Himachal Pradesh High Court
Jaiwanti vs Smt. Heera Mani And Others on 11 May, 2017
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 176 of 2016 Reserved on: May 4, 2017 Decided on: May 11, 2017 .
Jaiwanti ................Appellant
Versus
Smt. Heera Mani and others ..........Respondents
Coram
Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting? Yes.
For the appellant : Mr. Dinesh Kumar, Advocate.
For the respondents : Mr. I.D. Bali, Senior Advocate with Mr. r Virender Bali, Advocate, for respondent No.1.
Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 2 to 4.
Per Sandeep Sharma, Judge Instant Letters Patent Appeal under Clause 10 of the Letters Patent of High Court of Judicature at Lahore applicable to the High Court of Himachal Pradesh, is filed against judgment dated 22.9.2016 passed by learned Single Judge of this Court, in CWP No. 514 of 2016.
2. Briefly stated the facts of the case, as emerge from the record are that the respondent No.1-petitioner (hereinafter, 'petitioner') filed a writ petition being CWP No. 514 of 2016, stating therein that she alongwith other persons appeared for interview to the post of Anganwari Worker in Anganwari Centre Janaul, under ICDS Block Seraj. Petitioner ::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 2 was appointed as such on 4.8.2007. Appellant (respondent No.4 in the writ petition) filed appeal against her appointment before Deputy Commissioner Mandi, who allowed the same on 17.4.208 and selection .
of petitioner was set aside. Petitioner filed further appeal before Divisional Commissioner, which was dismissed on 25.9.2008. Petitioner thereafter filed CWP No. 1949 of 2008, which was disposed of by remanding matter back to Deputy Commissioner with a direction to decide the same afresh, on 20.10.2008. Deputy Commissioner, on 16.3.2011, dismissed the appeal of present appellant, against which she approached Divisional Commissioner, Mandi, who also dismissed the appeal filed before him. Appellant filed CWP No. 9637 of 2012 and petitioner filed CWP No. 3575 of 2012, which were clubbed and decided on 26.11.2012, with the direction to Tehsildar to decide the status of petitioner, who, on the basis of report of Naib Tehsildar found income of appellant more than ceiling prescribed under the Rules occupying the field. Petitioner approached Sub Divisional Officer(Civil), who also dismissed her appeal and appellant was directed to join as Anganwari Worker. Petitioner challenged said order before Deputy Commissioner and Divisional Commissioner, both of whom, dismissed the claim of the petitioner.
3. Feeling aggrieved with the dismissal of her appeal by the Divisional Commissioner, petitioner approached this Court, by filing CWP No. 514 of 2016, on the ground that her appeal before Divisional ::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 3 Commissioner was within limitation, but same was dismissed on the ground limitation itself. In reply to the writ petition, respondents-State, alongwith other objections, it was averred that the appeal filed by .
petitioner before Divisional Commissioner was time barred and as such rightly dismissed.
4. The learned Single Judge, vide judgment dated 22.9.2016, while discussing issue of limitation, taking cue from judgment of Hon'ble Apex Court in M.P. Steel Corporation vs. Commissioner of Central Excise, (2015) 7 SCC 58, held that the provisions of Limitation Act would apply to proceedings being prosecuted in the Courts appropriate i.e. Courts as understood in the strict sense of being part of judicial branch of the State. Learned Single Judge, set aside the order dated 18.9.2015 passed by Divisional Commissioner and requested him to decide the appeal by or before 30.11.2016. Feeling aggrieved by the same, the appellant has preferred the present appeal.
5. Mr. Dinesh Kumar, learned counsel representing the appellant, stated that view maintained by the learned Single Judge, vide impugned judgment is not tenable and runs contrary to the view taken by a Division Bench of this Court in Raksha Devi vs. State of H.P. & Others and other connected matters decided on 17.5.2010, whereby it has been held in para 19 as under:
"19. Another legal contention is as to whether the Appellate Authority has power to condone delay in filing appeal. The Guidelines provide a period of 15 days for filing an appeal. Being a statutory authority, in terms of the Policy Guidelines, the Appellate Authority does not have ::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 4 the power under Section 5 of the Limitation Act. No power is conferred also in the guidelines for condonation of delay. Therefore, he cannot enlarge the time, by condoning delay in filing the appeal. In other words, if an appeal is not filed within the prescribed time, it has only to be dismissed, since the Appellate Authority has no power to condone the delay in filing the appeal."
.
6. Mr. Dinesh Kumar, further averred that the office of Divisional Commissioner is neither a 'Court', nor a 'quasi judicial tribunal' and as such provisions of Limitation Act would not apply to the proceedings filed or pending before aforesaid authority.
7. Mr. I.D. Bali, learned Senior Advocate, duly assisted by Mr. Virender Bali, Advocate, supported the judgment of the learned Single Judge and prayed for dismissal of the appeal.
