Himachal Pradesh High Court
Bindro Devi vs State Of H.P. And Others on 3 October, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 3384 of 2023
Decided on : 03.10.2023
.
Bindro Devi ....Petitioner.
Versus
State of H.P. and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
of
Whether approved for reporting?1 yes
For the petitioner : Mr. Ajay Sipahiya, Advocate.
For the respondents
rt : Mr. Pushpender Jaswal,
Additional Advocate General
with Mr. Sumit Sharma, Deputy
Advocate Generals and Rajat
Chauhan, Law Officer for
respondents No. 1 to 6.
: Respondent No. 7 ex parte.
: Mr. Mukesh Sharma, Advocate
for respondent No. 8.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has prayed for the following reliefs:-
i. Issue a writ in the nature of Certiorari for quashing and setting aside Order dated 16.02.2023 (ANNEXURE P-5), Order dated 12.05.2023 (ANNEXURE P-6) and proceedings in pursuance to the same;
1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 2
ii. Issue a writ in the nature of Certiorari for quashing the Appointment Letter/Offer as PTMTW .
GPS Dadhog issued in favour of Respondent No. 8in pursuance to Order dated 16.02.2023 (Annexure P-5) and Order dated 12.05.2023 (Annexure P-6);
of iii. Issue an appropriate writ, order or direction to the State Respondents not to disturb the Petitioner in rt any manner whatsoever from performing her duties as a Part Time Multi Task Worker at GPS Dadhog;
iv. Issue an appropriate order or direction to the State Rspondents to produce the entire record pertaining to the case for the kind perusal of this Hon'ble Court; and v. Grant just and proper reliefs in exercise of the extra ordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India considering the facts and circumstances of the case and further the cost of the petition may kindly be awarded in favour of the Petitioner and against the Respondents."
2. The case of the petitioner is that on the recommendations of the Screening Committee held on ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 3 21.06.2022, the petitioner was offered appointment as a Part Time Multi Task Worker in Government Primary .
School Dadhog, vide Annexure P-1, dated 1st of July, 2022.
He joined the post on 4th of July, 2022. In terms of Addendum dated 25th of August, 2022 (Annexure P-4), issued by respondent No. 1, in partial modification of of Notification dated 16.07.2020, Rule 19 was added in the Part Time Multi Task Workers Policy, 2020, which provided rt as under:-
"In partial modification of this Department's Notification No.EDN-C-B(1)2/2019 dated 16 July, 2020 (as updated up to 11 March, 2022), the Governor, Himachal Pradesh is pleased to add "Rule-19 Appellate Authority" in the Part Time Multi Task Workers Policy, 2020 as under:
19.Appellate Authority:
The appeal in respect of complaints relating to PTMTW selection/appointment etc. should be made to the Additional District Magistrate (ADM) of the district within 15 days of the selection/ appointment. The appeal will be considered by the Additional District Magistrate (ADM) of the district and disposed off within 30 days from its receipt with suitable directions. If the complainant is not ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 4 satisfied with the outcome, then he/she may file an appeal with the Director of Higher/Elementary .
Education, as the case may be, within 15 days from the decision of the Additional District Magistrate (ADM). The appellate authority may dispose off the appeal within 60 days after hearing of the appellant."
3. Though in terms of this Addendum, an rt aggrieved party could have filed an appeal against the appointment of a Part Time Multi Task Worker within 15 days of the date of selection/appointment, yet, the private respondent assailed the appointment of the petitioner by filing an appeal (Annexure P-3) on 28th of September, 2022, which was beyond the period prescribed in the Policy.
Ignoring the fact that there was no provision of condoning delay in filing the appeal, this appeal was not only entertained by the appellate authority, but the appointment of the petitioner was also set aside by the authority in terms of the order dated 16.02.2023 (Annexure P-3). Thereafter, the subsequent appeal preferred by the petitioner against the order passed by the First Appellate Authority was also dismissed by the 2nd Appellate Authority vide order dated 12th May, 2023, hence the petition.
::: Downloaded on - 05/10/2023 20:34:20 :::CIS 54. Learned Counsel for the petitioner has argued that the act of the First Appellate Authority of entertaining .
the appeal beyond the period of limitation is per se bad in law in light of the adjudication on the issue by the Hon'ble Division Bench of this Court in CWP No. 438 of 2017, titled as Praveena Devi vs. State of H.P. and others and connected of matters, decided on 02.08.2019, and on this short count, the orders under challenge are liable to be quashed and set rt aside. He further submitted that even otherwise the appointment of the petitioner has been set aside by the authorities on the ground that as both the petitioner and the private respondent were similarly assessed by the Committee as far as the merit is concerned, therefore, as the private respondent happened to be elder in age in comparison to the petitioner, therefore, the appointment of the petitioner was bad. Accordingly, he prayed that the orders passed by the authorities, being not sustainable in the eyes of law, be quashed and set aside.
