Smt.Madhabi SahA. Vs. the State of West Bengal - Court Judgment

SooperKanoon Citationsooperkanoon.com/920336
SubjectFamily
CourtKolkata High Court
Decided OnJul-22-2011
Case NumberW. P. NO. 2139 (w) OF 2010; C.A.N NO. 7796 OF 2010
JudgePATHERYA, J.
ActsEvidence Act - Section 65
AppellantSmt.Madhabi SahA.
RespondentThe State of West Bengal
Appellant AdvocateMr. Swapan Kumar Mazumdar, Adv.
Respondent AdvocateMr. Kamalesh Jha, Adv.
Excerpt:
1. by this writ petition the petitioner seeks to quash the order dated 29th december, 2009 passed by the respondent no. 4, seeks on enquiry regarding the legality of the ration card of the private respondent so also to send the petitioner for training for the post of auxiliary nurse and midwife (anm). 2. the case of the petitioner is that the private respondent no. 9 is the daughter of the respondent no. 10. for the post of second anm advertisement was published and application invited for the concerned sub-centre. one of the criteria for the appointment was that the candidate would have to be the local resident of the sub-centre and in proof of the said criteria the epic card or ration card had to be produced. as the sub-centre in respect of which the dispute has arisen is in bablari gram panchayet the candidates would have to be the local resident of the said gram panchayat. in the panel prepared the petitioner has been placed at serial no. 2 while the private respondent no. 9 has been placed at serial no. 1. as the private respondent no. 9 though married does not satisfy the residential criteria therefore the name of the private respondent no. 9 ought to be deleted from the said panel. a complaint was lodged to the respondent no. 4 on 3rd september, 2009 as the private respondent no. 9 after her marriage does not reside in the said gram panchayet and has also withdrawn her ration card from the said gram panchayet on 23rd june 2008. this will not entitle her on the ground of residential criteria alone to be eligible for such appointment. she resides at ketugram since her marriage in 2002 and the advertisement was of 2008. on the basis of the complaint lodged by the petitioner, enquiry was held by the respondent no. 4, the complaint was rejected and selection of the private respondent was upheld. the said order dated 29th december, 2009 be set aside as it has failed to consider that the respondent no. 10 is the father of the respondent no. 9 and works as a “karmadhaksha” in nabadwip block panchayet samity therefore the respondent no. 9 cannot be selected nor can she be sent for training. as the ration card was withdrawn on 23rd june, 2008 from bablari gram panchayet and the advertisement was in july 2008, there has been noncompliance of residential status. no proper enquiry has been made before passing the order dated 29th december, 2009. the ration card, therefore of the respondent no. 9 cannot be relied on. as the petitioner on the other hand is a married woman of bablari gram panchayet and from the epic card and the ration card her residential status in the said gram panchayet are established, the same ought to have been considered. reliance is placed on 2007 11 scc 522 for the proposition that rules prevailing at the time of notification is to apply. any appointment which is contrary to guidelines is void as held in 2006 7 scc 161 and an illegal appointment cannot be the basis of allowing a wrong as held in 1996 2 scc 459. one who seeks equity must come with clean hands as held in 2007 12 scc 621 and air 1985 sc 1416. 3. from the affidavit filed in can 7796 of 2010 by the writ petitoner it will be evident that her ration card has been issued on 29th july 2008 after surrender on 23rd june, 2008. from the epic card disclosed in the affidavit filed by the private respondent to the writ petition it will appear that the same was issued in 2000 that is prior to her marriage in 2002 and the address given therein is of bablari. therefore the epic card cannot be relied on and the ration card ought to have been considered. the private respondent has been sent for provisional training on 20th january, 2009. for all the said reasons the order dated 29th december, 2009 set aside so also the provisional appointment of the private respondent as second anm. 4. counsel for the state respondents submits that the advertisement was issued on 28th july, 2008 inviting applications for the post of second anm. the two documents that were necessary to be produced for proof of residential status was the epic card or ration card and one of the documents showed that the private respondent was a resident of bablari gram panchayet. on the basis of such document she has been placed at serial no. 1 of the panel and sent for provisional training. 5. counsel for the private respondent no. 9 submits that the documents to be produced to evidence residential status were ration card or epic card. the selection process was initiated in july 2008 and as on merits the private respondent was better qualified than the petitioner she was considered for appointment. she resides with her father at bablari and in support of the same produced documents of residence before the adjudicating authority. a baby girl was born to the private respondent and from the immunization card it will be evident that the child has been immunized at bablari gram panchayet. the said documents were also produced and considered by the adjudicating authority. 