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2011 DIGILAW 363 (GUJ)

MANJULABEN KHUMANSINGH BARIYA v. STATE OF GUJARAT

2011-04-28

ABHILASHA KUMARI

body2011
SMT. ABHILASHA KUMARI, J. By preferring the present petition under Art. :L26 of the Constitution of India, the petitioner has challenged the selection of respondent NO.4 as Anganwadi Worker at Hirapur (Dipapura) Angmnvadi Centre vide order dated 29-4-2010, with a further prayer to direct the respondents to appoint the petitioner to the said post.• 2. The brief facts are that the Child Development Project Officer, Consolidated Child Development Project, Jambughoda (respondent No.2), issued a public advertisement which was published in the daily vernacular newspaper 'Sandesh' on 12-2-2010, calling for applications for the posts of Anganwadi Workers/Helpers. The posts advertised included the post of Anganwadi Worker at the newly sanctioned Anganwadi Centre at Hirapur (Dipapura). In response to the above advertisement, the petitioner, having studied upto 12th Standard and being a local candidate, applied for the post in question. The interview was held by the Selection Committee on 9-42010. According to the petitioner, she meets with all the requirements as contemplated by the Rules and expected that she would be selected. However, the petitioner came to know that respondent NO.4 who, according to the petitioner, is not qualified for the post, has been selected. The petitioner addressed a letter dated 2-5-2010 to the President, Taluka Panchayat, Jambughoda, pointing out that respondent No.4 did not have the necessary qualifications and has been wrongly selected. The petitioner wrote another letter do the District Development Officer on 5-5-2010 raising the same grievance. Similar letters were addressed by the petitioner to the Collector, Panchmahals, and the Hon'ble Chief Minister. It is the case of the petitioner that as no action has been taken by the Competent Authorities, in this regard, she has approached this Court by filing the present petition. 3. Ms. Megha Jani, learned Advocate for the petitioner, has forcefully submitted that : (1) Respondent No.4 does not qualify for the post as she is not a resident of Dipapura, therefore, she is not a local candidate. Respondent No. 4 stays at Salat Faliya, which is at a distance of approximately 1.5 kms. from Dipapura. As per the rules, only a local candidate residing within the limits of Faliya, Para or Ward of the Anganwadi Centre is to be selected and relaxation can only be made when an eligible candidate cannot be found in spite of intensive efforts. from Dipapura. As per the rules, only a local candidate residing within the limits of Faliya, Para or Ward of the Anganwadi Centre is to be selected and relaxation can only be made when an eligible candidate cannot be found in spite of intensive efforts. However, in the instant case, there is no occasion to accord relaxation, as the petitioner is an eligible local candidate. The petitioner is a resident of Dipapura. That Hirapur and Dipapura are two separate revenue villages situated within Jambughoda Taluka. The local area comprising Hirapur, Dipapura, Vadek and Kohivav have one Village Panchayat known as Hirapur Group Gram Panchayat. One Anganwadi Centre is already functioning at Hirapur village since the last many years. As Dipapura did not have an Anganwadi Centre, a demand was raised by Dipapura village, and accordingly, the Gram Sabha of Hirapur Group Gram Panchayat, in its meeting held on 3-6-2009, passed Resolution No. 24 regarding demand of Angamvadi Centre at Dipapura. That the Hirapur Group Gram Panchayat passed one more resolution in its meeting of Gram Sabha held on 27-1-2010 resolving to include children of Hirapur (Dipapura) village and of Kachhla Faliya of Hirapur in the new Anganwadi Centre. The children of Salat Faliya, where respondent No. 4 resides, go to the old Anganwadi Centre and as Salat Faliya, which is part of Hirapur, where new Anganwadi Centre has been opened, is at a distance of approximately 1.5 kms. from Dipapura, respondent No.4 cannot be considered to be a local candidate,' whereas the petitioner resides in Dipapura village itself. (2) That as per Clause 6.9 of the Government Resolution dated 13-11-2009, whereby norms have been prescribed for selection and appointment of Anganwadi Workers, only a married lady can be appointed as Anganwadi Worker and such appointment is required to be made on the basis of the original Certificate of Marriage Registration. The same condition is reiterated as Condition No.5 in the advertisement. However, in the instant case, it is an undisputed fact that the marriage of respondent No.4 came to be registered on 17-7-2010, much after her selection and appointmept. When the marriage was not registered on the date of interview or selection and even on the date of appointment, respondent No. 4 could not have produced the original Marriage Registration Certificate. However, in the instant case, it is an undisputed fact that the marriage of respondent No.4 came to be registered on 17-7-2010, much after her selection and appointmept. When the marriage was not registered on the date of interview or selection and even on the date of appointment, respondent No. 4 could not have produced the original Marriage Registration Certificate. In the absence of such certificate, which is a mandatory requirement as per the Government Resolution dated 13-11-2009, respondent No. 4 could not have been selected and appointed as Anganwadi Worker. It is, therefore, submitted that the appointment of respondent No.4, having made de hors the stipulations laid down in the said Government Resolution cannot be sustained. On the basis of the above submissions, it is urged by the learned Advocate for the petitioner that the petition be allowed. 