5. Learned Law Officer has submitted that in terms of the Addendum dated 25th August, 2022, the period for filing the first appeal was 15 days as from the date of ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 6 selection/appointment and indeed there was no provision therein for condonation of delay in filing the same.
.
6. On the other hand, learned Counsel for the private respondent, while justifying the decision passed by the authorities, has submitted that as no objection with regard to the maintainability of the appeal was raised by of the petitioner before the authorities below, therefore, she cannot be permitted to raise this plea in this writ petition rt for the first time and accordingly, on this count, the petition is liable to be dismissed. No other point was urged.
7. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended therewith.
8. It is a matter of record that the appointment of the petitioner, which was offered to her on 1st of July, 2022, was challenged by the private respondent beyond the prescribed period of 15 days. While interpreting the provisions of Aanganwari Policy analogous to the one existing in the present Policy with regard to the period of limitation prescribed therein for filing an appeal, Hon'ble Division Bench of this Court in CWP No. 438 of 2017, titled as Praveen Devi vs State of H.P. and others and other ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 7 connected matters, decided on 02.08.2019, was pleased to hold as under:-
.
"The upshots of the discussion hereinabove, therefore would be as follow:
(i) The provisions contained under Section 5 of the Limitation Act are applicable only to the of proceedings pending in the Courts alone and not before the quasi judicial authorities like rt 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.
(iii) Since in the Scheme framed by the respondent-State, there is no provision for condonation of delay, therefore, the person ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 8 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, of the aggrieved person must file the appeal within reasonable time to be determined on rt taking into consideration the facts of each case."
9. Prior to this also, Hon'ble Division Bench of this Court in Raksha Devi and others vs. State of H.P. and others and other connected matters, (2010) 2 HimLR 964, relating to Aanganwari Policy was pleased to hold 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 the power u/s 5 of the Limitation Act. No power is conferred also in the guidelines for ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 9 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 of appeal."
10. During rt the course of arguments, learned Counsel for the private respondent could not dispute the fact that the provisions which were interpreted by Hon'ble Division Bench in the matters referred to above were analogous to the present Scheme.
11. It is settled law that right to file appeal is a statutory right and not a common law right. Herein this right has been conferred by respondent No. 1 to the aggrieved party vide Addendum dated 25th of August, 2022, in which 15 days' time was granted to the aggrieved party to file an appeal as from the date of selection/ appointment of the party concerned. Respondent No. 1 in its wisdom while providing the Fora for filing appeal did not make any provision therein of conferring upon the authority the right to condone delay in filing the appeal. Therefore, in these ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 10 circumstances, the act of the First Appellate Authority of entertaining the appeal of the private respondent against .
the appointment of the petitioner beyond the period of limitation prescribed in the Policy per se was bad. The contention of learned Counsel for the respondent that this issue was not agitated by the petitioner before the of authorities below is of no consequence because when the appeal admittedly was filed before the first Appellate rt Authority by the private respondent beyond the period of limitation, duty was cast upon the said authority to have had checked as to whether it was having any jurisdiction to entertain the appeal filed after the prescribed period of limitation or not. Failure to discharge this duty by the First Appellate Authority cannot be taken advantage of by the private respondent herein as while conferring the right of filing the appeal, the period within which said right could have been exercised was strictly defined by respondent No. 1 in the Policy without any leverage of condonation of delay in filing the appeal.
12. Accordingly, in light of the findings returned hereinabove, this petition is allowed and Order dated 16.02.2023 (Annexure P-5) passed by First Appellate ::: Downloaded on - 05/10/2023 20:34:20 :::CIS 11 Authority and Order dated 12.05.2023 (Annexure P-6), passed by Second Appellate Authority, are quashed and set .
aside on the ground that the appeal filed by the private respondent against the appointment of the petitioner before the First Appellate Authority beyond the period of 15 days as from the date of appointment/joining of the petitioner of was not maintainable and respondents No. 1 to 6 are directed to allow the petitioner to continue as Part Time rt Multi Task Worker at Government Primary School, Dadhog, District Solan, H.P.
13. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel)
October 03, 2023 Judge
(narender)
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