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2019 DIGILAW 1140 (GUJ)

Parmar Kanchanben Kantibhai v. State of Gujarat

2019-12-11

A.S.SUPEHIA

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JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking quashing and setting aside the order dated 10-1-2012, by which the appointment of the petitioner was cancelled. 2. It is the case of the petitioner that though she is selected first in the merit-list, the Selection Committee placed her name at Serial No. 9, and hence, the respondent No. 4 issued the appointment order on 18-7-2011. Thereafter, the respondent No. 3 issued an order dated 9-1-2011 whereby the approval for appointment of the petitioner is cancelled. 3. Learned Advocate Mr. I.M. Pandya appearing for the petitioner has submitted that the respondent No. 3 had issued an order dated 9-1-2011, whereby an approval for appointment of petitioner was cancelled on one of the grounds that she is residing at the distance of 3 kilometers from the Anganwadi Centre. 4. Learned Advocate Mr. Pandya has further submitted that the impugned order is required to be quashed and set aside on the ground of violation of principles of natural justice as no opportunity of hearing was given to her. 5. In support of his submissions, learned Advocate Mr. Pandya has placed reliance on the judgment of this Court in the case of R.D. Devmani v. State of Gujarat, reported in 2003 (2) GLR 1085 . Thus, he has submitted that the appointment of the respondent No. 5 was illegal and the petitioner, though he was eligible for the appointment as per the criteria, cannot be denied the appointment to the post of Anganwadi worker. 6. Per contra, learned Assistant Government Pleader Mr. Ronak Raval appearing for the respondent-State has pointed out the policy laid down by the Government Resolution dated 13-11-2009, regulating the appointment of the Anganwadi Worker/Helper. He has submitted that as per Clause (3) of the aforesaid Government Resolution, the appointment of the respondent No. 5 is legal whereas the appointment of the petitioner was made due to inadvertence. 7. Learned Assistant Government Pleader Mr. Ronak Raval has submitted that an opportunity of hearing would be a futile exercise since the petitioner does not possess the requisite qualification as laid down by State Authority in the policy. 8. Learned Advocate Mr. 7. Learned Assistant Government Pleader Mr. Ronak Raval has submitted that an opportunity of hearing would be a futile exercise since the petitioner does not possess the requisite qualification as laid down by State Authority in the policy. 8. Learned Advocate Mr. Munshaw appearing for the respondent No. 2 has submitted that after issuing the appointment order of the petitioner, the respondent No. 5 made a representation and pursuant thereto, it was realized that the appointment of the petitioner was de hors the provisions of Government Resolution dated 13-11-2009, and hence, her appointment was cancelled. He has submitted that the respondent No. 5 is meritorious as she has secured 79.40% in XII Standard and she has also passed the P.T.C. examination in the first attempt and since it was realized that the petitioner was illegally appointed though she was not having the requisite qualification and the requisite criteria; her appointment was cancelled. 9. I have heard the learned Advocates for the respective parties. 10. The facts, which are not in dispute are that the petitioner was appointed on the post of Anganwadi worker in Anganwadi Centre of Alujina Muvada (Moti Zer) after undergoing the selection process and as per the approval granted by the Selection Committee. Thereafter, the respondent No. 5 made a representation to the respondent No. 2-authority against the appointment of the petitioner. Accordingly, an inquiry was undertaken by the respondent authority and it was realized that the appointment of the present petitioner was de hors the provisions of the Government Resolution dated 13-11-2009 and she was unqualified for the said post. A perusal of the order dated 9-1-2011, by which appointment of the petitioner has been cancelled, reveals that the respondent No. 5 was more qualified than the present petitioner as she is having 79.40% marks in XII Standard and she has cleared P.T.C. examination in the first attempt, whereas the present petitioner has secured 70.83% marks in XII Standard and she has cleared the P.T.C. examination in the second attempt. It is also observed that the residential address of the petition also does not fall within the limit of Anganwadi Centre as per the policy of the Government Resolution dated 13-11-2009. It would be apposite to refer to Paragraph No. 3 of the Government Resolution dated 13-11-2009, by which the appointment of Anganwadi worker, has been regulated by the State Government. It would be apposite to refer to Paragraph No. 3 of the Government Resolution dated 13-11-2009, by which the appointment of Anganwadi worker, has been regulated by the State Government. Paragraph No. 3 refers that the candidates, who have applied for the aforesaid post, their residence shall fall within the local limit of such Anganwadi Centre and if, in any case, no suitable candidates are found then the candidates, who are residing nearest to such Anganwadi Centre shall be given preference, and accordingly the relaxation of limitation shall be granted. 11. From the facts, it is established that the distance of the residence of the respondent No. 5 is at 2.5 kilometers from the Anganwadi Centre whereas the residence of the petitioner is at the distance of 3 kilometers and she is more qualified than the present petitioner. Looking to the aforesaid undisputed facts, it cannot be said that the appointment of the petitioner has been illegally or arbitrarily cancelled. As regards the contentions raised by the learned Advocate Mr. Pandya with regard to violation of principles of natural justice, the same would not rescue the petitioner even if the impugned order is set aside on the ground of violation of principles of natural justice, since an opportunity of hearing would be a futile exercise as the facts remain that she is less qualified than the respondent No. 5 as she is having 70.83% in XII Standard, whereas the respondent No. 5 is holding 79.40% in XII Standard. The Supreme Court in the case of Union of India v. Bishamber Das Dogra, reported in AIR 2010 SC 3769 , has held that for the non-observance of the principles of natural justice, would be an empty formality if this conclusion remains the same. The reliance placed on the judgment in case of R.D. Devmani, [ 2003 (2) GLR 1085 ] would not be applied to this case since the same pertains operation of the waiting list. The writ petition fails. Rule discharged.