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2017 DIGILAW 1725 (GUJ)

Patel Ashokbhai Ishwarbhai v. State of Gujarat

2017-10-04

A.S.SUPEHIA

body2017
JUDGMENT : A.S. SUPEHIA, J. 1. Since the issues raised in both the captioned writ petitions are same they were heard analogously and being decided and disposed of by this common judgment. 2. For convenience, Special Civil Application No.61 of 2010 is taken as lead case. Brief facts, which led to the filing of the petition, are as follows: 3. The petitioner cleared the S.S.C examination in the Science Stream of the Gujarat Secondary Education Board held in March, 1998. The petitioner also passed Primary Teachers Certificate (PTC) examination of the Gujarat State Examination Board in April-May 2006 with 86.06%. 4. Respondent no.3 issued an advertisement dated 21.12.2009 inviting applications for the recruitment of 1014 Vidya sahayaks. The petitioner being qualified applied for the said post. Apprehending the rejection of his application on the ground of age bar, the petitioner has filed the present petition challenging the action of the respondents in granting the benefit of age relaxation to the reserved category candidates. In the alternative, he has prayed to grant the age relaxation as granted to the reserved categories. 5. Learned Advocate Mr. Pujara has contended that the respondent authorities have violated their own rules in not initiating the recruitment procedure as envisaged therein. He has referred to Rule 3 of the Gujarat Panchayat Service (Recruitment of Primary Teachers) Rules, 1970, which prescribes the procedure filling up the vacancies. Rule 3 reads as under: “RULE 3 : Preparation of estimates of vacancies by Administrative Officer etc (i) In the first week of March of each year, the Administrative Officer shall prepare estimate of vacancies in the staff of primary teachers, likely to arise in the district upto the end of August in the ensuing school year. In framing such estimate, he shall take into account the state required under the scheme of expansion as well as for filling vacancies likely to occur on account of deputation of teachers to training colleges, likely increase in the number of pupils, transfer and retirement of teachers and such other circumstances. He shall then take steps to invite application so as to reach his office on or before the 1st April, from the qualified candidates by giving advertisement in one or more local newspapers. He shall then take steps to invite application so as to reach his office on or before the 1st April, from the qualified candidates by giving advertisement in one or more local newspapers. The advertisement shall indicate the prices particulars required to be mentioned in the application, including the particulars showing whether the applicant belongs to a Scheduled Tribes and other backward classes or not. (ii) The Director of Education shall communicate every year the number of seats for deputation to training colleges to each Administrative Officer and each of committees before the month of March as far as possible. (iii) The Administrative Officer shall also prepare every year in the first week of August a like estimate of the vacancies likely to arise in the district from September to the close of the School year and take steps to invite applications from the candidates so as to reach his office or on before 1st September, by giving advertisement in the manner laid down in clause (i).” 6. Mr. Pujara has emphasized that Rule 3(iii) casts a duty on the Administrative Office to prepare a list of vacancies in the first week of August, which are likely to arise in the district from September to the close of the school year and further take steps to invite applications from the candidates. He has submitted that in the present case no such steps were taken, hence, the advertisement was issued belatedly in 2009. He has stated that the last advertisement was issued on 21.04.2008 and, after a gap of 20 months it was again issued in the month of December, 2009, which has caused great prejudice to the petitioner since the petitioner had become over aged when the next advertisement was published in 2009. Thus, he has submitted that the petitioner is entitled to the benefit of age relaxation. 7. In support of his contention, Mr. Pujara has relied on the following observations made by the Supreme Court in the judgment rendered in the case of Pradip Gogoi & Ors. Vs. State of Assam, reported in 1998 (8) SCC 726 : “It has become an endemic spectacle to witness. It is settled law that even an eligible candidate has a fundamental right to lay his claim for consideration in his own right for recruitment to an office or post under the State under Art. 16(1 of the Constitution. Vs. State of Assam, reported in 1998 (8) SCC 726 : “It has become an endemic spectacle to witness. It is settled law that even an eligible candidate has a fundamental right to lay his claim for consideration in his own right for recruitment to an office or post under the State under Art. 16(1 of the Constitution. The process of selection not being taking place due to non-notification by the appropriate authority, is having a deleterious effect on the psyche of the people. The dereliction of duty is seriously eroding the constitutional rights under Art. 16(1 and is a source to circumvent due process of selection.” 