Gujarat High Court
Renukaben Navalbharti Gosai vs The State Of Gujarat on 27 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/1865/2024 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1865 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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RENUKABEN NAVALBHARTI GOSAI
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR SANJAY UDHWANI ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1
MR KV GADHIA(319) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 27/02/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Vaibhav A. Vyas
appearing for the petitioner, learned Assistant
Government Pleader Mr. Sanjay Udhwani appearing
for the respondent No.1 - State and learned
advocate Mr. Gadhia appearing for the respondent
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No.1. According to learned advocate Mr. Vaibhav
Vyas appearing for the petitioner, the issue in
question is a covered issue. The issue is
related to an advertisement whereby for filling
up the post of Female Health Worker as per the
advertisement, the duration of course should be
of two years whereas actually as per the rules,
a person must have completed the Auxiliary Nurse
and Midwifes (ANM) Course and therefore, the
advertisement ought not to have gone beyond the
provisions of rules.
2. In view of that issue RULE. Learned Assistant
Government Pleader Mr. Sanjay Udhwani waives the
service of rule on behalf of the respondent No.1
- State and learned advocate Mr. Gadhia waives
the service of rule on behalf of the respondent
No.2.
3. The facts of the petition are as under :-
3.1 It is the case of the petitioner that
the respondent No.2 had issued an advertisement
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inviting applications for appointment to various
post, one of which is of Female Health Worker
under the Urban Community Health Centre and
Urban Primary Health Centre. The said
advertisement was issued by the respondent No.2
as the State wanted to setup Community Health
Centre and Primary Health Centre in the Urban
Areas of the respondent - Corporation and by way
of this advertisement, in all 81 posts of Female
Health Workers were sought to be filled in.
However, as per the said advertisement, for
being eligible to be appointed on the post of
Female Health Worker, a candidate must have
passed the Diploma course in Nursing, approved
by the State Government or should have completed
two years ANM Course and should have knowledge
of Computer and should possess sufficient
knowledge of Gujarati and Hindi languages.
According to the petitioner, the petitioner was
fulfilling all the necessary eligibility
criteria in the advertisement for the post of
Female Health Worker. However, the duration of
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course of the petitioner was one and half years.
The petitioner participated in the recruitment
process and ultimately, a call letter informing
the petitioner to appear in the written
examination was also issued and upon publication
of result, the petitioner has secured 61 marks
and she was called for document verification.
Upon document verification, 63 candidates were
appointed on the post of Female Health Worker as
against 81 posts advertised including the
persons who have scored less marks than the
petitioner. However, the petitioner did not get
any appointment order for the post. Upon
approaching the respondent - Corporation
personally, the petitioner was informed that ANM
Course which the petitioner has undergone is of
one and half years duration and not of two years
duration and therefore, her case cannot be
considered for appointment.
3.2 It is in this premise that the petition
is preferred by the petitioner whereby on
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account of duration of course of ANM which the
petitioner has passed which is one and half
years, the petitioner is denied the appointment
on the ground that the duration of course should
have been two years as per the advertisement.
4. According to learned advocate Mr. Vaibhav Vyas
appearing for the petitioner, the issue in
respect of duration of course pursuant to this
very advertisement has been considered by the
Co-ordinate Bench in case of Chetanaben
Viththalbhai Jani Versus State of Gujarat in
Special Civil Application No. 7263 of 2021
decided on 25.01.2023 whereby the Co-ordinate
Bench of this Court had allowed the petition and
directed the respondent - Corporation to appoint
the petitioner and when the said order was
challenged by the Rajkot Municipal Corporation
by Letters Patent Appeal No. 989 of 2023, the
said Letters Patent Appeal was dismissed vide
order dated 31.7.2023 and therefore, as the Co-
ordinate Bench has dealt with the same issue
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pursuant to the same advertisement, the issue in
the present petition is squarely covered by the
decision of Co-ordinate Bench which is confirmed
by the Division Bench of this Court.
5. Learned advocate Mr. Gadhia appearing for the
respondent - Corporation despite opposing the
petition vehemently could not point out anything
contrary from the record. He also could not
controvert the fact that the present petition is
in respect of the same recruitment which is
based on the advertisement which was subject
matter of challenge in Special Civil Application
No.7263 of 2021 in case of Chetanaben
Viththalbhai Jani (Supra). It is also an
uncontroverted fact that the said petition was
allowed by the Co-ordinate Bench and the
Division Bench had dismissed the Letters Patent
Appeal and that order has attained finality.
