the husband of respondent no.7 dated 28.3.2007 addressed to the Child Development Project Officer which surprisingly does not mention even the name of respondent no.7. This Court in view of the counter affidavit filed by the Child Development Project Officer, Hilsa denying authenticity of Annexure 4 will have no option but to concur with the stand taken by the respondents that respondent no.7 had never produced the Intermediate certificate. In fact the following portion of paragraph no.6 of the counter affidavit: “6. The documents available on record were meticulously examined. It was found that respondent no.7 was wrongfully denied of her legitimate claim for being appointed as Sevika on the ground of forged intermediate certificate. In fact, respondent no.7 had not submitted intermediate certificate along with the application form. It was subsequently annexed with a view to debar respondent no.7 and to accommodate the petitioner.” read with the following portion of paragraph no.12 of the counter affidavit: Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 8 “12. That forged mark sheet of intermediate of respondent no.7 was deliberately annexed with the application form with a view to debar her candidature and to accommodate the petitioner who was placed at serial no.3 (behind respondent no.7) of the merit list. The petitioner somehow managed to get herself selected improperly.” which has also not been controverted by the petitioner in this case will leave now nothing more for being adjudicated, inasmuch as respondent no.7 even on the basis of her Matriculation marks is a better candidate and in fact was placed above the petitioner at serial no.2 in the panel. 9. This Court also does not find any merit in the submission of the learned counsel for the petitioner that under 2006 Guidelines since there was a provision for giving additional weightage to the candidates having higher qualification, respondent no.7 could have produced her Intermediate Examination certificate. In fact the alleged mark-sheet of respondent no.7 produced by the petitioner as Annexure 5 to the writ application being of the date of 31.5.2006 if respondent no.7 had not claimed in her application dated 9.2.2007 to have passed Intermediate examination the same could not be fastened on respondent no.7 to have been produced by her. There were many ways of eliminating the candidature on the post of Anganwari Patna High Court CWJC No.3990 of 2013 (4) dt.___-07-2013 9 Sevika and therefore, the possibility of producing such a forged mark-sheet by the petitioner who was the direct beneficiary of rejection of the case of respondent no.7 also cannot be ruled out as has been ultimately held by the Collector of the District on verification from the record. 10. Thus, this Court having given anxious consideration to all the aforementioned aspects is of the considered view that the justice has ultimately been done to respondent no.7, who was definitely a more meritorious candidate than the petitioner and had been also placed above in the panel at serial no.2 as against the petitioner being at serial no.3. Therefore, if respondent no.7 has been appointed and is continuing as Anganwari Sevika the petitioner can have now no grievance especially when she cannot outscore respondent no.7 on merit. 11. Thus, for the reasons indicated above, this Court does not find any merit in this application and the same is accordingly dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 3rd July 2013 N.A.F.R./surendra/-