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2015 DIGILAW 1024 (HP)

Asha Devi v. State of H. P

2015-08-05

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, J The appointment of the petitioner herein as an Anganwari worker in Anganwari Centre, Rihari was made on 2.4.2008 in pursuance to a decision rendered by the Deputy Commissioner, Shimla comprised in Annexure P-2, whereby the appeal filed by the petitioner herein assailing the selection and appointment of Pushpa Devi as an Aanganwari Worker at Anganwari Centre, Rihari was accepted by him in his decision comprised in Annexure P-2. The decision rendered in Annexure P-2 was affirmed by Divisional Commissioner Shimla in her order comprised in Annexure P-3. The respondent No.3 challenged the appointment of the petitioner herein as an Anganwari Worker at Anganwari centre, Rihari by instituting an appeal before the Deputy Commissioner, Shimla. On 17.6.2008 her appeal under order comprised in Annexure P-6 was accepted. A challenge was laid by the petitioner herein before the Divisional Commissioner, Shimla to the decision rendered by the Deputy Commissioner Shimla comprised in Annexure P-6. However the Divisional Commissioner, Shimla in his order comprised in Annexure P-7 affirmed the decision rendered by the Deputy Commissioner, Shimla. The anvil of the challenge by the respondent No.3 to the appointment of the petitioner as an Anganwari worker in Anganwari Centre, Rihari was grooved in the factum of, though her parentage being Rajput, hence merely on the score of hers marrying a scheduled caste and hers hence obtaining a scheduled caste certificate would not impute any sanctity or legitimacy to the scheduled caste certificate held/possessed by her and produced at her instance before the interviewing committee concerned nor hence the awarding of marks to her by the authorities concerned on the score of hers belonging to the scheduled caste category would be tenable. Under orders comprised in Annexures P-6 and P-7 respectively, the authorities concerned accepted the challenge anchored upon the ground aforesaid made by respondent No.3 to the appointment of the petitioner herein as an Anganwari worker. The learned counsel appearing for the petitioner herein has assailed the findings recorded in both Annexures P-6 and P-7 on the short score that both the authorities who rendered them lacked the jurisdictional competence to do so in as much as the appeal preferred by respondent No.3 herein before the Deputy Commissioner, Shimla challenging the appointment of the petitioner as an Anganwari worker was time barred. In sequel, her appeal was not maintainable so also the order in affirmation thereto rendered by the Divisional Commissioner, Shimla comprised in Annexure P-7 is also nonest. For testing and gauging the vigor of the arguments addressed before this Court by the learned counsel for the petitioner for setting aside the impugned orders, a perusal of the order comprised in Annexure P-6 is imperative. A perusal of the order comprised in Annexure P-6 unravels the fact that the learned Deputy Commissioner while rendering the order aforesaid has abstained from considering the preliminary submission raised by the petitioner herein in her reply of the appeal being time barred and has untenably adjudicated it upon merits whereas it hence necessitated its being rejected on the ground of its being barred by limitation, as such not maintainable. Vigor to the inference aforesaid is lent by an advertence to clause 12 of the scheme for appointment of Anganwari worker/helper, which stands reproduced hereinafter. “Any candidate aggrieved by any order of CDPO appointing Anganwari worker / helper, may file an appeal before the Deputy Commissioner within a period of 15 days of the declaration of the result, who will decide the case within 15 days. Appeal against the order of Deputy Commissioner may be made to Divisional Commissioner within 15 days of the order of the Deputy Commissioner. This will be the final appeal.” 2. A perusal thereof discloses that limitation for preferment of an appeal by an aggrieved before the Deputy Commissioner is a period of 15 days which period is to be computed from the date of declaration of result. Given the fact as emanating on a perusal of the record produced before this Court, of the result of the test held for selecting a candidate to the post of Anganwari worker in Anganwari Centre, Rihari having been declared on 9.8.2007. Consequently, in consonance with the apposite guidelines an appeal assailing the appointment of Pushpa Devi as an Anganwari worker with the impleadment of the petitioner herein as a party respondent while hers ranking above her was necessitated to be instituted by respondent No.3 before the appellate authority within 15 days thereafter. However, the appeal at the instance of respondent No.3 herein assailing the appointment of the petitioner as an Anganwari worker has been belatedly instituted before the appellate authority on 11.4.2008. However, the appeal at the instance of respondent No.3 herein assailing the appointment of the petitioner as an Anganwari worker has been belatedly instituted before the appellate authority on 11.4.2008. Consequently, the appeal was grossly time barred, resultantly the Deputy commissioner Shimla was bound not to render any adjudication on merits in the appeal preferred before him by respondent No.3 assailing the appointment of the petitioner rather was obliged to reject it, as not maintainable. Resultantly also the affirmation of his order by the Divisional commissioner, Shimla too concomitantly begets the vice of jurisdictional incompetence. Even though, the learned counsel for the respondent No. 3 contends that the period of limitation for a challenge to the appointment of the petitioner herein as an Anganwari worker at the instance of respondent No.3 is to be computed from 2.4.2008 on which date she in pursuance to the renditions in Annexure P-2 stood appointed as an Anganwari worker at Anganwari Centre Rihari. However, the aforesaid submission addressed by the learned counsel for the respondent No.3 is misconceived besides legally frail, constituted by the exacting rigor of the mandate of apposite clause 12 of the scheme for appointment of an Anganwari worker/helper which stands extracted hereinabove besides with an inflexible prescription therein of an appeal at the instance of the aggrieved challenging the order of the CDPO appointing the anganwari worker/helper being preferable before the Deputy commissioner within 15 days from the date of declaration of result. Consequently, the rigor of the prescription is unbendable. In sequel, the contention of the learned counsel for the respondent No.3 that the period of limitation of 15 days contemplated besides envisaged in the apposite guidelines which stand extracted hereinabove for the filing an appeal by an aggrieved before the appellate authority for challenging the appointment of an Anganwari worker/helper arises or commences from the date of renditions in Annexures P-6 and P-7 is both unfounded and misconceived. Moreover, the said contention is beyond the rigid and inflexible prescription of apposite clause 12 of the scheme. It was open for the respondent No.3 herein to, at the earliest within 15 days from 9.8.2007 when the authority concerned declared one Pushpa Devi to be the candidate selected for appointment as an Anganwari worker at Anganwari centre, Rihari challenge her appointment. However, the respondent No.3 omitted to do so. It was open for the respondent No.3 herein to, at the earliest within 15 days from 9.8.2007 when the authority concerned declared one Pushpa Devi to be the candidate selected for appointment as an Anganwari worker at Anganwari centre, Rihari challenge her appointment. However, the respondent No.3 omitted to do so. Her omission to challenge the appointment of Pushpa Devi at the earliest in as much as within 15 days from 9.8.2007 by preferring an appeal before the Deputy Commissioner, Shimla with the impleadment of the petitioner herein as a party respondent, for hers being debarred while hers being placed above her in the rankings by the authority concerned, to on acceptance of her appeal by the appellate authority to claim appointment, estops the respondent No. 3 to belatedly concert to challenge the appointment of the petitioner. In view of above both the Annexures impugned before this Court are quashed and set aside Dehors the aforesaid, the respondents No. 1 and 2 shall not stand disempowered to in accordance with law initiate an inquiry qua the sanctity of the Scheduled Caste certificate held and produced by the petitioner before the interviewing committee concerned and thereupon determine whether the marks awarded to the petitioner on its strength in the interview/test held for selecting an Anganwari Worker/helper at Anganwari Centre Rihari was tenable or not. The petition stands disposed of as also the pending applications, if any.