IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5703 of 2010 NAGINA KUMARI, W/O SHRI SANJEET RAM, R/O VILLAGE-BIRSAYAR, P.S.-SAKRI (PANDAUL), DISTRICT-MADHUBANI. ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE COMMISSINER, DARBHANGA DIVISION, DARBHANGA. 3. THE COLLECTOR, MADHUBANI. 4. THE CHILD DEVELOPMENT PROJECT OFFICER, PANDAULT, DISTRICT-MADHUBANI. 5. THE DISTRICT WELFARE CUM DISTRICT PROGRAMME OFFICER, MADHUBANI. ………………RESPONDENTS. ----------- For the Petitioner : Mr.Bhavesh Kumar Jha, Adv. and Mr.Shambhunath Jha, Adv. For the State : Mr.Dhirendra Kumar, AC to SC-VIII. ------------ 3 07.12.2010 It appears from Annexure-6 and 7 that under the orders of the Collector, the selection of the petitioner as Anganwari Sevika was cancelled. Since the order was of the Collector, the petitioner moved in appeal before the Commissioner. The Commissioner considered his appeal and by order contained in Annexure-9 dated 17.03.2008 he remitted the matter back to the Collector for reconsideration. The Commissioner thereafter considered the matter afresh and by order contained in Annexure-10 reiterated his order and cancelled the selection of the petitioner 2 again. Against the said order, the petitioner moved in appeal again to the Commissioner. The Commissioner vide his order dated 16.2.2010, as contained in Annexure-10, rejected the appeal of the petitioner on the ground that he now does not hold the power to hear appeals in matters of cancellation of selection of Anganwari Sevikas. It appears that when the matter was earlier heard by the Commissioner he was exercising power of the Appellate Authority and in exercise of that power he had remitted the matter back to the Collector. When the Collector passed the order on 31.7.2008 the legal position had changed and by letter no. 2723 dated 25.7.2008, vide Annexure-13, power to cancel the selection of Anganwari Sevika was vested in the District Programme Officer and the Collector was made the Appellate Authority. In view of this change legal position the Commissioner has held that he cannot exercise the power of appeal. It is true that when the matter was pending with the Collector, the legal position changed and the Collector was made the Appellate Authority. However, fact 3 remains that on remand the Collector was hearing the matter and decided the same. Therefore, petitioner had no other remedy than to move the Commissioner again. Since the Collector had exercised power in view of his powers as originally existed in him the appeal of the petitioner ought to have been considered by the Commissioner in terms of the earlier power vested in him to hear the appeals by letter no. 2692 dated 11.9.2006. In the circumstances, this Court feels it appropriate that the Commissioner should consider the appeal of the petitioner on merits and pass appropriate orders in accordance with law. For this purpose, the order of the Commissioner, as contained in Annexure-11, is set aside and the Commissioner, Darbhanga Division is directed to take up the appeal of the petitioner on merits and consider the same and pass orders in accordance with law. It is made clear that this power the Commissioner will exercise under the authority of this Court and shall not feel constrained because of changed legal position by letter no. 2723 dated 25.7.2008. The 4 Commissioner should consider the appeal of the petitioner and pass appropriate orders preferably within a period of three months from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)