Bombay High Court
Pratibha Vasantrao Kathar vs The State Of Mah & Ors on 6 September, 2017
Bench: R.D. Dhanuka
W.P. No.5734/2006
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.5734 OF 2006
Pratibha Vasantrao Kathar,
(Presently Sow. Pratibha w/o
Vinayak Parashar)
Age 34 years, Occ. Housewife,
R/o A-6, Sanjay Nagar,
Baijipura, Aurangabad ... PETITIONER
VERSUS
1. The State of Maharashtra
through Secretary,
Ministry of Social Welfare,
department of Women & Child
Development, Mantralaya, Mumbai
2. The Project Officer,
Integrated Child Development Scheme,
Urban Project, Aurangabad
3. Manisha Gangaram Lahane,
Age 28 years, Occ. Service,
R/o Galli No.22, Sy. No.20,
New Baijipura, Aurangabad.
4. Vaishali Prakash Makasare,
Age 29 years, Occ. Service,
R/o C-7, Sanjay Nagar,
Near Amar High School,
Aurangabad.
5. Kalpana d/o Ramesh Pagade,
(Presently Sow. Kalpana w/o
Vinod Bhuigad),
Age 30 years, Occ. Service,
R/o Indira Nagar, New Baijipura,
Aurangabad. ... RESPONDENTS
.....
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W.P. No.5734/2006
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Shri S.R. Choukidar, Advocate for petitioner
Mrs. M.A. Deshpande, A.G.P. for respondents No.1 and 2
S/Shri B.H. Gaikwad & M.D. Shinde, Advocates for
respondents No.3 to 5 (absent)
.....
CORAM: R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
DATED: 6th September, 2017.
ORAL JUDGMENT (PER R.D. DHANUKA, J.):
1. By this petition, filed under Article 226 of the
Constitution of India, the petitioner seeks a declaration that the
selection of respondents No.3 to 5 on the post of Anganwadi
Sevika of Baijipura, Indirangar area, Aurangabad is bad in law
and illegal and also seeks an order against the respondent No.2
to appoint the petitioner on the post of Anganwadi Sevika and for
consequential benefits arising therefrom. Some of the relevant
facts for the purpose of deciding this petition are as under :
2. On 17/4/2016, the respondent No.2 issued an
advertisement, inviting applications for filling up the posts of
Anganwadi Sevika and Anganwadi Madatnis (Helper). Various
conditions of eligibility were prescribed in the said advertisement
issued by respondent No.2. On 29/4/2006, the applications were
made by various candidates for the post of various Anganwadi
Sevikas. So far as the post of Anganwadi Sevika for Baijipura is
W.P. No.5734/2006
concerned, the petitioner and the respondent No.4 had applied
for the said post. The petitioner and the other candidates were
interviewed by Selection Committee appointed under the
Government Resolution dated 28/1/1997. The documents
submitted by both the candidates were also considered by the
Selection Committee. The Selection Committee found that the
marks of the respondent No.4 were higher than the marks of the
petitioner. The respondent No.4 was appointed to the said post
of Anganwadi Sevika. The petitioner has thus filed this Writ
Petition in this Court for various reliefs.
3. During the course of arguments, learned counsel for
the petitioner did not press the challenge to appointment of
respondents No.3 and 5 on the post of Anganwadi Sevika and
accepted the contentions raised by respondents No.1 and 2 in the
affidavit-in-reply that both these appointments were made by
respondents No.1 and 2 for another Ward, for which the
petitioner had not applied and pressed the relief only insofar as
appointment of respondent No.4 is concerned.
4. Learned counsel for the petitioner invited our
attention to the advertisement issued by respondents No.1 and
2 and also various certificates showing the qualification of the
petitioner i.e. Bachelor of Arts (B.A.), obtained by the petitioner
W.P. No.5734/2006
on 8/1/1998, certificate issued by Jan Shikshan Sansthan,
Aurangabad for passing Montessori Teachers Training Course,
certificate issued by Department of Education, Bureau of
Government Examinations in Maharashtra State, passing
Government Commercial Certificate examination, certificate
issued by Department of Horticulture, Government of
Maharashtra, passing Food & Vegetable Processing and
Preservation Training.
5. Learned counsel for the petitioner submits that,
insofar as appointment of respondent No.4 by the respondents
No.1 and 2 is concerned, though under the advertisement issued
by respondents No.1 and 2 the respondent No.4 was not the
resident of Baijipura and was resident of some other locality, the
respondents No.1 and 2 considered her application and appointed
her in breach of the terms and conditions of the advertisement
issued by respondents No.1 and 2 and also the relevant
Government Resolution. In support of this submission, the
learned counsel invited our attention to a certificate issued by
Shri Vaidyanath Shikshan Prasarak Mandal, Parli Vaijnath issued
in favour of respondent No.4. He also placed reliance upon the
residence certificate and would submit that, even in the said
certificate, no place of birth of the respondent No.4 was
mentioned showing the address of Baijipura. He submits that,
W.P. No.5734/2006
the said certificate would only show the address of Sanjaynagar,
Aurangabad, which may be in some other locality.