6. therefore, the residential status of the petitioner cannot be doubted. as the father of the private respondent no. 9 is a cardiac patient the private respondent no. 9 resides at bablari to take care of her father after her mother’s demise and therefore is entitled to be appointed to the said post. the said has been enquired into by the adjudicating authority and no interference is called for with the order dated 29th december, 2009 and no order is warranted on this application. 7. counsel for the petitioner in reply submits guidelines is paramount to the advertisement and therefore, ought to have been followed. the proof of residential status are both epic and ration card and were to be produced. the last date for submission of the application was 29th august, 2008 and as guideline was available therefore, the same ought to have been relied on and not the advertisement as held in air (1988) sc 1274. section 65 of the evidence act be also considered so also air 2000 scc 2629 and air 2004 sc 1923. the adjudicating authority himself issued the guidelines and therefore could not have ignored the same or passed a contrary order. as two of the requisites was not complied with the application could not have been entertained. without withdrawing the guidelines the findings of the adjudicating authority is in abuse of power as the epic card does not show the marital status of the private respondent no.9, and the same cannot be considered. therefore the order of the adjudicating authority is bad in law and be set aside. reliance is placed on air 2006 sc 1584, air 2003 sc 578 and air 2008 sc 2796 for the principles of promissory estopple. for that there is an admission reliance is placed in 2005 5 scc 784, 2007 1 scc 457 and 2009 5 scc 296. 8. having considered the submissions of the parties the advertisement for appointment of second anm is dated 28th july 2008. the criteria which are necessary for consideration of an application are the residential criteria and the marital criteria. an applicant is to be a married woman, divorcee or separated. 9. she also had to be a resident of the gram panchayet in which the sub-centre was to be set-up and in proof of the residential status she had to produce the epic card or ration card. admittedly the private respondent is better qualified than the petitioner on merits. from a look at the epic card the private respondent undoubtedly is a resident of bablari gram panchayet but such epic card was issued on 14 july 2000. no copy of her ration card has been produced by the private respondent, on the other hand the petitioner has produced a certificate from the inspector (food and supply) nabadwip, nadia issued on 8th december, 2009 wherefrom it will appear that the private respondent had surrendered her ration card on 23rd june, 2008 due to marriage in burdwan. the number of the ration card has also been given therein and the sub-divisional controller of food and supply katwa has informed that the ration card has been issued in the name of the private respondent on 29th july, 2008 against surrender certificate dated 23rd june, 2008. therefore, prior to the advertisement on 28th july, 2008 the ration card was surrendered and a day thereafter the transferred ration card issued. in 2000 admittedly the private respondent no. 9 was unmarried and she resided with her parents at bablari. 10. after her marriage in 2002 and especially in view of the surrender of ration card on 23rd june 2008 it goes without saying that she was not residing in bablari. in fact the ration card was transferred on 29th july, 2008. this aspect ought to have been considered by the adjudicating authority at the time of hearing. in fact he has considered a copy of the child heath card issued by the bablari primary health sub-centre which is not a document required to be looked into as proof of residence. the bank pass book has also been relied on, so also the application form of 2005 each of which is not relevant while selecting candidate for the post of second anm. all that the adjudicating authority was required to do was to consider two documents viz the epic card and ration card, so also the question of surrender and transfer of ration card. 11. the epic card was issued much prior to the marriage of the private respondent in 2002. as the said was not considered the order of the adjudicating authority cannot be sustained and is set aside. 12. although the writ petitioner in the affidavit affirmed by her on 8th september, 2010 to can 7796 of 2010 has categorically mentioned surrender of ration card on 23rd june, 2008 the said remains uncontroverted by the private respondent no. 9 by non filing of reply and therefore the said fact has been accepted. 13. in view of the discussion made above the private respondent could not have been sent for training provisional or otherwise and accordingly the same is set aside. this order is passed as no purpose will be served in directing the authorities to once again consider the case of the private respondent no. 9. in view of the aforesaid this writ application is disposed off and can 7796 of 2010 dismissed.  
Judgment:

1. By this writ petition the petitioner seeks to quash the order dated 29th December, 2009 passed by the respondent no. 4, seeks on enquiry regarding the legality of the Ration Card of the private respondent so also to send the petitioner for training for the post of Auxiliary Nurse and Midwife (ANM).

