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2010 DIGILAW 147 (GUJ)

Patel Pinalben Dashratbhai v. State of Gujarat

2010-03-11

M.D.SHAH, R.M.DOSHIT

body2010
JUDGMENT : R.M. Doshit, J. With the consent of the learned advocates, the Appeals are heard and decided today. 2. This group of Appeals preferred under Clause 15 of the Letters Patent arise from the judgment and order dated 28th January 2010 passed by the learned Single Judge in above Special Civil Applications. The appellants are the writ petitioners. The appellants are the persons who have taken PTC training [Primary Teacher's Course] for two years in the colleges recognised by the State of Gujarat and the National Council for Education Training, Bhopal. The petitioners have taken and have passed the PTC examination conducted by the State Examination Board, Gujarat State, Gandhinagar between the years 2004 and 2008. 3. The matter at dispute is the selection procedure for appointment of Vidya Sahayaks in the State of Gujarat. On 22nd December 2009, an advertisement was published to invite applications from the eligible candidates for appointment of Vidya Sahayaks under various District Primary Education Committees in the State of Gujarat. The selection for appointment of Vidya Sahayaks is made on the basis of aggregate marks obtained by the candidates at the qualifying examinations - HSC-PTC; Graduate-B.Ed.; HSC-CP.Ed. It is not in dispute that the merit list is drawn on the basis of marks obtained in the qualifying examinations. Forty per cent of the marks are attached to the first qualifying examination, that is to say, HSC or Graduation. Sixty per cent marks are attached to the later qualifying examinations; say PTC/B.Ed./CP.Ed. The dispute arose on account of marking pattern at the PTC examination which has undergone change over the years. 4. It appears that earlier, the PTC examination was of total 1600 marks which was in the later years reduced to 1500/1450 and since 2009, the total marks are reduced to 1000 marks. Evidently, if sixty per cent of the total marks obtained were considered, the candidates who had passed the PTC examination in the earlier years viz., in the year 2008 or earlier, would stand at an advantage. This position gave rise to a litigation. The aggrieved candidates who have passed PTC examination in the year 2009 approached this Court under Article 226 of the Constitution in Special Civil Application No. 13743 of 2009. Pending the said petition, the State Government issued Clarification/Explanation dated 6th January 2010. This position gave rise to a litigation. The aggrieved candidates who have passed PTC examination in the year 2009 approached this Court under Article 226 of the Constitution in Special Civil Application No. 13743 of 2009. Pending the said petition, the State Government issued Clarification/Explanation dated 6th January 2010. The said explanation redressed the grievance of the petitioners in Special Civil Application No. 13743 of 2009. Eventually, the writ petition was disposed of. However, the said explanation has triggered the present set of writ petitions. The appellants are aggrieved by the aforesaid clarification/explanation dated 6th January 2010 and the consequent circular dated 15th January 2010. The appellants have passed the PTC examination in the year 2008 or earlier. According to then prevalent system, the result of the PTC was based on the marks awarded on internal evaluation at the written examination and the practical examination. Under the Circular dated 15th January 2010, the State Government has decided that only the marks obtained at the written examination and the practical examination will be considered for ascertaining the comparative merit of the candidates. In other words, the marks awarded for the internal evaluation - out of total 450/300 as the internal marks will be ignored for the purpose of selection of the Vidya Sahayaks. This clearly places the appellants to a disadvantage. Therefore, the writ petitions. 5. Before the learned Single Judge, the appellants challenged the above referred Circular dated 15th January 2010. The appellants' claim is that they had passed the PTC examination in the year 2008 or earlier. At the time, the recruitment of Vidya Sahayaks was governed by the Government Resolution dated 3rd September 2004. The right of the appellants were accordingly crystallized. The same could not have been altered to the detriment of the appellants. The subsequent Resolution of 7th July 2008, though did do away with the internal evaluation, did not affect the rights accrued to the appellants under the above referred Circular dated 3rd September 2004. It is now for the first time under Circular dated 15th January 2010, the rights accrued to the appellants under Circular dated 3rd September 2004 have been abrogated with a view to striking equality between the candidates who have passed the PTC examination in the year 2009 and those who have passed examination in the year 2008 or earlier. It is now for the first time under Circular dated 15th January 2010, the rights accrued to the appellants under Circular dated 3rd September 2004 have been abrogated with a view to striking equality between the candidates who have passed the PTC examination in the year 2009 and those who have passed examination in the year 2008 or earlier. The marks obtained by the appellants in the internal examination have been ignored. The impugned circular is thus arbitrary in so far as it affects the vested rights of the appellants. 6. The learned Single Judge has, by the impugned judgment and order dated 28th January 2010, rejected the contention. The learned Single Judge was of the opinion that it was a matter of policy that, such modification was along the policy and decision of the Government after consideration of relevant facts and circumstances, which cannot be subjected to judicial review. Therefore, the argument that the Government has changed the rules by changing the criteria for selection after starting the process of recruitment is negatived and rejected. 7. The question is that of recruitment for appointment to the post of Vidya Sahayaks. The scheme for appointment of Vidya Sahayaks to aid the primary education in the State of Gujarat was evolved by the State Government in June, 1998. It was decided to make appointment of Vidya Sahayaks on vacant posts of primary school teachers on a consolidated pay from amongst the candidates possessing educational qualification - [i] SSC-PTC; [ii] Trained Graduates (Graduation & a Post-Graduate Degree in Education); [iii] SSC-CP Ed. (Certificate in Physical Education). It was also decided that for selection of the candidates, the marks be calculated on the basis of forty per cent of the marks obtained at SSC or Graduation examination; as the case may be, and sixty per cent of the marks obtained at the PTC or B.Ed. or CP.Ed. Examination; as the case may be. The said criteria was modified to the extent that the required qualification was raised to that of HSC-PTC or HSC-CP.Ed. The evaluation of merit was maintained in the same manner i.e., forty per cent of the marks obtained at HSC or Graduation examination and sixty per cent of the marks obtained in PTC or B.Ed. or CP.Ed. examination. 8. Under its Resolution dated 9th June 1998, the Government of Gujarat modified the admission rules to the PTC. The evaluation of merit was maintained in the same manner i.e., forty per cent of the marks obtained at HSC or Graduation examination and sixty per cent of the marks obtained in PTC or B.Ed. or CP.Ed. examination. 8. Under its Resolution dated 9th June 1998, the Government of Gujarat modified the admission rules to the PTC. Since the academic year 1998-99, the required qualification for admission to PTC was raised to HSCE [Higher Secondary School Certificate Examination] from that of SSCE [Secondary School Certificate Examination]. With a view to keeping pace with the modified admission rules to PTC, the State Government under its Resolution dated 21st June 2000 modified the rule of eligibility. Under Government Resolution dated 1st October 2001, the State Examination Board modified the pattern of PTC examination. The State Government under its Resolution dated 3rd September 2005 modified the standard of selection for recruitment of Vidya Sahayaks. Under its Resolution dated 7th July 2008, the State Government modified the examination pattern for PTC examination effective from the academic year 2008-2009. Under the modified pattern, the weightage to the internal marks has been done away with so that the examination result is based on written examination of 900 marks and practical examination of 100 marks [50 marks for annual lesson and 50 marks for computer knowledge]. Now, in the year 2010, the competition is between the candidates who have passed PTC examination of total 1000 marks in the year 2009 and the candidates who have passed the PTC examination of total 1500 marks earlier. The competition being not amongst the equals, the State Government was required to strike the balance. That balance has been struck by the impugned circular dated 15th January 2010. The State Government has decided that for all candidates only the marks obtained in the external examination and practical examination out of total of 1000 marks will be considered for recruitment as Vidya Sahayak. In other words, the marks obtained by the candidates for internal evaluation will not be considered for the purpose of recruitment as Vidya Sahayak. Evidently, those of the candidates who had secured better marks for internal evaluation would stand to lose in competition. 9. Learned advocate Mr. S.I Nanavati appears for the appellants in Letters Patent Appeal Nos.173 of 2010; 153 of 2010 & 241 of 2010. Evidently, those of the candidates who had secured better marks for internal evaluation would stand to lose in competition. 9. Learned advocate Mr. S.I Nanavati appears for the appellants in Letters Patent Appeal Nos.173 of 2010; 153 of 2010 & 241 of 2010. He has submitted that the impugned circular abridges the vested rights of the appellants of selection on the basis of the marks out of the total 1500 marks, including the marks allotted for internal evaluation. He has submitted that until the Resolution dated 7th July 2008, the marks obtained in internal evaluation were considered for selection for appointment as Vidya Sahayak. Even under Government Resolution dated 7th July 2008 this position continued as the said resolution was made prospective in its application i.e., with effect from the academic year 2008-2009. The appellants who had passed the PTC examination in the year 2008 or earlier were not adversely affected by the said Resolution. It is the impugned circular dated 15th January 2010 which has changed the position to the detriment of the appellants' interest. He has submitted that no change in Government policy could be made retrospectively so as to adversely affect the vested right of the appellants. In support of his submission, he has relied upon the judgments of the Hon'ble Supreme Court in the mattes of Punjab University v. Subhas Chander & Anr., [ (1984) 3 SCC 603 ]; and of Chairman, Railway Board & Ors. v. C.R Rangadhamanaiah & Ors. [ 1997 (6) SCC 623 ]. 10. In the alternative, Mr. Nanavati has submitted that if at all the State Government was required to strike balance amongst the candidates not equally situated, the State Government could have decided to scale down the marks obtained by the candidates out of the total 1500 marks proportionately so as to bring them at par with the candidates who have passed the examination of a total 1000 marks. But in no circumstances, the State Government can be permitted to ignore the marks obtained by the appellants for internal evaluation. The appellants had to work hard to secure good marks for internal evaluation. If the marks for internal evaluation are not considered for the purpose of selection for appointment as Vidya Sahayak, the appellants would stand to lose. But in no circumstances, the State Government can be permitted to ignore the marks obtained by the appellants for internal evaluation. The appellants had to work hard to secure good marks for internal evaluation. If the marks for internal evaluation are not considered for the purpose of selection for appointment as Vidya Sahayak, the appellants would stand to lose. He has submitted that the impugned circular dated 15th January 2010 is arbitrary to the extent the appellants' vested right is abrogated as aforesaid and requires to be quashed and set-aside. 11. Learned advocates Mr. I.S Supehia, Ms. Nisha M. Parikh & Ms. Tejal Vashi appearing for the appellants in respective Letters Patent Appeals have adopted the arguments advanced by Mr. Nanavati. 12. We are afraid, we are unable to agree with the contentions raised by Mr. Nanavati. 13. The grievance made by the appellants is based on a misconception of law. First, by passing PTC examination, no right is conferred upon the appellants to appointment as Vidya Sahayak. Second, it is also misconceived that the State Government is under obligation to consider the marks obtained by the candidates at PTC examination in its entirety, for recruitment as Vidya Sahayak. The passing of PTC examination is one thing and the selection for appointment as Vidya Sahayak is another. It is a mere co-incidence that in the present case, the PTC examination is conducted by the State Examination Board. In other words, it is the State Government which gives the PTC examination and by and large the persons who have passed the PTC examination do secure employment as Vidya Sahayak in the Primary Schools run by various District Panchayats/Municipalities. But, in our opinion, two things are quite different. 14. As recorded here-in-above, there are two sets of Resolutions/Circulars running parallel. One set of Resolutions/Circulars are issued in respect of the PTC course and the PTC examination i.e., the requisite qualification for admission to PTC course; the number of subjects in the PTC course and the pattern of examination. There is a constant change in the pattern of examination i.e., whether or not to have internal evaluation; what should be the extent of weightage to the internal evaluation; what should be the total marks in the examination, etc. 15. The other set of Resolutions/Circulars deal with recruitment of Vidya Sahayaks. There is a constant change in the pattern of examination i.e., whether or not to have internal evaluation; what should be the extent of weightage to the internal evaluation; what should be the total marks in the examination, etc. 15. The other set of Resolutions/Circulars deal with recruitment of Vidya Sahayaks. It is evident that the pattern of recruitment of Vidya Sahayak has been changed from time to time to fall in line with the pattern in PTC examination. Now that since the academic year 2008-2009 the State Government has done away with the internal evaluation at the PTC course, the question of considering the marks of internal evaluation for the purpose of selection of Vidya Sahayak would not arise. Further, the selection process is required to be uniformly applied to all candidates irrespective of the year of their passing the examination or the pattern of examination in the relevant year. The policy decision contained in the Government Resolution dated 7th July 2008, therefore, will apply to all recruitment procedures conducted after 7th July 2008 uniformly to all the candidates. It is manifestly wrong to say that the present policy contained in the Government Resolution dated 7th July 2008 and the Circular dated 15th January 2010 cannot be made applicable to the appellants who have passed the PTC examination prior to the academic year 2008-2009. It is equally wrong to say that the policy has been applied retrospectively. The said Resolution and the Circulars are indeed applied prospectively i.e., to the recruitment procedures commencing after 7th July 2008, the date of the Resolution. 16. Let us examine the very issue from another angle. If we accept the argument of the appellants; it would mean that in the same recruitment process, the State Government should apply two different sets of selection standards - one for the candidates who have passed the PTC examination in the year 2009 and other for the candidates who have passed the PTC examination in the year 2008 or earlier. The contention which leads to such absurdity has to be rejected. 17. In our view the learned Single Judge has rightly held that determination of standard of selection is a matter of policy and that the Court should not interfere with it. The contention which leads to such absurdity has to be rejected. 17. In our view the learned Single Judge has rightly held that determination of standard of selection is a matter of policy and that the Court should not interfere with it. More so, when we are of the opinion that neither the appellants have a vested right to selection for appointment as Vidya Sahayak nor to selection by a particular method which was prevalent at the time of their passing the PTC examination. 18. As to the feasibility of scaling down the marks proportionately, we are of the opinion that while exercising the power of judicial review under Article 226, we need not usurp the advisory jurisdiction. 19. In the matter of Punjab University v. Subash Chander & Anr. [Supra], the Hon'ble Court had an occasion to consider the claim of a student of medical college for grace marks in accordance with the rules prevalent at the time of his admission to medical college and not in accordance with the rules prevalent at the time of the concerned examination. The argument was that a change in the rules relating to the award of grace marks brought about in the month of May 1970, after the student had secured admission in the year 1965, could not be applied retrospectively to the student concerned. In answer to the argument, the Hon'ble Court held that the change in the rules was prospective. The Court observed, - It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subhash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration to the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course. 20. In the matter of Chairman, Railway Board & Ors. [Supra], the matter at issue was the amendment made to a service regulation affecting the running staff of the railways. 20. In the matter of Chairman, Railway Board & Ors. [Supra], the matter at issue was the amendment made to a service regulation affecting the running staff of the railways. The impugned amendment not only operated in future, had an effect of reversal from an anterior date, adversely affecting the pension of the retired running staff [personals employed as Drivers, Guards, etc., attached to the railway]. The Hon'ble Court accepted the proposition that once a person joins service under the Government, the relationship between him and the Government is in the nature of status rather than contractual and the terms of his service while he is in employment, are governed by statute or statutory rule, which may be unilaterally altered without the consent of the employees. But, the Court held, It can, therefore, be said that a rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retro activity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. 21. Both the above referred principles are well established and do not call for further deliberation. 22. The question is whether or not the appellants before us had a vested right for being considered for recruitment as Vidya Sahayak in a particular manner; whether or not the decision to consider only the external marks and the practical marks obtained at the PTC examination for recruitment under process is arbitrary in as much as in operates retrospectively; as alleged. 23. As discussed here-in-above, we are of the opinion that passing of PTC examination did not confer a vested right unto the appellants to employment as Vidya Sahayak or to be considered for employment as Vidya Sahayak in a particular manner. Further, for any recruitment process a uniform policy is required to be applied. Such policy, merely because the participating candidates have passed the PTC examination in different years, cannot be said to be retrospective. Further, for any recruitment process a uniform policy is required to be applied. Such policy, merely because the participating candidates have passed the PTC examination in different years, cannot be said to be retrospective. If the contention is accepted the present recruitment process can be said to have been applied with effect from 2004 and also with effect from 2005, from 2006, from 2007, etc. The absurdity of the argument is explicit and requires to be rejected. 24. For the aforesaid reasons, we dismiss this set of Appeals. Civil Applications stand disposed of. Ad interim relief, if any, stands vacated. 25. Learned advocate Mr. Nanavati requests that the interim order made on 14th February 2010 [Coram : Mr. Justice Bhagwati Prasad & Mr. Justice Bankim N. Mehta] be continued for four weeks. Continuation of interim order will result into posts being kept vacant and would also lead to preparation of merit list on the basis of two different principles. The Appeals having been dismissed, neither the posts are required to be kept vacant nor the respondents are required to prepare two merit lists applying two different principles. The request is rejected. Appeals dismissed.