# Smt. Nisha Devi v. State of U.P. and another

- **Citation:** (2012) 3 ILRA 1492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-08
- **Case number:** Civil Misc. Writ Petition No.34603 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nisha-devi-v-state-of-u-p-and-another-42334
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226cancellation
of
appointment
as
Anganwari Worker-G.O. Dated 16.12.03
relied-speaks the applicant should be
permanent
resident
of-same
village
where-Anganwari
Center
runningadmittedly petitioner belongs to another
village of same Nyay Panchayat-no scope
of alteration of mandatory conditions
regarding same village-held-cancellation
proper.

Held: Para-9

 In the present case the Government
order makes it very clear that the
incumbent, who does not belong to same
village in which the Anganbari Center is
running,
cannot
be
selected
and
appointed.
It
is
not
disputed
that
petitioner does not belong to the same
village but the village to which petitioner
is permanent resident is a part of Gram
Panchayat which includes the village in
which Anganbari Center is situated. That
being so, once it is admitted that
petitioner is not the permanent resident
of village in which Anganbari Center is
situated, in view of specific conditions
contained in Government Order dated
16.12.2003, the impugned order cannot
3 All] Smt. Nisha Devi V. State of U.P. and another

1493
be faulted and appointment of petitioner
cannot be said to be valid.
Case Law discussed:
JT 2006 (4) SC 531; 2007 (6) ADJ 272

## Text

1492 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

cannot afford and that the time so saved
can be utilised in deciding more effective
and meaningful litigation. This is a
common sense approach to the matter
based on ground of realities and bereft
of the technicalities of the law".

8. Considering the fact that the
subject matter of the FIR, subsequent
investigation, filing of the charge sheet
submitted by the police are in relation to
a matrimonial dispute between the
applicants and opposite party no. 2 and
the dispute now stands voluntarily,
mutually and amicably settled between
the
parties
vide
Joint
Settlement
Affidavit dated 18.4.2010. I see no
purpose in continuing the criminal
proceedings arising out of FIR in
question. Moreover the parties have also
obtained a decree of divorce and all the
disputes between them have come to an
end by mutual consent. The dispute
between the parties is of a purely
personal
nature.
After
compromise
between the parties, keeping the matter
alive with no possibility of a result in
favour of the prosecution is a luxury for
the Court.

9.

I,
therefore,
allow
the
application. The impugned charge-sheet
and entire proceedings in criminal case
no.16470 of 2009, under Sections 498A,
323, 504, 506 IPC and D.P. Act , State
Vs. Ajay Vir Singh & others, P.S. Kavi
Nagar, pending in the Court of C.J.M.
Ghaziabad are quashed and the matter
stands finally resolved in terms of
compromise.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.34603 of 2012

Smt. Nisha Devi

 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Ashish Srivastava

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226cancellation
of
appointment
as
Anganwari Worker-G.O. Dated 16.12.03
relied-speaks the applicant should be
permanent
resident
of-same
village
where-Anganwari
Center
runningadmittedly petitioner belongs to another
village of same Nyay Panchayat-no scope
of alteration of mandatory conditions
regarding same village-held-cancellation
proper.

Held: Para-9

 In the present case the Government
order makes it very clear that the
incumbent, who does not belong to same
village in which the Anganbari Center is
running,
cannot
be
selected
and
appointed.
It
is
not
disputed
that
petitioner does not belong to the same
village but the village to which petitioner
is permanent resident is a part of Gram
Panchayat which includes the village in
which Anganbari Center is situated. That
being so, once it is admitted that
petitioner is not the permanent resident
of village in which Anganbari Center is
situated, in view of specific conditions
contained in Government Order dated
16.12.2003, the impugned order cannot
3 All] Smt. Nisha Devi V. State of U.P. and another

1493
be faulted and appointment of petitioner
cannot be said to be valid.
Case Law discussed:
JT 2006 (4) SC 531; 2007 (6) ADJ 272

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition is directed
against the order dated 29.05.2012 passed
by District Magistrate, Kannauj cancelling
selection of petitioner Anganbari Sahayika
for Anganbari Centre Bhoramau, Gram
Sabha Kalsan, Tehsil Tirwa, District
Kannauj on the ground that she is not
permanent resident of said village hence
her selection and appointment would be in
the teeth of Government Order dated
16.12.2003.

