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2024 DIGILAW 1618 (GUJ)

STATE OF GUJARAT v. MINABEN JITENDRABHAI DAVE

2024-07-25

A.S.SUPEHIA, MAUNA M.BHATT

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. ADMIT. Learned Advocate Mr. Kikani waves service of notice of admission on behalf of respondent No. 1. 2. The present Letters Patent Appeals filed under Clause 15 of the Letters Patent, 1865 emanate from the judgment dated 26.08.2022 passed by the learned Single Judge allowing the captioned writ petition. The learned Single Judge has held that the respondents are eligible to appear in Teacher Aptitude Test (hereinafter referred to as “T.A.T.”) in view of the Clause 5 (ii) of NCTE (National Council for Teacher Education) Guidelines. 3. At the outset, the learned AGP has submitted that the learned Single Judge has primarily allowed the writ petition by placing reliance on the judgment of Supreme Court in the case of Omkar Singh and Ors. vs. State of Utter Pradesh and Ors. 2019 (11) SCALE 46. She has submitted that the ratio of this judgment will not apply in the present case, since the provisions governing the Notification/Advertisement of the present case, which was issued on 11.06.2018, does not appear to be identical to Clause 5 (ii) of NCTE Guidelines, which has been considered by the Supreme Court. 4. The learned AGP has further submitted that as per the clause of the notification/ Advertisement dated 11.06.2018, only those candidates, who had appeared in the examination of last year/semester and the results thereof are awaited, are found to be eligible in appearing the examination of T.A.T. (Secondary) examination however, in the present case, the respondents do not satisfy the said condition. She has submitted while pointing out one of the applications of the respondents, that by filling up the application form, the respondents have incorrectly stated that they have cleared B.Ed. Examination in the year, 2019, whereas the certificate, which has been produced by such candidates, would show that the examination of B.Ed. was held between March-June of 2019 and the certificate/ result was declared on 06.04.2019. 5. She has submitted that the Teacher Aptitude Test (T.A.T.) was held in January, 2019 and the result was declared on 16.05.2019 and hence, on that day, it cannot be said that they had appeared in the examination of B.Ed. and their results were awaited. She has further invited the attention of this Court to the guidelines issued by Clause 5 (ii) of NCTE Guidelines dated 11.02.2011. and their results were awaited. She has further invited the attention of this Court to the guidelines issued by Clause 5 (ii) of NCTE Guidelines dated 11.02.2011. She has pointed out that Clause 5 (ii) of such Guidelines, which has been considered by the Supreme Court in the case of Omkar Singh (supra) was governing Teachers Eligibility Test (TET) and it mentions as “A person who is pursuing any of the teacher education courses (recognised by the NCTE or the RCI as the case may be), specified in the NCTE Notification dated 23rd August 2010.” 6. Thus, she has submitted that both the provisions of Clause 5 (ii) of NCTE Guidelines issued governing TET and the notification/Advertisement dated 11.06.2018 issued by the State Government for Teachers Aptitude Test (Secondary T.A.T.) operate in different realm. 7. Thus, it is urged that since the entire case of the respondents is premised on the judgment of the Supreme Court in case of Omkar Singh (supra) and the learned Single Judge has also followed the directions/observations made by the Supreme Court, the present Appeal may be allowed, as the judgment of the Supreme Court in the case of Omkar Singh (supra) will not apply in the case of respondents. 8. Per contra, learned advocate Mr. Abhichandani appearing on behalf of respondents for Mr. S.M. Kikani has submitted that the order passed by the learned Single Judge may not be interfered with. He has submitted that pursuant to the interim order passed by this Court, the respondent Nos. 3, 5 and 8 i.e. Patel Sweta Jitendra, Patel Nilmalkumar Rajeshbhai and Prajapati Bharatbhai Dalsukhbhai had filed undertaking dated 09.05.2024, wherein they have specifically stated that the appointments to the post of Shikshan Sahayak, pursuant to the Notification/Advertisement will be subject to results of the appeals and they will not claim any equity, merely because they are appointed as Shikshan Sahayak during the pendency of the appeal. 9. Learned advocate Mr. Abhichandani has submitted that prior to the issuance of the advertisements dated 11.06.2018, the appellants had issued earlier advertisement dated 12.10.2017 however, since there are various allegations levelled in the selection, the petitioners were allowed to appear in the examination hence, they withdrew the writ petition filed by such candidates before this Court and thereafter, the second advertisement has been issued. He has further submitted that the order passed by the learned Single Judge may not be disturbed since now the respondent Nos.3, 5 and 8 have already been appointed however, he is unable to point out the status of rest of the respondents and they have not been so far, filed any undertaking before this Court. 10. Learned advocate Mr. Abhichandani has further submitted that as precisely observed by the learned Single Judge, the case of the respondents would be governed by the case of Omkar Singh (supra), since the respondents have cleared B.Ed. Examination as well as Teacher Aptitude Test and they had appeared in the B.ED. Examination and it can be said that they were pursuing the same or they had appeared in that examination as per clauses of the advertisement dated 11.06.2018. 