Shalu Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

The appointment of respondent No.3 as an Anganwari Worker in Anganwari Centre, Bakhaun has been challenged by the petitioner on the ground that private respondent No.3 has misrepresented the Authority by submitting false record with respect to her being resident of feeder area Khair (Nind), whereas feeder area Khair falls under Anganwari Centre, Baag and feeder area Nind falls under Anganwari Centre, Bakhaun. It has been submitted by the petitioner that both these villages, i.e Nind and Khair, fall under two different feeder areas and are not one and the same village as shown by the private respondent.

The contention of the petitioner has been opposed by the respondents. Respondents No.1 and 2 in their reply have submitted that private respondent No.3 was given appointment on the post of Anganwari Worker in Anganwari Centre, Bakhaun as per family register of Gram Panchayat Mahog. The relevant entries in the Panchayat Record Register shows that she belongs to Village Khair (Nind), which is the feeder area of Anganwari Centre, Bakhaun under ICDS Project, Karsog. Respondents No.1 and 2 in para-5 of their reply have also taken an objection about the maintainability of the writ petition as the petitioner instead of filing an appeal before the Deputy Commissioner in terms of Clause 12 of the Scheme/ Guidelines for engagement of Anganwari Workers, has straightway moved this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India.

Clause 12 of the Scheme/Guidelines for engagement of Anganwari Workers notified in 2016 (Annexure P-1) reads as under:-

"12. Appeal against selection Ist and final appeal by any aggrieved candidate can be made to the concerned Deputy Commissioner who will decide the same within 15 days from the date of filing appeal."

Petitioner without taking recourse to the remedy provided under Clause 12 above, has directly moved this Court under Article 226 of the Constitution of India. All the grievances raised in the petition pertain to the factual aspects. Learned counsel expressed his apprehension about limitation coming in way of the petitioner before the appellate authority. A Division Bench of this Court in CWP No.438 of 2017 and connected matters, titled Praveena Devi Versus State of H.P. & ors., decided on 02.08.2019, discussed the entire gamut of 'limitation' for filing appeals before the Appellate Authority, challenging the selection and appointment of Anganwari Workers under different Anganwari Policies. Paragraph-19 of the said judgment, being relevant in this regard, is extracted hereunder:-

"19. 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 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 course, if arises in any of the writ petitions/LPA which have to be heard separately."

In the instant Scheme/Guidelines, though no period of limitation has been prescribed for filing an appeal, however, the aggrieved person is expected to file appeal within reasonable time to be determined taking into consideration the facts of each case.

For the forgoing reasons, this writ petition is dismissed being not maintainable, reserving liberty to the petitioner to seek recourse to the remedy provided under Clause 12 of the Scheme/Guidelines extracted above by preferring an appeal before the concerned Deputy Commissioner.

In case of preferring such an appeal, the period spent by the petitioner in pursuing the instant petition shall not come in her way. This direction is being given in the peculiar facts and circumstances of the case and shall not be treated as a precedent in future. Pending application(s), if any, also stand disposed of.