Baria Asmitaben Bhailalbhai vs State Of Gujarat
2021 Latest Caselaw 4587 Guj

        C/SCA/18157/2016                                          JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 18157 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                           BARIA ASMITABEN BHAILALBHAI
                                      Versus
                            STATE OF GUJARAT & 7 other(s)
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,3,8
MAHAVIR M GADHVI(8025) for the Respondent(s) No. 6
MR KETAN BHATT, ADVOCATE FOR MR AJ YAGNIK(1372) for the
Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,5,7
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 CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                   Date : 23/03/2021
                   ORAL JUDGMENT

1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.

2. Issue Rule, Mr. Rohan Shah, learned Assistant Government Pleader, waives service of notice of Rule on behalf of respondent nos. 1 to 3, Mr. Ketan Bhatt, learned advocate for Mr. A.J.Yagnik, learned advocate waives service of notice of Rule on behalf of respondent nos.

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4 and 5 and Mr. Mahavir Gadhavi, learned advocate, waives service of notice of Rule on behalf of respondent nos. 6 and 7.

3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has sought for direction to the respondents - State authorities to provide reservation for widow on 5% of the vacancies of the posts in the recruitment of Female Health Workers under the District Panchayats, similar to the reservation provided for widow in the admissions to the training course of 1 ½ year for certificate in Auxiliary Nurse - Midwives.

4. The facts, in brief, are as under:

4.1 The petitioner belongs to a Socially and Educationally Backward Class (hereinafter referred to as "the SEBC") and has passed her Higher Secondary Certificate Examination in the month of March 2005. Petitioner is a widow, as her husband has expired on 14.07.2008, in railway accident.

4.2 According to the petitioner, as per the policy of the State Government, the admissions are granted to the General Nursing and Midwifery and Auxiliary Nurses and Midwives course under the Centralized Admission System by the Admission Committee for Professional Medical Education courses in Government, Municipal, E.S.I.C. and Self-Financed Nursing Institutes or schools in the State of Gujarat and one seat is reserved for widow in each school having intake of 20 candidates. The petitioner, therefore, had applied for admission as a widow and was selected for the specified training course of Female Health Worker and was admitted in Auxiliary Nursing Midwife school, Referral Hospital and C.H.C., Chhotaudepur. The duration of the training course was from 30.5.2011 to 29.11.2012. After completing her course, the petitioner passed the examination and has been registered

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at no. F-1-8720 with the Gujarat Nursing Council.

4.3 In the years 2013-14, the District Panchayat Service Selection Committee, Dahod issued an advertisement no.DPSSC 18/2013-14/4 for 61 vacancies of Female Health Worker (Class-III). Similarly, the District Panchayat Service Selection Committee, Narmada also had issued an advertisement no.DPSSC 20/2015-16/4 for 12 vacancies of Female Health Worker (Class-III). In response to both the said advertisements the petitioner had applied; however, in absence of any reservation provided for widow, she was not selected. The petitioner, being aggrieved by the non-prescription of reservation for widow candidate, has preferred captioned writ petition.

5. Mr. K.B.Pujara, learned advocate appearing for the petitioner, submitted that the admissions are granted to the General Nursing and Midwifery and Auxiliary Nurses and Midwives Course in the various institutions and one seat is reserved for widow candidate in each school having intake of 20 candidates. The petitioner had applied for such admission as a widow and was accordingly selected. After completion of training and passing the necessary examination for certificate in Auxiliary Nurse Midwives conducted by the Gujarat Nursing Council, she was registered with it. It is further submitted that so far as, the advertisements issued by the respective Panchayats are concerned, there is no reservation for widow and therefore the petitioner could not get selected.

5.1 It is next submitted that owing to the non-selection of the petitioner, she had made several representations to the authorities concerned with a request to provide reservation; however, the request of the petitioner had fallen on deaf ears. While getting admission in training courses of female health workers there is a provision for reservation for widow, there ought to have reservation in the

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recruitments as well. The objective behind providing reservation for widow is with a view to seeing that the widow candidates with less merits get admission; however, such reservation has not been provided at the stage of recruitment and therefore, the candidates lose the chance of selection, so also the appointment because of their less merits. Hence, the reservation for widow provided at the time of admission renders meaningless and the purpose behind it stands frustrated. It is therefore, urged that the respondent authorities are required to be directed to provide for at least 5% reservation for widow candidates in the recruitment of female health workers.

