Case title: Smt. Padmavati Sahu & ORS VS State of Chhattisgarh Through Secretary Department of Women and Child Development & ORS
Case no.: WPS No. 803 of 2022
Dated on: 09th MAY 2024
Quorum: HON’BLE MR JUSTICE Ramesh Sinha and HON’BLE Mrs JUSTICE Rajani Dubey.
FACTS OF THE CASE
According to Mr. Mirza Hafeez Baig, learned counsel for the petitioners, the petitioners are Anganwadi Workers working since 1999, 2006, 2007 and 2010. An advertisement was issued by the Directorate of Women and Child Development, Chhattisgarh, wherein total 200 posts of Anganwadi Supervisors were advertised on 30.11.2021. Out of these 200 posts, 100 posts are to be illed up by direct recruitment and 100 posts by way of limited direct recruitment for which the Anganwadi Workers having 10 years of experience are eligible to apply. However, in the limited direct recruitment, the maximum age of the Anganwadi Workers has been limited to 45 years by the impugned amendment dated 28.07.2008 to the Chhattisgarh Civil Service (Special Provision for Appointment of Women) Rules, 1997 (for short, the Rules of 1997). The post of Anganwadi Supervisor was lastly advertised in the year 2018 and after lapse of 8 years, the instant recruitment is being carried out and as such, many of the Anganwadi Workers have turned more than 45 years of age and as such, are ineligible for participating in the limited direct recruitment. The petitioners also challenge Rule 12(3) of the Chhattisgarh Women and Child Development Department Executive Class III (Non-Gazetted) Service Recruitment Rules, 2008 (for short, the Rules of 2008) which also prescribes that the maximum age of an Anganwadi worker shall not exceed 45 years on the first day of January of the year of commencement of the examination/selection. It shall not be relax able on any ground. As per Ms. Renu Kochar, learned counsel for the petitioners, the petitioners herein are also Anganwadi Workers. They are also aggrieved by the amendment dated 28.07.2008 to Rule 4 of the Rules of 1997 and Rule 8(1)(j) and 8(2) of the Chhattisgarh Women and Child Development Department, Executive Class III (Non-Gazette) Service Recruitment Rules 2023 (for short, the Rules of 2023). In the present case, the respondents have advertised 440 posts of Supervisor Grade III on 04.07.2023 out of which 220 posts were to be illed through open direct recruitment and remaining 220 posts through limited direct recruitment. Clause 3.3 of the advertisement provides that the maximum age limit for the limited direct recruitment would be 45 years and since the petitioners have crossed the age of 45 years, they are now ineligible for participating in the said recruitment process which is unconstitutional. petitioner herein challenges Rule 6(1)(b) of the Rules of 2023 and also seeks quashing of the advertisement dated 02.08.2023 (Annexure P/2) by which 220 posts of Supervisor have been advertised for illing up through limited direct recruitment process and to issue a direction to the respondents to amend the Rules of 2023 in accordance with the guidelines of the Union of India dated 15.09.2015 (Annexure P/4). The petitioner herein is aged about 46 years and is working on the post of Anganwadi Worker and posted at Ganjhutoli, Tehsil Kansabel, in the District of Jashpur. She was appointed on 02.03.2006. The Director, Integrated Child Development Service Scheme (for short, the ICDS) had issued guidelines to all the Secretaries of States and Union Territories by reviewing the previous guidelines for promotion and appointment of Anganwadi Workers to the posts of Supervisors in supersession of earlier guidelines. The letter dated 15.09.2015 also stated that the States/UTs may amend related Recruitment Rules for the posts of Supervisors as per the guidelines therein on urgent basis and copy of such Recruitment Rules, after being notified, may be sent to the ministry i.e. respondent No. 2. Even after framing of the above-mentioned guidelines the State of Chhattisgarh did not amend the recruitment rules and continued the recruitment and appointment to the post of Supervisor under the old Rules of 2008 which did not conform to the guidelines issued by the ICDS. In the erstwhile state of Madhya Pradesh, the Anganwadi Workers were promoted to the post of Supervisors. On date 30.03.1999, the voice of District Collector, District-Dhar (M.P.), (in pursuance of order of Directorate, Women and Child Development dated 26.03.1999) issued promotion order of 2 Anganwadi Workers. Similarly, the voice of District Panchayat, District- Khargone also issued promotion list of Anganwadi Workers to the post of Supervisors by order dated 15.06.1999. On 14.03.2018, the Ministry of Women & Child Development, Government of India issued another letter to the Principal Secretaries/Secretaries in-charge of Women and Child Development/Social Welfare Department (Anganwadi Services) in all. The facts in the present case is identical to that of WPS No. 5595/2023 except the fact that the date of appointment of appointment and place of posting of the petitioners, who are also the Anganwadi Workers, is different.
