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Madhya Pradesh High Court · body

2021 DIGILAW 33 (MP)

Madhu Morya (Ku. ) v. State of M. P.

2021-01-13

G.S.AHLUWALIA

body2021
ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 16.4.2013 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No. 406/2011-12/Appeal, by which the appeal filed by the petitioner has been dismissed. 2. The necessary facts for disposal of the present petition in short are that the petitioner is a Scheduled Caste candidate and an advertisement was issued for appointment of Anganwadi Worker. The petitioner as well as the respondent No.5 participated in the said recruitment process and by order dated 12.6.2017, the petitioner was appointed on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior. The appointment of the petitioner was challenged by respondent No.5 before the Additional Collector, Gwalior. It is submitted by the counsel for the petitioner that at the time of appointment of the petitioner, the policy for appointment on the post of Anganwadi Worker, dated 27.5.2006 was in force, according to which the minimum qualification for recruitment to the post of Anganwadi Worker was Higher Secondary/Inter pass. It was also provided that the candidate belonging to Scheduled Caste and Scheduled Tribe, living Below the Poverty Line, as well as Widow/ Deserted, Spinster of 30 years or more and other women would be given preference. However, thereafter on 10.7.2007, a new policy was formulated and it was provided that the marks would be awarded as per the percentage obtained in respective examinations. It is submitted that thereafter, the Additional Collector, District Gwalior by order dated 29.6.2009 passed in Case No.35/2008-09/Appeal allowed the appeal filed by the respondent No.5 on the basis of the guidelines dated 10.7.2007 and remanded the matter back. It was observed by Additional Collector that the recommendation was made for appointment of the respondent No.5 on the basis that she belongs to Scheduled Caste and is living Below the Poverty Line and is running a Shishu Sikshya Kendra. It was also mentioned that the name of the respondent No.5 was mentioned in the panel of names which was recommended by the Councillor. It was also observed that although the name of the petitioner was not in the panel of names recommended by the Councillor, but on the basis that she is a spinster, aged about 30 years, she was appointed. It was also observed that although the name of the petitioner was not in the panel of names recommended by the Councillor, but on the basis that she is a spinster, aged about 30 years, she was appointed. It was further observed that although the name of the respondent No.5 was recommended but by ignoring the said recommendation, the petitioner was granted appointment. It was also observed that although the counsel for the petitioner had raised an objection that the appeal filed by the respondent No.5 is barred by limitation but the said objection was rejected on the ground that the objection with regard to delay in filing the appeal should have been raised at the earliest but it was not done, therefore, at this stage, it cannot be decided. Accordingly, the appointment of the petitioner was set aside and the matter was remanded back to the competent authority to consider the application for appointment on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior. 3. Being aggrieved by the order of the Additional Collector, the petitioner preferred a revision which was registered as Case No.207/2008-09/Revision, but the said revision was dismissed by order dated 22nd March, 2009 by the Additional Commissioner, Gwalior Division, Gwalior. While dismissing the revision filed by the petitioner, the Additional Commissioner, Gwalior Division, Gwalior considered the marks obtained by the candidates in Higher Secondary/Inter Examination. Thereafter, by order dated 11.5.2010, the Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior, cancelled the appointment of the petitioner and by another order dated 11.5.2010, appointed the respondent No.5 on the post of Anganwadi Worker, Anganwadi Centre, Ward No. 14/11, Bhitarwar, District Gwalior. 4. The petitioner, thereafter, preferred an appeal challenging the appointment of the respondent No.5 before the Additional Collector, Gwalior which was registered as Case No.22/2010-11/Appeal and was dismissed by order dated 29.11.2011. The order passed by the Additional Collector, Gwalior was challenged in appeal preferred before the Additional Commissioner, Gwalior Division, Gwalior in Case No. 406/2011-12/Appeal, which too has been dismissed by order dated 16.4.2013. 5. The order passed by the Additional Collector, Gwalior was challenged in appeal preferred before the Additional Commissioner, Gwalior Division, Gwalior in Case No. 406/2011-12/Appeal, which too has been dismissed by order dated 16.4.2013. 