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2020 DIGILAW 347 (GUJ)

Jani Kaushikkumar Bhaskarray v. State Of Gujarat

2020-02-25

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent has been filed by the appellants, 16 in number, who are the original petitioners, challenging the order passed by the learned Single Judge in Special Civil Application No.12236 of 2016, dated 17.10.2019. 2. The background facts giving rise to the present appeal are that appellants – original petitioners have passed B.A., B.Ed, B.Sc. Examination and also cleared the Teachers Eligibility Test-II (TET) conducted by the State Examination Board and since they are fully eligible and qualified to be appointed as teachers/Vidhya Sahayaks in Upper Primary Schools i.e. Standard VI to VIII, they applied for the post pursuant to the advertisement issued by the respondent authorities on 22.1.2017. 2.1 It is the case of the appellants that 6000 vacancies have been published for 3 subjects, namely, Maths/Science. Languages and Social Studies. The details of vacancies have been enlisted by the appellants in Para.2 of the petition compilation. As against total 6000 vacancies, the authorities had received 41,878 applications pursuant to the advertisement. Out of said 41,878 applications, more than 50% applications are submitted by the serving candidates in order to get a placement at appropriate district/place. On account of such situation, when such in house candidates got their selection and appropriate place of posting, the post on which they were working, would fall vacant till next recruitment process takes place and this situation is depriving the needy and eligible candidates, who are anxiously waiting for their employment. Hence, the appellants – petitioners made several representations to the authorities to fill up such vacancies which might have fallen vacant due to resignation of such in service candidates on account of their appointment pursuant to the recruitment process. Realizing the situation, the State Government issued a Government Resolution dated 22.3.2017 incorporating certain conditions. 2.2 According to the appellants, some social workers filed a Public Interest Litigation before this Court in the form of Writ Petition (PIL) No.61 of 2017 ventilating same grievance and prayed for certain reliefs almost similar in nature. The Hon’ble Court, on 22.3.2017 and 5.5.2017, passed some orders after giving reference to Government Resolution dated 22.3.2017 and thereby, disposed of the petition. The Hon’ble Court, on 22.3.2017 and 5.5.2017, passed some orders after giving reference to Government Resolution dated 22.3.2017 and thereby, disposed of the petition. 2.3 The grievance of the appellants is that instead of taking care of such situation, the respondent authorities have operated the wait list for filling up only those vacancies which remained unfilled due to non-joining of candidates, who are offered appointments in present recruitment process and are not filling or rather, not ready to fill up 1479 vacancies which have already occurred on account of resignation of the candidates, who were selected in the current recruitment process. Hence, the appellants approached the Court by way of writ petition under Article 226 of the Constitution of India, seeking following reliefs : “a. To issue notice for final disposal on returnable date; b. To direct the respondent to give appointment to the petitioners as Vidhya Sahayak for Std. 6 to 8 pursuant to the Advertisement dated 22.1.2017 as per Annexure-A on any of the 1479 vacancies which have fallen vacant due to resignation of in-service candidates pursuant to the present recruitment process, as revealed from the information disclosed by the Director of Primary Education in the letter dtd. 11.4.2017 as per Annexure-F. c. To hold and declare and direct that considering the letter and spirit of the G.R. Dated 22.3.2017 at Annexure-D and the order of the Hon’ble Division Bench dated 5.5.2017 passed in Writ Petition (PIL) No.61/2017 as per Annexure-E, the respondent authorities are required to give appointment to the petitioners who have applied in response to the present Advertisement dated 22.1.2017 on any of the 1479 vacancies which have fallen vacant due to the resignation of the in service candidates pursuant to the present recruitment process, as revealed from the information disclosed by the Director of Primary Education in the letter dated 11.4.2017 at per Annexure-F. d. Pending the hearing and final disposal of this petition, be pleased to direct the respondents to give appointments to the petitioners as Vidhya Sahayak for Std.6 to 8 pursuant to the Advertisement dated 22.1.2017 as per Annexure-A on any of the 1479 vacancies in any District which have fallen vacant due to resignations of in service candidates pursuant to the present recruitment process, subject to further orders that may be passed by this Hon’ble Court. e. to grant any other appropriate and just relief’s. f. to quash and set aside the impugned decision of the respondents being office order of the Director of Primary Education dated 5.7.2017 read with G.R. Dated 21.12.2015 for appointment of 1495 and 1725 (total 3320) unqualified Pravasi Teachers (Visiting Teacher) possessing only a Bachelor’s Degree as against the statutory requirement of the Minimum Qualification for appointment as teacher in Std.1 to 5 being HSC plus PTC plus TET (Teachers Eligibility Test) and the minimum qualification for appointment as teacher in Std.6 to 8 being B.A. B.Sc. Plus B.Ed plus TET (Teachers Eligibility Test). g. Pending the hearing and final disposal of this petition, be pleased to stay the operation of the impugned decision of the respondents being office order of the Director of Primary Education dated 5.7.2017 read with G.R. Dated 21.12.2015 for appointment of 1495 and 1725 (total 3320) unqualified Pravasi Teachers (Visiting Teacher) possessing only a Bachelor’s Degree. h. to direct the respondents to forthwith give appointments to the petitioners on any of the 1725 vacancies of primary teachers of Std.6 to 8 referred to in the office order of the Director of Primary Education dated 5.7.2017 at Annexure-K. i. Pending the hearing and final disposal of this petition, be pleased to direct the respondents to forthwith give appointments to the petitioners on any of the 1725 admittedly available vacancies of primary teachers of Std.6 to 8 referred to in the office order of the Director of Primary Education dated 5.7.2017 at Annexure-K, subject to further orders that may be passed in the present petition.” 