Madhu Morya (Ku. ) vs State of M. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 235

IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Madhu Morya (Ku.) v. State of M.P. & Others
Writ Petition No. 9029 of 2013 (Gwalior); Decided on 13.1.2021

Advocates:
J.S. Rathore for petitioner;
Ajay Raghuvanshi, Panel Lawyer for respondents No.1 to 4/State;
Shyam Sharma for respondent No.5.

Headnote:
(1) Limitation Act, 1963 -- S. 3 -- question of limitation not set up as defence -- there is no law that if question of limitation is not raised at earliest, it cannot be considered at later stage -- it is for Court to find out as to whether proceedings are within period of limitation or not. (2004) 11 SCC 425 followed. [Paras 11 & 13]
(2) Limitation -- no limitation for appeal prescribed in policy -- appeal could not have been dismissed. [Para 20]
(3) Appointment -- Anganwadi worker -- guidelines dated 27.5.2006 and 10.7.2007 are executive instructions -- guidelines are always prospective in operation until and unless they are made retrospective specifically -- nothing in guidelines dated 10.7.2007 to indicate that they were retrospective in operation or were also made applicable to pending appeals arising out of recruitment made prior to 10.7.2007 -- appointment of petitioner made prior to coming into force of policy dated 10.7.2007 -- case of petitioner has to be considered in light of guidelines dated 27.5.2006. [Para 22]
(4) Appointment -- Anganwadi worker -- guidelines dated 27.5.2006 -- no provision for marks to be awarded on basis of percentage of marks obtained by candidates in Higher Secondary/Inter examination -- all candidates having similar qualification -- respondents should have looked into provisions for giving preference -- petitioner was entitled for preference being spinster of thirty years -- respondents should not have looked into marks obtained by candidates in Higher Secondary/Inter examination -- appointment of petitioner wrongly cancelled. [Paras 23 & 28]
¼1½ ifjlhek vfèkfu;e] 1963 & èkkjk 3 & ifjlhek dk ç'u çfrj{kkLo:i ugha mBk;k x;k & ,slh d¨Ã fofèk ugha fd ;fn ifjlhek dk ç'u 'khÄzre volj ij ugha mBk;k x;k r¨ i'pkr~orÊ çØe ij ml ij fopkj ugha fd;k tk ldrk & ;g U;k;ky; d¨ irk yxkuk g¨rk gS fd dk;Zokgh ifjlhek vofèk d¢ Òhrj gS ;k ughaA ¼2004½ 11 ,l lh lh 425 vuqlfjrA ¼iSjk 11 ,oa 13½
¼2½ ifjlhek & uhfr esa vihy d¢ fy, d¨Ã ifjlhek fofgr ugha & vihy [kkfjt ugha dh tk ldrh FkhA ¼iSjk 20½
¼3½ fu;qfDr & vk¡xuokM+h dk;ZdrkZ & fn'kk funsZ'k fnukad 27-5-2006 v©j 10-7-2007 dk;Zikfyd vuqns'k gSa & fn'kk funsZ'k dk çorZu lnSo Òfo";y{kh g¨rk gS] tc rd fd mUgsa fofufnZ"Vr% Òwry{kh ugha cuk;k tk, & fn'kk funsZ'k fnukad 10-7-2007 esa ;g minf'kZr djus d¢ fy, dqN ugha fd mudk çorZu Òwry{kh Fkk vFkok mUgsa 10-7-2007 d¢ iwoZ dh xÃ ÒfrZ;¨a ls mn~Òwr yafcr vihy¨a d¨ Òh ykxw fd;k x;k Fkk & ;kph dh fu;qfDr uhfr fnukad 10-7-2007 d¢ çorZu d¢ iwoZ dh xÃ & ;kph d¢ ekeys ij fn'kk funsZ'k fnukad 27-5-2006 d¢ çdk'k esa fopkj fd;k tkuk g¨xkA ¼iSjk 22½
¼4½ fu;qfDr & vk¡xuokM+h dk;ZdrkZ & fn'kk funsZ'k fnukad 27-5-2006 & vH;fFkZ;¨a }kjk mPprj ekè;fed@baVj ijh{kk esa vfÒçkIr vad¨a d¢ çfr'kr d¢ vkèkkj ij vad fn, tkus gsrq d¨Ã micaèk ugha & lÒh vH;fFkZ;¨a dh leku vgZrk & çR;FkÊx.k d¨ vfèkeku nsus d¢ fy, micaèk ns[kuk pkfg, Fks & rhl o"kÊ; vfookfgrk g¨us d¢ dkj.k ;kph vfèkeku dh gdnkj Fkh & çR;FkÊx.k d¨ vH;fFkZ;¨a }kjk mPprj ekè;fed@baVj ijh{kk esa vfÒçkIr fd, x, vad¨a d¨ ugha ns[kuk pkfg, Fkk & ;kph dh fu;qfDr xyr jn~n dh xÃA ¼iSjk 23 ,oa 28½

