C/SCA/18157/2016 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 18157 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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1Whether Reporters of Local Papers may be allowed

to see the judgment ?

2To be referred to the Reporter or not ?

3Whether their Lordships wish to see the fair copy

of the judgment ?

4Whether 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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BARIA ASMITABEN BHAILALBHAI

Versus

STATE OF GUJARAT & 7 other(s)

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Appearance:

MR KB PUJARA(680) for the Petitioner(s) No. 1

MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the

Respondent(s) No. 1,3,8

MAHAVIR M GADHVI(8025) for the Respondent(s) No. 6

MR KETAN BHATT, ADVOCATE FOR MR AJ YAGNIK(1372) for the

Respondent(s) No. 4

NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,5,7

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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

Date : 23/03/2021

ORAL JUDGMENT

1.With the consent of learned advocates appearing for the

respective parties, the matter is taken up for final hearing.

2.Issue Rule, Mr. Rohan Shah, learned Assistant Government

Pleader, waives service of notice of Rule on behalf of respondent nos. 1

to 3, Mr. Ketan Bhatt, learned advocate for Mr. A.J.Yagnik, learned

advocate waives service of notice of Rule on behalf of respondent nos.

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4 and 5 and Mr. Mahavir Gadhavi, learned advocate, waives service of

notice of Rule on behalf of respondent nos. 6 and 7.

3.By this petition, inter alia, under Article 226 of the Constitution of

India, the petitioner has sought for direction to the respondents - State

authorities to provide reservation for widow on 5% of the vacancies of

the posts in the recruitment of Female Health Workers under the District

Panchayats, similar to the reservation provided for widow in the

admissions to the training course of 1 ½ year for certificate in Auxiliary

Nurse – Midwives.

4.The facts, in brief, are as under:

4.1The petitioner belongs to a Socially and Educationally Backward

Class (hereinafter referred to as “the SEBC”) and has passed her

Higher Secondary Certificate Examination in the month of March 2005.

Petitioner is a widow, as her husband has expired on 14.07.2008, in

railway accident.

4.2According to the petitioner, as per the policy of the State

Government, the admissions are granted to the General Nursing and

Midwifery and Auxiliary Nurses and Midwives course under the

Centralized Admission System by the Admission Committee for

Professional Medical Education courses in Government, Municipal,

E.S.I.C. and Self-Financed Nursing Institutes or schools in the State of

Gujarat and one seat is reserved for widow in each school having intake

of 20 candidates. The petitioner, therefore, had applied for admission as

a widow and was selected for the specified training course of Female

Health Worker and was admitted in Auxiliary Nursing Midwife school,

Referral Hospital and C.H.C., Chhotaudepur. The duration of the

training course was from 30.5.2011 to 29.11.2012. After completing her

course, the petitioner passed the examination and has been registered

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at no. F-1-8720 with the Gujarat Nursing Council.

4.3In the years 2013-14, the District Panchayat Service Selection

Committee, Dahod issued an advertisement no.DPSSC 18/2013-14/4

for 61 vacancies of Female Health Worker (Class-III). Similarly, the

District Panchayat Service Selection Committee, Narmada also had

issued an advertisement no.DPSSC 20/2015-16/4 for 12 vacancies of

Female Health Worker (Class-III). In response to both the said

advertisements the petitioner had applied; however, in absence of any

reservation provided for widow, she was not selected. The petitioner,

being aggrieved by the non-prescription of reservation for widow

candidate, has preferred captioned writ petition.

5. Mr. K.B.Pujara, learned advocate appearing for the petitioner,

submitted that the admissions are granted to the General Nursing and

Midwifery and Auxiliary Nurses and Midwives Course in the various

institutions and one seat is reserved for widow candidate in each

school having intake of 20 candidates. The petitioner had applied for

such admission as a widow and was accordingly selected. After

completion of training and passing the necessary examination for

certificate in Auxiliary Nurse Midwives conducted by the Gujarat Nursing

Council, she was registered with it. It is further submitted that so far as,

the advertisements issued by the respective Panchayats are concerned,

there is no reservation for widow and therefore the petitioner could not

get selected.