2.4 In the meantime, an application was also submitted for seeking interim relief being Civil Application No.1 of 2017 and another application was also filed for seeking direction bearing Civil Application No.1 of 2018. A combined hearing had taken place before the learned Single Judge, who ultimately passed a common CAV judgment on 17.10.2019 dismissing the petition. It is this order of dismissal of writ petition, which is made the subject matter of appeal before us. 3. We have heard Ms.Harshal Pandya, learned counsel for the appellants and Shri J.K. Shah, learned Assistant Government Pleader for the State respondents. 4. It is this order of dismissal of writ petition, which is made the subject matter of appeal before us. 3. We have heard Ms.Harshal Pandya, learned counsel for the appellants and Shri J.K. Shah, learned Assistant Government Pleader for the State respondents. 4. Ms.Harshal Pandya, learned counsel, has vehemently contended that all these appellants are fully eligible to be appointed as Primary Teachers/Vidhya Sahayaks and anxiously waiting for their employment, but on account of misinterpretation of the G.R., the authorities have not operated the wait list for filling up the posts as of 1479 vacancies have fallen vacant due to the resignation of selected candidates, who are already serving prior to the advertisement in question and, therefore, this act on the part of authority is nothing but a clear example of non-application of mind, arbitrary, unreasonable, discriminatory and violative of Article 14 of the Constitution of India. It has further been contended that non-filling of vacancy is not only unjust and arbitrary but not even in consonance with the object of recruitment process. By citing some GRs, a contention is raised that the action on the part of respondent authorities is not only in complete contrast to the policy of the Government but, is also contrary to the public interest, since unqualified candidates would be imparting education to the students of primary schools. It has been submitted that large number of vacancies of primary teachers remained unfilled which ultimately led the authority to make an appointment of 1495 and 1725 unqualified Pravasi Teachers (Visiting Teachers), who only possessed a qualification of bachelor degree. Some office orders and various GRs have been brought to the notice of the learned Single Judge and thereby, contended that this material has not been properly appreciated by the learned Single Judge and as such, the impugned order deserves to be corrected. It has further been submitted that on account of vigorous persuasion, an attempt is made by the authority to redress the grievance of the appellants and the like candidates and keeping in view the High Court’s orders as well as GR dated 22.3.2017, the learned Single Judge ought to have considered that authorities are not implementing the GR in its proper perspective. Since this material aspect has not been considered and appreciated in the right spirit by the learned Single Judge, the order in question deserves to be corrected. Since this material aspect has not been considered and appreciated in the right spirit by the learned Single Judge, the order in question deserves to be corrected. Learned counsel has submitted that as unemployment problem is a great concern, the learned Single Judge ought to have checked the authorities’ action minutely and having not done so, the order in question deserves to be corrected. 4.1 Ms.Harshal Pandya has further submitted that the details have been submitted as to how many seats/vacancies are falling vacant on account of resignation of already in-service candidates for each of the 3 subjects in the Districts of the State. A list is also incorporated in the body of the petition to indicate such a situation and after referring to this, it has been contended that the order deserves to be corrected. It has been specifically contended that there are as many as 1479 vacancies fallen vacant and even after the present recruitment process, large number of vacancies and shortfall apparently has been visible and by giving reference to Kutch District, it has been pointed out that there is a shortfall of teachers to the extent of 2932 in number and hence, humanitarian approach ought to have been adopted. With these submissions, an attempt is made to persuade us to set aside the impugned order. No other submissions have been made. 5. Shri J.K. Shah, learned Assistant Government Pleader appearing on behalf of the State – respondents, has vehemently opposed the appeal, by submitting that the learned Single Judge has not committed any error. On the contrary, the learned Single Judge has taken pain to analyze and examine the issue and efforts have been taken to salvage the situation and to erase the acute shortfall of teachers. Even the GR was also passed on 23.3.2017 by the Education Department and this having been