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2018 DIGILAW 91 (GUJ)

SOBHNABEN R DABHI v. ADDITIONAL SECRETARY

2018-01-12

A.S.SUPEHIA

body2018
JUDGMENT : 1. On 11.01.2018, this court passed an order specifically directing the respondent to produce policy / rules and regulations governing appointment of Mukhya Sevikas in the manner indicated in the affidavit-in-reply filed by the respondent, wherein it is mentioned that they are following practice for giving an appointment to the eldest Mukhya Sevikas though her name figures below the eligible candidate in the select list. 2. Learned advocate Mr.Munshaw was specifically directed by this court to produce the policy. In support of his contentions, he has stated that while nominating Mukhya Sevikas for promotion, preference is given to the eldest, who is in the select list prepared for such promotion. 3. Today, when the matter is taken up for hearing, neither such policy is produced on record nor it is shown to this court. Having no other option, the court has to decide the matter on merits sans the policy governing such nomination of Mukhya Sevikas. 4. By way of the present petition, the petitioner has prayed for direction to promote her to the post of Mukhya Sevikas simultaneously the promotion of respondent no.6 is also challenged. 5. The brief facts giving rise to the present petition are that: 6. It is the case of the petitioner that respondent no.6 though junior to her has been issued promotion order dated 09.09.2010 ignoring her case though she is placed above in the select list prepared by the respondent authorities indicating position as on 31.03.2010. By the order dated 09.09.2010, respondent no.6 has been appointed by way of nomination in the regular payscale having pay of Rs.3,500/-. Name of respondent no.6 figures at Sr.6 in the said order. 7. The petitioner was appointed as Anganwadi Worker on 01.04.1991 after following due process. She is having educational qualification of 1st Year Arts degree, whereas respondent no.6 is 12th standard pass. The respondent has prepared select list of twenty Anganwadi Workers for nomination of Mukhya Sevika. As indicated above, the select list is prepared by respondent authority as per date of appointment of Anganwadi Worker. The same indicates that the petitioner is appointed on 01.04.1991, whereas respondent no.6 has been appointed as such on 19.07.1991. Their names figure at Sr.12 and 21, respectively. Correspondingly the petitioner is alloted 34 marks, whereas respondent no.6 is alloted 33 marks. It is the case of the petitioner that she is more experienced than respondent no.6. The same indicates that the petitioner is appointed on 01.04.1991, whereas respondent no.6 has been appointed as such on 19.07.1991. Their names figure at Sr.12 and 21, respectively. Correspondingly the petitioner is alloted 34 marks, whereas respondent no.6 is alloted 33 marks. It is the case of the petitioner that she is more experienced than respondent no.6. 8. Learned advocate Mr.Joshi appearing on behalf of the petitioner has contended that the respondent authorities have illegally appointed respondent no.6 by way of nomination to the post of Mukhya Sevika since the petitioner is placed above her in the select list. Moreover, she is having more marks than respondent no.6. Surprisingly, the affidavit of the respondent no.5 indicates that both petitioner as well as respondent no.6 have secured 34 marks. In earlier judgment, passed by this court on 28.04.2011, a specific quarry was raised about manner and method of nomination, nominating eldest Anganwadi workers for the post of Mukhya Sevikas, despite that nothing was produced by the respondent supporting procedure adopted by them. The aforesaid judgment was delivered in favour of the petitioner only on this ground, however, same was set aside by the Division Bench by the judgment dated 10.02.2014 passed in Letters Patent Appeal No. 886 of 2011, on the ground that the appointment of Mukhya Sevikas from the post of Anganwadi Workers, which made by nomination and not by way of promotion. 9. Learned advocate Mr.Joshi has stated that in absence of rules and regulations, the respondent authority should not have followed select list prepared by them, wherein name of the petitioner is placed above respondent no.6 and she has been alloted more marks than respondent no.6. He has submitted that still vacancy is available there and respondent no.6 as well present petitioner can be accommodated accordingly. 10. Learned advocate Mr.Munshaw was repeatedly directed to produce relevant provision of law and regulations adopted by the respondent authorities in regulating promotion / nomination of Anganwadi Workers to the post of Mukhya Sevikas. Learned advocate Mr.Munshaw has drawn attention of this court to the rules framed by the Panchayat Selection Services Board vide Notification dated 19.03.2004 regulating recruitment rules to the post of Mukhya Sevika Class III in the Panchayat service. 11. Learned advocate Mr.Munshaw has drawn attention of this court to the rules framed by the Panchayat Selection Services Board vide Notification dated 19.03.2004 regulating recruitment rules to the post of Mukhya Sevika Class III in the Panchayat service. 11. Mr.Joshi has stated that as per aforesaid rules, Mukhya Sevika is to be appointed by way of nomination amongst the Anganwadi Workers and same is made by Gujarat District Panchayat Service Selection Committee. Reliance is being placed on affidavit filed by respondent no.5, wherein in Para-3, the calculation of both petitioner as well as respondent no.6 is reproduced in which it is stated that both of them has secured equal marks i.e. 34. He has submitted that the respondent authorities have nominated respondent no.6 since she was eldest Anganwadi Worker and as it would be her last chance to be appointed as Mukhya Sevika as she would be crossing the age criteria of 45 years as envisaged in the aforesaid rules. 