Himachal Pradesh High Court
Praveena Devi. vs State Of H.P. & Ors. on 2 August, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 438 of 2017 & connected matters.
Reserved on: 03.05.2019.
Decided on: 02.08.2019.
1. CWP No. 438 of 2017
Praveena Devi. Versus State of H.P. & ors.
2. CWP No. 3302 of 2009
Smt. Manju Devi r Versus State of H.P. & ors.
3. CWP No. 3348 of 2009
Smt. Seeta Devi@ Sita Devi Versus State of H.P. & ors.
4. CWP No. 7604 of 2011
Pushpa Devi Versus State of H.P. & ors.
5. CWP No. 1700 of 2012
Urmila Devi Versus State of H.P. & ors.
6. CWP No. 4907 of 2012
Jaiwanti Versus State of H.P. & ors.
7. CWP No. 484 of 2013
Anita Devi Versus State of H.P. & ors.
8. CWP No. 6874 of 2013
Chameli Devi Versus State of H.P. & ors.
9. CWP No. 9345 of 2013
Sita Devi Versus State of H.P. & ors.
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2
10. CWP No. 9671 of 2013
Smt. Bimla Devi Versus State of H.P. & ors.
.
11. CWP No. 383 of 2014
Smt. Seema Devi Versus State of H.P. & ors.
12. CWP No. 474 of 2014
Smt. Larju Devi Versus State of H.P. & ors.
13. CWP No. 605 of 2014
Smt. Hima Devi r Versus State of H.P. & ors.
14. CWP No. 2468 of 2015
Smt. Ganga Devi Versus State of H.P. & ors.
15. CWP No. 2824 of 2015
Rama Sharma Versus State of H.P. & ors.
16. CWP No. 2825 of 2015
Smt. Meena Devi Versus State of H.P. & ors.
17. CWP No. 1400 of 2016
Rita Sharma Versus State of H.P. & ors.
18. CWP No. 1426 of 2016
Smt. Bimla Devi Versus State of H.P. & ors.
19. CWP No. 2130 of 2016
Savitri Devi Versus State of H.P. & ors.
20. CWP No. 2439 of 2016
Bimla Devi Versus State of H.P. & ors.
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21. CWP No. 205 of 2017
.
Shobha Devi Versus State of H.P. & ors.
22. CWP No. 1212 of 2017
Smt. Anita Versus State of H.P. & ors.
23. CWP No. 2325 of 2017
Kamlesh Kumari Versus State of H.P. & ors.
24. CWP No. 2877 of 2017
Smt. Sapna
r to
Versus State of H.P. & ors.
25. CWP No. 1998 of 2018
Smt. Sheetla Devi Versus State of H.P. & ors.
26. CWP No. 2872 of 2018
Smt. Krishna Kumari Versus State of H.P. & ors.
27. LPA No. 155 of 2011
Manorma Devi Versus Anjana Kumari & ors.
28. LPA No. 473 of 2011
Kamlesh Versus State of H.P. & ors.
29. LPA No. 262 of 2012
Smt. Vidya Devi Versus Child Development
Project Officer & ors.
30. LPA No. 7 of 2015
Kouli Devi Versus State of H.P. & ors.
31. LPA No. 15 of 2015
Smt. Jamna Devi Versus State of H.P. & ors.
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32. LPA No. 60 of 2015
.
Smt. Roshni Devi Versus State of H.P. & ors.
33. LPA No. 61 of 2015
Dhanawati Devi Versus State of H.P. & ors.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner(s)/ : M/s Sanjeev Bhushan and Mr.
appellant(s) Sanjeev Kuthiala, Senior
Advocates with Ms.
Abhilasha Kaundal, Ms.Garima
Kuthiala, M/s G.R. Palsra,
Vishal Panwar, Karan Singh
Kanwar, Digvijay Singh, K.B.
Khajuria, Ashok K. Tyagi, J.L.
Bhardwaj,Ambika Kotwal, Adarsh K. Vashisht, Surinder Saklani, Jai Dev Thakur,Dinesh Kumar, H.S. Rangra, Prem P. Chauhan, R.S. Chandel, Sudhir Negi, V.S. Rathore, Neel Kamal Sood, Sanjay Jaswal, Tara Singh Chauhan, and Mr. Mukul Sood, Advocates for the respective petitioner(s) in all the writ petitions and for the respective appellant(s) in all the appeals.