4. The petition has been opposed by Mr. U. M. Shastri, learned Advocate for respondent Nos. 2 and 3, by filing an affidavit-in-reply. It is submitted by Mr. Shastri that after receiving applications for the post of Anganwadi Worker, three candidates were called for personal interview on 9-4-2010 along with original documents. That all the three candidates are local candidates. However, both the petitioner and respondent No.4 have passed the 12th Standard whereas the third candidate has passed the 11th Standard. In comparison to the petitioner, respondent No.4 is more meritorious as she has passed the 12th Standard at the first chance and secured 54.83 % marks whereas the petitioner has passed the 12th Standard at the second chance and has secured 51 % marks. It is further submitted that though botn villages of Hirapur and Dipapura have been given the benefit of new Anganwadi Centre, however, the Centre has been opened in the land .of Hirapur village, therefore, both respondent No.4 and the petitioner are local candidates. However, as respondent No.4 is more meritorious than the petitioner, she has been appointed. That selection and appointment of respondent No.4 is made according to the Rules and this Court may not interfere. The learned Advocate for respondent Nos. 2 and 3 is not in a position to deny that at the time of selection and appointment, respondent No.4 did not submit the Marriage Registration Certificate, as required by Government Resolution dated 13-11-2009. That selection and appointment of respondent No.4 is made according to the Rules and this Court may not interfere. The learned Advocate for respondent Nos. 2 and 3 is not in a position to deny that at the time of selection and appointment, respondent No.4 did not submit the Marriage Registration Certificate, as required by Government Resolution dated 13-11-2009. The learned Advocate also does not deny that there is no provision for relaxation of this condition in the said Government Resolution. 5. Mr. Jayraj Chauhan, learned Advocate for respondent No.4, has strongly opposed the petition by submitting that respondent No.4 is a local candidate and she belongs to Salat Faliya in village Hirapur and that the new Anganwadi Centre has been opened on the land of Hirapur village. It is submitted that in fact, it is the petitioner who is not a local candidate as she belongs to village Dipapura and not Hirapur. Though, it is not denied by the learned Advocate for respondent No.4 that at the time of selection and appointment, the said respondent did not submit the Certificate of Marriage Registration as required by the Government Resolution and the advertisement, however, it is submitted that respondent No.4 had produced a Certificate of the Talati-cum-Mantri to the effect that respondent No.4 is a married lady. It is further contended that at best, non-submission of the Marriage Registration Certificate can be considered to be an irregularity which can be cured later and not an illegality, and as the said certificate was submitted later on, and the respondent No.4 is much more meritorious than the petitioner, her selection and appointment as Anganwadi Worker does not deserve to be interfered with. 6. Mr. Maulik G. Nanavati, learned Assistant Government Pleader for respondent No. 1 has submitted that Government Resolution dated 13-11-2009 lays down the norms for selection and appointment of Anganwadi Workers. Clause 6.9 of the said Resolution stipulates that only a married lady can be appointed to the said post and the only document on the basis of which appointment can be made is the original Marriage Registration Certificate. It is emphasized that Government Resolution dated 13-11-2009 has been passed in supersession of all previous Government Resolutions, with a view to laying down the norms for the selection and appointment of Anganwadi Workers. It is emphasized that Government Resolution dated 13-11-2009 has been passed in supersession of all previous Government Resolutions, with a view to laying down the norms for the selection and appointment of Anganwadi Workers. The said Government Resolution is a composite resolution, whereby, norms have been laid down for selection of Anganwadi Workers which would have to be followed by the Selection Committee during the process of selection of Anganwadi Workers. As the Government Resolution is an executive instruction that covers the field in the absence of Rules, any selection/appointment made de hors the norms laid down in the resolution cannot be considered to have been made in accordance with law. In any case, registration of marriages is now compulsory and apart from ensuring authenticity of certification, one of the objectives in laying down the requirement of production of original Marriage Registration Certificate for the purpose of appointment as the sole proof of marriage could also be to encourage the registration of marriages at the rural level. 