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Gujarat High Court · body

2017 DIGILAW 236 (GUJ)

Kamleshbhai Bechardas Solanki v. State of Gujarat

2017-01-31

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. Dipen Desai for the petitioner, learned advocate Mr. Satyam Y. Chhaya for the respondent No. 4 and learned AGP Ms. Amita Shah for the respondent No. 1. Petitioner has sought indulgence of this Court by way of filing this petition under Articles 14, 19 and 226 of the Constitution of India to quash and set-aside the order dated 17.01.2007 and 09.02.2011 by the respondent authorities with further direction to them to approve the appointment of the petitioner with respondent No. 4 - Ashram Shala. The petitioner has also prayed to stay the execution, operation and implementation of both such orders by impugned order dated 17.01.2007 while respondent No. 2 has called for explanation from respondent No. 3 regarding issuance of No Objection Certificate (NOC) pursuant to which petitioner has been appointed by respondent No. 4. Whereas, by impugned dated 9.2.2011, respondent No. 2 has refused to approve the selection and posting of the petitioner and conveyed the petitioner that his appointment is not approved, though he was appointed after following due process as per the Recruitment Rules by respondent No. 4. Therefore, respondent No. 4 is a formal party and though they have filed their affidavit-in-reply, practically, they do not object the appointment of the petitioner because it was confirmed by respondent No. 4 itself that they have appointed the petitioner as per the NOC issued by respondent No. 3. 2. The undisputed fact is to the effect that respondent No. 4 - Ashram Shala is run by Non Government Organisation (NGO), which are given 100% grant by the State Government for running such schools in remote tribal areas. In the year 2005, respondent No. 4 was in need of Assistant Teachers and therefore, as per the Rules, they sought NOC from respondent No. 3 and in turn by its letter dated 31.3.2005, respondent No. 3 has issued one NOC confirming that respondent No. 4 can appoint two Assistant Teachers having qualification of Trainee Graduate and one Assistant Teacher having qualification of PTC. However, when respondent No. 4 could not appoint any such candidate, respondent No. 4 has again applied for NOC in the year 2006 and thereupon, by letter dated 26.7.2006, now, instead of Assistant Teachers, respondent No. 3 has issued NOC for appointment of two Vidya Sahayaks in fixed salary of Rs. However, when respondent No. 4 could not appoint any such candidate, respondent No. 4 has again applied for NOC in the year 2006 and thereupon, by letter dated 26.7.2006, now, instead of Assistant Teachers, respondent No. 3 has issued NOC for appointment of two Vidya Sahayaks in fixed salary of Rs. 2,500/- only, confirming that it is a general category seat i.e. without any seat for reserved category, but out of two, one candidate should be woman and their eligibility criteria now discloses as either PTC or Trainee Graduate. Pursuant to such NOC, on 30.7.2006, respondent No. 3 have issued an advertisement, which categorically discloses that Vidya Sahayaks would be selected having either of the qualification of PTC or Trainee Graduate and that out of two posts of general category, one seat would be reserved for female/woman candidate. Pursuant to such advertisement, out of eight applications received by respondent No. 4, considering their overall qualification, experience and result of interview held by respondent No. 4 on 4.9.2006, wherein respondent No. 3 was one of the Officer who interviewed the proposed candidates, Priyanka B. Parmar secured maximum percentage i.e. 73.56% and present petitioner has secured/stood at Sr. No. 2 in such selection process by securing 62.24% marks. It is also undisputed fact that out of eight candidates, atleast four candidates could not prove their basic qualification i.e. either PTC or Trainee Graduate and other two candidates have secured less percentage than the present petitioner and therefore, considering one seat reserved for woman, respondent No. 4 has appointed the candidate who stood at Sr. Nos. 1 and 2, namely, Priyanka B. Parmar and present petitioner. 3. However, when respondent No. 4 has forwarded such selection for approval, unfortunately, such application dated 5.9.2006 was not considered for long time i.e. upto 15.5.2009 i.e. atleast for three years. It is undisputed fact that during that period, petitioner continued to work with respondent No. 4, but in absence of approval, respondents No. 1 to 3 had probably refused to release the grant. Therefore, on 15.5.2009, respondent No. 4 had again requested the respondent No. 2 to grant approval for the appointment of the petitioner. 4. Unfortunately, for such entire period, respondents No. 1 to 3 had remained silent and therefore, petitioner had no option, but to represent his case to the concerned Minister/s on 9.6.2009. Therefore, on 15.5.2009, respondent No. 4 had again requested the respondent No. 2 to grant approval for the appointment of the petitioner. 