Shobharani Tripathy Vs. Collector and 6 ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. learned counsel for the petitioner draws the attention of this court to the experience under annexure-4 as well as annexure-11 to the additional affidavit. 1 to take a fresh decision in the matter upon giving opportunity of hearing to the petitioner as well as the opp.orderm.m. das, j.1. heard learned counsel for the petitioner and the learned counsel for the state.2. the case of the petitioner is that she was an applicant to be engaged as anganwadi worker in orti anganwadi centre under nischantakoili block and she submitted an experience certificate which has been annexed to the writ petition as annexure-4. from the said certificate, it appears that an n.g.o. named as joy bharati sathi samaja certified that the petitioner is a life member of the said voluntary organisation from 1998 and as a trained social worker of the said organisation, she has been actively participating in literacy campaign, aids awareness, national environment awareness campaign etc. the petitioner having not been selected, approached this court in w.p.(c) no. 10268 of 2005 which was disposed of by order dated 19.8.2005 directing the opp. party no. 1 therein to call for the records of selection and if necessary, to give opportunity of hearing to the petitioner and the opp. party no. 7 and decide as to whether the selection of opp. party no. 7 in the said writ petition is legal and justified, within a period of two months from the date of communication of the said order. pursuant to the said order dated 19.8.2005, the collector, cuttack-opp. party no. 1 passed an order under annexure-10 on 14.9.2005. by the said order 14.9.2005, the collector, cuttack did not accept the case of the petitioner on the ground that she did not get any marks for interview since she has worked in a private n.g.o. and not with any government/government aided institution and for this reason, the decision of the selection committee is correct and in accordance with the guidelines of the government.3. learned counsel for the petitioner draws the attention of this court to the experience under annexure-4 as well as annexure-11 to the additional affidavit. from annexure-11, it appears that by the said letter, the district social welfare officer, kendrapara intimated the local m.l.a. in response to his letter dated 12.1.2006 that jaya bharati sathi samaj, sabalanga under palei g.p. in derabish block is a registered n.g.o. and is receiving grants from the government for different purposes. the details of such grants in favour of the said n.g.o. were enclosed to the letter under annexure-11.4. a reading of the clause-8 of the guidelines under annexure-1 to the writ petition shows that the candidates who have included in the panel will be called for an interview and marks will be awarded to them in accordance with the provisions mentioned in the said clause. clause-8(c) thereof provides that marks to be awarded for experience out of a maximum of 5 and the experience relevant for this purpose will be experience in any area of the duties of anganwadi worker acquired in government employment or in employment in a programme under a registered voluntary organisation funded by the state/central government for this purpose.5. a bare reading of the experience certificate under annexure-4 shows that the organisation in which the petitioner was a life member is one of such n.g.os. which was receiving funds from the government. the nature of work performed by the petitioner under the said n.g.o. was also akin to the works of an anganwadi worker.6. in view of the above, i find that the conclusions arrived at by the collector, cuttack in his order dated 14.9.2005 under annexure-10 cannot be sustained and accordingly, the same is quashed and the matter is remitted back to the collector, cuttack-opp. party no. 1 to take a fresh decision in the matter upon giving opportunity of hearing to the petitioner as well as the opp. party no. 7 keeping the observations made above in view. such decision shall be taken within a period of three months from the date of production of the certified copy of this order along with a copy of the writ petition before him by the petitioner.7. accordingly, the writ petition is allowed.8. it shall be the responsibility of the petitioner to produce a certified copy of this order along with a copy of the writ petition before the opp. party no. 1 for compliance of the above direction.9. urgent certified copy of this order be granted as per rules.

Judgment:
ORDER

M.M. Das, J.

1. Heard learned Counsel for the petitioner and the learned Counsel for the State.

2. The case of the petitioner is that she was an applicant to be engaged as Anganwadi Worker in Orti Anganwadi Centre under Nischantakoili Block and she submitted an experience certificate which has been annexed to the writ petition as Annexure-4. From the said certificate, it appears that an N.G.O. named as Joy Bharati Sathi Samaja certified that the petitioner is a life member of the said Voluntary Organisation from 1998 and as a trained social worker of the said Organisation, she has been actively participating in Literacy Campaign, AIDs Awareness, National Environment Awareness Campaign etc. The petitioner having not been selected, approached this Court in W.P.(C) No. 10268 of 2005 which was disposed of by order dated 19.8.2005 directing the opp. party No. 1 therein to call for the records of selection and if necessary, to give opportunity of hearing to the petitioner and the opp. party No. 7 and decide as to whether the selection of opp. party No. 7 in the said writ petition is legal and justified, within a period of two months from the date of communication of the said order. Pursuant to the said order dated 19.8.2005, the Collector, Cuttack-opp. party No. 1 passed an order under Annexure-10 on 14.9.2005. By the said Order 14.9.2005, the Collector, Cuttack did not accept the case of the petitioner on the ground that she did not get any marks for interview since she has worked in a private N.G.O. and not with any Government/Government aided institution and for this reason, the decision of the selection committee is correct and in accordance with the guidelines of the Government.

3. Learned Counsel for the petitioner draws the attention of this Court to the experience under Annexure-4 as well as Annexure-11 to the additional affidavit. From Annexure-11, it appears that by the said letter, the District Social Welfare Officer, Kendrapara intimated the local M.L.A. in response to his letter dated 12.1.2006 that Jaya Bharati Sathi Samaj, Sabalanga under Palei G.P. in Derabish Block is a registered N.G.O. and is receiving grants from the Government for different purposes. The details of such grants in favour of the said N.G.O. were enclosed to the letter under Annexure-11.

4. A reading of the Clause-8 of the guidelines under Annexure-1 to the writ petition shows that the candidates who have included in the panel will be called for an interview and marks will be awarded to them in accordance with the provisions mentioned in the said clause. Clause-8(c) thereof provides that marks to be awarded for experience out of a maximum of 5 and the experience relevant for this purpose will be experience in any area of the duties of Anganwadi worker acquired in Government employment or in employment in a programme under a registered voluntary organisation funded by the State/Central Government for this purpose.

5. A bare reading of the experience certificate under Annexure-4 shows that the organisation in which the petitioner was a life member is one of such N.G.Os. which was receiving funds from the Government. The nature of work performed by the petitioner under the said N.G.O. was also akin to the works of an Anganwadi worker.

6. In view of the above, I find that the conclusions arrived at by the Collector, Cuttack in his order dated 14.9.2005 under Annexure-10 cannot be sustained and accordingly, the same is quashed and the matter is remitted back to the Collector, Cuttack-opp. party No. 1 to take a fresh decision in the matter upon giving opportunity of hearing to the petitioner as well as the opp. party No. 7 keeping the observations made above in view. Such decision shall be taken within a period of three months from the date of production of the certified copy of this order along with a copy of the writ petition before him by the petitioner.

7. Accordingly, the writ petition is allowed.

8. It shall be the responsibility of the petitioner to produce a certified copy of this order along with a copy of the writ petition before the opp. party No. 1 for compliance of the above direction.

9. Urgent certified copy of this order be granted as per rules.