Bombay High Court
Sau. Rupali W/O Samadhan Deshmukh vs The Divisional Commissioner, ... on 11 August, 2023
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1970/2019
PETITIONER Sau. Rupali W/o Samadhan Deshmukh
Aged about 36 years, Occupation : Anganwadi
Sevika (presently removed), Resident of Naya
Akola, Taluka and District Amravati -444801.
...Versus...
RESPONDENTS 1. The Divisional Commissioner, Amravati
Division, Amravati.
2. The Chief Executive Officer, Zilla Parishad
Amravati, Taluka and District Amravati.
(Original Respondent No.1)
3. The Project Officer, Integrated Child
Development Project Amravati (Rural),
Near Panchayat Samiti, Amravati, Taluka
and District Amravati.
(Original Respondent No.2)
4. Sau. Kumudini Kishor Lunge,
Aged about 40 years, Occupation : presently
appointed as Anganwadi Sevika in place of
Petitioner, Resident of Naya Akola, Taluka
and District Amravati.
Mr. N.S. Khubalkar, Advocate for petitioner
Mr. N.R. Patil, AGP for respondent nos.1 and 3
Mr. D.M. Kale, Advocate for respondent no.2
Ms Payal Kaware h/f Mr. S.S. Dhengale, Advocate for respondent no.4
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CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 01/08/2023
Date of pronouncing the judgment : 11/08/2023
1. Heard Mr. N.S. Khubalkar, learned Counsel for the
petitioner; Mr. N. R. Patil, learned Assistant Government Pleader for
the respondent nos.1 and 3; Mr. D. M. Kale, learned Counsel for the
respondent no.2 and Mr. S.S. Dhengale, learned Counsel for the
respondent no.4. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsels for the rival parties.
2. The petition challenges the order dated 10/01/2018
passed by the respondent No.2/Chief Executive Officer (CEO)
canceling the selection of the petitioner and declaring respondent
no.4 as being duly selected for the post of Anganwadi Sevika of
village Naya Akola and so also the order dated 17/12/2018 passed
by the respondent No.1/Divisional Commissioner rejecting the
appeal by the petitioner.
3. Mr. Khubalkar, learned Counsel for the petitioner raises
two grounds: (1) that consequent to the fresh merit list published
on 04/04/2013 (pg.70), in which the petitioner as well as the
respondent no. 4 both had secured 67 marks, there was a foot-note,
which stated that any objections to the list were to be raised by
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10/04/2013 and the interviews were to be held on 15/04/2013.
Since no objection was raised to this merit list by the respondent
no.4 or anyone whomsoever and the petitioner had secured more
number of marks in the interview than the respondent no. 4, her
appointment as an Anganwadi Sevika by the order dated
18/07/2013 could not be faulted with. (2) by relying upon
Secretary, A.P.D. Jain Pathshala and others Vs. Shivaji Bhagwat More
and others (2011) 13 SCC 99 (para 26), it is contended that in this
case by way of Government Resolution, dated 05/08/2010, Clause-5
thereof, an adjudicatory mechanism was created by permitting the
CEO to decide the complaint filed regarding the selection of the
candidate and such decision by the CEO was made subject to appeal
before the Commissioner, which according to him, was not
permissible and therefore, in case the challenge to the impugned
order on merits failed, he contends that both the CEO as well as the
Commissioner on account of what has been held in Shivaji More
(supra) would not be clothed with the jurisdiction to decide any
complaint or appeal. He, therefore, contends that the petition needs
to be allowed.
4. Mr. S.S. Dhengale, learned counsel for the respondent
no.4 submits that any correction in the list as per the requirements
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of the Government Resolution dated 05/08/2010 (pg.45), was
required to be initialed by three candidates and was to be done by
red ink and since the merit list dated 26/07/2012 (pg.62), does not
comply with this requirement, the same cannot be said to be a
genuine merit list. It is further contended that the merit list dated
04/04/2013 (pg.69) also suffers from this infirmity, inasmuch as, it
is not signed by three candidates and the above infirmity is equally
applicable to the same, considering which, the same also cannot be
said to be a genuine merit list (pg.45). He therefore contends that
the list at page 73 would be the only genuine list, which would
govern the parties. It is submitted that since the list at page 70 was
not a genuine list, failure to raise any objection within time
stipulated therein, would not be of any consequence. It is further
contended that the objection was raised on 16/07/2013 for which
page 75 is being pointed out, was beyond the time stipulated. He
therefore submits that the impugned orders, are correct and proper
and need no interference.