7. No other relevant point has been urged by the learned Counsel for the respective parties. 8. I have heard the learned Counsel for the respective parties, perused the averments made in the petition and the material on record. 9. One of the main grounds of challenge to the appointment of respondent No. 4 is that as per the stipulation in the advertisement and the norms laid down in Clause 6.9 of the Government Resolution dated 13-11-2009, only a married lady can apply for the post of Anganwadi Worker or Helper and the selection and appointment shall be made only on the basis of the original Marriage Registration Certificate. There is no dispute regarding the fact that the interview by the Selection Committee was held on 94-2010 and respondent No.4 has been appointed on 29-4-2010. The Marriage Registration Certificate of respondent No.4 is dated 15-7-2010, which is much after the date of appointment. There is no denial to this aspect in ' the affidavits-in-reply filed by respondent Nos. 2 and 4 respectively. In, spite of the fact that a specific challenge regarding this aspect has been raised by the petitioner, respondent Nos. 2 and 4 have completely ignored the averments in this regard, in their affidavits-in-reply and also while making submissions before the Court. There is no denial to this ground of challenge. 2 and 4 respectively. In, spite of the fact that a specific challenge regarding this aspect has been raised by the petitioner, respondent Nos. 2 and 4 have completely ignored the averments in this regard, in their affidavits-in-reply and also while making submissions before the Court. There is no denial to this ground of challenge. It is, therefore, an admitted position that the specific requirement in the advertisement as well as Clause 6.9 of Governn1ent Resolution dated 13-11-2009 which stipulates that the selection/appointment of an Anganwadi Worker shall only be made on the basis of the production of the original Certificate of Registration of Marriage has been breached by the concerned respondents while selecting and appointing respondent No. 4 as Anganwadi Worker. In other words, the selection and appointment of respondent No. 4 as Anganwadi Worker has been made in violation and contravention of the above condition in the advertisement and stipulation in the said Government Resolution. 10. The question that would arise, at this stage, is whether the violation' of this condition in the advertisement and the specific provision of the Government Resolution would be an irregularity that can be cured later on, or an illegality, which would vitiate the process of selection. According to the learned Advocate for the petitioner and the learned Assistant Government Pleader, the selection and appointment of respondent No.4, in breach of the condition laid down in the advertisement and the norms laid down in the said Resolution, would amount to an illegality, vitiating her selection and appointment. Though, this point has been argued at length by the learned Advocate for the petitioner, as stated earlier, there is no counter-argument or denial of this aspect on behalf of the learned Advocates for respondent Nos. 2 and 4. 11. In order to decide whether the selection and appointment of respondent No.4 would be vitiated by non-compliance of the conditions stipulated in the advertisement and norms laid down in the Government Resolution dated 13-11-2009, it would be pertinent to advert to the legal position in this regard. 12. The maxim "Actus legitimi non recipiunt modum" which means that when the doing of anything in a particular manner is sanctioned by law, then the thing cannot be done in a different way, would be applicable to the present case. 12. The maxim "Actus legitimi non recipiunt modum" which means that when the doing of anything in a particular manner is sanctioned by law, then the thing cannot be done in a different way, would be applicable to the present case. The Government Resolution dated 13-11-2009 has been issued in supersession of all previous Government Resolutions regarding selection of Anganwadi Workers and Helpers. The said Resolution lays down certain specific norms that are to be followed while selecting and appointing Anganwadi Workers. The entire process of selection has been regulated and the mode and manner of selection laid down. As per Clause 6.9 of the said Resolution, it has been laid down that only married ladies can be selected and appointed to the posts of Anganwadi Worker and Helper. In proof of the lady candidate being married, the only document that is required to be produced and considered, for the purpose of selection, is the original Marriage Registration Certificate. It was open to the State Government to permit the production of any other type of certificate in the Government resolution, such as a Certificate given by the Priest conducting the marriage or by the Gram Panchayat, certifying that the concerned lady is married or even an affidavit to this effect. However, such certificates/documents have been consciously excluded in the Government Resolution. The specific requirement that has been laid down is that selection to the post of Anganwadi Worker can be made only on the basis of, and on production of, the original Marriage Registration Certificate. The Government Resolution dated 13-11-2009 would fall in the category of "executive instructions" that would govern the field in the absence of Rules under the