Sobhnaben vs Additional on 28 April, 2011

[Cites 6, Cited by 0]

Gujarat High Court

Sobhnaben vs Additional on 28 April, 2011

Mr. Maulik G. Nanavati, learned Assistant Government Pleader waives service of Notice of Rule for respondents Nos.1 and 2, Mr. H.S. Munshaw, learned advocate waives service of Notice of Rule for respondents Nos.4 and 5. Respondents Nos.3 and 6 have been served, but have chosen not to put in an appearance before this Court. On the facts, and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided.

2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has challenged the action of respondents Nos.4 and 5, of not promoting her to the post of Mukhya Sevika, and in promoting respondent No.6 to the said post by order dated 09.09.2010, in spite of the fact that respondent No.6 is junior to the petitioner. It is prayed, inter alia, that the petitioner be promoted notionally as Mukhya Sevika, and be declared senior to respondent No.6.

3. Precisely stated, the relevant facts of the case are that the petitioner was appointed as an Anganwadi Worker on 01.04.1991, after following due procedure. The petitioner has the educational qualification of having passed the First Year of the Bachelor of Arts degree course, whereas respondent No.6 has passed the 12th standard. The date of appointment of the petitioner as Anganwadi Worker is 01.04.1991, whereas respondent No.6 has been appointed as such, on 19.07.1991. In the list of Anganwadi Workers prepared for the purpose of appointment as Mukhya Sevikas, annexed at Annexure-'A' to the petition, the name of the petitioner figures at Serial No.12, whereas that of respondent No.6 is at Serial No.21. In the said list, the petitioner has been allotted 34 marks for her educational qualifications, whereas respondent No.6 has been given 33 marks. According to the petitioner, she has the experience of 19 years as an Anganwadi Worker, which is more than the experience possessed by respondent No.6. As both the petitioner and respondent No.6 are serving as Anganwadi Workers in Bavla Taluka of Ahmedabad District, it is the assertion of the petitioner that in the event of promotion to the post of Mukhya Sevika, she, being senior and more meritorious, should have been considered for promotion before respondent No.6. However, respondents Nos.4 and 5 have promoted respondent No.6 instead of the petitioner, on the purported ground that the said respondent is elder in age to the petitioner. The grievance of the petitioner is that she has been deprived of promotion as Mukhya Sevika although she is senior to respondent No.6, in contravention of the Government Policy, and for extraneous reasons. The representation dated 15.09.2010 made by the petitioner to respondents Nos.4 and 5 has fallen upon deaf ears, therefore, she is constrained to invoke the extraordinary jurisdiction of this Court.

4. On behalf of the petitioner, Mr. Digant P. Joshi, learned advocate, has forcefully submitted that not only is the action of the concerned respondents in ignoring the petitioner for promotion and promoting respondent No.6 who is junior to her, highly unjust and arbitrary, it is also in contravention of the Government Policy, which the respondents are bound to follow. That the respondents do not deny that the petitioner is senior to respondent No.6, however, they have left out the petitioner for extraneous reasons by adopting a mode and method that is dehors the guidelines and policy formulated by the Government. Respondents Nos.4 and 5 have not placed any policy of the Government on record which stipulates that a junior Anganwadi Worker can be promoted as Mukhya Sevika by ignoring her senior. On the contrary, the Government Resolution dated 13.12.2005 lays down guidelines for the Selection Committee which clearly stipulate that the merit-list for selection and appointment of Mukhya Sevikas should be prepared on the basis of seniority. As such, the action of the respondents, is absolutely illegal and arbitrary and, therefore, directions may be issued to promote the petitioner, with effect from 09.09.2010.

5. Mr. Maulik G. Nanavati, learned Assistant Government Pleader has submitted that the State Government is not directly involved in the process of selection and promotion of Mukhya Sevikas, and it is respondents Nos.4 and 5 who are directly involved. It is, however, submitted that looking to the contents of Government Resolution dated 13.12.2005, which lays down guidelines to the effect that the list for selection and appointment as Mukhya Sevika should be made as per seniority, it appears that the action of respondents Nos.4 and 5, in promoting the junior of the petitioner, is not in accordance with the Government Policy.

