Madhya Pradesh High Court
Smt. Babita vs The State Of Madhya Pradesh on 12 March, 2018
1
HIGH COURT OF MADHYA PRADESH
WP No.5632/2018
(Smt. Babita Vs. State of Madhya Pradesh & Others)
Gwalior, Dated : 12.03.2018
Shri M.P.S.Raghuvanshi, learned counsel for the
petitioner.
Shri Vivek Jain, learned Govt. counsel for the
respondents No.1 to 4/State.
Shri Prashant Sharma and Shri Neelesh Singh Tomar, learned counsel for the private respondent No.5/Caveator.
With consent heard finally.
The present petition is preferred by the petitioner against the order dated 20.02.2018 (Annexure P-1) passed by the respondent No.2- the Commissioner, Chambal Division, Morena as well as order dated 26.03.2015 (Annexure P/2) passed by the Collector, District Bhind as well as order dated 25.04.2015 (Annexure P/3) passed by the Project Officer, I.C.D.S. Mehgaon, District Bhind. Matter pertains to appointment on the post of Aganwadi Worker.
Precisely stated facts of the case are that an advertisement was issued by the respondents for filling the post of Aganwadi Worker in I.C.D.S. Mehgaon, District Bhind in which total eight applications were received by the respondents and the committee preferred merit list in which petitioner stood at S.No.1 and acquired total 47.3 marks. Therefore, petitioner was appointed as Aganwadi Worker vide order dated 22.05.2010 (Annexure P/5). She started working over the said post, but respondent No.5 raised an objection over the appointment of the petitioner. She preferred appeal before the Appellate Authority-the 2 HIGH COURT OF MADHYA PRADESH WP No.5632/2018 (Smt. Babita Vs. State of Madhya Pradesh & Others) Collector, District Bhind vide Annexure P/6 in which the Collector, District Bhind passed the order dated 26.03.2015 (Annexure P/2) and set aside the appointment of petitioner. Direction was given to the Project Officer, I.C.D.S. Mehgaon, District Bhind to make appointment of meritorious person as per list. The Project Officer, I.C.D.S. Mehgaon, District Bhind vide order dated 25.04.2015 (Annexure P/3) appointed respondent No.5. Therefore, the petitioner had an occasion to file writ petition vide W.P.No.2902/2015 in which notices were issued and petitioner was given interim protection, meaning thereby, the petitioner was allowed to continue on the post of Aganwadi Worker.
Petition was pending for consideration since 2016. Vide order dated 08.02.2018, this Court directed the petitioner to file appeal before the Appellate Authority (Second Appeal) before the Divisional Commissioner, Chambal Division, Morena on or before 20.02.2018. It was directed that if petitioner prefers the appeal on or before 20.02.2018 then the appeal would be heard on its own merits without raising the question of delay because petitioner was pursuing her other remedies before this Court, therefore, benefit was given to the petitioner purportedly as per Section 14 of the Limitation Act. It was further directed that till the appeal is decided, status quo as it exists today shall be maintained by the parties and petitioner shall be allowed to continue at her present place 3 HIGH COURT OF MADHYA PRADESH WP No.5632/2018 (Smt. Babita Vs. State of Madhya Pradesh & Others) of posting.
It appears that petitioner could not file the appeal on or before 20.02.2018. Meanwhile, anticipating filing of appeal by the petitioner, the respondent No.5 had already filed a caveat which was pending before the Commissioner, Chambal Division. Therefore, when the appeal was not filed on or before 20.02.2018 then on 20.02.2018 itself, caveat was disposed of in which the Commissioner/ Appellate Authority directed the Collector and the Project Officer, I.C.D.S., Mehgaon, District Bhind to proceed in accordance with the earlier order dated 26.03.2015 passed by the Collector, District Bhind. Thereafter, it appears that respondent No.5 was given appointment and according to learned counsel for the respondent No.5, she is working as Aganwadi Worker.
Therefore, the petitioner has preferred this petition against the order dated 20.02.2018 (Annexure P/1) passed by the Commissioner, Chambal Division, Morena.
