Kamla Devi vs State of H.P. and Others

Justice Dharam Chand Chaudhary, Judge

The petitioner feeling aggrieved and dissatisfied by Annexures P-4 and P-5, has approached this Court by filing the present writ petition for the following relief:- (i). That writ in the nature of mandamus may kindly be issued and the respondents No.3 to 5 may kindly be directed to hold proper enquiry qua the income of the petitioner and in the said enquiry, the disability pension of the family members of the petitioner and stipend of the petitioner and income of her sister-in-law who has married in the year 2006 may not be included in the income of the petitioner.

(ii) That writ in the nature of certiorari may kindly be issued and the impugned order dated 18.4.2011 passed by the Respondent No.5 Annexure P-4 and order dated 26.11.2011 passed by respondent No.3 Annexure P-5 may kindly be quashed and set aside since the respondent No.3 and 5 have included disability pension of the husband of the petitioner and father-in-law of the petitioner, stipend granted to the petitioner and the income of her sister-in-law in the income of the petitioner whereas, disability pension, stipend and earning of sister-in-law of the petitioner are not the actual income of the petitioner, the income of the petitioner is less than Rs. 8,000/-per year.

(iii) That writ in the nature of mandamus may kindly be issued and the respondents may kindly be directed to allow the petitioner to continue to work as Anganwari Worker in Anganwari Centre Awayer, P.O. Harabag, Tehsil Jogindernagar, District Mandi, H.P.

It is claimed that the calculation of income of the petitioner from all sources as Rs. 29720/-is without any basis and not supported by record. A sum of Rs. 6,000/-paid to her by the office of Tehsil Welfare Officer Jogindernagar as stipend during the period she had undergone Typing Course could have not been taken as income and added in the income of her family. Similarly the disability pension at the rate of Rs. 200/-each (total Rs. 400/-) paid to her husband and father in-law could have also not been taken as income. The income of her married sister-in-law is also stated to be erroneously counted for in the income of her family. It is also pointed out that the factum of her husband being suffering from disability to an extent of 85% and father in law to the extent of 70 % is erroneously ignored.

On 2.1.2012 following order was passed by this Court in this writ petition:-

... There will be a direction to respondents No.4 and 5 to file separate affidavits specifying the following aspects:

What is the basis of calculation of income, is it the financial year or it is 12 months proceeding the selection?

What is the income of the 6th respondent.

Whether stipend received for a few months would be part of the calculation of regular income of a person.

The affidavit as above, shall be filed within six weeks. Post on 13th March, 2012. In case the petitioner is working as on today, the said arrangement will continue for the time being.

...

Consequently the 5th respondent had filed the affidavit as ordered by this Court. It was stated that the income of the petitioner and her family from all sources was calculated in terms of the provisions contained in para 28.7 to 28.10 of the Himachal Pradesh Land Records Manual. Although the money received by any person as stipend can also be added in the income as per the provisions contained in Chapter 28.8 of the above manual yet even if a sum of Rs. 6,000/-, the amount of stipend received by the petitioner is excluded from the annual income in that event also her annual income at that time was Rs. 23,720/-.

After taking note of such contentions in the affidavit, on the last date of hearing, Learned Counsel representing the petitioner was allowed time to get instruction that the income of the petitioner was more than Rs. 23,000/-at the relevant time. Nothing in counter to the affidavit filed by the 5th respondent, however, has been brought on record.

It is in this backdrop that the fate of this petition is to be decided by this Court.

It will be seen from the impugned order Annexure P-4 that the 5th respondent after holding inquiry has arrived at a conclusion that the income of the petitioner from all sources was Rs. 29,720/-and that she had obtained the certificate (Annexure P-3) of her income from all sources to the tune of Rs. 8,000/-fraudulently and by way of concealment of material facts. On the basis of the inquiry conducted by the 5th respondent, the order Annexure P-4 was passed and a copy thereof endorsed to the 2nd respondent in response to letter No.MND-Superintendent-Peshi/2010-74 dated 28.2.2011. Meaning thereby that on the remand of the case by this Court, no decision has yet been taken by the 2nd respondent and it is only the verification of the income Annexure P-3, which has been got conducted from the 5th respondent. No doubt the petitioner has exhausted the remedy of appeal against the order passed by the 5th respondent by filing an appeal before the 3rd respondent, however, unsuccessfully. The fact thus remains that the 2nd respondent has not yet taken any decision in the matter on the basis of the order of Executive Magistrate Annexure P-4, which as a matter of fact has been passed on a reference made by the office of 2nd respondent pending decision of the case after its remand by this Court. In such a situation the appropriate course available to the petitioner was to have pursued the remedy available to her before the 2nd respondent instead of filing the present writ petition before this Court. She can raise all the points before the 2nd respondent and if still feel aggrieved and dissatisfied in any manner whatsoever to seek further remedy available to her in accordance with law.

In this view of the matter at this stage there is no need to enter into the controversy in this writ petition on merits and we deem it proper to dispose of the present writ petition with a direction to the petitioner to exhaust the remedy available to her by pursuing her appeal before the 2nd respondent.

In view of the above position, this petition is not maintainable at this stage and the same is accordingly dismissed. The petitioner, however, is at liberty to exhaust the remedy available to her in the light of the observation made hereinabove and in accordance with law. The Writ Petition is disposed of, so also the pending application(s), if any.