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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
VIVEK AGARWAL, J.
Smt. Tulsa Bai Gond W/O Shri Ramnarayan Gond – Appellant
Versus
The State Of Madhya Pradesh Secretary Women And Child Development Deptt. (Madhya Pradesh) – Respondent
Writ Petition No. 4970 of 2014
Decided on : 25-01-2024
(1) Appointment -- Anganwadi Karyakarta -- office memorandum No./F3-2/06/50-2 dated 27.5.2006 issued by Women and Child Development Department -- Clause A-1(4) -- applicability of Draupati Tiwari’s case -- first part of ratio of law relating to person not falling within prohibited degrees of relationships mentioned in said office memorandum is binding on this Court inasmuch as that is the spirit of circular -- but second part of judgment holding that since Selection Committee or Committee constituted to decide objections does not constitute of a particular post bearer therefore even if person is related to such post bearer, it will not cause any prejudice in process of selection, is clearly obiter -- not binding on this Court for reason that office memorandum in question has not been set aside and circular is still in existence -- it is to be read as it is -- it cannot be given any interpretation other than what is intended by makers of policy -- giving some other interpretation is doing violence to principles of interpretation. (2014) 13 SCC 707 followed. 2013 (2) MPLJ 407 discussed. [Para 11]
(2) Interpretation of Statute -- office memorandum in question not set aside and circular still in existence -- it is to be read as it is -- it cannot be given any interpretation other than what is intended by makers of policy -- giving some other interpretation is doing violence to principles of interpretation. (2014) 13 SCC 707 followed. 2013 (2) MPLJ 407 discussed. [Para 11]
(3) Precedent -- “obiter dictum” -- is mere observation or remark made by Court by way of aside while deciding actual issue before it -- mere casual statement or observation which is not relevant, pertinent or essential to decide issue in hand does not form part of judgment of Court and has no authoritative value -- expression of personal view or opinion of Judge is just a casual remark made whilst deviating from answering actual issues pending before Court -- these casual remarks are considered or treated as beyond ambit of authoritative or operative part of judgment. (2014) 13 SCC 707 followed. [Para 12]
(4) Appointment -- Anganwadi Karyakarta -- word “or” used in Clause A-1(4) of Office Memorandum No./F3-2/06/50-2 dated 27.5.2006 issued by Women and Child Development Department -- intention of policy makers -- relationship to Government employee having direct or indirect relationship with selection process or elected or nominated members of Panchayat Raj institutions/local bodies, will be a disqualification -- thereafter, close relatives have been described -- respondent No. 6 falls within definition of close relative -- saying that close relative, i.e., husband of respondent No. 6 not being part of selection committee will not earn disqualification, will be contrary to spirit of said office memorandum -- unless that office memorandum is challenged and set aside, ratio of law laid down in case of Draupati Tiwari in second part of para 12 will have no application to facts of present case. (2000)1 SCC 426 and AIR 1968 SC 1450 followed. Principles of Statutory Interpretation (12th Edition 2010) by Jus. G.P. Singh relied on. 2013 (2) MPLJ 407 discussed. [Para 16]
