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2022 DIGILAW 1826 (GUJ)

Varshaben Chhelbhai Talajiya v. State Of Gujarat

2022-12-21

NIRZAR S.DESAI

body2022
ORDER : 1. Both these petitions are of identical nature and hence they are taken together, however, and for the purpose of passing the order the facts and prayers made in Special Civil Application No.429 of 2018 are considered. 2. In Special Civil Application No.429 of 2018, the petitioner has prayed for following order: “a) Your Lordships may be pleased to issued writ in the nature of Mandamus, Writ of Certiorari, or any other writ or direction to the respondents amend the resolution dtd.13/12/2005 (Annexure- M) and, or give suitable directions to Govt. of Gujarat. b) Your Lordships may be pleased to direct respondent No.1 to amend the resolution dtd.13/12/2005 (Annexure-M) and further write word “Urban” also. c) Your Lordships may be pleased to direct Respondent No.4- Bhavnagar Municipal Corporation, through it’s Commissioner, Rajkot to implement the directions of Programme Officer, ICDS letter dtd.29/2/2016 (Annexure-N). d) That further directions may be issued to the respondent No.1 that there should be no age bar as far as promotion of Anganvadi Worker is concerned. e) To pass such other and further orders relating to the services of the petitioner as per the resolution / rules of the State Government. f) Any other relief as deemed fit in the interest of justice in favour of the petitioner.” 3. Subsequently the petition was amended and following prayer was added. “(g) Your Lordships may be pleased to direct and ordered respondent No.4 to promote the present petitioner as “Supervisor” with immediate effect with all monitory benefits and arrears of different in salary may be paid.” 4.1 It is the case of the petitioner that the petitioner is B.A. Pass and is serving since 05.08.1986 as Anganwadi Worker in a school run under Bhavnagar Municipal Corporation under ICDS Programe. 4.2 According to the petitioner from the post of Anganwadi Worker further promotion rise to the post of Mukhya Sevika known as Supervisor and the petitioner is denied the benefit on the said post on the ground of age as the grievance of the present petition was that as per Notification dated 13.12.2015, in every district, of total posts of Mukhya Sevika 50% of the vacant posts are required to be filled in by Anganwadi Workers who has served for minimum ten years and possess minimum qualification of S.S.C. by way of nomination and the nominations are required to be done by Panchayat Seva Selection Committee. 4.3 Since the present petitioner is working under Corporation and the nomination was to be made by District Development Officer, the grievance of the petitioner was that the Corporation did not treat the petitioner tobe their employee and District Development Office also did not treat the petitioner tobe employee under District Panchayat and, therefore, petitioner’s name was not nominated for the purpose of promotion. In the meantime, the upper-age for the purpose of promotion i.e. 48 years was crossed by the present petitioner and therefore on the ground of age also the petitioner’s claim for promotion could not be considered by the respondent authority. 5. At the outset, learned advocate Mr.Desai for the petitioner and Mr.Chauhan for the respondent Corporation submitted that the identical issue in respect of Rajkot Municipal Corporation had come before coordinate Bench of this Court and the same is held against the present petitioners vide order dated 07.07.2022 passed in Special Civil Application No.9589 of 2017 with Special Civil Application No.10496 of 2017 whereby the petitions preferred by identically situated petitioners have been dismissed by coordinate bench. 6. Learned advocate Mr.Pankaj Desai though vehemently submitted that the Notification dated 13.12.2005 is required to be amended. However considering the fact that coordinate Bench has considered this very aspect and upon considering the aspect has dismissed the petitions and as there is no dispute about the fact that issue under challenge by way of these petitions is identical to the one which is dismissed by coordinate Bench, this Court is bound by the decision of coordinate Bench. 7. The coordinate Bench, in paras:3 to 12, observed as under: “[3] The contentions of the petitioners is that though the petitioners were eligible for promotion from the post of Anganwadi Worker to Mukhya Sevika, the petitioners were not promoted and therefore, they were discriminated from the Anganwadi Workers only on the ground that the other Angawadi Workers were promoted to the post of Mukhya Sevika as they were working under the District Panchayat, whereas the petitioners having worked as Anganwadi Workers under the Rajkot Municipal Corporation, were not given any promotion. [4] Learned advocate for the petitioners submitted that the Act as well as the Resolution are arbitrary and discriminatory inasmuch as it differentiate the Anganwadi Workers working with the municipal corporation