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2025 DIGILAW 224 (GUJ)

Radhaben Punabhai Mahakal v. State of Gujarat

2025-03-07

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : A.S. SUPEHIA, J. 1. Admit. Learned Assistant Government Pleader Ms. Shruti Dhurve waives service of admission for and on behalf of respondent no.1, learned advocate Mr.Hardik Karathiya waives service of admission for and on behalf of respondent no.2 and learned advocate Mr. P.C. Chaudhari waives service of admission for and on behalf of respondent no.3. The matter is taken upon for final hearing today. 2. The present appeal emanates from the impugned judgment and order dated 06.12.2024 passed by the learned Single Judge in the captioned writ petition, whereby, the learned Singe Judge though has recorded findings in favour of the present appellant – original petitioner, has ultimately directed the appellant to make a representation. 3. Learned advocate Mr. Nisarg Jain appearing for the appellant has submitted that the learned Single Judge ought not to have relegated the present appellant to make a representation since the reasoning recorded by the learned Single Judge is in her favour. He has submitted that after the merit list dated 06.08.2019 was prepared, a decision was taken by the Committee on 13.12.2019 not to act upon such merit list in view of the communication dated 23.02.2017 issued by the Additional Director, Women and Child Development, Gandhinagar. Thus, it is submitted that despite the name of the appellant figuring at serial no.1 of the revised merit list, she is not offered the appointment. It is also submitted that the Additional Director has no authority to act against the Government Resolution dated 13.11.2009, which lays down the requisite criteria for the appointment to the post of Aganwadi Worker and Helper. 4. Learned advocate Mr. Jain has further submitted that the only objection raised by the respondent authority is with regard to the educational qualification of the present appellant. It is submitted that the present appellant is having educational qualification of B.A., M.A, whereas minimum qualification, as required under the Government Resolution dated 13.11.2009 as per clause 1 is SSC passed. While placing reliance on the judgment of the Division Bench of this Court in the case of Varnilaben Ketanbhai Vasava vs. State of Gujarat & Ors., AIR Online 2021 Guj. 1470, it is submitted that the appointment on the post of Aganwadi Worker cannot be denied to the present appellant. 5. Per contra, learned advocate Mr. While placing reliance on the judgment of the Division Bench of this Court in the case of Varnilaben Ketanbhai Vasava vs. State of Gujarat & Ors., AIR Online 2021 Guj. 1470, it is submitted that the appointment on the post of Aganwadi Worker cannot be denied to the present appellant. 5. Per contra, learned advocate Mr. Karathiya appearing for the respondent no.2 has vehemently opposed the present appeal and has submitted that in fact, the appellant has suppressed the letter dated 13.12.2019 written by the Child Development Officer, Chikhali-respondent no.2 to the appellant informing her about the rejection of objection taken by her to the appointment of the respondent no.3. It is submitted that the said communication is neither disclosed in the writ petition nor assailed by the appellant. He has further submitted that the appellant is not entitled to the appointment to the post of Aganwadi Worker since she is possessing higher educational qualification than the prescribed qualification of SSC. He has referred to clause 1 and the Proviso thereto of the Government Resolution dated 13.11.2009. It is submitted by him that the Committee, which met on 13.12.2019, had taken a decision not to give effect to the merit list dated 06.08.2019 in view of the communication dated 23.02.2017 issued by the Additional Director, Women and Child Development, Gandhinagar. 6. Learned Assistant Government Pleader has submitted that vide communication dated 23.02.2017 the Additional Director has clarified that as per the Resolution dated 13.11.2009, a candidate who possesses the minimum qualification of Standard 10 is only entitled to the appointment to the post of Aganwadi Worker. Thus, she has submitted that since the appellant is over qualified, she cannot be appointed to the aforesaid post. 7. Learned advocate Mr. P.C. Chaudhari appearing on behalf of respondent no.3 has requested that since the respondent no.3 is working for almost more than five years, her appointment may not be disturbed. 8. We have heard the learned advocates for the respective parties at length. 9. The facts, which are appreciated by the learned Single Judge and are established from the record, are that the present appellant- original petitioner, who is having the educational qualification of B.A., M.A, was selected to the post of Aganwadi Worker in view of the Government Resolution / Policy dated 13.11.2009, which prescribes the procedure and qualification for the appointment to the post of Aganwadi Worker. 10. 10. The present appellant and the respondent no.3 submitted the applications for getting appointment to the post of Aganwadi Worker in the year 2018-19. The Selection Committee came to be constituted under the aforesaid Government Resolution and prepared a merit list for the post of Aganwadi Workers in the month of July 2019 and accordingly, the respondent no.3 was appointed on the said post. 11. The present appellant objected to the preparation of the merit list on 03.08.2019 on the ground of educational qualification. It appears that thereafter, a meeting was convened on 03.08.2019 by the Committee and it was decided that a new merit list shall be prepared. The decision of the such Committee is produced on page 44 of the captioned writ petition. 