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Gujarat High Court · body

2018 DIGILAW 1200 (GUJ)

Manish Mansukhbhai Raghadal v. State of Gujarat

2018-10-15

N.V.ANJARIA

body2018
JUDGMENT : N.V. Anjaria, J. 1. As the facts in the two petitions captioned herein are similar and the issues involved identical, they were heard together, and are being treated for disposal by "this common judgment. 2. The two petitioners of Special Civil Application No. 9331 of 2017 have prayed for a direction to declare as illegal the action on part of District Education Officer, Navsari and District Education Officer, Anand-respondent Nos. 4 and 5 respectively, in not granting to the petitioners the letters of recommendation for the appointment to the post of Shikshan Sahayak (Assistant Teacher). The petitioners have prayed for declaring that the petitioners were eligible and entitled to be appointed to the post. In the other Special Civil Application also, the two petitioners have prayed on the similar lines to declare the action on part of District Education Officer, Valsad-respondent No. 4 therein to be illegal, further seeking appointment to the post. 3. Outlining the relevant facts, all the four petitioners in the two petitions passed their Higher Secondary School examination, and thereafter, passed the B.Com. examination. They undertook the Master Degree course of M.Com. which they completed. They also passed B.Ed, examination and cleared Teachers' Aptitude Test (TAT) prescribed under the Teachers and Headmasters For Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011. At the graduation level, the petitioners had Statistics as one of the subjects whereas the said subject of Statistics was the main subject at the Master Degree level. 3.1. Pursuant to the advertisement issued on 15th April, 2016 for the recruitment to the post of Shikshan Sahayak in the Non-Government Grant-in-Aid Secondary Schools, the petitioners made their applications Online. They appeared before the duly constituted Selection Committee. The Committee prepared select list on 7th November, 2016. The petitioner No. 1 in the first captioned Special Civil Application figured at Merit No. 54 and petitioner No. 2 secured the merit rank at Serial No. 92 in the list. The petitioners of the other petition also secured their merit rank and their names figured at Serial Nos. 84 and 83 respectively in the list. 3.2. While all the petitioners having figured in the merit list and having been selected by the Selection Committee, anticipated issuance of letter of recommendation, District Education Officer concerned refused the petitioners the letter of recommendation for the purpose of appointment. 84 and 83 respectively in the list. 3.2. While all the petitioners having figured in the merit list and having been selected by the Selection Committee, anticipated issuance of letter of recommendation, District Education Officer concerned refused the petitioners the letter of recommendation for the purpose of appointment. It is the specific and undenied case of the petitioners that upon their selection, they are also allotted the respective school where they were going to be appointed, still however, the respondent-District Education Officer did not issue letter of recommendation subsequently. 3.3. Though, according to the petitioners they were eligible possessing requisite qualification to be appointed to the post, when the petitioners complained about non-issuance of letter of recommendation, they were conveyed by the authority that at the graduation level, the subjects which the petitioners studied were Auditing-3, and Management Account-4 whereas only in the Master Degree level (M. Com.), the petitioners studied Statistics as main subject. Though, the petitioners studied subject of Statistics at the graduation level and Statistics as main subject at the post-graduation level, according to the stand of the respondents, since the petitioners did not have Statistics as main subject at the graduation level, they were not qualified, and therefore, not eligible to be appointed. 3.4. Advertisement dated 15th April, 2016 mentioned the eligibility criteria. It was stated that for the appointment to the post of Shikshan Sahayak in the school, eligibility in Rule 7(a) of the Rules called Teachers and Headmasters for Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 published by the Education Department by Notification dated 11th February, 2011 would apply. It was further mentioned that provisions of Resolution of the Education Department dated 28th October, 1975 and 8th October, 2009 would apply for the purpose of determination and eligibility to be read with the aforesaid Rules. Thus, for determining the eligibility, aforesaid was the compass contemplated. 4. Learned Advocate for the petitioners Mr. R.V. Deshmukh submitted that the petitioners were selected by Selection Committee constituted under the Rules and the Selection Committee verified the educational qualifications and selected the petitioners. Thus, for determining the eligibility, aforesaid was the compass contemplated. 4. Learned Advocate for the petitioners Mr. R.V. Deshmukh submitted that the petitioners were selected by Selection Committee constituted under the Rules and the Selection Committee verified the educational qualifications and selected the petitioners. Learned Advocate for the petitioners after emphasising that all the petitioners had at their graduate level the subject of Statistics and at the post-graduate level this subject was the main subject, further submitted that the petitioners were treated to be possessing the eligibility and were entitled to be issued the letters of recommendation. It was submitted that in the facts and circumstances, a legitimate expectation arose for the petitioners to be appointed was right denied to them. According to learned Advocate for the petitioners, the petitioners satisfied the eligibility criteria as contemplated. 