Smt.Manjulaben M Ramavat ... vs District Development Officer
2021 Latest Caselaw 10375 Guj

     C/SCA/13852/2011                                JUDGMENT DATED: 03/08/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13852 of 2011


FOR APPROVAL AND SIGNATURE: Sd/.


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed                    NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy                   NO
      of the judgment ?

4     Whether this case involves a substantial question                   NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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           SMT.MANJULABEN M RAMAVAT ANGANWADI WORKER
                              Versus
                  DISTRICT DEVELOPMENT OFFICER
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Appearance:
MR SL VAISHYA(960) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 03/08/2021

                             ORAL JUDGMENT

1. Heard, learned Advocate Mr. S.L. Vaishya for the petitioner and learned Advocate Mr. H.S. Munshaw for the Respondent.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for

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the following reliefs:

"7. ...

(A) This Honourable Court may be pleased to admit this petition;

(B) This Honourable Court may be pleased to issue writ of mandamus or any other writ, order or direction to the respondent to give appropriate effect of seniority to the petitioner on the date when juniors to the petitioner are promoted as Mukhya Sevika and give all consequential benefits to the petitioner and incorporate the name of petitioner in seniority list accordingly;

(C) This Honourable Court may be pleased to pass such other and further relief, as the nature and circumstances of the present case may require;

(D) Your Lordships may be pleased to pass order and to direct the respondent to change the birth date of the petitioner as 27.8.1959 instead of birth dated 11.3.58 and also direct to the respondent that the petitioner was entitled to get the promotion legally and all the benefits, she is entitled to get which is not give to the petitioner."

3. The brief facts of the care are that the petitioner joined the services as 'Aanganwadi Worker' at Village: Para Pipaliya, Taluka & District: Rajkot,

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on 1st February, 1988. The petitioner belongs to 'Sadhu' community in S.E.B.C. category.

3.1 The petitioner after being appointed as Aanganwadi Worker discharged her duties diligently and sincerely.

3.2 The date of birth of the petitioner, as mentioned in the service record, is 11th March, 1958.

3.3 The petitioner was included in the Seniority List dated 8th February, 2006 at Sr. No. 68 for being nominated as Mukhya Sevika as per the Rules published by the notification dated 19th March, 2004 by the Panchayat Rural Housing Development and Rural Development Department.

3.4 It is the case of the petitioner that though the name of the petitioner appeared at Sr. No. 68 in the seniority list published on 8th February, 2006, in the final seniority list prepared by the Respondent, the name of the petitioner was not included for being nominated as Mukhya Sevika.

3.5 It is also the case of the petitioner that by order dated 27th September, 2007, the juniors to the petitioner were promoted on the post of Mukhya Sevika.

3.6 It appears that the name of the petitioner was not included in the seniority list, considering her

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age, which was more than 45 years and therefore, the petitioner was excluded from the zone of consideration for being nominated as Mukhya Sevika.

3.7 The petitioner therefore preferred an application for change of her date of birth, relying upon the birth certificate issued by the Registrar of Birth and Death.

3.8 In the application dated 18th October, 2007, it was contended by the petitioner that the correct date of birth of the petitioner is 27th August, 1959, as per the birth certificate issued by the Health and Sanitation Department, Town, TATA chemicals limited, Mithapur.

3.9 The petitioner also contended that the date of birth, i.e. 11th March, 1958 of the petitioner mentioned in her school leaving certificate is not correct.

3.10 It was therefore prayed that considering the date of birth of the petitioner as 27th August, 1959, the name of the petitioner should be included in the seniority list so that the petitioner can be nominated for the post of Mukhya Sevika.

3.11 It is also the say of the petitioner that she had issued public notice in the Government Gazette on 5th August, 2004, declaring that her correct date of birth is 27th August, 1959. In support

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of her say, the petitioner relied on the government resolution to treat the date of birth mentioned in the register of birth and death and not as per the school leaving certificate.

3.12 The petitioner thereafter again issued another legal notice on 27th April, 2011 through her advocate for considering the change of her date of birth from 11th March, 1958 to 27th August, 1959 so as to entitle the petitioner to consider her case within the zone of consideration for nomination as Mukhya Sevika.

3.13 Since, no response was given by the Respondent, the petitioner has filed the present petition, which is admitted by this Court vide order dated 10th July, 2012.