6. The petition has been contested by Mr. H.S. Munshaw, learned advocate, on behalf of respondents Nos.4 and 5. It is submitted that the petitioner was born on 29.05.1968, whereas respondent No.6 was born on 01.03.1967; therefore, respondent No.6 is elder in age to the petitioner. The upper age limit for eligibility to the post of Mukhya Sevika being 45 years, it would have been the last chance for respondent No.6 to be promoted to the said post, therefore, respondent No.6 has been promoted instead of the petitioner. It is further submitted that the Selection Committee has awarded 34 marks each to both the petitioner and respondent No.6. The petitioner is not entitled for more marks for the qualification of First Year B.A., as there is no provision for the same. It is submitted that as both the petitioner and respondent No.6 have been awarded equal marks, there are no extraneous considerations as alleged, and the only consideration that has weighed with the Selection Committee is that respondent No.6 is elder in age to the petitioner, therefore, she has been promoted as per the Government Policy.

7. I have heard the learned counsel for the respective parties, considered the submissions advanced by them, and perused the material on record.

8. The question that arises for determination before this Court is whether the action of the concerned respondents in ignoring the petitioner for promotion to the post in question and promoting respondent No.6, who is junior to her, on the ground that respondent No.6 is elder in age to the petitioner, is in accordance with law and the prevailing Government Policy ?

9. In order to answer this question and decide the issue involved in the petition, it would be pertinent to refer to the contextual background of the case. The Union of India has evolved a scheme known as the "Integrated Child Development Scheme" (ICDS) which is prevailing throughout the country, and is being implemented through the respective State Governments. The beneficiaries of the scheme are young children, women and pregnant women. This scheme is being implemented by the Government of Gujarat through the District Panchayats, as per guidelines, norms, rules and regulations issued by the Government of Gujarat and Union of India, from time to time. As a part of this scheme, Anganwadis are established at the rural level for the beneficiaries, and Anganwadi Workers and Helpers are selected and appointed on honorary basis. They are paid honorarium out of the funds provided by the State Government, as received from the Union of India for this purpose. For the smooth implementation of the scheme, the State Government has established a hierarchy and, accordingly, the post of Mukhya Sevika (Class-III) has been created for the said purpose. The State Government has framed Rules in exercise of powers conferred by Section 227, read with Section 274 of the Gujarat Panchayats Act, 1993, for regulating recruitment to the post of Mukhya Sevika, Class-III, in the Panchyat Services. The said Rules are known as The Mukhya Sevika, Class-III (Panchayat Service), Recruitment Rules, 2004 ('the Rules' for short). As per the said Rules, appointment to the post of Mukhya Sevika shall be made either by direct selection or by nomination from amongst Anganwadi Workers, in the ratio of 1:1. In the present case, the latter method of appointment is in issue. Rules 4 and 5 are relevant, and are being reproduced hereinbelow:-

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

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

(b) have passed Secondary School Certificate Examination with eleventh month's training of Bal Sevika and have at least ten years experience as an Anganwadi Worker under the integrated Child Development Services Programme;

(c) have adequate knowledge of Gujarati and Hindi.

5. The Nomination shall be made by the Gujarat District Panchayat Service Selection Committee."

10. Further, the State Government, through the Women and Child Development Department, has issued Government Resolution dated 13.12.2005. The said Resolution, apart from the mode of selection by direct recruitment, refers to appointment to the post of Mukhya Sevika by nomination, from amongst Anganwadi Workers who are eligible as per the Rules. It is stated in the said Resolution that in order to fill up the posts of Mukhya Sevika by nomination, The District Panchayat Services Selection Committee ('the District Selection Committee' for short) is to carry out the process of selection. Detailed guidelines for the District Selection Committee, delineating the procedure to be followed for selection and nomination of Anganwadi Workers, have been laid down. As per clause 2 of the Resolution, the District Programme Officer shall prepare a list of Anganwadi Workers, taking into account the eligibility criteria mentioned therein and submit it to the District Selection Committee. It is clearly stipulated in clause 4 thereof that upon receipt of the list of Anganwadi Workers, the District Selection Committee shall prepare a list "as per seniority". Thereafter, nominations for the post of Mukhya Sevika are to be made according to the select-list prepared by the District Selection Committee.

