Gujarat High Court
District Programme Officer vs Savitaben Maganbhai Parmar on 31 January, 2022
Bench: Niral R. Mehta
C/LPA/1075/2021 ORDER DATED: 31/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1075 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 2431 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1075 of 2021
With
R/LETTERS PATENT APPEAL NO. 1081 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2442 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1081 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2442 of 2017
With
R/LETTERS PATENT APPEAL NO. 1079 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2432 of 2017
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1079 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2432 of 2017
With
R/LETTERS PATENT APPEAL NO. 1080 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2441 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1080 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2441 of 2017
With
R/LETTERS PATENT APPEAL NO. 1082 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2443 of 2017
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1082 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2443 of 2017
With
R/LETTERS PATENT APPEAL NO. 1078 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2430 of 2017
With
Page 1 of 10
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C/LPA/1075/2021 ORDER DATED: 31/01/2022
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1078 of 2021
In
SPECIAL CIVIL APPLICATION NO. 2430 of 2017
==========================================================
DISTRICT PROGRAMME OFFICER
Versus
SAVITABEN MAGANBHAI PARMAR
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR DP JOSHI for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for the
State Government authorities in LPA 1075/21, 1081/21 and 1079/21
MS DHWANI TRIPATHI, ASSISTANT GOVERNMENT PLEADER for the
State Government authorities in LPA 1080/21, 1082/21 and 1078/21
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 31/01/2022
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
judgment and order dated 30.9.2019 passed by
the learned Single Judge in Special Civil
Applications, the appellants have filed this
batch of intra-Court appeals under Clause 15
of the Letters Patent.
2. Suffice it to note that as the appellants
denied even consideration of the names of the
original petitioners for appointment as Mukhya
Sevika and as persons junior to the original
petitioners were appointed as Mukhya Sevika,
the original petitioners approached this Court
by way of Writ Petition and inter-alia prayed
C/LPA/1075/2021 ORDER DATED: 31/01/2022
as under:-
"(A) This Honourable Court be pleased
to admit and allow this petition.
(B) The Honourable Court be pleased
to issue appropriate writ, order or
direction including the writ in the
nature of mandamus and the
respondents may be directed to add
present petitioner for Mukhya Sevika
in the list dated 11.8.2016 which is
annexed as Annexure-B.
(C) This Honourable Court be
pleased to declare that present
petitioner be appointed as Mukhya
Sevika by adding the name in the list
prepared as per the position on
31.3.2015 by the District Panchayat
Service Selection Board on 11.8.2016.
(D) The Honourable Court be pleased
to issue appropriate writ, order or
direction including the writ in the
nature of mandamus and direct the
respondent authority to follow the
judgment of this Honourable High
Court dated 17.12.2014 passed in
Special Civil Application no.4010 of
2013.
(E) Pending admission hearing and/or
final disposal of this Special Civil
Application no. present petitioner be
appointed as Mukhya Sevika in
District: Banaskantha."
3. As the Writ Petitions are allowed, the
appellants have preferred these appeals.
C/LPA/1075/2021 ORDER DATED: 31/01/2022
4. Heard Mr. H.S. Munshaw, learned advocate for
the appellants, Mr. D.P. Joshi, learned
advocate for the original petitioners, Mr.
Tirthraj Pandya and Ms. Dhwani Tripathi,
learned AGPs for the State Government
authorities on advance copy.
5. Mr. H.S. Munshaw, learned advocate for the
appellants submitted as under:-
5.1 That the rules governing the nomination of
Anganwadi workers as Mukhya Sevika inter-alia
provide that only those Anganwadi workers who
are less than 45 years on the date of
consideration or rather date on which the
seniority list is being prepared should not be
less than 45 years as provided for. According
to Mr. Munshaw, the learned Single Judge has
thus committed an error in considering the
date on which the nomination is made and the
date on which such nomination is being
considered.
