Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 877 (GUJ)

Patel Radhaben Dhansukhbhai v. State of Gujarat

2022-07-18

MAUNA M.BHATT, N.V.ANJARIA

body2022
JUDGMENT : Mauna M. Bhatt, J. 1. The appellant - original petitioner has filed this intra Court appeal challenging the order of learned Single Judge dated 30.7.2021 in Special Civil Application No. 9966 of 2021. 2. The co-ordinate bench of this Court vide order dated 7.1.2022 issued notice and on 21.4.2022, following order was passed : "ORDER IN LPA Notice for final disposal making it returnable on 8.6.2022. Ms. Tripathi, learned AGP waives service of notice on behalf of respondent state authority and Mr. Munshaw, learned advocate waives service of notice on behalf of respondent nos. 2 to 4. ORDER IN CA Ms. Mamta Vyas, learned advocate does not press the present application. Present application is disposed of as not pressed." 3. Thus, considering the issue involved and with the consent of the parties, the appeal is taken up for final disposal. 4. The facts in brief are as under : 4.1. The appellant whose date of birth is 10.6.1975, came to be appointed as Anganwadi Worker in Anganwadi Centre-II, Ruvabari, Tal. Devgadh Baria in the year 2004. The appellant as on 1.4.2020, was having experience of more than 16 years and 02 months as Anganwadi Worker. It is case of the appellant that during her tenure as Anganwadi Worker, she received many certificates for her work performance. It appears from the record that, vide notification dated 19th March 2004 of the Panchayat, Rural Housing and Rural Development Department, the rules for "Mukhya Sevika Class-III" (Panchayat Service) Recruitment Rules, 2004 were published. As per the said rules, appointment to the post of Mukhya Sevika Class-III is to be made either by direct selection or by nomination from amongst Anganwadi Workers. Rule-6 of Recruitment Rules 2004 permit the appointment to be made by direct selection and by nomination from amongst the Anganwadi workers, in the ratio of 1:1. Under the said rule 50% vacancies is to be filled in by direct selection and 50% by way of promotion from amongst the Anganwadi workers by nomination. Under Rule-4, the candidate who is eligible for appointment by nomination from amongst the Anganwadi workers, shall not be more than 45 years of age and should have an experience of atleast more than 10 years as an Anganwadi worker. 4.2. Under Rule-4, the candidate who is eligible for appointment by nomination from amongst the Anganwadi workers, shall not be more than 45 years of age and should have an experience of atleast more than 10 years as an Anganwadi worker. 4.2. It appears that pursuant to the said Recruitment Rules of 2004, a Government Resolution dated 13.12.2005 (Annexure B to the petition) was issued reiterating that those who completed 10 years of minimum service as Anganwadi Worker, and cleared the SSC examination are eligible to be considered for the post of Main (Mukhya) Anganwadi Worker Class-III. It is case of the appellant that pursuant to G.R dated 13.12.2005, the District Program Officer vide their letter dated 24.08.2020, informed all Coordinated Child Development Project Officers to send the list of qualified candidates within 7 days. As the appellant was eligible to the post of Main Anganwadi Worker, her name was included in the merit list prepared pursuant to the Resolution dated 13.12.20005. It is further the case of the appellant that despite being eligible to be considered for the post of Main Anganwadi Worker, Class-III, her name was not sent for consideration, aggrieved by which, she made representation. As there was no response from the respondents, she filed petition being Special Civil Application No.2557 of 2021, wherein this Court directed the respondent authority to decide the representation of the appellant within a stipulated time. The said representation was decided vide order dated 19.4.2021. In the decision dated 19.4.2021, it was conveyed that the process to fill up the post of Main Anganwadi Worker was initiated in August 2020, for August 2020 process the cut of date is 1.4.2021. Since she was 45 years and 10 months on 1.4.2021, she is not eligible. Challenging the said decision the petition was filed being Special Civil Application No.9966 of 2021. 5. The learned Single Judge vide order dated 30.7.2021 dismissed the petition with the following observations : "5. Since she was 45 years and 10 months on 1.4.2021, she is not eligible. Challenging the said decision the petition was filed being Special Civil Application No.9966 of 2021. 