Chetanaben Viththalbhai Jani vs State Of Gujarat
2023 Latest Caselaw 682 Guj

     C/SCA/7263/2021                                 JUDGMENT DATED: 25/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 7263 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                              Sd/-

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

2     To be referred to the Reporter or not ?                             NO

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

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

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                       CHETANABEN VITHTHALBHAI JANI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
PRACHI UPADHYAY for MR VAIBHAV A VYAS(2896) for the Petitioner(s) No.
1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 25/01/2023

                               ORAL JUDGMENT

1. RULE. Learned Advocate Mr. H. S. Munshaw waives service of rule on

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behalf of the respondent No.2.

2. This petition under Article-226 of the Constitution of India is filed for quashing and setting aside the Communication dated 16-04-2021 and direct the respondent Authorities to consider the case of the petitioner for appointment to the post of Female Health Worker and treat the petitioner to be appointed on the aforesaid post pursuant to the recruitment process initiated pursuant to the Advertisement of the year 2018 (Annexure-B).

3. At the outset, learned Advocate for the petitioner has drawn attention of this Court to the order dated 17-06-2021, wherein by way of interim relief, it was directed that one seat in the recruitment process be kept vacant. Said order also recorded that against the post advertised being 81 in numbers, selection of 63 candidates has been announced. The main challenge to the Communication for treating the petitioner as disqualified by treating her to be not eligible on account of the educational qualification.

4. Learned Advocate for the petitioner has submitted that as per the Advertisement for the post of Female Health Worker, educational qualification advertised was Diploma in Nursing or two years course of Auxiliary Nurse and Midwife (ANM). Learned Advocate has submitted that petitioner appeared in the recruitment process and was duly selected in the written examination and was called for personal document verification, wherein the documents of the petitioner were verified, however, when the respondent issued an appointment orders on 13-04-2021, names of the 63 candidates appears for being appointed. However, name of the petitioner was not found in such list. Though, according to the petitioner, those candidates who have secured marks less than that of the petitioner, were given appointment. The petitioner immediately on 14-04-2021 made Representation, which was forthwith answered by the Department by the impugned

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Communication dated 16-04-2021 informing the petitioner to be ineligible as course completed by the petitioner of ANM was of 18 months, whereas requirement is of 2 years course.

5. Learned Advocate for the petitioner has therefore relied upon the Recruitment Rules for the post of Female Health Worker, which prescribes the educational qualification for the post of Female Health Worker and submitted that nowhere in the Recruitment Rules, any period of course was prescribed, only requirement was of certificate course of ANM was eligibility criteria. Such course may have been of any period or number of years will not be of any consequences. It is submitted that on the basis of certificate of course, the petitioner has been admitted as a member of Nursing Council, which is governing body for issuing Certificate of Registration as Auxiliary Nurse and Midwife (ANM). When the Governing Council has accepted educational qualification, there was no question of disqualifying the petitioner thereafter.

6. As against this, learned Advocate appearing for the respondent has opposed to the grant of petition by contending that the Advertisement, which was issued clearly prescribed the certificate course of ANM, which was for the period of 2 years and therefore, the petitioner, who was having the Certificate of the same course, but duration of such course being less than 2 years, was therefore, disqualified, even as per the Advertisement.

7. Learned Advocate has submitted that the Recruitment Rules on which the petitioner seeks to place reliance upon are the Panchayat Rules, where the respondent herein is Municipal Corporation and therefore, such Recruitment Rules may not be applicable. It is submitted that at the relevant time, as there was no Recruitment Rules for appointment of Female Health Worker in the Corporation, the Corporation had adopted Advertisement issued by the Bhavnagar Municipal Corporation,

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which also prescribed ANM course with duration of 2 years. Learned Advocate has tried to submit that if the case of the petitioner is accepted, then it will cause injustice to several candidates, who may have done Certificate course of 18 months like the petitioner, but had not applied for such post with an understanding that requirement was educational qualification of Certificate course with 2 years duration.

8. In rejoinder, learned Advocate for the petitioner has drawn attention of this Court to the Advertisement now issued by the respondent- Corporation itself, wherein for the post of Female Health Worker, educational qualification for Female Health Worker is having passed ANM Basic Training Course, but the same does not prescribe the course duration of 2 years and therefore, the respondent-Corporation has in fact corrected its error, which had taken place in the previous recruitment.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the issue pertains to post of Female Health Worker, which was advertised on behalf of the respondent- Corporation inviting online applications from the candidates between 06-10-2018 to 20-10-2018. In the Advertisement for the 81 posts of Female Health Worker, eligibility was prescribed as Diploma Nursing from the Government Recognized Institute or 2 years ANM course and fair knowledge of Computer, Gujarati and Hindi. It is not in dispute that the petitioner had appeared in the written examination conducted on 01-11-2020 and in the result published pursuant to such examination, the petitioner had secured 65 marks.