11. The stand of respondent No.4(District Development Officer, and respondent No.5 (District Programme Officer), as emerging from the submissions advanced at the Bar by Mr. H.S. Munshaw, learned advocate, on their behalf and as stated in the affidavit-in-reply filed by respondent No.5 is that, both the petitioner and respondent No.6 have been awarded 34 marks each, for their educational qualifications, but respondent No.6 has been promoted as she is elder in age. A list of 20 names for nomination as Mukhya Sevika from amongst Anganwadi Workers has been prepared by respondent No.5 which is annexed at Annexure-'C' to the affidavit-in-reply. This document shows that both the petitioner and respondent No.6 have been awarded equal marks. The petitioner has not been awarded more marks on the ground of having passed the First Year Bachelor of Arts degree course. In the select-list at Annexure-'C', the name of respondent No.6 has been shown at Serial No.13, whereas that of the petitioner is shown below her, at Serial No.16. The date of appointment of the petitioner is shown as 01.04.1991 and that of respondent No.6 as 19.07.1991. These facts are not disputed, and it is apparent therefrom that the petitioner has been appointed as Anganwadi Worker prior to respondent No.6, and is senior to her as per the date of appointment. However, the only justification rendered for the selection and appointment of respondent No.6, as stated in paragraph 4 of the affidavit-in-reply, makes interesting reading. The relevant extract is reproduced hereinbelow:-

"At this stage it is pertinent to note that though the respnt. no.6 and the petitioner have secured equal marks, respnt. no.6 is shown at no.13 only because she was elder to the petitioner in age as she was born on 1.3.67 while the petitioner was born on 29.5.68. The Respnt. No.5 submits that the impugned decision was taken as per the Govt. Policy." (emphasis supplied).

12. During the course of hearing of the petition, more specifically by order dated 06.04.2011 of this Court, the learned advocate for respondents Nos.4 and 5 had been asked to make good the above-quoted averments by producing the Government Policy which stipulates that a junior employee is to be promoted over and above a senior employee only on the ground of being elder in age. However, the learned advocate for respondents Nos.4 and 5 is unable to produce the said Policy/Rule/Regulation/Government Resolution, presumably, because none exists. In the considered view of this Court, it is extremely unfortunate that a wrong statement has been made in the affidavit-in-reply, merely to justify an action which is, on the face of it, not in accordance with law, solely with a view to defeat the legitimate claim of the petitioner, by misleading the Court.

13. It has been submitted by Mr. Munshaw that the members of the Selection Committee have considered the fact that respondent No.6 is elder in age to the petitioner, and as the age limit prescribed by the Rules for appointment as Mukhya Sevika is 45 years, this would be the last chance for respondent No.6 to get such appointment. This submission deserves outright rejection. The Government Resolution dated 13.12.2005 clearly stipulates that the District Selection Committee is to prepare the select-list as per seniority. It is nowhere mentioned that the list is to be prepared on the basis of the dates of birth of the Anganwadi Workers. When the Government has issued a Resolution by prescribing norms for the purpose of regulating the procedure to be followed by the District Selection Committee while nominating Anganwadi Workers for appointment as Mukhya Sevikas, the District Selection Committee, and all concerned in the entire process of selection and appointment, are bound to follow the norms laid down in the said Government Resolution.