11. Finally, learned advocate Mr. Abhichandani has urged that subsequently, in the advertisement, which is issued on 01.05.2023, the said clause, which is incorporated in the advertisement dated 11.06.2018, which is in question, has been altered and the same is in line with the NCTE Guidelines more particularly, Clause 5 (ii) of NCTE. Thus, it is urged that only for the present advertisement dated 11.06.2018, the appellants-State Authorities have incorporated such clause, which has denied the appointment to the candidates like the present respondents. It is urged that in case, the Court is desirous of setting aside the order passed by the learned Single Judge, the State Government may be directed not to disturb the appointments of the respondent Nos.3, 5 and 8, as they would not have any further chance to appear in the examinations. 12. We have heard the learned advocates of the respective parties. 13. The entire case of the appellants as well as respondents hinges on two factors: (i) The conditions of the Notification/Advertisement dated 11.06.2018, which has been issued by the Appellant-State Authorities for conducting or appearing in the examination of Teacher Aptitude Test (T.A.T.) (Secondary). (ii) The interpretation of the judgment of the Supreme Court in the case of Omkar Singh (supra). 14. It is not in dispute that the respondents had filled the application for appearing in the examination pursuant to the advertisement dated 11.06.2018. (ii) The interpretation of the judgment of the Supreme Court in the case of Omkar Singh (supra). 14. It is not in dispute that the respondents had filled the application for appearing in the examination pursuant to the advertisement dated 11.06.2018. The relevant Clause, which requires deliberation, is translated and incorporated as under: “Considering the above matter, notification is hereby issued to conduct Teacher Aptitude Test (Secondary) TAT (S) for appointment as teachers in registered private (Grant-in-aid) Secondary and Government Secondary Schools by the State Examination Board, Gujarat State, Gandhinagar for the candidates with revised qualification with new subjects added vide the integrated resolution dated 08/06/2018 of the Education Department, candidates who want to fill fresh application form as per change in provision of medium, candidates who have appeared in the last year/ semester examination of educational or professional qualification prescribed in the current year but results have not been published and candidates who could not fill up the application form/ pay examination fee within the prescribed time limit despite having the prescribed qualifications. The said test/examination will be conducted through District Education Officers at designated centers under the management of the State Examination Board.” 15. A fair reading of the condition, as mentioned in the advertisement, would reveal that only those candidates, who have appeared in the examination of last year/semester but their results are not declared, can apply for Teachers Aptitude Test (T.A.T.). The respondents have produced their applications as well as results/certificates on the record of the writ petitions. One of the Candidates, Ms. Nidhi Anilbhai Patel-Respondent No. 1, has filled her application on 17.06.2018, wherein in the column of educational qualification, she has submitted that she has cleared the B.Ed. in the year, 2019. Her B.Ed. Semester Certificate is produced at page No. 56, wherein it shows that B.Ed. Semester- 4 examination is held in March-June, 2019. The result has been issued on 16.04.2019. Thus, she has appeared in the B.Ed. Final Semester examination, which was held between March-June, 2019. However, while filling up the application on 17.06.2018, she has already stated that she has cleared the examination in the year, 2019 perhaps, in view of misconstruing the conditions stipulated in the advertisement. She appeared in the Teachers Aptitude Test (T.A.T.) which is held in January, 2019 and her certificate is at page No. 54 reveals the result was declared on 16.05.2019. 16. She appeared in the Teachers Aptitude Test (T.A.T.) which is held in January, 2019 and her certificate is at page No. 54 reveals the result was declared on 16.05.2019. 16. The Teachers Aptitude Test (T.A.T.) (Secondary) was held in January, 2019. The respondent No. 1 appeared in B.Ed. Examination, which was held in March-June, 2019, which is subsequent to the examination of Teachers Aptitude Test (Secondary). Thus, it cannot be said that she had appeared in the examination of B.Ed at the time of filling up the application of T.A.T. and her result was awaited. 17. At this stage, it would be apposite to incorporate the observations of the Supreme Court in the case of Omkar Singh (supra), wherein the Supreme Court has considered the principles of Clause 5 (II) of NCTE Guidelines, which prescribes the eligibility of Teachers Eligibility Test (TET). Paragraph Nos. 4 and 5.3, the Supreme Court has incorporated the same, which is reproduced as under: “5.3. The eligibility for the TET examination has been provided in Para 5 of the Guideline as under: Eligibility 5. The following persons shall be eligible for appearing in the TET: (i) A person who has acquired the academic and professional qualifications specified in the NCTE Notification dated 23 August 2010. (ii) A person who is pursuing any of the teacher education courses (recognized by the NCTE or the RCI, as the case may be) specified in the NCTE Notification dated 23 August 2010. (iii) The eligibility condition for appearing in TET may be relaxed in respect of a State/UT which has been granted relaxation Under Sub-Section (2) of Section 23 of the RTE Act. The relaxation will be specified in the notification issued by the Central Government under that sub-section.” 