5.1 It is next submitted that owing to the non-selection of the

petitioner, she had made several representations to the authorities

concerned with a request to provide reservation; however, the request

of the petitioner had fallen on deaf ears. While getting admission in

training courses of female health workers there is a provision for

reservation for widow, there ought to have reservation in the

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recruitments as well. The objective behind providing reservation for

widow is with a view to seeing that the widow candidates with less

merits get admission; however, such reservation has not been provided

at the stage of recruitment and therefore, the candidates lose the

chance of selection, so also the appointment because of their less

merits. Hence, the reservation for widow provided at the time of

admission renders meaningless and the purpose behind it stands

frustrated. It is therefore, urged that the respondent authorities are

required to be directed to provide for at least 5% reservation for widow

candidates in the recruitment of female health workers.

5.2It is next submitted that so far as the District Panchayats are

concerned, the respondents have filed their respective replies, inter

alia, stating that framing of policy falls within the realm of the State

Government and the District Panchayats are bound by those policies;

however, the District Panchayats are not empowered to frame any

policies which aspect is reflected from the communication dated

24.4.2015 issued by the Additional Director of Health & Medical

Services, so also the communication dated 2.6.2015 issued by the

Director, State Health Female Welfare Institution. It is, under the said

circumstances, that the authorities have not taken any decision, on the

representations made by the petitioner on the ground that they are not

empowered to do so and that is how petitioner has been relegated from

one office to another office.

5.3 Learned advocate for the petitioner drew the attention of this Court

to the various conditions enumerated in the communication dated

21.4.2015. It is submitted that condition no. 2 provides that at the end of

the training course the candidate has to appear in the examination and

the candidate will be eligible to participate in the recruitment process

conducted by the District Panchayat Selection Committee subject to the

rules. Condition no.4 further provides that after completion of the

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training period, it would be compulsory for the candidate concerned to

render the service as a female health worker in the District Panchayat of

the State. Similarly, condition no. 7 provides for furnishing of the bond.

It is therefore, submitted that once there is a reservation for the widow

candidate and provision is made for them at the admission stage, the

same should be continued for the purpose of recruitment as well, so as

to facilitate the widow candidate to participate and to secure

appointment, in furtherance of the policy of the State.

5.4 It is submitted that as per the reservation provided during the

admission, out of 6500 admissions, more than 300 admissions were

given to the widows; however, the widows are not offered recruitment or

appointment, despite the fact, they spend so much of time and money. It

is further submitted that around 300 widow candidates got admission

and the petitioner is one of them, who was given admission and after

clearing the examination, the petitioner had applied pursuant to the

advertisements in the year 2013-14 and in the year 2015-16; however,

since there was no reservation, the petitioner could not secure the

appointment followed by making the representations to the authorities

concerned but of no avail.

5.5 It is submitted that as a part of the admission process, training is

given to the candidates and so far as the qualified candidates are

concerned, at the end of the training, they do not get the benefits and

therefore, the State Government is expected to answer as to why it is

not doing so. Besides, for not providing the reservation, the State

Government has not given any rational. It ought to have been

appreciated that the widows are class by themselves and they deserve

reservation. It is therefore, urged that in view of the prayers made by the

petitioner, necessary directions are required to be issued to the State

Government to provide for reservation of 5% vacancies for widows in

the recruitment of female health workers under the District Panchayats

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similar to the reservation provided for widows in the admission to the

training courses for Auxiliary Nurses and Midwives Course.

6. On the other hand, Mr. Rohan Shah, learned Assistant Government

Pleader appearing for the respondent - State, has vehemently opposed

the writ petition by making various submissions. While referring to the

communication dated 21.5.2011, issued by the Chief District Health

Officer, District Panchayat, Narmada, it is submitted that the

communication, if read, in its entirety, nowhere makes a reference for

widow candidates and therefore reliance placed by the petitioner on

such communication in support of her prayers is misconceived.

