Himachal Pradesh High Court
Shobha Devi vs State Of Himachal Pradesh And Others on 17 October, 2019
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.205 of 2017.
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Date of decision: 17th October, 2019.
Shobha Devi .....Petitioner.
Versus
State of Himachal Pradesh and others
.....Respondents.
Coram r
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. P.P. Chauhan, Advocate.
For the Respondents: Mr. Vinod Thakur, Additional
Advocate General with Mr.
Bhupinder Thakur and Mr.
Narender Singh Thakur,
Deputy Advocate Generals,
for respondents No.1 to 4.
Mr. H.S. Rana, Advocate, for
respondent No. 5.
Tarlok Singh Chauhan, Judge (Oral)
Interviews for the post of Anganwari Worker in the Anganwari Centre, Mastanpura-II, Nalagarh, were held on 23.07.2007 and the petitioner Shobha Devi was 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 2 appointed on the post of Anganwari Worker in the Anganwari Centre, Mastanpura-II, Nalagarh, under ICDS.
.
The selection of the petitioner was challenged by respondent No.5 before the Deputy Commissioner, Solan-
respondent No.3 by filing an appeal which was not decided by respondent No.3, constraining her to file CWP No.1629 of 2007 before this Court which was disposed of vide order dated 19.08.2009 with a direction to respondent No.3 to decide the appeal within a period of four weeks.
2. In compliance to the orders passed by this Court, respondent No.3 heard the appeal and vide order dated 18.09.2009 set aside the appointment of the petitioner constraining her to file second appeal before respondent No.2, who vide his order dated 04.12.2010 remanded the matter back to respondent No.3 with a direction to decide the same within a period of one month.
Thereafter, respondent No.3 vide order dated 29.10.2011 upheld his previous view and again accepted the appeal constraining the petitioner to file second appeal before respondent No.2, who vide his order dated 25.07.2016 dismissed the appeal on the ground of limitation as the appeal was not filed within the stipulated period of 15 days.
::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 3For taking this view, reliance was placed on the judgment of this Court in CWP No.1096 of 2010.
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3. Aggrieved by the said orders passed by respondents No.2 and 3, the petitioner has filed the instant petition for grant of the following substantive reliefs:
"(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 29.10.2011 and 25.07.2016 being Annexure P-5 and P-8 of the writ petition, as unconstitutional and illegal and contrary to the law;
(b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent No.2 to condone the delay in filing the second appeal and hear the matter on merits."
We have heard learned counsel for the parties and gone through the records of the case.
4. At the outset, it needs to be noticed that the interviews for the post of Anganwari Worker were held on 23.07.2007, whereas, the appointment of the petitioner came to be challenged by respondent No.5 by filing an appeal before respondent No.3 only on 03.09.2007 which admittedly is beyond the period of 15 days as has been ::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 4 prescribed under ICDS. Once that be so, obviously, the appeal filed by respondent No.5 was time barred and was .
required to be dismissed as such.
5. A Coordinate Bench of this Court in batch of writ petitions, the lead case being CWP No.438 of 2017 titled 'Praveena Devi versus State of Himachal Pradesh and others', decided on 02.08.2019, after taking into consideration the various instructions as also judicial precedents on the subject, proceeded to lay down the following guidelines:
"(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.::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 5
(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 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 Commissioner 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."
6. The appeal filed by respondent No.5 was squarely covered under guideline No.2(supra) and was thus required to be dismissed. Respondent No.3 was not vested with any jurisdiction to have first entertained the time barred appeal filed by respondent No.5, that too, without ::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 6 deciding the question of limitation and thereafter proceeded to have determined the appeal on merits. The order passed .
by respondent No.3 is clearly without any authority and jurisdiction and is consequently set aside.
7. At this stage, Mr. H.S.Rana, learned counsel for respondent No.5, would argue that the order passed by respondent No.3 has merged in the order passed by respondent No.2 and it is the appeal filed by the petitioner before respondent No.2 that was held to be time barred and, therefore, rightly dismissed by him. This contention, to say the least, is fallacious.
8. Once, the very foundation on which the edifice is built collapses, then with it falls the entire edifice.
Therefore, once the initial order passed by respondent No.3 is held to be without jurisdiction, then all the subsequent orders that have been passed by respondents No. 2 and 3 cannot cure and legalize the initial order passed by respondent No.3.
9. Once, the appeal filed by respondent No.5 was time barred, therefore, all consequential and subsequent proceedings thereto are of no avail and are clearly without any jurisdiction and authority.
::: Downloaded on - 19/10/2019 20:24:34 :::HCHP 710. Consequently, we find merit in this writ petition and the same is allowed. The orders dated .
29.10.2011(Annexure P-5) passed by respondent No.3 and 25.07.2016 (Annexure P-8) passed by respondent No.2, are quashed and set aside and the appointment of the petitioner as Anganwari Worker at Anganwari Centre, Mastanpura-II, Nalagarh, District Solan, H.P., is upheld. The parties are left to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Anoop Chitkara) Judge 17th October, 2019.
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