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Himachal Pradesh High Court · body

2019 DIGILAW 1291 (HP)

Savitri Devi v. State Of H. P.

2019-09-03

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Petitioner lays challenge to an order passed on 22.06.2016, whereby her appeal against the selection and appointment of respondent No.6, as Anganwari worker was dismissed by the Additional District Magistrate, Mandi, being barred by limitation, without deliberating on the merits of the Case. Whether under Clause 12 of the Anganwadi Scheme, a timely submitted simple application containing grounds for challenging the appointment of selected candidate will suffice or not, is the question involved in the present petition. 2. Facts may be noticed:- 2(i). Interviews for the post of Anganwari worker in Anganwari Centre Deoli, I.C.D.S. Block Gohar, District Mandi were conducted on 15.07.2015, wherein, seven candidates including the petitioner and respondent No.6, participated. The result was declared the same day. Respondent No.6 was declared selected and she accordingly joined as Anganwadi worker. 2(ii) Under the provisions of Clause-12 of Anganwadi policy of the year 2010, governing the process of selection and appointment in question an appeal against the selection of Anganwadi worker could not be filed within a period of fifteen days from the date of issuance of appointment orders. 2(iii) Petitioner pointed out her grievances against the selection and appointment of respondent No.6 as Anganwari worker, in her application dated 22.07.2015, (Annexure P-3) to the Deputy Commissioner, District Mandi, alleging that respondent No.6 had submitted forged documents regarding her educational qualifications and income certificate while applying for the post in question. The petitioner further averred in the afore application that she being a widow, belonging to IRDP Family,10+2 pass, was eligible for appointment and deserved to be appointed as Anganwari worker in place of respondent No.6. She also requested the Deputy Commissioner, Mandi, for holding inquiry in respect of the educational as well as income certificates of selected candidate (respondent No.6) and prayed for cancelling the appointment of respondent No.6 as Anganwari worker. The receipt of this document (Annexure P-3) has not been denied by the respondents No.1 to 5 in their reply filed to the writ petition. In fact, document (Annexure P-3), dated 22.07.2015, bears receipt No.3005 of even date, endorsed to office Superintendent. 2(iv) Though, petitioner had already prayed for cancellation of appointment of respondent No.6, as Anganwari worker in her application dated 22.7.2015 (Annexure P-3), yet she filed a formal Appeal No.17/2015 on 13.08.2015, before the Deputy Commissioner against the selection and appointment of respondent No.6. 2(iv) Though, petitioner had already prayed for cancellation of appointment of respondent No.6, as Anganwari worker in her application dated 22.7.2015 (Annexure P-3), yet she filed a formal Appeal No.17/2015 on 13.08.2015, before the Deputy Commissioner against the selection and appointment of respondent No.6. This appeal has been dismissed, as time barred by the Additional District Magistrate, Mandi, H.P. vide impugned order dated 22.06.2016 (Annexure P-2). Hence, instant writ petition has been preferred. 3. 3(i). This Court in a bunch of writ petitions and Letter Patent Appeals with lead case CWP No.438 of 2017, titled as Praveena Devi Vs. State of H.P. & Ors. decided on 02.08.2019, discussed the entire gamut of limitation for filing appeals before the appellate authority challenging the selection and appointment of Anganwari workers under different Anganwari policies. Extract from the judgment is being reproduced hereinafter:- 19. The upshots of the discussion hereinabove, therefore would be as follow: (I) The provisions contained under Section 5 of the Limitation Act are applicable only to the proceedings pending in the Courts alone and not before the quasi judicial authorities like the Appellate Authority under the Scheme. (ii) The Appellate Authority under the Scheme where there is provisions of 15 days for filing the appeal from the date of issuance of the result or the date of appointment, as the case may be, is not competent to condone the delay and the person aggrieved should prefer appeal within 15 days from the date of declaration of the result/appointment of the selected candidate. The Appellate Authority in order to verify the factual position is competent to requisition the record pertaining to the selection so made. (iii) Since in the Scheme framed by the respondent-State, there is no provision for condonation of delay, therefore, the person aggrieved is not entitled to invoke Section 5 of the Limitation Act and rather to file the appeal well within the time prescribed under the Scheme. (iv) In few of the schemes where no period of limitation is prescribed for filing an appeal, the aggrieved person must file the appeal within reasonable time to be determined on taking