Mangala P. Nagargoje And Ors. vs State Of Maharashtra And Ors.
2002 Latest Caselaw 1038 Bom

JUDGMENT

H.L. Gokhale, J.

1. The petitioners herein are female workers known as Anganwadi Sevikas. They are questioning the promotion of respondent Nos. 8 to 25 to the posts of supervisors in the Integrated Child Development Services Scheme floated by the Union of India and which is implemented by the concerned Zilla Parishads under the supervision of State of Maharashtra. It is the case of the petitioners that they were selected to the very posts to which these respondents were selected, the respondent Nos. 8 to 25 were in facts not eligible for being considered to these posts, yet due to their wrongful selection, they were shown at higher positions in the select list and were issued the appointment orders which should have been issued to the petitioners.

2. Mr. Dharmadhikari and Mr. Pol appear for the petitioners. Mr. Jadhav, AGP, appears for respondent Nos. 1 to 5 and 7, Mr. Mehere for respondent No. 6 and Mr. Patil for respondent Nos. 8 to 25 except No. 11.

3. As noted above, there is a scheme known as Integrated Child Development Services scheme which is a programme floated by the Central Government and the implementation thereof is effected through the Zilla Parishad under the overall supervision of the State Government. In this scheme, the children in the age group of 0 to 6 from amongst weaker sections of the society, pregnant women and the lactating mothers are given facilities with respect to their medical check-up, training to develop resistance against the diseases, appropriate health services, nutritious diet and informal education. This programme fs implemented at the village level through the female workers designated as Anganwadi Sevikas.

W. P. No. 5335 of 2000 decided on 30-9-2002. (Bombay)

4. To these Sevikas, a promotion to the post of supervisor was made available by the Central Government by reserving 25% to the posts of supervisors provided they complete 10 years of service and they are matriculate. This scheme including the promotional facility is accepted by the State of Maharashtra and accordingly, the State Government issued a Government Resolution dated 5-1-1998 setting up a Committee for effecting these promotions at the District level. The Committee was directed to invite applications from the Sevikas who had the necessary qualifications of 10 years' service and passing of S.S.C. Such candidates were required to appear for a written examination consisting of one paper of 100 marks, and on the basis of the marks received, a list of selected candidates was to be prepared. The age limit was relaxable upto 45 years of age. This is what is specifically recorded in the government decision dated 5-1-1998.

5. It appears that as far as the District of Satara is concerned, the Chief Executive Officer of the Zilla Parishad issued the necessary communication to the Child Development Project Officer of the Integrated Child Development Scheme on 3-1-2000. The communication called upon the Sevikas to forward applications for the promotional posts. There were seven requirements mentioned in this communication dated 3-1-2000. They were as follows :

 1)      Educational Qualification : Minimum S.S.C. pass.  
 

 2)      The applicant should have completed minimum continuous 10 years service as Anganwadi Sevika.  
 

 3)      The age of applicant as per present Seva Recruitment's rules 45 is taken into consideration. Beyond that excess age limit should not be taken into consideration.  
 

 4)      Written test of qualified applicant of 100 marks related with this stream having only one paper will be taken. Then the candidate who are passed in the written test are invited for oral test interview which is taken by the Selection Committee and the final selection list will be finalised.  
 

 5)      The Applicant should attach all the copies of necessary educational certificates (attested by Gazetted Officer with the application).  
 

 6)      The essential certificate showing that the applicant has completed 10 years service as Anganwadi Sevika should be attached to the application.  
 

 7)      The candidate from backward class should submit Xerox copy of the caste certificate issued by competent officer.    
 

6. It is the case of the petitioners that accordingly they forwarded their applications and so also respondent Nos. 8 to 25 along with other applicants. A written test was held and a list of successful candidates was prepared by the Zilla Parishad wherein the names of the petitioners did figure. However, when it came to issuing necessary appointment orders, they were not issued appointment orders and it is their case that though respondent Nos. 8 to 25 did not have the necessary qualifications of having put in 10 years of service on the date of the above communication dated 3-1-2000, they were issued appointment orders. There were in all 35 posts to be filled. The common appointment order issued to the 35

candidates is dated 2-5-2000 (at Exhibit "K") and it is this order which is challenged by filing this petition wherein prayer Clause (a) is to quash and set aside the said order in respect of respondent Nos. 8 to 25. In prayer Clause (b), the petitioners seek a writ of mandamus directing their promotion to the post of supervisor.

7. A reply has been filed on behalf of the Zilla Parishad by one Tukaram Rajaram Garale, Deputy Chief Executive Officer, and in it, the following statement is made in paragraph 5 :

"I say that when the respondents have completed 10 years of service as mentioned in the above government resolution on the date of appointment and hence, their appointments made on merits may kindly be upheld by this Hon'ble Court".

Thus, according to the Zilla Parishad, the date relevant for issuing the appointment order was the date on which the appointment order was issued. The Zilla Parishad has annexed a chart of 65 names along with an affidavit. In column 5 of this chart, the date on which the concerned employee joined service has been mentioned. In column 6, the service completed by the employee on the date of the written examination is mentioned. The written test was held on 18-1-2000. In column 7, the service completed by the employee on the date of oral interview has been mentioned. The oral interview was held on 27-1-2000 and thereafter in column 8, the service completed by the Sevika concerned on the date of issuing of the appointment order has been mentioned. As stated earlier, the appointment order was issued on 2-5-2000.