6. Since the recruitment pursuant to the
advertisement is the same in this petition as
well as in case of Chetanaben Viththalbhai Jani
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(Supra) and facts are also identical, the
necessary observations made by the Co-ordinate
Bench while allowing the petition in case of
Chetanaben Viththalbhai Jani (Supra) are
required to be considered. The Co-ordinate Bench
in case of Chetanaben Viththalbhai Jani Versus
State of Gujarat in Special Civil Application
No. 7263 of 2021 decided on 25.01.2023 observed
in paragraph Nos. 9 to 17 which reads as
under :-
"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
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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 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
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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 29th 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, 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
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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 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 respondentCorporation
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
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stands allowed. Rule is made absolute to
the aforesaid extent with no order as to
costs. Direct service is permitted."
7. The Division Bench of this Court in Appeal
preferred by the respondent - Corporation while
confirming the order passed by the Co-ordinate
Bench observed in paragraph No.3 and 4 as
under :-
"3. To challenge the order of the learned
single Judge, it is sought to be submitted
by Shri Munshaw, learned advocate
appearing for the appellant that the
requirement of the advertisement of
completion of A.N.M. course of two years
course duration had not been challenged by
the writ petitioner before participating
in the selection process. To challenge it
subsequent to the issuance of appointment
order is nothing but an afterthought and
can not be sustained in the eye of law.
The insistence is upon the requirement in
the advertisement, prescribing specific
qualification for the post in question.
3.1 A perusal of copy of the advertisement
appended at page '19' of the paper book,
indicates that one of the requisite
qualifications for the post in question
was passing of a Nursing Diploma course
from a government institution or
completion of A.N.M. course of two years
duration. It is recorded by the learned
single Judge that prescription of course
duration of two years for A.N.M. course,
even according to the learned advocate for
the appellant Corporation, was based on
some advertisement issued by the Bhavnagar
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Municipal Corporation, which prescribed
the duration of two years for said course.
There are no recruitment rules prescribing
requirement of course duration of two
years for A.N.M.. This finding returned by
the learned single Judge could not be
assailed by the learned counsel appearing
for the appellant. There is no dispute
about the fact that the A.N.M. course of
one and half years duration completed by
the writ petitioner, is also a recognised
course by the Gujarat Nursing Council,
recognised by the State Government and a
Certificate of Registration in this regard
has been issued by the Council.
4. In view of the fact that the Auxiliary
Nurse Midwife Course (A.N.M.) undertaken
by the petitioner is a recognised course
by the State Government and a certificate
of registration has been issued by the
Gujarat Nursing Council, we do not find
any good ground to interfere with the
conclusion arrived at by the learned
single Judge that the writ petitioner who
has completed A.N.M. course of one and
half years duration, was eligible for
appointment to the post of Female Health
Worker."
8. In view of above, as it is an uncontroverted
fact that the advertisement for the post of
Female Health Worker was same in both the
petitions and as the challenge in the earlier
petition in case of Chetanaben Viththalbhai Jani
(Supra) was also same and the same has attained
finality in favour of the petitioner of that
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petition and the case of the present petitioner
is identical to that case of petitioner of
Special Civil Application No. 7263 of 2021, the
observations made by the Co-ordinate Bench and
confirmed by Division Bench would be squarely
applicable to the facts of present case as well.
9. Accordingly, the present petition is required to
be allowed and same is allowed. The respondents
are directed to consider the case of the present
petitioner for appointment to the post of Female
Health Worker on the basis of her qualification
of Auxiliary Nurse and Midwife (ANM) course
having duration of one and half years. Necessary
orders may be passed as early as possible but in
any case preferably within a period of twelve
weeks from today.
10. It is clarified that at this juncture, when it
was pointed out by learned advocate Mr. Gadhia
that there are already more than 63 appointments
are made pursuant to the advertisement in
question and therefore, the petitioner will be
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placed at the bottom of the seniority and her
appointment would be from the date of the
appointment and she will not be entitled for any
of the benefits which are given to other
employees whose appointments were prior in point
of time, learned advocate Mr. Vaibhav Vyas, upon
instructions, fairly concedes that once the
petitioner's date of appointment would be later
than the date of appointment of other similarly
situated candidates, there is no question of
claiming any benefits retrospectively. He upon
instructions states that the petitioner is ready
and willing to get appointment even if the
petitioner's appointment is considered
prospectively and all the benefits may flow only
from the date of her actual appointment. Direct
service is permitted.
(NIRZAR S. DESAI,J)
Pallavi