6. Learned counsel for the petitioner invited our
attention to the affidavit-in-reply filed by respondents No.1 and 2
and would submit that, the respondents No.1 and 2 have
overlooked the non-compliance of the said conditions that though
the respondent No.4 did not belong to the locality of Baijipura,
the respondents No.1 and 2 appointed her in violation of the
terms and conditions of the appointment. He also invited our
attention to the representation made by the petitioner on
18/2/2006, raising these issues and would submit that, there
was no response to the said representation made by the
petitioner.
7. Learned counsel for the petitioner invited our
attention to the death certificate of the husband of respondent
No.4 and would submit that, in the death certificate of the
husband, his place of residence was mentioned of some other
locality and not Baijipura.
8. Insofar as additional 20 marks given to the
respondent No.4 on the basis of she being a widow under the
Government Resolution is concerned, it is submitted by the
W.P. No.5734/2006
learned counsel for petitioner that, the respondent No.4 had not
produced any proof in support of her claim to be a widow and
thus, merely on the basis of her statement, the respondents No.1
and 2 could not have granted her the benefit of additional 20
marks.
9. The next submission of learned counsel for the
petitioner is that, though in the application form the respondent
No.4 had not produced any certificate of her experience, the
respondents No.1 and 2 have granted marks in respect of the so
called experience of the respondent No.4. He submits that, no
marks for experience of the petitioner were granted to her. He
submits that, the petitioner was a graduate whereas the
respondent No.4 has only passed 12th Standard. The
respondents No.1 and 2 thus ought to have considered the
qualification of the petitioner, which was higher than the
qualification of the respondent No.4 while appointing her.
10. Mrs. Deshpande, learned A.G.P. for respondents No.1
and 2, on the other hand, invited our attention to the
Government Resolution dated 14/1/2004 and would submit that,
under the said resolution, a Selection Committee of 4 officers
from different fields was appointed for the purpose of selection of
the candidates after considering the documents produced by the
W.P. No.5734/2006
candidates and after taking their interview. She submits that,
the said Selection Committee, after considering the documents of
all the candidates, made recommendation for appointment of the
meritorious and suitable candidates.
11. Learned A.G.P. invited our attention to the resolution
dated 9/2/2005 prescribing the qualification for appointment of
the candidates to the said post. She also placed reliance on the
annexures to the said resolution prescribing for various marks to
be allotted to the candidates under various categories such as
widow, reserved category candidates, experience of more than
one year, training in Anganwadi/ Balwadi course etc.
12. Learned A.G.P. also invited our attention to the
resolution dated 28/12/2005 and would submit that, by the said
resolution, the earlier Government Resolution dated 9/12/2005
was amended and the marks based on interview of the
candidates was increased from 10 to 20 and the marks on the
documents was reduced from 90 to 80.
13. Learned A.G.P. invited our attention to the marks
given to all the candidates including the petitioner and
respondent No.4 on the basis of the documents produced by
them and also the marks allotted to them in interview. She
W.P. No.5734/2006
submits that, insofar as the petitioner is concerned, the petitioner
was granted 50 marks out of 80 marks based on the documents
produced by her and was granted 11.33 marks in interview out of
20 marks, totaling to 61.33 marks whereas the respondent No.4
was allotted 75 marks out of 80 marks based on the documents
produced by her and 16.33 marks out of 20 marks, totaling to
91.33 marks.
14. Insofar as submission of the learned counsel for the
petitioner that the respondents No.1 and 2 have considered the
case of the respondent No.4 for the residence from Ward of
Baijipura though no document is produced by the respondent
No.4, learned A.G.P. invited our attention to the residence
certificate relied upon by the petitioner herself and would submit
that, while issuing the said certificate, the officer had considered
various documents produced by the respondent No.4 including
the voters list. She submits that, the respondents No.1 and 2
considered the said residence certificate issued by Tahsildar,
Aurangabad, clearly mentioning that the respondent No.4 was
resident of Sanjaynagar and was staying at the said place since
last five years. The respondents No.1 and 2 had also considered
the electoral list of Sanjaynagar consisting of her name in the
same in Baijipura Ward.