6.1It is next submitted that the State Government in exercise of the

powers conferred under Article 309 of the Constitution of India, through

its General Administration Department, has framed the Gujarat Civil

Services Rules (Reservation of Posts for Women) Rules, 1997,

(hereinafter referred to as “the Rules of 1997”) whereby, the reservation

has been provided in favour of women belonging to the categories

namely, Scheduled Caste, Scheduled Tribes, SEBC and also for the

posts not reserved in favour of Scheduled Caste, Scheduled Tribes and

SEBC. In continuation of the Rules of 1997 the State Government has

issued a circular dated 27.5.1997 clarifying the status of preference to

be given to widow candidates. Clause 8 whereof clarifies that in the

competitive examination, with a view to giving preference to the widow

candidate, there shall be addition of 5% of total marks obtained;

therefore, the reservation for women is already been provided by Rules

of 1997 with certain amount of relaxation for widow candidates. The

respective District Panchayats in tune with the Rule of 1997 so also the

circular dated 22.5.1997 have made necessary provisions in the

advertisements.

6.2 While adverting to one of the advertisements, it is submitted that

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clause no.3 pertains to the widow candidates, providing for addition of

5% of total marks obtained. The said aspect is further strengthened by

sub-clause 6 of clause 11, which specifically refers to the circular dated

22.5.1997. It is further submitted that the reservation, which has been

provided at the stage of admission for the training courses, the

petitioner wants to continue the same till the recruitment and once is

employed will ask for further reservation till the stage of promotion,

which would be clearly impermissible. If such contention is entertained

and allowed then other candidates would be affected; however, the

petitioner has not joined a single candidate. Therefore, the grievance of

the petitioner seeking necessary directions to be issued to the State

authorities to provide for reservation for widow of 5% of vacancies in the

recruitment is misconceived and does not merit acceptance.

6.3It is further submitted that it is the case of the petitioner that she

has applied pursuant to the advertisements of the year 2013-14 and

2015-16 and in absence of specific reservation for widow, the petitioner

was not in a position to secure the appointment; in fact, it is her own

case that she is a unsuccessful candidate and is now seeking to

challenge the non-prescription of reservation, which would be

impermissible. It is further submitted that even otherwise, the petition

does not deserve to be entertained because, a bare perusal of the

prayer clauses suggests that they are in the nature of Public Interest

Litigation and therefore the present petition is not the appropriate

remedy for the petitioner to ventilate her grievance as per various

decisions rendered by this Court as well as by the Hon'ble Supreme

Court.

6.4 It is therefore urged that petition is devoid of merits and deserves

to be dismissed.

7. Mr.Ketan Bhatt learned Advocate appearing for the respondent

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nos. 4 and 5 submitted that the reservation of widow in the matter of

education and employment in the context of Articles 14 and 16 of the

Constitution of India, is a matter of State policy, where the respondent

being a District Panchayat has no role to play inasmuch as neither the

Constitution of India nor any law empowered the District Panchayat to

independently evolve the policy. If the respondent State Government

evolves and introduces a policy of reservation for widow, the same shall

be immediately implemented by the District Panchayat, Narmada.

Further, as on today, in the matter of employment under the State and

particularly, with respect to appointment of family health workers, there

is no reservation for widow and therefore, the District Panchayat, unless

the State announces such policy, cannot provide for reservation.

7.1 It is next submitted that the main grievance raised by the

petitioner is to the effect that at the time of admission, reservation is

provided; however, at the time of recruitment, there is no such

reservation provided. It is further submitted by him that there lies a

fallacy in the arguments of the petitioner for, necessary relaxation has

been accorded by providing additional 5% of total marks obtained by

the concerned candidate. Referring to the advertisement, it is submitted

that necessary relaxation has been given in favour of women

candidates so also widow candidates. Even otherwise, the reservation

being a matter of State policy, there is no right of whatso ever nature

inhered in favour of the petitioner so as to maintain the present petition

with such prayers.

7.2While, adverting to the aspect of the application made by the

petitioner, it is submitted that present petition is nothing but abuse of

process of court. There is no such application of the petitioner available

with the District Panchayat and that is how there is nothing available on

record to substantiate that the petitioner has applied for the post on-line.