5. The learned Single Judge vide order dated 30.7.2021 dismissed the petition with the following observations : "5. Having heard the learned Advocate for the petitioner and having perused the material on record, more particularly, Government Resolution dated 21.05.2007, which provides for cut-off date for increasing the age limit from 45 years to 48 years to implement the Government Resolution dated 13.12.2005, which provides for promotion from the post of Anganwadi Worker to the post of Main Anganwadi Worker (Class-III), as one time measure and to decide cut off dates as per G.R. dated 08.02.2006. It is further resolved by the Government Resolution dated 21.05.2007 that nomination is to be made for appointing Main Anganwadi Worker (Class-III), considering the age of the person on the first April of the year in which, such procedure is started. 5.1 It is not in dispute that the age of the petitioner was 45 years and 10 months, as on 01.04.2021, and therefore, the case of the petitioner is rightly not considered for promotion on the post of Main Anganwadi Worker (Class-III) by the Respondent-Authority by nominating her for the said post. 6. In view of the above facts, this petition stands DISMISSED. No order as to costs." 6. Aggrieved by the above decision dated 30.07.2021, present appeal is filed. 7. We have heard learned advocate Ms. Mamta Vyas for the appellant, learned Assistant Government Pleader Mr. Dhawan Jayswal for Respondent No.1 and learned advocate Mr. H.S. Munshaw, for Respondent Nos. 2, 3 and 4. 8. Appearing for the appellant, learned advocate Ms. Mamta Vyas made following submissions : (i) that as per the Government Resolution No.ICD-10204-615-B dated 13.12.2005, the appellant was eligible to be considered for the post of Main Anganwadi Worker Class-III. (ii) that pursuant to the G.R. dated 13.12.2005, a meeting of District Committee was held on 22.12.2020 to fill up the post of Main Anganwadi Worker. In the minutes of the meeting dated 22.12.2020, it has been recorded that Women and Child Welfare Department, Gandhinagar vide their letter dated 24.2.2020 has accorded approved to fill up five (05) vacant post for Main Anganwadi Worker on ad-hoc basis. In the minutes of the meeting dated 22.12.2020, it has been recorded that Women and Child Welfare Department, Gandhinagar vide their letter dated 24.2.2020 has accorded approved to fill up five (05) vacant post for Main Anganwadi Worker on ad-hoc basis. Therefore, the procedure pursuant to the G.R. dated 13.12.2005 was started once the approval was granted in the month of February 2020. She further contended that to give effect to the approval dated 24.02.2020, of Women and Child Welfare Department, a list was prepared where the petitioner figured at Sr. No.2. (iii) That the decision of the respondent to now apply 1.4.2021, as cut of date is erroneous because when the list of eligible candidates was prepared, the details as on 1.4.2020 was called for and, therefore, the position as on 1.4.2020 is to be seen, where admittedly, the petitioner was below the age of 45 years. (iv) That the reason given by the respondent that the procedure to fill up the post for main Anganwadi Worker was initiated in August, 2020 therefore, the cut-off date would be 1.4.2021 and as she has completed 45 years and 10 months as on 1.4.2021, she was not eligible for the said post is misconceived and contrary to the rules. (v) That pursuant to approval by the Women and Child Welfare Department dated 24.2.2020, the position as on 1.4.2020 was called for and, therefore, now the stand of the Government that the procedure has been initiated in the month of August, 2020 is incorrect. She further submitted that as the approval was granted in February 2020, the details called for relates to the date of approval and, therefore, now the application of cut of date by the Government is erroneous. She thus, submitted to allow the appeal. 