5. The appointments to the post of Anganwadi Sevika
("AWS" for short hereinafter) are done under the Government
Resolution dated 05/08/2010, as it stands clarified by the
communication dated 05/08/2011 (pg.144), Clause-2 thereof
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indicates that since an objection is to be raised within 15 days of the
publication of the merit list, before the concerned Child
Development Project Officer in writing, the documents submitted on
the date of the interview would not be considered for the purpose of
grant of marks.
6. In the instant case, the petitioner has passed B.A.
examination and was studying in M.A. Part-II on 01/08/2011, when
the application was made by her for the post of AWS. Along with her
application, the transfer certificate of B.A. and the mark-sheet of
M.A. Part-I was placed on record. Mr. Dhengale, learned Counsel for
the respondent no.4, is unable to point out the qualification of the
respondent no.4 except stating that she was a graduate on the
relevant date.
7. On 30/06/2012 the merit list was published in which
the petitioner secured 62 marks and the respondent no.4 secured 67
marks. An objection was raised on 16/07/2012 by the petitioner to
the marks given to her, as the last date to raise objection which was
15/07/2012 was a Sunday. The objection raised was to the effect
that the marks allotable for possessing graduate qualification were
not allotted to the petitioner. Considering this objection 5 marks
were added to the marks allotted to the petitioner, which is reflected
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from the merit list published on 26/07/2012 (pg.62). To this merit
list, at page 62 no objection was raised by the respondent no.4. On
12/12/2012, interviews were conducted, in which the petitioner
secured 76.33 marks, as against which the respondent no.4 secured
73.33 marks. The select list was published on 14/12/2012, in which
the petitioner was shown to have been selected.
8. This selection of the petitioner was challenged by the
respondent no.4 before the CEO who by the order dated
05/03/2013 canceled the entire selection process. Thereafter a fresh
merit list was published on 04/04/2013 (pg.69) which indicated
that any objection thereto was to be lodged by 10/04/2013 and the
interviews were to be held on 15/04/2013. To this also there was no
objection raised from any quarter including the respondent no.4. On
15/04/2013 interviews were held in which again the petitioner was
selected. This selection was challenged again by the respondent no.4
before the CEO, who, by his order dated 16/07/2013 rejected the
challenge, as a result of which, on 18/07/2013 an appointment
order was issued to the petitioner in pursuance to which she joined
on the same day.
9. The order dated 16/07/2013 by the CEO rejecting the
challenge to the selection of the petitioner was challenged in appeal
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by the respondent no.4 before the Commissioner on 29/07/2013.
The Commissioner, by his order, dated 17/06/2017, set aside the
order dated 16/07/2013 of the CEO and remanded the matter back
to the CEO.
10. The CEO by his order dated 10/01/2018 allowed the
objections of the respondent no.4 and canceled the appointment of
the petitioner, as a result of which, on 12/01/2018 the petitioner
was terminated. The petitioner carried an appeal to the
Commissioner against the order dated 10/01/2018 of the CEO,
which appeal came to be dismissed by the Commissioner by the
order dated 27/03/2018 (pg.110), as a result of which, the stay to
the termination dated 12/01/2018 of the petitioner stood removed
and by the order of the CEO dated 17/04/2018 the respondent
no. 4 was appointed.
11. This order of the CEO dated 10/01/2018 and that of
the Commissioner dated 27/03/2018 were challenged by the
petitioner in Writ Petition No.2682/2018 which was allowed by this
Court by the order dated 07/08/2018 remanding the matter back to
the Commissioner, keeping all questions open.
12. Consequent to the remand, by an order dated
17/12/2018 the Commissioner dismissed the appeal of the
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petitioner on the ground that the mark-sheet of B.A. final year was
submitted belatedly by the petitioner, resulting in the present
petition.