4. Unfortunately, for such entire period, respondents No. 1 to 3 had remained silent and therefore, petitioner had no option, but to represent his case to the concerned Minister/s on 9.6.2009. When there was no response on any such representations, petitioner had ultimately filed one Special Civil Application No. 8991 of 2010, wherein by order dated 17.08.2010, the Court has directed the respondent No. 2 to consider and pass appropriate orders in respect of sanctioning of appointment of petitioner as Vidya Sahayak, it seems that it was only after such direction, the respondents have passed impugned order, that too on 9.2.2011, conveying the petitioner that approval cannot be granted in his case. The reason for refusal as disclosed by the respondents is to the effect that the selection was to be made from PTC candidates only and not from Trainee Graduates. By all means, though qualification as PTC is not negative, it cannot be said that qualification as Trainee Graduate is in any manner lower to PTC, if not better or upper to PTC. 5. In any case, it was not the choice of the petitioner or respondent No. 4, but it was the policy decision of the Government to select even Trainee Graduate on the post of Vidya Sahayak and based upon such policy, when respondent No. 3 has issued NOC, specifically disclosing that respondent No. 4 can appoint a candidate, who has cleared either PTC or Trainee Graduate. Therefore, prima facie, the decision of respondents No. 1 and 2 in the form of impugned order dated 9.2.2011 is irregular, illegal, arbitrary and needs to be quashed and set-aside. 6. I have reason to say so because the documents on record supports such decision. 7. The petitioner has in addition to NOC and advertisement for his post, produced outcome of interview which confirms that respondent No. 3 was one of the member in the Selection Committee. Petitioner has produced all his correspondences and representations, which explains the situation so also order dated 17.08.2010, whereby it was inquired from respondent No. 4 that why candidate having qualification of PTC was not appointed. 8. Therefore, petitioner has filed affidavit-in-rejoinder on 20.4.2011 and further affidavits on 17.2.2014 so also on 4.3.2015. Petitioner has produced all his correspondences and representations, which explains the situation so also order dated 17.08.2010, whereby it was inquired from respondent No. 4 that why candidate having qualification of PTC was not appointed. 8. Therefore, petitioner has filed affidavit-in-rejoinder on 20.4.2011 and further affidavits on 17.2.2014 so also on 4.3.2015. Initially, petitioner has reiterated his claim, but now, he has come forward with a disclosure of certain judgments by this Court which is in his favour viz. the judgment of full Bench dated 3.12.2003 in Special Civil Application No. 8075 of 2001 and Government Resolution dated 12.2.2004 whereby the Government has confirmed that for the post of Vidya Sahayak, Trainee Graduate can be selected and petitioner has also relying upon similar orders in favour of Shakti Krupa Kelavani Mandal, Machkoda and Adivasi Seva Sangh, Iqbalgadh. The above documents confirm that in fact, the scheme of Vidya Sahayak allows the appointment of Trainee Graduates. Petitioner has also relied upon order dated 28.2.2014 by respondents whereby they have approved the appointment of as many as 73 Vidya Sahayaks wherein there is no clarity that whether they all are PTC or not. To that extent, decision of the respondents in refusing to approve the appointment of the petitioner, who is having better qualification, is certainly unwarranted. Petitioner has also produced on record communication dated 3.8.2013 by which the respondents have again approved the appointment of more eight Vidya Sahayaks. 9. The scheme of Vidya Sahayak is produced by the respondent as asked for by the Court at Annexure-R2 with affidavit-in-sur-rejoinder by respondent No. 2 on 23.12.2016. The scheme now specifically confirms that the qualification of Vidya Sahayak is either S.S.C. or PTC or Trainee Graduate or S.S.C. with C.P. Ed. The reference of qualification of graduate candidate is not at one place, but at different places in such scheme in the form of G.R. dated 11.6.1998. Therefore, it is quite clear that NOC issued by respondent No. 3 was not illegal and therefore, appointment of the petitioner by respondent No. 4 cannot be termed as illegal. It cannot be ignored that if someone is serving as Vidya Sahayak for any reason and that too in the minimum pay of Rs. Therefore, it is quite clear that NOC issued by respondent No. 3 was not illegal and therefore, appointment of the petitioner by respondent No. 4 cannot be termed as illegal. It cannot be ignored that if someone is serving as Vidya Sahayak for any reason and that too in the minimum pay of Rs. 2,500/-, then, the basic requirement of the Ashram Shala like respondent No. 4 is the continuous presence of teachers and therefore, when respondent No. 4 has admitted that the other candidate appointed with the petitioner, namely, Priyanka B. Parmar had already left the job for better prospects, then, there is reason to consider the case of the petitioner because, ultimately, his appointment can never be considered as illegal. 