Gujarat High Court
Pritiben Jayeshkumar Vankar vs District Development Officer District ... on 6 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1642/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1642 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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PRITIBEN JAYESHKUMAR VANKAR....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER DISTRICT ANAND &
3....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR KRUNAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1 - 3
NOTICE SERVED for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/08/2015
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Rule. Mr. Munshaw, the learned advocate waives service of notice of rule for and on behalf of the respondents Nos. 1, 2 and 3. The respondent No.4, although served with the notice issued by this Court, has chosen not to appear either in person or through an Advocate to oppose this application.
2. By this writ-application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
(a) Be pleased to admit and allow the present petition;
(b) Be pleased to issue a writ of mandamus and/or a writ in the nature of
mandamus and/or appropriate writ, order or direction, holding and declaring the action/inaction of the respondents in not declaring the result of the petitioner and other applicants who were interviewed on 28.1.2011 in pursuance of the advertisement dated 11.12.2010 issued by the respondent No.3 for the post of Anganwadi Worker only qua village Palaj, Taluka Petlad, Dist. Anand as well as the action of the respondent No.3 in issuing fresh advertisement dated 7.1.2012 qua the very post of Anganwadi Worker for the very village Palaj, as absolutely, arbitrary, unjust and improper;
(c) Be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or appropriate writ, order or direction, directing the respondent No.3 to declare the result of the petitioner and other applicants who were interviewed on 28.1.2011 in pursuance of the advertisement dated 11.12.2010 issued by the respondent No.3 for the post of Anganwadi Worker only qua village Palaj, Taluka Petlad, Dist. Anand as well as directing the respondents not to initiate any further Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Aug 07 02:27:33 IST 2015 C/SCA/1642/2012 CAV JUDGMENT proceedings qua advertisement dated 7.1.2012 with respect to appointment to the very post of Anganwadi Worker for the very village Palaj;
(d) Pending admission hearing and final disposal of the present petition, be pleased to direct the respondents to declare the result of the petitioner and other candidates who were interviewed on 28.1.2011 in pursuance of the advertisement dated 11.12.2010 issued by the respondent No.3 for the post of Anganwadi Worker only qua village Palaj, Taluka Petlad, Dist. Anand;
(e) Pending admission hearing and final disposal of present petition, be pleased to stay the further proceedings of appointment qua the advertisement dated 7.1.2012 issued by the respondent No.3 with respect to appointment to the very post of Anganwadi Worker for the very village Palaj;
3. The case of the petitioner may be summarized as under:-
3.1 The petitioner is a resident of village Palaj. She holds the qualifications of B.A and Diploma in Cooperative Management.
3.2 The respondent No.3 issued a public advertisement dated 11.12.2010 in the daily newspaper "Divya Bhaskar" for recruitment to 20 posts of the Anganwadi Workers and 10 posts of the Anganwadi Tedagars at the different villages under the ICDS Division I, Petlad. The petitioner applied for the post of Anganwadi Worker for the village Palaj. She applied with all the requisite documents required for the appointment and as prescribed in the advertisement. The petitioner had received the interview call letter dated 24th January, 2011 from the respondent No.3 about the interview, which were to be held on 28.1.2011. The interviews were conducted in respect of the said advertisement for the different posts at different villages.Page 3 of 9
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3.3 It is the case of the petitioner that except for the village Palaj, the respondent
No.3 appointed the Anganwadi Workers and Anganwadi Tedagars at all the other villages mentioned in the advertisement in the year 2011. It is her case that she waited anxiously to hear about the outcome of the interview for a period of about one year, but was surprised to learn that the respondent No.3 had issued a fresh advertisement dated 7.1.2012 for the post of Anganwadi Worker at the village Palaj.
The petitioner preferred an application dated 16.1.2012 to the respondent authorities under the Right to Information Act, 2005, asking for the information with respect to the reasons for cancelling the earlier interview taken by the Committee. Since the petitioner did not receive any information under the Act, 2005, she had to come before this Court with the present writ-application.
3.4 It appears that during the pendency of this writ-application, the petitioner received the information as demanded by her and she was informed that in all four persons were selected in the interview conducted on 28.11.2011 and the petitioner was at the serial No.1 in the said select list. It is her case that she demanded the copy of the select list, but the same was not provided to her. It is her case that the process of selection was not transparent and many candidates other than the respondent No.4 were favoured for some extraneous considerations.
