Gujarat High Court
Patel Chandrikaben Bhikhalal vs State Of Gujarat on 12 October, 2022
Bench: Biren Vaishnav
C/SCA/7701/2022 JUDGMENT DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7701 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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PATEL CHANDRIKABEN BHIKHALAL
Versus
STATE OF GUJARAT
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2
MR. SOAHAM JOSHI, AGP, for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 12/10/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Mr.Soaham Joshi, learned
AGP, waives service of notice of rule on behalf of
C/SCA/7701/2022 JUDGMENT DATED: 12/10/2022
respondent - State and Mr.H.S.Munshaw, learned
advocate, waives service of notice of rule on behalf of
respondents Nos. 3 and 4.
2 Mr.Gaurav Chudasama, learned counsel for the
petitioners, relies on CAV Judgement dated 30.09.2019
rendered by this Court in Special Civil Application No.
2430 of 2017 and allied matters. Paras 5.5 to 7 of the
judgement read as under:
"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 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
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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 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.
7. All the petitions are allowed as per the above
directions and the order. Rule is made absolute in
the aforesaid terms in each of the petitions. Direct
service is permitted."
3 Mr.Chudasama, learned counsel for the petitioners,
submits that the appeal against the order of the Co-
ordinate Bench was dismissed on 31.1.2022. Paragraphs
10 and 11 of the decision of the Division Bench rendered
in Letters Patent Appeal No. 1075 of 2021 and allied
matters read as under:
"10. Even considering the submissions made by Mr.
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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 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."
4 Accordingly, the respondents are directed to
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consider the case of the petitioners in light of the orders
above within a period of ten weeks from the date of
receipt of copy of this order. The petition is disposed of,
accordingly. Rule is made absolute to the above extent.
Direct service is permitted.
(BIREN VAISHNAV, J)
BIMAL
