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2023 DIGILAW 220 (GUJ)

STATE OF GUJARAT v. MAMTA MANSUKHBHAI CHOTHANI

2023-02-01

N.V.ANJARIA, NIRAL R.MEHTA

body2023
ORDER : 1. This Letters Patent Appeal, under Clause 15 of the Letters Patent, at the instance of the appellants herein-original respondents is directed against the order dated 29th November 2021 passed in Special Civil Application No. 6036 of 2021, by which the learned Single Judge allowed the writ petition of the original petitioner by holding, inter alia, action of the appellants herein in not issuing formal appointment order as illegal and consequently, directed them to appoint the original petitioner as Assistant Teacher in the subject of Economics in Gujarati medium with all other ancillary and consequential directions. 2. The short facts arising from the record can be stated as under: 2.1 The respondent herein-original petitioner, who is working as Assistant Teacher in the upper primary school at Shri Dhebar Kankarwaswadi Primary School, village : Dhebar, Taluka : Bhanvad, District : Dev Bhoomi Dwarka and who is possessed qualification of M.A. (Economics) and B.Ed. degree with additional qualification of 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 pursuant to the advertisement dated 14th January 2021. The said application was to be filled up online between 15th January 2021 to 24th January 2021. 2.2 In the said advertisement, it was stipulated that mistake, if any, is committed in filling up the online application form, in the event, the application would not be considered. Thus, time was also given to candidates to edit their applications till the last date of filling up the application form i.e. 24th January 2021. 2.3 The respondent herein-original petitioner, while submitting online application form, had selected the option of “No” instead of option “Yes” against the question as to whether the candidate is working in any teaching position in any government school. 2.4 On the other hand, since it was required by the candidate to attach 'No Objection Certificate' from the District Primary Education Officer in case the candidate is working in teaching position in government school, therefore, the respondent herein-original petitioner applied for the same and vide certificate dated 22nd January 2021, the District Primary Education Officer, Devbhoomi Dwarka District Panchayat issued certificate to that extent. 2.5 Indisputably, the original petitioner had requested and obtained certificate prior to the date of filling up the online application form. 2.5 Indisputably, the original petitioner had requested and obtained certificate prior to the date of filling up the online application form. The candidature of the original petitioner came to be considered and placed at Serial No. 48 and the list of documents verification was prepared by the appellants herein. Total 1132 candidates were called for documents verification and whereas at that stage, the original petitioner has submitted an undertaking in the form of an affidavit dated 5th March 2021 where also the original petitioner had submitted that she was working in the above named school since 27th March 2017. 2.6 The respondent herein-original petitioner attended the documents verification process, however, in provisional merit list dated 19th March 2021, name of the original petitioner did not figure, but, another list being list of disqualified candidates published on the same date in which name of the original petitioner was figured at Serial No. 5. 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. 3. Thus, being aggrieved and dissatisfied by the aforesaid, the respondent herein-original petitioner approached this Court by way of a petition being Special Civil Application No. 6036 of 2021 with the following reliefs: “25(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent-authorities to select and appoint the petitioner herein to the post of Assistant Teacher for the subject of Economics, Gujarati Medium, in Higher Secondary Section and post her at Adarsh Vidya-Mandir Non-Government Granted School, situated at village Koylana, Taluka Keshod, District Junagadh. (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions, quashing and setting aside the impugned rejection list dated 19.03.2021 published by the respondent no. 2 herein (Annexure-I hereto) so far as name of the petitioner has been included in the said impugned list. 2 herein (Annexure-I hereto) so far as name of the petitioner has been included in the said impugned list. (C) During pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondents herein to keep on post of Assistant Teacher the subject of Economics, Gujarati Medium, in Higher Secondary Section at Non-Government Granted School vacant. (D) During pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent-authorities to keep one post of Assistant Teacher for the subject of Economics, Gujarati Medium, in Higher Secondary Section at Shree Adarsh Vidya Mandir Non-Government Granted School situated at Koylana village, Taluka Keshod, District Junagadh vacant. (E) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.” 