ISSUES
- Whether the maximum age limit of 45 years for Anganwadi Workers to participate in the limited direct recruitment process for the post of Supervisor, as set by Rule 4 of the Chhattisgarh Civil Service (Special Provision for Appointment of Women) Rules, 1997 (amended on 28.07.2008), Rule 12(3) of the Chhattisgarh Women and Child Development Department Executive Class III (Non-Gazetted) Service Recruitment Rules, 2008, and Rules 6(1)(b) and 8(1)(j) of the Chhattisgarh Women and Child Development Department Executive Class III (Non-Gazetted) Service Recruitment Rules, 2023, is arbitrary, unconstitutional, and violative of Articles 14 and 16 of the Constitution of India.
- Whether the delay of 8 years in conducting the recruitment process for the post of Supervisor, which resulted in many Anganwadi Workers crossing the maximum age limit of 45 years, is arbitrary and unjust, thereby denying them a fair opportunity to participate in the recruitment process.
LEGAL PROVISINS
Article 309 of the Constitution of India: Provides the authority to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The Governor of a state can makes rules regulating recruitment and service conditions.
Chhattisgarh Civil Service (Special Provision for Appointment of Women) Rules, 1997:
Rule 4 (amended on 28.07.2008): Introduced the age limit of 45 years for limited direct recruitment of Anganwadi Workers to the post of Supervisor. Chhattisgarh Women and Child Development Department Executive Class III (Non-Gazetted) Service Recruitment Rules, 2008:
Rule 12(3): Sets the maximum age limit of 45 years for Anganwadi Workers applying for the post of Supervisor through limited direct recruitment.
Chhattisgarh Women and Child Development Department, Executive Class III (Non-Gazetted) Service Recruitment Rules, 2023: Rule 6(1)(b) and Rule 8(1)(j): Pertains to the eligibility criteria and recruitment process for Supervisors, maintaining the maximum age limit of 45 years for limited direct recruitment from Anganwadi Workers.
CONTENTIONS OF THE APPELLANT
Mr. Ratnesh Kumar Agrawal, learned counsel for the petitioners submits that the petitioners herein are Anganwadi Workers who are aggrieved by Rule 8(2) of the Rules of 2023, which prescribes the age limit and eligibility criteria for appearing in the limited direct recruitment for the post of Supervisor. The age limit of 45 years for limited direct recruitment is arbitrary and unconstitutional as it deprives experienced Anganwadi Workers of promotional opportunities. The gap in conducting recruitment processes has unfairly disadvantaged them, making them ineligible due to the age limit. They seek amendments to the Rules to provide relaxation or bonus marks based on their long service. They argue that the State should implement the 2015 guidelines from the Ministry of Women and Child Development, which recommended promoting experienced Anganwadi Workers to Supervisor posts.
