JUDGMENT :

MAULIK J.SHELAT, J.

[1] Heard Ms. Mamta R. Vyas, learned advocate for the petitioner, Ms. Forum Sukhadwala, learned AGP for the respondent – State, Mr. H.S.Munshaw, learned advocate for respondent No.3 as also Mr.

Premal Joshi, learned advocate for respondent No.4, at length.

[2] The present writ petition is filed under Articles 14 and 226 of the Constitution of India, seeking the following reliefs:-

“(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider the application of the petitioner for the promotion to the post of Supervisor/Mukhya Sevika and further be pleased to direct the respondents to include the name of the petitioner in the list and consider the application of the petitioner on the basis of the list;

(B) Pending admission, hearing and final of this Writ petition, Your Lordships may be pleased to direct the respondent to include the name of the petitioner at appropriate place and consider the application of the petitioner and further be pleased to restrain the respondents from giving the promotion to the juniors of the petitioner;

(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordship in the facts and circumstances of the case.”

[3] At the outset, it is required to be observed that during the pendency of this petition, petitioner was nominated to the post of Mukhya Sevika (Class-III) on 26.09.2016. So, in that view of the matter, the only question required to be examined by this Court is, whether the petitioner is entitled to be appointed to the post of Mukhya Sevika (Class-III) with effect from 2010 or not.

[4] Ms. Mamta R. Vyas, learned advocate for the petitioner would submit that prior to preparation of seniority list in the year 2010, the respondent was considering the seniority of the Aanganwadi workers unit-wise and out of the list, the eligible candidates were nominated by the respondents for the post of Mukhya Sevika. It is submitted that the petitioner was belonging to Aanganwadi Center situated at Bhadavav, Taluka – Palitana, Dist - Bhavnagar and one Parmar Urmilaben Vashrambhai from said center was nominated for the post of Mukhya Sevika, which was objected by the petitioner as she was not qualified and accordingly, her appointment to the post of Mukhya Sevika was cancelled.

[4.1] Ms. Vyas, learned advocate would further submit that since the appointment of said Urmilaben came to be set aside / cancelled, petitioner belongs to scheduled caste – reserved candidate was the only eligible candidate to be nominated for the post of Mukhya Sevika by respondent and having not done so, it violated the fundamental right of the petitioner to be nominated for the post of Mukhya Sevika.

[4.2] Ms. Vyas, learned advocate would further submit that in the year 2007, when respective Aanganwadi workers nominated for the post of Mukhya Sevika, they have been selected from unit-wise and accordingly, given appointment, whereas in the year 2010, when the candidature of the petitioner to be considered, a common seniority list was prepared by the respondent for entire district and nomination was not considered unit-wise.

[5] Per contra, Mr. H.S.Munshaw, learned advocate for respondent No.3 would vehemently oppose this petition and has relied upon the affidavit in reply and further affidavits filed by the respondents. It is submitted that since the seniority list was prepared for entire district, there was no reason to nominate the candidate unit-wise. It is further submitted that in the year 2010, when seniority list was prepared, petitioner was not found meritorious and due to such reason, her name was not nominated. It is further submitted that there were two other scheduled caste Aanganwadi workers found above the petitioner in the merit list and for such reason, petitioner’s claim is unjustified and unsustainable.

[5.1] It is further submitted that the petitioner has no right to clai