considered, it cannot be said that the learned Single Judge has not applied the mind. According to Shri Shah, on the contrary, the petition itself was not entertainable in view of the fact that these appellants have participated in the recruitment process and such mere clearance of examination would not confer any fundamental right or vested right in favour of the selected candidates and, therefore, insistence of the appellants is thoroughly uncalled for. According to Shri Shah, on the contrary, the petition itself was not entertainable in view of the fact that these appellants have participated in the recruitment process and such mere clearance of examination would not confer any fundamental right or vested right in favour of the selected candidates and, therefore, insistence of the appellants is thoroughly uncalled for. It has been contended by Shri Shah that there is no enforceable right in favour of the appellants to raise the grievance. Resultantly, the order in question does not call for any interference. It has been submitted that in exercise of discretion vested, the learned Single Judge has applied its mind, passed a detailed order after considering the submissions and as such, in the absence of any distinguishable material or better submission, the possible view adopted by the learned Single Judge does not require any interference or substitution. Hence, a request is made to dismiss the appeal. 6. Having heard the learned counsels appearing for the respective parties and having gone through the contents of the material placed before us, following circumstances are not possible to be unnoticed by us : (1) First of all, a bare look at the judgment impugned would clearly indicate that the learned Single Judge has assigned cogent reasons and also analyzed the decision of the Apex Court and dealt with the contentions at length. As such, it is not possible for us to construe the said judgment as perverse in any form. Apart from that, it has remained consistent proposition that the mere selection does not confer any vested right to be appointed and as such, the learned Single Judge has, in our considered opinion, rightly observed that the petitioners do not have any enforceable right to be appointed. The factual foundation which has been analyzed by the learned Single Judge seems to be properly dealt with and we see no reason to interfere with such conclusion. (2) The grievance raised in the petition is centering around the Government Resolution dated 22.3.2017. But then, having participated in the recruitment process throughout, now realizing their status, trying to raise such grievance is impermissible and as such, the learned Single Judge has, in our view, not committed any error. It is the exclusive domain of the Government how to recruit and in the absence of any malafides, the Court cannot assume that action as impermissible. It is the exclusive domain of the Government how to recruit and in the absence of any malafides, the Court cannot assume that action as impermissible. (3) So far as the contention with regard to operation of wait list is concerned, the judgment which has been tried to be relied upon is appearing to be misplaced in view of present peculiar set of circumstance. On the contrary, after exhausting the list by appointing candidates, list ceased to exist and has outlived its utility. An occasion would arise to operate the wait list only in case where the selected candidates do not accept the appointment and the wait list cannot be operated to fill in the vacancies arising on account of resignation of newly recruited personnel. The posts falling vacant on account of resignation are required to be filled in by appropriate recruitment process and not by operating the wait list. One of such contingencies arose before the Division Bench of this Court in Letters Patent Appeal No.302 of 2010 decided on 15.3.2010, in which also similar such situation is dealt with and as such, the view taken by the learned Single Judge is a possible view. The vacancies have rightly not been considered to be filled in by operating wait list for those posts which fell vacant on account newly selected candidates. Simply because number of vacancies have arisen on account of such situation, the appellants – petitioners cannot insist for operating the wait list. The learned Single Judge has, as such, on analysis of basic contentions of appellants – petitioners, rightly observed that there is no indefeasible right in favour of the appellants – petitioners. Accordingly, the decision taken appears to be just and proper. 7. Since no other new contention being raised before us nor any better material is produced, on the basis of similar situation the possible view which has been taken by the learned Single Judge cannot be disturbed to substitute the said view sitting in an appeal. The detailed observations made in Para.5.1 to 6 are reproduced hereunder: “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. 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 online 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. 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 v. 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 v 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 v 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 Versus 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.” 8. In the aforesaid situation, keeping in view the peripheral scope of appellate jurisdiction, we are of the view that the judgment impugned in the absence of illegality or material irregularity, does not deserve to be disturbed. Hence, the appeal found to be meritless, is accordingly dismissed, with no order as to costs. 9. Consequently, connected civil application also stands dismissed.