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2021 DIGILAW 306 (GUJ)

ZALA DHAVALSINH DUSHYANTKUMAR v. STATE OF GUJARAT

2021-04-01

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. This petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs:“ 14(A) This petition be admitted and allowed. (B) Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ and or direction, directing the respondent authorities to give the marksheets and certificates lying with the respondent no. 4 and 5 authorities and allow the present petitioners to complete document verification to the recruitment for the post of Shikshan Sahayak in non-government grantinaid schools. (C) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, or direction, directing the respondent authorities to include the names of the present petitioners in the provisional merit lists to after allowing the documents verification for the post of Shikshan Sahayak in non-government grantinaid schools. (D) Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ or direction and order to respondents to quash and set aside the recruitment process of Advertisement Dt. 11.01.2021 for the recruitment of Shikshan Sahayak in non-government grantinaid Secondary and Higher Secondary Schools. (E) During the pendency and final disposal of this petition, the respondent authorities may be directed to allow the present petitioners to complete the document verification on the basis of self attested or certified copies. (F) During the pendency and final disposal of this petition, the respondent authorities may be directed not to publish provisional merit list to for the recruitment for the post of Shikshan Sahayak in non-government grantinaid schools for the English and Physics subjects in the Gujarati Medium . (G) Any other relief that may be deemed just, proper and necessary may also be kindly granted.” 2. The case of the petitioners is that respondent nos. 2 and 3 have issued one advertisement on 19.11.2019 for recruitment of Shikshan Sahayak in the Secondary and Higher Secondary Government School and the petitioners being eligible have applied for the same. Considering the eligibility, according to the petitioners, they have been called for allotment of schools by issuing call letters and directed to remain present on 07.01.2021 in the respective schools, so that the appointment letters can be issued. 2.1. Considering the eligibility, according to the petitioners, they have been called for allotment of schools by issuing call letters and directed to remain present on 07.01.2021 in the respective schools, so that the appointment letters can be issued. 2.1. It is the case of the petitioners that one of the condition was that the candidates have to keep their original mark sheets/certificates for the purpose of verification with the office for a period of six months for securing the appointments. Petitioner nos. 1 and 2 have applied in Secondary Shayak for English subject in Gujarati Medium School, whereas, petitioner no. 3 has applied for Secondary Sahayak for the subjects of Science and Technology/Mathematics. It is further the case of the petitioners that petitioner no. 1 has been given appointment letter by respondent no. 4 for the post of Secondary Shikshan Sahayak (Government) for the English subject in Gujarati medium in Government Secondary School at Jiva, Taluka : Dhangadhra, District: Surendranagar, whereas petitioner no. 2 has been given appointment letter by respondent no. 5 for the post of Secondary Shikshan Sahayak (Government) for the English subject in Gujarati Medium in Government Secondary School (RMSA) at Village: Bhadravadi, Taluka: Botad, District : Botad and petitioner no. 3 has been given appointment letter by respondent no. 5 for the post of Shikshan Sahayak (Government) for the subjects of Science and Technology/Mathematics in Gujarati medium in Government Secondary School, Mota Sakhpar, Taluka: Botad, District: Botad. The petitioners, pursuant to these letters, have deposited all their original testimonials including the mark sheets and certificates before respondent nos. 4 and 5 on the date of the appointment. It is further the case of the petitioners that after the petitioners having being appointed as Secondary Shikshan Sahayak as per the Resolution dated 22.03.2017, the petitioners have to give an undertaking before the respondent authority within a period of 30 days for an amount of Rs.3 lakhs on a stamp paper, that if the candidate will give resignation before three years service, then the candidate has to deposit Rs.3 lac before the State authorities and such bond will have to be executed by the petitioners. This undertaking has also been given on a stamp paper, but thereafter, respondent nos. This undertaking has also been given on a stamp paper, but thereafter, respondent nos. 2 and 3 have issued another advertisement for the recruitment of Shikshan Sahayak for Higher Secondary Grantinaid Non-Government school on 11.01.2021 and since the petitioners are eligible for the said post, have applied by way of a specific application from 15.01.2021 to 24.01.2021. It is submitted by the petitioners that thereafter respondent no. 2 had issued one communication dated 12.01.2021 and gave instructions about granting NOC to the Vidhya Sahayak/Shikshan Sahayak/Teachers working and with respect to the recruitment process of Non-Government Grantinaid Secondary and Higher Secondary Schools of the State. The petitioners applied for getting NOC from respondent nos. 4 and 5 and the same has been issued in favour of the petitioners by respondent nos. 4 and 5 and if the petitioners will be appointed a Shikshan Sahayak in Non-Government Grantinaid Higher Secondary School, then there will be no objection from the office. Pursuant to the NOC having been issued, the petitioners applied for the relevant subjects as mentioned in the petition and subsequently, the authorities have issued merit list for the candidate for documents verification which is the procedure to be adopted by the respondents. In response to this merit list having been prepared, the petitioners were called for documents verification on 08.03.2021, wherein, one of the condition was mentioned is that at the time of verification the candidates who are working in the Government granted Primary Secondary and Higher Secondary