In fact, the petitioner neither has applied nor appeared in the

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competitive examination and therefore, there arises no question of

entertaining the prayers prayed for by the petitioner. It is further

submitted that the advertisement contains various clauses; clause no.9

under the heading of “Manner of Making Application”, provides that

after candidate makes an application, the application number gets

generated, which the candidate shall preserve. Had the petitioner

applied pursuant to the said advertisement, the petitioner would be

having the application number, which, the petitioner was obligated to

preserve; however, the petitioner has not placed on record any proof,

much less application number to substantiate that the petitioner had

applied pursuant to the advertisement dated 8.4.2015 except making a

vague averment in the petition. Hence, the petitioner having not applied,

she cannot claim any relief for widow reservation.

7.3 Whilst assuming without admitting that the petitioner had applied;

however, looking to the prayers made in the petition, they have the

flavour of public interest litigation and element of private dispute is

missing. Hence, the locus of the petitioner to maintain the present

petition is itself in doubt. Also, the petition is meritless and deserves to

be dismissed.

8.Mr. Mahavir Gadhvi, learned advocate appearing for the

respondent nos. 6 and 7, submitted that the District Panchayat conducts

the examination on-line. So far as the Gujarat Panchayat Service

(Class-III) Recruitment (Examination) Rules, 2012 is concerned, it is

framed by the State Government in exercise of the powers conferred

under the provisions of Gujarat Panchayats Act 1992 and the District

Panchayats are obligated to strictly adhere to the Rules and resolution

issued by it. Accordingly, the District Panchayat has made a provision

for addition of 5% marks in relation to the widow candidates. Further,

the question of consideration will not arise as, the petitioner has not

applied pursuant to the advertisement issued by the Dahod Panchayat.

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Furthermore, the main prayer is against the State Government, which

will be purely within the realm of the policy decision. Also, there are no

allegations against the District Panchayat alleging mala fides or that it

has acted arbitrarily or illegally. It is submitted that in absence of any

allegations against the District Panchayat, the petition does not deserve

to be entertained and is required to be dismissed.

9.Heard Mr. K.B. Pujara learned advocate for the petitioner, Mr.

Rohan Shah, learned Assistant Government Pleader for the respondent

nos. 1, 2 and 3, Mr. Ketan Bhatt, learned advocate for respondent nos.

4 and 5 and Mr. Mahavir Gadhavi, learned advocate for the respondent

nos. 6 and 7. Though served, Respondent no.8, has chosen not enter

appearance.

10.The core issue, which arises for consideration of this Court, is

whether the petitioner has any right to maintain the present petition and

claim direction to the State Government to provide for reservation for

widow on 5% of the vacancies in the recruitment of the Female Health

Workers under the District Pachayats. Answer to the aforesaid issue

has to be in the negative for the reasons discussed in succeeding

paragraphs.

11. As per the policy of the State Government, one seat in each self-

financed Auxiliary Nurses Midwives nursing school is reserved for

widow as per the Gujarat Diploma in General Nursing and Midwifery

and Auxiliary Nurses Midwives (Regulation of Admission and Payment

of Fees) (Amendment) Rules 2014. Admissions are granted to the

General Nursing and Midwifery and Auxiliary Nurses and Midwives

Course through Centralized Admission System by the Admission

Committee for professional medical educational courses in the

Government and other institutions in the State. The petitioner, while

taking the benefit of such reservation, got herself admitted in the

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category of widow and on completion of 1½ year training course of

Female Health Worker got herself registered with the Gujarat Nursing

Council.

12.Two advertisements were issued by the District Panchayat

Service Selection Committee, Dahod and District Panchayat Service

Selection Committee, Narmada for 61 and 12 vacancies respectively,

for Female Health Workers (Class-III). According to the petitioner she

applied in response to both the advertisements; however, since there

was no reservation provided for the widow, she could not get through.

Consequently, the petitioner made several representations to the

authorities concerned; however, the representations were not

considered, which aggrieved the petitioner. Accordingly, the petitioner

has filed the captioned writ petition with the aforementioned prayers.

13.In the aforesaid background the petitioner is seeking writ of

mandamus and/or any other writ, seeking directions to the respondent

authorities to provide for reservation for widow on 5% of vacancies in

the recruitment of Female Health Workers (Class-III) under District

Panchayats and elsewhere.