8. We have heard the learned counsel for the parties and gone through the record carefully.
9. Record reveals that the petitioner while seeking quashment of annexure P-10, order dated 18.9.2015, specifically averred that the appeal preferred by her was within limitation and Divisional Commissioner wrongly dismissed the same on the ground of delay. Apart from above, petitioner also sought direction to the authorities concerned to appoint her as Anganwari Worker, with all consequential reliefs. Close perusal of judgment passed by learned Single Judge suggests that the learned Single Judge instead of ascertaining correctness of claim put forth by the petitioner that her appeal was within limitation, ventured to ascertain and hold that provisions of Limitation act, are applicable while ::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 5 determining period of limitation for filing appeal in terms of guidelines for appointment of Anganwari Workers.
10. It is further revealed that the Divisional Commissioner .
dismissed the appeal on the ground that it was filed beyond stipulated period of 15 days, as prescribed for filing the appeal in the relevant guidelines. As far as observations made by this Court, in Raksha Devi's case (supra) that a statutory authority like the Divisional Commissioner has no power to condone delay of even one day, are concerned, same are correct. Careful perusal of aforesaid judgment passed by Division Bench of this Court suggests that this Court, while dealing with guidelines/ regulations having been framed by the State, for the appointment of Anganwari Workers, came to the conclusion that no power, if any, vests with an authority under these guidelines, to condone delay in filing appeal. But, admittedly, careful perusal of aforesaid judgment passed by Division Bench, nowhere suggests that issue, if any, with regard to applicability of Limitation Act was considered by the Division Bench, while holding/concluding that statutory authority as prescribed under guidelines have no power to condone delay, whereas, learned Single Judge placing reliance upon judgment passed by Apex Court in M.P. Steel Corporation vs. Commissioner of Central Excise (supra) has come to the conclusion that provisions of Limitation Act can be made applicable.
::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 611. Hence, we are not inclined to agree with the contention put forth by the learned counsel representing the appellant that judgment passed by learned Single Judge is in conflict with the judgment rendered .
by Division Bench of this Court. At the cost of repetition, it may be stated that the Division Bench of this Court nowhere deliberated upon the issue whether provisions of Limitation Act can be made applicable to the proceedings pending before an authority as envisaged under the guidelines for appointment of Anganwari Workers.
12. This Court, solely taking note of regulations itself, came to the conclusion that there is no power as such with the statutory authority to condone delay. However, it is another thing that the learned Single Judge, while examining the prayer having been made by the petitioner before him, ventured to explore whether provisions of Limitation Act, can be made applicable in proceedings arising out of aforesaid guidelines/ regulations framed by the State for the appointment of Anganwari Worker. Since, in this case, learned Single Judge was only required to see whether Divisional Commissioner rightly came to the conclusion that appeal was filed within statutory period i.e. 15 days from the date of passing of impugned order, this Court in the peculiar facts and circumstances of the case, deems it fit not to go into the correctness of the judgment passed by learned Single Judge as far as finding qua issue of applicability of Limitation Act to the proceedings, as referred to above, and same shall be decided in appropriate proceedings.
::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 713. In the instant case, as has been observed above, Divisional Commissioner rightly concluded that he had no power to condone delay of even one day in terms of judgment passed by this Court in Raksha .
Devi's case (Supra). But, admittedly, this Court sees merit in the observations made by the learned Single Judge that no one can be left remediless, especially, when he/she has no control /power to have certified copy within stipulated period as prescribed for filing appeal under the guidelines in question.
14. Hence, this Court, is of the view that the Divisional Commissioner, while ascertaining factum with regard to delay, if any, in maintaining the appeal, should have ascertained at the first instance, when the certified copy of order of Deputy Commissioner, was obtained by the appellant before him, and incase appeal was filed within 15 days of receipt of certified copy, he should have heard the appeal on merits and decided the same accordingly. Needless to say, if appellant before the Divisional Commissioner had preferred appeal after 15 days of receipt of copy of order from the Deputy Commissioner, Divisional Commissioner was well within his right to dismiss the appeal on the ground of limitation.
15. Consequently, in view of observations made herein above, this Court deems it fit to modify the judgment of the learned Single Judge to the extent that Divisional Commissioner, at the first instance, shall ascertain whether appeal was within period as stipulated by counting ::: Downloaded on - 12/05/2017 23:57:23 :::HCHP 8 period of limitation from the date of supply of order and not from the date of passing of such order by Deputy Commissioner and, in case, Divisional Commissioner comes to the conclusion that appeal was within .
limitation from the date of receipt of certified copy, he shall proceed to decide the appeal, on merits, in accordance with law.
16. The appeal is disposed of accordingly. Pending applications, if any, are disposed of.
(Sanjay Karol)
Acting Chief Justice
r (Sandeep Sharma)
Judge
May 11, 2017
(vikrant)
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