IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1698 of 2008. Decided on: August 29,2011. Anchana Kumari …….Petitioner. Versus State of H.P. and others …….Respondents. ________________________________________________ Coram The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting? No. For the petitioner: Ms.Archana Dutt, Advocate. For the respondents: Mr.J.S. Guleria, Assistant Advocate General, for respondents No.1 and 2 Ms.Sunita Sharma, Advocate, for respondent No.3. ---------------------------------------------------------------- Justice V.K. Ahuja,J.(oral): Present petition has been filed under Articles 226/227 of the Constitution of India challenging the order dated 22.7.2008 passed by the Divisional Commissioner, vide which the appeal filed by the petitioner against the order dated 27.8.2007 of Deputy Commissioner allowing the appeal filed by respondent No.3, was dismissed and the order of the Deputy Commissioner setting aside the selection of the petitioner was affirmed. 2. By the impugned order, the Deputy Commissioner had held that two marks of experience were not given to respondent No.3 Leela Devi and accordingly by giving two marks for experience, he has set aside the 2 appointment of the petitioner Anchna Kumari. On the basis of the said order, the appointment was given to respondent No.3 Leela Devi by awarding her grace marks. 3. The present petition has been filed by the petitioner challenging the order passed by the learned Divisional Commissioner. It was submitted that two marks were wrongly given to Leela Devi on the basis of the certificate produced by her. Challenge has been laid to the grant of two marks by the Deputy Commissioner as well as affirmed by the Divisional Commissioner on the grounds that the school was not affiliated at the relevant time and that two marks were wrongly awarded to respondent No.3 on the basis of the certificate of a private school allegedly recognized by the Education Board. During the pendency of the petition, the petitioner also sought information under the Right to Information Act and a clarification was given by the Public Information Officer-cum-Additional Director, Directorate of Social Justice & Empowerment that no marks have been provided for experience gained in a private school. This plea had not been taken in the present petition, but has been taken during the course of arguments only. However, in the appeal filed before the Divisional Commissioner, the petitioner had taken this plea that two marks were wrongly awarded in favour of respondent No.3, as per the copy of the appeal placed on record today by the learned counsel for the petitioner. Thus, prima facie question which arises for 3 consideration is in regard to awarding of two marks whether it was in accordance with the Scheme or not and as to whether two marks could be given in the facts and circumstances of the case or not. These are questions of fact which cannot be looked into in this writ petition, but had to be looked into by the Divisional Commissioner. In view of the fact that the plea was raised in appeal in regard to wrong awarding of two marks to respondent No.3, the Divisional Commissioner should have given his findings on this plea which does not find mention in the impugned order assailed before this Court. 4. In view of the above discussion, the present petition is allowed and the impugned order is set aside. The matter is remanded back to the Divisional Commissioner who shall consider the question afresh in regard to awarding of two marks as to whether they are to be awarded in accordance with the rules and the scheme or not and all such pleas, if any, shall be taken before him. The Divisional Commissioner after hearing both the parties shall decide the matter afresh in accordance with Rules prevalent at that time and the instructions of the Government and other such pleas as may be raised before him. The parties are directed to appear before the Divisional Commissioner on 19.9.2011, who shall try to dispose of the appeal within a period of two months from that date. The Registry is directed to send the records forthwith. Till the appeal is 4 disposed of by the Divisional Commissioner, respondent No.3 Leela Devi shall continue to work as Anganwari Worker at Anganwari Centre, Panyala, Tehsil Ghumarwin, District Bilaspur, H.P. and the parties shall abide by the order that may be passed by the Divisional Commissioner, subject to their right to challenge the same. 5. With the above directions, the writ petition stands disposed of, so also the pending application(s), if any. August 29, 2011 (V.K. Ahuja), (tilak) Judge.