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2019 DIGILAW 963 (GUJ)

Mewada Neelam Puranmal v. State of Gujarat

2019-10-17

N.V.ANJARIA

body2019
JUDGMENT : N.V. Anjaria, J. 1. Heard learned advocate Mr. K.B. Pujara for the petitioners and learned Assistant Government Pleader Mr. Manan Mehta for the respondent-State and its authorities. 2. By filing the present petition under Article 226 of the Constitution, the petitioners have prayed to give appointments to them as Vidya Sahayaks for standards 6 to 8 pursuant to advertisement dated 22nd January, 2017 on the vacancies which, according to the petitioners, have fallen vacant due to resignation of in-service candidates. 2.1. It is further prayed that considering the Government Resolution dated 22nd March, 2017 and further in light of order dated 05th May, 2017 passed by the Division Bench of this Court in Writ Petition (PIL) No. 61 of 2017, the authorities are required to be directed to give appointments to the petitioners on the vacant posts, which have fallen vacant as above. 3. It is the case of the petitioners that they have been possessing educational qualification of B.A., B.Ed. or B.Sc., B.Ed. and have also passed Teachers' Eligibility Test-II which make them qualified and eligible to be appointed as Teachers or Vidya Sahayaks in the Upper Primary Schools in standards 6 to 8 under the respondent authorities. An advertisement came to be issued on 22nd January, 2017 for filling up total 6000 vacancies comprising of 2943 vacancies in the subjects of Maths and Science, 1488 in the subjects of languages and 1569 in the Social Science subject. It is stated that the respondents received more than 41000 applications. The petitioners have also given subject-wise details of the total applications to state that in the aforesaid three subjects in the similar order, 8799, 17198 and 18831 applications were respectively received. 3.1. The case of the petitioners is that out of the total applications, more than 50% of the applicants are those persons who are already employed as Vidya Sahayaks. They however applied pursuant to the advertisement in question in order to get the appointments at the district or at the place of their choice. The petitioners are worried stating that if those candidates get selected and get posting at the place of their choice, then the place at which they are serving would fall vacant and that such post vacated by the in-service candidates would remain vacant till the next recruitment process takes place. The petitioners are worried stating that if those candidates get selected and get posting at the place of their choice, then the place at which they are serving would fall vacant and that such post vacated by the in-service candidates would remain vacant till the next recruitment process takes place. It was stated by the petitioners that several representations were made to the respondents for filling up such vacancies but there was no response from the authorities. 3.2. According to the petitioners, Government has issued Resolution dated 22nd March, 2017 in order to deal with the situation where in-service candidates in large number apply to the post. The said Resolution prescribed certain conditions if the Vidya Sahayaks or Shikshan Sahayaks already in service want to apply again in any recruitment instance and the conditions include requirement of no-objection from the District Primary Education Officer concerned etc. 3.3. The petitioners have stated that upon their application under the Right to Information Act, 2005, a letter dated 11th April, 2017 was received by the Director of Primary Education in which the information was disclosed that in the instant recruitment process, as many as 1479 total vacancies in the three subjects must have fallen vacant. It was stated that in the subjects of Maths and Science, such vacant posts were 312, in the subject of languages they were 3756 and in the Social Science, vacancies were 111. The petitioners have further stated that they are ready and willing to be appointed in any districts including the district of Kutch where, according to the petitioners, there has been a perennial shortage of Teachers to the extent of 2932 Teachers in the primary schools. The petitioners have also given information in respect of the district of Patan, Mehsana, Gandhinagar, Gir-Somnath, Ahmedabad etc. seeking to demonstrate that in those districts also the subject-wise vacancies have fallen vacant and several vacancies total in number are available as the in-service candidates having participated in the instant recruitment process, came to be appointed elsewhere. 4. Learned advocate for the petitioner in addition to highlighting and elaborating the above facts, further submitted that on one hand the aspirants like petitioners are deprived of the appointment to the post, on the other hand, the respondents decided to make appointment of total 3220 unqualified Teachers who are known as Pravasi Teachers or Visiting Teachers. 4. Learned advocate for the petitioner in addition to highlighting and elaborating the above facts, further submitted that on one hand the aspirants like petitioners are deprived of the appointment to the post, on the other hand, the respondents decided to make appointment of total 3220 unqualified Teachers who are known as Pravasi Teachers or Visiting Teachers. It was submitted that such policy is against the statutory provisions of the Right to Children to Free and Compulsory Act, 2009 when unqualified Teachers are posted. Learned advocate for the petitioners termed the entire approach and the policy on part of the respondents as arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution. 