Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 1089 (GUJ)

MAMTA MANSUKHBHAI CHOTHANI v. STATE OF GUJARAT

2021-11-29

NIKHIL S.KARIEL

body2021
ORDER : 1. Heard learned Advocate Shri H.S. Munshaw for learned Advocate Shri R.H. Munshaw on behalf of the petitioner and learned Assistant Government Pleader Shri Utkarsh Sharma on behalf of the respondent State. 2. Issue Rule returnable forthwith. Learned AGP waives service of rule on behalf of the respondent no.1- State. With the consent of the parties, the petition is taken up for final hearing. 3. Short facts leading to filing of this Court are as under: 3.1 The petitioner who is working as an Assistant Teacher in the Upper Primary School at Shri Dhebar Kankarwaswadi Primary School, Village: Dhebar, Taluka: Bhanvad, District: Dev Bhoomi Dwarka and who possess the qualification of M.A. ( Economics) and B.Ed Degrees and had also cleared the Teachers Aptitude Test (TAT), had applied for the post of Assistant Teacher in Higher Secondary and Secondary Sections of Non- Government Granted Schools in both English and Gujarati Medium published by the respondent no.2 vide an advertisement dated 14.01.2021. The advertisement stipulated that candidates desiring to apply for the post of Assistant Teacher in Higher Secondary Section had to fill up online application which would be opened from 15.01.2021 to 24.01.2021. It would be pertinent to mention here that the instructions attached with the advertisement inter alia stipulated that if a mistake is committed in filling up the online application form then the same would not be considered. It would also pertinent to mention here that time was also given to the candidates to edit their applications till the last date of filling up the form i.e 24.01.2021. It appears that the petitioner while submitting the online form had selected the option of ‘No’ instead of option ‘Yes’ for the question as to whether the candidate is working in any teaching position in any Government School . On the other hand since the documents required to be attached for a candidate who was holding a Teaching position in a Government School included obtaining NOC ( No Objection Certificate) from the District Primary Education Officer, the petitioner had applied for the same and vide his certificate dated 22.01.2021, District Primary Education Officer (DPEO), Devbhoomi Dwarka District Panchayat inter alia certified the fact that the petitioner was in fact working in the school referred to herienabove. 3.2 Relevant here would be the fact that the petitioner had requested and had obtained the certificate prior to the date of filling up of the online application form. It appears that the candidature of the petitioner had been considered and the petitioner was placed at Sr. No. 48 and a list of document verification prepared by the respondent, the list being prepared in order of merit as could be made out in the last column of the list where the candidates have been placed in descending order as per the merit positions they had been placed. A total of 1132 candidates were called for document verification and whereas at that stage the petitioner had submitted an undertaking in form of an affidavit as required by the respondent dated 05.03.2021 where also the petitioner had mentioned that she was working in the above named school since 27.03.2017. That the petitioner had attended the documents verification process and whereas the respondent no.2 published the provisional merit list -1 on 19.03.2021 in which the name of the petitioner did not figure. As a matter of fact another list had been published by the respondent no.2 on the same day i.e. 19.03.2021 being list of disqualified candidates and whereas name of the petitioner was found at Sr. No. 5 of the list. It was mentioned in the said list that since the petitioner did not mention in her online application that she was working as a Teacher in Government School whereas the petitioner had mentioned the same in her affidavit therefore her application has been rejected and it has been recommended for taking punitive action against the petitioner. The petitioner had immediately submitted representation to the respondent no. 3 on 20.03.2021 and whereas the same had not been considered. Being aggrieved and dissatisfied by which the petitioner had preferred the present petition. 4. It appears that this Court ( Coram: Hon’ble Mr. Justice Nirzar Desai) vide order dated 06.04.2021 while issuing notice had granted interim relief in terms of directing the respondent to keep one post vacant. The respondents upon issuance of notice have appeared and filed reply wherein it was inter alia contended that since the instructions stipulated that erroneous application would not be considered, since the fact of committing an error is admitted by the petitioner, therefore the application of the petitioner was rightly rejected. The respondents upon issuance of notice have appeared and filed reply wherein it was inter alia contended that since the instructions stipulated that erroneous application would not be considered, since the fact of committing an error is admitted by the petitioner, therefore the application of the petitioner was rightly rejected. It was also sought to be contended that as per the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools ( Procedure for Selection ) Rules, 2011 ( Rules of 2011) framed by the Education Department of State of Gujarat, a candidate who has been declared by the selection committee to be guilty of making statement which are incorrect or false or suppressing material information shall be disqualified for the appointment of Teacher or Head Master as the case may be for a period which may extend to five years. It is submitted that since the petitioner had suppressed material fact that is of the petitioner already holding teaching post in Government school therefore even disciplinary proceedings was liable to be initiated against the petitioner. 