into consideration the facts of each case. (iv) In few of the schemes where no period of limitation is prescribed for filing an appeal, the aggrieved person must file the appeal within reasonable time to be determined on taking into consideration the facts of each case. (v) In an appeal preferred against the order of the first Appellate Authority i.e. the Deputy Commissioner to the Divisional Commissioner irrespective of there is no requirement under the scheme to file certified copy of order nor any procedure prescribed for filing the same, the question that certified copy of impugned order is required to be filed along with the memorandum of appeal or it is sufficient to mention the date of such order is left open to be considered in due course, if arises in any of the writ petitions/LPA which have to be heard separately. The judgment clearly says; Section 5 of Limitation Act cannot be invoked by the aggrieved person in absence of any provision for condonation of delay in filing the appeals in the Anganwari Schemes framed by the State. Therefore the appeal has to be filed within the time prescribed under the scheme and within a reasonable time in case no time limit is prescribed. Under the Anganwadi scheme, there is no power with the quasijudicial appellate authority to condone the delay, in filing the appeal. 3(ii) Point involved in the instant petition: 3(ii)a) Whether the application dated 22.7.2015, admittedly submitted by the petitioner to the Deputy Commissioner, Mandi, praying for cancellation of appointment of respondent No.6, as Anganwadi worker, could be treated as an appeal or not. 3(ii)b) The selection pertains to 2015, when admittedly under the policy in vogue, an appeal could have been filed within fifteen days from the date of issuance of appointment order. 3(ii)c) In the instant case, the result was declared on 15.07.2015 & respondent No.6 joined as such. Appeal thus could have been filed within fifteen days thereafter, in terms of Clause-12, of Anganwadi Policy in force at the relevant time i.e. by 30.7.2015. 3(ii)d) It is not in dispute that on 22.7.2015, i.e. just seven days after the declaration of the result, petitioner had challenged the selection and appointment of respondent No.6, before the Deputy Commissioner, Mandi, on various grounds vide her application at Annexure P-3. 3(ii)e) Admittedly, there is no performa prescribed under the Anganwadi policy for filing of appeals challenging the appointment of selected candidates. 3(ii)e) Admittedly, there is no performa prescribed under the Anganwadi policy for filing of appeals challenging the appointment of selected candidates. Therefore, the application (Annexure P-3) containing the grounds for challenging the appointment of respondent No.6, was to be treated as an appeal having been filed under Clause-12 of the Anganwadi Policy, before the Deputy Commissioner, Mandi. Subsequent filing of a formal appeal by the petitioner on 13.08.2015, cannot be taken to the disadvantage of the petitioner. More so, when Deputy Commissioner had forwarded petitioner s application (Annexure P-3), to the Sub-Divisional Magistrate (Chachiot) at Gohar, District Mandi on 30.07.2015, for holding an inquiry into the allegations; and when in compliance thereof, the Sub-Divisional Magistrate on 10.08.2015 (part of Annexure P-3) further directed the Child Development Project Officer, (Chachiot) at Gohar, District Mandi to inquire into the matter. 3(ii)f). It is profitable to refer here to a judgment passed by Hon ble Apex Court in, titled Shreejith L. Vs. Deputy Director (Education) Kerala & others, (2012) 7 SCC 248 , where an application seeking compassionate appointment was not submitted on prescribed format, it was observed that substance of application was important and not the form. 24. We regret our inability to accept that submission. The Manager of the school had on receipt of the application from respondent No.4 not only acknowledged the request for appointment but also recognised that respondent No.4 possessed the requisite qualification for appointment as a Hindi Teacher. The request was not, however, granted as no vacancy in the cadre was available in the school at that time. What is noteworthy is that the Manager did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment. If the authority concerned before whom the application was moved and who was supposed to consider the request, did not find the format of the application to be a disabling factor for a proper consideration thereof, it could not be set up as a ground for rejection of the prayer, by the beneficiary of the appointment made in derogation of the rights of respondent No.4. At any rate, what was important was the substance of the application and not the form. At any rate, what was important was the substance of the application and not the form. If the application in substance conveyed the request for a compassionate appointment and provided the information which the Manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. We need to remind ourselves that the scheme is meant to be a beneficial scheme aimed at helping those in need of assistance on account of an untimely demise in the family. Inasmuch as the Assistant Educational Officer and even the High Court found respondent No.4 to be eligible for appointment and directed the Manager to make such an appointment, they committed no error to warrant our interference under Article 136 of the Constitution. The Civil Appeal is, therefore, liable to be dismissed. 