Himachal Pradesh High Court
Anupam Sharma vs State Of Himachal Pradesh & Others on 5 July, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 3122 of 2015 Reserved on: 27.06.2016 Decided on: 05.07.2016 .
___________________________________________________ Anupam Sharma.
.....Petitioner.
Versus State of Himachal Pradesh & others.
......Respondents.
_________________ _______________ ____________________ of Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia , Judge.
1Whether approved for reporting?
____________________________________________________ rt For the petitioner: Mr. Sunny Dhatwalia, Advocate.
For the respondents: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy. AG, for respondents No. 1 to 4.
Mr. Anil Jaswal, Advocate, for respondent No. 5.
Chander Bhusan Barowalia, Judge.
The present writ petition is maintained by the petitioner seeking directions to the respondents for quashing order, dated 05.08.2014, passed by the learned Appellate Authority, whereby the appeal of the respondent No. 5 was allowed.
2. Briefly stating the facts of the case, as per the petitioner, are that the petitioner was appointed as Anganwari Worker at Anganwari 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 2Centre, Adhrin, Tehsil Barsar, District Hamirpur, H.P. , on 08.08.2007, and subsequently her appointment was challenged by respondent No. 5 (Smt. Jamna Devi) on 03.09.2007 before the Deputy Commissioner, Hamirpur.
.
Her appointment was cancelled, vide order dated 06.02.2008, on the ground that income of her family was more than the upper limit fixed in the eligibility criteria of the Scheme. Thereafter, appeal of the petitioner was accepted by the Divisional Commissioner, Hamirpur, and the matter of was remanded back to Deputy Commissioner, Hamirpur, for deciding the same afresh. Additional Deputy Commissioner, Hamirpur, cancelled the rt appointment of the petitioner by dismissing the appeal of the petitioner.
Petitioner again approached the Divisional Commissioner, Mandi, challenging order dated 30.05.2009, passed by Additional Deputy Commissioner, Mandi, and the same was upheld by the Divisional Commissioner, Mandi. Against that order of the Divisional Commissioner, Mandi, the petitioner filed a writ petition before this Court, being CWP No. 4958 of 2009, and the same stood decided on 02.07.2010, in which number of directions were passed by the Division Bench of this Court, and the matter was again remanded back to the Deputy Commissioner concerned. The matter was dismissed by the Deputy Commissioner vide order dated 25.11.2010, and being aggrieved respondent No. 5 approached Divisional Commissioner, Mandi. Divisional Commissioner, ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 3 Mandi, remanded the matter to Deputy Commissioner, Hamirpur, vide order dated 10.08.2011. Again the appeal filed by respondent No. 5 was allowed by Deputy Commissioner, Hamirpur, vide order dated 05.08.2014.
.
Thereafte r, petitioner assailed the same by filing appeal before Divisional Commissioner, Mandi, and the same was dismissed vide order dated 10.06.2015, hence the present petition.
3. As per the petitioner, the action of respondent No. 2 is of without jurisdiction and respondent No. 3 exercised jurisdiction in wrong manner causing injustice to the petitioner. The petitioner has also averred rt that this Court in CWP No. 4958 of 2009 held that Appellate Court has no power to condone the delay in filing the appeal. In the present case the petitioner was appointed on 08.08.2007 and respondent No. 5 filed objections on 03.09.2010, thus rendering the appeal time barred by 11 days. The Deputy Commissioner not only entertained the appeal, but also allowed it. Meaning thereby the Deputy Commissioner, Hamirpur, exercised the jurisdiction not vested in him. Feeling aggrieved petitioner approached the Divisional Commissioner, Mandi, and respondent No. 5 produced a document after eight years alleging that the appeal was filed within time. Consequently, the appeal of the petitioner was dismissed on the ground of income.