10. Considering the facts and circumstances, after hearing both the parties, initially this Court has on 29.12.2016, directed the respondent to explain certain things in following terms. "1. Pursuant to order dated 15.12.2016, respondents have filed one affidavit dated 23.12.2016 sworn by one Mr. Keyoor J. Bhatt, Assistant Commissioner of Tribal Development Department, Gandhinagar. However, such affidavit is not complying with the exact requirement as per direction dated 15.12.2016. Inasmuch as, Annexure R-1 with such affidavit is already disclosed by the respondent by their affidavit in reply dated 30.3.2011 as Annexure II. 2. Therefore, practically, now, respondents have to disclose on record the explanation given by the Ashram Shala Officer as per such letter dated 6.11.2006 so as to ascertain the correct position. Similarly, if at all, we believe contents of such letter dated 6.11.2006 then it becomes clear that though there is a reference of date 20.7.2006 which may be considered as a typographical error in place of 26.7.2006, practically, selection of Bharatkumar Punjalal Chauhan was pursuant to NOC dated 31.3.2005 whereby in all three, Vidhya Sahayak were to be appointed and such NOC dated 31.3.2005 is categorically disclosing that there is no reservation post either based upon caste or gender. Whereas, now, a stand is taken that out of five candidates, as per NOC dated 31.3.2005 read with NOC dated 26.7.2006, in all, two posts are to be kept reserved for women candidate. If it is so, there must be categorical disclosure in NOC dated 26.7.2006 to appoint both the Vidhya Sahayak from women candidates only. 3. Whereas, now, a stand is taken that out of five candidates, as per NOC dated 31.3.2005 read with NOC dated 26.7.2006, in all, two posts are to be kept reserved for women candidate. If it is so, there must be categorical disclosure in NOC dated 26.7.2006 to appoint both the Vidhya Sahayak from women candidates only. 3. Therefore, there is no clarity on the part of the respondents so far as NOC, reservation and approval of posts are concerned. It is very much clear from the record that even on 10.4.2007, appointment was approved as per NOC dated 5.9.2006 when though similar condition was there, both the candidates were not appointed from women candidates and there was no disclosure about the reservation but there was clear disclosure about educational qualification as PTC/trained graduate. This clearly shows different stand taken by the respondents for different years i.e. for the year 2005, 2006 and 2007. If respondents are relying upon the decision of full bench in the case of Sudip Tripathi v. State of Gujarat, 2007(1) GLH 590 where respondents were common in all such matters, they should disclose on oath that whether in that case, advertisement was disclosing educational qualification as trained graduate also or not. It is quite clear that if advertisement in the year 2001 was not disclosing the educational qualification as trained graduate and, thereafter, if trained graduates are selected then entire case would be different from the reported case. 4. Therefore, as a last chance, respondents shall file on record the explanation given by Ashram Shala Officer and shall clarify the position in view of above discussion. 5. List the matter on 20.1.2017." 11. Pursuant to such direction, respondents have produced bunch of papers, including scheme dated 11.6.1998 and communication between respondents No. 2 and 3, which confirm that act of respondent No. 3 was not illegal and that respondent No. 2 cannot find fault with the NOC except with an advise that in future, initially, NOC should be granted for selecting candidate having qualification of PTC only. However, such decision can never be taken as evidence to prove the impugned order as illegal. However, such decision can never be taken as evidence to prove the impugned order as illegal. Therefore, as discussed herein above, when there is no irregularity, illegality, perverseness or arbitrariness in the NOC issued by respondent No. 3, it now becomes clear that the impugned orders are certainly having colour of arbitrariness, discrimination and thereby, irregular and illegal and therefore, they need to be quashed and set-aside. 12. In view of above facts and circumstances, impugned order dated 9.2.2011 refusing to approve the appointment of the petitioner is hereby quashed and set-aside. So far as impugned order dated 11.1.2007 is concerned, when by order dated 25.1.2007, respondent No. 2 has dropped the further proceedings against respondent No. 3, no further comments are required and when respondent No. 3 is not petitioner before this Court, no further order can be passed. 13. Therefore, the petitioner is allowed as prayed for, whereby, now, respondents are directed to initiate appropriate proceedings for according approval to the appointment of petitioner in the respondent No. 4 - Ashram Shala and to release necessary grant towards salary of the petitioner who is working in the school without salary for last more than five years, pursuant to refusal of interim relief at the relevant time. Respondent shall complete such exercise within four months from the date of receipt of writ of this judgment and shall also release all consequential benefits to the petitioner within such four months. If the respondents fail to release the salary and other consequential benefits to the petitioner within four months, then, they shall pay 6% interest on such amount from the due date till its realisation. 14. Rule is made absolute. Direct service is permitted.