Suman Devi Daughter of Sh. Khayali Ram v. State Of Himachal Pradesh Through Its Secretary Social Justice And Empowerment Shimla
2022-05-02
SATYEN VAIDYA
body2022
DigiLaw.ai
ORDER : By way of instant petition, the petitioner has prayed for following relief:- “It is therefore respectfully prayed that in view of the facts and circumstances mentioned hereinabove the petition of the petitioner may kindly be allowed and the order dated 13.10.2015 passed by the Addl. Deputy Commissioner District Sirmour at Nahan in case No. 7/4 of 2013 may kindly be quashed and set aside in the interest of justice.” 2. The case of petitioner is that she was selected to the post of Anganwadi Worker in Anganwadi Center Rigadwala under ICDS Block Nahan, District Sirmour, H.P. She was offered appointment letter, dated 03.07.2013, Annexure P-3. Petitioner joined in pursuance thereto. 3. Respondent No.5 also participated in the selection process for aforementioned post, but remained unsuccessful. Respondent No.5 filed an appeal before the Deputy Commissioner, Sirmour at Nahan, assailing the appointment of petitioner. Additional Deputy Commissioner, Sirmour at Nahan accepted the appeal of respondent No.5 vide order dated 13.10.2015. The selection of petitioner to the post of Anganwadi Worker in Anganwadi Center Rigadwala under ICDS Block Nahan, District Sirmour, H.P., was quashed. Directions were issued for taking immediate steps to fill up the post. However, petitioner was allowed to continue on the said post till the same was filled again. 4. Aggrieved against the said order, dated 13.10.2015 passed by the Additional Deputy Commissioner, Sirmour at Nahan, in case No. 7/4 of 2013, petitioner has approached this court by way of instant petition. 5. The grievance of the petitioner, primarily is that the appeal filed by respondent No.5 before the Deputy Commissioner, Sirmour at Nahan was time barred. It is contended that as per Rule 12 of the applicable policy, the appeal could be filed within 15 days from the date of appointment. The appointment was offered to petitioner on 03.07.2013, whereas the appeal was filed on 24.07.2013 i.e. after expiry of 15 days. 6. In reply, filed on behalf of the official respondents, the impugned order passed by the Additional Deputy Commissioner, Sirmour at Nahan, has been supported. Nothing, however, has been stated about the appeal having been filed after period of limitation. 7. Respondent No.5 has not filed any reply. 8. I have heard learned counsel appearing for the parties and have also gone through the records. 9.
Nothing, however, has been stated about the appeal having been filed after period of limitation. 7. Respondent No.5 has not filed any reply. 8. I have heard learned counsel appearing for the parties and have also gone through the records. 9. It is not disputed by respondents that as per Rule 12 of the Guidelines for appointment of Anganwadi Workers , applicable to the facts, the limitation to file an appeal was 15 days from the date of appointment. 10. It is evident from appointment letter Annexure P-3, issued in favour of petitioner that the date of appointment was 03.07.2013. The impugned order mentions the date of institution of appeal as 24.07.2013 (wrongly mentioned as 24.07.2012). The date of institution of appeal is otherwise not disputed by respondents to be 24.07.2013. Thus, admittedly the appeal filed by respondent No.5 was beyond the period of limitation prescribed for filing the appeal. 11. The Division Bench of this Court in bunch of writ petitions, lead case being CWP No. 438 of 2017, titled as Praveena Devi vs. State of H.P. & Ors., decided on 02.08.2019, has held as under:- “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 the 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 Commission 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.” 12. In view of the aforestated exposition, the Appellate Authority had no jurisdiction to entertain the appeal after expiry of period of limitation. In view this, the impugned order cannot be sustained. 13. It has been contended on behalf of respondent No.5 that petitioner had not taken objection of limitation before the Appellate Authority, therefore, she was estopped from raising the plea of limitation in present petition. The argument so raised deserves to be rejected. It is more than settled that it is for the court or quasi judicial authority to exercise jurisdiction, keeping in view the law of limitation irrespective of such plea having not been raised as defence. 14. In the light of the observations made hereinabove, the instant petition is allowed and the order dated 13.10.2015 passed in case No. 7/4 of 2013 by the Additional Deputy Commissioner, Sirmour at Nahan, is quashed and set aside with no order as to costs. Pending applications, if any, shall also stand disposed of.