1. Heard learned advocate Mr.Shah appearing for the petitioner and learned advocate Mr. Munshaw for respondent nos.1, 3 and 7.
2. The petitioner herein has taken out present petition seeking below mentioned relief/s and direction/s:
"14(B) Your Lordships may be pleased to quash and set aside the termination order dated 19.3.2012 passed by the Child Development Scheme Officer ICDS Division-4, Anand;
14(C) Your Lordships may be pleased to stay the implementation and execution and operation of the termination order dated 19.3.2012 pending admission and hearing of this petition.
14(C-1) Your Lordships may be pleased to allow the petition of the petitioner considering subsequent events resignation by the petitioner as a member of Taluka Panchayat the resignation tender on 29.3.2012 and same has been accepted by the authority and Your Lordships may be pleased to quash and set aside the termination order passed by the Respondent No.1."
3. It appears that the petitioner was working as Anganwadi Karyakar in the programme known as Child Development Scheme and was posted at village Vasad. She joined her duty from 27/02/2012. The petitioner claimed that her service record is spotless and she is performing her duty diligently. The petitioner has claimed that when election for Taluka Panchayat were declared she contested the election and was elected as member of Taluka Panchayat. It is not in dispute that as per applicable rules employees are allowed to contest election, however, the rules oblige such employees to make a choice, if elected, to decide as to whether the employee wants to continue as elected member of local body or wants to continue as an employee.
4. In present case, the employee was asked to exercise her choice. It is alleged by the respondents that though the respondent authority offered at least three opportunities to the petitioner to make her choice, she did not respond and ultimately at one stage she made a conditional offer which was contrary to the rules and therefore it could not be accepted by the respondent authorities.
5. The respondents have also claimed that since the petitioner failed to exercise her choice, ultimately the competent authority was constrained to terminate her service vide order dated 19/03/2012.
6. The petitioner is aggrieved by the said order of termination dated 19/03/2012.
7. Before proceedings further, it is necessary to note that after the petitioner's service came to be terminated vide order dated 19/03/2012, the petitioner preferred present petition and after preferring present petition, the petitioner has tendered resignation in Taluka Panchayat and has resigned as member of Taluka Panchayat. Now on the strength of said action on her part i.e. resignation as member of Taluka Panchayat, she has requested that the termination order passed by the respondent authority against her may be set aside and she may be allowed to continue with her service as Anganwadi Karyakar. The request made by the petitioner is resisted. Learned counsel for the respondents has submitted that in present case, respondent is not at fault. He also submitted that it was for the petitioner to exercise her choice/option and decide as to whether she wanted to continue with the employment or as a member of Taluka Panchayat, however, she failed to exercise her option.
8. Learned advocate Mr.Munshaw emphasized that though not required, the respondent authorities time and again offered opportunity to the petitioner by writing letters asking her to take appropriate decision at the earliest. However, despite such opportunities, the petitioner failed to take any decision and that therefore, the respondent had no alternative but to terminate the service of the petitioner vide order dated 19/03/2012. Learned advocate Mr.Munshaw also emphasized that after said order was passed, additional charge has been assigned to another Anganwadi Worker and the post is treated as vacant. He also submitted that in present case the petitioner has lost her right to continue in employment and order the order dated 19/03/2012 cannot be set aside in view of her own action and decision or rather on account of delay in taking decision.
9. Learned counsel for the petitioner submitted that the petitioner has already resigned from Taluka Panchayat and that earlier also, the petitioner had made request to the respondent authority vide communication dated 19/12/2011 (Annexure-D, page-31) and that therefore, it is not proper to find fault with the petitioner.
10. In light of the documents available on record and in view of the submissions made by learned counsel for the petitioner, it appears that the petitioner is now put in very difficult position inasmuch as because of the order dated 19/03/2012, she has lost her job as Anaganwadi Karyaka and on the other hand since she has resigned from Taluka Panchayat, she does not continue as member of Taluka Panchayat also.
11. In view of said position, it was inquired from learned advocate for the respondents as to whether any other appointment has been made in place of the petitioner or not. In reply, learned advocate Mr.Munshaw for the respondent authorities submitted that any appointment has not been made but charge of the post which the petitioner occupied is given to some other person.
12. Thereafter, another information was requested for from the learned counsel for respondents i.e. whether any advertisement inviting application for filling up of the post has been issued or not. In reply, learned advocate Mr.Munshaw submitted that no such advertisement has been issued and any application have not been invited.
13. Therefore it appears that it is still not late in time when both the sides can mend the situation and appropriate corrective steps can be taken.
14. It is not in dispute that service of the petitioner has not been terminated on account of any misconduct.
15. It is also not in dispute that petitioner has now resigned from Taluka Panchayat as member of Panchayat.
16. It is true that the petitioner caused some delay in taking decision, despite opportunities granted by the respondent authorities. However, now when she has resigned from Taluka Panchayat, it would be appropriate if the respondents authorities reconsider the decision.
17. Therefore, having regard to the above aspects, below mentioned order is passed:
18. The petition deserves consideration. Hence, Rule returnable on 09/07/2012.
19. In the meanwhile the respondent competent authority shall consider the request of the application to restore her in service by setting aside the order passed by respondent no.1 and respondent competent authority i.e. respondent no.6 and/or 4 may consider request made by the petitioner to restore her in service by setting aside the order passed by respondent no.1.
20. For the aforesaid purpose the petitioner herein shall submit request-application to respondent nos.4 and/or 6 within one week from today. The respondent no.4 and/or respondent no.6, whichever is competent authority, shall take decision on the application as early as possible preferably on or before 30/06/2012. The decision shall be conveyed to the petitioner and other respondents. Learned counsel for respondent nos.1, 3 and 7 shall place the said decision on record of present petition before the date of final hearing.
21. The aforesaid directions are made by way of interim arrangement. After the order passed by respondent no.4 and/or 6 i.e. by the authority competent to take decision is place on record, the matter may be examined further and appropriate order may be passed. Direct service is permitted.
(K.M.THAKER, J.) (ila) Top