18. Thereafter, the Supreme Court has held thus: “8.1 The issue involved in the present appeals is the meaning and interpretation of the word “pursuing” as appearing in Clause 5(ii) of the NCTE guidelines. The question for consideration is the eligibility criteria to appear in the TET examination. It is apparent from the reading of the guidelines framed by the NCTE - Para 5 that the incumbents who have acquired the qualification academic as well as professional can apply for TET examination. The second category of candidates who can apply for TET examination is those who are “pursuing” any teacher training course (TTC). It is apparent from the reading of the guidelines framed by the NCTE - Para 5 that the incumbents who have acquired the qualification academic as well as professional can apply for TET examination. The second category of candidates who can apply for TET examination is those who are “pursuing” any teacher training course (TTC). The meaning of “pursuing” is a person who is undergoing any of the teacher training course (TTC). He/she must have been admitted and pursuing the teacher training course which is prescribed as a qualification. Declaration of the result, appearing in the examination or date of filling up of the forms, etc. cannot be the criteria to appear in the TET examination. Therefore, a candidate who is undergoing i.e., “pursuing” the requisite teacher training course (TTC) shall be eligible to appear in the TET examination. 8.2. The learned Single Judge of the High Court held and concluded that “only those persons who are in the final year of the teacher training course (TTC) alone would be entitled to appear in the TET examination.” The Division Bench of the High Court has gone further and has observed that “only such candidates, whose teacher training course result has not been declared by the last date specified for filling up the online form for TET examination can be said to be “pursuing” the teacher training course as mentioned in clause 5(ii) of the NCTE guidelines and could appear in the TET examination. Therefore, according to the Division Bench of the High Court, as on the last date specified for filling up the online form for TET examination, the candidates must have appeared in the examination (of TTC) and the result has not been declared. These riders are not proper given the clear language used in clause 5(ii) of the NCTE guidelines. The Division Bench of the High Court has read into and/or added something more than what is provided in clause 5(ii) of the NCTE guidelines. The language used in clause 5 (ii) of the NCTE guidelines is simple, clear and unambiguous. As per the cardinal principle of the rule of interpretation, while construing a particular provision, the particular provision is required to be read as it is and nothing is to be added or taken away. The language used in clause 5 (ii) of the NCTE guidelines is simple, clear and unambiguous. As per the cardinal principle of the rule of interpretation, while construing a particular provision, the particular provision is required to be read as it is and nothing is to be added or taken away. 8.3 Looking to the clear wordings in clause 5(ii) of the NCTE guidelines and the phrase used is “pursuing” the High Court is not justified in adding the additional riders, such as, that to become eligible for appearing in the TET examination, a candidate must have appeared in the TTC examination and the result have not been declared by the last date specified for filling up the online form for TET examination. As per the dictionary meaning, the word “pursuing” means undergoing and/or proceeding further. Therefore, a candidate who has been admitted in any of the TTC and undergoing the teacher training course (TTC) can be said to be “pursuing” such teacher training course and shall be eligible to appear in the TET examination, irrespective of the fact that whether, by the last date specified for filling up the online form for TET examination, he has, in fact, appeared in the examination of the concerned teacher training course and the result is awaited. “Pursuing” the requisite teacher training course is sufficient to make such a candidate eligible to appear in the TET examination. Therefore, on a fair reading of clause 5(ii) of the NCTE guidelines, a person who has been admitted in TTC and is pursuing, he/she can appear in the TET examination. In the present case, admittedly, on the cut-off date, all the candidates were pursuing the concerned teacher training course. Thereafter, all of them have cleared the TET examination as well as have cleared the concerned teacher training course. At the time when they were appointed as Assistant Teachers, all of them fulfilled the eligibility criteria for appointment as Assistant Teachers. All of them have passed the TET examination and have also passed the TTC as per the requisite eligibility criteria. Thus, in our view, ousting certain incumbents by the High Court cannot be sustained since they were pursuing TTC and they were clearly eligible to appear in the TET examination and have passed it while pursuing the requisite professional qualification for being eligible to be appointed as Assistant Teachers.” 19. Thus, in our view, ousting certain incumbents by the High Court cannot be sustained since they were pursuing TTC and they were clearly eligible to appear in the TET examination and have passed it while pursuing the requisite professional qualification for being eligible to be appointed as Assistant Teachers.” 