14.Pertinently, the Apex Court, in the case of Director of Settlements,

AP vs. M.R. Apparao reported in (2002) 4 SCC 638, has held that the

powers of the High Courts under article 226 though are discretionary

and no limits can be placed upon the discretion, they must be exercised

along the recognized lines and subject to certain self-imposed

limitations. The Apex Court has further observed that in order to obtain

a writ or order in the nature of mandamus, the applicant has to satisfy

that he has a legal right to the performance of a legal duty by the

authority against whom a mandamus is sought and such right must be

subsisting on the date of petition. The relevant portion of the paragraph

17 reads as under:

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“ 17. Coming to the third question, which is more important from the

point of consideration of High Court's power for issuance of

mandamus, it appears that the constitution empowers the High Court

to issue writs, directions or orders in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari for the

enforcement of any of the rights conferred by Part III and for any other

purpose under Article 226 of the Constitution of India. It is, therefore

essentially, a power upon the High Court for issuance of high

prerogative writs for enforcement of fundamental rights as well as non-

fundamental or ordinary legal rights, which may come within the

expression 'for any other purpose'. The powers of the High Courts

under Article 226 though are discretionary and no limits can be placed

upon their discretion, it must be exercised along recognised lines and

subject to certain self-imposed limitations. The expression 'for any

other purpose' in Article 226, makes the jurisdiction of the High Courts

more extensive but yet the Court must exercise the same with certain

restraints and within some parameters. One of the conditions for

exercising powers under Article 226 for issuance of a mandamus is

that the Court must come to the conclusion that the aggrieved person

has a legal right, which entitles him to any of the rights and that such

right has been infringed. In other words, existence of a legal right of a

citizen and performance of any corresponding legal duty by the State

or any public authority, could be enforced by issuance of a writ of

mandamus. "Mandamus" means a command. It differs from the writs

of prohibition or certiorari in its demand for some activity on the part of

the body or person to whom it is addressed. Mandamus is a command

issued to direct any person, corporation, inferior Courts or

Government, requiring him or them to do some particular thing therein

specified which appertains to his or their office and is in the nature of a

public duty. A mandamus is available against any public authority

including administrative and local bodies, and it would lie to any

person who is under a duty imposed by statute or by the common law

to do a particular act. In order to obtain a writ or order in the nature of

mandamus, the applicant has to satisfy that he has a legal right to the

performance of a legal duty by the party against whom the mandamus

is sought and such right must be subsisting on the date of the petition

(Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183). The duty that

may be enjoined by mandamus may be one imposed by the

Constitution, a statute, common law or by rules or orders having the

force of law.”

15.Pertinently, the petitioner is praying for reservation for widow to

the extent of 5% vacancies in the recruitment of Female Health Workers

under the District Panchayats. Therefore, the reservation, if any, would

have to be provided by the State Government under the provisions of

Article 15(3) read with Article 16(1) of the Constitution of India. The

State Government in exercise of the powers conferred by the proviso to

Article 309 of the Constitution of India, in its General Administration

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Department, has framed the Rules of 1997 providing for reservation of

post for women belonging to the Scheduled Caste, Scheduled Tribes,

SEBC and in favour of open category to an extent of 30% each (by

virtue of subsequent amendment in the rules now 33%). After framing of

the Rules of 1997, various issues cropped up before the State

Government, which led to the issuance of Circular dated 27.5.1997 by

the General Administration Department. One of the issues was as to

whether any preference should be given to the widow and while doing

so, the principles to be observed. The General Administration

Department clarified that the post, which are to be filled in by the

competitive examination, 5% additional marks, of the total marks

obtained, shall be added so as to give some preference to the widow

candidates. Therefore, reservation for women is provided by the Rules

1997 and by virtue of the Circular dated 22.5.1997 certain amount of

relaxation has been provided in favour of widow candidate by

considering 5% additional marks of the total marks obtained by the

candidate concerned.