According to learned counsel for the petitioner, the Appellate Authority erred in passing the impugned order on caveat. When appeal was not filed by the petitioner within time then the Appellate Court ought to have waited for some days because appeal was likely to come and therefore, Appellate Authority erred in passing the impugned order. For last eight years, petitioner was working as Aganwadi Worker but due to some delay in filing the appeal, the state of affairs has changed to that extent 4 HIGH COURT OF MADHYA PRADESH WP No.5632/2018 (Smt. Babita Vs. State of Madhya Pradesh & Others) where petitioner has been removed and the respondent No.5 has been inducted arbitrarily. Therefore the impugned order deserves to be set aside. He relied upon the judgment in the case of Bibhudatta Mohanty vs. Union of India and Others reported in 2002 (4) SCC 16 and submits that respondent No.5 can not be given charge of Aganwadi Worker.
Learned Government counsel for the respondents No.1 to 4/State opposed the prayer made by the petitioner.
Learned counsel for the respondent No.5/Caveator opposed the prayer made by the petitioner and submits that petitioner has not challenged the latest order of appointment given to the respondent No.5. In absence of same, no interference is called for. Petitioner did not prefer appeal on or before 20.02.2018 therefore, the Appellate Authority has rightly passed the impugned order.
Heard the learned counsel for the parties at length and perused the record appended hereto.
From perusal of the order dated 08.02.2018 passed by this Court in W.P.No.2902/2015(S), it appears that direction was given to the petitioner to prefer appeal before the Divisional Commissioner, Chambal Division, Morena in accordance with law. Petitioner was directed to prefer an appeal on or before 20.02.2018. It was observed by this Court that till the appeal is decided, status quo as it exists today shall be maintained by the parties and the petitioner be allowed to continue at her present place of posting. Therefore, order was conditional in nature. In other words, 5 HIGH COURT OF MADHYA PRADESH WP No.5632/2018 (Smt. Babita Vs. State of Madhya Pradesh & Others) appellant/petitioner could have availed the remedy of status quo, if he would have preferred an appeal on or before 20.02.2018 although appeal is maintainable even after 20.02.2018 but for that matter appellant has to accompany the application for condonation of delay along with the appeal memo in accordance with law. For extension of time, petitioner has filed separate review petition R.P.382/2018. In that circumstance, Appellate Authority was at discretion to consider the application of condonation of delay first and thereafter was at liberty to hear the case on merits, but such exigency did not crop up because of the delay caused in preferring the appeal. From the record, it could not be surfaced that an application for condonation of delay was also preferred by the petitioner. An appeal was preferred on 28.02.2018 after eight days.
It appears that on 20.02.2018, when petitioner did not turn up as appellant with appeal then Appellate Authority passed the order on caveat rejecting the claim of the appellant as Aganwadi Worker and directed the Collector, District Bhind to revive the earlier order passed by him on 26.03.2015 (Annexure P/2). At the relevant point of time, when no appeal was preferred by the petitioner then the Appellate Authority did not err in directing the Collector to proceed further. Although petitioner is still at liberty to prefer appeal against the orders dated 26.03.2015 (Annexure P/2) and 25.04.2015 (Annexure P/3) passed by the Project Officer, I.C.D.S. Mehgaon, District Bhind as well as recent order if any passed by the authority regarding the appointment of the respondent No.5 in accordance with law before the Appellate Authority, but now the petitioner will 6 HIGH COURT OF MADHYA PRADESH WP No.5632/2018 (Smt. Babita Vs. State of Madhya Pradesh & Others) have to satisfy the authority about the delay in preferring the appeal in accordance with law by filing application for condonation of delay.
As far as status quo is concerned, it is settled in law that a stay order or an order of injunction is not granted to disturb the status-quo. It is no doubt granted to restore the status-quo, but it is never granted to establish a new state of things differing from the state which existed at the date when proceedings were instituted. See (Durg Transport Co. Private Ltd. Durg v. Regional Transport Authority, Raipur & Others reported in AIR 1965 Madhya Pradesh 142 (Division Bench). As per the said mandate passed by the Division Bench of this Court, no other inference can be drawn except to grant status quo as it exists today. If petitioner is still working as Aganwadi Worker then she shall be allowed to work till the appeal is decided or if respondent No.5 has been given appointment by the respondents then she shall be allowed to continue as Aganwadi Worker. For determination of controversy at the earliest, the Commissioner, Chambal Division, Morena is directed to complete the proceedings pending before him in appeal as expeditiously as possible preferably within three weeks from the date of receipt of the certified copy of this order.
Petition stands disposed of in the aforesaid terms.
(Anand Pathak) Judge AK/-
Digitally signed by ANAND KUMARDate: 2018.03.16 17:01:59 +05'30'