¼1½ fu;qfä & vkaxuokM+h dk;ZdrkZ & efgyk rFkk cky fodkl foHkkx }kjk tkjh dk;kZy; Kkiu Øekad ,QŒ 3-2@06@50@2 fnukad 27-5-2006 ds [kaM vŒ1¼4½ & ækSirh frokjh dk ekeyk ykxw gksuk & mä dk;kZy; Kkiu esa mfYyf[kr ukrsnkjh ds vk/kkj ij çfrf"k) fMfx;ksa esa ugha vkus okys O;fä ls lacaf/kr fu.kZ;kèkkj dk çFke Hkkx bl U;k;ky; ij vkc)dj gS D;ksafd ;g ifji= dk Hkko gS & ijarq fu.kZ; dk f}rh; Hkkx ftlesa vfHkfu/kkZfjr fd;k x;k gS fd p;u lfefr vFkok vkifÙk;k¡ fofuf'pr djus ds fy, xfBr lfefr fdlh fof'k"V in/kkjd ls xfBr ugha gksrh blfy, O;fä ,sls in/kkjd dk ukrsnkj gks rc Hkh mlls p;u dh çfØ;k ij dksbZ çfrdwy çHkko ugha iM+sxk- Li"Vr% brjksfä gS & bl U;k;ky; ij bl dkj.k vkc)dj ugha fd ç'uxr dk;kZy; Kkiu vikLr ugha fd;k x;k vkSj ifji= vc Hkh vfLrRo esa gS & mls oSlk gh iढ+k & tkuk gksxk tSlk og gS & mldk fuoZpu mlls fHkUu ugha fd;k tk ldrk tks uhfr fuekZrkvksa }kjk vk'kf;r gS & vU; dksbZ fuoZpu djuk fuoZpu ds fl)karksa dk vfrØe.k djuk gSA ¼2014½ 13 ,llhlh 707 vuqlfjrA 2013 ¼2½ ,eih,yts 407 foosfprA ¼iSjk 11½
¼2½ fof/k dk fuoZpu & ç'uxr dk;kZy; Kkiu vikLr ugha vkSj ifji= vc Hkh vfLrRo esa & mls oSlk gh iढ+k tkuk gksxk tSlk og gS & mldk fuoZpu mlls fHkUu ugha fd;k tk ldrk] tks uhfr fuekZrkvksa }kjk vk'kf;r gS & vU; dksbZ fuoZpu djuk fuoZpu ds fl)karksa dk vfrØe.k djuk gSA ¼2014½ 13 ,llhlh 707 vuqlfjrA 2013 ¼2½ ,eih,yts 407 foosfprA ¼iSjk 11½
¼3½ iwoZ fu.kZ; & ^^brjksfä** & vius le{k okLrfod fook|d dk fofu'p; djrs le; U;k;ky; }kjk Loxr dh xbZ leqfä ;k fVIi.kh ek= gS & ,slk vkdfLed dFku ;k leqfä tks gLrxr fook|d fofuf'pr djus ds fy, lqlaxr] çklafxd ;k vfuok;Z ugha] U;k;ky; ds fu.kZ; dk Hkkx ugha gksrk vkSj mldk dksbZ çkf/k—r ewY; ugha gksrk & U;k;k/kh'k ds O;fäxr –f"Vdks.k ;k jk; dh vfHkO;fä- U;k;ky; ds le{k yafcr okLrfod fook|dksa dk mÙkj nsrs le; fopyu djds dh xbZ vkdfLed fVIi.kh ek= gS & bu vkdfLed fVIif.k;ksa dks fu.kZ; ds çkf/k—r ;k çorZu'khy Hkkx dh O;kfIr ds ijs le>k ;k ekuk tkrk gSA ¼2014½ 13 ,llhlh 707 vuqlfjrA ¼iSjk 12½
¼4½ fu;qfä & vkaxuokM+h dk;ZdrkZ & efgyk rFkk cky fodkl foHkkx }kjk tkjh dk;kZy; Kkiu Øekad ,QŒ 3-2@06@50@2 fnukad 27-5-2006 ds [kaM vŒ1¼4½ esa ç;qä 'kCn ^^vFkok** & uhfr fuekZrkvksa dk vk'k; & p;u çfØ;k ls vFkok iapk;r jkt laLFkkuksa@LFkkuh; fudk;ksa ds fuokZfpr ;k ukefufnZ"V lnL;ksa ls çR;{kr% ;k vçR;{kr% lacaf/kr ljdkjh deZpkjh ls ukrsnkjh] fujgZrk gksxh & rRi'pkr~ fudV ds ukrsnkjksa dk o.kZu fd;k x;k gS & çR;FkhZ Øekad 6 fudV ukrsnkj dh ifjHkk"kk esa vkrh gS & ;g dguk fd fudV ukrsnkj] vFkkZr~ çR;FkhZ Øekad 6 dk izfr] p;u lfefr dk Hkkx ugha gksus dkj.k fujgZrk vftZr ugha gksxh] mä dk;kZy; Kkiu ds Hkko ds çfrdwy gksxk & tc rd ml dk;kZy; Kkiu dks vk{ksfir vkSj vikLr ugha fd;k tkrk] ækSirh frokjh ds ekeys esa iSjk 12 ds f}rh; Hkkx esa vf/kdfFkr fu.kZ;k/kkj orZeku ekeys ds rF;ksa dks ykxw ugha gksxkA ¼2000½ 1 ,llhlh 426 rFkk ,vkbvkj 1968 ,llh 1450 vuqlfjrA U;kŒ thŒihŒ flag —r fçfUliYl v‚Q LVSP;wVjh baVjfçVs'ku ¼12o‚a laLdj.k 2010½ voyafcrA 2013 ¼2½ ,eih,yts 407 foosfprA ¼iSjk 16½
JUDGMENT :
This petition is filed being aggrieved of selection of respondent No.6 on the post of Anganwadi Karyakarta and the appeal which was filed before respondent No.2 Commissioner, Sagar Division, Sagar as was registered as Appeal No.269/A-89/2009-10 on 30.11.2013 rejected the petitioner's appeal, hence this writ petition.
