JASODABEN P SENVA v. STATE OF GUJARAT-THRO SECRETARY

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15317 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE N.V.ANJARIA =========================================================== Whether Reporters of Local Papers may be allowed to see the judgment ? Yes

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15317 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE N.V.ANJARIA =========================================================== Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes Whether their Lordships wish to see the fair copy of the judgment ? No Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No ================================================================ JASODABEN P SENVA....Petitioner(s) Versus STATE OF GUJARAT-THRO SECRETARY & 3....Respondent(s) ================================================================ Appearance: MR MASOOM K SHAH, ADVOCATE for the Petitioner(s) No. 1 MR ROBIN MOGERA, AGP for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 4 NOTICE SERVED BY DS for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date:18/10/2016 A short question which is involved in this petition is whether an appointee on the post of Anganwadi is entitled to continue on the job even after such appointee stood in the Panchayat Election and got elected as member of District Panchayat.

2. What is prayed by the petitioner by filing the present petition under Article 226 of the Constitution is to set aside order dated 28.05.2013 passed by the second respondentChild Development Officer, Thasara, District Kheda. It is further prayed to reinstate the petitioner as Anganwadi worker.

3. Noticing the relevant facts in a nutshell, the petitioner was appointed as Anganwadi worker under the project known as Integrated Child Development Scheme (ICDS). The elections to the Kheda District Panchayat were held in 2013. While having got appointed and working on post as Anganwadi worker, the petitioner contested the Panchayat election and became a member of Panchayat upon being getting elected. It appears that upon happening of such eventuality, the second respondent conveyed the said fact to the third respondentProgramme officer, ICDS Branch, Kheda. Thereafter, the fourth respondent authorityAssistant District Development Officer pointed out that as per instructions in communication dated 26.05.2010 and 04.06.2010 issued by the Ministry of Women and Child Development, Government of India, the honorary Anganwadi workers, such as the petitioner could not hold two posts simultaneously. 3.1 The Government of India, Ministry of Women and Child Development by communications dated 26.05.2010 and again on 26.11.2010 opined about Anganwadi workers who contest the election of local bodies. Referring to the Ministrys stand, it was stated that for an Anganwadi worker who gets selected as member of the Panchayat or local body, to continue to work under the ICDS Scheme would not be appropriate because it would necessarily take such person from the core activities and would affect the delivery of service adversely under the ICDS Scheme. 3.2 By communication dated 04.05.2013, the petitioner was intimated that since she was elected as member of District Panchayat, it was not permissible to draw salary as Anganwadi worker as also get remuneration as Chairman of Social Justice Committee of the Panchayat. In the very letter, the petitioner was asked to give her option whether she would like to continue as Anganwadi worker. The petitioner did not offer her option, instead in a written statement, stated that she was getting honorary pay as Anganwadi helper and by getting elected, she did not become the government servant. In other words, she stated that since she was on the post of Anganwadi worker getting honorary salary, her election to the Panchayat would not attach any disability.

4. Heard learned advocate Mr. Masoom K. Shah for the petitioner, learned advocate Mr. H. S. Munshaw for respondent Nos.2 to 4 and learned Assistant Government Pleader Mr. Robin Mogera for respondent No.1State.

5. Once the petitioner has become the member of the District Panchayat, it is natural for her to devote time to responsible position as an elected representative of District Panchayat. In the circumstances, she will not be able to do justice to the post and work as Anganwadi worker and therefore, the option given by the authority to the petitioner whether to continue as Anganwadi was entirely a rational. The petitioner did not exercise the option. The petitioner cannot have a right on both the posts. Once she has been elected to the District Panchayat as member, she has to give way to the other post. It is material to notice that the petitioner was holding honorary post of Anganwadi worker. The post of Anganwadi worker is not a statutory post. Article 309 does not apply and the post does not have the statutory character. Therefore, as such, there was no right, much less vested right with the petitioner for the post, more particularly when she was elected as District Panchayat member. 5.1 When the very conduct of seeking election as District Panchayat member and getting elected was indicative of voluntary forsaking of the Anganwadi post, the plea for observance of natural justice as a ground to assail the termination of services as Anganwadi worker, could be said to be empty of its contents. It is safe to hold that the right to hearing was not required to be afforded. For the aforementioned reasons, the decision relied on by learned advocate for the petitioner in Nisha Devi vs. State of H.P. [2014 (3) SCALE 132], cannot apply, to stand true for its own facts. Another decision of this Court in Saraswatiben Raisinghbhai Nandariya vs. Taluka Gram Panchayat Sagbara and anr. [1989 (1) GLH (UJ) 18] was pressed into service for canvassing the requirement of affording opportunity of hearing. In that decision, services of temporary employee was terminated stating in the order that the employee was not performing her duty and was complacent in work. The Court held that the order casts stigma, therefore hearing was required to be afforded. The reliance was not wellplaced vis avis the fact obtained in the present case. 5.2 When the petitioner chose to contest the election of the Panchayat, it was by her very action and volition. The election as member to the Panchayat was a call for higher duties, which the petitioner opted. She was given a choice by issuance of letter in writing as to whether she would choose to work as Anganwadi worker or would prefer to retain her election as Panchayat member and discharge duty accordingly. It could be well said that seeking and getting elected as a Panchayat member was a selfincurred debility to continue as Anganwadi worker. In view of such selfinvited and selfincurred status, right to hold post of Anganwadi worker was extinguished. A status or state of affairs brought about by an act of volition and voluntary choice, when resulted into displacement from the post of Anganwadi worker, it could hardly be said that it was a civil consequence ensued for the petitioner, so as to attract the principle of audi alterem partem. The petitioner cannot claim right of hearing in the facts and circumstances of the case and nonhearing would not consequently vest in her any enforceable right. The principle of natural justice is not an unruly horse. These principles are not called for to be observed when their exercise is to remain an empty formality. The theory of empty formality applies in the facts of the present case.

6. For the all the aforesaid reasons and discussion, no contention on behalf of the petitioner holds good. The petitioner is not liable to be entitled for any relief.

7. The meritless petition is hereby dismissed. Notice is discharged. (N.V.ANJARIA, J.) chandrashekhar