Kumari Anita @ Neetu vs State of M.P. & Anr.

This petition filed under Article 226 of the Constitution takes exception to the order passed by Additional Collector dated 13-01-2014, which is affirmed by learned Additional Commissioner on 16-03-2015.

Briefly stated, the facts are that the petitioner, respondent No.5 and other candidates submitted their candidature for the post of Anganwadi Worker in Gram Bandhiya, Tehsil & District Tikamgarh. The petitioner was appointed as Anganwadi Worker. This appointment of petitioner was challenged by private respondent by filing appeal before the Additional Collector. The Additional Collector allowed the appeal and said order dated 13.01.2014 got a stamp of approval from Additional Commissioner.

Shri Dinesh Upadhyay, learned counsel for the petitioner submits that under the relevant scheme of appointment of Anganwadi Worker, the candidate must be a local resident. The respondent No.5 obtained a local resident certificate dated 07-12-2007 from Tehsildar Tikamgarh. However, this order/certificate was set aside by Collector/C.E.O. Jila Panchayat Tikamgarh on 13-09-2011 (Annexure P/5). This, cancellation order was not put to test before any competent forum at any point of time. Thus, cancellation order dated 13-09-2011 had attained finality. Accordingly, respondent No.5, by no stretch of imagination, can not be treated to be a local resident. Since she is not a local resident, her candidature cannot be accepted. The learned Additional Collector and Additional Commissioner have erred in deciding the question of legality and validity of order dated 13-09-2011 (Annexure-P/5) in an appeal filed against the appointment of the petitioner. This is wholly impermissible and they have travelled beyond the relief claimed by the respondent No.5.

Shri Khare, learned counsel for the respondent No.5 supported the impugned orders and contended that the order dated 13-09-2011 was passed during "Jansunwai" without affording any opportunity to the respondent No.5. Thus, learned Collector and Additional Commissioner have not committed any error of law in disapproving the said order dated 13-09- 2011.

Shri Aseem Dixit, learned Government Advocate also supported the impugned orders.

No other point is pressed by the parties.

I have heard the parties at length and perused the record.

The admitted facts between the parties makes it clear that the local resident certificate of the respondent No.5 dated 07.12.2009 was nullified by the office of Collector on 13.09.2011 (Annexure-P/5). In the appeal preferred by the respondent No.5 before the Collector (Case No.24/appeal/2013-14), the respondent No.5 did not challenge the order dated 13.09.2011. She merely challenged the appointment of the petitioner. In other words,in her appeal no relief was claimed by the respondent No.5 against the order dated 13.09.2011 (Annexure-P/5). Even otherwise, under the scheme of Anganwadi Worker, the selection process and appointment order of Anganwadi Worker can be called in question before the Additional Collector. The Additional Collector is not equipped with any power whatsoever to nullify or declare an order of Collector/CEO whereby local resident certificate is disapproved by the said authority. In absence of any relief claimed and more particularly in absence of jurisdiction, the Additional Collector could not have declared the order dated 13.09.2011 as inoperative. In 2011 (3) SCC 436 [ State of Orissa & another vs. Mamata Mohanty ], the Apex Court held that the relief which is not claimed cannot be granted by the Court. If respondent No.5 was aggrieved by the order dated 13.09.2011, whereby her local resident certificate was nullified by the office of Collector, she could have assailed it in appropriate proceedings. In absence thereto, the said order will not become inoperative automatically. This is trite law that even a void order needs to be challenged in proper proceedings. The reference may be made to certain judgments of Supreme Court. The Apex Court in 1990 (1) SCC 234, [ Shiv Chander Kapoor vs. Amar Bose ] in this aspect has opined as under:

"''''void'' is meaningless in an absolute sense; and ''unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders''. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue"."

Further, the Apex Court in 1991 (4) SCC 1, [ State of Punjab vs. Gurdev Singh ], has opined as under:

"That a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith vs. East Elloe RDC [(1956) 1 All ER 855] wherein Lord Radcliffe observed: (AC pp. 76970)

"..... An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.""

Similarly, the Apex Court in 2004 (2) SCC 377, [ Sultan Sadik vs. Sanjay Raj Subha ] has opined as under:

"This Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity ----- i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity."

The Apex Court in 2011 3 SCC 363, [Krishnadevi Malchand Kamathi and other vs. Bombay Environment Action Group and others] has also held as under:

"It is settled legal proposition that even if an order is void, it requires to be so declared by a competent Forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In the State of Kerala v. M.K. Kunhikannan Nambiar Menjeri Manikoth Naduvil [(1996) 1 SCC 4365]; Tayabbhai M. Bagasarwalla v, Hind Rubber Industries Pvt. Ltd. [(1997) 3 SCC 443]; M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470]; and Sneh Gupta vs. Devi Sarup [(2009) 6 SCC 194], this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate Forum." Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration."

At the cost of repetition, in my view ,while hearing the appeal against appointment of an Anganwadi Worker, the learned Additional Collector and Additional Commissioner had no authority, jurisdiction and competence to nullify the order dated 13.09.2011 (Annexure-P/5). Moreso, when no challenge was made to the said order in the relief claimed in the memo of appeal. Thus, I find substances in the argument of the petitioner that the learned Additional Commissioner has committed an error in interfering with the cancellation of local resident certificate of the respondent No.5. The appellate authority has also committed an error in confirming the said order. For the reasons stated above, it is clear that since respondent No.5 was not a local resident because of cancellation of her local resident certificate by order dated 13.09.2011, her candidature qua petitioner cannot be directed to be considered. Resultantly, the impugned order dated 13.01.2014 (Annexure-P/2) and dated 16.05.2015 (Annexure- P/1) are set aside.

The petition is allowed. No cost.