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Gujarat High Court · body

2022 DIGILAW 1510 (GUJ)

Mer Dhiru Talsibhai v. State Of Gujarat

2022-10-21

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent State. 2. The present petition has been filed by the petitioner praying that the decision dated 19.03.2021 be quashed and set aside. The petitioner has further prayed that he be appointed as Shikshan Sahayak / Teacher for the subject of Statistics in higher secondary schools pursuant to the advertisement. 3. Facts in brief are as under: 3.1 An advertisement no.18 of 2021 for 254 posts of Shikshan Sahayaks for the subject of Statistics in non-government grant-in-aid higher secondary schools was issued. The petitioner submitted his online application. He has passed B.Com with Statistics and M.Com with Statistics and B.Ed. He has also passed Teacher Aptitude Test (Higher Secondary). 3.2 The petitioner was called for document verification on 12.03.2021 wherein he submitted all his documents including certificates and mark-sheets. On 19.03.2021, the respondents furnished a merit list wherein the petitioner’s name appeared at Sr. Nos.173. His candidature was rejected with a remark that “he does not fulfill the eligibility as stated in the advertisement because on verification of the candidates’ documents his OPTIONAL subject at Graduation and Post Graduation level is STATISTICS”. The petitioner made a representations on 21.03.2021 and 23.03.2021. In the provisional merit list declared on the subject of Statistics, only 19 candidates are selected against notified 254 vacancies. 4. Mr.K.B.Pujara learned advocate appearing for the petitioner would submit as under : 4.1 He would submit that the petitioner had done his B.Com and M.Com with Statistics. Mark-sheets and the degree certificate would indicate that in all the semesters Statistics was a subject in B.Com as well as M.Com. Merely because the same was an optional subject, cannot be a ground for disqualification. Even while passing TAT, the subject was Statistics. 4.2 Mr.Pujara would submit that the Government Resolution dated 11.01.2021 laying down the qualifications required from the candidates for the Teachers/Shikshan Sahayaks for secondary and higher secondary schools for various subjects provided that such qualification had to be in light of regulations viz. Regulation 20 of the Gujarat Secondary Regulations 1974. He would rely on Schedule-4 of Resolution to submit that for the subject teacher in Statistics, it is laid down that the candidate should be B.Com / B.Sc. / B.A. with Statistics / Mathematics and so also M.Com. Regulation 20 of the Gujarat Secondary Regulations 1974. He would rely on Schedule-4 of Resolution to submit that for the subject teacher in Statistics, it is laid down that the candidate should be B.Com / B.Sc. / B.A. with Statistics / Mathematics and so also M.Com. 4.3 He would submit that even the guidelines which provides for document verification indicate that one should have a subject of Statistics in B.Com or any other graduation and/or post graduation degree. 4.4 Mr.Pujara would further submit that having obtained a degree of B.Com with optional subject as Statistics and M.Com with optional subject as Statistics had to be considered as a valid qualification as the procedure for selection rules viz. the Teachers and Headmasters for Registered Private Secondary and Higher Secondary Schools (procedure for selection) Rules 2011, (‘the Rules’ for short) nowhere states that in B.Com and M.Com subject of Statistics is required to be as “concerned” or “specialized” subject. Regulation 20 of the Gujarat Secondary and Higher Secondary Education Regulations do not lay down similar criteria. 4.5 Mr.Pujara relied upon the decision of the Supreme Court in the case of Parvaiz Ahmed Parry v. State of Jammu and Kashmir and others reported in (2015) 17 SCC 709. He Also Relied On the decision of the coordinate bench of this Court in case of Shah Kalpesh Kanubhai V. Gujarat Secondary and Higher Education Teaching and others in Special Civil Application No.18767 of 2017 dated 24.01.2020. 5. Mr.Utkarsh Sharma learned AGP would submit as under: 5.1 The appointments for Shikshan Sahayaks has to be as per the requisite qualifications in terms of the Government Resolution dated 11.01.2011. 5.2 He would rely on Rule 11(3) of the Rules and submit that petitioner did not possess the qualifications as required. Reliance was also placed on Regulation 20(3) of the Secondary Education Regulations. He would submit that the Regulation requires a candidate to have the qualification on the ‘concerned / specialized subject’ and not as an ‘optional subject’. 