4.1. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani vehemently opposed the case of the petitioners to submit on the basis of contentions raised in the affidavit-in-reply filed on behalf of respondent No. 2, that the petitioners did not possess the requisite qualifications as per the Rules notified by the Education Department by Notification dated 11th February, 2011. He relied on averments in Paragraph 7 of the affidavit to contend that the required qualification for study in the subject of Statistics was not fulfilled. According to the affidavit-in-reply, the qualifications required were these for the higher secondary teacher-(i) Graduate Degree in concerned subject, (ii) Post-graduate Degree in concerned subject, (iii) Graduate Degree in professional subject i.e. B.Ed./B.P.Ed, etc. and (iv) Post-graduate Degree in professional subject i.e. M.Ed./M.P.Ed, etc. (if possesses). For the post of secondary teacher, according to the contentions, following were the required qualifications - (i) Graduate Degree in concerned subject, (ii) Post-graduate Degree in concerned subject (if possesses), (iii) Graduate Degree in professional subject i.e. B.Ed./B.P.Ed, etc. (iv) Post-graduate Degree in professional subject i.e. M.Ed./M.P. Ed. etc. (if possesses). 4.2. It was contended that none of the petitioners who had applied for the post of Shikshan Sahayak had the Statistics subject as main subject in the graduation degree as well as post-graduation degree. It was stated that the petitioner No. 1 had passed B.Com. in Auditing and Management Account. Similar were the qualifications of the other petitioners, contended learned Assistant Government Pleader. It was stated that the petitioner No. 1 had passed B.Com. in Auditing and Management Account. Similar were the qualifications of the other petitioners, contended learned Assistant Government Pleader. The crux of the objection of the respondents were that the petitioners had studied the subject of Statistics as only one of the subjects, but they had not specialised in the said subject as far as graduation level study was concerned. The Statistics was the main subject only at the post-graduation level which by itself did not meet the requirement as the subject of Statistics was also necessary to be the main subject at the graduation level, according to the stand of the respondents. 5. From the facts of the case and the rival contentions canvassed, it emerges that the petitioners passed their B.Com. examination with Statistics as one of the subjects and in their post-graduation study in M.Com., subject of Statistics was the main subject. Since the petitioners did not have Statistics as main subject in the graduation level, they were treated as ineligible on the ground that the Rules notified on 11th February, 2011 of the Education Department contemplated such requirement. Whether the Rules contained and mandated this prescription as eligibility, is the moot question to be considered. 5.1. The Rules called Teachers and Headmasters for Registered Private Secondary and Higher Secondary Schools (Procedure For Selection) Rules, 2011, provides for selection procedure. Rule 4 deals with the selection of Teachers and Headmasters which states that the Selection Committee shall select the persons for appointment on the said post in the registered private schools from amongst the persons who are qualified to be appointed as per the provisions of the Rules. The Selection Committee undertakes the process of inviting applications, recommending the names of the candidates and carrying out the selection. 5.2. The eligibility for appointment is provided for in Rule 7. Rule 7 reads as under: "7. The Selection Committee undertakes the process of inviting applications, recommending the names of the candidates and carrying out the selection. 5.2. The eligibility for appointment is provided for in Rule 7. Rule 7 reads as under: "7. Eligibility for appointment:- To be eligible for appointment as Teacher or Head-Master, a candidate shall possess- (a) requisite educational qualifications and age in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974; and (b) basic knowledge of computer application as prescribed in Gujarat Civil Services Classification and Recruitment (General) Rules, 1967: Provided that the age-limit shall be relaxed in favour of a candidate belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women in accordance with the provision of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967." 5.3. Rule 9 provides for application for the post of Head-Master, Rule 10 provides for scrutiny of applications, whereas Rule 11 deals with the preparation of the selection list. Rule 11 may be extracted in its relevant portion. "11. Preparation of select list:- (1)(a) The Selection Committee shall prepare a list on the basis of weightage of 70% marks of the marks secured by the concerned candidate in Teacher's Aptitude Test to be conducted at least once in a year by Gujarat Secondary and Higher Secondary Education Board, Gandhinagar. (b) ... ... ... (c) ... ... ... (d) ... ... ... (2) The weightage of 30% will be given, out of the marks secured in the prescribed educational qualification for the concerned post. (Please see the example in Appendix II) (3) The maximum marks for the qualification for the purpose of weightage of 30% shall be as prescribed in Appendix I. (4) The Selection Committee shall prepare subject-wise and category-wise lists on the basis of marks secured by