4. Mr. Pandya, the learned advocate appearing for the petitioner vehemently submitted that there was no good reason for the authorities to cancel the result of the interview dated 28.1.2011 and issue a fresh advertisement. Mr. Pandya submitted that only with a view to accommodate the respondent No.4, a fresh advertisement was issued as the case of the respondent No.4 was not considered, as she had failed to furnish few relevant documents. Mr. Pandya submitted that if the authorities would have continued with the earlier round of recruitment, then probably the petitioner would have been selected for the post as in the select list of the four candidates, she was placed at the serial No.1. Mr. Pandya further submitted that his client was unable to apply afresh pursuant to the fresh advertisement, which was issued because by that Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Aug 07 02:27:33 IST 2015 C/SCA/1642/2012 CAV JUDGMENT time his client had crossed the requisite age prescribed in the advertisement. Mr. Pandya submitted that the appointment of the respondent No.4 deserves to be cancelled and the authorities be permitted to undertake the exercise of selection on the basis of the select list which was already prepared pursuant to the advertisement of the year 2010.
5. On the other hand, this writ-application has been opposed by Mr. Munshaw, the learned counsel appearing for the respondent No.1 - District Development Officer, Anand. Mr. Munshaw placed reliance on the affidavit in reply filed by the respondent No.1, inter-alia stating as under:-
"1. The respondent no.1 most respectfully craves leave to deny the averments and allegations made by the petitioner in the memo of Special Civil Application and submits that the same are baseless and far from truth and as such misleading. It is submitted that as such the Govt. of India has introduced a scheme known as Integrated Child Development Scheme and duly implemented by the State Govt. It is stated that the scheme is funded by the Govt. of India and State Government and administered by the State Govt. The respnt. no.1 craves leave to state that the Govt. of Gujarat through its Women and Child Development Dept. has issued a Govt. Resolution dated 13.11.09 framing Rules for the recruitment of Honorary Anganvadi Worker and Honorary Helper to operate Anganvadi. Through the said Govt. Resolution the norms and criteria duly determined for the eligibility as well as mode of appointment and a copy thereof is annexed as AnnexureA. It is stated that upper age limit fixed is of 33 years and other criteria are with regard to minimum educational qualifications, local candidature, procedure for recruitment, selection committee etc. In the instant case so far as village Palaj, Taluka Petlad is concerned and advertisement dated 11.12.10 was published for appointment of Honorary Anganvadi Worker for various Anganvadis operated in different villages of Taluka of Petlad. It is stated that the said advertisement included 2 posts for village Palaj as one post each of Honorary Anganvadi Worker was vacant in Amradevpura and Mota Faliya Anganvadi of village Palaj and a copy of advertisement is annexed as AnnexureB. The respnt. no.1 submits that in response to the said advertisement petitioner herein submitted her application along with necessary documents. The respnt. no.1 further submits that the petitioner as well as other applicants were called for interviews on 28.1.11 and the interviews of the applicants were held by the Committee constituted as per the Govt. Resolution Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Aug 07 02:27:33 IST 2015 C/SCA/1642/2012 CAV JUDGMENT dated 13.11.09.
2. The respnt. no.1 states that the interviews of in all 19 candidates of village Palaj were conducted by the committee and the Select List prepared by the respnt. no.3 was forwarded to the competent authority at Anand for approval but the same is not approved as candidature of Mrs. Sejalben Harshadbhai Vankar was not accepted and not called by the interview committee on the ground of incomplete application. The respnt. no.1 submits that in view of the facts that Mrs. Sejalben Harshadbhai Vankar was not called for interview the said Select List was not allowed to be operated by the higher authority.
3. The respnt. no.1 submits that considering the fact that 4 posts of Honorary Anganvadi Worker and one post of Honorary Tedagar are lying vacant in the Anganvadi of village Palaj it was thought fit to publish a fresh advertisement and accordingly new advertisement dated 7.1.12 is published and a copy thereof is annexed as AnnexureC. It is submitted that all the eligible candidates can apply afresh in response to the said advertisement.
The respnt. no.1 submits that the condition no.13 of the advertisement dated 11.12.10 empowers the committee to take appropriate decision on the issue of selection and the same is final and binding. It is further stated that the candidature of Mrs. Sejalben Harshadbhai Vankar was rejected on the ground of non production of School Leaving Certificate, Ration Card and Election Card of her father. It is pertinent to note that so far as merits are concerned Mrs. Sejalben Harshadbhai Vankar is more meritorious compared to the petitioner. The petitioner is holding a qualification of B.A. and Diploma in CoOperative Management while Mrs. Sejalben Harshadbhai Vankar is holding a qualification of M.A. It is stated that more qualified persons are always expected to be appointed as per the Govt. Resolution dated 13.11.09. In view of this the grievances of the petitioner herein are thoroughly baseless and far from truth and this Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."