12. Thereafter, a new merit list was prepared on 06.08.2019, wherein, the name of the present appellant figures at serial no.1, whereas, the name of the respondent no.3 figures at serial no.4. 13. The respondent authority did not give effect to the said fresh merit list and accordingly, she along with other candidates gave an application on 22.10.2019. Again on 24.10.2019, she informed the Collector to do the needful and offer her appointment. Further, a representation was made on 05.11.2019 to the Prant Officer and ultimately when she did not get any response, she was constrained to file the captioned writ petition. 14. At this stage, we may refer to the communication dated 13.12.2019 written by the District Development Officer, Chikhali to the appellant – original petitioner about filing her applications dated 03.08.2019 and 06.08.2019. The respondent nos. 2 and 3 have submitted that the appellant is not entitled to any relief since, she has not disclosed the said communication in the writ petition. We are not inclined to accept such submission since the Committee, which met on 03.08.2019, in fact, had accepted the objection raised by the present appellant and a new merit list was prepared and it is not given effect only on the basis of the communication dated 23.02.2017 issued by the Additional Director, Women and Child Development, Gandhinagar. 15. We do not find that non-mentioning of communication dated 13.12.2019 would be fatal for the interest of the present appellant, since it only mentions about the filing of her letters through which she has raised objections to the new merit list . 15. We do not find that non-mentioning of communication dated 13.12.2019 would be fatal for the interest of the present appellant, since it only mentions about the filing of her letters through which she has raised objections to the new merit list . We may, at this stage, refer to the Government Resolution dated 13.11.2009, which prescribes the procedure for appointment to the post of Aganwadi Workers. The relevant clause 1 of the Government Resolution reads thus: “1. Educational Qualification:- (a) Anganwadi Worker – Minimum education qualification – SSC Pass. (b) Anganwadi Tedagar - Minimum education qualification – 7th Standard Pass. The District Development Officer of the District concerned can give relaxation in the minimum educational qualification of Anganwadi Worker and Tedagar as per requirement, using his discretion and after making written note of the grounds, in cases wherein candidates possessing minimum educational qualification are not available at the Anganwadi Centers even after intensive drives. This power can be utilized only in those cases wherein candidates having minimum qualification are not available even after conducting intensive drives.” 16. Thus, as per the clause 1, the minimum educational qualification, which is required, is SSC pass, however there is no cap on maximum qualification. The relaxation is only provided, when a candidate having minimum qualification is not available. At this stage, we may refer to the decision of the Division Bench dated 15.06.2021 in the case of Varnilaben Ketanbhai Vasava (supra) , whereby, the Division Bench, on an analogous issue stemming out from the clause 1 of Government Resolution dated 13.11.2009, has confirmed the decision of the learned Single Judge. In the case before the Division Bench, the respondent nos.4 and 5 therein, were holding the degree of Master of Arts, whereas, the petitioner had cleared the HSC examination. The Division Bench has thus, after examining the provision of Resolution dated 13.11.2009, has validated the appointment of respondent nos. 4 and 5, who are holding the degree of Master of Arts and dismissed the Letters Patent Appeal against the order passed by the learned Single Judge, which has allowed the writ petition of the candidates, who was possessing the degree of Master of Arts. 17. We may, at this stage, refer to the order dated 30.11.2016 passed by the learned Single Judge, which was the subject matter of the aforesaid order dated 15.06.2021 passed by the Division Bench. 17. We may, at this stage, refer to the order dated 30.11.2016 passed by the learned Single Judge, which was the subject matter of the aforesaid order dated 15.06.2021 passed by the Division Bench. The learned Single Judge in paragraph no. 6 has held thus: “6. As it is obvious, it is not in dispute that Respondent Nos. 4 and 5 are more meritorious and more qualified. In the application given by the present petitioner objecting to the appointment of Respondent Nos. 4 and 5, itself, is indicative that Respondent Nos. 4 holds degree of Master of Arts, whereas, the petitioner has cleared HSC exam and is having certificate of Montesary training, which is again not must for being appointed on the said post. However, if, a person has additional qualification, they are always placed higher than those, who have less merit. The minimum qualification or criteria enshrined in the recruitment rules or the government resolution are to eliminate those candidates, who does not possess even that minimum qualification. It goes without saying that there cannot be any ceiling to the higher and better qualification.” 