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2012 DIGILAW 681 (HP)

Satya Devi v. State of Himachal Pradesh

2012-10-04

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Deepak Gupta, J. 1. A short but interesting question arises in this Letters Patent Appeal. The issue is whether service rendered by a Shishu Palak for a period of 10 months can be termed to be service of one year for granting him/her one mark of experience for the post of Anganwari helper. 2. The appellant and the provide respondent Kanta Devi applied for the post of Anganwari Worker at Anganwari Centre, Annu Balh, Tehsil Sundernagar, District Mandi, H.P. The appellant was selected for appointment vide letter dated 6.8.2007. Her appointment was challenged by the private respondent by filing an appeal on various grounds. The appointment of the appellant was quashed on the ground that income of the family of the appellant is more than Rs.12,000/- per annum and therefore the appellant was not entitled for selection. 3. Thereafter, the appellant filed CWP No.439 of 2008 which was allowed and the matter was remanded to the appellate authority. The Deputy Commissioner, Mandi delegated the hearing of the appeal to the ADM, Mandi where the appellant as well as private respondent were heard. Though the appointment of the appellant was upheld as far as the income criteria was concerned, the Additional District Magistrate came to the conclusion that the private respondent should have been awarded one mark for her experience as Shishu Palak and quashed the appointment of the appellant. The appellant thereafter filed a CWP in this Court which was dismissed by the learned Single Judge. Hence this appeal. 4. Sh.Vinay Kuthiala, learned senior counsel appearing on behalf of the appellant has raised a plea that the Deputy Commissioner had no authority to delegate his powers to the ADM and therefore the order of the ADM is without jurisdiction. He has relied upon certain observations of this Court made in CWP No.1096 of 2010 and other connected matters titled as Raksha Devi vs. State of H.P. and others. 5. According to us, there is no merit in this contention since respondents have placed before us notification dated 17.6.2008 which reads as follows: “No.WLF-B(14)-3/87- Loose Social Justice & Empowerment Department Government of Himachal Pradesh.From The Principal Secretary, Social Justice & Empowerment Department Himachal Pradesh, Shimla-2. To The Director, Social Justice & Empowerment Department Himachal Pradesh, Shimla-9. Dated: Shimla-2 17.6.2008. Subject: Amendment in the Guidelines issued for the appointment of Anganwari Workers/Helpers. To The Director, Social Justice & Empowerment Department Himachal Pradesh, Shimla-9. Dated: Shimla-2 17.6.2008. Subject: Amendment in the Guidelines issued for the appointment of Anganwari Workers/Helpers. Sir, In continuation to this Department notification of even no. dated 1.4.2007 and this department letter of even no. dated 20.9.2007 on the above subject I am to say that the government have amended the provision of para No.12 of the above guidelines to the extent that Deputy Commissioners will be empowered to delegate the power to ADM/ADCs or to both of them to hear the appeals and appeal against the orders of ADM/ADCs will also lie to Divisional Commissioners of concerned division. However, the Deputy Commissioner at his own level will decide at least 20% of the total appeals. Yours faithfully, Sd/- Joint Secretary (SJE) to the Government of Himachal Pradesh. Endst No. Dated: Shimla Copy forwarded to all the Deputy Commissioners/Divisional Commissioners in Himachal Pradesh. Sd/-Joint Secretary (SJE) to the Government of Himachal Pradesh.” 6. This notification clearly envisages that powers have been given to the Deputy Commissioners to delegate the authority. It appears that this notification was not brought to the notice of the Division Bench which decided the matter earlier. In fact the Division Bench has clearly stated that in case there is no such valid notification then the delegate cannot make sub-delegation. Since the notification has been produced before us it is obvious that the Deputy Commissioner could delegate such powers. 7. The main issue is whether the private respondent should have been awarded one mark for her experience as Shishu Palak or not. The policy as it stood at the relevant time read as follows: “(1 mark is to be awarded for every year experience as Anganwari Helper/ Balsevika/ Balwadi Teacher/ Nursery Teacher/ Shishu Palak/ ECCE subject to a maximum 2 marks)” In the year 2010 this policy has been further clarified in the following terms: “One mark for candidates having experience as Anganwari Worker/Helper/ Bal Sevika/ Balwadi Teacher/ Nursery Teacher for one year or Shishu Palak or ECCE center for 10 months.” 9. It has been contended on behalf of the appellant that prior to the amendment, one year’s experience would mean 12 months experience and not 10 months. The respondents have placed before us the lady Shishu Palak Scheme notified on 21.12.2004 and this scheme only envisages appointment for a period of 10 months. It has been contended on behalf of the appellant that prior to the amendment, one year’s experience would mean 12 months experience and not 10 months. The respondents have placed before us the lady Shishu Palak Scheme notified on 21.12.2004 and this scheme only envisages appointment for a period of 10 months. Thus, a Shishu Palak would not be appointed for more than 10 months in a year. In our opinion the second notification which amends the Anganwari Scheme is in the nature of clarificatory amendment and therefore can be given retrospective effect. 10. Even otherwise it is well settled position of law that interpretation of every law should be reasonable and the law cannot expect the impossible to be fulfilled. The appointment of a lady Shishu Palak can be only for 10 months in a year. This must mean that for the purposes of experience 10 months service would be equivalent to one year because a Shishu Palak cannot work for more than 10 months in a year. This according to us is the only reasonable explanation. 11. We accordingly uphold the order of the learned Single Judge as well as that of the ADM whereby they held the private respondent entitled to one mark for her experience as Shishu Palak. The appeal is accordingly dismissed. Stay order is vacated and the respondents are directed to ensure that the appointment is offered to private respondent No.4 as Anganwari Worker in the Anganwari Centre Annu Balh, Tehsil Sundernagar, District Mandi, H.P. latest by 15th November, 2012. No costs.