911-WP-115-2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 115 OF 2024 Surekha Anil Badgujar VERSUS The State Of Maharashtra Through The Secretary And Others *** • Mr. D. A. Mane h/f Ms. M. P. Patel, Advocate for the Petitioner • Mr. S. N. Kendre, AGP for the Respondent Nos. 1, 2 and 4/State • Mr. R. N. Jain, Advocate for the Respondent No. 3 • Mr. V. R. Dhade, Advocate for Respondent No. 5 *** CORAM : R. M. JOSHI, J DATE : MAY 09, 2025 PER COURT : 1. By consent of both sides, heard finally at the stage of admission. 2. This Petition takes exception to the order passed by the Divisional Commissioner dated 10.08.2023 in Appeal No. 02/2023 whereby the objection raised by the Petitioner to the appointment of Respondent No. 5 to the post of Anganwadi Sevika, stood rejected. 3. Petitioner is working as Anganwadi Madatnis since 06.02.20217 and discharging her duties at Anganwadi No. 1 at Lonkheda. She claims to have been Umesh PAGE 1 OF 10 2025:BHC-AUG:14233-DB 911-WP-115-2024.odt possessing necessary qualification for the appointment of the post of Anganwadi Sevika. It is the grievance of the Petitioner that the Respondent No. 5 who was appointed as Anganwadi Madatnis in year 2013 is now appointed to the post of Anganwadi Sevika in October, 2021. It is alleged that she is not eligible even for the appointment to the post of Anganwadi Madatnis for having more than three children. It is claimed that it is inherent disqualification attracted by Respondent No. 5 even as on the date of appointment of Anganwadi Madatnis in 2013. It is further claimed that appointment sought on misrepresentation and fraud on the basis of undertaking filed by Respondent No.5 while obtaining the employment to the effect that she is having two children and has no third child. Reference is made to the affidavit dated 23.01.2023 submitted by Respondent No. 5 in this regard. Since the appointment of the Respondent No. 5 to the post of Anganwadi Sevika came to be done and as the she is ineligible to the said post, Petitioner raised objection to her appointment on 27.01.2021 by addressing said grievance to the Child Development Project Officer, Shahada. This objection came to be raised within a period of 30 days Umesh PAGE 2 OF 10 911-WP-115-2024.odt from the date of issuance of appointment as required by GR dated 13/08/2014. According to the Petitioner in spite of raising said objection CEO, Zilla Parishad has protected the illegal appointment of Respondent No. 5. Though on the basis of the complaint made by the Petitioner pending enquiry, Respondent No. 5 was removed from service, however, she was reinstated again without hearing Petitioner. Being aggrieved by order dated 23.05.2023 passed by CEO, Zilla Parishad, Nandurbar, she preferred an Appeal before the Divisional Commissioner being Appeal No. 02/2023. Divisional Commissioner by passing impugned order rejected the Appeal. Hence, this Petition. 4. Learned Counsel for the Petitioner, at the outset, submitted that the Divisional Commissioner has rejected the Appeal essentially on the ground that the objection has not been raised within 30 days of the appointment of the Respondent No. 5, which is contrary the record. It is his submission that objection was duly raised within a period of 30 days before Project Officer and hence, it was obligatory for the Project Officer to forward the said objection to the CEO for Umesh PAGE 3 OF 10 911-WP-115-2024.odt its decision. It is his submission that it was obligation on the part of the CEO to consider the objection raised by the Petitioner with regard to the appointment of the Respondent No. 5 to the post of Anganwadi Sevika. It is his further submission that the CEO has erroneously rejected the said application on the ground that the same has not been filed within a period of 30 days. According to him, admittedly, Respondent No. 5 is having three children and as such, her appointment to the post of Anganwadi Sevika is not legal. He argued that in view of the judgment of the Coordinate Bench of this Court in case of Ranjana Vishwanath Shahane vs. State of Maharashtra and Others, 2015 SCC OnLine Bom 8333, the appointment secured by the Respondent No. 5 on the basis of false declaration so also for the reason of she having three children deserves to be set aside. 5. Without prejudice to these contentions, it is sought to be argued that the Divisional Commissioner has committed error in considering the alleged no objection tendered by the Petitioner for the appointment of Respondent No. 5. According to him, Umesh PAGE 4 OF 10 911-WP-115-2024.odt Petitioner has filed affidavit before this Court specifically stating that she has never signed any such no objection nor any thumb impression was made thereon. 