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2019 DIGILAW 466 (GUJ)

Chamiyara Rajesh Ramji v. State of Gujarat

2019-04-25

S.R.BRAHMBHATT, V.B.MAYANI

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JUDGMENT : S. R. BRAHMBHATT, J. 1. The appellant, original petitioner in Special Civil Application No. 14908 of 2004, has taken out this Letters Patent Appeal assailing the order and judgment passed by the learned Single Judge on 28.03.2005 in three petitions, whereby the Court while partly-allowing the petitions upheld the decision of the Authority to consider and count the weightage given to Higher Secondary Certificate (hereinafter referred to as "H.S.C.") and directed the Authorities to count the weightage for marks obtained in B.P.Ed instead of B.P.E, which of course resulted into enhancing the marks of the petitioner marginally but did not yield him a place in the select list. As per the submission of the learned Counsel for the appellant, the case of the petitioner could have been considered by counting both i.e. B.P.Ed, and B.P.E. for trained Graduate and Graduate respectively and the learned Single Judge erred in not directing the same, which gives rise to filing of this Letters Patent Appeal. 2. The facts in brief as gathered from the judgment and shorn off necessary details, deserve to be set out as under :- 2.1 The petitioner belongs to General category. He applied for the Post of Vidhyasahayak for the Jamnagar District. The Advertisement in question was issued on 08.07.2004. The petitioner possesses qualification of H.S.C., B.P.E. and B.P.Ed, and he claimed benefit of sports participation based upon the Government Resolutions dated 25.02.1980 and 01.08.1990. The Court did not deal the aspect of challenge of marks based upon 5% sports participation, as the learned Counsel for the appellant specifically made a request for confining this appeal to non-considering the weightage admissible to the petitioner on account of his B.P.E. degree which is equivalent to Graduate degree. 2.2 The petitioner's testimonials and case is based upon the documents, which were examined and he was assessed to be eligible for getting marks based upon the weightage assessable to H.S.C. equivalence and B.P.E. qualification. 2.2 The petitioner's testimonials and case is based upon the documents, which were examined and he was assessed to be eligible for getting marks based upon the weightage assessable to H.S.C. equivalence and B.P.E. qualification. The qualification, which was assessable and admissible on account of B.P.Ed, marks, was however omitted and, therefore, in the petition, while partly-allowing the captioned petition, the Court made following observations, which deserve to be reproduced in verbatim :- "13.In the result, the stand of the respondents in assigning 40% weightage to the marks obtained by the petitioners in H.S.C. examination is valid, however, with respect to the decision to assign 60% weightage to B.P.E. examination marks is concerned, the same is set aside and it is directed that the respondents shall take into account the result of the petitioners in B.P.Ed. examination by giving 60% weightage to such marks and recalculate their merit marks to be assigned to them. On the basis of such assignment, the respondents shall add the sports participation marks to be assigned to the petitioners and after assignment of appropriate marks if it is found that the petitioners would have warranted their place in the select list on the basis of marks assigned to the last selected candidate in their respective categories, the petitioners shall be given appointment to the post of Vidya Sahayak from due date and seniority, however, no wages shall be given for the past period. I am issuing this direction in view of the admitted position that there are vacancies existing for the said posts in the respective districts." 2.3 The petitioner as was not granted the admissible weightage based upon his marks obtained in B.P.Ed, as well as B.P.E., which would have surely resulted into enhancement and increase in the marks which would and perhaps made him eligible to secure offer of appointment as Vidhyasahayak, had to prefer this Letters Patent Appeal as the direction of the learned Single Judge, according to the petitioner, did not contain a direction to the respondent Authority for considering weightage on account of his marks obtained in B.P.E.as well as B.P.Ed. Instead thereof, the learned Single Judge rested by issuing direction in counting B.P.Ed, marks, which were admittedly little higher than the marks obtained by him in B.P.E. but the decision of the Authority of granting weightage on account of the marks obtained in H.S.C. was not disturbed or rather it was held to be invalid. 