5.2 Mr. Munshaw further referring to the
Resolution dated 13.12.2005 (Annexure-F)
contended that list is to be prepared as per
the Yadi sent by the District Selection
Committee. Further relying upon the Government
Resolution dated 21.5.2007 at Annexure-G, it
was contended by Mr. Munshaw that what is
C/LPA/1075/2021 ORDER DATED: 31/01/2022
provided in Clause 2 thereof is that cut off
date of next April is to be taken into
consideration when the nomination procedure is
undertaken. On the basis of such provision,
Mr. Munshaw tried to canvass that the age is
to be materially considered on the date of
nomination. On the aforesaid grounds, it was
contended by Mr. Munshaw that the learned
Single Judge has erroneously considered the
rules and has committed an error in directing
the appellants for consideration of the names
of the original petitioners - respondent no.1
in each of the appeals for the post of Mukhya
Sevika.
5.3 Mr. Munshaw also pointed out that after this
judgment, the power and authority to consider
the case of the original petitioners is with
another authority i.e. Gujarat Panchayat
Service Selection Board and therefore, some
time be granted to consider the same.
6. Mr. Tirthraj Pandya and Ms. Dhwani Tripathi,
learned AGPs for the State Government
authorities have supported the arguments made
by Mr. H.S. Munshaw, learned advocate for the
appellants in each of the appeals.
7. No other or further submissions, averments,
grounds and/or contentions are made by the
C/LPA/1075/2021 ORDER DATED: 31/01/2022
learned advocates appearing for the respective
parties.
8. The core issue which arises in this group of
appeals is whether the date on which the
Committee seeks to finalize the nomination is
the date for considering the age limit or the
date on which the nomination is made. It is an
admitted position that in the case on hand,
the nominations were called for as per the
rules as on 31.3.2015. The learned Single
Judge has examined the same factually in each
case and has observed thus:-
5.1 The details of the junior
employees who came to be appointed
overlooking the case of the
petitioners, could be summarised in
the following tabular form.
Name DOB Date of Categor Date of Date of Total
appointmen y completion of completion of Marks
t 10 years 45 years of
age
Gitaben J. 07.09.71 07.11.92 SC 07.11.02 07.09.16 35
Sundhiya
Joshi 07.10.71 03.05.94 SC 03.05.04 07.10.16 35
Durgaben N.
Rekhaben 13.11.72 19.06.93 SEBC 19.06.03 13.11.17 40
M. Rabari
Prajapati 01.06.73 19.08.94 SEBC 19.08.04 01.06.18 40
Manjulaben
R.
5.2 Learned advocate for the
respondents was at the receiving end
in respect of the aforesaid details
and could not controvert the same.
Nor could be refuted the following
C/LPA/1075/2021 ORDER DATED: 31/01/2022
factual details in respect of each of
the petitioners vis-a-vis the
candidate appointed disregarding the
claim of the petitioner concerned who
came to be discriminated which
details are delineated in the
following table.
SCA Name DOB Date of Catego Date of Date of Total Comparison
No. appointm ry completio completio Marks Drawn
ent n of 10 n of 45
years years of
age
2430 Jashodaben 02.04.73 03.11.92 SC 03.11.02 02.04.18 35 Gitaben J.
of B. Parmar Sundhiya
2431 Parmar 05.06.70 08.03.94 SC 08.03.04 05.06.15 35 Gitaben J.
of Savitaben Sundhiya
2017 Maganbhai
2432 Patel 01.05.72 03.06.94 Other 03.06.04 01.05.17 35 Rekhaben M.
of Kailashben Rabari and
2017 P. Prajapati
Manjulaben
R.
2441 Jyotsaben 06.11.70 23.07.92 SEBC 23.07.02 06.11.15 40 Rekhaben M.
of J. Modi Rabari and
2017 Prajapati
Manjulaben
R.
2442 Gitaben H. 15.09.70 02.11.92 SC 02.11.02 15.09.15 35 Gitaben J.
of Maakwana Sundhiya
2443 Gandhi 13.04.70 19.04.93 SC 19.04.03 13.04.15 35 Joshi
of Kokilaben Durgaben N.