Schools respectively, merit number will be allotted and the schools will be allotted and if they will not remain present on the said place, the said teachers have to give an amount of Rs.2 lac to the government and the same shall be deducted from their monthly salary for a period of 40 years by making deduction of Rs.5,000/per month. The petitioners have shown readiness and willingness, but when this stage of document verification came, the respondent authorities have chosen not to give documents even though No Objection Certificate was issued by respondent nos.4 and 5. An application was also given to that effect before respondent nos. 4 and 5 for seeking their mark-sheets and certificates which have been deposited by the present petitioners at the time of appointment as the original mark-sheets and documents were required to be produced for documents verification, but the authorities are not giving the said documents back. An application was also given to that effect before respondent nos. 4 and 5 for seeking their mark-sheets and certificates which have been deposited by the present petitioners at the time of appointment as the original mark-sheets and documents were required to be produced for documents verification, but the authorities are not giving the said documents back. Time and again, for the purpose of such request, the petitioners have approached the authority, but of no avail and when documents verification took place on 08.03.2021, petitioner no. 1 has completed necessary formalities whereas, petitioner nos. 2 and 3 have not been allowed to undertake any procedure with respect to the documents verification since original documents were not available with the petitioners and according to the petitioners they have not been given by the respondents. To that effect, immediately on 09.03.2021, a representation was made through R.P.A.D., but respondent no. 4 has refused to accept such representation. As a result of this, the documents could not be verified. According to the petitioners they were unaware about the fact of filing of any undertaking in response to the Resolution dated 27.03.2021 and were also not aware about the fact that if they seek resignation before completion of three years then they will have to deposit Rs. 3 lac before the authorities. Right now, the petitioners are working as Shikshan Sahayaks in the Government Secondary School and have applied for the posts of Shikshan Sahayak in Non-Government Grantinaid Schools and as such, the petitioners are going in the higher cadre then also, the condition to pay Rs. 3 lacs is maintained by the authorities and as such, this being arbitrary exercise of discretion by the authorities, the petitioners have approached this Court for seeking the aforesaid reliefs. 3. Mr. Gaurav Chudasama, learned advocate for the petitioners has submitted that though there was no objection of the respondents to allow the petitioners to make an application in Non-Government private school, still for want of documents, the petitioners could not avail such benefit. 3. Mr. Gaurav Chudasama, learned advocate for the petitioners has submitted that though there was no objection of the respondents to allow the petitioners to make an application in Non-Government private school, still for want of documents, the petitioners could not avail such benefit. It has been contended that the petitioners were not aware about the intricacies for procedure for which they are required to file appropriate undertaking and to comply with the same and, therefore, arbitrarily on one hand they have not parted with the original documents, whereas, on the other hand, for want of documents, they are deprived of seeking appropriate employment in the Non-Government private school. Learned advocate Mr. Chudsama, has further contended that a specific representation was made before the authority immediately on the next, so that before the preparation of the final merit list, the petitioners name can be inserted, but arbitrarily, the petitioners have not been provided with the documents by the authorities. It has been canvassed before the Court that on 19.03.2021, provisional merit list came to be prepared and which they are planning to publish a final merit list on 04.04.2021 and, therefore, urgent orders are required to be issued in favour of petitioners. 3.1. Learned advocate Mr. Chudasama, has further contended that simply because an undertaking has been given, the same cannot be arbitrarily thrust upon the petitioners, especially when NOC has been given and apart from that all the petitioners were ready and willing to allow the deduction of Rs. 2 lac for separate EMI of Rs.5,000/per month. When that be so, the case of the petitioners ought to have been considered by the authority. Learned advocate Mr. Chudasama has further submitted and raised a serious objection about the stand taken by the authority in a communication dated 22.03.2021 produced by the learned Assistant Government Pleader indicating that none of the candidates have come forward or approached the authority for the purpose of taking back the original documents and as such when that be so, in such disputed version, the petitioners have made an assertion on oath deserves to be considered. Learned advocate Mr. Chudasama has submitted that if the final merit list is prepared, the petition will become infructuous and, therefore, some interim order be passed and, therefore, the case of the petitioners be considered at the earliest. No other submissions have been made. 4. As against this, Mr. Learned advocate Mr. Chudasama has submitted that if the final merit list is prepared, the petition will become infructuous and, therefore, some interim order be passed and, therefore, the case of the petitioners be considered at the earliest. No other submissions have been made. 4. As against this, Mr. Krutik Parikh, learned Assistant Government Pleader appearing on behalf of the respondent – State has vehemently opposed the petition mainly on the premise that once an undertaking has been given in respect of earlier employment in government school, the petitioners cannot commit breach of such undertaking solemnly given. It has been contended that the petition contains serious disputed questions of fact. On one hand the entire main grievance is raised upon the authority