14. In the present case, it is apparent that the District Selection Committee has clearly, for reasons best known to its members, acted in breach of clause 4 of the Government Resolution dated 13.12.2005, by ignoring the seniority of the petitioner. The contention of the learned advocate for respondents Nos.4 and 5 that this would be the last chance for respondent No.6, as the age limit prescribed by the Rules is 45 years, can also be made applicable to the case of the petitioner. Admittedly, the petitioner is senior to respondent No.6 as per the date of appointment as Anganwadi Worker. As per Government Resolution dated 13.12.2005, the name of the petitioner ought to have figured above that of respondent No.6 in the select-list prepared by the District Selection Committee, for the purpose of nomination as Mukhya Sevika. Had the prescribed norms been followed, the petitioner would have been appointed as Mukhya Sevika before respondent No.6. However, it is clear from order dated 09.09.2010, whereby 13 Mukhya Sevikas have been appointed, that the name of the petitioner does not figure in the list shown in the said order, whereas the name of respondent No.6 is mentioned therein. It is, therefore, clear from the material on record that though the petitioner deserves to be considered for nomination as Mukhya Sevika in view of her seniority as per Government Resolution dated 13.12.2005, she has been deprived of her chance of appointment as such, for reasons that do not appear to have any legal legitimacy. The upper age limit being 45 years, the petitioner may, or may not, get another chance for appointment as Mukhya Sevika. Moreover, the justification offered by respondents Nos.4 and 5 that respondent No.6 has been appointed as she is elder in age to the petitioner, has no legal basis, whatsoever. What is all the more disturbing is the statement made by respondent No.5 in the affidavit-in-reply filed by him, that the decision to appoint respondent No.6 has been taken "as per the Government Policy".

In spite of opportunity to produce such a Government Policy, none has been placed on the record of the case. Undoubtedly, the District Selection Committee has acted in total contravention of the norms prescribed in Government Resolution dated 13.12.2005, while preparing the select-list, insofar as the petitioner and respondent No.6 are concerned. The respondents Nos.4 and 5 are, therefore, wrong in taking the stand that the said action is as per Government Policy, when Government Resolution dated 13.12.2005, states to the contrary.

15. It is well settled that a thing must be done in the manner provided for, in the statute. In Gujarat Urja Vikas Nigam Limited Vs. Essar Power Limited, (2008) 4 SCC 755, wherein the Supreme Court has held as under:-

"35. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, [vide Chandra Kishore Jha vs. Mahavir Prasad (SCC para 17 : AIR para 12), Dhanajaya Reddy vs. State of Karnataka (SCC para 23 : AIR para 22), etc.]. Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred."

16. In Hukam Chand Shyam Lal Vs. Union of India, AIR 1976 SC 789, the Supreme Court has held that:

"18.

It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice."

17. The above dicta of the Supreme Court would be applicable to the present case. When the Government Resolution has prescribed norms and laid down the procedure that is to be followed by the District Selection Committee, the selection ought to have been made in consonance with those norms, and the prescribed procedure ought to have been followed. It was not open to the District Selection Committee to evolve any other mode or method for selection, for reasons best known to it, in contravention of the prescribed procedure. Such action of the concerned respondents clearly smacks of arbitrariness and gives rise to the inference that a "pick and choose" policy has been adopted by them, in colourable exercise of power.

18. The concerned respondents are duty bound to conduct the process of selection as per Rules/ Regulations/norms/procedure. In the absence of Rules, the prevailing executive instructions in the shape of Government Resolution dated 13.12.2005, would hold the field. The District Selection Committee was bound to ensure that the said norms are enforced. This has not been done in the present case.

19. It is an admitted position that the petitioner, who has been appointed as Anganwadi Worker on 01.04.1991, is senior to respondent No.6 who has been appointed, as such, on 19.07.1991. In view of clause 4 of Government Resolution dated 13.12.2005, which stipulates that the select-list is to be prepared as per seniority, the action of the concerned respondents in appointing respondent No.6 as Mukhya Sevika by ignoring the seniority of the petitioner, on the ground that respondent No.6 is elder in age to the petitioner, and depriving the petitioner of consideration for such appointment, is clearly unjust, arbitrary and unsustainable in law.

20. For reasons stated hereinabove, the petition, has merit and deserves to be allowed. It is, accordingly, allowed.

21. The respondents are directed to consider the petitioner for promotion as Mukhya Sevika with effect from 09.09.2010, by placing her at the correct place above respondent No.6 in the select-list prepared by the District Selection Committee. The process shall be completed, and necessary orders issued, within a period of 15 days from the date of receipt of the writ of this Court.

22. Rule is made absolute, in the above terms. Respondents Nos.4 and 5 shall pay costs of Rs.5,000/-(Rupees Five Thousand) to the petitioner, within a period of 15 days from today, which may be recovered from the erring Officers, including members of the District Selection Committee, by fixing responsibility.

(Smt. Abhilasha Kumari, J.) Safir* Top

Unlock Advanced Research with PRISMAI

Gujarat High Court