W.P. No.5734/2006
15. Insofar as the submission of the learned counsel for
the petitioner that the petitioner was more meritorious than the
respondent No.4 is concerned, it is submitted by the learned
A.G.P. that, insofar as graduate degree obtained by the petitioner
is concerned, she was granted more marks than the respondent
No.4. However, in the other categories, the respondent No.4
secured more marks than the petitioner. She submits that, even
if for the experience, 15 marks granted to the respondent No.4
are excluded from the 75 marks granted to her, the total marks
obtained by respondent No.4 would be still higher than the marks
of the petitioner. She submits that, the respondent No.4 had
produced her experience certificate before the Selection
Committee.
16. A perusal of the record indicates that, as per
Government Resolutions relied upon by the learned A.G.P., the
Selection Committee of various officers was appointed by the
Government for the purpose of selecting candidates, based on
the documents produced by the candidates which were required
to be produced in terms and conditions of the advertisement, the
Government Resolution, and also based on the interview of those
candidates. Out of 100 marks, 80 marks were to be considered
based on the documents produced by the candidates whereas 20
marks from the interview.
W.P. No.5734/2006
17. A perusal of the record produced by the respondents
No.1 and 2 along with affidavit-in-reply clearly indicates that
insofar as petitioner is concerned, she was allotted 25 marks
based on her education, 15 marks based on her caste and 10
marks based on her certificate of Anganwadi/ Balwadi course
produced by her. There were no marks granted to the petitioner
insofar as her experience is concerned and also in view of the
petitioner not being widow or did not fall under any other
category mentioned therein. Insofar as respondent No.4 is
concerned, she was granted 20 marks in view of her qualification
having passed 12th Standard, 15 marks she being a widow, 15
marks based on her caste, 15 marks based on her experience
and 10 marks in view of she having produced certificate of
completing Anganwadi/ Balwadi course. In interview, she has
secured 16.33 marks as against 11.33 marks allotted to the
petitioner.
18. Insofar as the submission of the learned counsel for
the petitioner that the respondent No.4 being not the resident of
the same Ward i.e. Baijipura is concerned, a perusal of the
residence certificate relied upon by the petitioner herself
indicates that, the various documents produced by the
respondent No.4 such as declaration dated 21/4/2016, report
W.P. No.5734/2006
submitted by the Talathi, Aurangabad, dated 21/4/2016, ration
card, election identity card, electricity bill, telephone bill, it was
certified by the Tahsildar, Aurangabad that the respondent No.4
was resident of Baijipura, Aurangabad since last five years. The
respondents No.1 and 2 have considered such documents
including voters list. We are, therefore, not inclined to accept the
submissions of the learned counsel for the petitioner that the
respondents No.1 and 2 had only considered the application of
the respondent No.4 for the Baijipura Anganwadi though she did
not prove that she was resident of the said Ward.
19. Insofar as submission of learned counsel for the
petitioner that, on the death certificate of the husband of
respondent No.4 the address mentioned was of different locality
and thus, the respondents No.1 and 2 ought to have considered
the said address while considering her case for the post of
Anganwadi Sevika for Baijipura Ward is concerned, in our view,
there is no substance in this submission of learned counsel for
the petitioner. The respondent No.4 had produced several
documents showing the proof of her residence in Baijipura Ward
which have been rightly considered by the respondents No.1 and
2. Merely because a different Ward is mentioned on the death
certificate of the husband of respondent No.4 much prior to the
date of making an application for the said post of Anganwadi
W.P. No.5734/2006
Sevika by the respondent No.4 would not advance the case of
the petitioner.
20. Insofar as submission of learned counsel for the
petitioner that the respondent No.4 has not produced any proof
of she being a widow is concerned, the learned counsel for the
petitioner himself invited our attention to the death certificate of
the husband of respondent No.4, which itself proves that the
respondent No.4 was widow on the date of making an application
for the said post.
21. Insofar as submission of learned counsel for the
petitioner that the experience certificate was though produced by
the petitioner, no marks were allotted to her by the Selection
Committee is concerned, a perusal of the record does not
indicate that any such certificate of experience of the petitioner
was produced before the Selection Committee. Be that as it
may, even if the petitioner would have been granted additional
15 marks based on her so called experience and respondent No.4
would not have been granted such marks, the grand total of the
marks allotted to the petitioner would have been much less than
the total of the marks allotted to the respondent No.4 by the
Selection Committee.
W.P. No.5734/2006
22. We do not find any infirmity in the process of
selection conducted by the Selection Committee appointed under
the Government Resolution, which was comprising of four senior
officers. The petitioner has failed to demonstrate before this
Court that her case was wrongly rejected by the Selection
Committee or that the appointment of respondent No.4 was
contrary to the terms and conditions of the advertisement and
any of the Government Resolutions. The petition is totally devoid
of merit. We, therefore, pass the following order :
ORDER
Writ Petition is dismissed. Rule is discharged. No
order as to costs.
(SUNIL K. KOTWAL) (R.D. DHANUKA)
JUDGE JUDGE
fmp/
