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2024 DIGILAW 1716 (GUJ)

STATE OF GUJARAT v. DAXABAHEN PUNJABHAI VANKAR

2024-08-13

A.S.SUPEHIA, MAUNA M.BHATT

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. The Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865 is directed against the judgment and order dated 23.12.2019 passed by the learned Single Judge in the captioned writ petition, whereby the learned Single Judge has allowed the writ petition and directed the appellant-State to provide age relaxation of 4 years in the upper age limit of 33 years in accordance with Government Resolutions dated 22.04.1983 and 01.03.2000 to the respondent No. 1-original petitioner, who belongs to Scheduled Caste category, BRIEF FACTS: 2. Pursuant to the advertisement dated 04.07.2015 issued by the appellant-State authority for the purpose of inviting interested candidates for Anganwadi Centres as Aanganwadi Workers at Durgavada-4 (D-4), Durgavada-3 (D-3), the respondent No. 1 submitted her application in the prescribed Form however, it is not stated by the respondent No. 1 whether such application was accepted or not. It appears that the same could not have been accepted in view of the age limit mentioned in the advertisement dated 04.07.2015 specifying that the candidate must be within the age limit of 18 years and not above the age of 33 years as on the date of advertisement. As per the application filed by the respondent No. 1, her age was 33 years, 8 months and 26 days, on the date of advertisement. 3. The respondent No. 1 thereafter, assailed the advertisement dated 04.07.2015 to the extent of stipulating the age criteria from 18 to 33 years by filing the captioned writ petition. The prayer clauses incorporated in the writ petition reveal that the respondent No. 1 has challenged the advertisement to the extent that it provides the age limit of 18 to 33 years and it is prayed that instead of the same, it should be 18 to 44 years as per the Government Resolutions dated 22.04.1983 and 01.03.2000. The learned Single Judge has ultimately, allowed the writ petition and directed the respondent-authorities to provide age relaxation in the upper age limit of 33 years in the case of the petitioner, who belongs to Scheduled Caste. SUBMISSIONS OF THE LEARNED AGP: 4. The learned Single Judge has ultimately, allowed the writ petition and directed the respondent-authorities to provide age relaxation in the upper age limit of 33 years in the case of the petitioner, who belongs to Scheduled Caste. SUBMISSIONS OF THE LEARNED AGP: 4. Learned Assistant Government Pleader, at the outset, has submitted that the post of Anganwadi Worker is not a civil post and the Rules applicable in cases of Government employees, more particularly, the Rule 8 of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967, which stipulates the age relaxation will not apply in the case of an Anganwadi Workers, and hence the learned Single Judge ought not to have placed reliance upon the same. In support of her submission, learned Assistant Government Pleader has placed reliance on the judgment of the Supreme Court in the case of State of Karnataka and others Vs. Ameerbi and others, 2007 (11) SCC 681 . She has also placed reliance on the recent judgment of the Supreme Court in the case of State of Uttar Pradesh and others Vs. Shanti Devi, 2022 (6) SCR 1051 . 5. Learned Assistant Government Pleader has also placed reliance on the Resolution dated 13.11.2009 issued by the Women and Child Development Department framing the Rules for appointment of Anganwadi Workers and Helpers. She has submitted that as per Clause 2 of the said Resolution, the age criterion prescribed therein for a candidate is 18 to 33 years. It is submitted that by the said Resolution, an Anganwadi Worker is appointed on honorarium basis that too under the scheme and hence, the respondent No. 1 cannot claim any benefit on the Rules, which are only applicable to the State Government’s employees. 6. The learned Assistant Government Pleader has further contended that the learned Single Judge has primarily placed reliance on the Circular dated 15.03.1994 as well as the Resolutions dated 22.04.1983 and 01.03.2000 for allowing the writ petition, which could not have been relied upon since the same apply to the posts of reserved categories of the State Government employees. She has submitted that these Resolutions will not apply to the Anganwadi post, which is filled on an honorarium basis under a scheme and hence, no such provision is made in the advertisement. Thus, it is urged that the judgment and order passed by the learned Single Judge may be quashed and set aside. She has submitted that these Resolutions will not apply to the Anganwadi post, which is filled on an honorarium basis under a scheme and hence, no such provision is made in the advertisement. Thus, it is urged that the judgment and order passed by the learned Single Judge may be quashed and set aside. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1: 7. Per contra, learned advocate Mr. Pujara, appearing for the respondent No. 1 has submitted that by the Resolution dated 13.11.2009, though the State Government has framed the Rules by cancelling of all the earlier Resolutions mentioned therein, which are 11 in numbers, the State Government has not cancelled the Circular dated 15.03.1994 written by the Joint Director to the Programme Officer of all the District Panchyats, wherein it is clarified that a candidate, who falls within the age limit of 18 to 44 years will be given preference for the appointment of Anganwadi Worker. He has also placed reliance on the Resolution dated 05.05.2004, in support of his submissions. 8. Learned advocate Mr. Pujara, has further submitted that the learned Single Judge has precisely placed reliance on the Government Resolutions dated 22.04.1983 and 01.03.2000 for granting the relief of age relaxation. It is, thus, urged that the present Letters Patent Appeal may not be entertained. 9. We have heard the learned advocates appearing for the respective parties at length. The documents, as pointed out by them, are also perused. ANALYSIS AND CONCLUSION: 10. On a threadbare examination of the impugned judgment and order dated 23.12.2019, we find that the learned Single Judge has primarily placed reliance on the Resolutions dated 22.04.1983 and 01.03.2000 in conferring relief of age relaxation to the respondent No. 1, who had applied to the post of Anganwadi Worker. Reliance is also placed by the learned Single Judge on the provisions of Rule 8 of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967. 11. The respondent No. 1 applied to the post of Anganwadi Worker, pursuant to the advertisement dated 04.07.2015, which specifies that a candidate must be between 18 years to 33 years of age as on the date of advertisement. Unquestionably, the respondent No. 1 was overaged, when she filled her application for the post of Anganwadi Worker. 11. The respondent No. 1 applied to the post of Anganwadi Worker, pursuant to the advertisement dated 04.07.2015, which specifies that a candidate must be between 18 years to 33 years of age as on the date of advertisement. Unquestionably, the respondent No. 1 was overaged, when she filled her application for the post of Anganwadi Worker. Thereafter, she approached this Court by filing the captioned writ petition challenging the advertisement to the extent of fixation of age of the candidates from 18 to 33 years. 12. It is not in dispute that an Angawadi Worker is nominated under the ICDS (Integrated Child Development Scheme) and the appointment is on honorarium basis. The appointment is governed by the provisions of Government Resolution dated 13.11.2009 issued by the Women and Child Development Department. The said Resolution categorically says that all the earlier Resolutions, which governed the appointment of the Anganwadi Workers are cancelled and the current Resolution is issued laying down the norms and rules for appointment of an Anganwadi Worker on honorarium basis. The said Resolution refers to 11 Resolutions, which are superseded. It is the case of the respondent No. 1 that since the said Resolution does not refer to the Circular dated 15.03.1994, it can be treated as in force. We do not find merit in such submission since the said Circular, which is annexed at page No. 34 of the memo of the writ petition, is dated 15.03.1994 and it is not a Government Resolution, but is an administrative instruction addressed by the Joint Director of Health and Medical Department to the Programme Officers. The same will lose its efficacy, and will pale into insignificance after the State Government has issued the fresh Resolution dated 13.11.2009 regulating the procedure of appointment of the Anganwadi Workers. The Clause 2 of the Resolution dated 13.11.2009 prescribes the age criterion, which refers that a candidate must be between the age of 18 years to 33 years. Precisely, this is the criterion, which has been incorporated in the advertisement. The entire recruitment of Anganwadi workers is governed by the conditions of the advertisement, and the same cannot be tinkered with. 13. The learned Single Judge has placed reliance on the Government Resolution dated 22.04.1983 as well as the Government Resolution dated 01.03.2000 to validate the claim of the respondent No. 1 seeking age relaxation. The entire recruitment of Anganwadi workers is governed by the conditions of the advertisement, and the same cannot be tinkered with. 13. The learned Single Judge has placed reliance on the Government Resolution dated 22.04.1983 as well as the Government Resolution dated 01.03.2000 to validate the claim of the respondent No. 1 seeking age relaxation. A bare perusal of the aforesaid Resolutions and the caption of such Resolutions, postulate that the Resolutions are only applicable to the Government employees, who belong to the reserved categories as well as physically challenged. The said Resolutions regulate the roster system, to be adopted for filling up the Class I, II, III and IV posts in Government service. Unquestionably, the respondent No. 1 does not fall in either of the categories. She cannot be categorized as a Class IV Government employee. Her appointment, which she was seeking on the post of Anganwadi Worker, does not fall within the contour of the aforesaid government Resolutions, which are issued for the purpose of reserved category candidates regulating their appointment and posts in State Government service, but it will be governed by the Resolution dated 13.11.2009. 14. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Ameerbi and others (supra). The Supreme Court has held that the integrated Child Development Scheme (ICDS Programme) was floated by the Central Government in the year 1975 and the same has been accepted by various State Governments. Undisputably, the advertisement, which has been issued for filling up the post of Anganwadi Worker and the Resolution dated 13.11.2009, pertains to the Projects floated under the ICDS Scheme. All the Anganwadi Workers and helpers are appointed on the honorarium basis. The Supreme Court after considering the said aspect and the nature of appointment of the Anganwadi Workers, has held thus: “20. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are not created. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed. Recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed. We do not think that the said decision has any application in the instant case. 28. However, rules framed under proviso to Article 309 of the Constitution of India are not attracted in the case of the respondents. They are appointed under a scheme which is not of a permanent nature although might have continued for a long time. 29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment. Some statements in this behalf have been made by the interveners but for the reasons stated hereinbefore, we cannot enter therein to. A distinction must be made about a post created by the Central Government or the State Governments in exercise of their power under Articles 77 or 162 of the Constitution of India or under a statute vis-s-vis cases of this nature who are sui generis. Terms and conditions of services of an employee may be referable to acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum.” 15. Thus, the Supreme Court, after examination of the entire scheme and the nature of appointment of the Anganwadi Workers and Helpers, has held that the Anganwadi Workers do not carry any function of the State and they do not hold post under the Statute and their posts are not created and the Recruitment Rules, as applicable to the employees of the State, are not applicable in their case. It is also held that their appointments are made through a Committee under a ICDS and such appointment is not of a permanent nature, although they have continued for a long time. It is also held that their appointments are made through a Committee under a ICDS and such appointment is not of a permanent nature, although they have continued for a long time. It is held that the appointments made under the scheme and recruitment process being carried out through a Committee would not render the incumbents thereof as holders of civil posts. Thus, the Resolutions on which the reliance is placed by the learned Single Judge will not apply to the Anganwadi workers as they are not the holders of any civil posts under the State Government. 16. The Resolution dated 13.11.2009 specifically refers that the appointments of Anganwadi Worker are to be made by the Committee, which is prescribed under the Clause 6.4 of the said Resolution. Prior to that, by the Resolution dated 05.05.2004, on which the reliance is placed by the respondent No. 1, also mentions that a Anganwadi worker under the ICDS Scheme are to be appointed by Five Members’ Committee. Thus, neither the Resolution dated 22.04.1983 nor 01.03.2000 or Rule 8 of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967 will apply to the post of Anganwadi Worker. 17. The respondent No. 1 cannot claim the age relaxation as a matter of right beyond which is stipulated in the advertisement. Any such age relaxation granted to the respondent No. 1 will have a cascading effect on the entire recruitment process since all the over aged candidates, who did apply, will get discriminated. The learned Single Judge was oblivious of such aspect and the direction thus issued by the learned Single Judge directing the appellants to grant age relaxation in her case, was uncalled for. Hence, the present appeal merits acceptance. The judgment and order dated 23.12.2019 passed by the learned Single Judge allowing the writ petition is quashed and set aside. 18. Resultantly, the present appeal is allowed. Civil application filed for interim relief does not survive and the same stands disposed of accordingly.