2. On 21.04.2022, this Court had allowed the writ petition but the respondent No.6 herein had approached the Division Bench of this Court by filing W.A. No.533/2022 taking a ground that she was not given an opportunity of hearing and, therefore, Hon'ble Division Bench was pleased to remand the matter to the Single Bench. Hence this matter is taken up today.
3. Issue involved herein is that whether the respondent No.6 whose husband was admittedly a Panch at the time of her making an application for appointment as Anganwadi Karyakarta at Anganwadi Kendra, Chopra, Gram Panchayat Sakariya, District Panna was whether eligible for such appointment in terms of the stipulations contained in Office Memorandum No./F3-2/06/50-2 dated 27.05.2006 issued by the State of Madhya Pradesh Women and Child Development Department, Mantralay.
4. Petitioner's contention is that as per the requirements of eligibility for appointment as Anganwadi Karyakarta contained in the said Office Memorandum, Clause v-1(4) provides that ^^p;fur dh tkus okyh vkaxuckMh dk;ZdrkZ dh p;u izfdz;k ds izR;{k ;k vizR;{k laca/k j[kus okys ljdkjh vFkok iapk;rh jkt laLFkkvks@uxjh; fudk;ks ds fuokZfpr vFkok euksuhr lnL; vFkok mlds lxs laca/kh ugha gksuk pkfg;sA lxs laca/kh ls vfHkizk; gS fd 'kkldh; vf/kdkjh@deZpkjh ds firk&ekrk] HkkbZ&cgu] ifr&iRuh] iq=&iq=h] llqj&lkl] lkyk ¼cznj bu yk¡½] nkekn ¼lu bu yk¡½] iq= o/kqA^^
5. Thus, it is submitted that since husband of the respondent No.6 was an elected Panch of the same Gram Panchayat, therefore, she was not eligible to be appointed as Anganwadi Karyakarta.
6. Shri Devendra Kumar Tripathi, learned counsel for respondent No.6, in his turn, places reliance on a Division Bench decision of this Court in Draupathi Tiwari Vs. State of M.P. and others, 2013(2) MPLJ 407.
7. Reading from paragraph 12, it is submitted that Division Bench of this High Court has laid down a ratio which is having two folds bearing namely, to be disqualify a person, should be within the prohibited degrees as mentioned in the relevant clause extracted above.
In that case the candidate Draupati Tiwari's borther in law i.e. brother of the husband (Devar) was a Panchayat Karmi/Panchayat Secretary and, therefore, she having not fallen in the prohibited degree was held to be eligible.
8. It is further submitted by Shri Devendra Kumar Tripathi, learned counsel for respondent No.6, that Division Bench of the High Court has held that since Panchayat Karmi has no role in the selection of an Anganwadi Karyakarta, therefore, relationship with Anganwadi Karyakarta will not be a disqualification.
9. After hearing learned counsel for the parties and going through the record, it is evident that Division Bench did not quash the Office Memorandum dated 27.05.2006, though it was within its authority to have quashed the Office Memorandum dated 27.05.2006 on the ground that since Panchayat Karmi/Panchayat Secretary has no role in the selection disqualification prescribed in the said Office Memorandum is arbitrary or illegal.
10. However, it ventured to further held that since the process of selection provides for constitution of a committee under the Chairmanship of the Sub Divisional Officer of which the Child Development Project Officer is the Secretary and Chief Executive Officer of a Janpad Panchayat is one of the nominated members, if selection is made, another committee is constituted to decide the objections with respect to the preliminary selection which consists of the Chief Executive Officer of Jila Panchayat as President and District Programme Officer, Child Development Officer, President of the Women and Child Development Committee of Jila Panchayat and
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