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2019 DIGILAW 1348 (HP)

Krishna Kumari v. State of H. P.

2019-09-10

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Dharam Chand Chaudhary, J. In this writ petition, order dated 19.6.2018 Annexure P-7 passed by Ld. Additional District Magistrate, Kangra at Dharamshala in Appeal No. 01/17 preferred by the petitioner herein against the appointment of respondent No. 4 as Anganwari Worker in Anganwari Centre, Thakurdwara,Tehsil Dehra, District Kangra has been sought to be quashed and his appointment as Anganwari worker in the said Centre being meritorious and fulfilling all the eligibility criteria to be made. 2. Petitioner and respondent No. 4 appeared before the Selection Committee for interview on 11.5.2017. It is respondent No. 4 who was selected and appointed as Anganwari Worker in Anganwari Centre, Thakurdwara on 19.5.2017. The petitioner has challenged the appointment of respondent No. 4, as such, in Appeal No. 01/17 on 5.6.2017 before the Appellate Authority-cum-Additional District Magistrate, Kangra at Dharamshala. 3. The respondent No. 4 when put to notice filed reply to the appeal on 7.10.2017 raising therein the question of limitation. According to her the time prescribed for filing the appeal had already expired and the memorandum of appeal filed on 5.6.2017 by the petitioner was beyond the period of limitation. 4. In rejoinder, the petitioner came forward with the version that she had visited the office of the Appellate Authority on 22.5.2017 for filing the appeal. It is, however, the Reader who informed her that the Appellate Authority was out of station on that day. She was directed to come on some other day with copy of the appointment order. She went to the office of Child Development Project Officer, the third respondent, for obtaining copy of the order of appointment of respondent No. 4. She was, however, informed that the copy can only be supplied vide order to be passed in an application under the RTI Act. 5. Learned Appellate Authority on going through the pleadings of the parties has concluded that the appeal filed on 5.6.2017 was barred by six days while placing reliance on the ratio of the judgment dated 17.5.2010 of this Court in CWP No. 1096/2010, titled Raksha Devi versus State of H.P and others. The appeal has, therefore, been dismissed being time barred vide impugned order Annexure P-7. 6. It is the order Annexure P-7 which is under challenge in this writ petition on the ground of limitation and also on merit. The appeal has, therefore, been dismissed being time barred vide impugned order Annexure P-7. 6. It is the order Annexure P-7 which is under challenge in this writ petition on the ground of limitation and also on merit. The merit of the case, however, can only be taken into consideration only after the question of limitation is decided. 7. The law on the question of limitation for filing appeal in a matter in which the appointment of Anganwari Worker/Helper is under challenge is no more res integra. This Court while deciding a bunch of writ petitions and letters patent appeals with lead case CWP No. 438 of 2017 titled Praveena Devi versus State of H.P. and others on 2.8.2019 has discussed the entire gamut of =limitation' prescribed for filing appeals before the Appellate Authority challenging thereby the selection and appointment of Anganwari Worker/Helper under Anganwari Schemes framed from time to time and held as under:- (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. 8. It is thus seen that Section 5 of the Limitation Act cannot be invoked by a person aggrieved from an order of selection/appointment of someone else as Anganwari Worker/Helper in view of there being no provision for condonation of delay if occurred in filing the appeals under the Anganwari Schemes so framed. Therefore, it is now well settled that the appeal has to be filed well within the period of limitation, if any, prescribed under the Scheme's and within a reasonable time in case no time limit is prescribed. The quasi judicial Appellate Authority, therefore, has no jurisdiction to condone the delay if occurred in filing the appeal. 9. If the impugned order is seen in the light of the given facts and circumstances and also the law laid down, though learned Appellate Authority has held that the appeal is time barred, however, without taking note of the Scheme in vogue when respondent No. 4 was appointed as Anganwari Worker and there being any provision of limitation prescribed for filing the appeal. As a matter of fact, the Appellate Authority was required to have considered the Scheme which was prevalent in the year 2017 when respondent No. 4 was selected and appointed as Anganwari Worker and also the provisions, if any, therein prescribing the period of limitation for filing an appeal before the Appellate Authority by the person aggrieved from such selection/appointment. As a matter of fact, the Appellate Authority was required to have considered the Scheme which was prevalent in the year 2017 when respondent No. 4 was selected and appointed as Anganwari Worker and also the provisions, if any, therein prescribing the period of limitation for filing an appeal before the Appellate Authority by the person aggrieved from such selection/appointment. Merely to refer to the judgment of this Court in Raksha Devi's case, cited supra, and taking note of the question of limitation raised in the reply filed on behalf of respondent No. 4 was not sufficient to dismiss the appeal being time barred. 10. Interestingly enough, the stand of the petitioner in rejoinder to the reply filed on behalf of respondent No. 4 that she went to the office of the Appellate Authority on 21.5.2017 for filing the appeal, however, apprised by the Reader that the Appellate Authority was out of station and that to come along with the copy of the order has not been considered except for a passing reference that such statement does not hold water. Such an approach on the part of the Appellate Authority is not at all appreciated. As a matter of fact, efforts should have been made to find out the correctness of the averments so made by the petitioner at least by calling upon the comments of the Reader qua this aspect of the matter. The Appellate Authority, therefore, has not only committed illegalities but also irregularities while deciding the appeal vide order Annexure P-7. The same, therefore, deserves to be quashed and set aside and the appeal remanded to the Appellate Authority for fresh disposal in the light of the observations hereinabove and also in accordance with law. 11. The petitioner, however, is not entitled to seek her appointment as Anganwari Worker in Anganwari Centre, Thakurdwara because the respondent No. 4 has been appointed and presently working as such there. Unless and until her appointment is quashed and set aside, the petitioner cannot seek a direction to appoint her as Anganwari worker in the Centre in question. She is also not entitled to seek a direction for quashing the appointment of respondent No. 4. 12. In view of what has said hereinabove, this writ petition succeeds partly and the same is accordingly allowed. She is also not entitled to seek a direction for quashing the appointment of respondent No. 4. 12. In view of what has said hereinabove, this writ petition succeeds partly and the same is accordingly allowed. Consequently, the impugned order Annexure P-7 is quashed and set aside and the case is remanded to the Appellate Authority-cum-Additional District Magistrate, Kangra at Dharamshala for fresh disposal in the light of the observations made in this judgment and also in accordance with law. 13. The parties through learned counsel representing them are directed to appear before the Appellate Authority on 31.10.2019. 14. The writ petition is accordingly disposed of, so also the pending applications, if any.