2017 L.
9. The learned Single Judge has further
considered the aspect that the names for
nomination were called for as on 31.3.2015 and
has observed thus:-
5.5 The Rules read that the Anganwadi
Worker concerned could not be more
than 45 years of age for being
nominated to the post of Mukhya
Sevika. Subsequent policy Resolution
dated 31st December, 2005, 21st May,
2007 and 19th July, 2007, clearly
provide that the merit list shall be
C/LPA/1075/2021 ORDER DATED: 31/01/2022
prepared in accordance with the list
of nominated Anganwadi Workers sent
by the District Level Selection
Committee. The necessary position
emerges for counting the upper age
limit of 45 years, the relevant date
would be the date of nomination as
Anganwadi Worker and not a date when
the actual date is offered. There may
arise a time-lag between the two
stages. Once the nominated satisfies
the upper age limit criteria, they
would stand entitled to be appointed
as Mukhya Sevika even if they
subsequently crossed the upper age
limit of 45 years. Therefore, even if
the petitioners has completed 45
years when the list for actual
appointment was prepared on 11th
August, 2016, it would not render
them ineligible nor it would be at
the same time disentitling factor,
once the petitioners were nominate
and that at the time of getting
included in the list by way of
nomination, they were below the age
of 45 years. Even otherwise, the 45
years of age is to be reckoned at the
time of appointment, it would be
arbitrary and bring out a situation
prone to commission of
irregularities. Decision in Solanki
Pushpaben Manganlal (supra) takes the
view on similar lines.
6. For the reasons and discussion
foregoing, all the petitioners
succeed partly in their respective
petitions. The respondents are
directed to add the name of each of
the petitioners in different
petitions in the list dated 11th
August, 2016 for appointment to the
post of Mukhya Sevika. All the
C/LPA/1075/2021 ORDER DATED: 31/01/2022
petitioners who have completed 45
years of age on the date of
nomination for the post are declared
to be entitled to be appointed as
Mukhya Sevika. The respondents may
consider their case for appointment
against the vacancies as may be
available.
10. Even considering the submissions made by Mr.
Munshaw, learned advocate for the appellants,
we do not find any rule in the Resolutions
dated 13.12.2005, 21.5.2007 and 19.7.2007,
which provide that the date on which the
nomination Committee or the concerned
Committee prepared the list, on that day, a
candidate should not be more than 45 years of
age. As is found in this case also, there is a
time lag between the date on which the
nominations were called for as it stood on
31.3.2015 and actual date on which the
Committee undertook the exercise of
nomination. If the argument of Mr. Munshaw is
accepted, it would ipso facto create a class
of non-eligible due to administrative reasons.
Meaning thereby, a candidate may be less than
45 years of age on 31.3.2015 as in this case,
but would cross 45 years of age when the
Committee met in 2016. The nexus or logic for
considering the position as on a particular
date as in the instant case is 31.3.2015 is
not without any basis and the cut off date of
C/LPA/1075/2021 ORDER DATED: 31/01/2022
age limit would cut on that day i.e. on
31.3.2015. The learned Single Judge has very
succinctly considered the said aspect in the
Paragraphs which are referred to hereinabove.
11. We are in total agreement with the conclusions
arrived at by the learned Single Judge. All
that has been said is to consider the case of
the original petitioners and not to treat them
as non-eligible only because they had crossed
45 years of age on a particular date when the
nomination Committee/concerned Committee sat
to consider the seniority. We do not find any
error as complained of by Mr. Munshaw, learned
advocate for the appellants. As far as the
last contention about the authorities is
concerned, the same is beyond the scope of
this appeal. It is for the authorities to take
the decision in accordance with law.
12. The appeals therefore fail and are hereby
dismissed. As the appeals are dismissed,
connected Civil Applications are also
dismissed.
(R.M.CHHAYA,J)
(NIRAL R. MEHTA,J)
Maulik