4.1. The petition was contested by filing affidavit-in-reply by the respondents. For opposing prayers in the petition, learned Assistant Government Pleader pressed into service the contents and contentions raised in the affidavit-in-reply. As regards the reference to the Writ Petition No. 61 of 2017 in the nature of Public Interest Litigation was concerned, it was submitted that the same had a different context and even otherwise, the court observed that the grievance was taken care considering the Government Resolution dated 22nd March, 2017. As regards the Pravasi Teachers Scheme, it was submitted that it was altogether a different policy. It was contended that the recruitment instance was over and no right could survive for the petitioners to be appointed thereafter. It was submitted that petitioners were those whose did not even named in the waiting list. 5. Having considered the facts and the rival contentions, the contention based on the Pravasi Teachers policy has to be brushed aside readily inasmuch as it was an entirely independent policy unconnected with the present subject matter and the controversy. 5.1. Now, the basic contention of the petitioners that the in-service candidates apply in the recruitment process and thereby eat up the chances of the fresh candidates to be appointed, is taken care of by the Resolution dated 23rd March, 2017 of the Education Department which came to be relied on by the petitioners themselves. The Government has taken note of the aspect in the said Resolution that in-service candidates chose to appear in the recruitment again and again to get selected and to serve at the place of choice, which defeats the purpose of filling up of vacant posts of Vidya Sahayaks. The Government has taken note of the aspect in the said Resolution that in-service candidates chose to appear in the recruitment again and again to get selected and to serve at the place of choice, which defeats the purpose of filling up of vacant posts of Vidya Sahayaks. In this policy Resolution therefore, curbs are imposed by the Government on such in-service candidates to restrict and limit their repeat participation. It is provided firstly that before in-service candidates could apply, such candidate has to obtain no-objection certificate from the District Education Officer concerned. The details of such candidates shall have to be kept in mind by the Selection Committee in the on-line programme, it is provided. The in-service candidates applying again has to furnish bond of Rs. 03.00 lakhs within 30 days of the date of joining and if resigns from the post before three years, the amount is liable to be forfeited. In the fourth place, it is provided that within three years if the candidate in service seeks fresh candidature, he will have to resign. Fifthly, if the application is made by concealing the fact that the candidate is already in service, such candidate will be liable to be subjected to action including cancellation of the appointment. 5.2. The proposition has to be countenanced that once the recruitment process is concluded, nobody has right to seek appointment. In the present case, the recruitment instance is over, all appointments have been made. The present petitioners are not even in the wait list. In other words, they do not come up on merits to figure in the wait list. Therefore, their merit is far below than those selected and those wait listed. It is difficult to conceive any enforceable right in law for them to seek appointment. 5.3. It is well settled proposition of law that mere participation in the recruitment process does not confer any right to be appointed. Even the candidates who come up in the wait list have no vested right to be appointed. Even if selected candidates in the process of recruitment does not acquire right to be appointed to a post. Nor the employer could be compelled to fill up the posts. 5.4. Even the candidates who come up in the wait list have no vested right to be appointed. Even if selected candidates in the process of recruitment does not acquire right to be appointed to a post. Nor the employer could be compelled to fill up the posts. 5.4. In S.S. Balu vs. State of Kerala, (2009) 2 SCC 479 , it was held that the State as an employer has a right to fill up all the posts or not to fill up them. A candidate will have no legal right for claiming a writ in the nature of writ of mandamus. In Pitta Navinkumar vs. Raja Narsaiah Zangiti, (2006) 10 SCC 261 , the Supreme Court reiterated that candidate does not have any legal right to be appointed and has right only to be considered in terms of Article 16. It was held in Kulvinder Pal Singh vs. State of Punjab, (2016) 6 SCC 532 , that name of candidate may appear in the merit list but he has no indefeasible right to seek an appointment. Similar principles was reiterated by the Supreme Court in State of Haryana vs. Subash Chander Marwaha, (1974) 3 SCC 220 . 6. Considered in the context of conspectus of facts emerging in the controversy, and keeping in view the legal propositions in the subject matter realm as highlighted above, the petitioners do not have any vested much less enforceable right to be appointed on the basis of the any of the contentions they have raised, or on the footing of the submissions they have advanced. The whole case of the petitioners could not be accepted either on factual proposition or on legal principles. No relief could be booked for the petitioners. 7. In light of the foregoing discussion and reasons, the petition stands merit-less and the same is hereby dismissed. Notice is discharged. ORDER IN CIVIL APPLICATIONS In view of dismissal of main Special Civil Application, no orders are required to be passed in the present Civil Applications and are disposed of accordingly.