2.4 Learned Counsel for the appellant invited the Court's attention to the Government Resolution dated 16.06.1998, a copy of which is produced at Page-13 of the compilation and laid emphasis upon the qualification caption therein, which clearly indicates that while working out the weightage for considering the candidate's qualification prescribed thereunder to be taken into consideration, the three categories are prescribed. In the first category, the candidates having qualification of S.S.C./P.T.C, 40% weightage is assigned to the candidate on the basis of his marks in S.S.C and 60% weightage is assigned to candidate's marks obtained in P.T.C. In the second category, for B Ed. candidates, the marks obtained in graduation are to be given 40% weightage and marks obtained in B.Ed.are to be given 60% weightage. Similarly, in third category i.e. C.P.Ed., marks obtained in S.S.C. are to be given 40% weightage and marks obtained in C. P.Ed. are to be given 60% weightage. According to the learned Counsel for the appellant, this scheme of marking and assignment of weightage does not envisage any weightage to be given for H.S.C. as the H.S.C. has not been prescribed for qualifying for any weightage. As against this, for the qualification of C.P.Ed., the marks secured in S.S.C and C.P.Ed, are to be counted. But, according to him, on account of the amendment vide Government Resolution dated 22.07.2004, qualification of B.P.E is provided, which is making that qualification equivalent to the qualifications of B.P.Ed., D.B.Ed., D.P.Ed., as could be seen from the Government Resolution dated 05.06.2004, a copy of which is produced at Page-38 of the compilation. In Item No.2 at Page-39 in the categories of trained Graduate, after (a), (b) and (c), one more category in form of (d) came to be inserted vide Resolution dated 22.07.2004 i.e. B.P.E. Meaning thereby, B.P.E. is also now to be considered at par with B.Ed. In Item No.2 at Page-39 in the categories of trained Graduate, after (a), (b) and (c), one more category in form of (d) came to be inserted vide Resolution dated 22.07.2004 i.e. B.P.E. Meaning thereby, B.P.E. is also now to be considered at par with B.Ed. Hence, the degree of the petitioner and marks obtained by him in B.P.E. should be considered and not his marks in H.S.C, as Page-18 categories would not make him eligible to be considered as falling into the category of B.Ed, or trained Graduates category, which would make it incumbent upon the Authorities to count his marks obtained in Graduation as well as in B.Ed. 2.5 Learned Counsel for the appellant further submitted that though there is no specific prayer seeking declaration on the point that B.P.E. to be considered as equivalent to Graduation, but by the very fact that the Authorities themselves have considered B.P.Ed, as an additional qualification and trained Graduate equivalent to B.P.Ed., the same would clearly indicate that the course of B.P.E. which is of three years, after H.S.C. would be treated as a trained course for rendering the candidate to be a trained Graduate, so as to make him eligible to claim weightage in category (2) at Page-18. 3. Learned Counsel for the respondents submitted that the petitioner unfortunately has not been possessing the qualification of B.Ed. i.e. trained teachers' qualification and qualifications of B.P.E. and B.P.Ed, are being treated at par equivalent to B.Ed. The petitioner's claim to add him in category at Page 18 cannot be sustained as the petitioner had not claimed any equivalence or declaration of B.P.E. being equivalent to Graduation. 3.1 Learned Counsel for the respondents invited the Court's attention to the affidavit filed by one Shri S.B. Garasiya, Deputy Secretary, Education Department, and laid greater emphasis upon Paragraph Nos.2 and 3 which deserve to be reproduced hereunder :- "2.At the outset, I say that it is true that qualification of 1) Certificate of Physical Education (C.P.Ed.2) Diploma in Physical Education (D.P.Ed.), 3) Bachelor of Physical Education (B.P.Ed.) and 4) Bachelor of Physical education (B.P.E.) are considered to be equal qualifications for Physical Education Teacher. Candidate possessing any of the above qualification is considered to be at part for the purpose of selection of Vidya Sahayak for imparting physical education. Candidate possessing any of the above qualification is considered to be at part for the purpose of selection of Vidya Sahayak for imparting physical education. The quota of the said post in each District is limited up to 5% of total existing strength of Vidya Sahayak..... 