5.2 It is next submitted that so far as the District Panchayats are concerned, the respondents have filed their respective replies, inter alia, stating that framing of policy falls within the realm of the State Government and the District Panchayats are bound by those policies; however, the District Panchayats are not empowered to frame any policies which aspect is reflected from the communication dated 24.4.2015 issued by the Additional Director of Health & Medical Services, so also the communication dated 2.6.2015 issued by the Director, State Health Female Welfare Institution. It is, under the said circumstances, that the authorities have not taken any decision, on the representations made by the petitioner on the ground that they are not empowered to do so and that is how petitioner has been relegated from one office to another office.

5.3 Learned advocate for the petitioner drew the attention of this Court to the various conditions enumerated in the communication dated 21.4.2015. It is submitted that condition no. 2 provides that at the end of the training course the candidate has to appear in the examination and the candidate will be eligible to participate in the recruitment process conducted by the District Panchayat Selection Committee subject to the rules. Condition no.4 further provides that after completion of the

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training period, it would be compulsory for the candidate concerned to render the service as a female health worker in the District Panchayat of the State. Similarly, condition no. 7 provides for furnishing of the bond. It is therefore, submitted that once there is a reservation for the widow candidate and provision is made for them at the admission stage, the same should be continued for the purpose of recruitment as well, so as to facilitate the widow candidate to participate and to secure appointment, in furtherance of the policy of the State.

5.4 It is submitted that as per the reservation provided during the admission, out of 6500 admissions, more than 300 admissions were given to the widows; however, the widows are not offered recruitment or appointment, despite the fact, they spend so much of time and money. It is further submitted that around 300 widow candidates got admission and the petitioner is one of them, who was given admission and after clearing the examination, the petitioner had applied pursuant to the advertisements in the year 2013-14 and in the year 2015-16; however, since there was no reservation, the petitioner could not secure the appointment followed by making the representations to the authorities concerned but of no avail.

5.5 It is submitted that as a part of the admission process, training is given to the candidates and so far as the qualified candidates are concerned, at the end of the training, they do not get the benefits and therefore, the State Government is expected to answer as to why it is not doing so. Besides, for not providing the reservation, the State Government has not given any rational. It ought to have been appreciated that the widows are class by themselves and they deserve reservation. It is therefore, urged that in view of the prayers made by the petitioner, necessary directions are required to be issued to the State Government to provide for reservation of 5% vacancies for widows in the recruitment of female health workers under the District Panchayats

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similar to the reservation provided for widows in the admission to the training courses for Auxiliary Nurses and Midwives Course.

6. On the other hand, Mr. Rohan Shah, learned Assistant Government Pleader appearing for the respondent - State, has vehemently opposed the writ petition by making various submissions. While referring to the communication dated 21.5.2011, issued by the Chief District Health Officer, District Panchayat, Narmada, it is submitted that the communication, if read, in its entirety, nowhere makes a reference for widow candidates and therefore reliance placed by the petitioner on such communication in support of her prayers is misconceived.

6.1 It is next submitted that the State Government in exercise of the powers conferred under Article 309 of the Constitution of India, through its General Administration Department, has framed the Gujarat Civil Services Rules (Reservation of Posts for Women) Rules, 1997, (hereinafter referred to as "the Rules of 1997") whereby, the reservation has been provided in favour of women belonging to the categories namely, Scheduled Caste, Scheduled Tribes, SEBC and also for the posts not reserved in favour of Scheduled Caste, Scheduled Tribes and SEBC. In continuation of the Rules of 1997 the State Government has issued a circular dated 27.5.1997 clarifying the status of preference to be given to widow candidates. Clause 8 whereof clarifies that in the competitive examination, with a view to giving preference to the widow candidate, there shall be addition of 5% of total marks obtained; therefore, the reservation for women is already been provided by Rules of 1997 with certain amount of relaxation for widow candidates. The respective District Panchayats in tune with the Rule of 1997 so also the circular dated 22.5.1997 have made necessary provisions in the advertisements.