proviso to Art. 309 of the Constitution of India. Thus, it is Clear that the said Government Resolution prescribes the doing of a particular thing (namely, selection) in a particular manner (as laid down .in the Government Resolution). Therefore, when a particular manner of doing a thing is sanctioned by the law (in this case, by executive instructions), then the thing cannot be done in a different way. 13. Thus, it is Clear that the said Government Resolution prescribes the doing of a particular thing (namely, selection) in a particular manner (as laid down .in the Government Resolution). Therefore, when a particular manner of doing a thing is sanctioned by the law (in this case, by executive instructions), then the thing cannot be done in a different way. 13. The maxim "Actus legitimi non recipiunt modum" has been pressed into service by a Division Bench of this Court in the case of South Gujarat University v. Dilip C. Shah, 2004 (2) GLH 482 , wherein in Paragraph 8 of the said judgment, it is stated, after referring to the said maxim that, "when a statutory power is conferred upon a Court and mode of exercising it is pointed out, it means no other mode is to be adopted". 14. The legal position in this regard is, by now, well settled. In Hukam Chand Shyam Lal v. Union of India, AIR 1976 SC 789 , the Supreme Court has held that : " 18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice..." 15. The above principle of law has been reiterated in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., 2008 (4) SCC 755 , wherein the Supreme Court has held as below : "35. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and. in no other manner [vide Chandra KisllOre Jha v. Mahavir Prasad, 1999 (8) SCC 266 : AIR 1999 SC 3558 (SCC Para 17 : AIR Para 12), Dhananjaya• Reddy v. State of Karnataka, 2001 (4) SCC 9 : 2001 SCC (Cri.) 652 : AIR 2001 SC 1512 (SCC Para 23 : AIR Para 22), etc. Section 86(1)(f) provides a special manner of making reference to an arbitrator in disputes between a licensee and a generating company. Section 86(1)(f) provides a special manner of making reference to an arbitrator in disputes between a licensee and a generating company. Hence, by implication all other methods are barred." 16. The above exposition of law would be directly applicable to the facts of the present case. When the Government Resolution prescribes norms for selection of Anganwadi Workers, and lays down a particular manner in which selection is to be made, it is incumbent upon the respondent-authorities to make the selection in accordance with the prescribed norms and in the prescribed manner. When the manner in which power is to be exercised is laid down by law or executive instructions, the power has to be exercised in the manner laid down, especially when there is no power of relaxation of norms, as in the present case. In my considered view, exercise of power in contravention of the prescribed mode of its exercise would not be a mere' irregularity, but would amount to an illegality which would vitiate the entire process. By appointing respondent No.4 in violation of the prescribed norms, in the absence of any power of relaxation has resulted in miscarriage of justice to the petitioner and other candidates who have participated in the selection process. Moreover, there may have been several ladies who were married, but did not possess the Certificates of Registration of Marriage at the relevant point of time, and did not apply for the post of Anganwadi Worker due to this reason at the relevant point of time. When such potential candidates are excluded on the basis of the condition contained in the advertisement and the relevant clause in the Government Resolution, there is no valid or convincing reason why the respondents have made an exception in the case of respondent No.4, who admittedly, did not produce the original Marriage Registration Certificate, at the time of interview, or even at the time of appointment. The said Certificate has been submitted much later. Merely by stating that respondent No. 4 is more meritorious than the petitioner would not cure the lapse as the norms do not prescribe that conditions in the Government Resolution will not apply to the more meritorious candidate. 17. In my considered view, the action of the concerned respondents in deliberately deviating from the norms prescribed in Government Resolution dated 13-11-2009, for reasons best known to them, is arbitrary and unsustainable in law. 17. In my considered view, the action of the concerned respondents in deliberately deviating from the norms prescribed in Government Resolution dated 13-11-2009, for reasons best known to them, is arbitrary and unsustainable in law. The process of selection has been done in violation of prescribed norms. Therefore, the entire procedure of selection being vitiated, the illegality would penetrate to the very root of the selection. 