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2017 DIGILAW 973 (GUJ)

Rabari Vishnubhai Ramjibhai v. State of Gujarat

2017-05-04

R.SUBHASH REDDY, V.M.PANCHOLI

body2017
JUDGMENT : V.M. Pancholi, J. 1. As the facts and question of law are identical in all these petitions, the same are being disposed off by this common judgment. However, for the sake of convenience, the facts of Special Civil Application No. 1584 of 2017 are narrated in this judgment. 2. This petition is filed under Article 226 of the Constitution of India, wherein the petitioners have prayed for the following reliefs: "15(a) to direct the respondents, their agents and servants to accept the petitioners' applications for the post of Head Teachers notified in the Advertisement dtd.22-1-2017 as per Annexure-A and to consider the same for selection and to give appointments to them as per their merit, with all the consequential benefits. (b) to hold and declare and direct that the teaching experience of the petitioners of teaching in B.Ed.colleges is valid for the purpose of selection and appointment as Head-Teachers for the vacancies notified in the Advertisement dtd.22-1-2017 as per Annexure-A and the respondents are duty bound to give appointments to the petitioners as per their merit, with all the consequential benefits. (c) to hold and declare and direct that the impugned action of the respondents in not treating the teaching experience of the petitioners of teaching in B.Ed.colleges as valid for the purpose of selection and appointment as Head-Teachers for the vacancies notified in the Advertisement dtd.22-1-2017 as per Annexure-A is bad in law, null and void and violative of Articles 14, 16, 19 and 21 of the Constitution of India; (d) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the Advertisement dtd.22-1-2017 for the posts of Head-Teachers as per Annexure-A; (e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents, their agents and servants to accept On-line and/or physically, the petitioners' applications for the posts of Head-Teachers notified in the Advertisement dated 22-1-2017 as per Annexure-A, and to consider the same on merit by treating the petitioners' teaching experience of B.Ed.colleges as valid, subject to further orders of the Hon'ble Court. (f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents, their agents and servants to keep 10 posts vacant for the petitioners out of the vacancies of Head-Teachers notified in the Advertisement dtd.22-1-2017 as per Annexure-A; (g) to grant any appropriate and just relief’s;" 3. (f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents, their agents and servants to keep 10 posts vacant for the petitioners out of the vacancies of Head-Teachers notified in the Advertisement dtd.22-1-2017 as per Annexure-A; (g) to grant any appropriate and just relief’s;" 3. By way of amendment, the petitioners have prayed for the following reliefs: "15(h) to quash and set aside the impugned Rule-4(b)(3)(ii) of the Head Teacher, Class-III, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016 as per Annexure-H in so far as and to the extent that it is providing for all types of teaching experience, namely, in Lower Primary Schools, Upper Primary Schools, Secondary Education School, Higher Secondary Education School, Primary Education Adhyapan Mandir (i.e. PTC College) or District Institute of Education and Training (DIET), but it does not provide for the teaching experience in B.Ed.college; OR IN THE ALTERNATIVE 15(i) to read down the impugned Rule-4(b)(3) (ii) of the Head Teacher, Class-III, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016 as per Annexure-H by holding that the said Rule includes the teaching experience of B.Ed.colleges as if it is incorporated in the said Rule as valid experience for the purpose of Recruitment of Head Teachers." 4. The petition was listed for hearing before the learned Single Judge. The learned Single Judge by, an interim order dated 2.2.2017, issued notice for final disposal and thereby the direction was given to the respondents to permit the petitioners to apply in response to the advertisement dated 22.1.2017 by considering the teaching experience of the petitioners in B.Ed. and M.Ed. colleges as valid. The direction was given to accept the application forms physically. It is also observed that the said interim relief will not create any equity in favour of the petitioners. Thereafter, by an order dated 11.4.2017 passed by this Court in Special Civil Application No. 7305 of 2017 with Special Civil Application No. 7082 of 2017, the papers of these petitions were called for from the Registry. 