4. Instant case pertains to selection & appointment to the post of anganwadi worker, in terms of Anganwadi Policies. These policies do not prescribe any particular format for filing of appeals under Clause-12. The complaint presented by the petitioner on 22.07.2015 (Annexure P-3) against the selection and appointment of respondent No.6, also contained the grounds for challenge. It was admittedly received by the Deputy Commissioner, thus had to be treated as an appeal and was required to be decided as such. More so, when cognizance of this application had been taken & on this basis inquiry had been directed by Deputy Commissioner. This application was within prescribed limitation period of fifteen days. Formal appeal filed by the petitioner latter in point of time i.e. on 13.8.2015, could not be held against the petitioner. The impugned order (Annexure P-2) dismissing the latter filed formal appeal, instituted on 13.8.2015, as time barred, therefore, is not sustainable in the eyes of law and is liable to be quashed. The writ petition, is therefore, allowed. The impugned order dated 22.06.2016 (Annexure P-2) passed by Additional District Magistrate Mandi, is quashed and set aside. The Deputy Commissioner, District Mandi, is directed to re-hear the appeal, filed by the petitioner on merits, after giving an opportunity of hearing to both the parties, in accordance with law. Endeavour be made to dispose of the appeal within a period of six months from the date of production of certified copy of this judgment. The Deputy Commissioner, District Mandi, is directed to re-hear the appeal, filed by the petitioner on merits, after giving an opportunity of hearing to both the parties, in accordance with law. Endeavour be made to dispose of the appeal within a period of six months from the date of production of certified copy of this judgment. The present writ petition is disposed of, so also the pending applications, if any. JUDGMENT : Jyotsna Rewal Dua, J. Petitioner lays challenge to an order passed on 22.06.2016, whereby her appeal against the selection and appointment of respondent No.6, as Anganwari worker was dismissed by the Additional District Magistrate, Mandi, being barred by limitation, without deliberating on the merits of the Case. Whether under Clause 12 of the Anganwadi Scheme, a timely submitted simple application containing grounds for challenging the appointment of selected candidate will suffice or not, is the question involved in the present petition. 2. Facts may be noticed:- 2(i). Interviews for the post of Anganwari worker in Anganwari Centre Deoli, I.C.D.S. Block Gohar, District Mandi were conducted on 15.07.2015, wherein, seven candidates including the petitioner and respondent No.6, participated. The result was declared the same day. Respondent No.6 was declared selected and she accordingly joined as Anganwadi worker. 2(ii) Under the provisions of Clause-12 of Anganwadi policy of the year 2010, governing the process of selection and appointment in question an appeal against the selection of Anganwadi worker could not be filed within a period of fifteen days from the date of issuance of appointment orders. 2(iii) Petitioner pointed out her grievances against the selection and appointment of respondent No.6 as Anganwari worker, in her application dated 22.07.2015, (Annexure P-3) to the Deputy Commissioner, District Mandi, alleging that respondent No.6 had submitted forged documents regarding her educational qualifications and income certificate while applying for the post in question. The petitioner further averred in the afore application that she being a widow, belonging to IRDP Family,10+2 pass, was eligible for appointment and deserved to be appointed as Anganwari worker in place of respondent No.6. She also requested the Deputy Commissioner, Mandi, for holding inquiry in respect of the educational as well as income certificates of selected candidate (respondent No.6) and prayed for cancelling the appointment of respondent No.6 as Anganwari worker. She also requested the Deputy Commissioner, Mandi, for holding inquiry in respect of the educational as well as income certificates of selected candidate (respondent No.6) and prayed for cancelling the appointment of respondent No.6 as Anganwari worker. The receipt of this document (Annexure P-3) has not been denied by the respondents No.1 to 5 in their reply filed to the writ petition. In fact, document (Annexure P-3), dated 22.07.2015, bears receipt No.3005 of even date, endorsed to office Superintendent. 