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2024 DIGILAW 549 (GUJ)

Shardaben Kalubhai Patel v. State Of Gujarat

2024-03-14

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present petition is filed by the petitioner under Article 226 of the Constitution of India seeking direction to the respondents to give appointment to the petitioner for the post of “Mukhya Sevika”, Class III and to declare that the petitioner is eligible and entitled for being appointed on such post as per the prescribed norms of the State Government. 2. Brief facts leading to the present petition are that the petitioner has been appointed as Anganvadi Worker under the I.C.D.S. Scheme for Dahod Taluka and accordingly she started working as Anganvadi Worker at Vadbara-2 Anganvadi. That respondent No.3 called for information of the Anganvadi Workers for filling up the post of Mukhya Sevika, who have worked continuously for a period of ten years. Though the petitioner was possessed the minimum education qualification of S.S.C. and fulfilling requisite criteria prescribed for the said appointment, her name was reflected at Sr.No.45 and, therefore she made representation to respondent No.3, however, the same was remained undecided, she preferred Special Civil Application No.14148 of 2010. This Court vide order dated 20.07.2010 directed respondent No.3 to consider the representation and to pass reasoned order in accordance with the Government Resolution dated 21.05.2007. That pursuant to the directions issued by this Court, the District Development Officer, Godhra has informed the petitioner that since her age is more than 45 years as on 01.04.2011, her name was not included in the select list and she has not been appointed as the Mukhya Sevika. 3. Being aggrieved and dissatisfied by the impugned inaction on the part of the respondent – authority in depriving the petitioner for appointment by nomination to the post of Mukhya Sevika, the present petition is filed. 4. Heard Mr.Parimalsinh Parmar, learned counsel appearing for the petitioner, Mr.Jay Trivedi, learned Assistant Government Pleader appearing for respondent No.1 – State Authority and Mr.U. M. Shastri, learned counsel appearing for respondents No.2 and 3 and Mr.M. A. Kharadi, learned counsel appearing for respondent No.4. 5. Mr.Parimalsinh Parmar, learned counsel appearing for the petitioner would submit that the Anganvadi Worker who completed ten years of services as on 20.01.2010 was required to be selected for the post of Mukhya Sevika and the petitioner and others have been forwarded the requisite information to the State Government, she deprived of selection without there being any fault on her part. He would submit that as on 31.03.2010, the petitioner was 44 years and 9 months i.e. below 45 years which is mandatory requirement for selection of the said post. He has submitted that though the name of the petitioner was included in the list at Sr.No.45, she was not selected for the said post. He has submitted that as per the resolutions dated 13.12.2005 and 08.02.2006, the maximum age for promotion to the post of Mukhya Sevika has been fixed at 45 years, whereby the relaxation of 3 years was granted, however, she was discriminated by respondent – authority in not selecting her for the said post. It is submitted by Mr.Parmar, learned counsel that during the earlier recruitment process, there was no “cut off date” applicable for such selection, however, vide Government Resolution dated 21.05.2007, for the first time, the maximum age for the purpose of nomination to the said post has been determined and on that basis, the respondent – authority has treated the petitioner to be above 45 years and, therefore, her case has not been taken into consideration for promotion. He has submitted that one Sabera Shaikh was issued appointment to the post of Mukhya Sevika, who was born in 1963, whereas, the petitioner was born in 1965 and, therefore, the case for appointment of the petitioner to the post of Mukhya Sevika is required to be considered. While referring to the circular issued by the respondent authority, he has submitted that the cut off date is required to be considered if the candidate is not cross the age of 45 years then the candidate can be considered for appointment of Mukhya Sevika in Aganvadi Worker and on the date of preparing of the selection list, the petitioner was not cross the age bar of 45 years and, therefore, the respondent – authority acted in arbitrary manner by not considering the case of the petitioner. He has submitted that the present petition may be allowed. 6. Mr.Jay Trivedi, learned Assistant Government Pleader appearing for respondent No.1 – State Authority has opposed the petition and submitted that the respondent – authority has rightly not appointed the petitioner as Mukhya Sevika as per the Rules. He has submitted that the petition being meritless deserves to be dismissed. 7. 6. Mr.Jay Trivedi, learned Assistant Government Pleader appearing for respondent No.1 – State Authority has opposed the petition and submitted that the respondent – authority has rightly not appointed the petitioner as Mukhya Sevika as per the Rules. He has submitted that the petition being meritless deserves to be dismissed. 