5. Rule. Learned Government Pleader Ms. Manisha Lavkumar Shah waives service of rule for the respondent-State in each of the petitions. Thereafter, by an order dated 11.4.2017 passed by this Court in Special Civil Application No. 7305 of 2017 with Special Civil Application No. 7082 of 2017, the papers of these petitions were called for from the Registry. 5. Rule. Learned Government Pleader Ms. Manisha Lavkumar Shah waives service of rule for the respondent-State in each of the petitions. With the consent of the learned advocates appearing for the petitioners as well as learned Government Pleader, these petitions are taken up for final disposal. 6. The brief facts leading to filing of the present petition are as under: 6.1 It is the case of the petitioners that the post of Head Teacher is conceived in the Right of Children to Free and Compulsory Education Act of 2009 (hereinafter referred to as 'the Act of 2009') which has come into force from 1.4.2010 and it is mandatory to appoint Head Teachers in Lower Primary Schools (standard 1 to 5) if there are 150 or more students and in Upper Primary Schools (standard 6 to 8), if there are 100 or more students. It is stated that National Council for Teacher Education ('NCTE' for short) has not laid down any norms of qualification and experience for the post of Head Teacher. However, norms have been laid by NCTE for teachers of Lower Primary Schools (standard 1 to 5) and for Upper Primary Schools (standard 6 to 8) and on that basis, the State Government has issued Government Resolutions laying down the qualifications for recruitment of teachers/vidhya sahayaks. For appointment as teacher in standard 1 to 5, the requisite qualifications are HSC and PTC whereas the appointment for standard 6 to 8, the requisite qualifications are B.A. or B.Com. or B.Sc. Plus Bachelor's degree in Education i.e. B.Ed. 6.2 It is the case of the petitioners that they have passed B.A. and M.A. as well as B.Ed. and M.Ed. examinations and they are possessing more than five years teaching experience in B.Ed. colleges. 6.3 The State Government had issued notification dated 18.1.2012 being "the Head Teacher Class III' in the Subordinate Service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee, Recruitment Rules of 2012 (hereinafter referred to as the 'Rules of 2012'). examinations and they are possessing more than five years teaching experience in B.Ed. colleges. 6.3 The State Government had issued notification dated 18.1.2012 being "the Head Teacher Class III' in the Subordinate Service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee, Recruitment Rules of 2012 (hereinafter referred to as the 'Rules of 2012'). In the said Rules, it was provided that the candidate for appointment as Head Teacher by direct selection shall "have about five years' separate or combined experience of teaching as a Teacher or Vidhya Sahayak in Government or Grant-in-Aid or Non Grant-in-Aid Private Lower Primary School or Upper Primary School or Secondary Education School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training(DIET). Thus, in the aforesaid Rules, five years teaching experience in B.Ed.colleges was not considered for appointment of Head Teachers. Therefore, some of the candidates who possess B.Ed. and M.Ed.degree challenged the said Rules by filing Special Civil Application No. 4052 of 2012 and allied matters. The learned Single Judge by an order dated 8.5.2012, dismissed the said petitions and upheld the validity of the said Rules. The said decision rendered by the learned Single Judge was challenged in Letters Patent Appeal No. 848 of 2012 and allied matters. The Division Bench of this Court, by an order dated 29.8.2012, dismissed the appeals and thereby confirmed the order passed by the learned Single Judge in which it was observed that the employer has absolute discretion to prescribe the requisite educational qualification and experience to ensure selection of suitable candidates. It was also observed that the Court is having limited scope of judicial review when the Government Policy or administrative action is under challenge. 