Gujarat High Court
Multani Salmaben Harunbhai vs State Of Gujarat & 4 on 1 February, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/15/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 15 of 2016
In
SPECIAL CIVIL APPLICATION NO. 10655 of 2015
With
CIVIL APPLICATION NO. 120 of 2016
In
LETTERS PATENT APPEAL NO. 15 of 2016
==========================================================
MULTANI SALMABEN HARUNBHAI....Appellant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
==========================================================
Appearance:
MR HARDIK D MUCHHALA, ADVOCATE for the Appellant(s) No. 1
MR DM DEVNANI, AGP for the Respondent(s) No. 1 , 4
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2 , 5
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/02/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this Letters Patent Appeal filed under Clause 15 of the Letters Patent, the appellantoriginal petitioner seeks to challenge the order dated 03.07.2015 passed by the learned single Judge in Special Civil Application No.10655 of 2015 whereby, the said petition has Page 1 of 7 HC-NIC Page 1 of 14 Created On Sat Aug 12 20:55:59 IST 2017 1 of 14 C/LPA/15/2016 ORDER been dismissed.
2. It is the case of the petitioner that respondent no.3 issued an Advertisement for appointment of Aanganwadi Workers / Helpers at its Dhari Center. The petitioner applied for the Post at Aanganwadi Center situated at Village Govindpura, Taluka Dhari, District Amreli. The petitioner was issued the Interview letter dated 02.08.2014 by respondent no.3. After undergoing the selection process, the name of the petitioner was placed at Sr. No.1 of the merit list prepared by respondent no.3. However, the respondent authority granted appointment to respondent no.5 herein.
3. It is the say of the petitioner that she received information under the Right to Information Act that respondent no.5 had been selected on the Post in question though she was found to be less meritorious than the petitioner herein as she was placed at Sr. No.2 in the merit list. The petitioner, therefore, filed the captioned petition before the learned single Judge seeking the following reliefs;
"(A) Your Lordships may be pleased to admit and allow the present petition;
(B) Your Lordships may be pleased to issue a Page 2 of 7 HC-NIC Page 2 of 14 Created On Sat Aug 12 20:55:59 IST 2017 2 of 14 C/LPA/15/2016 ORDER writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the decision taken by the respondent authorities below merit list whereby the petitioner's name was placed in waiting list in spite of the fact that the petitioner stood first in the merit list and satisfied all the criteria as per the Government Resolution dated 13.11.2009 - Ann.B. (C) Your Lordships may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction to the respondent authorities directing them to consider the case of the petitioner for the post of Anganwadi Helper in Aanganwadi Center of Village Govindpur, Taluka Dhari, District Amreli in view of the merit list at Ann.A. (D) to (G) ...."
4. By the impugned order, lhe learned single Judge dismissed the petition and therefore, the present appeal is filed.
5. Heard learned advocate Mr. H.D. Muchhala for the appellantpetitioner and learned advocate Mr. H.S. Munshaw for respondent no.3. Though served, none appears on behalf of respondent no.5.
6. Learned advocate for the petitioner mainly contended that though the petitioner was more meritorious than respondent no.5, the respondent authorities denied her appointment and instead Page 3 of 7 HC-NIC Page 3 of 14 Created On Sat Aug 12 20:55:59 IST 2017 3 of 14 C/LPA/15/2016 ORDER granted appointment to respondent no.5. It is submitted that the reason that weighed with the learned single Judge was that respondent no.5 had the experience of working in a playschool. However, no such reason was assigned by the respondent no.3authority while denying appointment to the petitioner.
6.1 It is submitted that respondent no.5, who was appointed as Aanganwadi Worker / Helper, resigned from service by addressing letter of resignation dated 01.03.2016. Therefore, the case of the petitioner could now be considered for appointment.
7. On the other hand, learned advocate Mr. H.S. Munshaw appearing for respondent no.2 submitted that the Government of Gujarat, through its Women and Child Welfare Department, has issued the Government Resolution dated 13.11.2009 laying down the norms for selection of Aanganwadi Workers / Helpers in the State. Every detail relating to age, educational qualification, selection procedure, place of appointment, etc. have been provided in the said Resolution. It was submitted that respondent no.5 had applied for the Aanganwadi Center at Village Govindpur having Code No.09. The Committee constituted as per the Government Resolution dated 13.11.2009 found that Page 4 of 7 HC-NIC Page 4 of 14 Created On Sat Aug 12 20:55:59 IST 2017 4 of 14 C/LPA/15/2016 ORDER the petitioner was not a resident of the gamtal area where the Aanganwadi Center bearing Code No.09 was situated. As against that, respondent no.5 was found to be a resident of the gamtal area of Village Govindpur. Therefore, respondent no.5 was selected for the said Post though the petitioner was holding higher educational qualification.
8. Learned advocate Mr. Munshaw referred to Clause 3 of the Government Resolution dated 13.11.2009, which provided that the candidate must be a married woman residing in the same suburb / falia or ward where the Aanganwadi Center is situated. It is submitted that the petitioner was not a resident of the same suburb / falia or ward where the Aanganwadi Center is situated and therefore, she was denied appointment. Hence, no illegality is committed by the respondent no.3.