18. Thus, after the decision rendered by the Division Bench on the analogous issue and on the intention of the Government Resolution dated 13.11.2009, the communication dated 23.02.2017 issued by the Additional Director, Women and Child Development, Gandhinagar which is cited for rejecting the case of the appellant pales into insignificance. We may comment upon the communication dated 23.02.2017,which has been written by the Additional Director, Women and Child Development, Gandhinagar to Programme Officer of District Panchayat, Sabarkantha, wherein the Additional Director has clarified that as per the provisions of Government Resolution dated 13.11.2009, only the minimum qualification of 10th Standard pass is required to be considered and the percentage obtained therein and in the recruitment, which is to be held for Aganwadi Workers, no higher education was required to be considered. 19. It is very pertinent and shocking to note that though the recruitment process pertains to Navsari District, the Committee has placed reliance on the communication dated 23.02.2017, which relates to Sabarkantha District and the present respondent no.2, who has undertaken necessary recruitment process for the appointment to post of Aganwadi Workers, and was part of the Committee, has not informed that the communication dated 23.02.2017 was pertains to another district. The Committee on its own without calling upon the explanation from the Secretary, Women and Child Development Department or the State Government, which has issued Government Resolution dated 13.11.2009, has directly put faith on the communication dated 23.02.2017 issued by the Additional Director, which is a lower authority coupled with the fact that the same is addressed to the District Panchayat, Sabarkantha, which is not even remotely connected to the recruitment process of Navsari District. Thus, it appears that in order to deny the benefit of appointment to the present appellant, an absolute illegal procedure has been followed by the Committee. 20. The learned Single Judge though has rendered the findings in favour of the present appellant has ultimately directed the appellant to make the representation in view of the fact that respondent no.3 is working since more than 5 years. We do not subscribe to the view expressed by the learned Single Judge, the appellant cannot be relegated after so many years to the same authority which has committed illegality by directing them only to consider the representation. This is in direct conflict with the administration of justice. We declare that the procedure adopted by the Committee, of which the respondent no.2 is also a Member and is a recruiting authority, is illegal and against the judgment and order passed by the Division Bench of this Court and also against the letter and spirit of the government policy dated 13.11.2009. As held herein above, there is no restriction on the maximum qualification and an Aganwadi Worker cannot be held to be ineligible to the post of Aganwadi Worker, merely because she possesses higher qualification. It is surprising to note that despite the formation of new merit list, in which, the appellant figures at serial no.1, the merit list is never operated and is stalled on the basis of communication dated 23.02.2017, which was not supposed to be considered at all, as it was not addressed to the respondent no.2. Thus, the respondent no.2, instead of pointing out to the Committee about the aforesaid facts, has chosen to remain silent, as a consequence thereof, the appellant was not offered any appointment, though she was placed at serial no.1. Hence, looking to the approach of the respondent no.2, we think it fit that appropriate costs shall be imposed upon the respondent no.2 for creating mess of the recruitment process. 21. Hence, looking to the approach of the respondent no.2, we think it fit that appropriate costs shall be imposed upon the respondent no.2 for creating mess of the recruitment process. 21. The present Letters Patent Appeal is allowed and the impugned judgment and order dated 06.12.2024 passed by the learned Single Judge in the captioned writ petition is hereby quashed and set aside. The respondent authorities are directed to appoint the present appellant to the post of Aganwadi Worker within a period of two weeks from the date of receipt of the present order by operating the merit list dated 06.08.2019 (Annexure A). The appellant shall be entitled to seniority from the date of appointment of the respondent no.3. The present appellant shall also be entitled to 50% of the salary. Rest of the benefits shall be counted notionally. The benefits, as directed by this Court, shall be paid within a period of 6 weeks from the date of receipt of the writ of the present order. 22. It is also noticed by us that respondent no.3 is also serving since last more than five years. At this stage, we do not deem it necessary to set aside her appointment, but it will be open for the respondent authorities to accommodate respondent no.3 as per their requirement at an appropriate place, without disturbing appointment of any other candidate. The respondent no.3 shall be accommodated at the discretion of the respondent authorities. 23. The cost of Rs.10,000/- (Rupees Ten Thousand) is imposed upon the respondent no.2, which shall be deposited before the Gujarat State Legal Service Authority within a period of two weeks from the date of receipt of the present order, failing which, the Registry is directed to place the matter before the appropriate Court assigned such roster. 24. With the aforesaid observations, the present Letters Patent Appeal is allowed.