8. I would like to deal with the aforesaid contention raised by learned advocate Mr. Pujara at this stage. It is trite that the process of selection has to be carried out at regular intervals, and the authorities are bound to undertake the recruitment process as prescribed under the Rules. As observed by the Supreme Court in case of Pradip Gogoi (supra) such inaction on the part of the authorities have deleterious effect on the psyche on people. After making such observations, in the judgment, the Supreme Court has not acceded to the request for appointment and the respondent authorities were directed to notify the vacancies for recruitment so that the vacancies can be filled up. Though, the contention of the petitioner apropos not undertaking the recruitment process as per Rule 3 merits acceptance, at the same time, the prayer of the petitioner for giving him age relaxation cannot be acceded to. This Court cannot direct the authorities to incorporate the benefit of age relaxation, if the recruiting authorities in their wisdom have not thought it fit to do so, more particularly when the statue does not compel them to do so. Hence, the contention of Mr. Pujara for providing age relaxation to the petitioner only because the authorities did not act diligently in filling up vacancies does not merit acceptance. 9. Learned Advocate Mr. Pujara has also relied upon the Notification dated 29.09.2005 issued by the General Administration Department (GAD) granting the age relaxation of 05 (five) years in all the recruitments for the posts in the State in direct selection through competitive examination for the period from 17.08.2005 to 16.08.2006. 9. Learned Advocate Mr. Pujara has also relied upon the Notification dated 29.09.2005 issued by the General Administration Department (GAD) granting the age relaxation of 05 (five) years in all the recruitments for the posts in the State in direct selection through competitive examination for the period from 17.08.2005 to 16.08.2006. He has also relied on the Resolution dated 01.08.2001 granting the age relaxation for 05 years for filling up the posts of Vidhya sahayaks. Thus, he has stated that similar treatment should have been given to the recruitment carried out vide Advertisement dated 21.12.2009. 10. Mr. Pujara has also submitted that in other recruitment process, which was undertaken in the police departments the benefit of age relaxation was granted, whereas no such benefit is conferred to the teachers. 11. Lastly, Mr. Pujara has submitted that the whole recruitment itself is contrary to the provisions of section 23A of the Bombay Primary Education Act, 1947. He has placed reliance on section 2(14) which reads as under: “Section 2(14) "Prescribed" means prescribed by the rules made under this Act.” 12. He has also referred to section 63(2) of the Act which reads as under: “SECTION 63 : Power to make rules : (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing provision such rules may be made for all or any of the following matters xxxxx (fb) the powers and functions to be performed by the State Level Committee, namely Vidya sahayak Committee; (fe) the qualifications for appointment as Vidya sahayak; (ff) the manner and criteria for selection of candidates for appointment as Vidya sahayak; (fg) making of Vidya sahayak Scheme from time to time; (fh) the form of contract of appointment to be entered into by a Vidya sahayak and terms and conditions of such appointment to be contained in such contract. (fi) the duties of Vidya sahayak; (3) Rules made under sub sections (1) and (2) shall be made after previous publication. (fi) the duties of Vidya sahayak; (3) Rules made under sub sections (1) and (2) shall be made after previous publication. "Provided that if the State Government is satisfied that circumstances exist which render it necessary to take immediate action, it may dispense with previous publication of any rules to be made under this section." (4) All rules made under this Act shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made and shall be subject to such modifications as the State Legislature may make during the sessions in which they are so fail or the session immediately following. The modifications so made shall be published in the Official Gazette and shall thereupon take effect. 13. Mr. Pujara has contended that no procedure as laid down in subsection (4) of section 63 is followed before initiating the present recruitment of Vidhya sahayaks. Hence, he has submitted that the present recruitment is de hors the statutory recruitment is required to be quashed and set aside. 