9. During the course of hearing, under the instructions of respondent no.3, learned advocate Mr. Munshaw submitted that there are 03 (Three) Aanganwadi Centers at Village Govindpur and that respondent no.5 was selected since she was a resident of the same ward. However, learned advocate Mr. Munshaw fairly submitted that respondent no.5 has resigned from service in Page 5 of 7 HC-NIC Page 5 of 14 Created On Sat Aug 12 20:55:59 IST 2017 5 of 14 C/LPA/15/2016 ORDER March 2016 and presently, the post is lying vacant.
10. We have considered the submissions advanced on behalf of learned advocates appearing for the parties and have gone through the material produced on record. It appears from the record that the Advertisement was issued for appointment of Aanganwadi Workers / Helpers at the Aanganwadi Centers situated at Village Govindpur. It is not in dispute that the petitioner was possessing higher educational qualification than respondent no.5. However, respondent no.5 was appointed since she was a resident of the same ward / suburb for which the advertisement was issued. It transpires from the record that the petitioner is a resident of the same Village but, not of the same ward for which the advertisement was issued. In view of the aforesaid aspect, the respondent no.3authority was justified in granting appointment to respondent no.5. However, since it has come on record that respondent no.5 has resigned from the post in question and the post is lying vacant as on date and since the petitioner is otherwise found to be eligible as she was possessing higher educational qualification, her case could be considered for appointment on the vacant post.
Page 6 of 7HC-NIC Page 6 of 14 Created On Sat Aug 12 20:55:59 IST 2017 6 of 14 C/LPA/15/2016 ORDER
11. In view of the above, we dispose of the appeal with a direction that if the petitioner makes a representation to the District Development Officer, Amreli requesting to grant her appointment on the post of Aanganwadi Worker / Helper at the Aanganwadi Center situated at Village Govindpur, which is lying vacant in pursuance of the resignation tendered by respondent no.5, within a period of Three Weeks from today, the said authority shall consider the same and pass appropriate orders thereon, within a period of five weeks thereafter and communicate its decision to the petitioner. In view of the above, the impugned order dated 03.07.2015 passed by the learned single Judge is set aside. With the above direction, the Letters Patent Appeal as well as Civil Application stand disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Pravin/* Page 7 of 7 HC-NIC Page 7 of 14 Created On Sat Aug 12 20:55:59 IST 2017 7 of 14 C/LPA/15/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 15 of 2016 In SPECIAL CIVIL APPLICATION NO. 10655 of 2015 With CIVIL APPLICATION NO. 120 of 2016 In LETTERS PATENT APPEAL NO. 15 of 2016 ========================================================== MULTANI SALMABEN HARUNBHAI....Appellant(s) Versus STATE OF GUJARAT & 4....Respondent(s) ========================================================== Appearance:
MR HARDIK D MUCHHALA, ADVOCATE for the Appellant(s) No. 1 MR DM DEVNANI, AGP for the Respondent(s) No. 1 , 4 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 2 , 5 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 01/02/2017 ORAL ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this Letters Patent Appeal filed under Clause 15 of the Letters Patent, the appellantoriginal petitioner seeks to challenge the order dated 03.07.2015 passed by the learned single Judge in Special Civil Application No.10655 of 2015 whereby, the said petition has Page 1 of 7 HC-NIC Page 8 of 14 Created On Sat Aug 12 20:55:59 IST 2017
8 of 14 C/LPA/15/2016 ORDER been dismissed.
2. It is the case of the petitioner that respondent no.3 issued an Advertisement for appointment of Aanganwadi Workers / Helpers at its Dhari Center. The petitioner applied for the Post at Aanganwadi Center situated at Village Govindpura, Taluka Dhari, District Amreli. The petitioner was issued the Interview letter dated 02.08.2014 by respondent no.3. After undergoing the selection process, the name of the petitioner was placed at Sr. No.1 of the merit list prepared by respondent no.3. However, the respondent authority granted appointment to respondent no.5 herein.
3. It is the say of the petitioner that she received information under the Right to Information Act that respondent no.5 had been selected on the Post in question though she was found to be less meritorious than the petitioner herein as she was placed at Sr. No.2 in the merit list. The petitioner, therefore, filed the captioned petition before the learned single Judge seeking the following reliefs;
"(A) Your Lordships may be pleased to admit and allow the present petition;
(B) Your Lordships may be pleased to issue a Page 2 of 7 HC-NIC Page 9 of 14 Created On Sat Aug 12 20:55:59 IST 2017 9 of 14 C/LPA/15/2016 ORDER writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the decision taken by the respondent authorities below merit list whereby the petitioner's name was placed in waiting list in spite of the fact that the petitioner stood first in the merit list and satisfied all the criteria as per the Government Resolution dated 13.11.2009 - Ann.B. (C) Your Lordships may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction to the respondent authorities directing them to consider the case of the petitioner for the post of Anganwadi Helper in Aanganwadi Center of Village Govindpur, Taluka Dhari, District Amreli in view of the merit list at Ann.A. (D) to (G) ...."
