Bombay High Court
Sau. Shilpa Dhanraj Kale vs Divisional Commissioner, Amravati ... on 3 August, 2015
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 4358 OF 2014
Shilpa Dhanraj Kale,
Aged 34 yrs., Occu.
Anganwadi Sevika,
R/o At post Aashti,
Tq. Bhatkuli, Distt.
Amravati. PETITIONER.
ig VERSUS
1]Divisional Commissioner,
Amravati Division, Amravati.
2] Chief Executive Officer,
Zilla Parishad, Amravati.
3] Child Development and
Welfare Project Officer,
Ekatmik Balvikas Seva Yojna
Bhatkuli, Distt. Amravati.
4] Kiran Rajendra Koharkar,
aged 38 yrs., R/o At Post
Aashti, Tq. Bhatkuli, Distt.
Amravati. RESPONDENTS.
Shri K. P. Mahalle, Counsel for the petitioner.
Smt. B. P. Maldhure, Assistant Government Pleader for respondent
No.1.
Shri Rohit Joshi, Counsel for respondent No. 2.
Shri V. Dahat, Counsel for respondent No. 4.
CORAM: A. S. CHANDURKAR J.
Dated : AUGUST 03, 2015.
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ORAL JUDGMENT:
Rule. Heard finally with consent of learned counsel for the parties.
2] The petitioner is aggrieved by the order passed by the respondent no.1 allowing the appeal filed by respondent no. 4 thereby setting aside the selection of the petitioner as Anganwadi Sevika and directing a fresh process of holding interviews for appointment on the post of Anganwadi Sevika.
3] In the process for recruitment that was held for appointing an Anganwadi Sevika, steps were taken as per Government Resolution dated 05.08.2010. On the basis of qualifications of the respective candidates, the petitioner was awarded 77 marks out of 90 while respondent No. 4 was awarded 76 marks out of 90. In the interviews that were held subsequently the petitioner was awarded an average of 7.75 out of 10 while the respondent no.4 was awarded 4.25 marks out of 10. The total marks out of 100 were then taken into consideration and it was found that petitioner had scored 84.75 marks while the respondent no.4 had secured 80.25 marks. The respondent no.2 thereafter approved the selection of the petitioner. Being aggrieved the respondent no.4 filed an appeal before the Divisional Commissioner alleging that she was entitled for preference being a widow as ::: Uploaded on - 07/08/2015 ::: Downloaded on - 10/09/2015 19:58:20 ::: wp4358.14 3 stipulated in Government Resolution dated 05.08.2010. The Divisional Commissioner found that in the interviews that were held the petitioner had been granted full marks by two members and as same was contrary to certain directions issued by the Government, the selection of the petitioner was set aside with a direction to conduct a fresh process by holding interviews a fresh.
4] Shri K. P. Mahalle, learned counsel appearing for the petitioner submitted that there was no bar to grant full marks when the interviews were held for making selection of Anganwadi Sevika. He submitted that though two members had granted full marks to the petitioner the other two members had not done so and therefore it could not be said that the petitioner had been favoured by the interview committee which had conducted the interviews. He submitted that after the petitioner's selection on 16.05.2011, directions came to be issued on 25.05.2011 against awarding full marks in interviews.
Subsequently, Resolution dated 15.09.2011 came into effect and the Divisional Commissioner by considering directions and the Government Resolution issued subsequent to her selection have set aside the selection of the petitioner. It was, therefore, submitted that the directions relied upon by the Divisional Commissioner could not be given retrospective effect to hold that the petitioner's selection was bad in law.
::: Uploaded on - 07/08/2015 ::: Downloaded on - 10/09/2015 19:58:20 :::wp4358.14 4 5] Shri V. Dahat, learned counsel appearing for respondent no.4 supported the impugned order by submitting that the relevant directions and Government Resolution dated 15.09.2011 were taken into consideration by the respondent no.1 and, therefore, the impugned order to conduct the interviews afresh did not call for any interference. It was submitted that in the interviews that were held two members had granted full marks to the petitioner and the same was contrary to the communication dated 25.05.2011. As the appeal was pending when Government Resolution dated 15.09.2011 came into force, same should have been taken into consideration.