that respondent authorities have chosen not to part with the original documents of the petitioners and on the other hand they are deprived of their stage of documents verification. According to the learned Assistant Government Pleader, this communication dated 22.03.2021 signed by the Incharge District Education Officer, Botad is self explanatory and indicates that none of the candidates have come forward to get back the documents said to have been submitted. The learned Assistant Government Pleader has submitted that on first hearing itself, it was suggested that if the petitioners will approach the authority and if the documents are with the authority, the same shall be parted with forthwith, but it is the petitioners who have chosen not to approach the office of the respondent authority and tried to get the writ from this Court and with such disputed version the aim of the petitioners is recognized and such kind of conduct will disentitle the petitioners from equitable jurisdiction of this Court. The learned Assistant Government Pleader has further contended that the situation is self invited by the petitioners themselves. Had the petitioners been approached the authority, the authorities must have parted and the petitioners cannot expect the authority to approach the residence of the petitioners and hand over back the documents. It is for the petitioners to take appropriate steps in getting back the original documents. Had the petitioners been approached the authority, the authorities must have parted and the petitioners cannot expect the authority to approach the residence of the petitioners and hand over back the documents. It is for the petitioners to take appropriate steps in getting back the original documents. The learned Assistant Government Pleader has submitted that the contentions which are engrafted in letter are issued by the Commissioner of Higher Education, State of Gujarat, reflecting on page 239 is abundantly clear that in such a situation, the petitioners can avail the remedy as provided under Clause 8 of the said conditions, but here, the petitioners have chosen to agitate before this Court against the authority and has tried to make out a case on the basis of such disputed version and, therefore, this is not a fit case in which any extra ordinary jurisdiction deserves to be exercised. According to the learned Assistant Government Pleader, it is settled position of law that the petition contains disputed questions of fact, the petitioners may not be given any equitable relief in extra ordinary jurisdiction. It is further contended that the documents verification is to be undertaken by the authority on the basis of the original documents and the petitioners were well aware about the said conditions which are contained in the relevant documents attached to the petition compilation, so much so, that an affidavit has also been filed by the petitioners and undertaking is also filed on earlier occasion and as such, the plea that the petitioners were not aware about such procedure is not possible to be accepted. Hence, no equitable jurisdiction be exercised in favour of the petitioners. Hence a request is made to dismiss the petition. It has been submitted that by now the documents verification stage will be over and as such, it is the petitioners who are responsible for such kind of situation and not the respondent authorities. 5. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed. 5.1. First of all the record indicates that there is a specific averment made by the petitioners on oath raising grievance against the authority not to part with the original documents. 5. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed. 5.1. First of all the record indicates that there is a specific averment made by the petitioners on oath raising grievance against the authority not to part with the original documents. The said averment is contained in paragraph 6 and further it has been asserted that the petitioners were not aware about the fact of filing any undertaking for getting the appointment. The said observation made on oath reads as under : “6. The petitioners state that when the present petitioners have applied for the post of Shikshan Sahayak in non-government grantinaid schools they were not aware that they have to file any undertaking for getting an appointment but as the respondent no. 2 has put up a stringent condition that if the petitioners will not join the duty after their selections then they have to give undertaking before the respondent authorities for the sum of Rs.2 lakhs and if the petitioners will not join the duty at the allotted place then the petitioners have to give Rs. 2 lakhs to the government in installments of Rs.5,000/per month and to complete the amount of Rs.2 lakhs, the petitioners have given Rs.5,000/per month for the period of forty months.” 5.2. Now to examine this specific averment, the Court perused this in the context of the contents which are attached and mentioned in the advertisement itself on page 20 of the petition compilation. One of such documents placed on record is indicating the instructions to be observed by a candidate. These contents are clearly and unequivocally indicating the manner and method in which the instructions are to be observed by the candidate. The dotted portion of such instructions at item nos. 1, 3, 4, 5, 6, 7 and 8 are clearly indicating the manner and method in which the conditions are to be observed by the candidate and it has been clearly mentioned that these conditions are binding upon the petitioners. It has further been clearly mentioned on page 21 that when the candidate is approaching the authority for documents verification before appointment, the same will have to be submitted within a period of six months. It has further been clearly mentioned on page 21 that when the candidate is approaching the authority for documents verification before appointment, the same will have to be submitted within a period of six months. It appears that this mode is not adopted by the petitioners and instead have chosen to rush down to this Court. 