6.2 While adverting to one of the advertisements, it is submitted that

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clause no.3 pertains to the widow candidates, providing for addition of 5% of total marks obtained. The said aspect is further strengthened by sub-clause 6 of clause 11, which specifically refers to the circular dated 22.5.1997. It is further submitted that the reservation, which has been provided at the stage of admission for the training courses, the petitioner wants to continue the same till the recruitment and once is employed will ask for further reservation till the stage of promotion, which would be clearly impermissible. If such contention is entertained and allowed then other candidates would be affected; however, the petitioner has not joined a single candidate. Therefore, the grievance of the petitioner seeking necessary directions to be issued to the State authorities to provide for reservation for widow of 5% of vacancies in the recruitment is misconceived and does not merit acceptance.

6.3 It is further submitted that it is the case of the petitioner that she has applied pursuant to the advertisements of the year 2013-14 and 2015-16 and in absence of specific reservation for widow, the petitioner was not in a position to secure the appointment; in fact, it is her own case that she is a unsuccessful candidate and is now seeking to challenge the non-prescription of reservation, which would be impermissible. It is further submitted that even otherwise, the petition does not deserve to be entertained because, a bare perusal of the prayer clauses suggests that they are in the nature of Public Interest Litigation and therefore the present petition is not the appropriate remedy for the petitioner to ventilate her grievance as per various decisions rendered by this Court as well as by the Hon'ble Supreme Court.

6.4 It is therefore urged that petition is devoid of merits and deserves to be dismissed.

7. Mr.Ketan Bhatt learned Advocate appearing for the respondent

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nos. 4 and 5 submitted that the reservation of widow in the matter of education and employment in the context of Articles 14 and 16 of the Constitution of India, is a matter of State policy, where the respondent being a District Panchayat has no role to play inasmuch as neither the Constitution of India nor any law empowered the District Panchayat to independently evolve the policy. If the respondent State Government evolves and introduces a policy of reservation for widow, the same shall be immediately implemented by the District Panchayat, Narmada. Further, as on today, in the matter of employment under the State and particularly, with respect to appointment of family health workers, there is no reservation for widow and therefore, the District Panchayat, unless the State announces such policy, cannot provide for reservation.

7.1 It is next submitted that the main grievance raised by the petitioner is to the effect that at the time of admission, reservation is provided; however, at the time of recruitment, there is no such reservation provided. It is further submitted by him that there lies a fallacy in the arguments of the petitioner for, necessary relaxation has been accorded by providing additional 5% of total marks obtained by the concerned candidate. Referring to the advertisement, it is submitted that necessary relaxation has been given in favour of women candidates so also widow candidates. Even otherwise, the reservation being a matter of State policy, there is no right of whatso ever nature inhered in favour of the petitioner so as to maintain the present petition with such prayers.

7.2 While, adverting to the aspect of the application made by the petitioner, it is submitted that present petition is nothing but abuse of process of court. There is no such application of the petitioner available with the District Panchayat and that is how there is nothing available on record to substantiate that the petitioner has applied for the post on-line. In fact, the petitioner neither has applied nor appeared in the

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competitive examination and therefore, there arises no question of entertaining the prayers prayed for by the petitioner. It is further submitted that the advertisement contains various clauses; clause no.9 under the heading of "Manner of Making Application", provides that after candidate makes an application, the application number gets generated, which the candidate shall preserve. Had the petitioner applied pursuant to the said advertisement, the petitioner would be having the application number, which, the petitioner was obligated to preserve; however, the petitioner has not placed on record any proof, much less application number to substantiate that the petitioner had applied pursuant to the advertisement dated 8.4.2015 except making a vague averment in the petition. Hence, the petitioner having not applied, she cannot claim any relief for widow reservation.

7.3 Whilst assuming without admitting that the petitioner had applied; however, looking to the prayers made in the petition, they have the flavour of public interest litigation and element of private dispute is missing. Hence, the locus of the petitioner to maintain the present petition is itself in doubt. Also, the petition is meritless and deserves to be dismissed.

8. Mr. Mahavir Gadhvi, learned advocate appearing for the respondent nos. 6 and 7, submitted that the District Panchayat conducts the examination on-line. So far as the Gujarat Panchayat Service (Class-III) Recruitment (Examination) Rules, 2012 is concerned, it is framed by the State Government in exercise of the powers conferred under the provisions of Gujarat Panchayats Act 1992 and the District Panchayats are obligated to strictly adhere to the Rules and resolution issued by it. Accordingly, the District Panchayat has made a provision for addition of 5% marks in relation to the widow candidates. Further, the question of consideration will not arise as, the petitioner has not applied pursuant to the advertisement issued by the Dahod Panchayat.

