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2019 DIGILAW 1406 (HP)

Laxmi Devi v. State of H. P.

2019-09-18

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Notice. Mr. Manoj Bagga, learned Assistant Advocate General, appears and waives the service of notice on behalf of respondents No.1 & 2 and Mr. Ashok Tyagi, learned counsel, waives the same on behalf of respondent No.3. With the consent of the parties, petition is taken up for disposal at this stage. 2. The Divisional Commissioner, Shimla has dismissed the appeal filed by the petitioner, an Anganwari Worker, as time barred. Hence, present writ petition has been preferred. 2(i) Petitioner is serving as an Anganwari Worker w.e.f. 03.08.2007. Her appointment was challenged by respondent No.3 under Clause 12 of 2007 Scheme/Guidelines for the engagement of the Anganwari Workers/Helpers before the Deputy Commissioner, District Sirmaur. This appeal was allowed by the Additional District Magistrate, District Sirmaur on 07.10.2013 whereby selection and appointment of the petitioner as an Anganwari Worker was quashed and further directions were issued to appoint next in merit, i.e. respondent No.3, as an Anganwari Worker in place of the petitioner. 2(ii) The petitioner challenged the above decision dated 07.10.2013, by filing writ petition before this Court bearing CWP No. 9404 of 2013. This writ petition was disposed off on 26.06.2019, taking note of the fact that under 2007 Anganwari Policy, the orders passed by the Deputy Commissioner under Clause 12, were assailable before the Divisional Commissioner. Since, the writ petition had been filed without availing the alternative remedy, therefore, writ petition was held to be not maintainable. Liberty was reserved to the petitioner to avail appropriate remedy in accordance with law. 2(iii) Petitioner thereafter, preferred an appeal before the Divisional Commissioner, Shimla on 22.07.2019, challenging the order dated 07.10.2013, passed by the Additional District Magistrate, District Sirmaur. Appeal has been dismissed vide order dated 12.09.2019, on the ground that:- In terms of 2007 Policy, appeal before the Divisional Commissioner could have been filed within fifteen days from the order of the Deputy Commissioner; in the instant case, the Additional District Magistrate had passed the order on 07.10.2013 and the appeal was preferred before the Divisional Commissioner on 22.07.2019; therefore, the same was not within prescribed limitation period. 2(iv) Feeling aggrieved, the instant writ petition has been preferred. 3. Heard, learned counsel for the parties and gone through the record. 2(iv) Feeling aggrieved, the instant writ petition has been preferred. 3. Heard, learned counsel for the parties and gone through the record. 3(i) During hearing of this case, learned counsel for the petitioner contended that the appeal preferred by respondent No.3, under Clause 12 of 2007 Anganwari Policy before the Deputy Commissioner, Sirmaur, challenging petitioner's appointment and selection was beyond prescribed limitation period and, therefore, the same could not have been entertained. Apparently, this ground was not taken by the petitioner in earlier proceedings. 3(ii) This Court while deciding 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 Anganwari scheme, there is no power with the quasi-judicial appellate authority to condone the delay, in filing the appeal. 3(iii) Since, the selection to the post of Anganwari Worker in question was initiated and completed under 2007 Anganwari Policy, therefore, Clause 12, as it existed in this policy, has to be applied vis-a-vis factual position in respect of determining the question of appeal having been filed within the prescribed limitation period or not. The question of limitation is a mix question of law and fact. This aspect has neither been raised earlier by the petitioner nor has been examined by the concerned authorities and, therefore, it needs to be adjudicated in view of the law laid down in Praveena Devi's case. Accordingly, impugned order dated 12.09.2019 (Annexure P-13) is quashed and set aside. This writ petition is disposed off by remanding the matter to the Deputy Commissioner, District Sirmaur with direction to decide the matter afresh vis-a-vis maintainability of the appeal. It shall be open to the contesting parties to raise all grounds, contentions, defences available to them before learned Deputy Commissioner, District Sirmaur in this regard. This writ petition is disposed off by remanding the matter to the Deputy Commissioner, District Sirmaur with direction to decide the matter afresh vis-a-vis maintainability of the appeal. It shall be open to the contesting parties to raise all grounds, contentions, defences available to them before learned Deputy Commissioner, District Sirmaur in this regard. Parties through their learned counsel are directed to appear before learned Deputy Commissioner, District Sirmaur on 15.10.2019. The writ petition is disposed of accordingly, so also the pending applications, if any. JUDGMENT : Jyotsna Rewal Dua, J. Notice. Mr. Manoj Bagga, learned Assistant Advocate General, appears and waives the service of notice on behalf of respondents No.1 & 2 and Mr. Ashok Tyagi, learned counsel, waives the same on behalf of respondent No.3. With the consent of the parties, petition is taken up for disposal at this stage. 