12. Learned advocate Mr.Munshaw has placed reliance on the order dated 08.09.2009 passed in Special Civil Application No.8027 of 2009, in support of his contention that if the marks secured by two candidates are equal then the candidate, who is older in age is to be preferred and considered for appointment. Thus, it is submitted, it cannot be said that such policy is arbitrary. Mr.Munshaw has contended that the respondents are following the same policy, which is referred by in the order dated 08.09.2009 passed by this Hon’ble Court. 13. Heard learned advocates for the respective parties and I have perused entire record of the present petition. 14. The facts established from the records are; (A) the respondent authorities prepared the select list (Annexure 'A') of those Anganwadi Workers, who are to be appointed by way of nomination to the post of Mukhya Sevika showing the position as on 31.03.2010. (B) the name of the petitioner figures at Sr. 12, her date of appointment is shown as 01.04.1991 and over all marks alloted to her are 34. (C) the name of respondent no.6 figures at Sr.21, her date of appointment is shown as 19.07.1991 and over all marks alloted to her are 33. 15. The respondents have not disputed the aforesaid select list. 16. The Mukhya Sevika Class III Panchayat Service recruitment Rules, 2004, reads as under :- 4. (C) the name of respondent no.6 figures at Sr.21, her date of appointment is shown as 19.07.1991 and over all marks alloted to her are 33. 15. The respondents have not disputed the aforesaid select list. 16. The Mukhya Sevika Class III Panchayat Service recruitment Rules, 2004, reads as under :- 4. To be eligible for appointment by nomination from amongst the Anganwadi Workers to the post mentioned in rule 2 above, a candidate shall – (a) Not be more than 45 years of age; (b) have passed Secondary School Certificate Examination with eleventh month’s training of Bal Sevika and have at least ten years experience as an Anganwadi Worker under the integrated Child Development Services Programme; (c) have adequate knowledge of Gujarati and Hindi. 5. The Nomination shall be made by the Gujarat District Panchayat Service Committee. 6. Appointment by direct selection and by nomination from amongst the Anganwadi Workers shall be made in the ratio of 1:1. 17. Thus, the appointment to the post of Mukhya Sevikas, Class III has to be made by way of nomination from amongst Anganwadi Workers, who possess the qualification / criteria mentioned in Rule-4. The nomination is to be done by Gujarat District Panchayat Service Selection Committee following aforesaid rules and the committee has preferred aforesaid select list. Respondent no.6 is nominated for the post of Mukhya Sevika only on the criteria that she being eldest in the select list or elder to present petitioner, is entitled for the appointment. In other sense, the case of the petitioner is rejected only because of age as she is younger than respondent no.6. As observed in preceeeding paragraphs, a query was raised by this court asking the respondent authorities to produce or show the relevant provision of law or rules and regulations, wherein the said criteria is adopted by the respondent authorities while nominating respondent no.6 as Mukhya Sevika. Repeated appeal by the court to the learned advocate for the respondents has been conveniently ignored. In the considered opinion of this court, the appointment of respondent no.6, appears to have been done in the blatant violation of the select list. Repeated appeal by the court to the learned advocate for the respondents has been conveniently ignored. In the considered opinion of this court, the appointment of respondent no.6, appears to have been done in the blatant violation of the select list. Had there been a policy / rules and regulations, which the respondents are consistently following for appointing Mukhya Sevikas from those Anganwadi Workers, who are elder in age, in that case the select list should have been prepared in such a manner, however, the select list indicates that it is prepared on the basis of date of appointment and corresponding marks are given as per experience and educational qualifications. 18. Learned advocate for the respondent is also unable to justify the affidavit-in-reply, more particularly, Para 4, wherein it is stated that both the petitioner as well as respondent no.6 have secured same marks as 34. On the contrary, the select list indicates that the petitioner has secured more marks as 34 and respondent no.6 has secured less marks than petitioner as 33. The respondent authorities have not produced any further modified select list, wherein the marks have been rectified as mentioned in the affidavit-in-reply. Reliance is placed by Mr.Munshaw on the order dated 08.09.2009, passed in Special Civil Application no. 8027 of 2009, will not rescue the respondent authorities as the issue before the court in the said writ petition related to appointment of Assistant Public Prosecutor by Gujarat Public Service Commission by direct recruitment. The respondents have not produced any documents on record revealing that they have adopted the policy of Gujarat Public Service Commission. 19. The respondent no.6 has chosen not to file appearance before this court. In light of aforenoted observations, the respondent authorities are hereby directed to nominate the present petitioner for appointment to the post of Mukhya Sevika as per select list from the date her junior has been appointed. Since, respondent no.6 is working for so many years, her appointment is not set aside. However, it is observed that the petitioner as well respondent no.6 can be accommodated at nearby places. The entire exercise shall be carried out within a period of two months from today. Appropriate order shall be passed within the said period. Necessary consequential benefits shall be paid within a week thereafter. 20. With the aforesaid observations and directions, the present petition is partly allowed. The entire exercise shall be carried out within a period of two months from today. Appropriate order shall be passed within the said period. Necessary consequential benefits shall be paid within a week thereafter. 20. With the aforesaid observations and directions, the present petition is partly allowed. Rule is made absolute to the aforesaid extent.