2. Learned counsel for the petitioner
referred to the advertisement and said that
in case the candidate of same village is not
available, the candidate of Gram Panchayat
of which the village in question is part can
be considered.

3. Learned Standing Counsel,
however, has filed counter affidavit
placing on record the relevant Government
order pursuant whereto the selection in
question has been made, pointing out that
the condition, that incumbent must belong
to same village is mandatory. He refers to
para 3(a), (b), (c), (d), (e) and (f) thereof
and contended that there is no scope of
alteration of condition that the incumbent
must belong to same village otherwise the
selection and appointment, even if made,
would have to be cancelled.

4. The Government order goes to the
extent that in case after selection and
appointment the candidate has changed the
village for any reason whatsoever, the
appointment shall be cancelled.

5. In my view the submission of
learned Standing Counsel has force. The
relevant paragraphs of Government Order
dated 16.12.2003 read as under:

^^1⁄4d1⁄2 loZizFke visf{kr vgZrk j[kus okyh mlh
xkWao dh fuokfluh fo/kok efgykA

1⁄4[k1⁄2 fo/kok efgyk miyC/k u gksus dh n'kk esa
mlh xkWao dh fuokfluh rykd'kqnk efgykA

1⁄4x1⁄2 fo/kok rFkk rykd'kqnk efgyk ds miyC/k u
gksus dh n'kk esa xjhch js[kk ds uhps thou ;kiu
djus okyh efgykvksa esa lsA vk; ds lEcU/k esa
lEcfU/kr rglhynkj dk iek.k i= gh ekU; gksxkA

1⁄4?k1⁄2 ;fn mijksDr esa ls dksbZ Hkh vH;FkhZ miyC/k
u gks rks xjhch js[kk ds Åij dh vgZ ik= efgyk dks
Hkh dk;Zd=h ds in ij p;u gsrq ik= ekuk tk;sxkA
ysfdu mlh xkao dh fuoklh gksuk vfuok;Z gSA

1⁄4M+1⁄2 ;fn vkWaxuckMh dsUnz [kksys tkus okys xzke
esa dsoy ,d gh fo/kok] rykd'kqnk vFkok xjhch js[kk
ls uhps thou&;kiu djus okyh efgyk visf{kr
vgZrk j[krh gS] rks mldks p;u lfefr dh laLrqfr
ij ekuns; ij fu;qDr dj fn;k tk;sxk ijUrq ;fn
,d ls vf/kd fo/kok] ;k ,d ls vf/kd rykd'kqnk
vFkok ,d ls vf/kd xjhch js[kk ls uhps thou&;kiu
djus okyh efgyk ik=rk dh Js.kh esa vkrh gS] rks
mldk p;u ,d p;u lfefr ds ek/;e ls fd;k
tk;sxkA p;u lfefr }kjk dksbZ lk{kkRdkj ugha
fdy;k tk;sxk dsoy ik= efgykvksa }kjk gkbZLdwy
rFkk mlls mPp f'k{kk izkIr vH;FkhZ dh Js.kh ds
vk/kkj ij fu/kkZfjr vad dk ;ksx djds esfjV fyLV
cuk;h tk;sxhA

gkbZldwy] izFke Js.kh esa mRrh.kZ efgyk dks 03
vad] f}rh; Js.kh esa mRrh.kZ efgyk dks 02 vad rFkk
r`rh; js.kh esa mRrh.kZ efgyk dks 01 vad] iznku fd;k
tk;sxkA blh izdkj b.VjehfM;V dh ijh{kk izFke
Js.kh esa mRrh.kZ gksus ij 03 vad] f}rh; Js.kh esa
mRrh.kZ gksus ij 02 vad o r`rh; Js.kh esa mRrh.kZ gksus
ij 01 vad] iznku fd;k tk;sxkA blls vf/kd 'kSf{kd
;ksX;rk j[kus okyh efgyk dks vfrfjDr vad ugha
fn;s tk;saxsA leLr ijh{kkvksa ds vad tksMus ds
i'pkr esfjV fyLV rS;kj dh tk;sxhA ;fn ,d ls
vf/kd vH;FkhZ leku vad izkIr djrs gSa rks ojh;rk
vf/kd vk;q okys vH;FkhZ dks nh tk;sxhA ;fn ,d ls
vf/kd vH;FkhZ ds vad o vk;q Hkh leku gSa rks vf/kd
1494 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

