Bindro Devi vs State Of H.P. And Others
2023 Latest Caselaw 15145 HP

    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.
      Whether approved for reporting?1 yes





      For the petitioner          :       Mr. Ajay Sipahiya, Advocate.

      For the respondents         :       Mr. Pushpender Jaswal,
                                          Additional Advocate General
                       r                  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?

ii. Issue a writ in the nature of Certiorari for

quashing the Appointment Letter/Offer as PTMTW

.

in pursuance to Order dated 16.02.2023

(Annexure P-5) and Order dated 12.05.2023

(Annexure P-6);

iii. Issue an appropriate writ, order or direction to the

State Respondents not to disturb the Petitioner in

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

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

Notification dated 16.07.2020, Rule 19 was added in the

Part Time Multi Task Workers Policy, 2020, which provided

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

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

the appellant."

3. Though in terms of this Addendum, an

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.

4. 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

matters, decided on 02.08.2019, and on this short count,

the orders under challenge are liable to be quashed and set

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

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

the petitioner before the authorities below, therefore, she

cannot be permitted to raise this plea in this writ petition

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

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

proceedings pending in the Courts alone and

(ii) r to not before the quasi judicial authorities like

the Appellate Authority under the Scheme.

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

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 r 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

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

appeal."

10. During r 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

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

authorities below is of no consequence because when the

appeal admittedly was filed before the first Appellate

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

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

was not maintainable and respondents No. 1 to 6 are

directed to allow the petitioner to continue as Part Time

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)