13. The entire question revolves around the requirement of
documents to be submitted along with the application, as the
qualifications possessed by a candidate based upon the documents
are germane for the purpose of awarding marks, based upon which
the merit list is to be issued. The relevant clause in this regard is
Clause-2 of the Government Resolution dated 05/08/2010 (pg.43).
The basis educational requirement for appointment as an AWS as
spelt out from Clause-2 (A) of the said Government Resolution is of
having passed 10th standard (pg. 43). In case a candidate has higher
qualification, Schedule-A Part-I (pg. 46) delineates the methodology
by which additional marks are to be given for higher qualification. It
is for this purpose that the requirement for submitting the
documents indicating the educational qualification by a candidate
are necessarily required to be annexed along with the application so
that the Child Development Project Officer, for preparing the list
while awarding the marks to each of the candidates/applicants does
that on the basis of the documents available as to their educational
qualifications.
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14. The Schedule-A Part-I in this regard depicts that in case
a candidate possesses a graduation degree, flat 60 marks are to be
given to such candidate and 10 additional marks are required to be
given depending upon the percentage of marks secured by such
applicant/candidate, as per the chart given thereunder, the relevant
portion of which, for the sake of ready reference, is reproduced as
under :
Total marks Anganwadi Sevika
and Mini
Anganwadi Sevika
(minimum
qualification 10th
Standard pass)
Educational For all
qualifications projects
71% and more + 10
70% to 65 % +9
64 % to 60 % +8
59 % to 55 % +7
54 % to 50 % +6
49 % to 45 % +5
44 % to 40 % +4
39 % to 35 % +3
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15. In the instant case, it is not disputed that respondent
no.4 was graduate and therefore, was granted 60 marks on that
count. The mark-sheet for the B.A. final submitted by the petitioner
on 17/07/2012 indicated that she had passed B.A. with 46.78% of
marks, on account of which, as per Schedule-A Part-I of the
Government Resolution she became entitled to 5 additional marks
and 2 marks, on account of her belonging to the OBC category
making the total marks secured by her as 67. There is no dispute
regarding the marks secured by the respondent no. 4 which are also
67. Since this was done on account of an objection raised by the
petitioner on 16/07/2012, to the merit list published on
30/06/2012, the objection was clearly within 15 days from the date
of publication of the merit list which date was to be deleted for the
purpose of calculating time on account of the provisions of
Section 10 of General Clauses Act, 1897, 15/07/2012 being a
Sunday, which principle would generally be applicable everywhere.
It would therefore, be apparent that the correction in the marks was
on account of what is contemplated by Clause-3 of the Government
Resolution dated 05/08/2010 (pg. 44). It is also material to note,
that the correction is indicated by the merit list of the candidates as
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published on 26/07/2012, in which the petitioner as well as the
respondent no.4 both are shown to have secured 67 marks, the entry
vis-a-vis the petitioner being corrected from 62 to 67. Thereafter,
interviews were held in which the petitioner had secured total 76.33
marks including those granted earlier as against the respondent no.4
securing 73.33 marks.
16. It is not in dispute that the interviews thereafter were
canceled by the CEO by his order dated 05/03/2013 which position
is not disputed by Mr. Kale, learned Counsel for the respondent no.2.
Fresh merit list was thereafter published on 04/04/2013 (pg. 70) to
which there is no objection from any quarter, including the
respondent no.4. It is also material to note that the fresh merit list
was published on 04/04/2013 indicating that objections, if any, were
to be submitted by 10/04/2013 and objections received thereafter
would not be considered. The interviews thereafter were held on
15/04/2013, in which after considering the marks allotted to the
petitioner as well as the respondent no.4 by the Child Development
Officer on the basis of their educational qualifications and caste and
in the interview it was found that the petitioner had secured 75
marks and the respondent no.4 had secured 74 marks, on account of
which, the petitioner came to be appointed. It is, thus, apparent that
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the correction in the marks secured by the petitioner was done in
accordance with the procedure provided for by the Government
Resolution dated 05/08/2010, which change has never been
objected to by the respondent no.4. On a query made to Mr. Kale,
learned Counsel for the respondent no.2 as to whether the
procedure contemplated by the Government Resolution dated
05/08/2010 for correction of the merit list was followed, he answers
in the affirmative. The only requirement in regard to the correction
of the marks in the merit list as spelt out from Clause-3 of the
Government Resolution dated 05/08/2010 is that an entry in regard
to the change has to be taken in red ink in the merit list. That
appears to be the only requirement as regards change in the marks
in the merit list. In this regard it is material to note that on both
occasions when the merit list was published, i.e., on 26/07/2012
(pg.62) and 04/04/2013 (pg. 69) the same also figured the name of
the respondent no.4 and the marks secured by her. Thus, if at all any
objection was to be taken, it ought to have been taken by the
respondent no.4 within the time-frame stipulated therefor. This,
however, was not done. Rather on the contrary based upon the merit
lists, the respondent no.4 participated in the interviews, both time
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and was declared unsuccessful. Thus, the respondent no.4 is now
estopped from raising any grievance regarding both these merit lists.