2. The case of the petitioner is that the private Respondent no. 9 is the daughter of the Respondent no. 10. For the post of second ANM advertisement was published and application invited for the concerned Sub-Centre. One of the criteria for the appointment was that the candidate would have to be the local resident of the Sub-Centre and in proof of the said criteria the EPIC Card or Ration Card had to be produced. As the Sub-Centre in respect of which the dispute has arisen is in Bablari Gram Panchayet the candidates would have to be the local resident of the said Gram Panchayat. In the panel prepared the petitioner has been placed at serial no. 2 while the private Respondent no. 9 has been placed at serial no. 1. As the private Respondent no. 9 though married does not satisfy the residential criteria therefore the name of the private Respondent no. 9 ought to be deleted from the said panel. A complaint was lodged to the Respondent no. 4 on 3rd September, 2009 as the private Respondent no. 9 after her marriage does not reside in the said Gram Panchayet and has also withdrawn her Ration Card from the said Gram Panchayet on 23rd June 2008. This will not entitle her on the ground of residential criteria alone to be eligible for such appointment. She resides at Ketugram since her marriage in 2002 and the advertisement was of 2008. On the basis of the complaint lodged by the petitioner, enquiry was held by the Respondent no. 4, the complaint was rejected and selection of the private respondent was upheld. The said order dated 29th December, 2009 be set aside as it has failed to consider that the Respondent no. 10 is the father of the Respondent no. 9 and works as a “karmadhaksha” in Nabadwip Block Panchayet Samity therefore the Respondent no. 9 cannot be selected nor can she be sent for training. As the Ration Card was withdrawn on 23rd June, 2008 from Bablari Gram Panchayet and the advertisement was in July 2008, there has been noncompliance of residential status. No proper enquiry has been made before passing the order dated 29th December, 2009. The Ration Card, therefore of the Respondent no. 9 cannot be relied on. As the petitioner on the other hand is a married woman of Bablari Gram Panchayet and from the EPIC Card and the Ration Card her residential status in the said Gram Panchayet are established, the same ought to have been considered. Reliance is placed on 2007 11 SCC 522 for the proposition that Rules prevailing at the time of notification is to apply. Any appointment which is contrary to guidelines is void as held in 2006 7 SCC 161 and an illegal appointment cannot be the basis of allowing a wrong as held in 1996 2 SCC 459. One who seeks equity must come with clean hands as held in 2007 12 SCC 621 and AIR 1985 SC 1416.

3. From the affidavit filed in CAN 7796 of 2010 by the writ petitoner it will be evident that her Ration Card has been issued on 29th July 2008 after surrender on 23rd June, 2008. From the EPIC Card disclosed in the affidavit filed by the private respondent to the writ petition it will appear that the same was issued in 2000 that is prior to her marriage in 2002 and the address given therein is of Bablari. Therefore the EPIC Card cannot be relied on and the Ration Card ought to have been considered. The private respondent has been sent for provisional training on 20th January, 2009. For all the said reasons the order dated 29th December, 2009 set aside so also the provisional appointment of the private respondent as second ANM.

4. Counsel for the state respondents submits that the advertisement was issued on 28th July, 2008 inviting applications for the post of second ANM. The two documents that were necessary to be produced for proof of residential status was the EPIC Card or Ration Card and one of the documents showed that the private respondent was a resident of Bablari Gram Panchayet. On the basis of such document she has been placed at serial no. 1 of the panel and sent for provisional training.

5. Counsel for the private Respondent no. 9 submits that the documents to be produced to evidence residential status were Ration Card or EPIC Card. The selection process was initiated in July 2008 and as on merits the private respondent was better qualified than the petitioner she was considered for appointment. She resides with her father at Bablari and in support of the same produced documents of residence before the adjudicating authority. A baby girl was born to the private respondent and from the immunization card it will be evident that the child has been immunized at Bablari Gram Panchayet. The said documents were also produced and considered by the adjudicating authority.