6.4 It is the case of the petitioners that the respondent-State realized their mistake in not considering the teaching experience in B.Ed. colleges for the post in question and therefore the respondent-State issued notification dated 7.8.2013 by which, in the Rules of 2012, the words "the grant-in-aid or non-grant-in-aid B.Ed. Or M.Ed. college" were added in Rule 4(d) of the Rules of 2012. Thus, though this Court has confirmed the Rules of 2012, realizing the mistake, the respondent-state has, by way of amendment, considered the teaching experience in B.Ed. or M.Ed.colleges. Or M.Ed. college" were added in Rule 4(d) of the Rules of 2012. Thus, though this Court has confirmed the Rules of 2012, realizing the mistake, the respondent-state has, by way of amendment, considered the teaching experience in B.Ed. or M.Ed.colleges. 6.5 Thus, it is the case of the petitioners that they were qualified to appear in the Head Teachers Aptitude Test ('HTAT' for short) examination conducted by the State Examination Board, Gandhinagar as they are having five years experience, B.Ed./M.Ed., as the case may be, and therefore they appeared in the said test. The petitioners, have cleared the said examination. 6.6 Now the grievance of the petitioners is that by way of notification dated 22.9.2016, the State Government has once again framed the Rules whereby teaching experience in B.Ed. or M.Ed. colleges is excluded for considering the appointment on the post of Head Teacher. The respondents issued advertisement dated 22.1.2017 for recruitment of 1000 Head Teachers for Primary Schools of District Education Committees/Municipal School Boards. As per the advertisement, the petitioners made attempts to submit their online applications on 25.1.2017. However, the respondents have not provided the option of experience in B.Ed.colleges and therefore the petitioners' online applications are not being accepted. When inquired by the petitioners, it was orally conveyed to them that as per the Rules of 2016, the teaching experience in B.Ed. or M.Ed.. colleges is excluded in the Rules published on 22.9.2016. Therefore the petitioners are not eligible to apply for the post in question. The petitioners, therefore, filed the captioned petitions before this Court. 6.7 When it was submitted by learned Government Pleader that vires of Rules of 2016 is under challenge in different petitions which are pending before the learned Single Judge, this Court passed an order dated 11.4.2017 in Special Civil Application Nos. 7305 of 2017 with 7082 of 2017, whereby Registry was directed to place the aforesaid petitions before this Court. 7. Heard learned advocates Mr. Pujara, Mr. Patel, Mr. Popat, Mr. Purohit, Mr. Saksena and Mr. Dave for the petitioners in the petitions and learned Government Pleader Ms. Shah for the respondents in all the petitions. 7.1 Learned advocate Mr. Pujara mainly contended that the petitioners have passed B.Ed. and M.Ed. examination along with other graduate and post-graduate degrees. They are also possessing five years teaching experience in B.Ed.colleges. Popat, Mr. Purohit, Mr. Saksena and Mr. Dave for the petitioners in the petitions and learned Government Pleader Ms. Shah for the respondents in all the petitions. 7.1 Learned advocate Mr. Pujara mainly contended that the petitioners have passed B.Ed. and M.Ed. examination along with other graduate and post-graduate degrees. They are also possessing five years teaching experience in B.Ed.colleges. The petitioners were permitted to appear in HTAT conducted by the State Examination Board and they have cleared the said test. The validity of the Rules of 2012 was upheld by learned Single Judge as well as the Division Bench of this Court. The respondent-State realized the mistake and by an amendment of 7.8.2013, amended the said Rules whereby the teaching experience in grant-in-aid or non-grant-in-aid B.Ed. or M.Ed. colleges was considered for the post of Head Teacher. The petitioners cleared the HTAT and other similarly situated candidates who have passed HTAT are also appointed as Head Teachers in the recruitment made in the year 2013-2014 and 2014-2015. Thus, when the petitioners were qualified for the post of Head Teacher, merely because the Rules of 2016 are framed by the respondent-State, whereby once again the teaching experience in B.Ed. and M.Ed. colleges are excluded, the petitioners cannot be prevented to participate in the recruitment process of the Head Teacher who are qualified having passed the HTAT examination. 7.2 Learned advocate Mr. Pujara submitted that as per the interim orders passed by this Court, the application forms of the petitioners were accepted by the respondent authorities. Some of the petitioners have already cleared the required test and the respondents have also given option of district selection to the petitioners. However, because of the pendency of the petitions, the actual orders of posting are not given to the petitioners and therefore if the respondents are ready and willing to consider the case of the petitioners for appointment on the post of Head Teacher, the petitioners are not pressing for their challenge to the validity of the Rules of 2016. 