4. Petitioner further pleaded that the appointment of the ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 4 petitioner was quashed owing to higher annual income . However, it is averred by the petitioner that the concerned authority cancelled the income certificate after six years in 2013 and her income was low at the .
time of appointment. It was also ignored that the petitioner was working on the post for the last more than eight years and it was also ignored that respondent No. 5 did not belong to feeding area and she is also drawing pension.
of
5. Respondents No. 1 to 4 have filed reply to the petition and refuted the stand of the petitioner. The replying respondents averred that rt the petitioner was appointed as Anganwari Worker by authorized Selection Committee, however, her appointment was challenged by respondent No. 5 (Smt. Jamna Devi) on the ground of higher income and it was found that income certificate of ` 7500/- per annum, produced by the petitioner, was wrong. Consequently, the income certificate was cancelled by Tehsildar, Barsar, and the petitioner became ineligible for the post of Anganwari Worker. The replying respondents No. 1 to 4 have also averred that Divisional Commissioner, Mandi, has passed a detailed, speaking order and the same is sustainable in the eyes of law. So the petitioner has no locus standi to challenge the same. It has been depicted in the order of Divisional Commissioner, Mandi, the date for declaration of result was 08.08.2007 and respondent No. 5 (Smt. Jamna Devi) filed ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 5 objection on 10.08.2007, which were duly received by the Additional District Magistrate, Hamirpur on 10.08.2007, rendering the appeal within time. On the other hand, as per the report of Tehsildar, Barsar, family .
income of the petitioner was ` 27420/- per annum. The income certificate of `7500/- per annum, produced at the time of interview by the petitioner, was wrong and rightly cancelled, rendering the petitioner ineligible for the post of Anganwari Worker. It is also averred that as the matter remained of pending in different Courts since 2007, the petitioner continued as Anganwari Worker and pursuant to the order dated 30.06.2015 of the rt Appellate Authority, the appointment of the petitioner was cancelled and respondent No. 5 joined on 04.07.2015 in place of the petitioner. The replying respondents submitted that in the interest of justice the petition deserves dismissal.
6. Respondent No. 5 has also filed reply to the writ petition and stand akin to that of respondents No. 1 to 4 was reiterated. Besides this, respondent No. 5 has averred that the judgment rendered by the Division Bench of this Court in CWP No. 4958 of 2009, is not applicable to the present case.
7. I have heard the learned counsel for the parties and have gone through the record carefully.
8. The petitioner was appointed as Anganwari Worker at ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 6 Anganwari Centre, Adhrin, Tehsil Barsar, District Hamirpur, H.P. on 08.08.2007 and thereafter the same was challenged by respondent No.5, as per the petitioner on 3.9.2007, but as per respondents on 10.8.2007.
.
Now, in the present writ petition the contentions which are to be considered, whether the family income of the petitioner was not more than the required income , as per the Scheme , rendering petitioner ineligible , and the order of the Divisional Commissioner is not sustainable of in the eyes of law.
9. rtAs far as the income of the petitioner is concerned, it is clear from the record that admittedly the petitioner was having more income than required under the Scheme. It was found that the Income Certificate, issued in favour of the petitioner, was cancelled by Tehsildar, Barsar, therefore she became ineligible. As the petitioner was having income more than the maximum limit, as required under the Scheme, her appointment was liable to be quashed and I find no arbitrariness in the orders passed by the respondents.
10. Now the learned counsel for the petitioner has argued that respondent No. 5 maintained the appeal after 15 (fifteen) days an d it was not within the limitation and was liable to be dismissed on this ground only. I find that as per the petitioner the appeal/objection was filed on 03.09.2007 by respondent No. 5, challenging the appointment of the ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP 7 petitioner, but reply of the respondents shows that respondent No. 5 has filed objections on 10.08.2007, which was received by the Additional District Magistrate on 10.08.2007, hence it cannot be said that it was .
filed after 15 days and was time barred.
11. Under these circumsta nces, I find no merit in the present petition and no illegality in the orders passed by respondent No. 2 dismissing the appeal of the petitioner by upholding the order of of respondent No. 3 and so the writ petition, being devoid of merits, is dismissed. Accordingly, the writ petition is dismissed. However, in view rt of peculiar facts and circumstances of the case, there is no order as to costs.
12. The writ petition, as also pending application(s), if any, shall stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 5th July, 2016 (virender) ::: Downloaded on - 15/04/2017 20:45:45 :::HCHP