Though Clause-3 of the Government Resolution dated 05/08/2010
indicates that for the original merit list published the same should be
displayed on the notice board of the concerned Panchayat Samiti,
Child Development Project Office, Grampanchyat and District Office,
this does not appear to have been carried forward when Clause-3
speaks about the list being corrected (pg.45). It is, therefore,
apparent that after following the due procedure as contemplated by
Clause-3 of the Government Resolution dated 05/8/2010, the
corrected merit list (pg. 70), stood published which was without any
objection from any quarter whatsoever.
17. It is true that the merit list as per Clause-3 of the
Government Resolution dated 05/08/2010, has to be published on
the basis of marks secured by a candidate in the Graduate/12th/
10th Examination. This is a preliminary merit list as indicated by the
language of Clause-3 of the Government Resolution dated
05/08/2010 (pg.45) and any objection thereto as to the certificates
and marks allotted has to be raised within 15 days of such
publication, which, as indicated above, was so raised by the
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petitioner, considering which, her marks were increased, and after
considering the objections, the corrected merit list is to be published,
which was so done, to which no objection was taken by anyone,
including the respondent no.4.
18. Had the matter ended there, perhaps the situation
would have been different. As indicated above, the interviews were
held consequent to this merit list published and the selection made
thereafter, was canceled by the CEO by his order dated 05/03/2013
and the matter stood remanded back to the stage of again publishing
a fresh merit list, which was so published on 04/04/2013. It was
open at that stage for the respondent no.4 to have taken an
objection to the number of marks awarded to the petitioner, that
however was not done. The respondent no.4, accepted the merit list
as published on 04/04/2013 and went ahead with the interview, for
the second time, in which also the petitioner was selected having
secured more number of marks than the respondent no.4. The
respondent no.4, thus having accepted the merit list dated
04/04/2013, by having not raised any objection to the same in
consonance with the procedure as laid down in Clause-3 of the
Government Resolution dated 05/08/2010 and also having
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participated in the interviews consequent thereto, without any
demur, cannot now be permitted to adopt a policy of approbate and
reprobate.
19. The entire purpose of the policy as framed by the
Government Resolution dated 05/08/2010 and the methodology of
awarding marks as indicated therein is for more meritorious persons
to have a preference/advantage for being placed higher in the merit
list and to say that this advantage should be defeated merely on the
basis of failure to submit the mark-sheet, in spite of actually having a
higher educational qualification, would be to defeat the very
purpose for which the policy was framed.
20. This is also indicated by the clarification issued on
05/08/2011 (pg.144) to the Government Resolution dated
05/08/2010, which stated that as there was provision in the
Government Resolution dated 05/08/2010, for getting the marks
corrected by lodging objections within 15 days of the publication of
the preliminary merit list [Clause-3/pg.45], documents submitted on
the date of the interview would not be considered for awarding
marks, which would indicate that it was permissible to file the
documents before that.