5.3. In addition thereto, page 40 of the petition compilation is clearly indicating about the schedule for applying, in response to the advertisement and again the conditions are attached. During the course of submissions by both the learned advocates, at the initial stage itself, Mr. Parikh, learned Assistant Government Pleader has made a mention on instructions that if the petitioners are approaching the authority in time schedule, the documents, if available, will be parted with immediately, but here are the petitioners for some unknown reasons, have chosen to insist for grant of interim relief. The Court has noticed from the documents placed on record dated 22.03.2021, signed by the Incharge District Education Officer, Botad as well as the District Education Officer, Surendranagar and a communication given by the Joint Commissioner of Education, Gandhinagar is clearly indicating that it is the petitioners who have not approached the authority for taking back the documents and instead have rushed down to the Court. A case is tried to be made out precisely that the authority has not parted with the documents which has prevented the petitioners from participating in the process, but looking to the communication produced by the learned Assistant Government Pleader, this stand is not possible to be accepted by the Court and in any case, whether the petitioners have given or not is a matter of dispute and such disputed version of facts cannot be examined by the Court in the extra ordinary jurisdiction. A further plea that they were unaware about the procedure which has been adopted of filing an undertaking etc., but this is self contradictory by the petitioners themselves in making a representation where there is a clear reference that the petitioners are aware about the manner and method in which the affidavit is to be filed as well as the undertaking is to be attached. The said reflection is on page 220/A onward and as such, the plea of innocence or unawareness is not possible to be accepted by the Court. The said reflection is on page 220/A onward and as such, the plea of innocence or unawareness is not possible to be accepted by the Court. The conduct on the part of the petitioners of not availing the remedy of approaching the authority itself at initial stage even during the pendency of the petition when the authority has expressed willingness to part with the documents if available, but for some extraneous reasons the petitioners have chosen not to approach the authority though invited, but insisted for passing the appropriate order. This conduct on the part of the petitioners is not appreciable by the Court since the authority has not acted in any arbitrary form, had the petitioners approached before the authority well within the time, this issue would not have arisen to raise any grievance and for insistence of relief and since this being the disputed questions of fact, and for extraneous consideration the petitioners having chosen not to approach the authority, this Court is not inclined to exercise any equitable jurisdiction. Here are the petitioners who are already working as a Shikshan Sahayak in respective Schools, wanted to go in Non-Government Schools despite undertaking having been given with open eyes, hence the conduct on the part of the petitioners appears to be suspicious. Accordingly, based upon such fact, the petitioners are not entitled to any equitable relief. 5.4. The Court would have understood that if the authority has arbitrarily not parted with the documents, the petitioners case should have been on a different footing, but here is the case in which though there is a clear written instructions by the competent authority, produced on record and an invitation is given to the petitioners to visit the office and take away the relevant documents if available, the petitioners have languish themselves in litigation instead of putting an end to the controversy. It further appears from the record of the case that the petitioners were quite aware about the procedure, as reflected by them in the written representation and as such, on the wrong premise, the petitioners have approached this Court. It is not expected by the statutory authority to go to the residence of the petitioners and hand over the documents. It is for the petitioners who have to approach the authority, particularly, when the authority has shown an inclination. It is not expected by the statutory authority to go to the residence of the petitioners and hand over the documents. It is for the petitioners who have to approach the authority, particularly, when the authority has shown an inclination. So in substance, the petitioners were completely aware about the terms of the advertisement, were completely aware about the procedure being adopted and followed by them in applying, the Court cannot help out the petitioners. It appears from the conduct of the petitioners that there might be some hidden agenda for insisting for the relief to be granted in the petition, and as such, the Court is not inclined to encourage such conduct of the petitioners. 5.5. In addition to this material which is available on record, the Court has seen that simply because NOC is granted by the authority, that will not give license to the petitioners to bypass the instructions which are mandatory to be observed as contained in the advertisement, for which there is a specific knowledge. This disputed version of fact cannot be examined in extraordinary jurisdiction and this law has been well settled by a series of decisions of Hon'ble Apex Court. Hence, looking to the conduct, the petitioners are not entitled to seek any relief and it is not for the Court to usurp the discretion of the statutory authority in a writ jurisdiction. The scope of Articles 226 and 227 of the Constitution India is well defined by a series of decisions and one of such is in the case of Sameer Suresh Gupta Through Holder v. Rahul Kumar Agarwal reported in (2013) 9 SCC 374 and lastly in a recent decision in the case of Mohd. Inam v. Sanjay Kumar Singhal & Ors., reported in (2020) 7 SCC 327 . That being the position, considering the observations made by the Apex Court in the recent decision contained in para nos. 33 and 34, this Court is not inclined to encourage the conduct of the petitioners of such a nature, which is self explanatory from the record. Hence, no case is made out to call for any interference and to grant any relief. 6. Accordingly, the petition being meritless, stands dismissed with no orders as to costs.