Chhaya Jagan Gaikwad vs Renuka Vishnu Davande And Others
2015 Latest Caselaw 49 Bom

                                            1




                                                                            
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                    
                              WRIT PETITION NO.9788 OF 2014

    Chhaya W/o Jagan Gaikwad,                                   PETITIONER
    Age-26 years, Occu-Anganwadi Karyakarti,




                                                   
    R/o Sawa, Post : Bhandegaon,
    Tq. and Dist. Hingoli

    VERSUS 




                                          
    1. Smt.Renuka Vishnu Davande,
                               
        Age-27 years, Occu-Nil,
        R/o Sawa, Post : Bhandegaon,
        Tq. And Dist. Hingoli,
                              
    2. Divisional Commissioner,
        Aurangabad Division,
        Aurangabad
      


    3. Chief Executive Officer,
        Zilla Parishad, Hingoli,
   



        Tq. And Dist. Hingoli,

    4. Child Development Project Officer, 
        I C D S, Project Officer Hingoli,





        Zilla Parishad, Hingoli,
        Tq. And Dist. Hingoli                                   RESPONDENTS


    Mr.P.S.Agrawal, Advocate for the petitioner.





    Mrs.A.S.Rasal, Advocate for respondent No.1.
    Mrs.V.A.Shinde, AGP for respondent No.1. 
    Ms.Pratibha Wankhede (Bharad), Advocate for respondent Nos. 3 & 4.


                                   ( CORAM : RAVINDRA V. GHUGE, J.)

                                       RESERVED ON  : 04/08/2015

                                   PRONOUNCED ON : 12/08/2015

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    J U D G M E N T : 

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the impugned judgment and

order dated 31/07/2014 delivered by the Divisional Commissioner,

Aurangabad Division Aurangabad in Appeal No.18/2013. The

appointment of the petitioner as an "Anganwadi Karyakarti" at Mini

Anganwadi, Sawa, Tal. and Dist. Hingoli has been cancelled and

respondent No.1 has been appointed in her place.

3. The petitioner submits as under :-

a. On 06/12/2010, an advertisement for appointment of

"Anganwadi Karyakarti" was published by respondent Nos. 3 and 4.

    b.     Respondent No.1 applied.
    c.     Being the only candidate and being ineligible since she did not 

complete 25 years of age, the selection process was cancelled. d. On 10/04/2013, the second advertisement was published. e. The petitioner and respondent No.1 applied in pursuance to the second advertisement.

f. The petitioner, being under age, was not eligible which left only one candidate i.e. respondent No.1 before the said authorities

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for selection as "Anganwadi Karyakarti". g. The said selection process pursuant to the second

advertisement dated 10/04/2013, was cancelled. h. Respondent No.1 has not challenged the cancellation of the selection process pursuant to the second advertisement before

any authority.

i. The respondents published a fresh advertisement for the third time on 22/05/2011, which was not challenged by respondent

No.1.

j.

Several candidates including the petitioner and respondent No.1 have applied pursuant to the third advertisement. k. In the preliminary list published, the petitioner stood at Sr.No.

1 scoring 72.46% and respondent No.2 at Sr.No.5 scoring 53.70%.

l. The interviews were conducted on 17/08/2013 and the results

were declared on the same day.

m. The petitioner was appointed as "Anganwadi Sevika" on 19/11/2013 and joined on 26/11/2013.

n. The petitioner stood at Sr.No.1 in the merit list scoring 77.46%

and respondent No.1 was not included even in the first 3 candidates and was, therefore rejected.

o. Respondent No.1 filed a complaint before respondent No.3 Chief Executive Officer challenging the appointment of the petitioner

on the ground that by virtue of the GR dated 05/08/2010, respondent No.1, as a sole candidate available and eligible, should have been appointed as "Angangwadi Karyakarti". p. Respondent No.1, who had scored 53.70% in the initial rounds, was not even invited for the interviews and was declared rejected. Even then, she did not raise any challenge.

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q. By order dated 08/10/2013, the respondent No.3 C.E.O.

rejected the appeal of respondent No.1.

r. Respondent No.1 then approached respondent No.2 Appellate Authority by preferring Appeal No.18/2013. s. By the impugned order dated 31/07/2013, the respondent No.2

Divisional Commissioner allowed the appeal of respondent No.1 and set aside the appointment of the petitioner and further directed that respondent No.1 be appointed in her place.

t. Respondent No.1 has raised a grievance only after participating

in the entire selection process and raised a grievance in her complaint dated 11/09/2013.

u. Though the GR dated 05/08/2010 provided for appointing an

"Anganwadi Sevika" even if only one candidate was available, the respondents had given up the second advertisement and had cancelled the selection process, against which respondent

No.1 did not raise any grievance.

v. Though the GR dated 05/08/2010 applies to vacancies, which have occurred prior to the subsequent GR dated 15/09/2011, once the selection process was cancelled, the Divisional

Commissioner could not have set aside the appointment of the petitioner, could not have set aside the entire selection process which was completed and could not have revived the selection process pursuant to the second advertisement dated

10/04/2013 which was already cancelled.