2(iv) Though, petitioner had already prayed for cancellation of appointment of respondent No.6, as Anganwari worker in her application dated 22.7.2015 (Annexure P-3), yet she filed a formal Appeal No.17/2015 on 13.08.2015, before the Deputy Commissioner against the selection and appointment of respondent No.6. This appeal has been dismissed, as time barred by the Additional District Magistrate, Mandi, H.P. vide impugned order dated 22.06.2016 (Annexure P-2). Hence, instant writ petition has been preferred. 3. 3(i). This Court in a bunch of writ petitions and Letter Patent Appeals with lead case CWP No.438 of 2017, titled as Praveena Devi Vs. State of H.P. & Ors. decided on 02.08.2019, discussed the entire gamut of limitation for filing appeals before the appellate authority challenging the selection and appointment of Anganwari workers under different Anganwari policies. Extract from the judgment is being reproduced hereinafter:- 19. The upshots of the discussion hereinabove, therefore would be as follow: (I) The provisions contained under Section 5 of the Limitation Act are applicable only to the proceedings pending in the Courts alone and not before the quasi judicial authorities like the Appellate Authority under the Scheme. (ii) The Appellate Authority under the Scheme where there is provisions of 15 days for filing the appeal from the date of issuance of the result or the date of appointment, as the case may be, is not competent to condone the delay and the person aggrieved should prefer appeal within 15 days from the date of declaration of the result/appointment of the selected candidate. The Appellate Authority in order to verify the factual position is competent to requisition the record pertaining to the selection so made. (iii) Since in the Scheme framed by the respondent-State, there is no provision for condonation of delay, therefore, the person aggrieved is not entitled to invoke Section 5 of the Limitation Act and rather to file the appeal well within the time prescribed under the Scheme. (iii) Since in the Scheme framed by the respondent-State, there is no provision for condonation of delay, therefore, the person aggrieved is not entitled to invoke Section 5 of the Limitation Act and rather to file the appeal well within the time prescribed under the Scheme. (iv) In few of the schemes where no period of limitation is prescribed for filing an appeal, the aggrieved person must file the appeal within reasonable time to be determined on taking into consideration the facts of each case. (v) In an appeal preferred against the order of the first Appellate Authority i.e. the Deputy Commissioner to the Divisional Commissioner irrespective of there is no requirement under the scheme to file certified copy of order nor any procedure prescribed for filing the same, the question that certified copy of impugned order is required to be filed along with the memorandum of appeal or it is sufficient to mention the date of such order is left open to be considered in due course, if arises in any of the writ petitions/LPA which have to be heard separately. The judgment clearly says; Section 5 of Limitation Act cannot be invoked by the aggrieved person in absence of any provision for condonation of delay in filing the appeals in the Anganwari Schemes framed by the State. Therefore the appeal has to be filed within the time prescribed under the scheme and within a reasonable time in case no time limit is prescribed. Under the Anganwadi scheme, there is no power with the quasijudicial appellate authority to condone the delay, in filing the appeal. 3(ii) Point involved in the instant petition: 3(ii)a) Whether the application dated 22.7.2015, admittedly submitted by the petitioner to the Deputy Commissioner, Mandi, praying for cancellation of appointment of respondent No.6, as Anganwadi worker, could be treated as an appeal or not. 3(ii)b) The selection pertains to 2015, when admittedly under the policy in vogue, an appeal could have been filed within fifteen days from the date of issuance of appointment order. 3(ii)c) In the instant case, the result was declared on 15.07.2015 & respondent No.6 joined as such. Appeal thus could have been filed within fifteen days thereafter, in terms of Clause-12, of Anganwadi Policy in force at the relevant time i.e. by 30.7.2015. 3(ii)c) In the instant case, the result was declared on 15.07.2015 & respondent No.6 joined as such. Appeal thus could have been filed within fifteen days thereafter, in terms of Clause-12, of Anganwadi Policy in force at the relevant time i.e. by 30.7.2015. 3(ii)d) It is not in dispute that on 22.7.2015, i.e. just seven days after the declaration of the result, petitioner had challenged the selection and appointment of respondent No.6, before the Deputy Commissioner, Mandi, on various grounds vide her application at Annexure P-3. 