For the respondents : Mr. Vikas Rathore, Addl. AG with Mr. J.S. Guleria, Dy. AG.
1Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 5M/s Vivek Sharma, Ajeet Sharma, Lalit Sharma, Karan Singh Kanwar, Yogesh Kumar Chandel, .
Sushat Vir Singh Thakur, Advocate, for the private respondents.
Dharam Chand Chaudhary, Judge In this bunch of writ petitions and Letters Patent Appeals a common question that the Appellate Authority under the Schemes framed by respondent-State from time to time for making selection against the posts of Anganwari workers/helpers in the State is competent to condone the delay, if occurred in filing the appeal by the person aggrieved.
2. On 6.9.2017 after hearing this matter further, following orders came to be passed:
"Heard further. In view of the
arguments addressed perhaps one
Scheme was framed by the respondent-
State in the year 2007 providing therein the provision of limitation for filing an appeal against the selection of Anganwari workers/helpers as 15 days and another in the year 2009 Annexure P-5 in writ record in which though there is no provision of limitation for filing an appeal, however, limitation as per clause-12 thereof is qua decision of the appeal by the competent authority within 15 days. Learned Counsel have also informed that subsequently a memorandum was issued ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 6 by the respondent-State and thereby again made the provision of 15 days for .
filing an appeal against the selection of Anganwari workers/helpers. Learned Additional Advocate General to assist the Court qua this aspect of the matter by producing all Schemes or corrigendum/ memorandum, if any, issued by the State government governing the method of recruitment and other service conditions of the Anganwari worker and helper on the next date. List on 12.10.2017."
3. Subsequently, this matter when again listed in the Court on 22.11.2017, learned Additional Advocate General has produced all Schemes along with corrigendum issued by the respondent-State from time to time i.e. during the year 2005 to 2016 providing procedure for making selection and appointment as Anganwari workers/helpers. On that day, following orders came to be passed in these matters:
"Learned Additional Advocate General has produced all Schemes and Corrigendum/Memorandum governing the method of recruitment and other service conditions of the Anganwari workers and Helpers in the State right from the year 2005 till 2016. In all the Schemes framed as on today the period prescribed for filing an appeal by an aggrieved person against selection as Anganwari Worker/Helper is ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 7 15 days from the date of declaration of result thereof. It is in this backdrop and in .
the light of the judgment of this Court in CWP No. 1096 of 2010 dated 17.5.2010 titled Raksha Devi versus State of H.P. & others and its connected matters, learned Counsel to assist this Court on the next date. List on 13.12.2017."
4. On going through the different Schemes, it transpired that in few of them there is provisions to file the appeal by a person aggrieved within fifteen days from the date of appointment and in few of them within fifteen days from the date of declaration of the result and in few of such Schemes though no period is prescribed for filing an appeal, however, the period prescribed is for disposal of the appeal by the Appellate authority within fifteen days from the date of its institution. Being so, this Court has passed following orders on 9.8.2018:
"Heard further. The guidelines to govern the selection process and other procedure to be followed in the matter of appointment of an Anganwari Worker/Helper framed from time to time prescribe different criteria for example in the matter of period for filing of appeal by a person aggrieved from the selection made initially in the guidelines framed during the year 2006-07, it was 15 days from the date of publication of result, in ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 8 the year 2009, no time was prescribed for filing an appeal and it is only the appeal, .
if filed, had to be decided by the appellate authority within 15 days' from the date of its institution whereas as per the guidelines framed in the year 2010, the time for filing the appeal has been prescribed 15 days from the date of issuance of appointment letter. In the guidelines issued on 18.3.2016, again there is no time prescribed for filing the appeal and it is only 15 days prescribed thereunder for disposal of the same from the date of its institution. Whether any other and further guidelines issued after 18.3.2016 or not, learned Deputy Advocate General to seek instructions.