7.3 Learned advocates appearing in the other petitions have also supported the submissions made by learned advocate Mr. Pujara. 8. On the other hand, learned Government Pleader Ms. Shah has contended that it is the prerogative of the State to fix the qualification and criteria as well as the requisite experience. In the Rules of 2012, the teaching experience in B.Ed. and M.Ed. Pujara. 8. On the other hand, learned Government Pleader Ms. Shah has contended that it is the prerogative of the State to fix the qualification and criteria as well as the requisite experience. In the Rules of 2012, the teaching experience in B.Ed. and M.Ed. colleges was excluded and therefore some of the candidates challenged the validity of the said rules. However, the validity of the said Rules was upheld by this Court. No doubt, the respondent-State thought it fit to amend the said Rules by adding the teaching experience in B.Ed. or M.Ed.colleges for the posts in question. However, once again when the State has changed the said Rules and excluded the aforesaid experience, it is not open for the petitioners to challenge once again the validity of the said Rules. 8.1 However, the learned Government Pleader Ms. Shah, after taking instruction, fairly submitted that when the petitioners are permitted to appear in HTAT when the amendment dated 7.8.2013 was in force and when this Court has, by way of interim relief, permitted the petitioners to participate in the present recruitment process, the respondent-State would consider the case of the said petitioners who are permitted to submit their forms physically and after acceptance of their forms, if they are selected in the selection process, the case of the said petitioners would be considered on merits and they will be appointed in appropriate district. 8.2 However, learned Government Pleader has submitted that in other petitions where this Court has not permitted the petitioners to submit their application forms physically and their cases would be subject to outcome of this petition, the respondent authorities have not considered their cases for the post in question. However, for such petitioners, this Court may pass appropriate order without disturbing the selected candidates as the selection process is already over. 9. At the outset, as declared by learned advocates appearing for the concerned petitioners that they are not pressing the challenge of validity of Rules of 2016, this Court is not going into that aspect. 10. Having considered the submissions canvassed by learned advocates for the parties and having gone through the material produced on record, it has emerged from the record that the petitioners are graduates and also possess B.Ed. and/or M.Ed. degrees. The petitioners are also having five years teaching experience in B.Ed. and/or M.Ed. colleges on 18.1.2012. 10. Having considered the submissions canvassed by learned advocates for the parties and having gone through the material produced on record, it has emerged from the record that the petitioners are graduates and also possess B.Ed. and/or M.Ed. degrees. The petitioners are also having five years teaching experience in B.Ed. and/or M.Ed. colleges on 18.1.2012. The State Government framed the Rules of 2012 wherein for the post of Head Teacher, the teaching experience in B.Ed. or M.Ed. colleges was excluded. Therefore, some of the candidates filed the petition being SCA No. 4052 of 2012 and allied matters. Learned Single Judge, by an order dated 8.5.2012, dismissed the said petitions and upheld the validity of the Rules of 2012. The said order passed by the learned Single Judge was challenged by filing Letters Patent Appeal No. 848 of 2012 and allied matters. The Division Bench has also upheld the validity of the said Rules by an order dated 29.8.2012. Thereafter, the respondent-State amended the Rule 4(b) of Rules of 2012 by notification dated 7.8.2013 and thereby teaching experience in Grant-in-Aid or Non-Grant-in-Aid B.Ed. or M.Ed. colleges was added. Thus, the petitioners were eligible as per recruitment Rules for the purpose of appearing in HTAT. They were permitted to appear in HTAT after the amendment dated 7.8.2013. The petitioners have cleared the said examination. During the recruitment process undertaken in the year 2013-14 and 2014-15, the persons who are having five years teaching experience in B.Ed. or M.Ed. colleges were appointed on the post of Head Teachers. However, now the State Government has framed the Rules of 2016 by which once again teaching experience in B.Ed. or M.Ed. colleges has been excluded. The advertisement dated 22.1.2017 has been issued by the respondent authorities for recruitment of 1000 Head Teachers for different primary schools and when the petitioners tried to submit online application forms, their forms were not accepted because as per the Rules of 2016, they are not qualified. 