6. Having considered the submissions made by the learned counsel for the respective parties, what is evident is that an advertisement was issued for appointment of Shikshan Sahayak in various subjects. One of the subjects for which Shikshan Sahayaks were to be recruited was in the subject of Statistics. Reading the advertisement would indicate that what was required was a qualification graduate as well as post graduate. One of the subjects for which Shikshan Sahayaks were to be recruited was in the subject of Statistics. Reading the advertisement would indicate that what was required was a qualification graduate as well as post graduate. As per Regulation 11 waitage of 30% was to be given out of the marks secured in the prescribed educational qualification. Appendix-2 of the Government Resolution dated 11.01.2011, would indicate that what was required was qualification of a graduate degree, post graduate degree and a graduate degree in the professional subject such as B.Ed. or B.P.Ed. Percentage of marks were prescribed giving waitage in accordance with the degree in the concerned subject. The Rules of the Government Resolution dated 11.01.2011 nowhere provide that the qualification of the subject needs to be in the concerned or “specialized subject”. What is laid down is that for the subject of Statistics, a candidate should have a B.Com with a subject of Statistics, M.Com and TAT with the subject of Statistics. The mark-sheets on record indicate that the petitioner has done his graduation as well as post graduation in the subject of statistics. 7. In the case of Parvaiz Ahmed Parry (supra) before the Supreme Court, facts would indicate that the appellant had completed B.Sc. with Forestry as one of the major subjects from Garhwal University. He thereafter done his Forestry M.Sc. He had passed NET in Forestry. The J & K Forest Service Recruitment Rules provided that in order to be qualified for the post of Range Forest Officer Grade – I (Forest) was B.Sc. Forestry or its equivalent. When the petitioner approached the High Court on the non-selection, the petition was dismissed so was the appeal. Aggrieved by the judgement, the appellant approached the Supreme Court. The Supreme Court in para 15 of the decision held as under: “15. In our considered view, firstly, if there was any ambiguity or vagueness notice prescribing the qualification in the advertisement, then it should have been clarified by the authority concerned in the advertisement itself. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondent. Thirdly, even assuming that there was no ambiguity or / and any vagueness yet we find that the appellant was admittedly having B.Sc. Secondly, if it was not clarified, then benefit should have been given to the candidate rather than to the respondent. Thirdly, even assuming that there was no ambiguity or / and any vagueness yet we find that the appellant was admittedly having B.Sc. degree with Forestry as one of the major subjects in his graduation and further he was also having Master’s degree in Forestry i.e. M.Sc. (Forestry). In light of these facts, we are of the view that the appellant was possessed of the prescribed qualification and to apply for the post in question and his application could not have been rejected treating him to be an ineligible candidate for not possessing the prescribed qualification.” 8. Even in the case of Shah Kalpesh Kanubhai (supra) the order reads as under : “1. In this petition, under Article 226 of the Constitution of India, the prayer of the petitioner reads as under: “(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to give appointment to the petitioner on the post of Shikshan Sahayak in the respondent No.3 – School which is already allotted to him, and further be pleased to direct the issue appointment order w.e.f. 28.6.2017 and further be pleased to direct the respondents to pay the salary with all consequential benefits of the post from that date; 2. The facts in brief are as under: 2.1. An advertisement was issued for appointment of ‘Shikshan Sahayak' for the subjects of Maths and Science. Online applications were invited. The petitioner applied for the post of Shikshan Sahayak in the subject of Maths and Science. 2.2. The case of the petitioner is that he has cleared B.Sc. from M.S. University, Baroda in the subject Statistics / Maths / Physics and completed his B.A. From Hemchandra Acharya North Gujarat University, Patan. 2.3. The case of the petitioner is that he appeared in the TAT examination; was thereafter called for the round of selection and was allotted Taluka: Kharoda, District: Dahod. However, though the merit is shown as 55.87%, the petitioner was not appointed. 3. 2.3. The case of the petitioner is that he appeared in the TAT examination; was thereafter called for the round of selection and was allotted Taluka: Kharoda, District: Dahod. However, though the merit is shown as 55.87%, the petitioner was not appointed. 3. Ms.Vyas, learned counsel for the petitioner drew my attention to the representation made by the petitioner and stated that though the petitioner, on 26.6.2016 received a message to remain present on 28.6.2017 for selection of school at Taluka: Kharoda, District Dahod, however, not having been appointed though he was allotted, petitioner is constrained to approach this Court by filing a petition for the relief as prayed for. 4. In the petition, it is stated that since there was no response to his representation though the name was recommended, the petition was so filed. 5. While issuing notice, this Court on 10.10.2017, by an interim order directed that one post be kept vacant. 