from the Anganwadi Workers working under the District Development Officer. [4] Learned advocate for the petitioners submitted that the Act as well as the Resolution are arbitrary and discriminatory inasmuch as it differentiate the Anganwadi Workers working with the municipal corporation from the Anganwadi Workers working under the District Development Officer. It is submitted that the requirement of both the Anganwadi Workers, working under the corporation and the District Development Officer is the same and therefore, the policy for promotion should also be uniform and therefore, it is in clear violation of Article 14 of the Constitution of India. Learned advocate for the petitioners submitted that since beginning the petitioners have through the union in correspondence with the authorities for the purpose of promotion as per the resolutions of 2005 and 2007 which provided for the promotion of an Anganwadi Worker to the post of Mukhya Sevika. The correspondence continued for long, but the respondents did not act in accordance with the resolutions and ultimately when the petitioners though entitled to be promoted right from the year 2005/2007, no action was taken and when the action was taken, at that time, the case of the petitioners was not considered as having become overage. [4.1] Learned advocate places reliance upon a decision of this Court in the case of Smt. Manjulaben M. Ranavat Anganwadi Worker v/s. District Development Office in Special Civil Application No.13852 of 2011 dated 03.08.2021 submitting that in identical fact situation the Angawadi Worker was directed to be given promotion to the post of Mukhya Sevika. Learned advocate submitted that the confusion had arisen on account of the fact that the corporation did not treat the petitioners to be employees under the corporation and therefore, under a mistaken impression that the promotion and procedure for promotion will be the responsibility of the District Development Officer and therefore, for long period, the case of the petitioner was not considered. [4.2] Learned advocate for the petitioners lastly submitted that considering the date of their entitlement and having become eligible for the promotion to the post of Anganwadi Worker, at that stage, the petitioners were admittedly under the age of 45 or 48 years respectively and therefore, were entitled to the promotion. [5] As against this, learned advocate Mr. [4.2] Learned advocate for the petitioners lastly submitted that considering the date of their entitlement and having become eligible for the promotion to the post of Anganwadi Worker, at that stage, the petitioners were admittedly under the age of 45 or 48 years respectively and therefore, were entitled to the promotion. [5] As against this, learned advocate Mr. Hriday Buch for learned advocate Mr.Nishant Lalakiya for respondent No.4-corporation and learned advocate and learned advocate Mr.H.S.Munshaw for District Development Officer jointly submitted that the procedure was undertaken by the respondent-municipal corporation was independent of the procedure undertaken by the District Development Officer and such procedure was undertaken in the year 2011 for the first time and therefore, when the procedure was undertaken, the age of the petitioners had surpassed the age of 48. According to them, the petitioners were aged 49 years and therefore, did not fall in the extended limit of age of 48 years and therefore, their names did not appear in the list of selected candidates who were nominated for the purpose of promotion. [6] Heard learned advocates for the parties and perused the documents placed on record. At the outset, though the petitioners have amended the petition by adding prayer clause-G, there is nothing on record in the form of pleadings or any other document or arguments to indicate that the benefit of the Notification dated 13.12.2015 has not been extended to all the Anganwadi Workers in the State of Gujarat. In absence of any factual matrix, the amended portion of the petition is not considered at this stage, leaving it open in future if the necessary material is placed on record to consider accordingly at the relevant stage. [7] In so far as the case of the petitioners is concerned, the policy for promotion the post of Mukhya Sevika appears to be adopted by a Government Resolution dated 13.12.2005 which laid down the detailed policy and the qualification for such promotion. There is no dispute in the fact that amongst the requirement of other criterion, the upper age limit was fixed at the age of 45 years which if the procedure is to be undertaken for the first time was relaxed till the age of 48 years which was by subsequent resolution of 2007. From the pleadings placed on record, the date of birth is 17.07.1962 and 30.09.1962. From the pleadings placed on record, the date of birth is 17.07.1962 and 30.09.1962. Accordingly, considering the affidavit-in-reply filed by the respondents, it would be necessary to reproduce the averments made on affidavit on behalf of the Rajkot Municipal