16.Pertinently, the District Panchayat Service Selection Committee,

Dahod as well as District Panchayat Service Selection Committee,

Narmada have issued advertisements for 61 vacancies and 12

vacancies respectively for Female Health Workers; meant exclusively

for women candidates. So far as, the advertisement issued by the

District Panchayat Service Selection Committee, Dahod is concerned,

under the of heading “Special Note”, which pertains to various aspect

namely, age, educational qualification, reservation, eligibility of getting

additional marks to the widow etc., wherein at item no. 21, reference is

made of the Government Resolution dated 22.5.1997 with further

instruction that more details are available at

http://panchayat.gujarat.gov.in. Further there is a sub-heading

“instruction for widow candidates” which specifically provides for

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addition of 5% of total marks obtained for the category of widow

candidates. Similar provision of consideration of additional 5% of total

marks obtained, is available for widow candidates in the advertisement

issued by the District Panchayat Service Selection Committee,

Narmada. Therefore, both the advertisements contain sufficient

relaxation and / or provision in favour of the widow candidate that is,

consideration of addition of 5% marks of total marks obtained. Though

the petitioner has no right to seek such direction to the State

Government, provisions are already available in favour of widow

candidates and therefore, the grievance of the petitioner is

misconceived and does not merit acceptance.

17. Notably, both the advertisements are exclusively meant for female

candidates and therefore, if at all some provision is to be made, so far

as the widow candidate is concerned, it has to be by way of relaxation

or preference, which has been accorded by the respective District

Panchayats Service Selection Committees in conformity with the

Circular dated 22.5.1997. However, the grievance raised by the

petitioner for providing the reservation for widow candidates, which, as

discussed herein above, cannot be acceded to mainly on the ground

that no legal right much less any fundamental right, inheres in favour of

the petitioner so as to entitle her to maintain the present petition. This

court is of the opinion that when the provisions are made by the State

Government for women reservation by virtue of the Rules of 1997 and

by virtue of Circular dated 22.5.1997 further relaxation is accorded in

favour of widow candidates, no directions can be issued to the State

Government or for that matter to the respective District Panchayat

Service Selection Committees as prayed for by the petitioner.

18.Besides, one another issue, which goes against the petitioner, is

also requires to be deliberated, that is, whether the petitioner has any

right to maintain the present writ petition, in absence of her applying for

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the appointment, pursuant to the advertisements issued by the both the

District Panchayat Service Selection Committees, that is, Narmada and

Dahod. Albeit, the petitioner, in paragraph 3 of the petition memo, has

made the averment that she had applied in response to the both the

advertisements; she has not produced on record any documents to

substantiate the said aspect.

19.Pertinently, the respondent No. 4, in its affidavit, so also the

learned advocate appearing for the respondent No.6 has raised the

objection about the petitioner not having applied pursuant to the

respective advertisements, and locus to maintain the present petition,

the petitioner has at no point of time disputed the said aspect, that is,

either by filing the rejoinder or during the course of the arguments.

Hence, this Court was requested by the learned advocates appearing

for the respective respondents, to call upon the petitioner to produce on

record any proof to substantiate the aspect. With a view to completing

the record, this Court, vide order dated 8.3.2021, required the learned

advocate appearing for the petitioner to place on record any proof as

regards the petitioner having applied pursuant to the advertisements.

On 15.3.2021, the learned advocate for the petitioner stated that the

petitioner is not having any proof of having applied pursuant to the

advertisements issued by the respective District Panchayat Service

Selection Committees.

20.Perceptibly, as per the instructions contained in the

advertisement, the petitioner is expected to have some proof in lieu of

her application inasmuch as, under the heading of “Manner of making

Application”, clause 9, provides for specific instructions to the candidate

that after submitting the application “Application Number” will be

generated, which the candidate shall preserve. Had the petitioner

applied pursuant the said advertisements, the petitioner would have

some proof and in absence of any proof produced by the petitioner, it

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can be safely concluded that the petitioner has not applied. Therefore,

when the petitioner has not at all applied pursuant to the

advertisements, it is impermissible to the petitioner to raise any

grievance much less the grievance of non-prescription of reservation for

widow on 5% of the vacancies for the recruitment of Female Health

Workers.

21. Therefore, the petition does not deserve to be entertained on this

count as well. In view of the above-mentioned discussion, the petitioner

is bereft of merits and does not deserve to be accepted. Accordingly,

petition is dismissed. Rule is discharged. No order as to costs.

(SANGEETA K. VISHEN,J)

F.S. KAZI

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