As a matter of fact, the writ petitions pertain to the years 2009, 2011, 2012, 2014, 2015, 2016 and 2017. The question of limitation raised therein has to be decided in terms of the guidelines inforce at the relevant time. Learned Deputy Advocate General to seek instructions in this behalf also and assist the Court accordingly on the next date. We would like to go through the record pertaining to issuance of these guidelines from time to time to ascertain as to without there being any mechanize (mechanism) provided under the guidelines, how the Policy makers have ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 9 satisfied themselves that the aggrieved person will come to know at his own .
about the declaration of result/issuance of appointment letter to the selected candidate and that there will be no hardship to him by way of prescribing 15 days as the period of limitation from the date of declaration of result/issuance of appointment order.
The
Secretary
r 1st
respondent
(Social
Empowerment ) to the Government of i.e. Justice Principal and Himachal Pradesh shall also remain present in person to assist the Court on the next date. List on 29th August, 2018."
5. It is thus seen that in the Scheme framed during the year 2006-2007 the prescribed time for filing the appeal is 15 days from the date of publication of the result. In the Scheme framed during the year 2009 no time was prescribed for filing an appeal and the Appellate Authority had to decide the appeal within 15 days from the date of its institution. As per the guidelines framed in the year 2010 the time for filing the appeal has been again prescribed 15 days, however, from the date of issuance of the appointment letter. In the guidelines issued specifically on 18.3.2016 again there is no provisions qua prescribing the time for filing appeal and it is the Appellate ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 10 Authority required to decide the appeal within 15 days from the date of its institution.
.
6. On the next date i.e. 29.8.2018, the Additional Chief Secretary, Social Justice and Empowerment to the Government of Himachal Pradesh attended this Court in person, as directed. On hearing learned Deputy Advocate General on that day and keeping in view there is no uniformity in the Schemes framed by the selection/appointment made person to from time to time particularly qua the time prescribed for filing appeal aggrieved against against the post of Anganwari the helper/worker and also that no mechanism find mention indicating as to how the person aggrieved would come to know about the appointment/declaration of result and consequently the date from which the limitation will start running. It was observed that there should be uniformity/clarity qua these aspects in the guidelines to be framed in future. The order passed on 29.8.2018 reads as follow:
"Consequent upon the order passed on the previous date, Mrs. Nisha Singh, Additional Chief Secretary, Social Justice and Empowerment to the Government of Himachal Pradesh is present in person. On instructions from her, Mr. R.P. Singh, learned Deputy Advocate General submits that process to modify/re-frame the guidelines meant for making selection of the candidates as Anganwari ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 11 worker/Anganwari Helper is in progress. As we have noticed in the order passed .
on the previous date, at different times, different guidelines came to be framed and sometime in complete departure to the guidelines in vogue at the time of re- framing or modifying the same. We feel that there should have been uniformity in the guidelines, particularly concerning with prescribing the limitation for filing an appeal by the aggrieved person against the appointment of a candidate as Anganwari worker/helper. In the guidelines some mechanism needs to be indicated with all certainty so that the person aggrieved should know that the limitation for filing the appeal against selection/appointment of Anganwari worker/helper will start running from the appointed day.
As we have noticed in the order passed on the previous date, the points in issue in these writ petitions are governed by the guidelines in vogue at the time of selection/appointment and the selection process initiated. Let the petitioners to segregate the cases covered under a particular policy and prepare the list(s) accordingly and also to place the same on record within two weeks. List these matters for further hearing now on 26.09.2018."::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 12
7. Consequent upon the order dated 26.09.2018 passed in these matters, Mr. Karan Singh Kanwar, Advocate has prepared .
and filed the list indicating therein the order of scheme(s) under which the selection/appointment made by the Selection Committee to facilitate this Court as to in how many writ petitions/LPAs the question of limitation alone is involved and also to find out that 15 days time for filing appeal therein is from the date of declaration of result or appointment of the selected candidate. The list so filed is on the record of this writ petition.
As per the list the following writ petitions have to be delinked being not involving the question of limitation as the ground of challenge:-
Writ petition number. Title Ground on which filed.
CWP No.160/2014 Sangeeta Devi V. State of Income dispute H.P. CWP No. 3371/2014 Anjana Kumar V. State of Feeder area.
H.P. CWP No. 3604/2014 Pushp Lata V. State of H.P. Different issue. CWP No. 644/2016 Anita Devi V. State of H.P. Income dispute. CWP No. 9725/2014 Pushp Lata V. State of H.P. Different issue.