3. It is the case of the appellant before the Led. Single Judge that the above referred qualifications are considered to be at par. The methodology for giving weightage should be also uniform. It is the case of the appellant that while considering candidature, candidate who possess B.P.Ed, and D.P.Ed-Qualification, merits obtained at graduation level and trained qualification level is considered. However, while considering his candidature, his graduation level qualification i.e. B.P.E and trained qualification is required to be considered for preparing merit lis: In this regard, it is respectfully submitted that the appellant's this contention is misconceived because- (A) B.P.E. and B.P.Ed, is considered: to be at par. Therefore, acquiring two qualifications, which are at par, would not make position of the appellant better than other candidates. (B) For acquiring the qualification of B.P.Ed., candidate acquires degree from any other branch i.e. Arts, Science and Commerce Education and then he is acquiring this B.P.Ed, as a trained qualification. For B.P.E. itself is 3 years courses in Physical Education and is trained graduation itself. (C) Candidates, who acquire qualification of BPE, they have got HSC qualification and then they get trained qualification. Therefore, whenever their candidature is considered, they get benefit of marks obtained at HSC level and trained graduation level i.e. BPE. (D) Students studying in BPE course, studies the same subject in B.P.Ed. Course. There is no advance education, which would enrich candidate, who has undertaken BPE and further prosecuted his studies in B.P.Ed. (E) Option of considering graduation level mark of HSC level marks is kept only with a view to give equal opportunity to all the candidates, who have undertaken different courses of different duration and after acquiring different qualification as basic qualification for seeking admission for trained graduation. (E) Option of considering graduation level mark of HSC level marks is kept only with a view to give equal opportunity to all the candidates, who have undertaken different courses of different duration and after acquiring different qualification as basic qualification for seeking admission for trained graduation. Annexed herewith and marked as ANNEXURE-II to this affidavit in reply is a copy of the Government Resolution dated 5/6/04 and 22/7/04 which provides for weightage marks while considering candidature." 3.2 Learned Counsel for the respondents has also drawn attention of the Court to the affidavit-in-reply produced at Page-43 of the compilation and placed reliance upon Paragraphs-5 to 8, which read as under :- "5.It is submitted that vide order dated 16-12-2004 this Hon'ble Court, Joint Secretary, General Administration Department with a view to find out as to how the Government Resolution dated 25-2-1980 issued by the General Administration Department is being made applicable to the sports persons while making the recruitments in class 3 and class 4 services in various Government Departments. 6. It is submitted that I was informed by the learned Assistant Government Pleader vide letter dated 15-12-2004 about the issuance of the notice to the Secretary, Gujarat Administration Department wherein the instructions were sought from the department as regards the applicability of the Government Resolution dated 25-2-1980 in various departments while making recruitments in class 3 as well as class 4 services. It is submitted that as per clause 2(b) of the Government Resolution dated 25-2-1980 wherein appointments are being made in class 3 as well as class 4 services on the basis of the interviews as well as on the basis of the marks obtained by the candidates in the Secondary School Examination, in that case the standard of the merit can be needed by the candidate belonging to the sports category i.e. if the standard of the appointment of Vidhya Sahayak is fixed at 80 percent i.e. the last candidate in the merit list has reached up to 80% then maximum up to 5 % to the said 80 % would be calculated which in that case would be 4 % or less than that. If a candidate belonging to the sports quota has obtained 76 % then after adding 4 % the said candidate of sports quota would be brought to the level of 80% which may be the standard for selection fixed on the basis of merit. It is pertinent to note here that the aforesaid benefit is not a reservation but a preferential treatment to the sportsmen who may fall short for qualifying themselves in the merit list when other candidates are not available. In other words it is submitted that this benefit can be given only if there are vacancies available on the concerned post after considering the merit of the candidates other than sportsmen. 7. It is submitted that the basic qualification for the appointment of Vidhya Sahayak are HSC and PTC, HSC and BPE, HSC and BPED, BA and BED Graduation and Bed, Graduation and BPED and therefore, the marks obtained by the candidate to the tune of 40 % in HSC and 60 % in PTC, CPED, BPE are calculated in preparing the merit list. So far as the trained graduates are concerned, the merits are calculated by giving % weightage to graduation and 60 % to BED. 8. It is further submitted that the Government Resolution dated 25-2-1980 is being made applicable to all the appointments in class 3 as well as class 4 services in all Government Departments for giving benefit to the candidates belonging to the sports category for the sports games enlisted in Government Resolution G.A.D. Dated 25-2-1980 and 1-8-1990." 