8. Now, if we see this chart annexed as Exhibit A to this affidavit what we find is that as far as the respondent Nos. 8 to 25 are concerned, none of them had completed 10 years of service on the date on which the written test was held or on the date on which oral interview was held. They completed 10 years of service by the date on which the appointment order was issued. The affidavit, however, states finally that the Zilla Parishad will follow the directions that this Court may issue in this matter. It is material to note that as far as the affected persons whose appointments are challenged, namely, respondent Nos. 8 to 25 are concerned, they have not filed any reply to the petition.

9. Mr. Dharmadhikari, learned counsel appearing for the petitioners, submitted that on the face of it, the action of the Zilla Parishad considering respondent Nos. 8 to 25 eligible is erroneous inasmuch as the Zilla Parishad has considered them to be eligible since they had completed the qualifying service of 10 years by the date of issuance of appointment orders. He submitted that this certainly cannot be permitted. The communication of the Zilla Parishad dated 3-1-2000 which calls upon the candidates to submit their application clearly states in Clause 6 that the candidate concerned has to annex the certificate that the Sevika had completed 10 years of service. Obviously, such a certificate has to be forwarded at the latest before the written test was to be held which was held on 18-1-2000. This communication dated 3-1-2000 does not state that 10 years service is to be reckoned with reference to any particular date. Therefore, in his submission, this qualifying service will have to be as on the date of this communication which should be treated as the advertisement. In any case, as noted above, at the highest it could be a date prior to the date on which the

written test is held and as pointed above, the written test was held on 18-1-2000. He submitted that any other subsequent date will lead to an element of uncertainty and when a post in a public office is being filled, that certainly is impermissible. This is because if the date of appointment is considered as the material date, the appointing authority may extend it by any number of days or months or years and by that date, a number of persons will become eligible, who are otherwise not eligible on the date on which the advertisement was issued or even on the date when the written and the oral tests were held.

10. In his support, Mr. Dharmadhikari relied upon the judgment of the Apex Court in the case of Rekha Chaturvedi v. University of Rajasthan reported in 1992 Supp (3) SCC 168 and particularly, paragraph 10 thereof. In that paragraph, the Apex Court observed that the last date for making an application would at the highest be the date by which the scrutiny of the qualifications could be done and certainly not the date of selection. The relevant paragraph reads as follows :

10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz. even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date of the scrutiny of the qualifications will be the last date making the applications. ......."

11. Mr. Dharmadhikari drew our attention to the decision of the Apex Court in the case of Ashokkumar v. Chander Shekhar in which the question was with respect to the advertisement inviting applications requiring the qualification to be possessed on the date of submission of the application. The Court held that in such a case, permitting the candidates who did not fulfil that requirement but acquired the requisite qualification later albeit before the holding of interview to appear for interview, was impermissible. He drew our attention to a judgment of Division Bench of this Court in the case of Sudhakar S. Sarwate and Anr. v. Visvesvaraya Regional College of Engineering, Nagpur and Ors. reported in 1999(3) Mh.LJ. 433 where both these

judgments are quoted with approval and the same course is followed. He, therefore, submitted that in the facts of the present case, on the face of it, respondent Nos. 8 to 25 did not have the qualifications of having completed 10 years of service and hence, they should not have been allowed to appear for the written test as well as the oral interview at all. Hence, it is necessary that their names be struck off from the select list and the appointment orders issued to them be cancelled. As far as the petitioners are concerned, he submitted that they were undoubtedly qualified and there is no dispute about their being qualified. They had appeared in the written and the oral tests and their names appeared in the list of 65 successful candidates. The moment the names of respondent Nos. 8 to 25 are struck off, automatically, the petitioners would move upward and come within the zone of the first 35 who are to be appointed. He, therefore, submits that the appointment orders should be issued to all of them.

12. Mr. Mehere, learned Counsel appearing for Zilla Parishad, defended the stand taken by the Zilla Parishad in its affidavit in reply. He, however, left it to the Court to pass appropriate orders.

13. Mr. Jadhav, the learned Assistant Government Pleader, drew our attention to the manner in which the scheme was framed by the Central Government as also the implementation thereof by the State Government and the Zilla Parishad. He also left it to us to pass appropriate orders. He has emphasized the fact that the conditions laid down by the Central Government are mandatory for the State Government to observe and, therefore, if according to the Court, there are any errors, the errors be directed to be removed and appropriate orders be passed.

14. Mr. Patil, learned Counsel appearing for respondent Nos. 8 to 25, on the other hand, submitted that when one looks at the various requirements for filling the application as notified in the government communication dated 3-1-2000, what one finds is that when it comes to the age limit, although relaxation upto the age of 45 years is provided, it is specifically stated that candidate beyond that age will not be considered. As far as 10 years' service is concerned, there is no such emphatic negative clause in this communication dated 3-1-2000 that persons beyond 10 years will not be considered. Mr. Patil submitted that there is nothing wrong so long as the candidates have 10 years of service experience until the date on which the appointment order is issued. Mr. Patil alternatively submitted that in the event this Court is of the view that the appointment of respondent Nos. 8 to 25 is in any way erroneous, the Zilla Parishad should be directed to issue a fresh advertisement and then only all the posts be refilled.