18. The other ground on which the petitioner has assailed the appointment of respondent No.2 is that, according to the petitioner, respondent No. 4 belongs to Salat Faliya of Hirapur village, whereas, the Anganwadi Centre has been opened for the children of Hirapur (Dipapura) village. In the affidavit-in-reply filed by respondent No. 2 (Child Development Project Officer), it is stated that both the petitioner and respondent No. 4 are local candidates. However, as respondent No.4 is more meritorious than the petitioner and has passed the 12th Standard at the first attempt, securing 54.83% marks whereas the petitioner has passed Standard 12 at the second attempt, respondent No.4 has been selected. If the advertisement is perused, it is seen that new Anganwadi Centre has been sanctioned for Hirapur (Dipapura) and the post of Anganwadi Worker, for which both the petitioner and respondent No. 4 have applied, is for Anganwadi Centre located at Hirapur (Dipapura). The petitioner is a resident of Hirapur (Dipapura), whereas respondent No.4 is a resident of Salat Faliya of village Hirapur Both the revenue villages of Hirapur and Dipapura are part of the Group Gram Panchayat known as Hirapur Group Gram Panchayat. The requirement in the advertisement as well as in the Government Resolution dated 13-11-2009 is that the candidate applying for the post of Anganwadi Worker should be a resident of the Village, Faliya, Para or Ward where the Anganwadi Centre is located. Only if a local candidate is not available can a candidate who belongs to the nearest place be considered for appointment. The learned Advocate for the petitioner has drawn the attention of this Court to various Resolutions passed by the Gram Sabha of Hirapur Group Gram Panchayat. Vide Resolution No. 24 passed on 3-6-2009 (Annexure-D), it is resolved that as there is no Anganwadi Centre at Dipapura revenue village of the Group Gram Panchayat, people of that village have made a representation for opening a new Anganwadi Centre, and it is resolved accordingly. Vide Resolution No. 24 passed on 3-6-2009 (Annexure-D), it is resolved that as there is no Anganwadi Centre at Dipapura revenue village of the Group Gram Panchayat, people of that village have made a representation for opening a new Anganwadi Centre, and it is resolved accordingly. By Resolution No. 21 dated 21-7-2010 (Annexure-E), it is resolved that the children of Hirapur-Dipapura villages and of Kachhla Faliya in Hirapur will be included in the new Anganwadi Centre. In the application of the petitioner dated 22-2-2010, it is stated that an Anganwadi Centre has been approved for Hirapur and that the petitioner is one of the candidates for the same. The, certificate of the Talati-cum-Mantri certifying that respondent No.4 resides at Salat Faliya of Hirapur village has been placed on the record of the case. From the material on record, it appears that the new Anganwadi Centre has been approyed for Hirapur (Dipapura) villages of Hirapur Group Gram Panchayat. The petitioner belongs to Dipapura village whereas respondent No.4 belongs to Salat Faliya of Hirapur village. As per the Resolutions of the Hirapur Group Gram Panchayat, children of both Hirapur and Dipapura villages were to be included in the new Anganwadi Centre. In the affidavit-in-rejoinder filed by the petitioner, it is stated that in response to the application dated 24-9-2010 filed by the' petitioner under the Right to Information Act, respondent No.2 has stated by letter dated 10-12-2010 that Salat Faliya is included in Hirapur Anganwadi Centre and insofar as Hirapur (Dipapura) Anganwadi Centre is concerned, it covers Patel Faliya, Kachhla Faliya, Talav Faliya, Rathwa Faliya and Dipapura. Respondent No.4 is a resident of Salat Faliya, which is included in the old Hirapur Anganwadi Centre. Neither respondent No. 2 nor respondent No. 4 have made any submissions in denial of this aspect. However, at this juncture, it is not necessary to decide whether respondent No. 4 is a local candidate or not, in view of the conclusion arrived at regarding the first ground of challenge, as discussed hereinabove. This iSGue is, therefore, left open. 19. For reasons stated hereinabove, as the selection of respondent No. 4 has been made in contravention of the norms for selection laid down in Clause 6.9 of the Government Resolution dated 13-11-2009, which requires that the selection be made on. This iSGue is, therefore, left open. 19. For reasons stated hereinabove, as the selection of respondent No. 4 has been made in contravention of the norms for selection laid down in Clause 6.9 of the Government Resolution dated 13-11-2009, which requires that the selection be made on. production of the original Certificate of Registration of Marriage, the process of selection of Anganwadi Worker for the new Hirapur (Dipapura) Anganwadi Centre deserves to be quashed and set aside. It is, accordingly quashed and set aside. As a consequence thereof, the appointment of respondent No.4, which has been made as a result of a vitiated process of selection, cannot be sustained, and is quashed and set aside. It is, however, made clear that no opinion has been expressed regarding the eligibility of either the petitioner or respondent NO.4. The respondent Nos. 2 and 3 are directed to carry out a fresh process of selection for the post of Anganwadi Worker for the new Anganwadi Centre located at Hirapur (Dipapura) within a period of three months from the date of receipt of the Writ of the Court. All eligible candidates, including the petitioner and respondent No.4, if found to be eligible, may apply. The selection shall be carried out in accordance with the prescribed norms, after issuing an advertisement in this regard. 20. The petition is partly allowed, as above. Rule is made absolute to the aforesaid extent. There shall be no orders as to costs. Petition partly allowed.