2. The Divisional Commissioner, Shimla has dismissed the appeal filed by the petitioner, an Anganwari Worker, as time barred. Hence, present writ petition has been preferred. 2(i) Petitioner is serving as an Anganwari Worker w.e.f. 03.08.2007. Her appointment was challenged by respondent No.3 under Clause 12 of 2007 Scheme/Guidelines for the engagement of the Anganwari Workers/Helpers before the Deputy Commissioner, District Sirmaur. This appeal was allowed by the Additional District Magistrate, District Sirmaur on 07.10.2013 whereby selection and appointment of the petitioner as an Anganwari Worker was quashed and further directions were issued to appoint next in merit, i.e. respondent No.3, as an Anganwari Worker in place of the petitioner. 2(ii) The petitioner challenged the above decision dated 07.10.2013, by filing writ petition before this Court bearing CWP No. 9404 of 2013. This writ petition was disposed off on 26.06.2019, taking note of the fact that under 2007 Anganwari Policy, the orders passed by the Deputy Commissioner under Clause 12, were assailable before the Divisional Commissioner. Since, the writ petition had been filed without availing the alternative remedy, therefore, writ petition was held to be not maintainable. Liberty was reserved to the petitioner to avail appropriate remedy in accordance with law. 2(iii) Petitioner thereafter, preferred an appeal before the Divisional Commissioner, Shimla on 22.07.2019, challenging the order dated 07.10.2013, passed by the Additional District Magistrate, District Sirmaur. Liberty was reserved to the petitioner to avail appropriate remedy in accordance with law. 2(iii) Petitioner thereafter, preferred an appeal before the Divisional Commissioner, Shimla on 22.07.2019, challenging the order dated 07.10.2013, passed by the Additional District Magistrate, District Sirmaur. Appeal has been dismissed vide order dated 12.09.2019, on the ground that:- In terms of 2007 Policy, appeal before the Divisional Commissioner could have been filed within fifteen days from the order of the Deputy Commissioner; in the instant case, the Additional District Magistrate had passed the order on 07.10.2013 and the appeal was preferred before the Divisional Commissioner on 22.07.2019; therefore, the same was not within prescribed limitation period. 2(iv) Feeling aggrieved, the instant writ petition has been preferred. 3. Heard, learned counsel for the parties and gone through the record. 3(i) During hearing of this case, learned counsel for the petitioner contended that the appeal preferred by respondent No.3, under Clause 12 of 2007 Anganwari Policy before the Deputy Commissioner, Sirmaur, challenging petitioner's appointment and selection was beyond prescribed limitation period and, therefore, the same could not have been entertained. Apparently, this ground was not taken by the petitioner in earlier proceedings. 3(ii) This Court while deciding 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. 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. (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 Anganwari scheme, there is no power with the quasi-judicial appellate authority to condone the delay, in filing the appeal. 3(iii) Since, the selection to the post of Anganwari Worker in question was initiated and completed under 2007 Anganwari Policy, therefore, Clause 12, as it existed in this policy, has to be applied vis-a-vis factual position in respect of determining the question of appeal having been filed within the prescribed limitation period or not. The question of limitation is a mix question of law and fact. This aspect has neither been raised earlier by the petitioner nor has been examined by the concerned authorities and, therefore, it needs to be adjudicated in view of the law laid down in Praveena Devi's case. The question of limitation is a mix question of law and fact. This aspect has neither been raised earlier by the petitioner nor has been examined by the concerned authorities and, therefore, it needs to be adjudicated in view of the law laid down in Praveena Devi's case. Accordingly, impugned order dated 12.09.2019 (Annexure P-13) is quashed and set aside. This writ petition is disposed off by remanding the matter to the Deputy Commissioner, District Sirmaur with direction to decide the matter afresh vis-a-vis maintainability of the appeal. It shall be open to the contesting parties to raise all grounds, contentions, defences available to them before learned Deputy Commissioner, District Sirmaur in this regard. Parties through their learned counsel are directed to appear before learned Deputy Commissioner, District Sirmaur on 15.10.2019. The writ petition is disposed of accordingly, so also the pending applications, if any.