7. Mr.U. M. Shastri, learned counsel appearing for respondents No.2 and 3 has also opposed the present petition and submitted that the authority has rightly not considered the case of the petitioner. He has referred to and relied upon the affidavit-in-reply filed on behalf of the respondent No.3. The relevant paragraphs of the affidavit-in-reply reads as under:- “3. I say and submit that the petitioner was appointed as Anganwadi worker under the I.C.D.S. Scheme on 26.09.1986. That on 29.01.2009, the authority has called for the information of the Anganwadi workers for the purpose of filling up the posts of Mukhya Sevika, Class III as per the G.R. dated 13-12-2005, who have performed the duties as Anganwadi Workers for a continuous period of ten years and who possess the minimum education qualification of S.S.C. pass. 4. I say and submit that provisional list as on 31-3-2010 was prepared by the authority and on 1-9-2010 the meeting of District Panchayat Service Selection Committee was held at Gandhinagar. That in that meeting the State Government has determined 1-4-2011 cut off date and from that basis out of the seniority list of 1 to 311 Anganvadi Workers, 43 Anganvadi Workers aged was more then 45 years, so their names were deleted and 268 Anganvadi Workers list was prepared. I say and submit that the petitioner’s birth date is 25-6-1965 so as on 1-4- 2011 she was 45 years 9 months and 5 days, so she was not selected by the authority. 5. I say and submit that as the petitioner representation was not decided by the authority, she has preferred Special Civil Application No.14148 / 2010 before this Hon’ble High Court and as per the Hon’ble High Court’s order her representation was decided by the District Development Officer and the authority has informed the petitioner regarding the same. 6. I say and submit that as the petitioner is more than 45 years as on 1-4-2011 her name was not included in the selection list and she was not appointed as a Mukhya Sevika by the District Panchayat Service Selection Committee. 7. 6. I say and submit that as the petitioner is more than 45 years as on 1-4-2011 her name was not included in the selection list and she was not appointed as a Mukhya Sevika by the District Panchayat Service Selection Committee. 7. It is respectfully submits that as stated herein above the authority has rightly not appointed the petitioner as a Mukhya Sevika as per the rules. In above stated facts and circumstances, the present petition is required to be rejected, in the interest of justice.” 7.1 Mr.Shastri, learned counsel, while referring to the circular and the minutes of meeting, has submitted that in the said circular, the respondent – authority has considered that on the date of commencement of selection process is not to be a cut off date. He has submitted that it is an admitted fact that the birth date of the petitioner was 25.06.1965 so on the date of preparation of the selection list she has already crossed 1st April and, therefore, for the next preceding year her age is required to be considered and considering the next preceding year, she already cross the age of 45 years and, therefore, there is no any illegality or irregularity on the part of the respondent – authority. He has submitted that the petition being meritless deserves to be dismissed. 8. In rejoinder, learned counsel for the petitioner has submitted that the cut off date is required to be considered as per the Government Resolution and not as per the communication and, therefore, the case of the petitioner is required to be considered. He has submitted that the birth date mentioned in the chart i.e. 25.06.1965 is correct, but her birth date mentioned in the communication i.e. 25.09.1965 is incorrect. He has submitted that the cut off date is required to be considered on the basis of the Government Resolution and not on the basis of the meeting which is held for the first time for preparing the selection list. 9. He has submitted that the cut off date is required to be considered on the basis of the Government Resolution and not on the basis of the meeting which is held for the first time for preparing the selection list. 9. Considering the facts of the case and the submissions canvassed by learned counsel appearing for the respective parties and perusing the material on record, it appears that the petitioner has been appointed as Anganwadi Worker under the I.C.D.S. Scheme and, thereafter, the respondent – authority called such information of Anganwadi Worker for filling up the post of Mukhya Sevika, who performed for continuous period of ten years and possessed the minimum educational qualification of S.S.C. It reveals from the material that the name of the petitioner was reflected in the select list at Sr.No.45 and, therefore, she made representation which was not considered by respondent – authority and she preferred writ petition before this Court, whereby it was directed to the respondent – authority to consider the case of the petitioner. However, the age of the petitioner was more than 45 years as on 01.04.2011 and, therefore, her name was not included in the select list and not appointed as Mukhya Sevika. It is the case of the petitioner that the respondent – authority has referred to and relied upon the circular and in response to the circular, the reply given by the District Panchayat is that they have clarified the age of the petitioner on the date of 01.04.2011, but as per the say of the petitioner, the selection list is prepared on 31.03.2010 and admittedly on that day, the petitioner has not cross the age bar. It also appears from the record that the petitioner is already retired from the service as Aaganwadi Worker and therefore the prayer sought for is not required to be granted. In view of the above, it reveals that the respondent has not committed any error in not considering the case of the petitioner and even there is no any arbitrary, illegality committed by the respondent – authority. Hence, the petition is devoid of merits and deserves to be dismissed. 10. Accordingly, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. Direct service is permitted. Hence, the petition is devoid of merits and deserves to be dismissed. 10. Accordingly, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. Direct service is permitted. However, it is open for the petitioner to make representation for such grievance before the respondent – authority and the same shall be decided by the respondent – authority in accordance with the law and the Government Resolution preferably within a period of three months from the date of receipt of such representation.