'kSf{kd ;ksX;rk j[kus okys vH;FkhZ dks ojh;rk nh
tk;sxhA

1⁄4p1⁄2 vkaxuckMh dk;Zdf=;ksa ,oa lgkf;dkvksa ds
fy, ;g vfuok;Z gksxk fd og mlh vkaxuckM+h {ks=
dh fuokluh gksaA ogka dk LFkk;h fuoklh gksus ds
lEcU/k esa rglhynkj ;k xzke iz/kku ls izkIr izek.k
i= izLrqr djuk vfuok;Z gksxkA ;fn dksbZ dk;Zd=hZ
;k lgkf;dk p;u ds ckn xzke NksM+ nsrh gS ;k fdlh
vU; xkWao esa fuokl djus yxrh gS ;k 'kknh gksus dh
fLFkfr esa vU;= jgus yxrh gS rks ekuns; lsok lekIr
dj nh tk;sxhA**

(a) First of all, a widowed woman,
resident of the same village, having the
requisite qualification.

(b) In case of non-availability of a
widowed woman, a divorced woman who
is a resident of the same village.

(c) In case of non-availability of a
widowed and divorced woman, from
amongst women living below poverty line.
In respect of income, a certificate given by
the concerned Tahsildar will only be
accepted.

(d) If , from amongst the aforesaid, no
candidate is available, any qualified
woman above poverty line will also be
considered eligible for selection to the post
of karyakatri. However, she must be a
resident of the same village.

(e) If, in a village where Anganwadi
Kendra is to be opened, there is only one
widowed or divorced or BPL woman
having the requisite qualification, she will
be appointed on remuneration upon the
recommendation of selection committee.
But if more than one widowed or divorced
or BPL woman come within the eligibility
zone, the selection will be done through
selection committee. No interview will be
held by selection committee. Merit list will
be drawn up by totalling the prescribed
marks on the basis of the division secured
by the eligible women in High School and
in course of higher education.

03 marks will be awarded to a woman
on passing High School in the first
division, 02 marks to a woman on passing
it in the second division and 01 mark to a
woman on passing it in the third division.
In this very manner, 03 marks will be
awarded
on
passing
Intermediate
examination in the first division, 02 marks
on passing it in the second division and 01
mark on passing it in the third division.
Extra marks will not be awarded to a
woman
having
higher
educational
qualification. Merit list will be prepared
after
totalling
marks
of
all
the
examinations. If more than one candidate
get equal marks, priority will be given to a
candidate older in age. If more than one
candidate are at par with one another in
respect of marks and age as well, priority
will be given to a candidate having better
educational qualification.

(f)
It
will
be
mandatory
for
Anganwadi Karyakatris and attendants to
be residents of the same anganwadi area.
As regards claim for being a permanent
resident of that place, it will be necessary
to present a certificate obtained from
Tahsildar
or
Gram
Pradhan.
If
a
Karyakatri or attendant leaves her village
after selection or begins to reside in some
other
village
or
begins
to
reside
somewhere else in the event of marriage,
her service on remuneration shall be
terminated." (English Translation by the
Court)

6. The very opening part of
Government order shows that it is in
supercession of all earlier Government
3 All] Smt. Nisha Devi V. State of U.P. and another

1495
Orders, therefore, the procedure and
conditions
prescribed
in
Government
Order dated 16.12.2003 have to be
followed
for
making
selection
and
appointment as Angan Bari Karyakatri
and/or Attendant. A combined reading of
the aforesaid paragraphs of Government
Order dated 16.12.2003 make it very clear
that the incumbent must belong to the
same village and there is no scope of
expanding it to the Village Panchayat of
which the concerned village is a part. The
insistence on the part of learned counsel
for the petitioner on the advertisement,
cannot be accepted in view of the fact that
selection and appointment has to be made
in accordance with relevant Government
order which prescribes the condition for
selection and appointment and pursuant
whereto recruitment process has been
started.