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Furthermore, the main prayer is against the State Government, which will be purely within the realm of the policy decision. Also, there are no allegations against the District Panchayat alleging mala fides or that it has acted arbitrarily or illegally. It is submitted that in absence of any allegations against the District Panchayat, the petition does not deserve to be entertained and is required to be dismissed.

9. Heard Mr. K.B. Pujara learned advocate for the petitioner, Mr. Rohan Shah, learned Assistant Government Pleader for the respondent nos. 1, 2 and 3, Mr. Ketan Bhatt, learned advocate for respondent nos. 4 and 5 and Mr. Mahavir Gadhavi, learned advocate for the respondent nos. 6 and 7. Though served, Respondent no.8, has chosen not enter appearance.

10. The core issue, which arises for consideration of this Court, is whether the petitioner has any right to maintain the present petition and claim direction to the State Government to provide for reservation for widow on 5% of the vacancies in the recruitment of the Female Health Workers under the District Pachayats. Answer to the aforesaid issue has to be in the negative for the reasons discussed in succeeding paragraphs.

11. As per the policy of the State Government, one seat in each self- financed Auxiliary Nurses Midwives nursing school is reserved for widow as per the Gujarat Diploma in General Nursing and Midwifery and Auxiliary Nurses Midwives (Regulation of Admission and Payment of Fees) (Amendment) Rules 2014. Admissions are granted to the General Nursing and Midwifery and Auxiliary Nurses and Midwives Course through Centralized Admission System by the Admission Committee for professional medical educational courses in the Government and other institutions in the State. The petitioner, while taking the benefit of such reservation, got herself admitted in the

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category of widow and on completion of 1½ year training course of Female Health Worker got herself registered with the Gujarat Nursing Council.

12. Two advertisements were issued by the District Panchayat Service Selection Committee, Dahod and District Panchayat Service Selection Committee, Narmada for 61 and 12 vacancies respectively, for Female Health Workers (Class-III). According to the petitioner she applied in response to both the advertisements; however, since there was no reservation provided for the widow, she could not get through. Consequently, the petitioner made several representations to the authorities concerned; however, the representations were not considered, which aggrieved the petitioner. Accordingly, the petitioner has filed the captioned writ petition with the aforementioned prayers.

13. In the aforesaid background the petitioner is seeking writ of mandamus and/or any other writ, seeking directions to the respondent authorities to provide for reservation for widow on 5% of vacancies in the recruitment of Female Health Workers (Class-III) under District Panchayats and elsewhere.

14. Pertinently, the Apex Court, in the case of Director of Settlements, AP vs. M.R. Apparao reported in (2002) 4 SCC 638, has held that the powers of the High Courts under article 226 though are discretionary and no limits can be placed upon the discretion, they must be exercised along the recognized lines and subject to certain self-imposed limitations. The Apex Court has further observed that in order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the authority against whom a mandamus is sought and such right must be subsisting on the date of petition. The relevant portion of the paragraph 17 reads as under:

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" 17. Coming to the third question, which is more important from the point of consideration of High Court's power for issuance of mandamus, it appears that the constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non- fundamental or ordinary legal rights, which may come within the expression 'for any other purpose'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, it must be exercised along recognised lines and subject to certain self-imposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. One of the conditions for exercising powers under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior Courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."

15. Pertinently, the petitioner is praying for reservation for widow to the extent of 5% vacancies in the recruitment of Female Health Workers under the District Panchayats. Therefore, the reservation, if any, would have to be provided by the State Government under the provisions of Article 15(3) read with Article 16(1) of the Constitution of India. The State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, in its General Administration

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Department, has framed the Rules of 1997 providing for reservation of post for women belonging to the Scheduled Caste, Scheduled Tribes, SEBC and in favour of open category to an extent of 30% each (by virtue of subsequent amendment in the rules now 33%). After framing of the Rules of 1997, various issues cropped up before the State Government, which led to the issuance of Circular dated 27.5.1997 by the General Administration Department. One of the issues was as to whether any preference should be given to the widow and while doing so, the principles to be observed. The General Administration Department clarified that the post, which are to be filled in by the competitive examination, 5% additional marks, of the total marks obtained, shall be added so as to give some preference to the widow candidates. Therefore, reservation for women is provided by the Rules 1997 and by virtue of the Circular dated 22.5.1997 certain amount of relaxation has been provided in favour of widow candidate by considering 5% additional marks of the total marks obtained by the candidate concerned.