ORDER

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 16.4.2013 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No. 406/2011-12/Appeal, by which the appeal filed by the petitioner has been dismissed.

2. The necessary facts for disposal of the present petition in short are that the petitioner is a Scheduled Caste candidate and an advertisement was issued for appointment of Anganwadi Worker. The petitioner as well as the respondent No.5 participated in the said recruitment process and by order dated 12.6.2017, the petitioner was appointed on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior. The appointment of the petitioner was challenged by respondent No.5 before the Additional Collector, Gwalior. It is submitted by the counsel for the petitioner that at the time of appointment of the petitioner, the policy for appointment on the post of Anganwadi Worker, dated 27.5.2006 was in force, according to which the minimum qualification for recruitment to the post of Anganwadi Worker was Higher Secondary/Inter pass. It was also provided that the candidate belonging to Scheduled Caste and Scheduled Tribe, living Below the Poverty Line, as well as Widow/ Deserted, Spinster of 30 years or more and other women would be given preference. However, thereafter on 10.7.2007, a new policy was formulated and it was provided that the marks would be awarded as per the percentage obtained in respective examinations. It is submitted that thereafter, the Additional Collector, District Gwalior by order dated 29.6.2009 passed in Case No.35/2008-09/Appeal allowed the appeal filed by the respondent No.5 on the basis of the guidelines dated 10.7.2007 and remanded the matter back. It was observed by Additional Collector that the recommendation was made for appointment of the respondent No.5 on the basis that she belongs to Scheduled Caste and is living Below the Poverty Line and is running a Shishu Sikshya Kendra. It was also mentioned that the name of the respondent No.5 was mentioned in the panel of names which was recommended by the Councillor. It was also observed that although the name of the petitioner was not in the panel of names recommended by the Councillor, but on the basis that she is a spinster, aged about 30 years, she was appointed. It was further observed that although the name of the respondent No.5 was recommended but by ignoring the said recommendation, the petitioner was granted appointment. It was also observed that although the counsel for the petitioner had raised an objection that the appeal filed by the respondent No.5 is barred by limitation but the said objection was rejected on the ground that the objection with regard to delay in filing the appeal should have been raised at the earliest but it was not done, therefore, at this stage, it cannot be decided. Accordingly, the appointment of the petitioner was set aside and the matter was remanded back to the competent authority to consider the application for appointment on the post of Anganwadi Worker, Anganwadi Centre, Ward No.14/11, Bhitarwar, District Gwalior.

3. Being aggrieved by the order of the Additional Collector, the petitioner preferred a revision which was registered as Case No.207/2008-09/Revision, but the said revision was dismissed by order dated 22nd March, 2009 by the Additional Commissioner, Gwalior Division, Gwalior. While dismissing the revision filed by the petitioner, the Additional Commissioner, Gwalior Division, Gwalior considered the marks obtained by the candidates in Higher Secondary/Inter Examination. Thereafter, by order dated 11.5.2010, the Project Officer, Integrated Child Welfare Development Project, Bhitarwar, District Gwalior, cancelled the appointment of the petitioner and by another order dated 11.5.2010, appointed the respondent No.5 on the post of Anganwadi Worker, Anganwadi Centre, Ward No. 14/11, Bhitarwar, District Gwalior.

4. Th