4. The aforesaid petition came up for hearing before the learned Single Judge, who, vide its order dated 29th November 2021, allowed the petition as prayed for. 5. Being aggrieved by the aforesaid order, the appellants herein-original respondents have approached this Court by way of present appeal. 6. We have heard learned Assistant Government Pleader Mr. Manan Mehta for the appellants and learned advocate Mr. Rushabh Munshaw for the respondent herein. 7. Learned Assistant Government Pleader Mr. Mehta submitted that the learned Single Judge has committed a serious error in not considering the guidelines and conditions prescribed in advertisement in its true perspective. Mr. Mehta further submitted that indisputably, the respondent herein has disclosed incorrect details by selecting an option of “No” instead of “Yes” against the question whether she is serving elsewhere or not and thereby, as per the stipulation in the advertisement, application form of the respondent herein was rightly rejected. Mr. Mehta also submitted that the recruitment process was over between 26th March 2021 to 30th March 2021 and accordingly, appointments have also been given, therefore, the learned Single Judge could not have passed impugned order by directing the appellants to give an appointment to the original petitioner. Mr. Mehta further submitted that the impugned order is contrary to the service law jurisprudence, more particularly, selection process vis-a-vis right of appointment of the candidate. 8. By making above submissions, learned Assistant Government Pleader Mr. Mehta has prayed this Court to allow the present appeal by quashing and setting aside the order passed by the learned Single Judge. 9. Mr. Mehta further submitted that the impugned order is contrary to the service law jurisprudence, more particularly, selection process vis-a-vis right of appointment of the candidate. 8. By making above submissions, learned Assistant Government Pleader Mr. Mehta has prayed this Court to allow the present appeal by quashing and setting aside the order passed by the learned Single Judge. 9. Per contra, learned advocate Mr. Rushabh Munshaw for the respondent herein-original petitioner has vehemently opposed the present appeal contending, inter alia, that the order passed by the learned Single Judge is perfectly justified being purely within the four corner of law. Mr. Munshaw further submitted that the order passed by the learned Single Judge cannot be interfered as the same has been passed after considering the aspect whether the petitioner derived any advantage or alleged suppression was intentional or was a bonafide mistake and the learned Single Judge further considered the distinction between illegality, irregularity and procedural irregularity. Therefore, according to learned advocate Mr. Munshaw, the order passed by the learned Single Judge is based on the principles of service jurisprudence. 10. By making above submissions, learned advocate Mr. Munshaw prayed this Court to reject the present appeal. 11. We have heard the learned advocates for the respective parties and have gone through the material produced on record as well as have gone through the order passed by the learned Single Judge in great detail. No other and further submissions sought to be canvassed by the learned advocates appearing for the respective parties except what are stated hereinabove. 12. Having heard the submissions and having gone through the material on record, a short question arises for consideration of this Court is as to whether the learned Single Judge has committed any error in passing the impugned order. 13. So as to consider the aforesaid question, it would be relevant to take a note of few undisputed facts which stated herein-below: (i) “No Objection Certificate” issued by the competent authority dated 22nd January 2021 which certifies that the original petitioner was in fact working in the school namely Shri Dhebar Kankarwaswadi Primary School, village : Dhebar, Taluka : Bhanvad, District : Dev Bhoomi Dwarka. (ii) The original petitioner by way of an affidavit dated 5th March 2021 stated that she was working in the aforesaid school since 27th March 2017. (ii) The original petitioner by way of an affidavit dated 5th March 2021 stated that she was working in the aforesaid school since 27th March 2017. (iii) However, while submitting online application form, the original petitioner selected an option of “No” instead of “Yes” against the question as to whether the candidate is working in any teaching position in any government school. (iv) There was no prohibition for the persons who are holding jobs in teaching position in any government school. 14. While keeping in mind the aforesaid undisputed facts, it would be relevant to consider the reasoning given by the learned Single Judge in the impugned order which can be quoted thus as under: “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. 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 herein-below 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. 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. 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. 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. 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. 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 bonafide 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.” 