NILIMA BHOI Vs. STATE OF C.G.

JUDGEMENT

(1.) Challenge in this petition is to the order dated 17.3.2010 (Annexed P-l) passed by the Additional Collector, Mahasamund (Respondent No. 2 here in) and also the order dated 9.4.2010 (Annexed P-2) passed by the Respondent No.4 - Chief Municipal Officer, Nagar Panchayat, Saraipali, District Mahasamund. Vide order dated 17.3.2010 (Annexed P-l) the respondent No. 2 had allowed the appeal preferred by respondent No. 5 under Section 91 of the Chhattisgarh Panchayat Raj Adhiniyam and set aside the appointment order made in favor of the petitioner. Pursuant to the order dated 17.3.2010 (Annexed P-l) passed by respondent No. 2, respondent No. 4 passed the order dated 9.4.2010 (Annexed P-2) appointing respondent No.5 as Anganwadi Worker in place of the petitioner. Facts of the case in brief are that on 6.10.2006 vide Annexed P-4 the petitioner was appointed as Anganwadi Worker for Ward No.4 and then she started working on the said post. Appointment of the petitioner was challenged by respondent No.5 by way of appeal under Section 91 of the Chhattisgarh Panchayat Raj Adhiniyam vide Annexed P-7. According to respondent No.5, as her appeal was time barred she had also filed an application under Section 5 of the Limitation Act, 1963 for condo nation of delay. After entertaining the appeal, learned Additional Collector had directed for calling the original record and after receiving the same on 25.11.2009, case was fixed for arguments on 23.12.2009 but on that day the case was adjourned and ultimately on 17.3.2010 the final order has been passed allowing the appeal of respondent No. 5.

(2.) Counsel for the petitioner submits that when the appeal of respondent No. 5 was admittedly time barred and application for condo nation of delay was also filed under Section 5 of the Limitation Act, under the law, Additional Collector should have first decided the application for condo nation of delay and then proceeded to pass the order on merit. He submits that order impugned dated 17.3.2010 has been passed without affording opportunity of hearing to the petitioner and without scrutinizing the merit aspect of the case. He submits that once the order dated 17.3.2010 itself is bad, consequential order dated 9.4.2010 passed on the basis of order dated 17.3.2010 is also liable to be set aside by this Court as appointment of respondent No. 5 is prima facie illegal. He submits that in the present case status quo order was passed by this Court on 30.4.2010 and though the petitioner is working as Anganwadi Worker but till date she has not been paid her salary. In support of his submissions, he placed reliance on the decisions of the Apex Court in the matter of Dudan Vs. State of Madhya Pradesh, 2009 AIR(SC) 669and in the matter of Gagandeep Prathisthan Pvt. Ltd. and Others Vs. Mechano and Another, 2002 AIR(SC) 204.

(3.) Replying to the arguments advanced by the counsel for the petitioner, it has been argued by the State counsel that the order dated 17.3.2010 is strictly in accordance with law and there is no infirmity or illegality in the same. In respect of salary of the petitioner pursuant to the direction of this Court, learned State counsel submits that a report of the Collector dated 16.9.2011 leas been received by him according to which the petitioner and the respondent No. 5 both are working as Anganwadi Worker.