Gitaben Narsinhbhai Patel vs Ministry Of Child And Women ...
2023 Latest Caselaw 6901 Guj

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     C/LPA/611/2023                             CAV ORDER DATED: 18/09/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 611 of 2023
             In R/SPECIAL CIVIL APPLICATION NO. 15931 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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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 ?

================================================================ GITABEN NARSINHBHAI PATEL Versus MINISTRY OF CHILD AND WOMEN DEVELOPMENT ================================================================ Appearance:

MR CHINTAN N DESAI(9940) for the Appellant(s) No. 1

MR MANISH J PATEL(2131) for the Respondent(s) No. 3 MR VASANT R BAROT(5746) for the Respondent(s) No. 6 MS SHRUTI DHRUVE, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2

================================================================ CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 18/09/2023 CAV ORDER (PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

Heard learned advocate Mr. Chintan N. Desai for

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the appellant, learned Assistant Government Pleader

Ms. Shruti Dhruve for respondent Nos.1 and 2,

learned advocate Mr. Manish Patel for respondent

Nos.3 and 4 and learned advocate Mr. Vasant R.

Barot for respondent No.6.

1. This Letters Patent Appeal is arising out an

order passed by learned Single Judge on 21.7.2022 in

Special Civil Application No.15931 of 2018, whereby,

the petition of the appellant came to be dismissed and

it was held that the benefit of the Resolution dated

8.2.2006 cannot be given to the petitioner.

2. The short facts involved in the present

Letters Patent Appeal are as under:

2.1. The petitioner applied for the post of

Aanaganwadi Worker, and on 30.03.1995 was

appointed as Aanaganwadi Worker. The Rules namely

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Mukhya Sevika, Class-III (Panchayat Service),

Recruitment Rules, 2004 (for short, hereinafter

referred to as, `the Rules') were to be considered for

the appointment to the post of Mukhya Sevika and the

appointment of Mukhya Sevika was either be "direct

selection" or by "nomination from amongst

Aanaganwadi Workers." The dispute involved in the

present case pertains to the nomination from amongst

Aanaganwadi Workers.

2.2. The Notification dated 19.03.2004, more

particularly in clause 4(a), the eligibility criteria for

the candidates to be appointed by nomination from

amongst Aanaganwadi Workers is, the candidate

should not be more than 45 years of age. Since the

nomination of the petitioner was not considered by

the respondents, the petitioner filed the petition for

the reliefs, more particularly, seeking direction of

quashing and setting aside the nomination of the

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private respondents and further sought the

appointment of the petitioner for the post of Mukhya

Sevika. It was further prayed to appoint the petitioner

as per Seniority list and stay of the appointment order

of other private respondents to the post of Mukhya

Sevika.

3. Learned advocate for the appellant has

submitted that other than the age criteria, the

appellant's case meets with all the criteria

determined for the nomination for the post of Mukhya

Sevika and if timely process would have undertaken

by the authority, the appellant would have been

nominated to the post of Mukhya Sevika before the

age of 45 years, which is the age criteria for

selection.

3.1. It is further contended by the learned

advocate for the appellant that the posts of Mukhya

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Sevika were lying vacant since long and the authority

deliberately in order to adopt pick and chose policy,

delayed the process of nominating the Aanaganwadi

Worker for the post of Mukhya Sevika.

3.2. Learned advocate for the appellant has

referred Rules, 2004 which is placed on record and

more particularly clause 4(a) which reads as under:

"4 To be eligible for appointment by nomination from amongst the Aanaganwadi Workers to the post mentioned in rule 2 above, a candidate shall: -

(a) not be more than 45 years of age;

                    (b) xxx

                    (c)    xxx"

3.3. Learned advocate for the appellant has also

relied upon the Government Resolution dated

08.02.2006 which reflects that since long the

recruitment has not been done and hence, the three

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years relaxation in the maximum age limit of 45 to be

considered. In short, instead of the age limit of 45

years for the post of Mukhya Sevika, age limit of 48

years can be considered.

4. On the other hand, learned advocate for

respondent Nos.2 and 3 submitted that the decision

of the learned Single Judge does not require any

interference as the same is supported by the

Government Resolutions and the Rules referred and

relied upon by the petitioner i.e. the present

appellant. The learned advocate for the respondents

has submitted that as per the Government Resolution

dated 21.05.2007, the process of nomination was

undertaken three times i.e. in the years 2008, 2010

and 2018. The said Resolution also gives the

relaxation of age bar from 45 years to 48 years but

the employee can have benefits of such relaxation

only for one time. And once that benefit has been

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availed, the petitioner cannot avail the same for

subsequent nomination.

4.1. It is further submitted by the learned

advocate for the respondents that the candidate was

given age relaxation once and the same was

considered in the year 2008. As per the said

Resolution, one time age relaxation has been granted

by the nomination for the post of Mukhya Sevika. It is

further submitted by learned advocate for the

respondents that once, one time age relaxation is

given, no age relaxation can be granted for the

subsequent nomination in the years 2010 and 2018

and hence, the appellant has no case on merits.

5. After considering the rival contentions and

after taking into consideration the observations made

in the order impugned, the entire controversy is

revolving around the interpretation of the

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Government Resolution dated 08.02.2006. The said

Resolution is very clear and unambiguous. In clear

terms it stipulates that the benefit of age relaxation is

extended only as one time measure. The benefit of

such relaxation cannot be extended for the

subsequent processes of nomination. Even the

Resolution dated 08.02.2006 is silent on that aspect,

hence, the petitioner cannot avail the benefit of age

relaxation after having taken the benefit of such age

relaxation clause.

5.1. In the background of the said Resolution,

the respondents can consider the age relaxation

criteria of the petitioner - appellant only one time.

Therefore, the appellant is now not entitled to avail

the benefit of the Government Resolution of availing

the benefit of age relaxation.

6. Learned Single Judge while dismissing the

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petition has observed that the Government Resolution

dated 21.05.2007, the nomination process for the

district of Sabarkantha was undertaken on three

occasions i.e. in the years 2008, 2010 and 2018 and

the Government Resolution dated 08.02.2006 cannot

be made applicable to the petitioner as the case of the

petitioner cannot be termed as the nomination for the

first time.

6.1. The learned Single Judge has taken into

consideration the aforesaid aspect and has rightly

held that the petitioner cannot be benefited by taking

the shelter of Government Resolution dated 8.2.2006

since the nomination was not for the first time in the

case of the petitioner.

7. In view of the above, the decision of the

learned Single Judge does not require any

interference. Looking to the facts of the case, this

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Letters Patent Appeal is merit-less and deserves to be

dismissed. Accordingly, the same is dismissed with no

order as to costs.

(N.V.ANJARIA, J)

(D. M. DESAI,J) VATSAL