the concerned candidates as provided in sub-rules (a) and (b) above. (5) The Selection Committee shall prepare a list of the successful candidates in the order of merit on the basis of aggregate marks finally awarded to each candidate as provided under sub-rule (d) above limited to the number of posts advertised by the Selection Committee. (5) The Selection Committee shall prepare a list of the successful candidates in the order of merit on the basis of aggregate marks finally awarded to each candidate as provided under sub-rule (d) above limited to the number of posts advertised by the Selection Committee. (6) The Selection Committee shall prepare a separate list of successful candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes and Women to the extent of the number of vacancies reserved for such categories: Provided that where the requisite number of candidates, belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class or as the case may be Nomadic Tribes and Denotified Tribes, could not qualify on the basis of the qualifying aggregate marks fixed for general category, the Selection Committee may relax the qualifying aggregate marks to make up the deficiency in these reserved posts. (7) The Selection Committee shall prepare subject-wise and category-wise waiting lists, showing the names of the candidates of about 10% of the list of successful candidates so prepared under sub-rules (2) and (3) above. (8) The waiting lists referred to in sub-rule (7) shall be operative for a period of two years from the date of publication of the result or till the date of publication of the result of the next examination, whichever is earlier." (9) The waiting list may be operative in the following circumstances:- (i) If the post of Head-Master or Secondary teacher or higher secondary teacher is not filled up due to non-joining of the selected candidate in the prescribed time-limit. (ii) If the selected candidate is disqualified for appointment for any of the reasons." 5.4. This Rule thus contemplates giving of weightage on the basis of the educational qualification held by the candidate. It provides that Selection Committee shall prepare a list on the basis of weightage of 70% marks of the marks secured by the concerned candidate in Teachers' Aptitude Test. It further says that the candidate who has secured at least 50 marks in the Teachers Aptitude Test (TAT) shall be considered as qualified for TAT weightage. The petitioners have passed the TAT. 5.5. What is further provided, and which is relevant, is in sub-rule (2) and sub-rule (3) of Rule 11. It further says that the candidate who has secured at least 50 marks in the Teachers Aptitude Test (TAT) shall be considered as qualified for TAT weightage. The petitioners have passed the TAT. 5.5. What is further provided, and which is relevant, is in sub-rule (2) and sub-rule (3) of Rule 11. Sub-rule (2) speaks of giving weightage of 30% out of the marks secured in the prescribed educational qualification for the concerned post as per the example given in Appendix II. Under sub-rule (3), it is stated that the maximum marks for the qualification for the purpose of weightage of 30% shall be as per Appendix II. For the post of Higher Secondary Teacher. 5.6. The table indicating the weightage which is part of Appendix II of the Rules, is extracted hereunder: For the Post of Higher Secondary Teacher: For example No. Qualification Maximum Marks Percentage secured by the candidate Marks eligible on the basis of percentage secured by the candidate (Col. 3xCol. 4/100 1 2 3 4 5 1. Graduate degree in concerned subject 10 70 7.0 2. Post-graduate degree in concerned subject 10 60 6.0 3. Graduate degree in professional subject i.e. B.Ed./B.P.Ed. etc. 5 80 4.0 4. Post-graduate degree in professional subject i.e. M.Ed./M.P.Ed. etc. 50 60 3.0 5.7. The Rules, therefore, provide that the candidates who satisfy the eligibility criteria under Rule 7 shall be further treated for the purpose of preparing select list under Rule 11. In preparation of the select list, the candidates are to be treated for giving weightage on the basis of the marks they may have secured in the subject concerned. This is a stage after the stage of ascertainment of the eligibility and after short-listing the eligible candidates who will be, in the subsequent stage, would be ranked in the order of selection after giving the weightage as contemplated under Rule 11 read with the Appendix I and II to the Rule. 6. As noticed, the eligibility contemplated under Rule 7 is the requisite educational qualification and age in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974. The Regulations of 1974 do not lay down the educational qualification for the post of Teacher, however Government Resolution dated 28th October, 1975, referred to in the advertisement as well under the eligibility condition, provides for the qualification required to be held by the candidate. The Regulations of 1974 do not lay down the educational qualification for the post of Teacher, however Government Resolution dated 28th October, 1975, referred to in the advertisement as well under the eligibility condition, provides for the qualification required to be held by the candidate. The requisite qualification prescribed under this Resolution is, "Trained Teachers having second class Master's Degree in respective subject or trained graduate Teachers who have experience of teaching in concerned subject for about seven years in Standards 10 and 11". The respondent authorities have not been disputing that the petitioners satisfy this criteria to meet the eligibility. 