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2016 DIGILAW 870 (HP)

Seema Devi @ Seema Kumari v. State of H. P.

2016-05-20

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J (Oral). The present petition has been filed praying for the following relief:- “It is, therefore, prayed that a writ in the nature of certiorari or any other appropriate writ order or direction be issued in favour of petitioner and against the respondents after calling whole record from the office of gram Panchayat Arloo Khan and from the office of CDPO Dhundhla and order dated 2.12.2009 passed by learned Divisional Commissioner in appeal No. 23 of 2008 titled as Salochana Devi Vs. Seema Devi (AnnexureP-4) be quashed and set aside and writ in the nature of mandamus or any other writ order or direction be passed direction the respondents to conduct the fresh interviews and petitioner be permitted to take part in the fresh interviews.” 2. The case of the petitioner is that she applied for being selected against the post of Anganwari Worker at Anganwari Centre, Dagroo in the year 2007, in which process private respondent was selected by the authorities. Feeling aggrieved by the said selection of respondent No.5, she filed an appeal as contemplated in Clause 12 of the Scheme/Guidelines for the engagement of Anganwari Worker/Helper, before the Deputy Commissioner, which appeal was allowed by the Deputy Commissioner vide order dated 22.12.2007. This order of the Deputy Commissioner was thereafter challenged by present respondent No.5 before the Divisional Commissioner, who vide impugned order dated 2.12.2009 has set aside the order passed by the Deputy Commissioner and upheld the selection for private respondent. 3. The contention of the petitioner is that the order passed by the Divisional Commissioner is bad in law because the said authority has failed to appreciate that the rejection of the candidature of the petitioner was wrong. According to the petitioner, her name was rejected by the authorities on the ground that she did not fulfill the eligibility criteria as contemplated in the guidelines as her family was not separated as on 1.1.2004 and the income as taken of the joint family, was in excess of what was contemplated in the said guidelines. Mr. Bhardwaj, learned counsel for the petitioner has further argued that the income certificate etc. Mr. Bhardwaj, learned counsel for the petitioner has further argued that the income certificate etc. which was produced by the petitioner before the authorities have been wrongly ignored and thus he has submitted that the order passed by Divisional Commissioner is contrary to the facts and the conclusions arrived at by the said authority are not borne out from the record. He has prayed for setting aside of the said order as well as the selection of respondent No.5. 4. Reply has been filed to the said petition by respondent-State which reply has been adopted by respondent No.5. No rejoinder has been filed to the said reply nor petitioner intended to file the same. 5. I have heard learned counsel for the parties and have also gone through the records of the case. 6. A perusal of the order passed by Divisional Commissioner will demonstrate that he has set aside the order passed by the Deputy Commissioner on three counts. 7. Firstly, the Divisional Commissioner has come to the conclusion that adjudication of the appeal by the Deputy Commissioner filed by present petitioner was not sustainable in the eyes of law because Deputy Commissioner entertained the appeal filed by the present petitioner beyond the period of limitation provided in the guidelines. As per the guidelines, a person aggrieved by the selection of an Anganwari Worker/ Anganwari Helper can file an appeal within 15 days from the declaration of the result. In the present case, even if the period of selection is taken the said date is 16.8.2007 and the date of institution of the appeal before the Deputy Commissioner is 1.12.2007 which is beyond the period of 15 days as prescribed in the guidelines. Accordingly, the Divisional Commissioner has held that the Deputy Commissioner could not have had entertained this appeal. 8. The second ground on which the Divisional Commissioner has set aside the order of the Deputy Commissioner is that as per the records, the case of the petitioner was rejected by CDPO on the ground that the family of petitioner was not separated as on 1.1.2004 and moreover she belongs to Panchayat at Hatli, whereas selection was done in Ahlu Khas. Thus petitioner was not eligible to be considered for selection as Anganwari Worker at Anganwari Centre, Dagroo. 9. Thus petitioner was not eligible to be considered for selection as Anganwari Worker at Anganwari Centre, Dagroo. 9. Thirdly, the Divisional Commissioner has further held that the order passed by the Deputy Commissioner indeed was a sketchy and non-speaking and the said order was passed by the Deputy Commissioner at the back of the affected party. 10. In my considered view, there is no infirmity in the order which has been passed by the Divisional Commissioner. The said authority has rightly come to the conclusion that the appeal which was filed by the present petitioner at the first instance against the selection of respondent No.5 before the Deputy Commissioner was a time barred appeal and the authority was not having any right to entertain the said appeal after the prescribed period even by way of condoning the delay. As the authority (i.e. Deputy Commissioner) was barred from entertaining any appeal after 15 days from the date of declaration of the result, the adjudication of the same on merit by the said authority is per se illegal and non est. Accordingly, the findings returned in this respect by the Divisional Commissioner are upheld. 11. This Court in Raksha Devi Vs. State of H.P. & Ors., 2010(2) Him. L.R. (DB) 964 while dealing with the same guidelines has held that the guidelines provide a period of 15 days for filing an appeal and being a statutory authority in terms of Policy Guidelines the Appellate Authority does not have the power under Section 5 of the Limitation Act to condone the delay, as no power is conferred in this regard under the guidelines. This Court has further held that the authority, therefore, cannot enlarge the time by condoning the delay in filling the appeal. 12. Thus in other words if an appeal is not filed within the prescribed time as prescribed in the guidelines, it has only to be dismissed, since the appellate authority has no power to condone the delay in filing the appeal. In this view of the matter, this Court does not deem it necessary to adjudicate upon the other issues which have been raised by the petitioner. The Divisional Commissioner has rightly held that the order passed by the Deputy Commissioner by entertaining the appeal filed by the present petitioner beyond the period prescribed in the relevant Guidelines was not sustainable in law. The Divisional Commissioner has rightly held that the order passed by the Deputy Commissioner by entertaining the appeal filed by the present petitioner beyond the period prescribed in the relevant Guidelines was not sustainable in law. Therefore, there is no infirmity in the order passed by the Divisional Commissioner and the present petition is accordingly dismissed. No order as to cost.