14. A fortiorari, learned AGP Mr. Soni has contended that the petitioner cannot claim age relaxation as a matter of right if the statutory rules do not provide for the same. He has stated that the petitioner had already became eligible for the post since 1999 but he did not apply, hence, he cannot take a plea to grant him age relaxation because the State Government did not issue any advertisement between 2008 and 2009. He has submitted that subsequent to the permission granted by respondents no.1 and 2, an advertisement was issued in the newspaper dated 21.12.2009 for the recruitment of 1014 Vidhya sahayaks and age relaxation for the candidates belonging to the reserved categories was granted by the Government as per the policy. Mr. Soni has submitted that the petitioner cannot equate his case to the candidates belonging to the reserved category. 15. Apropos, the contention raised by Mr. Pujara of violation of the procedure prescribed under Rule 3 of the Rules, learned AGP Mr. Soni has submitted that the authorities had made honest efforts to that effect and more than 1014 posts of Vidhya sahayaks were identified for filling up the posts in 2273 schools. He has submitted that due to pendency of various litigation pertaining the recruitment of Vidhya sahayaks, the respondent authorities did not complete the process in time. Soni has submitted that the authorities had made honest efforts to that effect and more than 1014 posts of Vidhya sahayaks were identified for filling up the posts in 2273 schools. He has submitted that due to pendency of various litigation pertaining the recruitment of Vidhya sahayaks, the respondent authorities did not complete the process in time. He has stated that the petitioner cannot claim the age relaxation only because there is some delay in issuing the advertisement. In response to the judgment of the Supreme Court in the case of Pradip Gogoi (supra), Mr. Soni has submitted that ultimately the Supreme Court has dismissed the petition, and no directions are issued for appointment. 16. Learned AGP has summited that the reliance placed on the Notification dated 29.09.2005 cannot apply in the present case as the same was confined for the period from 17.08.2005 to 16.08.2006, whereas in the present case the recruitment is carried out in the year 2009. He has stated that the same is the case in Resolution dated 01.08.2001 wherein the age relaxation was made applicable for three academic years only. Mr. Soni has urged that the aforesaid grant of age relaxation was given at the relevant time by the State Government as a policy decision, and the petitioner cannot claim the age relaxation as a matter of right. 17. Lastly, Mr. Soni has submitted that recruitment of Vidhayasahayaks is governed under Government Resolution dated 11.06.1998, and it is not in violation of statutory regulations. Hence, the same cannot be set aside 18. I have heard the learned advocates appearing on behalf of the respective parties and perused the record of the case. 19. The petitioner has filed the present petition seeking directions restraining the respondent authorities from rejecting his application. No order to that effect passed by the petitioner is produced. Thus, the petitioner has filed the present petition on the apprehension that his application will be rejected. Further, he has challenged the action of the respondents in fixing the upper age limit which is granted to the reserved categories candidates. Alternatively, he has also prayed to apply the age relaxation criteria meant for reserved category for the open category. Thus, in the main prayers the petitioner has challenged the policy decision of the State Government granting the age relaxation to the reserved category candidates. Alternatively, he has also prayed to apply the age relaxation criteria meant for reserved category for the open category. Thus, in the main prayers the petitioner has challenged the policy decision of the State Government granting the age relaxation to the reserved category candidates. It is no more res integra that the State is competent and entitled to take a policy decision or make laws relating to the reservation and benefits to the persons belonging to the reserved category. Such policy decision is not subject to challenge unless the same is wholly arbitrary or against the public policy. It is within the domain of the State Government to fix the conditions governing the recruitment and it can only be questioned if they are unconstitutional. Merely, because the petitioner has become over aged, he cannot claim the age relaxation at par with the candidates of the unreserved category. Being a general category candidate, he cannot challenge the relaxation granted to the reserved category candidates who form a separate class in recruitment. Hence, the prayer made by the petitioner seeking benefit which is granted to the reserved category candidate is misconceived. 