5. Heard learned Advocate Shri H.S. Munshaw with learned Advocate Shri R.H. Munshaw for the petitioner who would submit that there was no intention on the part of the petitioner to have suppress any issues. It is submitted that the fact of the petitioner working with the Government School was apparent from the No Objection Certificate submitted by the petitioner as well as the undertaking in the form of an affidavit submitted by the petitioner and whereas the fact of the petitioner holding the teaching post has not come to the notice of the respondents from any other source rather it is from the documents submitted by the petitioner stating that the respondents have come to know about the same. Learned Advocate Shri Munshaw would further submit that as such there was no reason for the petitioner to have suppressed the fact of having teaching job in Government School since it was not and could not have been a disqualification. Learned Advocate would further rely upon the decision of Co-ordinate Bench ( Coram: Hon’ble Mr. Justice N.V. Anjaria) in case of Solanki Parvatikumari Rameshbhai vs. State of Gujarat in Special Civil Application No. 22981 of 2017 whereby the Co-ordinate Bench has discussed the difference between an illegality, irregularity or procedural irregularity . Learned Advocate would further rely upon the decision of Co-ordinate Bench ( Coram: Hon’ble Mr. Justice N.V. Anjaria) in case of Solanki Parvatikumari Rameshbhai vs. State of Gujarat in Special Civil Application No. 22981 of 2017 whereby the Co-ordinate Bench has discussed the difference between an illegality, irregularity or procedural irregularity . 5.1 Learned Advocate would submit that at the most the error on the part of the petitioner of not mentioning about that whether petitioner being employed as a Teacher was procedural irregularity and hence the petitioner ought not to be penalized with such harsh punishment for the same. 6. As against the same learned AGP Shri Utkarsh Sharma has vehemently contested the petition and has submitted that the fact of the petitioner having committed an error is admitted by the petitioner herself and whereas instructions as attached in the application form clearly mentioned that if there was any error in the application form then the same would not be considered. Learned AGP would further submit that since the error has been committed by the petitioner, the presumption would be that such error was deliberate, with an intent to get some undue advantage from the same. Learned AGP would submit that non mentioning of the petitioner of being already employed in a Government School, was a suppression and under such circumstances there was no illegality committed by the authorities concerned in rejecting the candidature of the petitioner and/ or contemplating other disciplinary action against the petitioner. Thus submitting learned AGP has requested this Court to reject the present petition. 7. Heard learned Advocate for the parties who have not contended anything further. 8. The short question which arises for consideration of this Court as stated hereinunder is whether non mentioning of the fact of petitioner working as Teacher in Government Primary School would disqualify the petitioner from the selection process and whereas an ancillary question would be that whether such non- mentioning could be treated to be a suppression as tried to be contended by the respondent. 9. As far as issue of suppression is concerned what would be required to be considered is the attendant circumstances i.e whether the petitioner derived any advantage by the alleged suppression. 9. As far as issue of suppression is concerned what would be required to be considered is the attendant circumstances i.e whether the petitioner derived any advantage by the alleged suppression. Furthermore, what would be required to be considered would be the nature of the material allegedly suppressed and could the petitioner be permitted to contend that the alleged suppression was bonafide error. 10. Examining the above issue, the petitioner in the online application form had clicked the option of ‘No’ for the question whether the petitioner was employed as a Teacher in a Government School whereas the answer should have been ‘Yes’. On the other hand it appears that two documents namely the No Objection Certificate from the District Primary Education Officer dated 20.02.2021 which according to the petitioner was prior to the date of the petitioner filling up of the online application form and an undertaking in the form of affidavit dated 06.03.2021, in both documents the petitioner having clearly mentioned about the petitioner working as a Teacher is borne out. It is not the case of the respondent that this fact of the petitioner already employed as a Teacher in a Government Primary School had come to the knowledge of the respondent independently. 11. Apart from the same it also appears that the application form did not disqualify a candidate who was holding a job of a Teacher in a Government Primary School or rather there was any prohibition upon persons holding a job in such category from applying. That not being the case here it becomes apparently clear that non mentioning of the petitioner having a job of Teacher in a private school did not lead to any undue advantage in favour of the petitioner. 12. As regards the effect of such non mentioning, this Court craves leave to refer to decision of Co-ordinate Bench in case of Solanki Parvatikumari Rameshbhai vs. State of Gujarat in Special Civil Application No. 22981 of 2017 more particularly paragraph no. 5.2 and 5.3 thereof which are reproduced hereibelow for better appreciation: “5.2 Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects. It is a situation contrary to the principle of law. As against this, an irregularity as defined lexicographically, is want of adherence to some prescribed rule or mode of proceedings. It consist in omitting the rule something that is necessary for due and orderly conducting of a suit or doing it in an unreasonable time or improper manner. In Law Lexicon by R. Ramanatha Aiyar, 1997 Edition, irregularity is defined as “a neglect of order or method; not according to regulations; the doing of an act at an unreasonable time, or in an improper manner; the technical term for every defect in practical proceedings or the mode of conducting an action or defence, as distinguished from defects in pleading. Irregularity is failure to observe that particular course of proceedings which, conformable with the practice of the court, ought to have been observed”. 