4. Mrs.Rasal, learned Advocate appearing on behalf of respondent

No.1 submits as under :-

a. The GR dated 05/08/2010 could not have been overlooked. It

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mandated that a single candidate available should be appointed as "Anganwadi Karyakarti".

b. The cancellation of the selection process pursuant to the second advertisement by itself is unsustainable. c. Though respondent No.1 did not challenge the cancellation of

the selection process pursuant to the second advertisement, it does not preclude her from staking a claim for appointment as she was the only eligible candidate.

d. Though respondent No.1 did not challenge the third

advertisement and subjected herself to the selection process, does not preclude her from seeking an appointment order pursuant to the second advertisement based on the GR dated

05/08/2010.

e. The GR dated 15/09/2011 would also enable respondent No.1 to make a claim for appointment as she was the only eligible

candidate pursuant to the second advertisement.

f. The Divisional Commissioner / respondent No.2 Appellate Authority has rightly noted that there was no necessity to advertise the post for the third time.

g. Respondent No.2 has rightly set aside the appointment of respondent No.1 owing to the challenge posed by respondent No.1.

h. Respondent No.1 has been desperately trying to secure an

appointment and is in great need of a source of earning. i. Though respondent No.1 was at Sr.No.5 in the merit list securing 53.73 marks as against the score of the petitioner 72.46 marks, yet she was entitled to be appointed pursuant to the second advertisement.

j. If the selection process pursuant to the third advertisement

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was not necessary, it needs to be set aside and the cancelled second selection process needs to be revived so as to enable

respondent No.1 to be appointed.

k. The respondent / Department has filed an affidavit in reply and they have supported respondent No.1.

l. The petition be dismissed with costs.

5. The learned AGP on behalf of respondent No.2 and

Mrs.Wankhede (Bharad) have submitted as under :-

a. Pursuant to the second advertisement, respondent No.1 was the only eligible candidate as the petitioner was short of few

days in completing 25 years of age which was the eligibility criteria.

b. She became 25 years old immediately after the second

advertisement dated 10/04/2013 (which selection process was

cancelled) and prior to the third advertisement dated 22/05/2013, which was published within 40 days. c. Respondent No.1 was the only eligible candidate and therefore

deserved to be appointed under the second advertisement. d. The GR dated 15/09/2011 is applicable to the posts which have fallen vacant after the introduction of the GR. e. GR dated 05/08/2010 should have been followed.

f. Respondent No.1 has been rightly appointed and no interference is called for.

g. Respondent No.1 was not called for interviews by the third advertisement since in the selection process, she was at Sr.No. 5 in the merit list.

h. Interviews were conducted on 17/08/2013 for which

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respondent No.1 was not invited.

i. She raised a grievance on 16/08/2013 and therefore

respondent No.4 called for a guidance from respondent No.3 by letter dated 17/08/2013.

j. Respondent No.4 appointed the petitioner after receiving

guidance from respondent No.3.

6. I have considered the submissions of the learned Advocates for

the respective sides and have gone through the petition paper book

with their assistance.

7. It is undisputed that respondent No.1 did not challenge the

cancellation of the selection process pursuant to the second

advertisement. She did not raise any demand or claim for seeking

appointment. In between 10/04/2013 and 22/05/2013, the petitioner

completed 25 years of age within that period of 40 days. It means

that she was marginally short of completing 25 years pursuant to the

second advertisement, by few days.

8. It is also undisputed that respondent No.1 did not challenge

the third advertisement. In fact, she applied pursuant to the third

advertisement. The merit list prior to the interviews was published

and it indicated that the petitioner had scored 72.46 marks and was

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at Sr.No. 1. Respondent No.1 scored 53.73 marks and was at

Sr.No.5. Only 3 candidates were invited for interviews as per rules.

The petitioner stood first in the final merit list scoring 77.46 marks.

Respondent No.1, therefore, raised a grievance on 16/08/2013, which

is one day prior to the declaration of results.

9. The respondents have heavily relied upon the communication

dated 25/05/2001 addressed to the Chief Executive Officers of all

Zilla Parishads by the Secretary, Women and Child Development

Department, State of Maharashtra. It was stated in the said

communication which the respondents have vehemently pressed into

service, that if only one candidate has applied and is eligible, the said

candidate should be appointed. In my view, the respondents have

conveniently avoided pointing it out to this Court that, if no

candidate applies or is eligible pursuant to the first advertisement, a

second advertisement should be published and the age limit of 25

years could be relaxed and brought down to 21 years.