9. On the other hand, learned advocate Mr. H.S. Munshaw appearing for respondents Nos. 2, 3 and 4 submitted that the cut off date has been correctly applied by the respondent. Referring to the affidavit, he submitted that pursuant to the Government Resolution dated 13.12.2005, the process was initiated in the month of August, 2020 vide letter dated 24.8.2020. Referring to the letter dated 24.8.2020 (Annexure B page 57) he submitted that under the said letter the details in relation to the post to be filled for main Anganwadi Worker was called for. Referring to the letter dated 24.8.2020 (Annexure B page 57) he submitted that under the said letter the details in relation to the post to be filled for main Anganwadi Worker was called for. He further contended that though the details were called for as on 1.4.2020, however, as the process was initiated in August, 2020, which falls after the date of 1.4.2020, the cut of date would be 1.4.2021 and the age of the candidate as on 1.4.2021 is to be taken in to consideration. Referring to the minutes of District committee dated 22.11.2020, he submitted that in this also it was decided to take cut of date as 1.4.2021. Therefore, there is no illegality in rejecting the eligibility of the petitioner. Relying upon the Government Resolution dated 21.5.2007 of Women and Child Welfare Department, Gandhinagar, he submitted that the cut off date is prescribed in the said Government Resolution which states that when the process of consideration of nomination is initiated in the year and if the process is started after 1st April of that particular year, then the next 1st April is required to be taken into consideration as cut-off date. In the present case, the process for consideration was initiated in August, 2020 which is after 1st April 2020 and, therefore the cut-off date for the process of August 2020, would be 1.4.2021 and not 1.4.2020. As the appellant has completed 45 years as on 1.4.2021, her representation was rightly rejected. He, thus submitted that there being no error in the decision of learned Single Judge, the Letters Patent Appeal may be rejected. 10. We have considered the submissions made on behalf of respective parties. As noted earlier, pursuant to the Government Resolution No.ICD-10204-615-B dated 13.12.2005, the appellant was eligible to be considered for promotion to the post of Main Anganwadi Worker. It is also not in dispute that pursuant to the Government Resolution No.ICD-10204-615-B dated 13.12.2005, the Women and Child Welfare Department, Gandhinagar accorded its approval under letter dated 24.4.2020 and in the minutes of the meeting dated 22.12.2020, a list was prepared in which the appellant's candidature was rejected by applying cut of date as 1.4.2021. In the minutes, it is reflected that as the process was initiated in August, 2020, and 1.4.2021 being the cut of date, the appellant was age barred and not eligible. In the minutes, it is reflected that as the process was initiated in August, 2020, and 1.4.2021 being the cut of date, the appellant was age barred and not eligible. It appears from record that by one more G.R. of Women and Child Welfare Department, Govt. of Gujarat dated 21.05.2007, relaxation in age was permitted as a one time measure vide G.R. dated 8.2.2006. The G.R dated 21.05.2007 reads as under:- (i) G.R dated 21.05.2007 is applicable with effect from G.R dated 13.12.2005 and G. R dated 08.02.2006. (ii) The effect of G.R dated 8.2.2006 which provides relaxation in age for 3 years (from 45 to 48) is only applicable for first time process i.e. only as one time measure. (iii) Once the first time nomination process is over for subsequent nomination appointment "cut of date" would be applicable to decide the upper age limit. The "cut of date" would be - if the process of nomination has been initiated after 1st April of the concerned year, then 1st April of the subsequent year would be considered as the cut of date. 11. In our opinion the reading of Clause (2) of GR dated 21.5.2007, creates categories of eligible and non-eligible candidates in the same year on account of administrative reasons. In this case, approval to fill up the post of Main Anganwadi Worker was granted by the Government in the month of February 2020, the date on which the nomination were called was on 24.8.2020 and the actual date on which the committee undertook the exercise of nomination was 2.11.220. Thus there is also time between August, 2020 and November, 2020. 11.1. Further, admittedly when the details were called for, pursuant to the Government's approval dated 24.2.2020, the position as on 1.4.2020 was called for, which implies that the position on 1.4.2020 would be relevant for consideration for the post to be filled in pursuant to the Government Resolution dated 13.12.2005, especially when no cut of date is prescribed in the Recruitment Rules. We also could not find such condition in the GR dated 13.12.2005. 