6. Therefore, the residential status of the petitioner cannot be doubted. As the father of the private Respondent no. 9 is a cardiac patient the private respondent no. 9 resides at Bablari to take care of her father after her mother’s demise and therefore is entitled to be appointed to the said post. The said has been enquired into by the adjudicating authority and no interference is called for with the order dated 29th December, 2009 and no order is warranted on this application.

7. Counsel for the petitioner in reply submits guidelines is paramount to the advertisement and therefore, ought to have been followed. The proof of residential status are both EPIC and Ration Card and were to be produced. The last date for submission of the application was 29th August, 2008 and as guideline was available therefore, the same ought to have been relied on and not the advertisement as held in AIR (1988) SC 1274. Section 65 of the Evidence Act be also considered so also AIR 2000 SCC 2629 and AIR 2004 SC 1923. The adjudicating authority himself issued the guidelines and therefore could not have ignored the same or passed a contrary order. As two of the requisites was not complied with the application could not have been entertained. Without withdrawing the guidelines the findings of the adjudicating authority is in abuse of power as the EPIC Card does not show the marital status of the private respondent No.9, and the same cannot be considered. Therefore the order of the adjudicating authority is bad in law and be set aside. Reliance is placed on AIR 2006 SC 1584, AIR 2003 SC 578 and AIR 2008 SC 2796 for the principles of Promissory Estopple. For that there is an admission reliance is placed in 2005 5 SCC 784, 2007 1 SCC 457 and 2009 5 SCC 296.

8. Having considered the submissions of the parties the advertisement for appointment of second ANM is dated 28th July 2008. The criteria which are necessary for consideration of an application are the residential criteria and the marital criteria. An applicant is to be a married woman, divorcee or separated.

9. She also had to be a resident of the Gram Panchayet in which the Sub-Centre was to be set-up and in proof of the residential status she had to produce the EPIC Card or Ration Card. Admittedly the private respondent is better qualified than the petitioner on merits. From a look at the EPIC Card the private respondent undoubtedly is a resident of Bablari Gram Panchayet but such EPIC Card was issued on 14 July 2000. No copy of her Ration Card has been produced by the private respondent, on the other hand the petitioner has produced a certificate from the Inspector (Food and Supply) Nabadwip, Nadia issued on 8th December, 2009 wherefrom it will appear that the private respondent had surrendered her ration card on 23rd June, 2008 due to marriage in Burdwan. The number of the Ration Card has also been given therein and the Sub-Divisional Controller of Food and Supply Katwa has informed that the Ration Card has been issued in the name of the private respondent on 29th July, 2008 against surrender certificate dated 23rd June, 2008. Therefore, prior to the advertisement on 28th July, 2008 the Ration Card was surrendered and a day thereafter the transferred ration card issued. In 2000 admittedly the private Respondent no. 9 was unmarried and she resided with her parents at Bablari.

10. After her marriage in 2002 and especially in view of the surrender of ration card on 23rd June 2008 it goes without saying that she was not residing in Bablari. In fact the ration card was transferred on 29th July, 2008. This aspect ought to have been considered by the adjudicating authority at the time of hearing. In fact he has considered a copy of the child heath card issued by the Bablari Primary health Sub-Centre which is not a document required to be looked into as proof of residence. The Bank Pass Book has also been relied on, so also the application form of 2005 each of which is not relevant while selecting candidate for the post of second ANM. All that the adjudicating authority was required to do was to consider two documents viz the EPIC Card and Ration Card, so also the question of surrender and transfer of Ration Card.

11. The EPIC Card was issued much prior to the marriage of the private respondent in 2002. As the said was not considered the order of the adjudicating authority cannot be sustained and is set aside.

12. Although the writ petitioner in the affidavit affirmed by her on 8th September, 2010 to CAN 7796 of 2010 has categorically mentioned surrender of Ration Card on 23rd June, 2008 the said remains uncontroverted by the private Respondent no. 9 by non filing of reply and therefore the said fact has been accepted.

13. In view of the discussion made above the private respondent could not have been sent for training provisional or otherwise and accordingly the same is set aside. This order is passed as no purpose will be served in directing the authorities to once again consider the case of the private Respondent no. 9. In view of the aforesaid this writ application is disposed off and CAN 7796 of 2010 dismissed.