6. Mr. Munshaw submitted that it is not in dispute that the petitioner was called for the interview and had appeared for the same. Mr. Munshaw also clarified that it is not in dispute that the respondent No.4 was not called for the interview as her application was rejected on account of non-furnishing of few relevant documents like school leaving certificate, ration card, election card etc. Mr. Munshaw pointed out Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Aug 07 02:27:33 IST 2015 C/SCA/1642/2012 CAV JUDGMENT that the select list, which was prepared by the respondent No.3 was not approved by the competent authority on the ground that the candidature of the respondent No.4 was wrongly rejected.
In such circumstances, and more particularly since four posts of the Anganwadi Workers and one post of the Anganwadi Tedakar were lying vacant at the village Palaj, it was thought fit to publish a fresh advertisement and undertake fresh recruitment. Mr. Munshaw further submitted that in terms of the qualifications, the respondent No.4 is a double graduate, whereas the petitioner is a graduate in Arts. He submitted that there being no merit in this writ-application, the same be rejected.
7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the reliefs prayed for in this writ-application.
8. I have no doubt in my mind that the process, which was undertaken for filling up the post of Anganwadi Workers at village Palaj was not transparent. From the affidavit of the District Development Officer itself it is very clear that the candidature of the respondent No.4 was rejected since she had not produced the relevant documents like ration card, school leaving certificate, election card etc. Along with the application, if the relevant documents are not annexed, then it is but obvious that the Authority concerned would be justified in rejecting the candidature irrespective of the fact whether she possessed higher qualifications or not, compared to the other candidates. I am also not able to understand why the authority concerned refused to consider the select list, which was sent for his approval. It appears that the select list had four names and the petitioner herein figured at serial No.1 There was no good reason not to accept the select list. It appears that since the select list was not approved, the respondent No.3 thought fit thereafter to issue a fresh advertisement and by the time the advertisement was issued, the petitioner herein had crossed the upper- age limit.
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9. It is true that by now almost three years have elapsed. It is also true that the respondent No.4 is serving as an Anganwadi Worker past three years. It is also true that mere inclusion of the name of the petitioner in the select list and figuring at the serial No.1 in the said select list by itself would not confer any indefeasible right of being appointed. At the same time, I should not shut my eyes to the gross illegality committed by the authority concerned. The manner in which the concerned authority refused to grant approval to the select list, which was prepared since the candidature of the respondent No.4 was rejected itself speaks volumes about the manner in which the respondent No.4 could manage the things at the relevant point of time. It was like giving an additional chance to the respondent No.4 to rectify the mistakes she had committed at the time when she had applied for the post. If she had failed to furnish the necessary documents, then her candidature was bound to be rejected and was rightly rejected. The authority concerned could not have raised any objection as to why the candidature of the respondent No.4 was rejected and further he should not have refused to approve the select list since the respondent No.4 was not there in the same. The respondent No.3 on the other hand was worried about the posts which were vacant and was in a hurry to fill-up the same and therefore, thought fit to issue a fresh advertisement. The issue of fresh advertisement gave a chance to the respondent No.4 to apply afresh and she got herself selected for the post, whereas the petitioner who was already in the select list at serial No.1 could not apply, as she had become age barred by that time.
At a point of time I thought fit to declare the entire selection process undertaken pursuant to the fresh advertisement as illegal and direct the authorities to undertake a fresh recruitment process, but such a writ would be a futile writ as the petitioner would not stand to gain anything out of the same. The only way to correct the illegalities committed by the authorities and to make them act according to law would be to cancel the appointment of the respondent No.4 and direct the authorities to proceed further in accordance with the earlier round of recruitment from the stage it had stopped i.e. from the stage the select list prepared by the respondent No.3 was sent for the approval of the higher authority. My decision may appear quite harsh and Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Aug 07 02:27:33 IST 2015 C/SCA/1642/2012 CAV JUDGMENT unprecedented. However, if I overlook the arbitrariness it will result in precipitating the patent illegality. It appears that the authority concerned held the respondent No.3 on ransom and saw to it that the select list was not approved unless and until the respondent No.4 figured in the same. As it was not possible for the respondent No.3 to include the respondent No.4 in the select list since her candidature was rightly rejected, the respondent No.3 found out an easy way of cancelling the earlier recruitment and issuing a fresh advertisement.
10. In the result, this writ-application is allowed. The appointment of the respondent No.4 to the post of Anganwadi Worker at the village Palaj is ordered to be quashed and set aside. The respondent authorities are directed to proceed further in accordance with law with the earlier select list prepared pursuant to the advertisement dated 11.12.2010. This exercise shall be completed within a period of four weeks from the date of receipt of the writ of the order. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.)
Mohandas
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