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2016 DIGILAW 833 (HP)

Kaushlaya Devi v. State of H. P.

2016-05-18

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J (Oral). The case of the petitioner is that she was selected as Anganwari Worker in Anganwari Centre, Paploa and she joined as such on 14.8.2007. Since then, she is discharging her duties as such till date. The selection of the petitioner was challenged by respondent No.4, (who has been proceeded ex parte, vide order dated 10.5.2012), by way of an appeal, as provided under the Scheme/Guidelines for the engagement of Anganwari Worker/Helper before the Deputy Commissioner. The appeal so filed by respondent No.4 was ordered to be dismissed in default by the Deputy Commissioner, vide order dated 26.12.2007. 2. An application filed by present respondent No.4 to recall the order of dismissal in default was also rejected by the Deputy Commissioner on 27.12.2007. 3. These orders were challenged by respondent No.4 by way of appeal before the Divisional Commissioner, Mandi Division, Mandi, who vide order dated 19.3.2009 dismissed the appeal so filed by respondent No.4. 4. The Divisional Commissioner adjudicated the said appeal by passing a speaking and reasoned order, relevant portion of which is quoted herein below:- “I have considered the arguments of the parties and have also gone through the record and law. It reveals from the record that the lower court during the hearing the appeal case pertaining to the appointment of anganwari worker has fixed the case has fixed the same on 26.12.2007 as per order sheet dated 06.11.2007 the date on which both the parties were present. Record shows that on 26.12.2007 Ld. Counsel for the respondent was present but the neither the appellant nor her counsel was present despite of knowledge of date of hearing and the case was dismissed in default by the Deputy Commissioner, Bilaspur. It is also on the record that when the application for restoration of the said dismissed in default case was taken up by the lower court the same has rightly been rejected because of the facts that grounds mentioned in the said application are not sufficient to justify the cause of absence of appellant on 26.12.2007 before the lower court. Thus, there is not force in the present appeal. In view of the above observations, the present appeal is dismissed and the order dated 27.12.2007 passed by the Deputy Commissioner Bilaspur is upheld. Thus, there is not force in the present appeal. In view of the above observations, the present appeal is dismissed and the order dated 27.12.2007 passed by the Deputy Commissioner Bilaspur is upheld. A copy of the order be sent to the Deputy Commissioner, Bilaspur and Child Development Project Officer, Jhandutta District Bilaspur while returning their record. A copy of the order be also sent to both the parties through registered post for their information. Case file of this court be consigned to the record room after completion.” 5. Respondent No.4-Fullan Devi preferred review petition against the order passed by the Divisional Commissioner and vide order dated 20.6.2009, Divisional Commissioner allowed the said review petition filed by respondent No.4 and order under appeal dated 27.12.2007 was accordingly set aside. The case was ordered to be remanded to the Deputy Commissioner to decide the appeal on merit after affording an opportunity of being heard to both the parties. 6. Feeling aggrieved by the said order, vide which the Divisional Commissioner has allowed the review petition, petitioner has preferred the present petition. 7. Ms. Dutt, learned counsel for the petitioner has strenuously argued that order passed by the Divisional Commissioner, vide which he has allowed the review of respondent No.4 is per se illegal and bad in law, for the reason that the concerned Divisional Commissioner had no authority in law to review the order which was passed by him in appeal. According to her, right of appeal and right of review are not common law rights but are statutory rights. As per her, the guidelines which have been framed by the Government of Himachal Pradesh pertaining to the selection of Anganwari Worker/Helper do not confer any power to review the order which is passed by the authorities concerned, as prescribed in these guidelines. On these bases, she has contended that the impugned order is per se illegal and liable to be quashed and set aside. 8. On the other hand, it has been argued by the respondent- State that there is no infirmity in the order which had been passed by the Divisional Commissioner. As per Ms. Negi, learned Deputy Advocate General, if an authority has power to do an act then it is implied in law that such authority also has power to undo that act. As per Ms. Negi, learned Deputy Advocate General, if an authority has power to do an act then it is implied in law that such authority also has power to undo that act. Accordingly, she contends that the order which had been passed by the Divisional Commissioner in the review petition filed by respondent No.4, is justifiable in the eyes of law. 9. I have heard learned counsel for the parties and have also gone through the records of the case. 10. Right of appeal and right of review are not common law rights. These are statutory rights. There is no inherent right of appeal and no appeal can be filed, heard or determined on merit unless the statute confers such a right upon a person who intends to file an appeal. Thus, right to file an appeal is a substantive right. Similarly, now it is well settled principle of law that no one has any inherent jurisdiction or power of review. No one can exercise the power of review unless the statute creates or confers such power. Respondent-State has not been able to point out from the guidelines, on the basis of which selection is made of Anganwari Worker that any power to review an order has been conferred upon the Divisional Commissioner and the Deputy Commissioner, upon whom right to hear appeal has been conferred. 11. In fact the perusal of the said guidelines will demonstrate that Clause 12 of the same prescribes that any candidate aggrieved by any order of Child Development Project Officer appointing Anganwari Worker and Helper may file an appeal to Deputy Commissioner within a period of 15 days of the declaration of the result who will decide the case within 15 days. It is further prescribed that appeal against the order of Deputy Commissioner may be made to the Divisional Commissioner within 15 days of the order of the Deputy Commissioner. It is also contemplated in the clause that this will be the final appeal. It is apparent from the provision of the said clause that right to hear an appeal has been expressly conferred upon the Deputy Commissioner and Divisional Commissioner under the guidelines. Not only this, finality clause has been added in the guidelines and there is no further provision of appeal, review, revision etc. against the order passed by the Divisional Commissioner. It is apparent from the provision of the said clause that right to hear an appeal has been expressly conferred upon the Deputy Commissioner and Divisional Commissioner under the guidelines. Not only this, finality clause has been added in the guidelines and there is no further provision of appeal, review, revision etc. against the order passed by the Divisional Commissioner. Not only this, the guidelines are silent as to whether any right to review its order has been conferred upon the Deputy Commissioner or the Divisional Commissioner. In my considered view when the guidelines are silent as to whether the right to review its order has been conferred upon the Deputy Commissioner or the Divisional Commissioner then prudent conclusion which can be inferred is that no such right to review its order has been conferred upon either of the authority. Therefore, the impugned order passed by the Divisional Commissioner in the review petition i.e., Annexure P-5, dated 20.6.2009 is without jurisdiction. Since the said authority was not conferred any right to review its order, it could neither have entertained an application to review its order nor it could have had adjudicated upon the same on merit. This Court has already held in Shimla Apple Trading Co. Vs. The H.P. State Co-operative Marketing and Consumer Federation Ltd. 2005(3) Shim. L.C. 185 that no one has any inherent jurisdiction or power of review and no one can exercise the power of review unless the statute creates or confers such power. 12. Therefore, in my considered view, the impugned order passed by the Divisional Commissioner i.e., Annexure P-5, dated 20.06.2009 is not sustainable in the eyes of law and the same is accordingly quashed and set aside and the petition is allowed. No order as to cost.