5. Challenging the orders passed by the authorities below, it is submitted by the counsel for the petitioner that the date on which the advertisement was issued and even on the date on which the petitioner was appointed on the post of Anganwadi Worker, i.e. 12.6.2007, the policy for appointment on the post of Anganwadi Worker dated 27.5.2006 was in vogue and the only requirement was that the candidate must have passed Higher Secondary/Inter Examination. There was nothing in the said policy that the points/marks would be awarded on the basis of percentage of marks of the candidates in the Higher Secondary/ Inter Examination. This condition was inserted for the first time in the policy dated 10.7.2007. It is submitted that the policy dated 10.7.2007 came into existence subsequent to the appointment of the petitioner and, therefore, the subsequent policy cannot be taken into consideration for deciding pending appeal. It is further submitted that any recommendation of the name of the candidate made by Sector Supervisor was not binding on the competent authority and if the Project Officer, Integrated Child Welfare Development Project was of the view that the recommendation made by Sector Supervisor is not in accordance with rules/ guidelines, then it was not incumbent upon him to blindly act upon the recommendation of the Sector Supervisor and, therefore, the Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior rightly appointed the petitioner on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior. It is submitted that the guidelines dated 10.7.2007 were not retrospective in operation, therefore, the subsequently enforced policy should not have taken into consideration by the authorities. It is further submitted that the appeal filed by the respondent No.5 against the appointment of the petitioner was barred by limitation. 6. Per contra, the petition is opposed by the counsel for the respondents. The counsel for the respondent No.5 submitted that since the orders under challenge were passed by the authorities, therefore, it is for the authorities to support their stand. No other argument with regard to the correctness of the orders passed by the authorities was advanced by the counsel for the respondent No.5. The counsel for the respondent No.5 submitted that since the orders under challenge were passed by the authorities, therefore, it is for the authorities to support their stand. No other argument with regard to the correctness of the orders passed by the authorities was advanced by the counsel for the respondent No.5. In case if the petition is allowed, then the respondent No.5 would be the sufferer but for the reasons best known to her counsel, no argument was advanced. 7. The counsel for the respondents No.1 to 4 submitted that the authorities have rightly taken into consideration the subsequently implemented policy because on the day when the appeal filed by respondent No.5 was decided by the Additional Collector, the new policy dated 10.7.2007 had come into operation and, therefore, no illegality has been committed by the authorities. 8. So far as the question of limitation is concerned, the counsel for the respondents No.1 to 4 submitted that since the objection with regard to limitation was not raised by the petitioner at the earliest, therefore, the Additional Collector was right in ignoring the question of limitation. 9. Heard the learned counsel for the parties. 10. From the order dated 29.6.2009 passed by Additional Collector, Gwalior in Case No.35/2008-09/Appeal, it is clear that during the course of argument, a specific objection was raised by the counsel for the petitioner that the appeal filed by the respondent No.5 was barred by limitation, however, the said objection was turned down by the Additional Collector, Gwalior by observing that the objection with regard to limitation should have been raised by the counsel for the petitioner at the earliest and since that objection was not raised, therefore, the said objection cannot be considered at the time of final arguments. 11. The ground on which the objection with regard to limitation was rejected by the Additional Collector, Gwalior cannot be upheld. So far as the question of limitation is concerned, as per section 3 of the Limitation Act, it is for the Court to find out as to whether the appeal is within the limitation or not. There is no law that in case if the question of limitation is not raised at the earliest, then it cannot be considered at a later stage. 12. Section 3 of the Limitation Act reads as under :- ''3. There is no law that in case if the question of limitation is not raised at the earliest, then it cannot be considered at a later stage. 12. Section 3 of the Limitation Act reads as under :- ''3. Bar of limitation.— (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act— (2) For the purposes of this Act— (a) a suit is instituted— (i) in an ordinary case, when the plaint is presented to the proper officer;" (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and" (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted— (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.'' 13. From the plain reading of section 3(1) of the Limitation Act, it is clear that whether the question of limitation has been set up as a defence or not, it is for the Court to find out as to whether the proceedings are within the period of limitation or not and if those proceedings are not within the limitation, then they are to be dismissed as barred by time. 14. The Supreme Court in the case of Draupadi Devi and Others v. Union of India and others, reported in (2004) 11 SCC 425 has held as under :- ''72. That brings us to the issue of limitation. The learned Single Judge held that the plea of limitation not having been taken in the pleadings defendants No.1 and 2 should not be allowed to raise the said plea. 73. That brings us to the issue of limitation. The learned Single Judge held that the plea of limitation not having been taken in the pleadings defendants No.1 and 2 should not be allowed