4. This Court has heard learned Counsel for the parties and perused judgment and order impugned in the present Letters Patent Appeal. 5. The following indisputable aspects emerging therefrom deserve to be set out in order to appreciate the controversy in question :- (a) The fact remains that the petitioner possessed three qualifications, namely, H.S.C., B.RE. and B.P.Ed. (b) The petitioner was participating, in the selection procedure for the Vidhyasahayak post available for physical training teachers on the basis of his qualifications of B.RE. and B.P.Ed. (c) The scheme of assessment of the candidates as prescribed under the Government Resolution dated 11.06.1998 does not recognize qualification of H.S.C. as qualification to be considered for giving any weightage. (b) The petitioner was participating, in the selection procedure for the Vidhyasahayak post available for physical training teachers on the basis of his qualifications of B.RE. and B.P.Ed. (c) The scheme of assessment of the candidates as prescribed under the Government Resolution dated 11.06.1998 does not recognize qualification of H.S.C. as qualification to be considered for giving any weightage. (d) The said Government Resolution prescribes three categories, which could be extracted hereunder for ready reference :- "(1) For candidates having qualification of S.S.C./P.T.C :- = Marks obtained in S.S.C. 40% = Marks obtained in RT.C. 60% (Percentage obtained in Samuhjivan-75, Annual Vocational work book - 100, and Annual Aid workshop - 50 marks, are not being included for calculating percentage for selection criteria) (2) For B.Ed. Candidates :- = Marks obtained in Graduation 40% = Marks obtained in B.Ed. 60% (3) For C.P.Ed. Candidates :- = Marks secured in S.S.C. 40% = Marks secured in C.P.Ed. 60%" (e) Annexure-E appears to be Resolution of 05.06.2004, in which, along with B.Ed. Graduates qualification for the post of Vidhyasahayak, more equivalent qualifications were provided as could be seen from relevant description on Page-39. Item No.2 is extracted hereinbelow for the ready reference :- "Reference :- 1. Resolution No: PRE-1096-3050-1027(98)-K issued by the Education Department dated 11.6.1998. 2. Resolution No: PRE-1998-CC-294-K issued by the Education Department dated 31.8.1998. 3. Resolution No: PRE-1096-3050-K issued by the Education Department dated 21.6.2000. 4. Resolution No: PRE-1096-3050-K issued by the Education Department dated 1.8.2000. 5. Resolution No: PRE-1096-EM-442-K issued by the Education Department dated 1.8.2001. 6. Resolution No: PRE-1096-EM-442-K issued by the Education Department dated 1.10.2001. 7. Resolution No: PRE-1096-3050-K dated 12.2.2004 issued by Education Department. Resolution :- xxx xxx xxx (1) The qualification/Degree of Bachelor of Education obtained from recognized University situate in Gujarat State would be approved qualification. (2) For recruitment of Vidhyasahayak, the following qualification of trained graduate would be approved qualification. (a) Bachelor of Physical Education (B.P.Ed.) (b) Diploma in Basic Education (D.B.Ed.) (c) Diploma in Physical Education (D.P.Ed.) (3) The Graduation Degree/ Qualification obtained from Regional College of Bhopal and Indira Gandhi Open University would be approved and valid qualification provided the Graduation Degree must have been obtained from the recognized University situated within State of Gujarat. (a) Bachelor of Physical Education (B.P.Ed.) (b) Diploma in Basic Education (D.B.Ed.) (c) Diploma in Physical Education (D.P.Ed.) (3) The Graduation Degree/ Qualification obtained from Regional College of Bhopal and Indira Gandhi Open University would be approved and valid qualification provided the Graduation Degree must have been obtained from the recognized University situated within State of Gujarat. (4) The Graduation/Degree qualification obtained from the recognized institutions recognized by SNDT Women University situate within the State of Gujarat would be approved and valid qualification." The Government appears to have issued one more Resolution dated 22.7.2004, which is reproduced hereunder for ready reference :- "Recruitment - Vidhyasahayak Scheme Regarding recruitment a trained Graduates Gujarat Government Education Department, Resolution No:PRE-1096-3050-K Sachivalaya, Gandhinagar. Date: 22.7.2004. Reference :- 1. Resolution No: PRE-1096-3050-1027(98)-K issued by the Education Department dated 11.6.1998. 2. Resolution No: PRE-1998-CC-294-K issued by the Education Department dated 31.8.1998. 3. Resolution No: PRE-1096-3050-K issued by the Education Department dated 21.6.2000. 4. Resolution No: PRE-1096-3050-K issued by the Education Department dated 1.8.2000. 5. Resolution No: PRE-1096-EM-442-K issued by the Education Department dated 1.8.2001. 6. Resolution No: PRE 1096-EM-442-K issued by the Education Department dated 1.10.2001. 7. Resolution No: PRE- 1096-3050-K issued by Education Department dated 12.2.2004. 