7. The weightage to be given in terms of Rule 11 of the Rules read with the Appendix as above, is not the eligibility. The weightage to be given on the basis of the possessed qualification and the criteria for eligibility are two different aspects. When the weightage is given with reference to certain qualification and when such weightage is counted under the Rules for the purpose of preparing selection list on the basis of merit marks so obtained of candidates, such weightage cannot be treated as part of eligibility. The eligibility consists of criteria separately provided. The weightage does not determine the selection itself. It is an additional benefit to be applied or to be given to the eligibles to be selected in the order amongst the eligible candidates. The weightage to be given could be said to be part of procedure of selection and not the part of the criteria to be in the eligibility zone. Therefore, the provision for giving weightage in the Rules is not to be confused with the concept or criteria of eligibility. 8. The respondent No. 2 in his affidavit-in-reply, as can be seen from the averments in Paragraph 7 onwards, has referred to the weightage provision as eligibility by extensively relying on them. The contention is accordingly raised that petitioners are not eligible. In canvassing in such a way, to say the least, the deponent has misled and misdirected himself. Therefore, the defence of the respondents on this principal count falls flat. 9. Furthermore, it is undisputed that when the advertisement in question was issued on 15th April, 2016 and the selection of Teachers thereunder took place, aforementioned Rules dated 11th February, 2011 read with the Resolutions dated 28th October, 1975 and 8th October, 2009 were to be applied. Therefore, the defence of the respondents on this principal count falls flat. 9. Furthermore, it is undisputed that when the advertisement in question was issued on 15th April, 2016 and the selection of Teachers thereunder took place, aforementioned Rules dated 11th February, 2011 read with the Resolutions dated 28th October, 1975 and 8th October, 2009 were to be applied. The petitioners expected for issuance of the letter of recommendations but either the said was not acted upon or they were withdrawn. The appointment orders to the candidates considered eligible were issued in December, 2017. There was no provision regarding the criteria of Statistics to be the main subject in the Gujarat Secondary Education Regulations, 1974. 9.1. The eligibility on this score came to be specified and prescribed subsequently and in that regard Resolution dated 8th June, 2018 was issued by the Education Department of the State Government. The eligibility criteria providing for the subject required to be possessed by the candidates for being appointed to the post in question came to be inserted in Regulations 20(3) to 20(8) as per the recommendations in the Expert Committee meeting dated 7th March, 2018, pursuant to which the aforesaid Resolution was issued. Respondent No. 2 has produced the said Resolution dated 8th June, 2018 for seeking reliance thereon for submitting that the petitioners did not possess the eligibility with regard to the subject required to be part of the eligibility. 9.2. Thus, it was admittedly in the year 2018 only that the subject of Statistics was provided to be the main subject required in the graduation and post-graduation level. This provision was made in Resolution dated 8th June, 2018, which, in any view, cannot apply retrospectively and would apply only prospectively. On the said count, the petitioners' eligibility is not affected when they possessed the requisite eligibility prevalent and in force when they underwent the selection process. The denial of appointment to the petitioners could not hold good. 10. Thus, it became evident that the respondents while applying the Rules notified on 11th February, 2011, invoked the provisions as regards granting of weightage in the said Rules. The provision of weightage contemplated in Rule 11 was mistaken as the criteria of eligibility. The petitioners were held disentitled to the post treating them ineligible on such basis. 10. Thus, it became evident that the respondents while applying the Rules notified on 11th February, 2011, invoked the provisions as regards granting of weightage in the said Rules. The provision of weightage contemplated in Rule 11 was mistaken as the criteria of eligibility. The petitioners were held disentitled to the post treating them ineligible on such basis. What was contemplated in the Rule regarding giving of weightage was not the part of the eligibility criteria indicated and prescribed for the post in question. The provision of weightage could not have been treated as prescription of eligibility to deny the appointment to the petitioners who were otherwise duly selected and were entitled to the letters of recommendation for the appointment. In view of this misapplication of criteria, the refusal on part of the respondents to appoint the selected petitioners to the post of Shikshan Sahayak stood rendered arbitrary, illegal and in violation of Arts. 14 and 16 of the Constitution. 11. As a result of above discussion and reasons, both the petitions are allowed in terms of Paragraph 7(A) of the respective petitions. Thereby, it is declared that the action on part of respondent No. 4-District Education Officer, Navsari and respondent No. 5-District Education Officer, Anand in not granting the letters of recommendations to the petitioners for appointment of Shikshan Sahayaks (Assistant Teachers) stands as illegal. The respondents are directed to issue letters of recommendations to the petitioners in both the petitions declaring the petitioners as eligible for the appointment to the post in question. Direct Service is permitted.