to raise the said plea. 73. We may notice here that under the Code of Civil Procedure, Order VII Rule 1(e) requires a plaint to state "the facts constituting the cause of action and when it arose". The plaintiff was bound to plead in the plaint when the cause of action arose. If he did not, then irrespective of what the defendants may plead in the written statement, the Court would be bound by the mandate of section 3 of the Limitation Act, 1908 to dismiss the suit, if it found that on the plaintiff's own pleading his suit is barred by limitation. In the instant case, the plaint does not plead clearly as to when the cause of action arose. In the absence of such pleadings, the defendants pleaded nothing on the issue. However, when the facts were ascertained by evidence, it was clear that the decision of the Government of India not to recognise the suit property as private property of the Maharaja was taken some time in the year 1951, whether in March or May. Dewan Jarmanidass, the plaintiff and the Maharaja were very much aware of this decision. Yet, the suit was filed only on 11.5.1960. 74. The Division Bench was, therefore, right in applying Article 120 of the Limitation Act, 1908 under which the period of limitation for a suit for which no specific period is provided in the Schedule was six years from the date when the right to sue accrues. The suit was, therefore, clearly barred by limitation and by virtue of section 3 of the Limitation Act, 1908, the Court was mandated to dismiss it. 75. As rightly pointed out by the Division Bench, the learned Single Judge ought to have permitted the plea to be raised on the basis of the facts which came to light. The Division Bench has correctly appreciated the plea of limitation, in the facts and circumstances of the case, and rightly came to the conclusion that the suit of the plaintiff was liable to be dismissed on the ground of limitation. We agree with the conclusion of the Division Bench on this issue.'' 15. The Division Bench has correctly appreciated the plea of limitation, in the facts and circumstances of the case, and rightly came to the conclusion that the suit of the plaintiff was liable to be dismissed on the ground of limitation. We agree with the conclusion of the Division Bench on this issue.'' 15. Thus, it is clear that the Additional Collector, Gwalior should not have rejected the objection of limitation. 16. Now, the next question for consideration before the Court is that whether the appeal filed by the respondent No.5 was barred by limitation or not? 17. In the guidelines dated 27.5.2006, the provision of appeal reads as under:- vk¡xuokM+h dk;ZdrkZ@lgkf;dk dh fu;qfDr@lsok ls i`Fkd djus ds fdlh Hkh Ádj.k esa fookn gksus dh fLFkfr esa mlds }kjk dysDVj ds le{k vihy dh tk ldsxh] dh xbZ vihy ds lanHkZ esa ftyk dysDVj dk fu.kZ; vafre gksxkA 18. No period of limitation was provided for filing an appeal. 19. It is contended by the counsel for the petitioner that in the policy dated 10.7.2007, the limitation of ten days has been provided. The petitioner cannot play hot and cool by submitting on one hand, that the appointment of the petitioner is governed by policy dated 27.5.2006 and not by policy dated 10.7.2007 and at the same time, by submitting that the period of limitation provided in the policy dated 10.7.2007 should be imported in the policy dated 27.5.2006. 20. Thus, it is clear that in absence of any period of limitation, the Additional Collector, Gwalior could not have dismissed the appeal filed by the respondent No.5. Under these circumstances, it is held that the appeal filed by the respondent No.5 before the Additional Collector, Gwalior was within time and was not barred by limitation. 21. The next question for consideration is that when the entire selection process was completed prior to 10.7.2007, then whether the conditions provided under the policy dated 10.7.2007 could have been made applicable to the present case or not ? 22. The guidelines dated 27.5.2006 as well as the guidelines dated 10.7.2007 are executive instructions. The guidelines are always prospective in operation until and unless they are made retrospective specifically. There is nothing in the guidelines dated 10.7.2007 to indicate that those guidelines were retrospective in operation or were also made applicable to pending appeals arising out of recruitment made prior to 10.7.2007. The guidelines are always prospective in operation until and unless they are made retrospective specifically. There is nothing in the guidelines dated 10.7.2007 to indicate that those guidelines were retrospective in operation or were also made applicable to pending appeals arising out of recruitment made prior to 10.7.2007. Under these circumstances, this Court is of the consideration opinion that since the appointment of the petitioner was made prior to coming into force of policy dated 10.7.2007, therefore, the case of the petitioner has to be considered in the light of the guidelines dated 27.5.2006. 