IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 132 of 2010 Date of decision: 26.04.2011 Kirna Devi ... Petitioner Versus State of H.P. and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. H.K. Bhardwaj, Advocate. For the respondents: Mr. Vinod Thakur, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General, for respondents No. 1 to 4. Mr. Rajinder Thakur, Advocate, for respondent No. 5 Babli Devi. V.K. Ahuja, J. (Oral): CMPs No. 1142 and 1325 of 2010: Both the applications are not pressed by the learned counsel for the petitioner, since Babli Devi has been impleaded as a respondent. Both the applications stand disposed of accordingly, as not pressed. CMPMO No. 132 of 2010: The present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 10.3.2010 passed by the learned Divisional Commissioner in Appeal No. 342 of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2009 titled Usha Sharma Vs. Selection Committee and others, dismissing the appeal filed by the petitioner by a common order, Annexure P-5. 2. Notice of the petition was issued to the respondents. Ms. Babli Devi has been impleaded as a party as per order of this Court during the pendency of this petition as respondent No. 5. Amended Memo of Parties be filed today itself in the Registry and necessary corrections be made in the cause title. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. Briefly stated the facts of the case are that in a selection for the post of Anganwari Worker, Smt. Usha Sharma, not party before this Court, was selected as Anganwari Worker at Talmehra, Tehsil Bangana, Distt. Una. Respondent No. 5 Babli Devi was in the waiting list at Sr. No. 1 and Smt. Kirna Devi was at Sr. No. 2 in the waiting list, as alleged and not disputed by the respondents. 5. The selection was assailed by Babli Devi respondent No. 5 before the Deputy Commissioner and vide order dated 3.9.2007 Annexure P-6, the Deputy Commissioner held that the selection of Usha Sharma has been made in accordance with the criteria and as such, the challenge made by Babli Devi respondent No. 5 was dismissed. Thereafter, an appeal was filed by Babli Devi against the said order and vide order dated 26.12.2007 Annexure P-7, the appeal filed by Babli Devi was also dismissed. Thereafter, an appeal was preferred by Smt. Usha Sharma against the order of the Deputy Commissioner dated 26.6.2009. Another appeal was also filed by Smt. Kirna Devi against the said order before the Divisional Commissioner. The Divisional Commissioner vide his order dated 10.3.2010 Annexure P-5, dismissed the appeal filed by Smt. Usha 3 Sharma and held that the selection of Smt. Usha Sharma was rightly set aside by the Deputy Commissioner since her income was more than the limit prescribed in the policy. The said Smt. Usha Sharma has not assailed the said order dated 10.3.2010 passed by the Divisional Commissioner. By the same order, the Divisional Commissioner also disposed of the appeal fled by Smt. Kirna Devi and did not give any reason while passing the said order. He simply observed that this order shall also dispose of the appeal filed by Smt. Kirna Devi petitioner and accordingly, he held that fresh interview be conducted to select an eligible candidate as Anganwari Worker for Anganwari Centre, Talmehra, Tehsil Bangana, District Una. 6. The learned counsel for the petitioner has challenged the said order by filing the present petition. He has submitted that the petitioner had not been heard while disposing of the appeal filed by Smt. Usha Sharma and as such, he should have been given an opportunity to assail the said order passed by the Deputy Commissioner. From the facts of the case, it is clear that as the case stands, the appeal filed by Smt. Usha Sharma was dismissed and her selection was set aside by the Divisional Commissioner and upheld by the Divisional Commissioner and no appeal has been filed by Smt. Usha Sharma thereafter. The Deputy Commissioner had observed in the impugned order that Babli Devi who is at Sr. No. 1 of the waiting list shall be appointed as Anganwari Worker, which order was not held justified by the Divisional Commissioner, who had simply made an observation that it has been reported that her income was to the tune of ` 30,000/- per annum. However, it was not considered by the Deputy Commissioner as to whether it has been proved on record that income of Babli Devi was 4 beyond the prescribed limit. Thus as the things stand, the case shall go back to the Deputy Commissioner, to whom the case has been remanded by the Divisional Commissioner. He shall consider the evidence in support of the claim made by Babli Devi and as to whether Babli Devi is eligible to be appointed as Anganwari in accordance with the scheme/guidelines after considering her income and other aspects. In case, she is found eligible as per the policy, appointment order shall be issued in her favour accordingly. In case, she is not found to be eligible to be appointed as per the policy, the case of Kirna Devi who is next in merit in the seniority list, shall be considered and in case, she is found eligible as per the policy, appointment letter shall be issued in her favour. In case, both these persons are not found eligible, then fresh selection shall be made for the post of Anganwari Worker accordingly. The Deputy Commissioner is required to dispose of the case within two months from the date of production of a copy of this judgment by either of the parties. 7. In view of the above, the petition stands disposed of, so also the pending application(s), if any. Copy Dasti. ( V.K. Ahuja ), April 26, 2011 Judge (BSS)