12. Moreover, in the decision of the Co-ordinate Bench, in LPA No.1078 of 2021 in Special Civil Application No.2430 of 2017 dated 31.1.2022, this Court has observed as under : "10. Even considering the submissions made by Mr. We also could not find such condition in the GR dated 13.12.2005. 12. Moreover, in the decision of the Co-ordinate Bench, in LPA No.1078 of 2021 in Special Civil Application No.2430 of 2017 dated 31.1.2022, this Court has observed as under : "10. Even considering the submissions made by Mr. Munshaw, learned advocate for the appellants, we do not find any rule in the Resolutions dated 13.12.2005, 21.5.2007 and 19.7.2007, which provide that the date on which the nomination Committee or the concerned Committee prepared the list, on that day, a candidate should not be more than 45 years of age. As is found in this case also, there is a time lag between the date on which the nominations were called for as it stood on 31.3.2015 and actual date on which the Committee undertook the exercise of nomination. If the argument of Mr. Munshaw is accepted, it would ipso facto create a class of non-eligible due to administrative reasons. Meaning thereby, a candidate may be less than 45 years of age on 31.3.2015 as in this case, but would cross 45 years of age when the Committee met in 2016. The nexus or logic for considering the position as on a particular date as in the instant case is 31.3.2015 is not without any basis and the cut off date of age limit would cut on that day i.e. on 31.3.2015. The learned Single Judge has very succinctly considered the said aspect in the Paragraphs which are referred to hereinabove. 11. We are in total agreement with the conclusions arrived at by the learned Single Judge. All that has been said is to consider the case of the original petitioners and not to treat them as non-eligible only because they had crossed 45 years of age on a particular date when the nomination Committee/concerned Committee sat to consider the seniority. We do not find any error as complained of by Mr. Munshaw, learned advocate for the appellants. As far as the last contention about the authorities is concerned, the same is beyond the scope of this appeal. It is for the authorities to take the decision in accordance with law. 12. The appeals therefore fail and are hereby dismissed. As the appeals are dismissed, connected Civil Applications are also dismissed." 13. Munshaw, learned advocate for the appellants. As far as the last contention about the authorities is concerned, the same is beyond the scope of this appeal. It is for the authorities to take the decision in accordance with law. 12. The appeals therefore fail and are hereby dismissed. As the appeals are dismissed, connected Civil Applications are also dismissed." 13. In view of the above, in our considered opinion once the approval has been accorded on 24.02.2020 by the Government, pursuant to which the details were called for from the concerned District, indicating the position as on 1.4.2020, now it will not be open for respondents to state that the process has been initiated in August, 2020 and, therefore, the cut of date for counting upper age would fall as on 1.4.2021. Further, no reasons are available for the initiation of process in August 2020, despite approval of February 2020. Administrative delay cannot be a ground for non eligibility. Therefore, it is not correct on the part of the respondents now to state that as the appellant has completed 45 years of age as on 1.4.2021, is not eligible to be considered for the post of Main Anganwadi worker if otherwise found eligible. 14. In view of the aforestated reasons, in our opinion the learned Single Judge has committed an error in dismissing the petition on the ground that the cut of date applicable would be 1.4.2021 and the petitioner has completed more than 45 years of age as on 1.4.2020. 15. Letters Patent Appeal is therefore, allowed. The order of learned Single Judge dated 30.7.2021 is quashed and set aside. The respondents are directed to consider the case of appellant for giving promotion to the post of Main Anganwadi Worker (Mukhya Sevika) Class-III from the date on which, other similarly situated employees were promoted. This exercise shall be done by the respondents as expeditiously as possible but not later than three months from the date of receipt of this order.