10. The petitioner having cleared written examination, the petitioner was therefore, called for documents verification on 22-03-2021 and thereafter, when the respondent-Corporation issued appointment orders on 13-04-2021, the Corporation issued appointment orders to 63 candidates against 81 posts advertised. It is also not disputed that the

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candidates who were issued with the appointment orders, some of them had secured less than 65 marks i.e. marks less than secured by the petitioner.

11. From the record, it appears that the petitioner had immediately made Representation for knowing reasons for not being issued appointment order, despite the candidates securing lessor marks, being given appointment, to which the impugned Communication issued indicated that the petitioner was not eligible, as the Department had found upon the documents verification that she had completed course of ANM with duration of 18 months and therefore, did not match with the requirement of course of ANM with 2 years duration. It would be pertinent to refer to the Recruitment Rules being Female Health Worker, (Class-III) (Panchayat Service), Recruitment Rules, 1999, wherein Section-2 would read as under:

"(ii) the Auxiliary Nurse Midfwife Course, recognized by the Government and have been registered by the Nursing Council;"

12. Reading of the aforesaid Recruitment Rules would indicate that Auxiliary Nurse and Midwife (ANM) course recognized by the Government and having registration with Nursing Council was treated to be eligibility criteria. If the case of the petitioner is examined, then the petitioner has done the course of Auxiliary Nurse and Midwives Training Course under the Commissionerate of Health and Family Welfare, Telangana, Hyderabad for which Mark-sheet came to be issued on 20-10-2016. Accepting this, on the basis of this Memorandum of Marks, the petitioner had received Certificate of Registration dated 29 th November, 2016 issued by the Gujarat Nursing Council. In the Certificate of Registration in the column of course of training from the Institution, it was mentioned as 'Vijetha ANM Training Institute,

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Hyderabad, Telangana from 1-1-2012 to 30-6-2013'. There is no dispute in so far as the course of ANM and its recognition from Vijetha ANM Training Institute, Hyderabad or Certificate of Registration issued by the Gujarat Nursing Council. The documents on which reliance placed at Annexure-M is the Certificate of Experience issued by the Bhavnagar Municipal Corporation, which has certified that the petitioner was working as Female Health Worker at Kaliyabid Urban Primary Health Centre, though on contract basis from 01-06-2017 till the last date of contract, which was from 04-03-2020 till 2021.

13. Reliance placed upon by the respondent - Corporation for prescribing course duration of 2 years for ANM Certificate, even according to the learned Advocate for the Corporation was on the basis of the Advertisement issued by the Bhavnagar Municipal Corporation, which had prescribed course duration of 2 years of ANM Certificate. Though there does not appear to be any support from the Recruitment Rules, if any, for prescribing course of ANM with course duration of 2 years, but even if such contention is accepted, still the fact remains that the petitioner herself was working as Female Health Worker under the very Bhavnagar Municipal Corporation (Annexure-M).

14. Over and above this, as indicated in the preceding paras, where the Recruitment Rules for the same post of Female Health Worker in Panchayat Service has prescribed qualification of Certificate course of ANM without prescribing course duration and the fact that in the subsequent Advertisement also, issued by the very respondent, educational qualification prescribed for the post of Female Health Worker is in consonance with the Female Health Worker, (Class-III) (Panchayat Service), Recruitment Rules, 1999.

15. The Court has also taken into consideration the fact that as against 81 posts advertised in the year 2018, only 63 posts have been filled up and 18 posts still remaining unfilled. The Court deems it fit to consider the

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case of the petitioner as an eligible candidate pursuant to the recruitment process of the year 2018.

16. In view of the above, the Court deems it fit to direct the respondent-

Corporation to treat the petitioner to be eligible candidate for the post of Female Health Worker and issue an Appointment Order in accordance with the law after taking into consideration all the relevant aspects required for the post of Female Health Worker. The appointment to be treated as a fresh appointment from the date of Appointment Order. As undertaken before this Court by the learned Advocate for the petitioner that the petitioner may not claim any other right to draw parity with those candidates, who have already been issued Appointment Orders on 13-04-2021.

17. In view of the aforesaid, the petition stands allowed. Rule is made absolute to the aforesaid extent with no order as to costs.

Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA