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2010 DIGILAW 587 (GUJ)

Patel Alpaben Ambalal v. State Of Gujarat

2010-12-14

ABHILASHA KUMARI

body2010
JUDGMENT SMT.ABHILASHA KUMARI, J. 1. RULE. Mr. Anand L. Sharma learned Assistant Government Pleader waives service notice of RULE for respondents Nos.1 and 2 and Mr. H.S. Munshaw, learned Advocate, waives service of notice of RULE on behalf of respondent No.3. On the facts and in the circumstances of the case, and with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided, today. 2. BY way of this petition, under Article 226 of the Constitution of India, the petitioner assails the action of respondent No.3 in not adhering to the policy of reservation of 30% of posts for women, formulated by the State Government, thereby depriving the petitioner of appointment as Vidya Sahayak under the said policy. Briefly stated, the relevant facts of the case are that respondent No.3, District. Primary Education Officer, Kheda District Education Committee, issued advertisement dated 21.12.2009, for recruitment of a total number of 141 Vidya Sahayaks. Out of these, seven vacancies were notified for candidates possessing the qualification of Certificate of Physical Education (C.P. Ed.). Out of the said seven vacancies, four vacancies were reserved for the Socially and Educationally Backward category (S.E.B.C.) and the remaining three posts were. advertised for the Open/ Unreserved Category. The petitioner, having passed the H.S.C. (Higher Secondary Certificate) and C.P.Ed. examinations, applied for appointment as Primary Teacher/Vidya Sahayak, being eligible and qualified for such appointment, in the Open/Unreserved Category. It is specifically stated in the said advertisement that 30% of the vacancies-are reserved for women as per. policy decision of the State, Government. The Government of Gujarat, vide Notification dated 09.04.1997, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, has framed Rules called the Gujarat Civil Services (Reservation of Posts for Women)Rules, 1997('the Rules' for short). As per Rule 2 of the Rules, 30% reservation is provided for women in the posts meant for the Scheduled Caste (S.C.), Scheduled Tribe (S.T.), Socially and Educationally Backward (S.E.B.C.) and Open/Unreserved categories respectively. Pursuant to the application of the petitioner, she was issued Acknowledgment dated 01.01.2010. The petitioner was also issued interview call letter dated 20.03.2010, asking her to remain present on 30.03.2010. In the interview letter, the word "waiting" was written by hand, on the left hand top corner of communication dated 20.03.2010 and the words 'CPEd/W/1' was written at the bottom. Pursuant to the application of the petitioner, she was issued Acknowledgment dated 01.01.2010. The petitioner was also issued interview call letter dated 20.03.2010, asking her to remain present on 30.03.2010. In the interview letter, the word "waiting" was written by hand, on the left hand top corner of communication dated 20.03.2010 and the words 'CPEd/W/1' was written at the bottom. As the petitioner was hopeful of being placed in the select-list of candidates in view of 30% reservation for women in the concerned category, she applied for information under the Right to Information Act, 20050R.T.I. Act' for short) on 25.03.2010, to respondent No.3. The said respondent did not give any reply to the application of the petitioner. However, the petitioner remained present at the oral interview on 30.03.2010, and she was duly selected. Admittedly, there are no marks for the oral interview in the policy of recruitment and the recruitment is based on 100% objective criteria of marks obtained at the qualifying examinations. Thereafter, other candidates were given appointment in the months of March/April 2010 but the petitioner was not issued any appointment order. The petitioner, therefore, pursued the matter by seeking further information under the R.T.I. Act. Pursuant thereto, respondent No.3 issued letter dated 16.08.2010 inviting the petitioner for inspection of records and for obtaining copies of relevant documents. The petitioner was provided with a copy of the select-list and waiting-list of C.P.Ed. Candidates, as per Annexure- 'G'. In the said list, in the category of the petition, namely Open/Unreserved Category, no woman has been selected and the petitioner has been placed in the waiting-list. 3. BEING aggrieved by the action of respondent No.3 in not including her name in the select-list on the basis of the policy of the State Government providing for 30% reservation for women, the petitioner has approached this Court by filing the petition. 4. MR. K.B. Pujara, learned Advocate for the petitioner submits that as per the Rules framed by the State Government, 30% of the posts in the S.C., S.T., S.E.B.C. and Open/ Unreserved categories, respectively shall be reserved in favour of women. In the advertisement dated 21.12.2009, seven vacancies are notified for candidates possessing the qualification of C.P.Ed. Out of these seven vacancies, four vacancies are reserved for S.E.B.C. category. Respondent No.3 has selected one woman candidate in the S.E.B.C. category, for which the petitioner is not concerned. In the advertisement dated 21.12.2009, seven vacancies are notified for candidates possessing the qualification of C.P.Ed. Out of these seven vacancies, four vacancies are reserved for S.E.B.C. category. Respondent No.3 has selected one woman candidate in the S.E.B.C. category, for which the petitioner is not concerned. Out of the three remaining vacancies in the Open/ Unreserved Category, no woman candidate has been selected, as per the policy of reservation, but respondent No.3 has selected all three male candidates, in flagrant violation of the Rules. It is emphatically submitted by the learned Advocate for the petitioner that the respondents are duty bound to implement the statutory policy of 30% reservation for women in each of the categories of S.C., S.T., S.E.B.C. and Open/Unreserved Category and in this view of the matter, the name of the petitioner ought not to have been placed in the waiting-list, but appointment should have been given to her. It is further contended on behalf of the petitioner that in the affidavit-in- reply filed by respondent No.3, the said respondent has admitted that the Selection Committee has not reserved one post out of three advertised posts in the Open/Unreserved Category for a woman candidate through inadvertence, but in spite of this admission, the said respondent has wrongly deposed that the petitioner had no chance of selection and appointment, as one Ms. Khushbu Ashokbhai Patel, belonging to S.E.B.C. Category, is more meritorious than the petitioner. The learned Advocate for the petitioner has further elaborated that such a statement could not have been made, as the petitioner has no concern with the S.E.B.C. category and if the lady named by respondent No.3 in the S.E.B.C. Category, is more meritorious, she can have a claim only in her own category, and not in the category of the petitioner. 5. LASTLY, it is submitted that the action of the respondents in not giving appointment to the petitioner as per the policy of reservation envisaged by the Rules is patently illegal, arbitrary and discriminatory, apart from being violative of the statutory Rules, and the said action deserves to be quashed and set aside. 6. MR. H.S. Munshaw, learned Advocate for respondent No.3. 6. MR. H.S. Munshaw, learned Advocate for respondent No.3. has submitted that Government Circular dated 22.05.1997 whereby clarifications have been issued on certain issues stipulates, that 30% reservation for women would be applicable in all categories collectively, and not separately, in each of the categories, therefore, the action of respondent No.3 and the Selection Committee, being based upon the said Circular, suffers from no legal infirmity. It is further contended that the advertisement dated 21.12.2009 does not stipulate that 30% reservation for women will be applicable separately to different categories. That even otherwise, one Ms. Khushbu Ashokbhai Patel, who belongs to the S.E.B.C. Category, is more meritorious than the petitioner. The petitioner stood no chance of selection and appointment in view of the fact that she has secured 80.40 marks and Ms. Khushbu Ashokbhai Patel has secured 81.11 marks, therefore, the petition may be dismissed. Mr. Anand L. Sharma, learned Assistant Government Pleader has submitted that the State Government has framed the Rules and the respondents are bound to abide by the same. 7. I have heard the learned Counsel for the respective parties, perused the averments made in the petition and the documents annexed thereto. 8. THE undisputed facts are that in the advertisement dated 21.12.2009, seven vacancies are notified for candidates possessing the qualification of C.P.Ed., which the petitioner possesses. Out of the seven vacancies, four vacancies are reserved for the S.E.B.C. category and the remaining three vacancies fall in the Open/ Unreserved Category. As the petitioner belongs to the Open Category, the Court is not concerned with the four vacancies notified for the S.E.B.C. category, for the purpose of deciding the petition. The State Government has, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, framed the Rules. Rule 2 is relevant, and is reproduced hereinbelow:- "2. The State Government has, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, framed the Rules. Rule 2 is relevant, and is reproduced hereinbelow:- "2. Reservation of Posts for Women:- Notwithstanding anything contained in any rules or orders relating to recruitment to public services and posts in connection with the affairs of the State - (a) There shall be reserved in favour of women belonging to the Scheduled Castes thirty percent of the posts reserved in favour of such Castes; (b) there shall be reserved in favour of women belonging to the Scheduled Tribes thirty percent of the posts reserved in favour of such Tribes; (c) There shall be reserved in favour of women belonging to the Socially and Educationally Backward Classes thirty percent of the posts reserved in favour of such classes; (d) there shall be reserved in favour of women thirty percent of the posts not being posts reserved in favour of the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes. Explanation: For the purposes of these rules:- (a) "Scheduled Castes" means such castes, races or tribes or parts of groups within such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under Articles 341 of the Constitution of India. (b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution. (C) "Socially and Educationally Backward Class" means such castes, classes or groups as are determined by the State Government as Socially and Educationally Backward Class under Government Resolution. Labour. Social Welfare and Tribal Development Department No.BCR-10734-H, dated the 1st April, 1978 as amended from time to time." A perusal of the above-quoted Rule leaves no manner of doubt that 30% of the posts in the S.C., S.T. S.E.B.C. and Open/Unreserved categories respectively, are reserved in favour of women. Clause (d) of Rule 2 is relevant in the case of the petitioner, as it deals with 30% reservation in favour of women for posts not being those belonging to the S.C., S.T. and S.E.B.C. categories; meaning thereby that 30% of the posts in the Open/ Unreserved Category are to be reserved in favour of women. Clause (d) of Rule 2 is relevant in the case of the petitioner, as it deals with 30% reservation in favour of women for posts not being those belonging to the S.C., S.T. and S.E.B.C. categories; meaning thereby that 30% of the posts in the Open/ Unreserved Category are to be reserved in favour of women. There is no dispute regarding the applicability of the Rule to the case of the petitioner. Applying the policy of reservation formulated by the State Government as provided for in the Rules to the facts of the present case, it is clearly evident that the respondents were bound to reserve 30% of the posts in favour of women in the Open/Unreserved Category. It is not disputed that no woman candidate has been given appointment in the said category. The name of the petitioner finds mention in the waiting-list. However, all three candidates who have been selected and appointed are male candidates. Their names and details reproduced in the table hereinbelow:- It is not the case of the respondents that no woman candidate was available in the Open/Unreserved Category or that the petitioner has not obtained the highest marks amongst women candidates in the said category. The name of the petitioner has been placed in the waiting-list of the Open/ Unreserved Category of candidates., for reasons best known to the respondents. The women candidates whose names figure in the waiting-list, in different categories, are as under:- 9. FROM the above, it is clear that there are no other women candidates in the waiting-list in the Open/Unreserved Category except the petitioner, and the other woman candidate named Khushbuben is in the waiting-list of the S.E.B.C. Category. In this context, the affidavit-in-reply filed by one Shri Kusumanshu Roy A. Pota, District Primary Education Officer, Kheda District Panchayat makes interesting reading. The relevant extract of the said affidavit is reproduced hereinbelow:- "The respnt. No. 3 submits that so far as her grievance about not following the Govt. directions in filling 30% of posts meant for open category through women candidates is concerned, the respnt. No. 3 herein craves leave to annex a Circular dtd.22.5.97 issued by the General Administration Dept. The relevant extract of the said affidavit is reproduced hereinbelow:- "The respnt. No. 3 submits that so far as her grievance about not following the Govt. directions in filling 30% of posts meant for open category through women candidates is concerned, the respnt. No. 3 herein craves leave to annex a Circular dtd.22.5.97 issued by the General Administration Dept. laying down various instructions with regard to reservation of posts for women as Annexure-C. The respnt No. 3 submits that it seems that through inadvertent the Selection Committee has not kept one post out of 3 advertised posts to be filled up through open category candidates reserved for a woman candidate. However, the respnt. No. 3 submits that in that event also the petitioner herein had no chance of selection and appointment as one Ms. Khushbu Ashokbhai Patel belonging to Socially and Educationally Backward Class is more meritorious as she has secured 81.11 marks and therefore she would have marched over the petitioner." Though the deponent of the affidavit has admitted that the Selection Committee has not reserved one post out of three advertised posts in the Open/Unreserved Category for a woman candidate due to 'inadvertence', the said respondent, however, goes on to state that the petitioner would have stood no chance of selection and appointment, as Ms. Khushbu Ashokbhai Patel belonging to S.E.B.C. Category, is more meritorious, having secured more marks than the petitioner. This statement is not only in conflict with the letter and spirit of the Rules and policy of the Government, but also appears to be designed to mislead the Court. Respondent No.3 is expected to be aware of the Rules framed by the State Government and to act in consonance with them. While admitting in the affidavit that a mistake has occurred, instead of rectifying the same, a categorical statement has been made and a stand taken which is contrary to the policy of reservation formulated by the State Government, as contained in the Rules. It is apparent that the concerned respondent is attempting to subvert the Rules and is, thereby, undermining the policy of reservation formulated in favour of women by the State Government. It is apparent that the concerned respondent is attempting to subvert the Rules and is, thereby, undermining the policy of reservation formulated in favour of women by the State Government. By wrongly comparing the merit of the petitioner who belongs to the Open/Unreserved Category, with the merit of another woman candidate belonging to the S.E.B.C. Category, a flagrant violation of the Rules has been committed, which is totally contrary to the object and intention of the State Government in framing the Rules. The merit of the petitioner is to be adjudged qua woman candidates in her own category, in order to apply the policy. The merit of a woman candidate in another category would have no relevance, whatsoever, to the applicability of the policy of reservation in the category of the petitioner. The averments in the affidavit-in-reply filed by respondent No.3 are, therefore, nothing but an unsuccessful attempt to cover up their own mistakes. The reason for not considering the petitioner for appointment, as stated in the said affidavit, is nothing but an eye-wash, and being contrary to the Rules, cannot be countenanced or permitted to stand. Further, when the Rules prescribe 30% reservation in favour of women in each of the categories named therein, the fact that male candidates in the Open/Unreserved Category may have received higher marks than the petitioner is no justification for ignoring the petitioner for the purpose of appointment under the policy of reservation. No other reason has been put forth by the respondents to deny appointment to the petitioner. If such a method is permitted to be adopted as has been done by the respondents, it would render the entire policy of reservation redundant and nugatory, which cannot be permitted. 10. IT is noticed that in the interview call letter dated 20.03.2010 issued to the petitioner, the word "waiting" finds mention on the top left hand corner and the words 'CPEd/W/1' are mentioned in the middle, at the bottom, which gives rise to an inference that the concerned respondent had already decided to put the name of the petitioner in the waiting-list. There is no explanation forthcoming from the concerned respondent as to why this has been done. There is no explanation forthcoming from the concerned respondent as to why this has been done. Coming to the contention raised by the learned Advocate for respondent No.3 regarding the so-called clarificatory Circular dated 22.05.1997, issued by the General Administrative stipulating that 30% reservation for women is applicable to posts of all categories collectively, and not to different categories, the same deserves outright rejection, in view of the clear, direct and unambiguous provisions of Rule 2 of the Rules, reproduced hereinabove. 11. AS can be seen from the Rules, the policy of the State Government is crystal clear and envisages 30% reservation in posts of different categories such as S.C., S.T. and S.E.B.C, as well as categories other than above-mentioned categories, namely Open/Unreserved Category, in favour of women. The interpretation of the Rules in Circular dated 22.05.1997 is directly in conflict with the object and intention of the policy of the Government, stipulated in the Rules. Further, the said Circular is in a. question-and-answer form. At the best, it is a clarificatory, administrative or executive Circular, which cannot nullify or override the provisions of statutory Rules framed under the proviso to Article 309 of the Constitution of India. It is, by now, a settled position of law, that in case of conflict between administrative or executive orders and statutory Rules, the statutory Rules would prevail. AS the Circular in question, insofar as it relates to 30% reservation for women, is directly in conflict with the provisions of Rule 2, it has no binding effect, to the extent it is violative of the Rules. 12. THE cumulative effect of the above discussion is that the action of respondent No.3 in not giving effect to the policy of the State Government for 30% reservation in favour of women, as envisaged in Rule 2 of the Rules, and thereby not considering the name of the petitioner for appointment as Vidya Sahayak, pursuant to the said policy is clearly arbitrary and discriminatory, in addition to being violative of the Rules. The said action, therefore, deserves to be quashed and set aside. Accordingly, the petition is allowed. The action of respondent No.3 in not considering the name of the petitioner for appointment as Vidya Sahayak under the 30% reservation policy of the State Government in favour of women, is quashed and set aside. The said action, therefore, deserves to be quashed and set aside. Accordingly, the petition is allowed. The action of respondent No.3 in not considering the name of the petitioner for appointment as Vidya Sahayak under the 30% reservation policy of the State Government in favour of women, is quashed and set aside. The respondents are directed to consider the name of the petitioner for appointment as Vidya Sahayak with consequential benefits, except salary, with effect from the date on which other candidates have been appointed, within a period of four weeks from the date of receipt of a copy of this order. Further, the respondents are directed to pay costs of Rs.5,000.00 (Rupees Five Thousand) to the petitioner, which shall be recovered from the erring Officer/Officers. Rule is made absolute, to the aforesaid extent. Direct Service is permitted. Rule is made absolute.