4. By the impugned order, lhe learned single Judge dismissed the petition and therefore, the present appeal is filed.
5. Heard learned advocate Mr. H.D. Muchhala for the appellantpetitioner and learned advocate Mr. H.S. Munshaw for respondent no.3. Though served, none appears on behalf of respondent no.5.
6. Learned advocate for the petitioner mainly contended that though the petitioner was more meritorious than respondent no.5, the respondent authorities denied her appointment and instead Page 3 of 7 HC-NIC Page 10 of 14 Created On Sat Aug 12 20:55:59 IST 2017 10 of 14 C/LPA/15/2016 ORDER granted appointment to respondent no.5. It is submitted that the reason that weighed with the learned single Judge was that respondent no.5 had the experience of working in a playschool. However, no such reason was assigned by the respondent no.3authority while denying appointment to the petitioner.
6.1 It is submitted that respondent no.5, who was appointed as Aanganwadi Worker / Helper, resigned from service by addressing letter of resignation dated 01.03.2016. Therefore, the case of the petitioner could now be considered for appointment.
7. On the other hand, learned advocate Mr. H.S. Munshaw appearing for respondent no.2 submitted that the Government of Gujarat, through its Women and Child Welfare Department, has issued the Government Resolution dated 13.11.2009 laying down the norms for selection of Aanganwadi Workers / Helpers in the State. Every detail relating to age, educational qualification, selection procedure, place of appointment, etc. have been provided in the said Resolution. It was submitted that respondent no.5 had applied for the Aanganwadi Center at Village Govindpur having Code No.09. The Committee constituted as per the Government Resolution dated 13.11.2009 found that Page 4 of 7 HC-NIC Page 11 of 14 Created On Sat Aug 12 20:55:59 IST 2017 11 of 14 C/LPA/15/2016 ORDER the petitioner was not a resident of the gamtal area where the Aanganwadi Center bearing Code No.09 was situated. As against that, respondent no.5 was found to be a resident of the gamtal area of Village Govindpur. Therefore, respondent no.5 was selected for the said Post though the petitioner was holding higher educational qualification.
8. Learned advocate Mr. Munshaw referred to Clause 3 of the Government Resolution dated 13.11.2009, which provided that the candidate must be a married woman residing in the same suburb / falia or ward where the Aanganwadi Center is situated. It is submitted that the petitioner was not a resident of the same suburb / falia or ward where the Aanganwadi Center is situated and therefore, she was denied appointment. Hence, no illegality is committed by the respondent no.3.
9. During the course of hearing, under the instructions of respondent no.3, learned advocate Mr. Munshaw submitted that there are 03 (Three) Aanganwadi Centers at Village Govindpur and that respondent no.5 was selected since she was a resident of the same ward. However, learned advocate Mr. Munshaw fairly submitted that respondent no.5 has resigned from service in Page 5 of 7 HC-NIC Page 12 of 14 Created On Sat Aug 12 20:55:59 IST 2017 12 of 14 C/LPA/15/2016 ORDER March 2016 and presently, the post is lying vacant.
10. We have considered the submissions advanced on behalf of learned advocates appearing for the parties and have gone through the material produced on record. It appears from the record that the Advertisement was issued for appointment of Aanganwadi Workers / Helpers at the Aanganwadi Centers situated at Village Govindpur. It is not in dispute that the petitioner was possessing higher educational qualification than respondent no.5. However, respondent no.5 was appointed since she was a resident of the same ward / suburb for which the advertisement was issued. It transpires from the record that the petitioner is a resident of the same Village but, not of the same ward for which the advertisement was issued. In view of the aforesaid aspect, the respondent no.3authority was justified in granting appointment to respondent no.5. However, since it has come on record that respondent no.5 has resigned from the post in question and the post is lying vacant as on date and since the petitioner is otherwise found to be eligible as she was possessing higher educational qualification, her case could be considered for appointment on the vacant post.
Page 6 of 7HC-NIC Page 13 of 14 Created On Sat Aug 12 20:55:59 IST 2017 13 of 14 C/LPA/15/2016 ORDER
11. In view of the above, we dispose of the appeal with a direction that if the petitioner makes a representation to the District Development Officer, Amreli requesting to grant her appointment on the post of Aanganwadi Worker / Helper at the Aanganwadi Center situated at Village Govindpur, which is lying vacant in pursuance of the resignation tendered by respondent no.5, within a period of Three Weeks from today, the said authority shall consider the same and pass appropriate orders thereon, within a period of five weeks thereafter and communicate its decision to the petitioner. In view of the above, the impugned order dated 03.07.2015 passed by the learned single Judge is set aside. With the above direction, the Letters Patent Appeal as well as Civil Application stand disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Pravin/* Page 7 of 7 HC-NIC Page 14 of 14 Created On Sat Aug 12 20:55:59 IST 2017 14 of 14