5.3 A thing irregularly done is not regularly done. It is not in conformity of rule or principle. The concepts “illegal”, “irregular” and “procedurally irregular”, are often understood in terms of their degree which they bear to be not in conformity with rule of particular course of action. The illegality is a highest kind of breach of law which will taint and vitiate the action. One who commit “illegality” has to be denied the assertion of his right and he stands disentitled to relief in law. Irregularity, as noticed, is breach of procedure of rule or some orderly conduct but not of such nature which could be said to be in the nature of a debilitating defect. It is pardonable in law. The concept of procedural irregularity is indicative of lapse of minor nature in procedure which could not affect adversely rights of a party, nor would exceptionally reverse the obligation of the other side.” 12.1 In the above paragraph the Hon’ble Court has explained the distinction between an illegality, an irregularity and a procedural irregularity. It is pardonable in law. The concept of procedural irregularity is indicative of lapse of minor nature in procedure which could not affect adversely rights of a party, nor would exceptionally reverse the obligation of the other side.” 12.1 In the above paragraph the Hon’ble Court has explained the distinction between an illegality, an irregularity and a procedural irregularity. An illegality is a highest kind of breach of law which leads to denial of assertion of one’s right and automatically disentitles one to any relief under the law. On the other hand irregularity is breach of procedure of rule or some conduct which could have a debilitating defect. According to the Hon’ble Court a procedural irregularity would be a lapse of minor nature which could not have affected adversely the rights of a party, nor would it exceptionally reverse the obligation of the other side. 12.2 In the context of the explanation by Co-ordinate Bench as above, this Court is inclined to hold that the error committed by the petitioner in not mentioning the fact that the petitioner was employed as a Teacher in a Government Primary School at the time of online application was a procedural irregularity and whereas such procedural irregularity would not have effect of disentitling the petitioner for being considered for selection. 13. In the considered opinion of this Court, the instructions given along with advertisement is a procedure rule for the convenience of the respondent authorities and whereas while one may not find fault with the respondents in requiring the candidates to mention true and correct facts in the their application more particularly in view of the large number of applications that would be received but at the same time such clause could not be used as a shield by the respondents to reject/refuse to reconsider the case of a candidate who had made a genuine error without any intention to take undue advantage. The same finding would hold good as regards the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (Rules of 2011) more particularly, since the disqualification again is contemplating as regards a candidate who has made a statement which is incorrect or false or suppressed material information. The same finding would hold good as regards the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (Rules of 2011) more particularly, since the disqualification again is contemplating as regards a candidate who has made a statement which is incorrect or false or suppressed material information. As such this Court has also already noted that supplying of incorrect or false information by the present petition could not be categorized as a suppression, more particularly in light of the fact that mentioning of incorrect or allegedly false information by the petitioner did not entitle or would not entitle the petitioner to any undue advantage. Thus in the considered opinion of this Court when such error could be considered as a bonoafide error or the material suppression, could be inferred from the attendant circumstances or the consequence of such incorrect / false information mentioned by the candidate . If it appears that in this case that the incorrect information or the information not supplied by the petitioner, did not lead to any undue advantage conferred upon the petitioner then the error would be a bonafide error. Furthermore as in the present case, even the attendant circumstances would show that the candidate concerned did not have any intention to suppress the fact in question, the attendant circumstances in the instant case being the fact of petitioner having obtained No Objection Certificate from the DPEO on 28.02.2021 and an undertaking in form of affidavit dated 06.03.2021 where in both cases, the fact of the petitioner working as a Teacher is explicitly mentioned. Thus if the attendant circumstances do reveal the intent of the candidate to gain undue advantage then also the error committed or erroneous information supplied would lead to be categorized a bonafide error. The non supply of proper information or supply of false information acquires the tone of suppression only when it is shown that the candidate in question would acquire some undue advantage on account of the erroneous information supplied. 14. Having regard to the discussion herein above, in the considered opinion of this Court the present petition succeeds. The decision of the respondent authorities of not issuing formal appointment order is declared as illegal and bad-in-law. 14. Having regard to the discussion herein above, in the considered opinion of this Court the present petition succeeds. The decision of the respondent authorities of not issuing formal appointment order is declared as illegal and bad-in-law. In view thereof, the respondents more particularly respondent no.2 is directed to appoint the petitioner as Assistant Teacher in the subject of Economics in Gujarati medium and give appropriate posting to the petitioner after giving choice of posting to her as per her merit position if contemplated under the law. The petitioner shall also be entitled to the benefit of seniority from the date the person who would be placed below the petitioner in the select list had been given appointment. That the petitioner would not be entitled to any arrears of wages whereas for the purpose of calculating salary the contemplated date of appointment till the actual date of appointment shall be treated as ‘notional’ and after appointment the petitioner would be entitled to regular salary as if the petitioner had been appointed on contemplated date. Such exercise would be carried out by the respondents within a period of six weeks from the date of the judgement. With these observations and directions, present petition stands allowed. Rule is made absolute to the above extent.