6. An affidavit-in-reply has been filed by the State. 7. Ms.Gupta, learned AGP for the respondent - State would submit that merely being on a select list, would not entitle the petitioner to claim appointment to the post in question. 7.1. According to her, the notification dated 18.4.2012, in which, all powers under Article 309 of the Constitution of India, Rules for Selection of Teachers for Government Secondary and Higher Secondary Schools have been prescribed in the manner, in which, the merit of the candidate has to be determined. Rules 11(1), 11(2) and 11(3) of the Rules, 2012, Ms.Gupta would submit that weightage has to be prescribed on the basis of qualification at the graduation and the post-graduation level for which 30% weightage is given and for TAT, the weightage is 70%. 7.2. She would, therefore, submit that reading the Rules together with the Appendix, unless a candidate would have a degree in the ‘concerned subject,' at the graduation or the post-graduation level, such a candidate is not entitled to the assessment in absence of 'a degree in graduation or post-graduation in the concerned subject'. 7.3. Reliance is placed on the affidavit-in-reply and it is urged by Ms.Gupta that in the present selection, the concerned subject was Maths and Science. In-fact, it was Maths – Science subject alone. The petitioner having graduated with B.Sc. in Statistics would therefore not merit consideration. 7.3. Reliance is placed on the affidavit-in-reply and it is urged by Ms.Gupta that in the present selection, the concerned subject was Maths and Science. In-fact, it was Maths – Science subject alone. The petitioner having graduated with B.Sc. in Statistics would therefore not merit consideration. She further submitted that the benchmark for the requisite merit was 55.12% and the petitioner, on the basis of having secured 00.00 in graduation, would have the merit assessed at 50.64% and, therefore, not be entitled to appointment. 7.4. Ms.Gupta, learned AGP further submits that Rule 7 would provide only for the eligibility for appointment, whereas, Rule 11 explicitly provides for the parameters for preparing the select list and, therefore, ‘relevant subject' becomes the subject matter of consideration for such preparation. The petitioner not having completed graduation in Maths and the relevant subject, non-selection to the appointment of the petitioner is just. 8. Ms.Vyas, learned counsel for the petitioner in rejoinder would submit that if Rule 7 is read as far as eligibility for appointment is concerned, it specifically provides that to be eligible for appointment as teacher, the candidate shall possess requisite education / qualification and age in accordance with the provisions of Regulation 20 of the Government Secondary Education Regulations, 1974. 8.1. She would further submit that in accordance with Regulation 20, Clause-III thereof, the petitioner satisfies the parameters of having possessed, the degree recognized by the university and, therefore, entitled to the appointment. 9. On the question of ‘relevant subject' and / or ‘concerned subject,' Ms.Gupta, learned AGP relied on a decision dated 28.3.2019 in Special Civil Application No.21628/2016 of this Court in the case of Patel Shilpaben Viththalbhai v. State of Gujarat. Drawing my attention to the facts of the case, she would submit that in that case, the petitioner applied for the post of Shikshan Sahayak in the subject of Geography. On being appointed, she joined. However, subsequently, her appointment was cancelled. Cancellation was on the ground that, she did not possess qualification in the concerned subject as she had her graduation in History. Even there, the argument of learned counsel for the petitioner was that since the candidate had passed the relevant TAT examination, was discounted. On being appointed, she joined. However, subsequently, her appointment was cancelled. Cancellation was on the ground that, she did not possess qualification in the concerned subject as she had her graduation in History. Even there, the argument of learned counsel for the petitioner was that since the candidate had passed the relevant TAT examination, was discounted. Ms.Gupta, would further invite my attention to paragraph No.5.2 of the decision and would submit that this Court cannot dwell into the issue of deciding ‘relevant subject' and it is a matter that is best left to the appointing authority and it can be decided with the help of special experts. 10. In the decision of Patel Shilpaben Viththalbhai (Supra), in Ms.Gupta's submission the Court finds support from the decision dated 12.3.2018 in Special Civil Application No.20839/2016 in the case of Chaudhary Dhananjay Popatlal v. State of Gujarat, wherein also, a candidate possessing a degree in Sociology, was not considered as possessing a degree in ‘relevant subject' for her candidature for teaching History. Observations in the judgment were also relied upon wherein it was submitted that regulation 20 cannot be read in isolation. 