Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 297 (GUJ)

Sandip Rudabhai Chavda v. State of Gujarat

2020-02-17

BIREN VAISHNAV

body2020
ORDER : 1. In both these petitions, the prayers of the petitioners are as under: Prayers in Special Civil Application No.2329/2017: “(A) A writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction be issued (i) to direct and hold that action on part of the respondents in not appointing petitioners on the post of Teacher in Grant in Aid Higher Secondary School as illegal, unjustified, arbitrary and further be pleased to direct the respondents to immediately appoint the petitioners as teacher in Statistics subject in grant in aid Higher Secondary School; (ii) to direct the respondents to offer appointment to the petitioners in their concerned allotted district in grant in aid Higher Secondary School in Statistics subject with effect from December, 2016 and further be pleased to direct the respondents to pay all consequential benefits including salary to the petitioners with effect from December, 2016;” Prayer in Special Civil Application No.2559/2017: “(A) Your Lordships may be pleased to issue a writ of mandamus, certiorari or any other writ, order and/or direction and declare that in the facts and circumstances of the case, the action of District Education Officer, Devbhumi Dwarka in not issuing letters of recommendations to the petitioners for appointment as Shikshan Sahayak (Assistant Teacher) is arbitrary and illegal and issue directions to them to issue the letters of recommendations to the petitioners, forthwith by declaring the petitioners as eligible for appointment to the post of Shikshan Sahayak (Assistant Teacher), in the interest of justice;” 2. The short case of the petitioners is that the petitioners had applied for the posts of Shikshan Sahayak in the subject of Statistics. It was their case that candidates who were having similar qualification i.e. in the subject of accountancy were appointed as Shikshan Sahayak in the branch of Statistics. 3. Mr.D.R. Dave and Mr.R.V. Deshmukh, learned counsels for the petitioners have drawn my attention to the decision dated 26.12.2018 by the coordinate bench of this Court rendered in Special Civil Application No.21005 of 2016 in the case of Prakashkumar Jeshingbhai Patel v. State of Gujarat, wherein, this Court had considered the identical issue in the case of Shikshan Sahayak. 3. Mr.D.R. Dave and Mr.R.V. Deshmukh, learned counsels for the petitioners have drawn my attention to the decision dated 26.12.2018 by the coordinate bench of this Court rendered in Special Civil Application No.21005 of 2016 in the case of Prakashkumar Jeshingbhai Patel v. State of Gujarat, wherein, this Court had considered the identical issue in the case of Shikshan Sahayak. This Court, by its oral order dated 26.12.2018 after considering the decision dated 15.10.2018 in the case of Manish Mansukhbhai Raghadal v. State of Gujarat in Special Civil Application Nos.9331 of 2017 and 11276 of 2017 considered the rules and held as under: 5. The court noticed the rival contentions in Manish Mansukhbhai Raghadal (supra) by elaborating thus, “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). 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 petitions, 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”. 5.1 In Manish Mansukhbhai Raghadal (supra) the court considered the relevant rules and its purport and the effect. Extracting the relevant portion to be as under, adopted as part of reasoning in the present case also, “5.1 The Rules called Teachers and Headmasters of 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 Headmaster, Rule 10 provides for scrutiny of applications, whereas Rule 11 deals with the preparation of the selection list. Rules 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 atleast 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. (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 vacandies reserved for such categories. (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 vacandies reserved for such categories. Provided that where the requisite number of candidates, belonging to Scheduled Casts, 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, which ever is earlier.” (9) The waiting list may be operative in the following circumstances :- (i) If the post of Headmaster 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. 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. 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:- No. Qualification Maximum Marks For Example Percentage secured by the candidate Marks eligible on the basis of percent age secured by the candidate (col.3xc ol.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 Postgraduat e degree in professional subject i.e. M.Ed/M.P.Ed. Etc. 50 60 3 30 20 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.” 5.2. The court thereafter observed, “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 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. 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. 5.3 This court stated that the provisions for giving weightage was not to be confused with the concept of criteria provided for eligibility. “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 eligible 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.” (para-7) 5.4 The further factual position was noticed as under, “9. Furthermore, it is undisputed that when the advertisement in question was issued on 15th April, 2016 and the selection of Teaches thereunder took place, aforementioned Rules dated 11th February, 2011 read with the Resolutions dated 28th October, 1975 and 08th 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. 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 08th 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 Regulation 20(3) to 20(8) as per the recommendations in the expert committee meeting dated 07th March, 2018, pursuant to which the aforesaid Resolution was issued. Respondent No.2 has produced the said Resolution dated 08th 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 08th 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.” 5.5 The court concluded to sum up, “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. 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 Articles 14 and 16 of the Constitution.” 5.6 Since the facts of the present case are similar to one in Manish Mansukhbhai Raghadal (supra), in view of the above position of law laid down, the prayers made in present petition deserves to be granted. 6. The impugned action on part of the respondents in not issuing the appointment letter to the petitioner for the post of Sikshan Sahayak in the subject of Statistics (Gujarati Medium) in the non-government grant-in-aid school in Ahmedabad City, is hereby set aside. The consequences shall follow. 7. The petition stands allowed as above. Rule is made absolute accordingly.” 4. Both the learned counsels for the petitioners have brought to the Court’s notice that the decision rendered by this Court has been complied with and the petitioners therein have been appointed. 5. Ms.Aishwarya Gupta, learned Assistant Government Pleader for the respondent – State places on record a communication of the Gujarat Secondary & Higher Secondary Education Board, Gandhinagar. She relies on condition No.8 of the Board's resolution dated 3.2.2006 and submits that a candidate should have the same subject both at graduate and the postgraduate level. 6. Considering the prayers made in the petitions and considering the facts of the cases on hand, it was pointed out by the petitioners herein that while doing their graduation and post-graduation, they were in-fact having a subject of Statistics and their case is squarely covered by the decision dated 26.12.2018 rendered in Special Civil Application No.21005 of 2016 by the coordinate Bench of this Court in the case of Prakashkumar Jeshingbhai Patel v. State of Gujarat (Supra). 7. Accordingly, both these petitions are allowed. Thereby, the respondents are directed to appoint the petitioners to the posts of Shikshan Sahayak in the subject of Statistics (Gujarati Medium) in the schools to which they have been allotted by the DEO. The consequences shall follow. 8. Rule is made absolute accordingly. Direct Service is permitted.