15. At this stage, it would also be apt to take into consideration the order passed by the Coordinate Bench of this Court in the case of Mehulkumar Girishbhai Rohit vs. State of Gujarat and Others in Letters Patent Appeal No. 245 of 2014 decided on 17th December 2021: “3.1 It is the case of the appellant that while filling up online application form, he had inadvertently committed mistake by writing details in the respective columns. In columns “ex-service man” the candidate was required to say 'Yes' or 'No' and in the next column it was needed to be stated that whether the candidate was in government service, in order to give the date of joining such service. Out of hurry, the appellant committed mistake, instead of mentioning 'No' in the exservice man, he mentioned 'No' against the date of joining in the government service. In the column of ex-service man, 'Yes' was mentioned. It was a mistake of interchanged details. A copy of the print out of the online application form of the appellant figures on the record which shows the details written in above manner. 4. Highlighting the above error, it was submitted by learned advocate for the appellant that it was a sheer mistake and slip of pen on part of the appellant. It was stated that the appellant immediately addressed letter dated 9.11.2012 to respondent No. 2 authority to apprise him about the mistake, however, the authority called upon the appellant to show the details about the status of his ex-service man, which could not be produced by the appellant as he did not have such status. Resultantly, the appointment was denied to the appellant. Resultantly, the appointment was denied to the appellant. 4.1 On the basis of the contents of the affidavit-in-reply filed on behalf of the respondent No. 3- Chief District Health Officer, learned advocate for the appellant submitted that the verification of documents of the appellant was necessary and since he had mentioned the category to be ex-service man, he was asked to produce certification in that regard. He could not produce anything. As per the submission, the details filled up in the application form were wrong and misleading which rendered the appellant disqualified to be appointed. It was submitted that since the details were filled in the application form, projecting to be an ex-army man, the appellant was bound to substantiate such cause and status. 5. The case of the petitioner stands to reason that there was bonafide inadvertent mistake on his part. At the outset, it is to be stated that no benefit was to accrue to the petitioner by his mentioning as category as ex-service man, there was no such category in the recruitment to the post. It is entirely logical when it is stated by petitioner against the columns the information was interchanged and by slip of pen 'Yes' was mentioned against the status of ex-service man, the petitioner belongs to the Schedule Caste, nor the petitioner gain any advantage by committing mistake. He scored 50.50 marks whereas the merit of the last appointee was 46 marks. 5.1 It may be stated that the case of the said Darpankumar Jashbhai Desai (supra) referred to in the order dated 7.3.2014 abovequoted, arose out of the very recruitment process. The said candidate had obtained 46.70 marks in SC category. The petitioner stands identically situated, and has obtained 50.50 marks. 5.2 In the present case, there was no question of obtaining any wrongful gain by the petitioner by mentioning the details. It was bonafide mistake of such nature, thereby, the candidate who committed mistake did not reap any benefit nor could have obtained any benefit nor any other candidate would stand prejudiced if mistake is allowed to be ignored. It was an ignorable mistake. It was also a curable mistake when without prejudice to anybody the petitioner could stand on its own merits to claim the appointment. For such nature of mistake the petitioner could not have been penalized. Subsequently, he has been rightly taken in service, as noted above.” 16. It was an ignorable mistake. It was also a curable mistake when without prejudice to anybody the petitioner could stand on its own merits to claim the appointment. For such nature of mistake the petitioner could not have been penalized. Subsequently, he has been rightly taken in service, as noted above.” 16. Considering the facts of the case on hand, the issues involved in the present case are squarely covered by a decision of this Court in the case of Mehulkumar Girishbhai Rohit (supra). In the case on hand, the mistake appears to have been bonafide in nature and in view of such mistake, the candidate appears to have not gained anything. In other words, by alleged suppression, the original petitioner is not going to gain any undue advantage and by mentioning correct facts would not disentitle her for something. 17. In view of the aforesaid, the reasoning given by the learned Single Judge appears to be absolutely reasonable and thereby, we do not find any substance to entertain the present appeal. 18. Accordingly, the present appeal fails and is hereby dismissed with a direction to the appellants herein-original respondents to comply with the order passed by the learned Single Judge within six weeks from today. 19. Consequently, the connected Civil Application stands disposed of.