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2019 DIGILAW 1731 (HP)

Kamlesh Kumari v. State of Himachal Pradesh

2019-11-16

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner assails order dated 23.04.2015, passed by the Divisional Commissioner, Shimla Division in Appeal No. 353/2013, titled as Kamlesh Kumari Vs. State of H.P. and others, which appeal stood dismissed by the said Authority on the ground that the same was barred by limitation and the Authority was having no power to condone the delay in filing the appeal in the second appeal. 2. Brief facts necessary for the adjudication of the present petition are that process was initiated by the respondent-State to appoint an Anganwari Worker in Anganwari Centre Hood, Tehsil Chopal, District Shimla, Himachal Pradesh. The petitioner as well as private respondent alongwith other eligible candidates participated in the process. Private respondent was selected and appointed as Anganwari Worker at the said Centre. 3. Feeling dissatisfied with the said selection, petitioner filed an appeal in terms of Clause 12 of the Scheme in vogue, which appeal stood dismissed by the Deputy Commissioner, Shimla vide order dated 19.11.2007. As the Policy envisaged a second appeal against the order of the First Appellate Authority, accordingly, petitioner filed second appeal before the Second Appellate Authority by way of Misc. Appeal No. 356/2007. The same was also dismissed on 10.01.2008. The orders passed by the First Appellate Authority as well as Second Appellate Authority were assailed by the petitioner by way of CWP No. 693 of 2009, titled as Kamlesh Kumari Vs. State of H.P. and others. 4. The writ petition filed by the petitioner was disposed of by the Hon’ble Division Bench of this Court alongwith other connected matter vide judgment dated 17th May, 2010, with the direction that the Appellate Authorities were to consider the cases afresh in the light of clarifications/directions/observations made in the said judgment and thereafter take appropriate action within a period of six months. 5. It appears from the record that pursuant to the passing of the said judgment, the appeal of the petitioner was re-considered by the First Appellate Authority and on merit, the same was dismissed by the said Authority again on 24.08.2013. The order so passed by the First Appellate Authority was challenged before the Second Appellate Authority by way of a second appeal, which was instituted on 05.12.2013. The order so passed by the First Appellate Authority was challenged before the Second Appellate Authority by way of a second appeal, which was instituted on 05.12.2013. This appeal has been dismissed by the Second Appellate Authority vide impugned order by inter alia holding that as the appeal was not filed within the statutory period of 15 days as from the date when the appeal stood decided by the First Appellate Authority, therefore, the same was barred by limitation as the Second Appellate Authority was not having any power to condone the delay in filing the appeal. 6. Feeling aggrieved, the petitioner has filed the present writ petition. 7. I have heard learned counsel for the parties and have also gone through the impugned orders as well as the documents appended with the petition. 8. It is not in dispute that repeatedly this Court has reiterated that in the case of Anganwari Workers, wherein time limit is provided in a particular Scheme for challenging the appointment of an Anganwari Worker/Helper, in case the appeal is not filed within the statutory limit, the same cannot be entertained by the Appellate Authority, as the Appellate Authority has no power to condone the delay in filing the appeal in terms of the provisions of Section 5 of the Limitation Act. Similarly, it has also been held that in those Schemes where provision of second appeal is there, therein also, in case the second appeal is not filed within the statutory period, then the said appeal cannot be decided on merit by the Second Appellate Authority, as said Authority also has no power to condone the delay in filing the second appeal. 9. In this view of the matter, in my considered view, there is no infirmity with the impugned order as the Second Appellate Authority was having no power to condone the delay in filing the appeal before it. 10. It is not the case of the petitioner that the findings returned by the said Authority were perverse findings, meaning thereby that the petitioner had approached the Second Appellate Authority well within limitation. 10. It is not the case of the petitioner that the findings returned by the said Authority were perverse findings, meaning thereby that the petitioner had approached the Second Appellate Authority well within limitation. A perusal of the impugned order demonstrates that after fresh adjudication of the appeal of the petitioner by the First Appellate Authority, which stood decided on 24.08.2013, copy of the order so passed by the First Appellate Authority was applied by the petitioner on 04.09.2013 and the same was issued to him on 01.10.2013. The second appeal was instituted on 05.12.2013, meaning thereby that even if the time which was spent in obtaining the certified copy of the order passed by the First Appellate Authority is excluded for the purpose of computing limitation, then also the appeal was not within limitation. Therefore, as the appeal which was preferred by the petitioner before the Second Appellate Authority was admittedly beyond the prescribed period of limitation, said Authority rightly rejected the appeal by holding that the same was barred by limitation and the authority was having no powers to condone the delay in filing the appeal. 11. In view of the observations made hereinabove, as this Court finds no infirmity with the impugned order and further as there is no merit in the present petition, the same is dismissed. Interim order, if any, stands vacated. Miscellaneous applications, if any, also stand disposed of.