6. Learned Counsel for contesting Respondent No.5 at the outset submits that Petitioner has recorded no objection to the appointment of Respondent No.5 during hearing and record indicate so. Thus according to him now it is not open for Petitioner to challenge order impugned by filing this petition. Further he submits that in view of order of Government dated 12.01.2011, the provisions of the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 would not apply to the appointment as Anganwadi Sevika or Madatnis since this Respondent No.5 has three children prior to 05.08.2010. He further submits that there is no dispute about the fact that all three children of the Respondent No. 5 were born prior to 05.08.2010. Thus, according to him, there is no embargo for the appointment of Respondent No. 5 to the post in question nor the judgment of the Coordinate Bench of this Court has application to the present case. It is his submission that once there is no embargo created Umesh PAGE 5 OF 10 911-WP-115-2024.odt against the Respondent No. 5 for having three children prior to 05.08.2010, question of Respondent No. 5 securing employment on the basis of false affidavit does not arise. It is his submission by referring to the order passed by the Divisional Commissioner that third child of Respondent No. 5 was given in adoption on 16.01.2013 to D. R. Patil. It is his submission that in view of the said adoption, it cannot be held that the affidavit filed by the Respondent No. 5 is false. 7. Learned Counsel for Zilla Parisha and learned AGP are heard. 8. Since affidavit has been filed by the Petitioner denying that there is any no objection recorded by her to the appointment of Respondent No.5 during the hearing before CEO or Divisional Commissioner and as the signature and thumb impression on the document indicating so is denied in oath, the said so called no objection is kept out of consideration. The issue involved herein is decided on its own merits. 9. There is no dispute about the fact that the Umesh PAGE 6 OF 10 911-WP-115-2024.odt Respondent No. 5 is having three children and third child is born on 01.09.2008. Respondent No. 5 has placed reliance on the order dated 12.01.2011, which reads thus: ^^izfr] eq[; dk;Zdkjh vf/kdkjh] ftYgk ifj"kn] dksYgkiwj ftYgk dksYgkiwj fo"k; %& vax.kokMh lsfodk] enruhl o feuh vax.kokMh lsfodk ;k eku/kuh inkojhy fu;qDrhlkBh ygku dqVwac gh vV ykxw dsY;kP;k fnukadkckcr--- lanHkZ %& Jh- c-e- edkunkj] lnL;] ftYgk ifj"kn] dksYgkiwj ;kaps fnukad 03-01-2011 ps i= egksn;] ojhy fo"k;kP;k lanHkkZ/khu i=kP;k vuq"kaxkus vko.kkal dGfo.;kr ;srs dh] oj uewn eku/kuh inkojhy fu;qDrhlkBh 'kklu fu.kZ; efgyk o cky fodkl foHkkx] dz- ,ckfo&2007@iz-dz-26@dk-6 fnuad 5 vkWxLV 2010 P;k 'kklu fu.kZ;kuqlkj ygku dqVwackph vV ykxw dj.;kr vkyh vkgs- R;keqGs fnukad 5 vkWxLV 2010 iqohZ T;k efgysl 03 o R;kis{kk tkLr viR;s tUekus vlrhy fdaok 5 vkWxLV 2010 rs fnukad 31 fMlsacj 2010 ;k njE;ku tUe >kY;keqGs frljs viR; gksr vlsy v'kk efgykauk lnjph vV ykxw jkg.kkj ukgh-** (emphasis supplied) 10. This communication has not been challenged by the Petitioner. In so far as the judgment of the Coordinate Bench of this Court in case of Ranjana Vishwanath Shahane (supra), no such communication was Umesh PAGE 7 OF 10 911-WP-115-2024.odt placed on record in the said proceeding indicating that there is no embargo for such appointment in case the third child is born prior to 05.08.2010. The said judgment on this count, therefore, would not have application to the instant case. 11. For want of challenge to order dated 12.01.2011, it has to be held that the third child born prior to 05.08.2010 would not become an impediment for Respondent No. 5 for her appointment to the post of Anganwadi Madatnis or Sevika. 12. Now question arises as to whether this is a case wherein there is obtainment of the employment on the basis of misrepresentation. No doubt, Respondent No. 5 has tendered an affidavit dated 23.01.2013 stating that she has two children. However, it is explained before the Authorities that the third child was given in adoption on 16.01.2013. Though said adoption is not under a registered document, question arises as to whether this can be considered as a misrepresentation to secure employment/appointment. 13. Since the third child of Respondent No. 5 was Umesh PAGE 8 OF 10 911-WP-115-2024.odt not an impediment for securing employment as Anganwadi Madatnis or Sevika, it cannot be held that the Respondent No.5 has misrepresented in any manner to secure appointment. The misrepresentation should be done of the fact to suppress the in-eligibility and that appointment came to be issued relying upon such misrepresentation to call it as a fraud. Here in this case, the appointment of Respondent No.5 has been made not on fact of two children but on merit. Since no disqualification was attached to the Respondent No. 5 on account of third child, this Court is not inclined to accept the contention of the Counsel for the Petitioner that Respondent No. 5 has secured appointment by suppressing material facts. The facts as they appear from the judgment in case of Ranjana Vishwanath Shahane (supra) are totally different than the one in hand. Once conclusion is drawn that the Respondent No. 5 has not secured appointment by misrepresentation and as there is explanation put forth in the form of third child being given in adoption, Petitioner has failed to make out any case to cause interference in the impugned orders. Umesh PAGE 9 OF 10 911-WP-115-2024.odt 14. Apart from this, it is material to note that the Petitioner practically seeks challenge to the appointment of Respondent No.5 as ‘Anganwadi Madatnis’ which has done back in year 2013. The third child is born prior to 2010. As such even the application is made to Project Officer within 30 days of appointment of Respondent No.5 as ‘Anganwadi Sevika’ in 2021, the challenge to the appointment of year 2013 suffers from delay and laches. This Court on this count also is not inclined to cause interference in the order impugned. 15. In view of above discussion, the Petition stands dismissed. (R. M. JOSHI, J.) Umesh PAGE 10 OF 10