Patel Hardikkumar Jagdishbhai v. State of Gujarat Through Secretary
2008-11-11
K.M.THAKER, R.M.DOSHIT
body2008
DigiLaw.ai
Judgment R.M. Doshit, J.—This group of Appeals preferred under Clause 15 of the Letters Patent arise from the common judgment and order dated 12.08.2008 passed by the learned Single Judge in above writ petitions. The appellants are the writ petitioners. The subject matter of dispute is the selection for appointment as Vidya Sahayak in the primary schools run and managed by the District Panchayats/Nagar Panchayats/Municpalities/Municipal Corporations in the State of Gujarat. 2. In supersession of its earlier Resolution dated 01.07.1974, on 25.02.1980, the State Government passed a resolution in respect of employment of sports persons to Class-III and Class-IV service by relaxing the standard of selection. The preamble of the said Resolution speaks of encouraging the Government servants in Class-III and Class-IV service in sports activities. It provides that other things being equal, the sports persons be selected for appointment to Class-III and Class-IV service. Paragraph 2 of the said Resolution provides for addition of marks to the extent of 5% to the marks obtained at oral or written competitive test given by the Gujarat Public Service Commission. In case of recruitment on the basis of oral interview based on the marks obtained at the qualifying examination, it provides that the standard of selection be lowered not exceeding the extent of 5%. Paragraph 3 of the said Resolution provides that the sports persons who have secured first, second or third position in any state level or national level tournament or are the members of a winning team at such tournament are eligible for the benefit of the said Resolution. It further provides for the games which are approved for such benefit. The games which are approved for the purpose include weight-lifting, gymnastics, volleyball, kabbadi, football and wrestling. The Resolution also provides for the authorities which are competent to issue such certificate. The authorities competent to issue such certificate are the Secretary of the state level association or the national level association. 3. The aforesaid Resolution dated 25.02.1980 has been modified on 01.08.1990 to extend the said benefit not only to the sports persons securing first, second or third position or to members of the winning team but to all sports persons who participate in national or international or inter-university tournaments or in the tournaments organized by Akhil Bharat Shala Sangh. 4.
3. The aforesaid Resolution dated 25.02.1980 has been modified on 01.08.1990 to extend the said benefit not only to the sports persons securing first, second or third position or to members of the winning team but to all sports persons who participate in national or international or inter-university tournaments or in the tournaments organized by Akhil Bharat Shala Sangh. 4. The appellants are the sports persons who claim to have participated in various games at national or state level tournaments organized by the respondents Associations so as to claim the benefit of additional marks for appointment as Vidya Sahayak under the aforesaid Resolution dated 25.02.1980. 5. On 21.04.2008 the State Government advertised a public notice for appointment of large number of Vidya Sahayaks(assistant teachers in primary schools) in the State of Gujarat. Pursuant to the decision of the State Government to fill-in the vacant posts of Vidya Sahayak, the concerned Panchayats/Municipalities/Municipal Corporations published advertisements in daily newspapers to invite applications from eligible candidates for appointment as Vidya Sahayak under the concerned Panchayat/ Municipality/Municipal Corporation. Pursuant to the said advertisements the appellants made application with relevant documents including sports certificates. 6. It is not in dispute that appointment to the post of Vidya Sahayak is made in order of merit. The merit is assessed on the basis of the marks obtained at S.S.C., H.S.C. and qualifying examination(P.T.C./C.P.Ed./D.P.Ed.). The State Government has prescribed arithmetical formula to assess the comparative merits of the applicants. It is also not in dispute that the appellants fall short in the merit list. However, if they are given the benefit of enhanced marks on the basis of the sports certificates, they do have a chance to get into the merit list. In that case, they will displace the candidates who are already in the merit list. However, by decision dated 17.07.2008 the Director of Primary Education has decided not to accept the sports certificates issued by the respondent Associations. In other words, the sports certificates produced by the appellants are not acceptable to the respondents authorities. The appellants will not be given the benefit of enhanced marks for such sports certificates. In the process, the appellants will lose their chance to be selected for appointment as Vidya Sahayak.
In other words, the sports certificates produced by the appellants are not acceptable to the respondents authorities. The appellants will not be given the benefit of enhanced marks for such sports certificates. In the process, the appellants will lose their chance to be selected for appointment as Vidya Sahayak. It is this communication dated 17.07.2008 sent by the Director of Primary Education to all District Primary Education Officers which was subject matter of challenge in the above writ petitions. The challenge has failed before the learned Single Judge. Therefore, the present Appeals. 8. The arguments of all the learned Advocates are common. In the submission of the learned advocates, the impugned communication dated 17.07.2008 amounts to blacklisting of the respondent Associations and depriving the appellants of the additional marks otherwise available to them. Such communication, therefore, could not have been issued without affording opportunity of hearing to the respondent Associations and also to the affected applicants(the appellants). The said communication does not disclose the reasons why such decision was taken. The said communication is now explained by filing affidavits in the present proceedings. The submission is that the impugned communication has to be read as such and cannot be explained by the affidavits filed in the present proceedings. Ex-facie, the said communication is not a speaking order. The said communication is illegal, null and void. The learned Advocates have taken us through each and every sports certificate which is produced on the record of the proceedings to show that they are genuine certificates and the appellants are entitled to the additional marks based on the said certificates. It is also submitted that the impugned communication metes unfair treatment to the appellants. The decision is based on a mere suspicion. In absence of any proof of illegality, such a decision could not have been taken on mere suspicion.