The above writ petitions are, therefore, ordered to be de-linked.
8. It is in this backdrop, the matter was heard on the question as to whether Appellate Authority under the Scheme has the power to condone the delay in filing the appeal or not and reserved for pronouncement of order only qua this limited extent.
::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 139. As noticed supra, the period prescribed for filing an appeal against the declaration of result/appointment, as the case .
may be is 15 days from the date of publication thereof/appointment of selected candidate. The result as per provisions under the scheme(s) is required to be declared within a week of the last date of meeting of the Selection Committee.
Therefore, a candidate appeared before the Selection Committee on a particular day can reasonably be believed to have the knowledge of the date of declaration of result. Therefore, he is expected to be vigilant and the moment result declared and if aggrieved thereby prefers an appeal to the Appellate Authority prescribed under the scheme without wastage of further time.
So far as the date of appointment is concerned, once the candidate has the knowledge of declaration of result, he is supposed to have the knowledge of the appointment of the person selected also being a local resident. Perhaps, it is for this reason and rightly so the time for filing the appeal will start running from the date of declaration of result/appointment, as the case may be. The person aggrieved, therefore, cannot be heard of any complaint that he was not aware of the date of declaration of result/appointment of the selected candidate. In the scheme also, there is no requirement of filing the copy of result/appointment letter of the selected candidate. Therefore, in our considered opinion, the appeal in such like cases should ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 14 preferred within 15 days from the date of declaration of result/appointment of the selected candidate.
.
10. The Appellate Authority(s) as per the Scheme initially was the Deputy Commissioner of the concerned district. There was provisions of second appeal also before the Divisional Commissioner. Now it is only the Deputy Commissioner alone the Appellate Authority under the Scheme. The Appellate Authority(s) under the Scheme as such is Persona designeta of course quasi judicial authority. It is well settled that Section 5 of the Limitation Act is applicable only to the proceedings pending in the Court of law. We can draw support in this regard from the judgment of the apex Court in Sakuru versus Tanaji, AIR 1985 Supreme Court 1279. Relevant extract whereof reads as follow:
"............On a plain reading of the section it is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to computation of the period of limitation. The provisions relating to computation of the period of limitation are contained in Ss. 12 to 24 included in Part III of the Limitation Act, 1963. section 5 is not a provision dealing with computation of the period of limitation. It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 15 prescribed period that the question of extension of the period under S. 5 can .
arise. We are, therefore, in complete agreement with the view expressed by the Division Bench of the High Court in Venkaiah's case that S. 93 of the Act did not have the effect of rendering the provision of Sec. 5 of the Limitation Act, 1963 applicable to the proceedings before the Collector."
11. The Apex Court while placing reliance on the judgment in Sakuru's case supra had held in L.S. Synthetics Ltd. Versus Fairgrowth Financial Services Ltd. And another, AIR 2005 Supreme Court 1209 as under:
"The Limitation Act, 1963 is applicable only in relation to certain applications and not all applications despite the fact that the words "other proceedings" were added in the long title of the Act in 1963. The provisions of the said Act are not applicable to the proceedings before bodies other than Courts, such as quasi-judicial tribunal or even an executive authority The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a Tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act, 1963 per se may not be applied to the proceedings ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 16 before it. Even in relation to certain civil proceedings, the Limitation Act may not .
have any application."
12. The Division Bench of this Court vide judgment dated 17.5.2010 passed in CWP No. 1096 of 2010, titled Raksha Devi versus State of H.P. and others and its connected matters has also held as under:
"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 policy guidelines the Appellate Authority does not have the power under Section 5 of the Limitation Act. No power is conferred also in the guidelines for the condonation of delay. Therefore, he cannot enlarge the time by condoning the delay in filing the appeal. In other word, 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."
13. The case law discussed supra, therefore, lead to the only conclusion firstly that Section 5 of the Limitation Act has no application in the proceedings pending before statutory authorities like the Appellate Authority under the Scheme framed ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 17 for making selection/appointment against the post of Anganwari workers/helpers and also in the proceedings pending before quasi .
judicial authorities/tribunal etc. and secondly, the Appellate Authority is not vested with any power to condone the delay if occurred in filing the appeal under the Scheme. It has applicability only to the proceedings pending in the Courts
14. The provisions contained under Section 5 of the Limitation Act is, however, applicable to a proceeding pending before statutory authorities/quasi judicial authorities also in case the statute so provides. We may refer here the judgment of the Apex Court in Khadi Gram Udhog Trust versus Shri Ram Chandrji Virajman Mandir, AIR 1978 Supreme Court 287 .
