Himachal Pradesh High Court
Laxmi Devi vs State Of H.P. And Others on 26 June, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No.9404 of 2013
Decided on: 26.06.2019
.
Laxmi Devi ....petitioner.
Versus
State of H.P. and others ......respondents
................................................................................................
Coram
The Hon'ble Ms. Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Ms. Suman Thakur, Advocate.
For the respondents : M/s Desh Raj Thakur, Anil Jaswal
r and Rameeta Rahi, Additional
Advocate Generals, for
respondents No. 1 to 4.
Mr. Ashok K. Tyagi, Advocate, for
respondent No. 5.
Jyotsna Rewal Dua, J (Oral)
Prayer of the petitioner is for setting aside the order dated 07.10.2013, passed by the Additional District Magistrate, District Sirmaur, Nahan, H.P., whereby appointment of petitioner as Anganwadi worker was quashed.
02. The undisputed factual position of the case is:-
1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 2
2 (i) In terms of notification dated 11.04.2007, selection process was initiated for the post of Anganwadi .
Worker/Helper for Anganwadi Centre, Kadiyana, Tehsil Renuka Ji, ICDS, Block- Sangrah, District Sirmaur.
2(ii) Petitioner was selected as Anganwadi worker and appointment letter in this regard was issued on 03.08.2007. Respondent No.5 participated in the selection process and had stood 2nd in the merit list, after the petitioner, for the post of Anganwadi Worker. Presently respondent No.5 is working as Anganwadi Helper.
2(iii) A complaint against the selection of the petitioner as Anganwadi Worker was filed by respondent No.5, which was registered as Case No. 16/4 of 2007, before the Additional District Magistrate, District Sirmaur, Nahan, H.P. The complaint was in respect of ineligibility of petitioner for the post on the date of interview, primarily on grounds of her having married before the cut off date and therefore belonging to another area & the other grounds pertained to her higher family income & relations being in service.
::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 32(iv) While the complaint was pending, the petitioner filed writ petition bearing No. CWP No. 564 of .
2008, titled as Luxmi Devi Versus State of H.P., before this Court, seeking her transfer to a vacant post in another Anganwadi Centre. This request was directed to be considered, in accordance with law, vide order dated 11.04.2008 passed in the writ petition. In terms of this order, the petitioner's case for transfer was considered and she was accordingly transferred on her request to Anganwadi Centre at Aun Khadri, Teshil Nahan, H.P. 2(v) The complaint filed by respondent No. 5 against the selection of the petitioner was decided by the Additional District Magistrate, District Sirmaur at Nahan, H.P., vide impugned order dated 07.10.2013 (annexure P-
12) holding therein that the allegations levelled against the petitioner were proved and that she was not eligible candidate for the post of Anganwadi Worker, on the date of interview i.e. 2.8.2007, accordingly, her appointment was quashed and set aside. It is against this order, petitioner has filed the instant writ petition.
::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 43. I have heard learned counsel for the parties and gone through the record.
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4(i) Under the notification dated 11.04.2007, there exists a provision for appeal under Clause-12, against the order passed by the Deputy Commissioner. Such an order can be assailed within a period of 15 days from the date of passing of the order before the Divisional Commissioner.
4(ii) Respondent No.5 has taken a categoric stand in its reply with regard to maintainability of the writ petition without exhausting alternate remedy available against impugned order under that very policy in terms of which the petitioner was appointed. Respondent No.5 has also alleged that pendency of complaint against the selection & appointment of the petitioner was not disclosed by the petitioner in CWP No.564 of 2008. Respondent-State has also supported the impugned order on merits.
4(iii) No whisper has been made in the writ petition as to why the petitioner did not approach the appellate authority for redressal of her grievances.
::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 54(iv). Admittedly, this recourse to alternate remedy, has not been availed by the petitioner. There is not even a .
whisper in the writ petition in respect of existence of this provision in the notification. The averments made in the writ petition that there is no alternate efficacy remedy available to her, is a factually incorrect statement.
5. The law in this regard is well settled, in case Ruma Devi Vs. State of H.P. & others, 2013 (1) Shimla. LC 112, where similar question was raised. There also, a selection process undertaken in terms of notification dated 11.4.2007, was in question and the petitioner therein had not availed the alternate remedy as provided under Clause-12 of the notification. It was held therein as under:-
"9. There is no explanation why the petitioner could not file the appeal within 15 days which is the period of limitation prescribed. With regard to the present petition all that has been stated is that the petitioner could not muster up proper legal advice till the month of April, 2012. The petitioner was represented by counsel throughout and had earlier also filed a writ petition and we fail to understand how she can be heard to urge that she could not muster up proper legal advice.
10. We are also of the view that in case an alternative remedy is provided the party approaching the writ Court without availing of this remedy must in all fairness give the reasons for not availing the alternative ::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 6 remedy. The principle of alternative remedy is a rule of prudence. It is not as if the writ Court is powerless to interfere but when an alternative remedy is available the writ Court normally will not exercise its jurisdiction unless such remedy has been availed of. A person who .
fails to avail the alternative remedy within the time prescribed stands on an even worst position. In a case where the petitioner informs the Court that for certain reasons he could not file an appeal and since the appellate authority has no right to condone the delay he may be left with no other efficacious remedy but to file a writ petition. However, in this case other than saying that the petitioner was debarred from filing an appeal because limitation has expired, no reason has been given as to why the appeal was not filed within limitation."
6. The ratio of above judgment squarely applies to the facts of instant case. Petitioner without exhausting provision of alternate remedy, directly invoked the writ jurisdiction of this Court and falsely stated therein that no alternate remedy is available to her. No explanation was given in the writ petition as to why alternate remedy could not be invoked by the petitioner.
7. In view of above, I find no merit in the writ petition and the same is accordingly dismissed. Petitioner is at liberty to avail appropriate remedy in accordance with law, if so advised. The present petition is disposed of, so also the pending application, if any.
(Jyotsna Rewal Dua) Judge 26.06.2019(Rohit) ::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 7 .
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