4. Learned Advocate Mr. Vaishya appearing for the petitioner submitted that the correct date of birth of the petitioner is 27th August, 1959 and not 11th March, 1958 and accordingly, the petitioner would be eligible to be considered for being nominated for the post of Mukhya Sevika, as per the notification dated 19th March, 2004 so also the resolution dated 8 th February, 2006.

4.1 It was submitted that as per the resolution dated 8th February, 2006, in case of nomination of honorary Aanganwadi Worker for the first time by the District Panchayat, the upper age limit would be 48

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years. It was therefore submitted that the petitioner would be within the zone of consideration if the correct date of birth is considered, as the petitioner did not attain 48 years of age as per the correct date of birth, i.e. 27th August, 1959. Therefore, when the seniority list was prepared and the orders for nomination of the juniors to the petitioners on the post of Mukhya Sevika were passed the case of the petitioner was required to be considered for the purpose of promotion on the post of Mukhya Sevika. It was therefore submitted that the Respondent is required to pass necessary orders for promoting the petitioner on the post of Mukhya Sevika.

5. On the other hand, learned Advocate Mr. Munshaw appearing for the respondent submitted that the petitioner was not eligible for being considered for being nominated on the post of Mukhya Sevika as she had crossed the age of 48 years at the relevant point of time, as the date of birth of the petitioner mentioned in the service record is 11th March, 1958.

5.1 It was further submitted that the name of the petitioner was not considered for nomination on the post of Mukhya Sevika by the District Panchayat Services Selection Committee as the petitioner was over-aged at that point of time and hence, her name did not appear in the list of 26 persons finalized on 27th September, 2007.

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5.2 In support of his submissions, learned Advocate Mr. Munshaw relied on the following averments in the affidavit-in-reply filed on behalf of the respondent, which reads as under;

"1. The Respnt. most respectfully craves leave to deny the averments and allegations made by the petitioner in the memo of Special Civil Application and submit that she is not caused any injustice by the respnt. while not selecting/nominating her for the post of Mukhya Sevika and it is further stated that as such the respnt. has followed the policy and rules framed by the State Govt. on the issue of nomination of Mukhya Sevika and the correct facts are brought on record. It is most respectfully stated that the petitioner whose birth date is recorded as 11.3.58 in the record of Rajkot District Panchayat was appointed on honorary basis as Aanganwadi Worker through order on 25.1.88 passed by the Taluka Development Officer, Jodiya Taluka Panchayat and joined on 1.2.88. It is stated that thereafter the petitioner herein was appointed as honorary Aanganwadi Worker through order dated 27.7.95 at Patapipaliya Aanganwadi Centre, Dist. Rajkot.

2. The respondent most respectfully states that the Government of Gujarat through its Panchayat Rural Housing & Rural Development Department has framed and published Rules through notification dated 19/03/2004 for recruitment of Mukhya Sevika and a copy thereof is annexed

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herewith and marked as Annexure-A. From kind perusal thereof it would be clear to the Hon'ble Court that there is provision for nomination of Honorary Aanganwadi Worker if the requisite terms & conditions are satisfied. It is submitted that the upper age limit for nomination is 45 years. The respondent craves leave to state that thereafter the Government of Gujarat through Women & Child Development Department issued a Resolution dated 13/12/2005 laying down the procedure for nomination and a copy thereof is annexed herewith and marked as Annexure-B. It is stated that later on the said Department issued another Resolution dated 08/02/2006 resolving that in case of nomination of Honorary Wadding Worker for the first time by the District Panchayat, the upper age limit would be 48 years and a copy thereof is annexed herewith and marked as Annexure-C. In other words, there was a relaxation in the upper age limit in a case wherein nomination exercise is undertaken for the first time. The Government of Gujarat through its Women & Child Development Department issued another Resolution dated 21/05/2007 providing for cut of date and a copy thereof is annexed herewith and marked as Annexure-D. The respondent submits that thereafter the Commissioner for Women & Child Development at Gandhinagar issued certain clarification on the issue of nomination of Honorary Aanganwadi Worker through a letter dated 07/07/2007 and it also Provides for the method for fixing cut of date and a copy thereof is annexed herewith and marked as Annexure-E. The Panchayat & Rural Housing Department of the

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Government of Gujarat through its Dy. Secretary reiterated it through a letter dated 19/07/2007 addressed to the Member Secretary, Gujarat Panchayat Service Selection Board at Gandhinagar.

