IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 3^rd OF MARCH, 2022 WRIT PETITION No. 5429 of 2020 Between:-

SMT. JAYA W/O RAVI YADAV, AGED ABOUT 30 YEARS, OCCUPATION: SERVICE, R/O WARD NO.4, BETMA TEH. DEPALPUR, DISTRICT- INDORE (MADHYA PRADESH)

.....PETITIONER (BY SHRI AJAY JAIN, ADVOCATE )

AND

1. WOMEN AND CHILD DEVELOPMENT DEPARTMENT, PRINCIPAL SECRETARY, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

2. PROJECT OFFICER, INTEGRATED CHILD DEVELOPMENT PROGRAMME, DEPALPUR, DISTRICT INDORE (MADHYA PRADESH)

3. ADDITIONAL COMMISSIONER INDORE, INDORE DIVISION, INDORE, (MADHYA PRADESH)

4. COLLECTOR INDORE DIST INDORE (MADHYA PRADESH)

5. SMT. CHETNA W/O BHARAT YADAV R/O: WARD NO. 10, KATKATPURA BETMA TEHSIL DEPALPUR DIST INDORE (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI S.R. SAXENA, DEPUTY ADVOCATE GENERAL AND BY SHRI RISHABH SINGH CHOUHAN, ADVOCATE FOR RESPONDENT NO.5)

This petition coming on for admission this day, the court passed the following:

ORDER

By this petition preferred under Article 226 of the Constitution of India, petitioner has challenged the order dated 19.12.2019 (Annexure P/8) passed by the Commissioner, Indore Division Indore, whereby he has set aside the order dated

30.09.2019 (Annexure P/5) passed by the Collector, District Indore.

02. The necessary facts for decision of present petition are that by final list prepared on 04.10.2016, the petitioner was appointed as Anganwadi worker of ward No.4 Betma, Tehsil Depalpur, District Indore. Respondent No.5 raised an objection to the final list which was rejected by order dated 02.05.2017 by the Project Officer.

03. Being aggrieved by the said order respondent No.5 preferred an appeal before the Collector, District Indore, which was allowed by order dated 30.03.2019. Being aggrieved by the said order second appeal was preferred by the petitioner before Commissioner, Indore Division, Indore which has been allowed by impugned order and the matter has been remanded back to the Collector for a decision afresh in light of observations made therein.

04. Learned counsel for the petitioner submits that the appeal preferred by respondent No.5 before the Commissioner against order dated 30.09.2019 was barred by time. No application for condonation of delay in preferring the appeal was filed by respondent No.5. Since the appeal was belated, the same could not have been heard and decided on merits by the Commissioner without condoning the delay.

05. Learned counsel for respondent No.5 submits that along with the appeal respondent No.5 had filed an application under Section 5 of the Limitation Act 1963 for condonation of delay in preferring the appeal. Thus she cannot be blamed if the said application has not been decided by the Commissioner. In any case since the matter has been heard and decided on merits, it shall be deemed that the delay in preferring the appeal had been condoned by the Commissioner.

06. I have heard the learned counsel for the parties and have perused the record.

07. The Hon'ble Supreme Court in the matter of State of M.P. and another vs. Pradeep Kumar and another 2000 (7) SCC 372 has held in paragraph No. 10 as under:

"10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. The co