While interpreting Section 21(2)(a) of the U.P. Urban Building (Regulations of letting, rent and eviction) Act XIII, 1972 has held that though the land-lord may institute the suit for eviction of the tenant from the building on the ground of arrears that the latter is in arrears of rent for not less than 4 months and has failed to pay the same to the former within one month from the date of service upon him of a notice of demand, however, in case rent is deposited/paid by the tenant unconditionally at the very first hearing of the suit, he will stand relieved from his liability for eviction on the ground of he being in arrears of rent for a period not less than four months as provided under Section 24 of the Act. Therefore, the Limitation Act is applicable even before quasi ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 18 judicial authorities/Tribunals also in case there is provisions qua its applicability in the statute.
.
15. However, the Apex Court in Mohamad Kavi Mohamad Amin versus Fatmabai Ibrahim, (1997) 6 Supreme Court Cases 71 has held that where there is no time limit prescribed for exercising of power under the statute the same should be exercised within a reasonable period.
16. A Division Bench of this Court has also held so in CWP No. 645 of 2011 decided vide judgment dated 29.7.2011.
This judgment reads as follow:
"Since the Court was not prima facie convinced by the scope of the Scheme, we directed the Government itself to file an additional affidavit as to whether there was a period of limitation as far as appeals pertaining to appointments under 2009 Scheme are concerned In the affidavit dated 18th July, 2011 filed by the Principal Secretary, Social Justice and Empowerment, it is made clear that only time limit for disposal of the appeal alone is contemplated in the Scheme and that there is no time as such prescribed in the Scheme. Thus it is clear that under the 2009 guidelines for appointment of Anganwari worker there is no period of limitation for filing appeal. If no time limit is prescribed for filing an appeal, it is now well settled law that it should be ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 19 construed to be filed within a reasonable period. It is seen that the petitioner has .
filed the appeal within three months which is a reasonable period by any standard."
17. The Apex Court in Uttam Namdeo Mahale versus Vithal Deo and Others, (1997) 6 Supreme Court Cases 73 has again held that the period of limitation prescribed under the Limitation Act stands excluded by necessary implication where special statute governing the matter prescribes no limitation period.
18. Learned arguing counsel on behalf of the petitioner(s) has placed reliance on the judgment rendered by a division Bench of this Court on May 11, 2017 in LPA No. 176 of 2016, titled Jaiwanti versus Smt. Heera Mani and others to persuad us to take a view of the matter that the period prescribed for filing the appeal should start running from the date when the copy of the result/appointment letter is received by the person aggrieved thereby. As a matter of fact, the Division Bench in this judgment has not gone into the question whether provisions of Limitation Act are applicable in the proceedings having arisen out of the Scheme framed by the State for appointment of Anganwari workers/helpers and rather left it open to be decided in some other appropriate proceedings. The ratio of this judgment that the Appellate Authority (Divisional ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 20 Commissioner) should at the first instance ascertain whether the appeal was within the period as stipulated by counting the period .
of limitation from the date of supply of order and not from the date of passing of such order by the Deputy Commissioner and that in case arrives at a conclusion that the appeal was within the limitation from the date of receipt of the certified copy of order to decide the same on merits in accordance with law being
19.
r to not relevant at this stage is left open to be considered at the time of hearing of individual writ petitions/LPA.
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 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 ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 21 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 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 ::: Downloaded on - 29/09/2019 01:44:51 :::HCHP 22 course, if arises in any of the writ petitions/LPA which have to be heard .
separately.
20. All the writ petitions/letters patent appeal have to be now taken up for hearing separately and decided in the light of the above legal principles settled in this judgment and on going through the facts of each case. List for the purpose on 3 rd September, 2019.
(Dharam Chand Chaudhary),
r Judge.
(Chander Bhusan Barowalia),
August 02, 2019 Judge.
(vs/naveen)
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