11. Considering the issue at hand, admittedly, the petitioner had applied for the subjects of Maths and Science. The stand of the respondent is that he did not possess the requisite qualification in the concerned subject and, therefore, though having given sufficient weightage for TAT, he was rightly assessed as 00.00 in the graduation subject. Perusal of the marksheet of the petitioner, when she underwent the graduation course in B.Sc., would suggest that though the principal subject of the petitioner was Statistics, Maths and Physics are the subjects which he had also studied. Therefore, the concept ‘relevant subject' or ‘concerned subject' cannot be given a restricted meaning especially in the context of the case on hand when admittedly the petitioner did pursue degree of B.Sc. with Maths subject. Though Statistics was a principal subject, it had the traits of Maths as is evident from the marksheet. 12. Regulation 20 of the Government Secondary Education Regulations, 1974 was though cited as not being applicable in the case of Patel Shilpaben Viththalbhai (Supra), the Court in the judgment has extensively so discussed the regulation. 13. Regulations 7, 11(1), 11(2) and 11(3) of the 18.4.2012 notification read as under: 7. 12. Regulation 20 of the Government Secondary Education Regulations, 1974 was though cited as not being applicable in the case of Patel Shilpaben Viththalbhai (Supra), the Court in the judgment has extensively so discussed the regulation. 13. Regulations 7, 11(1), 11(2) and 11(3) of the 18.4.2012 notification read as under: 7. Eligibility for appointment: To be eligible for appointment as Teacher, a candidate shall possess- (a) requisite educational qualifications and age in accordance with the provisions of regularisation 20 of the Gujarat Secondary and Higher Secondary Education Regulations, 1974; and (b) basic knowledge of computer application as prescribed in sub-rule 1(A) of the rule 8 of the 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 Caste, 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. 11. Select list- (1) (a) The selection committee shall prepare a list of successful candidates on the basis of weightage of 70% marks of the marks secured by the concerned candidate in TAT. (b) The marks secured by the concerned candidate in TAT shall be valid for five years from the date of the result of the TAT. (c) The candidate who has secured at least 50% marks in TAT shall be considered as qualified candidate for TAT weightage. (d) A candidate shall be allowed to appear in TAT for three times. A candidate who after availing the first attempt also avails second or third successive attempt within the period of five years from the date of the result of the first attempt, the average marks obtained by such candidate in such attempts shall be considered for preparation of the select list, as explained in Appendix – II. (2) The weightage of 30% will be given, out of the marks secured in the prescribed educational qualification for the respective post as specified in Appendix-II. (3) The maximum marks for the qualification for the purpose of weightage of 30% shall be as prescribed in Appendix- I. 14. Reading of such regulations would make it evident that the interpretation of the State in restricting, in the case on hand to hold that Statistics cannot be relevant subject for the teaching of Maths has no nexus to the objectives to be achieved. Reading of such regulations would make it evident that the interpretation of the State in restricting, in the case on hand to hold that Statistics cannot be relevant subject for the teaching of Maths has no nexus to the objectives to be achieved. In the judgment of Patel Shilpaben Viththalbhai (Supra), admittedly, the controversy was with regard to the teacher of the Geography when the subject in which the petitioner had done his graduation was history. The said judgment would therefore not be of much help so far as the words ‘concerned subject' as in the case on hand. From the mark-sheet of B.Sc. Degree, it is evident that the petitioner had undergone Maths subject. 15. For the aforesaid reasons, the petition is allowed. The respondents are directed to appoint the petitioner on the post of ‘Shikshan Sahayak' in the school of respondent No.3 – herein forthwith. In the event, if there is no vacancy at which he was offered appointment, then appropriate posting may be given to the petitioner on a vacant post at any other suitable place. Direct Service is permitted.” 9. Accordingly, the petition is allowed. The impugned communication dated 19.03.2021 wrongfully cancelling the petitioner’s application is quashed and set aside. The petitioner is held to be eligible for being appointed as Shikshan Sahayak / Teacher for the subject of Statistics in higher secondary schools. The respondents are directed to forthwith give appointment to the petitioner as Shikshan Sahayak / Teacher for the subject of Statistics in higher secondary school with all consequential benefits as if the petitioner was given appointment along with the first candidate of the same recruitment process within a period of 8 weeks from the date of receipt of copy of this order. Rule is made absolute. Direct service is permitted.