11. As observed hereinabove, this Court permitted the petitioners to submit their application forms physically by directing the respondents to accept the same and process such application forms of the petitioners by an order dated 2.2.2017. It is not in dispute that the application forms of the petitioners of Special Nos. 1584, 1843, 1832 and 1967 of 2017 are accepted. The respondent authorities have considered their cases on merits. It is not in dispute that the application forms of the petitioners of Special Nos. 1584, 1843, 1832 and 1967 of 2017 are accepted. The respondent authorities have considered their cases on merits. In the select list prepared by the respondent authorities, the petitioners who are selected in the selection process are placed at the relevant places in the selection list. 12. During the course of arguments, as per the broad consensus arrived at between the learned advocates for the parties on the basis of the submission made by learned Government Pleader, on instructions, so far as the petitioners who are already selected and finding their places in the selection list, the respondents are hereby directed to consider their cases for appointment in appropriate district as per merits. 13. However, so far as the petitioners of SCA No. 2435 and 4532 and 2175 of 2017 are concerned, it is not in dispute that these petitions are filed after the order dated 2.2.2017 passed by this Court in SCA 1584 of 2017 and other matters and order dated 3.2.2017 passed in Special Civil Application No. 1967 of 2017. In these cases, this Court has not directed the respondent authorities to accept the application forms of these petitioners and therefore the respondent authorities have not considered their cases on merits. This Court has observed in these petitions that issue raised in these petitions are identical to the cases of SCA No. 1584 of 2017 and allied matters and therefore the same is subject to outcome of the main petition being SCA 1584 of 2017. Thus, in the facts of the present case, it is revealed that the respondents authorities have not accepted the forms of these petitioners and not considered their cases on merits. 14. At this stage, it is required to be noted that the selection process is already over and merit list is already prepared by the respondent authorities. However, in the peculiar facts and circumstances of the present case, we direct the respondent authorities to accept the application forms of the petitioners of SCA No. 2435 and 4532 and 2175 of 2017 and consider their cases on merits. If the petitioners clear the required test, their cases be considered for placing them at the bottom of the select list i.e. list of selected candidate and as and when vacancy arises, the case of such petitioners be considered. If the petitioners clear the required test, their cases be considered for placing them at the bottom of the select list i.e. list of selected candidate and as and when vacancy arises, the case of such petitioners be considered. Learned advocates appearing for the petitioners and learned Government Pleader are agreeable for this arrangement looking to the peculiar facts and circumstances of the case. 15. In view of the aforesaid discussion, Special Civil Application Nos. 1584, 1843, 1832 and 1967 of 2017 are allowed with a direction to the respondents-authorities to consider the cases of the said petitioners for appointment in appropriate district as per merits, whereas Special Civil Application Nos. 2435, 2175 and 4532 of 2017 are disposed off with a direction to the respondents-authorities to accept the application forms of the petitioners of the said petitions and consider their cases on merits. If the petitioners clear the required test, their cases be considered for placing them at the bottom of the select list and as and when vacancy arises, the case of the said petitioners be considered for appointment. Accordingly, all these petitions are disposed off. Rule is made absolute to the aforesaid extent.