16. Pertinently, the District Panchayat Service Selection Committee, Dahod as well as District Panchayat Service Selection Committee, Narmada have issued advertisements for 61 vacancies and 12 vacancies respectively for Female Health Workers; meant exclusively for women candidates. So far as, the advertisement issued by the District Panchayat Service Selection Committee, Dahod is concerned, under the of heading "Special Note", which pertains to various aspect namely, age, educational qualification, reservation, eligibility of getting additional marks to the widow etc., wherein at item no. 21, reference is made of the Government Resolution dated 22.5.1997 with further instruction that more details are available at http://panchayat.gujarat.gov.in. Further there is a sub-heading "instruction for widow candidates" which specifically provides for

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addition of 5% of total marks obtained for the category of widow candidates. Similar provision of consideration of additional 5% of total marks obtained, is available for widow candidates in the advertisement issued by the District Panchayat Service Selection Committee, Narmada. Therefore, both the advertisements contain sufficient relaxation and / or provision in favour of the widow candidate that is, consideration of addition of 5% marks of total marks obtained. Though the petitioner has no right to seek such direction to the State Government, provisions are already available in favour of widow candidates and therefore, the grievance of the petitioner is misconceived and does not merit acceptance.

17. Notably, both the advertisements are exclusively meant for female candidates and therefore, if at all some provision is to be made, so far as the widow candidate is concerned, it has to be by way of relaxation or preference, which has been accorded by the respective District Panchayats Service Selection Committees in conformity with the Circular dated 22.5.1997. However, the grievance raised by the petitioner for providing the reservation for widow candidates, which, as discussed herein above, cannot be acceded to mainly on the ground that no legal right much less any fundamental right, inheres in favour of the petitioner so as to entitle her to maintain the present petition. This court is of the opinion that when the provisions are made by the State Government for women reservation by virtue of the Rules of 1997 and by virtue of Circular dated 22.5.1997 further relaxation is accorded in favour of widow candidates, no directions can be issued to the State Government or for that matter to the respective District Panchayat Service Selection Committees as prayed for by the petitioner.

18. Besides, one another issue, which goes against the petitioner, is also requires to be deliberated, that is, whether the petitioner has any right to maintain the present writ petition, in absence of her applying for

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the appointment, pursuant to the advertisements issued by the both the District Panchayat Service Selection Committees, that is, Narmada and Dahod. Albeit, the petitioner, in paragraph 3 of the petition memo, has made the averment that she had applied in response to the both the advertisements; she has not produced on record any documents to substantiate the said aspect.

19. Pertinently, the respondent No. 4, in its affidavit, so also the learned advocate appearing for the respondent No.6 has raised the objection about the petitioner not having applied pursuant to the respective advertisements, and locus to maintain the present petition, the petitioner has at no point of time disputed the said aspect, that is, either by filing the rejoinder or during the course of the arguments. Hence, this Court was requested by the learned advocates appearing for the respective respondents, to call upon the petitioner to produce on record any proof to substantiate the aspect. With a view to completing the record, this Court, vide order dated 8.3.2021, required the learned advocate appearing for the petitioner to place on record any proof as regards the petitioner having applied pursuant to the advertisements. On 15.3.2021, the learned advocate for the petitioner stated that the petitioner is not having any proof of having applied pursuant to the advertisements issued by the respective District Panchayat Service Selection Committees.

20. Perceptibly, as per the instructions contained in the advertisement, the petitioner is expected to have some proof in lieu of her application inasmuch as, under the heading of "Manner of making Application", clause 9, provides for specific instructions to the candidate that after submitting the application "Application Number" will be generated, which the candidate shall preserve. Had the petitioner applied pursuant the said advertisements, the petitioner would have some proof and in absence of any proof produced by the petitioner, it

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can be safely concluded that the petitioner has not applied. Therefore, when the petitioner has not at all applied pursuant to the advertisements, it is impermissible to the petitioner to raise any grievance much less the grievance of non-prescription of reservation for widow on 5% of the vacancies for the recruitment of Female Health Workers.

21. Therefore, the petition does not deserve to be entertained on this count as well. In view of the above-mentioned discussion, the petitioner is bereft of merits and does not deserve to be accepted. Accordingly, petition is dismissed. Rule is discharged. No order as to costs.

(SANGEETA K. VISHEN,J) F.S. KAZI