20. The contention raised by the petitioner, that he is entitled to the age relaxation due to delay in holding the recruitment process does not merit acceptance. Looking to the facts of the case, it cannot be said that there is gross delay in holding the recruitment process. Though, Rule 3 of the Rules imposes a legal duty on the authorities to prepare estimate of vacancies and issue advertisement, the breach of the same will not ipso facto entitle the petitioner the benefit of the age relaxation. The petitioner became eligible for the aforesaid post in 1999. As mentioned in the petition, the recruitment was held in the year 2008. It is not disclosed whether the petitioner had applied in the recruitment of 2008 when he was within the age limit. Thus, the petitioner is precluded from asking the benefit of the age relaxation in the recruitment of 2009. Merely because he became over aged between 2008 and 2009, he cannot be conferred the benefit of the age relaxation for such a fortuitous circumstance. The petitioner cannot compare his case with the case of other recruitments of the police department where the benefit of age relaxation was granted. Merely because he became over aged between 2008 and 2009, he cannot be conferred the benefit of the age relaxation for such a fortuitous circumstance. The petitioner cannot compare his case with the case of other recruitments of the police department where the benefit of age relaxation was granted. The fixation of criteria in a recruitment solely depends on the employer, and an employee, as a matter of right, cannot claim the same benefits which are conferred to the employees of other departments. The qualifications, duties, nature of work, and vacancies differ from one department to another department. The relaxation provided for candidates also depends on such factors. The case of the petitioner cannot be compared to the candidates of other departments. The facts of the case reveal that the Vidhya sahayaks are granted the benefits of the age relaxation as and when the Government felt that the same is required. The State Government is not bound to grant the benefit of age relaxations in each and every recruitment. It depends on the exigency of the vacancies and the availability of number of candidates. The Government is not under an obligation to immediately fill up the vacancies as and when the same arises. 21. At this juncture, it will be apposite to refer to the judgment of the Supreme Court in the case of Jammu and Kashmir Public Service Commission Vs. Narinder Mohan, reported in AIR 1994 SC 1808 . The Apex Court has observed thus: “It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the Public Service Commission (PSC) for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided if he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for the recruitment offending Articles 14 and 16 of the Constitution of India.” 22. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for the recruitment offending Articles 14 and 16 of the Constitution of India.” 22. In the judgment rendered in the case of Jamaluddin Versus State of Jammu And Kashmir, reported in 2011 (14) SCC 725 , the Apex Court has observed thus: “In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty-five years of age at the relevant time. That age limit applied to all the candidates. There was no age relaxation in favour of the candidates belonging to the Scheduled Castes or Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February 1982, will therefore, have to be read as providing only for the quantum and not for any age relaxation. If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. In the circumstances we do not find any error in the judgment of the Single Judge or that of the Division Bench” In the backdrop of the foregoing observations of the Supreme Court, the prayer of the petitioner for age relaxation does not merit acceptance, since he cannot claim the same as a matter of right in absence of any rules, regulations or provisions conferring such benefit. 23. The petitioner has also prayed for quashing and setting aside the recruitment process. Concurrently, he is praying for age relaxation in the very same recruitment. A person cannot approbate and reprobate. The legal proposition is well settled that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. (See: Dhananjay Malik vs State of Uttranchal: AIR 2008 SC 1913 , Sant Ram Sharma V/s. State of Rajasthan, AIR 1967 SC 1910 ). Rule 63(2)(fg) provides for making of Vidhya sahayaks scheme from time to time. The petitioner is unable to point out that the Government Resolution dated 11.06.1998 regulating the recruitment of Vidhya sahayaks is in any manner inconsistent with the Act. Rule 63(2)(fg) provides for making of Vidhya sahayaks scheme from time to time. The petitioner is unable to point out that the Government Resolution dated 11.06.1998 regulating the recruitment of Vidhya sahayaks is in any manner inconsistent with the Act. Hence, the prayer of the petitioner for quashing and setting aside the recruitment process deserves to the set aside. 24. After giving thoughtful consideration to the facts of the case, the prayers made in the petition, and the foregoing observations made by the Supreme Court, I am of the opinion that the present case fails to necessitate any interference of this Court under Article 226 of the Constitution of India. 25. Consequently, the petitions, being sans merit, stand dismissed. RULE is discharged. There shall be no order as to costs. 26. Registry to place a copy of this order in each of the connected matter. Petitions dismissed.