3(ii)e) Admittedly, there is no performa prescribed under the Anganwadi policy for filing of appeals challenging the appointment of selected candidates. Therefore, the application (Annexure P-3) containing the grounds for challenging the appointment of respondent No.6, was to be treated as an appeal having been filed under Clause-12 of the Anganwadi Policy, before the Deputy Commissioner, Mandi. Subsequent filing of a formal appeal by the petitioner on 13.08.2015, cannot be taken to the disadvantage of the petitioner. More so, when Deputy Commissioner had forwarded petitioner s application (Annexure P-3), to the Sub-Divisional Magistrate (Chachiot) at Gohar, District Mandi on 30.07.2015, for holding an inquiry into the allegations; and when in compliance thereof, the Sub-Divisional Magistrate on 10.08.2015 (part of Annexure P-3) further directed the Child Development Project Officer, (Chachiot) at Gohar, District Mandi to inquire into the matter. 3(ii)f). It is profitable to refer here to a judgment passed by Hon ble Apex Court in, titled Shreejith L. Vs. Deputy Director (Education) Kerala & others, (2012) 7 SCC 248 , where an application seeking compassionate appointment was not submitted on prescribed format, it was observed that substance of application was important and not the form. 24. We regret our inability to accept that submission. The Manager of the school had on receipt of the application from respondent No.4 not only acknowledged the request for appointment but also recognised that respondent No.4 possessed the requisite qualification for appointment as a Hindi Teacher. The request was not, however, granted as no vacancy in the cadre was available in the school at that time. What is noteworthy is that the Manager did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment. What is noteworthy is that the Manager did not reject the application on the ground that the same was not in the prescribed format or that the application was deficient in disclosing information that was essential for consideration of the prayer for a compassionate appointment. If the authority concerned before whom the application was moved and who was supposed to consider the request, did not find the format of the application to be a disabling factor for a proper consideration thereof, it could not be set up as a ground for rejection of the prayer, by the beneficiary of the appointment made in derogation of the rights of respondent No.4. At any rate, what was important was the substance of the application and not the form. If the application in substance conveyed the request for a compassionate appointment and provided the information which the Manager required for considering the request, the very fact that the information was not in a given format would not have been a good reason to turn down the request. We need to remind ourselves that the scheme is meant to be a beneficial scheme aimed at helping those in need of assistance on account of an untimely demise in the family. Inasmuch as the Assistant Educational Officer and even the High Court found respondent No.4 to be eligible for appointment and directed the Manager to make such an appointment, they committed no error to warrant our interference under Article 136 of the Constitution. The Civil Appeal is, therefore, liable to be dismissed. 4. Instant case pertains to selection & appointment to the post of anganwadi worker, in terms of Anganwadi Policies. These policies do not prescribe any particular format for filing of appeals under Clause-12. The complaint presented by the petitioner on 22.07.2015 (Annexure P-3) against the selection and appointment of respondent No.6, also contained the grounds for challenge. It was admittedly received by the Deputy Commissioner, thus had to be treated as an appeal and was required to be decided as such. More so, when cognizance of this application had been taken & on this basis inquiry had been directed by Deputy Commissioner. This application was within prescribed limitation period of fifteen days. Formal appeal filed by the petitioner latter in point of time i.e. on 13.8.2015, could not be held against the petitioner. More so, when cognizance of this application had been taken & on this basis inquiry had been directed by Deputy Commissioner. This application was within prescribed limitation period of fifteen days. Formal appeal filed by the petitioner latter in point of time i.e. on 13.8.2015, could not be held against the petitioner. The impugned order (Annexure P-2) dismissing the latter filed formal appeal, instituted on 13.8.2015, as time barred, therefore, is not sustainable in the eyes of law and is liable to be quashed. The writ petition, is therefore, allowed. The impugned order dated 22.06.2016 (Annexure P-2) passed by Additional District Magistrate Mandi, is quashed and set aside. The Deputy Commissioner, District Mandi, is directed to re-hear the appeal, filed by the petitioner on merits, after giving an opportunity of hearing to both the parties, in accordance with law. Endeavour be made to dispose of the appeal within a period of six months from the date of production of certified copy of this judgment. The present writ petition is disposed of, so also the pending applications, if any.