Corporation, which would read as under:- “1. The Respondent no.4 most respectfully submits that the petitioner herein was appointed as Honorary Anganvadi Worker through order dated 11.11.82 and a copy thereof is annexed as ANNEXURE-A. The respnt. no.4 submits that as stated in affidavit in reply, the post of Mukhya Sevika, Class-III are to be filled up by way of direct recruitment and nomination from amongst Honorary Anganvadi Workers in the ratio of 1:1 as per the notification dated 19.3.04 issued by Govt. of Gujarat through its Panchayat, Rural Housing and Rural Development Dept. and Recruitment Rrules for the cadre of Mukhya Sevika, Class-Ill known as Mukhya Sevika [Class-III] Panchayat Service] Recruitment Rules, 2004 annexed as Annexure-A to the Affidavit in Reply. From a kind perusal thereof it would be crystal clear that the upper age limit fixed under the rules for a nomination to the cadre of Mukhya sevika, Class-IIl is 45 years. It is submitted that as declared by the petitioner she was of the age of 55 years at the time of filing of Special Civil Application No.10496/17. In other words she has crossed the age limit at least 14 years past ac therefore, her claim for nomination to the post of Mukhya Sevika, Class-III is not entertainable. The respnt. no.4 submits that the selection process is also laid down by the Govt. of Gujarat through its Women and Child Development Dept. through a resolution dated 13.12.05 and the same is annexed as Annexure B to the Affidavit in Reply. It is stated that the selection process for nomination is to be undertaken in accordance with the procedure laid down through G.R. dated 13.12.05. The respnt. no.4 submits that, however, the powers for selection process are with District Panchayat Service Selection Committee of the concerned District for nomination of its Anganvadi Workers to the cadre of Mukhya Sevika, Class-III. It is submitted that the G.R. dated 13.12.05 make it clear that so fa ras the Municipal Corporation are concerned, the services of Mukhya Sevika, Class-III are to be sought by the Municipal Corporation from District Development Officer of the concerned District on deputation. The respnt. It is submitted that the G.R. dated 13.12.05 make it clear that so fa ras the Municipal Corporation are concerned, the services of Mukhya Sevika, Class-III are to be sought by the Municipal Corporation from District Development Officer of the concerned District on deputation. The respnt. no.4 craves leave to rely upon Clause-3 of the resolution. It is submitted that, however, when the issue cropped up about nomination of Anganvadi Worker to the post of Mukhya Sevika, Class- III there was a correspondence with respnt. no.5 and it was communicated by the Programme Officer, Integrated Child Development Scheme, Rajkot District Panchayat that it has powers qua nomination only for the District Panchayat. The respnt. no.4 craves leave to refer to the said letter dated 29,2,16 annexed as Annexure-C to the Affidavit in Reply. It is pertinent to note that in absence of any provisions for nomination of Honorary Anganvadi Worker to the cadre of Mukhya Sevika, Class-III so far as Municipal Corporation is concerned in G.R. dated 13.12.05 issued by Govt. of Gujarat through its Women and Child Development Dept. it was thought ft' by Programme Officer, 1.C.D.S., Urban, Rajkot Municipal Corporation to seek guidance of the Director, Women and Child Development Dept., Gandhinagar through a letter dated 12.5.20 and the same is again annexed as ANNEXURE-A, The respnt. no.4 submits that suitable guidance from the said authority is awaited. Under these circumstances it is most respectfully stated that the petitioner has crossed upper age limit of 45 years at least 14 years ago is not eligible for nomination to the post of Mukhya, Class-III in view of the Recruitment Rules. The respnt. no.4 most respectfully submits that the petitioner herein was born on 17.7.62 and was selected and appointed as Anganvadi Worker on 11.11.82. It is submitted that the recruitment rules known as “Mukhya Sevika Class III [Panchayat Service] Recruitment Rules, 2004” were framed through a notification dated19.3.04 and thereafter procedure for nomination to the cadre of Mukhya Sevika Class III was framed through a notification dated 13.12.05 and copies of notification dated 19.3.04 and G.R. dated 13.12.05 are annexed as ANNEXURE-B & C respectively. In other words the petitioner was of the age of more than 43 years at the time of issuance of notification dated 19.3.04 and G.R. dated 13.12.05. The respnt. In other words the petitioner was of the age of more than 43 years at the time of issuance of notification dated 19.3.04 and G.R. dated 13.12.05. The respnt. no.3 submits that the procedure foru nomination to the cadre of Mukhya Sevika Class III was initiated on 31.3.11 for the first time and a list of 24 eligible Honorary Anganwadi Workers was prepared and forwarded through a letter dated 31.3.11 to the Director, Women and Child Development Dept., Gandhinagar and copies of