10. In the light of the above communication, when not a single

candidate was eligible pursuant to the first advertisement dated

06/12/2010, the age limit of 25 years could be relaxed to 21 years

while issuing the second advertisement dated 10/04/2013. The

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petitioner, pursuant to the second advertisement dated 10/04/2013

was 24 years, 11 months and few days of age. She was, therefore,

eligible as the age limit could be relaxed to 21 years. The

respondent No.2 has conveniently disregarded this aspect and which

is obviously not highlighted by respondent No.1.

11. In the light of the above, even if it is presumed that the

selection process pursuant to the second advertisement deserves to

be restored, the petitioner would be rendered eligible alongwith

respondent No.1 and therefore the complete selection process would

be required to be undertaken inclusive of conducting interviews.

This has not been done. I, therefore, find that the second selection

process pursuant to the second advertisement, was rightly cancelled.

12. The Hon'ble Supreme court in the case of Dhananjay Malik and

others Vs. State of Uttaranchal and others, 2008 AIR SCW 2158 has

held in paragraph No.7 and 8 as under :-

"7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped

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from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite

educational qualifications were contrary to the Rules.

8. In Madan Lal vs. State of J & K, [1995]3 SCC 486, this

Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the

contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview.

Therefore, only because they did not find themselves to have emerged successful as a result of their combined

performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the

interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently

contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the

present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If

they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."

13. In a similar case of Amlan Jyoti Borooah Vs State of Assam and

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others, (2009) 3 SCC 227, the Apex Court has held in paragraph Nos.

29,30 and 32 as under :-

"29. The question which, however, arises for consideration is as to whether despite the same, we, in exercise of our jurisdiction

under Article 136 of the Constitution of India, should interfere with the impugned judgment.

30.The appellant concededly did not question the appointment

of 160 candidates. It is idle to contend that he was not aware thereof. If he was to challenge the validity and/or legality of the entire select list in its entirety, he should have also

questioned the recruitment of 169 candidates which took place as far back as on 04/07/2000.

32. The appellant, in our opinion, having accepted the change in

the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the

procedure adopted was illegal. He is estopped and precluded from doing so."

14. Once again, the Apex Court, in the case of K.A, Nagamani Vs.

Indian Airlines and others, (2009) 5 SCC 515 in paragraph no.54 as

under :-

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"54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The

appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process

having failed to qualify for the promotion."

15. In the light of the above crystallized position of Law, the

challenge posed by respondent No.1 was rightly dismissed by

respondent No.3 vide its order dated 08/10/2013. The appeal

preferred by respondent No.1 should have been dismissed by

respondent No.2. The appeal authority has failed to consider the

position in law and should not have entertained the challenge of

respondent No.1 after she had taken her chances pursuant to the

third advertisement. The impugned judgment of respondent No.2

dated 31/07/2014 is against the tenets of law and has resulted in

taking away the employment of the petitioner who was appointed by

order dated 19/11/2013 and had joined service on 26/11/2013.

16. While issuing notice on 17/11/2014, this Court had directed

respondent Nos. 2 and 3 to maintain status-quo in the event the

appointment of the petitioner is not cancelled and respondent No.1

has not been appointed.

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17. The petitioner submits that she had served the copy of the

order on respondent No.4. It is admitted by respondent No.4 in the

affidavit in reply dated 05/01/2015 that the order of this Court was

served upon the said authority at 3.30 p.m. on 27/11/2014.

Respondent No.1 was appointed in place of the petitioner and she

took charge on 27/11/2014 at 9.30 a.m. Order of cancellation of

appointment could not be served upon the petitioner.

18. The petitioner makes a grievance as to how did the respondent

Office start its functioning for the day at 9.30 a.m. which is not the

normal time. So also, what was the occasion for carrying out a

panchnama to suggest that respondent No.1 reported for duties on

27/11/2014 at 9.30 a.m. He submits that these documents are

prepared for frustrating the rights of the petitioner and for rendering

the order of this Court inoperable.

19. I am not required to go into this controversy since I have

observed in order dated 07/01/2015 in paragraph No.4 as under :-

"4. S.O. To 23/01/2015. Cancellation of the appointment of the petitioner and respondent No.4 taking over charge as Anganwadi Karyakarti shall be subject to the result of the Writ Petition."

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20. In the light of the conclusions arrived at in this judgment, by

setting aside the impugned judgment of respondent No.2 dated

31/07/2014, the order of respondent No.3 dated 08/10/2013 stands

restored. The petitioner, therefore, is reinstated with continuity and

50% of the back wages to soften the rigours of unemployment and

litigation.

21.

This petition is, therefore, allowed and Rule is made absolute in

the above terms.

( RAVINDRA V. GHUGE, J.)

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