Smt. B. P. Maldhure, learned Assistant Government Pleader supported the impugned order by relying upon the Government Resolution dated 15.09.2011. Shri R. Joshi, learned counsel appearing for respondent no. 2 pointed out that the directions dated 16.05.2011 relied upon are subsequent to the selection of the petitioner.
6] I have considered the respective submissions and I have gone through the documents filed on record. The selection process to appoint Anganwadi Sevika was conducted as per Government Resolution dated 05.08.2010. After the interviews were held the respondent no. 2 on 16.05.2011 upheld the selection of the petitioner on the ground that she had scored higher marks than respondent no.4.
Perusal of the memorandum of appeal preferred by respondent no. 4 ::: Uploaded on - 07/08/2015 ::: Downloaded on - 10/09/2015 19:58:20 ::: wp4358.14 5 indicates that a grievance was made that in terms of Clause E of the Government Resolution dated 05.08.2010, though the respondent no.4 was entitled for preference being a widow the same was not granted.
There were no allegations that the members of the Committee had either favoured the petitioner or granted her full marks in the interview. In the impugned order a reference has been made to certain directions issued by the State Government while holding the process of selection to be defective.
7] It is necessary to note that the respondent no.2 approved the selection of the petitioner on 16.05.2011 by considering the provisions of Government Resolution No. 5-8-2010. Thereafter on 25.05.2011 directions came to be issued by the Ministry of Women and Child Development to the Chief Executive Officer that of the total of 10 marks, maximum marks of 9 and minimum marks of 4 should be awarded in the interviews. Thereafter on 15.09.2011 a Government Resolution was issued in which it was stated that no candidate should be granted less than 4 marks or more than 9 marks in the interviews. It is on the basis of the directions dated 25.05.2011 and the Government Resolution dated 15.09.2011 that the selection of the petitioner has been held to be invalid.
8] The directions dated 25.05.2011 and the Government Resolution dated 15.09.2011 could not have been interpreted in a ::: Uploaded on - 07/08/2015 ::: Downloaded on - 10/09/2015 19:58:20 ::: wp4358.14 6 retrospective manner so as to govern the interviews that were already held. The petitioner having been selected on 16.05.2011, the marks awarded in the interviews by two members could not be held to be illegal as being contrary to directions dated 25.05.2011 and Government Resolution dated 15.09.2011 that came into effect subsequent to the petitioner's selection. The position as prevailing on the date when the interviews were held would govern the situation.
Reference in that regard can be usefully made to the decision of the Supreme Court in Madan Mohan Sharma and another Vs. State of Rajasthan and others (2008) 3 Supreme Court Cases 724 and the observations in para 11 as under:
"We have heard learned counsel for the parties and perused the record. Mr. M. R. Calla, learned Senior counsel appearing for the appellants has strenuously urged that during the pendency of the selection process, the eligibility criteria were changed and the date for submission of the application in pursuance to the advertisement was extended and Rule 266 of the Rules of 1996 came into being on 30.12.1996 whereby it was provided that higher Secondary Examination shall be the criteria for preparing the merit list. As such, as per the service rules, the selection should have been made on the basis of higher Secondary Examination marks and not on the basis of Secondary Examination marks. We regret this cannot be accepted. Once the advertisement has been issued on the basis of the cricular obtaining at the particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made ::: Uploaded on - 07/08/2015 ::: Downloaded on - 10/09/2015 19:58:20 ::: wp4358.14 7 subsequently."
9. It is also to be noted that there was no such stipulation in Government Resolution dated 05.08.2010 of giving maximum marks of 9 and minimum marks of 4. The selection process therefore having been held as per Government Resolution dated 05.08.2010 same could not have been faulted. Even otherwise it is to be noted that respondent no. 4 in her appeal had not raised a grievance of being unfairly treated by the members of the interview committee. Reliance is being placed on Government Resolution dated 15.09.2011 that is issued subsequent to selection of the petitioner.
10] In view of aforesaid it has to be held that the respondent no.1 was not justified in setting aside the selection of the petitioner vide order dated 16.05.2011. The process having been held in terms of Government Resolution dated 05.08.2010, the selection of the petitioner could not have been faulted. Therefore, the order dated 28.07.2014 passed by respondent no.1 cannot sustained. Same is accordingly set aside as a result of which the selection of the petitioner vide order dated 16.05.2011 stands confirmed. Rule made absolute in aforesaid terms. No costs.
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