3. The respondent humbly submits that the Government of Gujarat through its Panchayat Rural Housing & Rural Development Department addressed a letter dated 31/07/2007 to the Member Secretary, Gujarat Panchayat Service Selection Board instructing number of posts of Mukhya Sevika to be filled up through nomination in various Districts of State of Gujarat and therein it was mentioned that so far as the District of Rajkot is concerned, 26 posts of Mukhya Sevika are to be filled up through nomination and a copy of the said letter is annexed herewith and marked as Annexure-F.

4. It is humbly stated that so far as the present case is concerned, the petitioner herein whose birth date is recorded as 11/03/1958 has crossed the age limit of 48 years and therefore, her name for nomination to the post of Mukhya Sevika was not considered by the District Panchayat Service Selection Committee. It is stated that in view of the fact t at the petitioner was over aged, her seniority and qualification have become irrelevant and hence her name did not feature in the list of 26 nominees. It is submitted that immediately thereafter appointment orders were issued on 27/09/2007 in favour of the concerned nominees by the District Development Officer, Rajkot District

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Panchayat and a copy thereof is annexed herewith and marked as Annexure-G.

5. The respondent humbly submits that the petitioner thereafter made a representation dated 18/10/2007 to the District Development Officer, Rajkot District Panchayat for stating therein that her birth date was 27/08/1959 and not 11/03/1958 as recorded in the record of Rajkot District Panchayat on the basis of School Leaving Certificate and she requested that accordingly the needful be done so far as the seniority list is concerned and she be nominated as Mukhya Sevika and copies of her representation dated 18/10/2007 with School Leaving Certificate showing birth certificate dated 25/06/1976 showing birth date as 11/03/1958 and birth certificate dated 27/08/2007 showing birth date as 27/08/1959 are annexed herewith and marked as Annexure-H collectively. In view of this, it is clear that the issue of change of birth date and production of photo copy of birth certificate dated 27/08/2007 along with the representation dated 18/10/2007 are an after thought and a very belated stage as the petitioner was not considered for nomination due to her over age"

5.3 Referring to the above submissions, it was submitted that claim of the petitioner for change of date of birth is time-barred and cannot be considered at a belated stage, as it is clearly an afterthought on the part of the petitioner to get the nomination as Mukhya Sevika.

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6. Having heard the learned Advocates for the parties and having perused the material on record, it emerges that the correct date of birth of the petitioner is 27th August, 1959, which is as per the certificate issued by the concerned department and not 11th March, 1958. The respondent therefore appears to have committed an error by not changing the date of birth of the petitioner from 11th March, 1958 to 27th August, 1959, which is recorded in the Birth and Death Register. Therefore, the petitioner would be entitled to be nominated as Mukhya Sevika, as per the Government notification dated 19th July, 2004 read with the resolution dated 8th February, 2006.

6.1 The upper age limit was fixed by the government notification dated 19th July, 2004 is 45 years, which was further relaxed upto 48 years for the appointment being made for the first time by the District Panchayat Services Selection Committee vide notification dated 8th February, 2006.

6.2 In view of the above facts, the petitioner would attain the age of 48 years as per her correct date of birth, i.e. 27th August, 1959, on 27th August, 2007 and therefore the petitioner would be eligible to be considered for being nominated as Mukhya Sevika. The Respondent therefore, appears to have discriminated the present petitioner by not considering her correct date of birth in spite of the same being pointed out to the respondent, by promoting juniors to the

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petitioner on the post of Mukhya Sevika.

7. In view of the above discussion, this petition is allowed. The respondents are directed to change the date of birth of the petitioner, as per her birth certificate, i.e. 27th August, 1959 and thereafter, consider her case for being nominated / appointed on the post of Mukhya Sevika from the year 2007 and to calculate and pay the difference of salary to the petitioner as Aanganwadi Worker / Mukhya Sevika.

7.1 Such exercise shall be completed within the period of three months from the date of receipt of a copy of this order.

Rule is made absolute, accordingly. No order as to costs. Direct service is permitted.

(BHARGAV D. KARIA, J) UMESH/-