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21. In the instant matter, it is not in dispute that the
petitioner is a Graduate, and it is on that basis she has been awarded
60 marks. This is also apparent from the filing of the mark-sheet of
M.A. Part-I filed by her alongwith her application for the post of
AWS, in respect of which, also there is no dispute. Thus, when the
educational qualifications of the petitioner were never disputed, the
only question which remained was of awarding her additional marks
for the percentage of marks scored by her in B.A. examination as per
Schedule-A Part-I (pg.46). This could very well be said to be a defect
which was curable, which was accordingly cured when the petitioner
filed objections to the marks awarded to her in the merit list,
considering which objections, the additional marks due to her on
account of the percentage of marks scored by her in the B.A.
examinations, were awarded and the merit list corrected and the
corrected merit list was published on 26/07/2012 (pg.62). It is,
thus, apparent that this is not a case where the graduate
qualifications of the petitioner were never disclosed or were not
considered, rather on the contrary, they were very well disclosed and
also considered for awarding her 60 marks on account of her being a
Graduate.
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22. This position is clearly distinguishable from a case in
which the candidate, in spite of being a Graduate or fulfilling any
other requirement, which entitles her to be awarded marks, which
would place her higher in the merit list, does not disclose at all, the
fact of her possessing such educational qualifications or essentials, at
the time of filling the form/application for a particular post, in this
case AWS and goes ahead with the process, for in such cases the
principle of waiver would clearly be attracted, on account of the
active non-disclosure of such educational qualifications or essentials
at the initial stage itself.
23. In Harsha Amol Sonone Vs. Divisional Commissioner
and others (Writ Petition No.1560/2021) decided by me on
22/02/2023, what was under consideration was the Government
Resolution dated 13/08/2014, in relation to appointment of AWS
and there was no disclosure at the time of filling the
form/application of the petitioner therein having a higher
educational qualification of having passed 12th standard. Neither was
any objection raised under Clause-3 within 10 days of the
publication of the provisional merit list to the number of marks
allotted to the petitioner, rather in the form/application the
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petitioner had stated that she was 10 th standard pass only. The
petitioner and the respondent no.4, therein both secured the same
number of marks i.e. 70.2. The petitioner was selected on account of
her having higher educational qualification of 12th standard pass,
though the same was not disclosed by her at any point of time
earlier. On an objection being raised to the selection of the petitioner
therein, the appointment of the petitioner was canceled by the CEO,
which was upheld by the Commissioner in appeal, in which
background it was held that the plea of having a higher educational
qualification having been raised for the first time after the
interviews, the same could not be accepted as there was a
significance in requiring the educational qualifications to be
disclosed at the time of filing of the form/application itself, so as to
enable the Child Development Officer to award proper marks for the
preparation of the merit list. Thus, Harsha Amol Sonone (supra) was
a case of total non-disclosure, whereas in the present matter it is not
in dispute that at the time of filling the form/application, itself the
petitioner had disclosed that she was a Graduate. Harsha Amol
Sonone (supra) therefore is of no assistance to the case advanced by
Mr. Dhengale, learned Counsel for the respondent no.4.
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24. Both the impugned orders, proceed on the basis that the
mark-sheet of B.A. was not submitted by the petitioner alongwith
her application/form, and therefore set aside her selection and
appointment, unmindful of the fact that the petitioner had not only
disclosed in her application/form that she was not only a Graduate
but had also cleared M.A. Part-I, too, on the basis of which she was
awarded 60 marks. Had there been no disclosure of this position, the
position then would have been different. That however is not the
case. The disclosure having been already made the acceptance of her
mark sheet of B.A. upon objection being raised by her to the marks
allotted to her and awarding of additional marks on the basis of
percentage of marks scored by her, publication of the final merit list
and its acceptance by the respondent no.4, without any demur are
all facts which have been ignored by the Authorities below, which
clearly vitiates the impugned orders.
25. Thus, in view of the discussion above I, am of the
considered opinion that the impugned orders cannot be sustained
and are hereby quashed and set aside and it is held that the
petitioner was rightly selected and appointed to the post of AWS and
is entitled to be so appointed in place of the respondent no.4, whose
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appointment as a consequence to what has been held above is
hereby quashed and set aside.
26. In light of what has been held above, I do not deem it
necessary to decide the second ground raised by Mr. Khubalkar,
learned counsel for the petitioner.
27. The writ petition is, therefore, allowed. Rule is made
absolute in the above terms. In the circumstances, there shall be no
order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