CONTENTIONS OF THE RESPONDENTS
Mr. Marhas, learned Additional Advocate General states that it is a settled principle laid down by catena of judgments passed by the Hon’ble Supreme Court, that the Rules made under the proviso to Article 309 of the Constitution of India being legislative in character cannot be struck down merely because the Courts think that they are not reasonable, they can be struck down only on the grounds upon which a legislative measure can be struck down. The only test that that such Rule has to pass is that of Articles 14 & 16 of the Constitution of India. Therefore, it cannot be said that the gap of 8 years in conducting recruitment process was arbitrary on the part of the State. It is further submitted that in the State, the promotion of an employee is governed by the Chhattisgarh Public Services (Promotion) Rules 2003 which further provides that the rule is only applicable for regular Government post. Herein, as discussed above, the post of Anganwadi Workers is purely a non-government post, therefore, even the Promotion Rules, 2003 could not be made applicable for them. In light of the above submission, it is clear that the Anganwadi Workers could not be promoted nor the provisions of promotion could be inserted in the Rules 2023. The age limit and other criteria set by the Rules are within the legislative authority granted by Article 309 of the Constitution. The recruitment process delays were due to administrative and policy reasons beyond the control of the respondents. The rules and amendments made are constitutional and reasonable, and there is no obligation to conduct recruitment every year. The guidelines issued by the Ministry of Women and Child Development are advisory and not binding on the State.
COURT’S ANALYSIS AND JUDGEMENT
The Rules of 2008 provides for 10 years’ experience on the post of Anganwadi Worker whereas the 2023 Rules provides for 5 years’ experience as Anganwadi worker to be promoted to the post of Supervisor. However, the maximum age limit in both the Rules is the same i.e. 45 years. So far as implementation of the guidelines issued by the Ministry of Women and Child Development, Government of India, on 15.09.2015, which provides that the respective State Governments/ Union Territories should frame rules with respect to filling up of the 50% of vacancies in the posts of Supervisors by promotion from amongst Anganwadi Workers with 10 years of experience as Anganwadi Workers and having the prescribed educational qualifications as per the Recruitment Rules. The aforesaid guidelines are advisory in nature and not mandatory. The State is free accept or reject or implement the same after suitable modifications as per its requirement but the same cannot be said to be binding on the State. Hence, the grievance of the petitioners with respect to non-adhering of the guidelines of the Central Government in this regard, also fails. The petitioners, in none of the case have been able to point out as to how the Rules restricting the maximum age limit to be 45 years, is ultra vires the Constitution, even though it may be limiting their promotional avenues. In the present case, the Rules of 2008 and 2023 as well as the amendment made to the Rules of 1997, all have been made in exercise of powers conferred by the provision to Article 309 of the Constitution of India. The amendment and the Rules have been made by the Governor exercising the power under Article 309 of the Constitution of India. Another grievance of the petitioners is with regard to the conducting of the recruitment process after a long gap of time because of which many of the petitioners had crossed the age of 45 years and thus, missed the chance of participating in the recruitment process. If the recruitment process is not initiated every year, that cannot be said to be arbitrary as there can be number of reasons and circumstances for not conducting recruitment process. A Division Bench judgment of Allahabad High Court in Sanjay Agarwal (supra), had observed that nobody can claim as a matter of right that recruitment on any post should be made every year. We are in agreement with the said proposition. Mere publication of the advertisement for recruitment at a belated stage cannot be a ground for grant of any bonus marks or relaxation in the maximum age limit. In view of the foregoing discussions, all these petitions are disposed of looking to the fact that the petitioners have dedicated a quite long period of time to the post of Anganwadi Worker and have crossed the age of 45 years which is restricting their eligibility to participate in the recruitment process for the post of Supervisor, this Court hopes and trusts that the State Government would formulate some suitable scheme or provide some relaxation in the relevant rules so as to afford an opportunity of participation in the recruitment process for the post of Supervisor, to those who lost their chance because of crossing of the age of 45 years, within a period of three months from today. The State Government, if so advised, may also take into consideration implementing the guidelines issued by the Central Government with regard to promoting the Anganwadi Workers on the post of Supervisors, as per its requirement. No order as to cost(s). There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid.
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Judgement Reviewed by – HARIRAGHAVA JP
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