15. He relied upon the judgment of the Apex Court in the case of Dr. Rajinder Singh v. State of Punjab and Ors. . That was a case wherein the respondent-promotees did not have the requisite qualifications. Amongst others, it was canvassed that by the time the matter was considered by the Apex Court, respondent No. 3 had become eligible. The Apex Court set aside the promotion of respondent No. 3 and directed the Departmental Promotion Committee to consider the cases of all the eligible officers including the appellant and respondent No. 3. Mr. Patil submitted that a similar approach be adopted.

16. We have considered the submissions of the Counsel. On the facts as are narrated above, it is clear that the contesting respondent Nos. 25 did not have the service of 10 years service even on the date on which the written test was held. Obviously, when the requirement was of 10 years and Clause 6 of the Zilla Parishad communication dated 3-1-2000 required a service certificate of 10 years, it meant a certificate certifying such service prior to the application. Respondent Nos. 8 to 25 claim to have obtained service experience by the date of the appointment order. Surely that is not something which can be permitted. It undoubtedly leads to uncertainty and treating unequals as equals and a violation of Article 14 of the Constitution of India. The ratio of the two judgments relied on by Mr. Dharmadhikari squarely applies to the present case. The facts of the case relied on by Mr. Patil are quite different and in fact do not help his cause. In that matter, respondent No. 3 was not eligible and had become eligible by the time the matter was heard by the Apex Court. The report of that case does not indicate that the appellants were eligible whereas they are very much eligible in the present case. In the present case, all the petitioners were held to be eligible as they had all necessary qualifications and their names appeared in the same select list wherein the names of respondent Nos. 8 to 25 appeared. It is only because respondent Nos. 8 to 25 were considered to have had qualifying service until the date of appointment that they were shown at higher serial numbers in the select list and that is how their names figure in the first 35 names. The moment their names are removed, automatically, the petitioners will move upwards. This is not a case where the petitioners have failed in their selection. They were held eligible and were in fact selected and their names appeared in the same select list. They were however, not issued the appointment letters for want of the vacancies which were allotted erroneously to respondent Nos. 8 to 25.

17. In the circumstances, we allow this petition and set aside the order of appointment order dated 2-5-2000 at Exhibit "K" to the petition to the extent it contains the orders of appointment in favour of respondent Nos. 8 to 25, whose names appear at serial Nos. 3, 4, 6, 7, 10, 13, 15, 16, 17, 20, 22, 23, 27, 28, 29, 32, 34 and 35 therein. Apart from setting aside these orders of appointment as above, we find that in the list of 65 eligible Sevikas (at Exhibit "A" to the reply), there are others also who had not put in 10 years of service. As against that, we find that in this list, there are candidates from serial No. 36 onwards who are otherwise eligible and who had completed 10 years of service, and yet they have been denied their appointments erroneously. We, therefore, direct the Zilla Parishad, Satara to examine this list once again in the light of the observations and directions given above and issue appointment orders (after examining all requirements including reservations) to the Sevikas who were otherwise eligible and who will of course include the petitioners and correspondingly cancel the appointments of the non-eligible promotees. Prior thereto, the Zilla Parishad will issue notices to the Sevikas (other than respondent Nos. 8 to 25) who are not before the Court but whose promotions are likely to be cancelled. They may give their written representations within one week of the receipt of the notice. If they seek an oral hearing they may be provided the same. This is to avoid likelihood of any injustice or error.

18. Mr. Mehere, learned Counsel for the Zilla Parishad, seeks a period of eight weeks to do the needful and to issue necessary orders thereafter. The Zilla Parishad is, therefore, directed to issue necessary orders by the end of December, 2002. The order will also state that the petitioners and others who were wrongly denied their appointments shall be deemed to have been promoted along with others when they were issued their appointment order on 2-5-2000. The moment the Zilla Parishad issues the appointments in favour of the petitioners and others, respondent Nos. 8 to 25 and others who are holding charge will hand over their charge to the concerned Sevikas who will be then promoted as supervisors.

19. The Zilla Parishad will issue the necessary orders by the end of December, 2002 and the newly promoted supervisors will be eligible to their appropriate salaries from 1-1-2003. We also make it clear that as far as respondent Nos. 8 to 25 are concerned, they have worked as supervisors in the meanwhile and these Sevikas as also others who are working in these posts have earned their salary in the meanwhile and the Zilla Parishad will not recover any amounts from them for the work they have rendered in the meanwhile.

20. Petition is disposed of in the above terms. No order as to costs.

21. Mr. Patil applies for stay of this order. Mr. Pol opposes this request. Inasmuch as we have given sufficient time to the Zilla Parishad to take necessary action, respondent Nos. 8 to 25 have adequate time to move the Apex Court if they so desire. Request is rejected.

Certified copy expedited.