8.Resolution No: PRE- 1096-3050-K issued by the Education Department dated 5.6.2004. Resolution:- Vide Resolution at Sr. No.1 above, the scheme of recruitment of Vidhyasahayak has been implemented and/or operation in primary schools of District Panchayats, authorised Nagarpalikas, and Municipalities. Pursuant to the Government Resolutions referred to at Sr.No.(7) and (8), provisions are made in respect of Trained Graduates. In the above context, in the Resolution referred to at Sr.No.(8) above, the following qualification is added and included in para-(2)(c) of the aforesaid Resolution. 9(d) B.P.E. In the name and under the orders of H.E. The Governor of Gujarat Sd/- Illegible (Bachubhai Nayi) Under Secretary Education Department" The above Resolution makes it absolutely clear that the qualification of B.P.E. was treated as equivalent qualification to B.P.Ed, by adding one more category i.e. category (d) in the Resolution dated 05.06.2004 after category (c). (f) The learned Single Judge's operative part of the order, which has been set out hereinabove, would clearly indicate that the learned Single Judge upheld the weightage given by the Authority on the basis of the H.S.C marks obtained. (f) The learned Single Judge's operative part of the order, which has been set out hereinabove, would clearly indicate that the learned Single Judge upheld the weightage given by the Authority on the basis of the H.S.C marks obtained. However, the weightage given to B.P.E marks was held to be erroneous and Authorities were directed to count B.P.Ed marks for weightage which were greater but the said exercise appears to have resulted into enhancing the appellant's marks only marginally and did not yield him an offer of appointment and placement in the select list. Therefore, the petition was filed on the ground that the marks and the weightage ought to have been given on the basis of the petitioner's case being falling under category (2), in which, graduation marks as well as trained degree graduation marks are to be counted. 6. Against the aforesaid factual backdrop, the Court is examining the contentions raised on behalf of the appellant. The Court is mindful of the fact that the petitioner has not articulately claimed any declaration for seeking B.P.E. degree to be equivalent with B.P.Ed, degree, so as to fall under category (2) but that in itself would not create a lacuna so as to reject the case on that basis, as had there been no subsequent resolution of the State considering B.P.E. equivalent to B.P.Ed, and granting the equivalence on that basis, the said contention perhaps could have weighed with the Court. But when the State itself has accorded equivalence to B.P.E. with B.P.Ed., the lack of articulation in the prayer shall not result into denial of relief on account of the said articulation. 7. The Court is also of the considered view that the degree of B.P.Ed., or B.P.E. has rendered the petitioner to be considered under category (2) only when the petitioner was declared eligible to be considered under category (2) at Page-18, extract of which is set out hereinabove, and ignoring his marks in B.P.E and introducing altogether a new category of H.S.C and giving weightage on the basis of the marks obtained thereunder would render the entire exercise vitiated as the qualification of H.S.C. has never been prescribed anywhere in the scheme of original resolution and subsequent amendment prescribing further qualifications. The qualification of B.P.E. as per the State's own action is to be seen from the Resolution giving greater weightage than ordinary graduation and when such is the situation, the Court needs no further elaboration on the aspect of the petitioner's case being falling under category (2), so as to make him eligible for receiving weightage on the ground of the marks obtained by him in B.P.E i.e. graduation which is of three years course and B.P.Ed, i.e. course after his Graduation which is a one year course and both the courses are fit, proper and equivalent to B.Ed. Therefore, the Court is of the view that the learned Single Judge's order to that extent need modification and is according modified. As a result thereof, following direction is issued. (i)The respondent shall under the exercise of considering the qualification of B.P.E. as a Graduate qualification and on that basis. 40% weightage be assigned for B.P.E and 60% weightage be assigned for B.P.Ed, and, thereafter, if the petitioner is found to be eligible then without disturbing those who have been serving, appoint the petitioner on the post of Vidhyasayahak. However, as the appointment would be after the aforesaid exercise on account of the judgment, the petitioner shall not be eligible and entitled to count the interregnum period, as stated by the learned Single Judge also. 8. With the aforesaid observations and directions, the appeal is partly-allowed. No orders as to costs.