letter as well as list are annexed as ANNEXURE D & E respectively. It is humbly submitted that the name of the petitioner was not on the list as W6S She was of the age of 49 years at that point of time. The respnt no.4 humbly submits that, however, the Programme Officer, Rajkot District Panchayat, Rajkot opined through a letter dated 24.5.11 addressed to the Child Development Project Officer, ICDS. Urban, Rajkot Municipal Corporation that the needful was to be done by Gujarat Panchayat Service Selection Board, Ahmedabad as it was not a competent authority and copy thereof is annexed as Annexure-F.” And accordingly, it appears that for the first time the procedure for nomination to the cadre of Mukya Sevika, Class-III was initiated on 31.03.2011 and accordingly, the age of the petitioners respectively was more than 48 years and therefore, their names did not reflect in the list for promotion to the post of Mukhya Sevika. [8] The reliance placed upon by learned advocate for the petitioners on the decision of this Court in case of Smt. Manjulaben M. Ranavat Anganwadi Worker (Supra), it would be appropriate to observe that the dispute before the Court was with regards to discrepancy in the date of birth in the Government record and after considering the Government record, the Court came to the conclusion therein the date of birth to be particular and therefore, the age of the petitioners therein was below the age limit prescribed and therefore, the order was passed. The facts in the present case would differ on the facts in the case cited. [9] Learned advocate for the petitioner has cited following judgments to substantiate his case of discrimination and therefore violation of Article 14 of the Constitution of India. (I) Patel Rajesh Motibhai v/s. State of Gujarat and others, reported in AIR 1980 Gujarat 30 (II) Ramakanta Parija v/s. Dy. [9] Learned advocate for the petitioner has cited following judgments to substantiate his case of discrimination and therefore violation of Article 14 of the Constitution of India. (I) Patel Rajesh Motibhai v/s. State of Gujarat and others, reported in AIR 1980 Gujarat 30 (II) Ramakanta Parija v/s. Dy. Chief Mining Engineer, Sub Area Manager Belpahar, reported in 2016 (149) FLR 96 (III) Prasanna Dinkar Sohale and etc. v/s. The Director-in-charge Laxminarayan Institute of Technology, Nagpur and others, reported in AIR 1982 Bombay 176 (IV) Dr. Penil Sharadkumar Doshi and others v/s. State, reported in AIR 1990 Madhya Pradesh 171 (V) State of Rajasthan and another v/s. Dr. Ashok Kumar Gupta and others, reported in AIR 1989 SC 177 . [9.1] The Court has taken into consideration the Government Resolution which is framing the policy of promotion from the post of Anganwadi Workers to Mukya Sevika. The Court does not find any discriminatory clause in the policy however, considering the argument of learned advocate for the petitioners that the Anganwadi Workers, who were working under the District Development Officer were given priority and they stole the march over the petitioners for the promotion to the post of the Mukhya Sevika, in the opinion of the Court, would be attributable to the procedure which is undertaken by two separate establishments, depending upon the exigency which existed there, but such cannot be the ground to decide that the resolution was itself discriminatory in any manner. [10] The vehement argument of the learned advocate for the petitioners that the policy was framed by the Government Resolution of 2005/2007 and therefore, entitlement/eligibility of the petitioners from that very day cannot be accepted as the date on which the resolutions are framed, cannot be treated to be the date relevant for the purpose of deciding the entitlement of the petitioners. The relevant date to decide the entitlement would be the procedure that would be undertaken for the purpose of promotion which in the present case, is in the year 2011 for the first time and therefore, the age of the petitioners on the date on which the promotions are to be considered is relevant. [11] It is now reported that the petitioners have already retired in the year 2020. [12] In view of the above, no case is made out for interference and therefore, the petition deserves to be and the same is hereby dismissed.” 8. [11] It is now reported that the petitioners have already retired in the year 2020. [12] In view of the above, no case is made out for interference and therefore, the petition deserves to be and the same is hereby dismissed.” 8. In view of aforesaid discussion of the coordinate Bench and since there is no dispute about applicability of aforesaid decision to the case on hand also, as the case is squarely covered by aforesaid decision, no further observations are required in view of earlier decision rendered in Special Civil Application No.9589 of 2017 with Special Civil Application No.10496 of 2017. 9. In view of above, both these petitions are required to be dismissed and the same are dismissed. Notice, in each petition, is discharged. No order as to costs.