It is also submitted that the impugned communication metes unfair treatment to the appellants. The decision is based on a mere suspicion. In absence of any proof of illegality, such a decision could not have been taken on mere suspicion. In support of their submissions, the learned Advocates have relied upon the judgments in the matters of Commissioner of Police, Bombay vs. Gordhandas Bhanji, [ AIR 1952 SC 16 ]; of V. Balasubramaniam vs. Tamil Nadu Housing Board and Others, [ AIR 1988 SC 6 ]; of M/s. Star Enterprises and Others vs. City and Industrial Development Corporation of Maharashtra Limited and Others, [ (1990) 3 SCC 280 ]; of National Buildings Construction Corporation vs. S. Raghunathan and Others [ (1998) 7 SCC 66 ]; of Gulzar Singh vs. Sub-divisional Magistrate and Another, [ (1999) 3 SCC 107 ]; of Sisir Kumar Mohanty and Others vs. State of Orissa and Others, [ (2002) 9 SCC 219 ]; of Hindustan Petroleum Corporation Limited vs. Darius Shapur Chenai and Others, [ (2005) 7 SCC 627 ]; of Dolly Chhanda vs. Chairman, Jee and Others, [ (2005) 9 SCC 779 ]; of Union of India vs. R. Bhusal, [ (2006) 6 SCC 36 ]; of Rajesh Kumar and Others vs. Dy. CIT and Others, [ (2007) 2 SCC 181 ] and of Commissioner of Sales Tax, Orissa and Others vs. Crown Re-roller(P) Limited and Others, [ (2007) 3 SCC 659 ]. 9. The Appeals are contested by learned Government Pleader Mr. Sunit Shah. He has supported the judgment of the learned Single Judge. He has submitted that the certificates produced by the appellants are ex-facie doubtful. The State Government could not have accepted the said certificates for the purpose of employment in the Government service. The respondent Associations were given opportunity to produce relevant materials and of hearing to establish their authenticity/the authenticity of the tournaments allegedly organized by them. After considering the available materials, the State Government decided not to accept such doubtful certificates for enhancement of marks of the concerned applicants. By impugned communication, the State Government has instructed the concerned authorities not to accept the said certificates as genuine and not to grant the additional marks on the basis of such certificates. Nevertheless, the concerned applicants(the appellants) are considered for appointment as Vidya Sahayak on the basis of their qualifying marks. 10.
By impugned communication, the State Government has instructed the concerned authorities not to accept the said certificates as genuine and not to grant the additional marks on the basis of such certificates. Nevertheless, the concerned applicants(the appellants) are considered for appointment as Vidya Sahayak on the basis of their qualifying marks. 10. The learned Single Judge has elaborately discussed the above arguments. The learned Single Judge has also examined individual sports certificates produced on the record. We, therefore, do not discuss each sports certificate produced on the record. Suffice it to note that one Sanjay Vakil, Honorary Secretary of the Indian Wrestling Association of Gujarat has made affidavit. It is stated that during the period from the years 2003 to 2008 the said Association had issued 440 sports certificates. As against that as many as 6878 certificates issued by the said Association, signed by the said Shri Sanjay Vakil are produced by the concerned applicants in support of their application for appointment as Vidya Sahayak. We are alive to the fact that some of the applicants may have made multiple applications but that too would not explain the grossly excessive(17 times) number of certificates produced by the candidates. Besides, the holding of certain tournaments or the participation in such tournaments viz. cross-country running race at Thane and the Kabaddi tournament held at Anand are highly doubtful. 11. It should be noted here that it is not the case of the State Government that the appellants have produced false or forged sports certificates. The objection is in respect of the authenticity of the associations organizing the tournaments or the alleged tournament itself is questionable. If the State Government has decided to keep such doubtful certificates out of consideration, the Court of law should not make exception about it. Moreover, neither the appellants have right to appointment nor a right to selection. All that they can claim is a right to be considered for selection, the said right has not been abridged by the impugned action. What is taken away is the preferential treatment given on the basis of participation in certain sports event.
Moreover, neither the appellants have right to appointment nor a right to selection. All that they can claim is a right to be considered for selection, the said right has not been abridged by the impugned action. What is taken away is the preferential treatment given on the basis of participation in certain sports event. In a case like the present one where a large scale fraud has been perpetrated upon the public authority, issuance of show-cause notice to each individual is neither possible nor necessary(reference can be had to the decisions of the Hon’ble Supreme Court in the matters of The Bihar School Examination Board vs. Subhas Chandra Sinha and Others, [ AIR 1970 SC 1269 ]; of M/s. Andhra Steel Corporation Limited vs. The Andhra Pradesh State Electricity Board and Another, [ AIR 1991 SC 1456 ]; of Union Territory of Chandigarh vs. Dilbagh Singh and Others, [ AIR 1993 SC 796 ]; of Union of India and Others vs. O.Chakradhar, [ (2002) 3 SCC 146 ] and of Karnataka Power Corporation Limited and Another vs. A.T. Chandrashekar, [ AIR 2007 SC 2480 ]). 12. What is paramount is public interest, particularly primary education and for that matter selection and appointment to the posts of Vidya Sahayak. The production of inexplicably large number of sports certificates, genuineness of which is doubtful, has already delayed the process of selection and appointment of Vidya Sahayak by nearly six months. Such delay is detrimental to the primary education in the State. 13. For the aforesaid reasons, we agree with the learned Single Judge. No case for interference is made out. The Appeals are dismissed. Civil Applications stand disposed of. Interim relief stands vacated. The parties will bear their own cost. 14. Learned Advocate Mr. Ashish Desai requests that the recruitment process be stayed for a period of three weeks. Request is rejected. Registry will send the writ forthwith. Registry is directed to maintain copy of this judgment in each Appeal.