23. As per the guidelines dated 27.5.2006, the only qualification for appointment of Anganwadi Worker was that the candidate must have passed Higher Secondary/ Inter Examination. Preference was also given to the candidates belonging to Scheduled Caste and Scheduled Tribes and living Below the Poverty Line, Widow, Deserted, Spinster aged about 30 years or more and other women. In the guidelines dated 27.5.2006, there was no provision that any marks were to be awarded on the basis of percentage of marks obtained by the candidates in the Higher Secondary/ Inter Examination. Since the minimum qualification was Higher Secondary/Inter Examination, therefore, under these circumstances, where the candidates are at par with each other, then it cannot held that under no circumstance, the respondents were not competent to consider the marks obtained by the candidates in the Higher Secondary/ Inter Examination. However, in the present case, the situation is different. It is submitted that the marks could have been considered only when any candidate who was eligible to get preference, was not available. In this case, the petitioner was entitled for preference being a spinster aged about 30 years and once the candidate having passed Higher Secondary/ Inter Examination was entitled to get preference, then there was no occasion for the respondents to consider the marks obtained by the candidates in the Higher Secondary/ Inter Examination. 24. The counsel for the respondent No.5 has raised his hands by submitting that it is for the respondents/ authorities to justify their orders. 25. The respondents No.1 to 4 have filed their return merely by mentioning that the petitioner is pursuing the litigation since 2007 without any merits and the orders passed by the respondents/ authorities are in accordance with law. 26. The petitioner in paragraph 6 of the writ petition has specifically taken the following grounds :- ''6.2. 25. The respondents No.1 to 4 have filed their return merely by mentioning that the petitioner is pursuing the litigation since 2007 without any merits and the orders passed by the respondents/ authorities are in accordance with law. 26. The petitioner in paragraph 6 of the writ petition has specifically taken the following grounds :- ''6.2. That, the appointment of petitioner vide order dated 12.6.2007 as per direction of circular dated 27.5.2006 because she had requisite qualification and given preference that she was unmarried over 30 years of age living below poverty line as contemplated condition in aforesaid circular. 6.3. That, the respondent No.3 overlooked circular dated 27.5.2006 by which the appointment of petitioner was made while respondent No.3 decided appeal No. 35/2006-2007 of respondent No.5 as per circular of amended circular dated 10.7.2007 which has no retrospective effect. 6.4. That, the without amending the rules given retrospective effect the selection of petitioner already made the right vested with the petitioner to obtain employment cannot be taken away. 6.5. That, the respondent No.2 also over looked appointment of petitioner which was made according circular dated 27.5.2006 and passed order as per direction given circular dated 10.7.2007 which was issued after appointment of petitioner dated 12.6. 2007. 6.6. That, the amendment rules dt. 10.7.2007 will not be applicable in case of petitioner who selection order amended rules dated 27.5.2006 has been finalised and appointment of petitioner was made on 12.6.2007.'' 27. Respondents No.1 to 4 have not cared to meet out the grounds raised by the petitioner. The petitioner and respondent No.5 are candidates belonging to Scheduled Caste. 28. Under these circumstances, this Court is of the considered opinion that when all the candidates were having similar qualification, then the respondents should have looked into the provisions for giving preference and since the petitioner had also passed Higher Secondary/ Inter Examination and was entitled for preference being a spinster of thirty years, the respondents should not have looked into the marks obtained by the candidates in the Higher Secondary/ Inter Examination. Accordingly, it is held that the Project Officer, Integrated Child Welfare Development Project had rightly appointed the petitioner by order dated 12.6.2007 on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior and the appointment of the petitioner was wrongly cancelled by Project Officer, Integrated Child Welfare Development Project, by order dated 11.5.2010. 29. Accordingly, it is held that the Project Officer, Integrated Child Welfare Development Project had rightly appointed the petitioner by order dated 12.6.2007 on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior and the appointment of the petitioner was wrongly cancelled by Project Officer, Integrated Child Welfare Development Project, by order dated 11.5.2010. 29. Accordingly, the order dated 29.6.2009 passed by Additional Collector, Gwalior in Case No.35/2008-09/Appeal, order dated 22nd March, 2009 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.207/2008-09/Revision, order dated 11.5.2010 passed by Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior by which the appointment of the petitioner was cancelled, order dated 11.5.2010 passed by Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior by which the respondent No.5 was appointed on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior, order dated 29.11.2011 passed by Additional Collector, Gwalior in Case No.22/2010-11/Appeal and the order dated 16.4.2013 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.406/2011-12/Appeal, are hereby set aside. The order dated 12.6.2007 by issued by Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior by which the petitioner was appointed on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior is hereby restored. 30. With the aforesaid observations, the petition succeeds and is hereby allowed. No order as to costs.