7. It is well settled that in case of
discrepancy between relevant provision
under which selection is made and
conditions actually advertised in the
advertisement, it is the relevant provision
which
shall
prevail
and
not
the
advertisement
since
advertisement
is
consequential and dependent upon the
relevant provisions pursuant whereto it has
been issued. In Malik Mazhar Sultan Vs.
U.P.P.S.C., JT 2006 (4) SC 531 the Apex
Court has said:

"Undoubtedly,
the
excluded
candidates were of eligible age as per the
advertisement but the recruitment to the
service can only be made in accordance
with the rules and the error, if any, in the
advertisement cannot override the Rules
and create a right in favour of a
candidate
if
otherwise
not
eligible
according to the Rules. The relaxation of
age can be granted only if permissible
under the Rules and not on the basis of the
advertisement. If the interpretation of the
Rules by PSC when it issued the
advertisement was erroneous, no right can
accrue on basis thereof. Therefore, the
answer to the question would turn upon the
interpretation of the Rules."
(emphasis added)

8. Same view has been taken by a
Division Bench of this Court Sanjay
Agarwal Vs. State of U.P. and others,
2007(6) ADJ 272.

9. In the present case the Government
order makes it very clear that the
incumbent, who does not belong to same
village in which the Anganbari Center is
running, cannot be selected and appointed.
It is not disputed that petitioner does not
belong to the same village but the village
to which petitioner is permanent resident is
a part of Gram Panchayat which includes
the village in which Anganbari Center is
situated. That being so, once it is admitted
that petitioner is not the permanent resident
of village in which Anganbari Center is
situated, in view of specific conditions
contained in Government Order dated
16.12.2003, the impugned order cannot be
faulted and appointment of petitioner
cannot be said to be valid.

10. I, therefore, find no merit in the
writ petition.

11. Dismissed.

12. Interim order, if any, stands
vacated.
---------
1496 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 46244 of 2012

Vivekanand Pathak

 ...Petitioner
Versus
Union of India Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Jitendra Kumar
Sri Abhishek Rai

Counsel for the Respondents:
 A.S.G.I.
Sri Ram Gopal Tripathi
Sri A.K. Goyal
Sri Kasif Zaidi

Constitution
of
India,
Article
226Disqualification
to
contest-Student's
Union Election-as per para 1 of Code of
Election 2012-upper age limit 25 years
fixed-on last date of submission of
nomination form-petitioner is more than
25 years-argument that as per guidelines
of Apex Court election be held with 6 to
8 weeks of commencement of academic
session-if election held in start of July
2011-petitioner was eligible to contestheld-election to be held as per cut of
date-it can not be ultra vires-in any waypetition dismissed.

Held: Para-9

Apart from this, the Court has to apply
the golden rule of construction and has
to construe all the provisions read
together.
They
cannot
be
read
in
isolation to each other. The elections
have to be held through a process and
therefore there has to be a cut off date
for the purpose of computing the age of
a candidate. It cannot be an ongoing or a
never ending process, Accordingly, the
cut off date as provided, that is the last
date of nomination, does not in any way
appear to be ultra vires either the
provisions of the regulations, or the
judgment of the apex court, as relied
upon by the learned counsel for the
petitioner.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioner, Sri Abhishek Rai and Sri A.K.
Goyal for the respondent Nos. 2, 3 and 4,
and Sri Kasif Zaidi for the respondent No.
1.

2. The respondent University is a
Central University. Regulations for the
conduct of Students' Union Election
known as the Code of Election 2012 have
been framed. The petitioner has come up
assailing the action of the University as
also challenging Paragraph 1 of the
eligibility criteria of the said Code which
prescribes the cut off date for computing
the age of a contestant. The said provision
clearly indicates that the age of a
candidate has to be computed on the date
of filing of the nomination. Admittedly
the last date for nominations according to
the University is 24th September, 2012.
The petitioner has also admittedly become
25 years of age on 11th July, 2012 and is
a postgraduate student. Accordingly, the
petitioner
becomes
disqualified
for
contesting the elections as on the date of
nomination he would be above 25 years
of age.

3. To advance his submissions,
learned counsel for the petitioner takes the
help of Guidelines No. 6.4.2 that has been
adopted by the apex court in the case of
University of Kerala Vs. Council,
Principles, Colleges Kerala and others,