19. The Supreme Court has held that the cardinal principle of rule of interpretation is that while construing a particular provision, the particular provision is required to be read as it is and nothing is required to be added or taken away. 20. Interestingly, the Division Bench of this High Court, which was scrutinized by the Supreme Court in the said case has held the expression that “Pursuing any of the teacher training course” as stipulated in Clause 5 (ii) of the NCTE Guidelines, that the same would include the declaration of the result, appearing in the examination or date of filling up of the forms etc. The Supreme Court has held that such observations of the High Court were incorrect and it was held that the dictionary meaning of the word “Pursuing” means undergoing and/or proceeding further. The observations of the High Court were set aside and it was held that the High Court was not justified in considering the expression “pursuing” to such an extent. The Supreme Court has held thus: “8.4 It is not permissible to add riders as done by the High Court. The phrase “pursuing” is to be given literal meaning. The expression ‘rule of literal construction’ lays down that words of a statute are first understood in their natural, ordinary or popular sense and phrases, and sentences are construed according to their grammatical meaning. The learned author G.P. Singh in ‘Principles of Statutory Interpretation’ (14th end.) at p. 91, has observed: “......Natural and grammatical meaning - The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. “The true way”, according to Lord Brougham [Crawford v. Spooner, 1846 SCC Online PC 7] is: “to take the words as the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the Preamble or by the context of the words in question, controlled or altered: [Crawford case (supra)] In the words of Viscount Haldane [Attorney General v. Milne, 1914 AC 765 (HL)] L.C. if the language used “has a natural meaning we cannot depart from that meaning unless reading the statute as a whole, the context directs us to do so. In an off quoted passage, Lord Wensleydale stated [Grey v. Pearson, (1857) 6 HL Cas 61] the rule thus: “.......in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further.” Therefore, it is clear that the respective appellants herein whose appointments were challenged were eligible to appear in the TET examination at the time they were “pursuing” the concerned TTC. Thus, we hold that the decision of the High Court, to the aforesaid extent, is not sustainable. The impugned orders of the High Court are accordingly modified to the aforesaid extent.” 21. The Supreme Court has held that it is not permissible to add rider as done by the High Court and the phrase “pursuing” is to be given literal meaning. In the present case also, we cannot add or delete anything, which is stipulated in the advertisement dated 11.06.2018 and the provisions mentioned therein are to be understood and interpreted by the rule of literal construction. The respondents do not qualify the condition of the advertisement. The learned Single Judge fell in error in granting them relief by placing reliance on the judgment of the Supreme Court in the case of Omkar singh (supra). The issue raised by the respondents-original writ petitioners and in the case of Omakar Singh (supra) operate in different realm, and cannot be equated with each other. 22. The learned Single Judge fell in error in granting them relief by placing reliance on the judgment of the Supreme Court in the case of Omkar singh (supra). The issue raised by the respondents-original writ petitioners and in the case of Omakar Singh (supra) operate in different realm, and cannot be equated with each other. 22. The respondents are seeking something, which is not provided in the Notification/ Advertisement dated 11.06.2018 but also beyond that. On overall examination of the actual facts, which are on record, we are of the opinion that the case of the respondents is not encompassed by the decision of the Supreme court in the case of Omkar Singh (supra), and the examination of Teachers Aptitude Test (T.A.T.) has to be examined on the premise of the conditions incorporated in the Notification/Advertisement dated 11.06.2018 only. 23. It appears that the respondent Nos. 3, 5 & 8 are only interested in the Letters Patent Appeal as they had filed the undertaking pursuant to the interim orders passed by this Court. It is also noticed by us and it is not denied by the learned AGP that in the subsequent advertisement dated 01.05.2023, issued for the Teachers Aptitude Test (Secondary), no such condition has been prescribed and, it is noticed by us that it is in line with the provisions of Clause 5(ii) of NCTE Guidelines and it has been introduced that those candidates, who are studying in the last year of 2022-2023, are held to be eligible for filling up the form. Thus, in fact, the expression ‘pursuing” has been incorporated in the subsequent advertisement however, the present litigation has arisen only in view of advertisement dated 11.06.2018 and the clauses incorporated therein. 24. Though, the respondent Nos.3, 5 and 8 have filed their undertakings specifically stating that their appointments to the posts of Shikshan Sahayak will be made subject to the result of the appeals and they further undertook that they will not be claiming any equity merely because, they are appointed as Shikshan Sahayak during the pendency of captioned appeal, in our considered opinion, we will leave their fate on the wisdom of the State Government. 25. The Respondent Nos.3, 5 and 8 have cleared the B.Ed. 25. The Respondent Nos.3, 5 and 8 have cleared the B.Ed. Examination as well as Teachers Aptitude Test (T.A.T.) and if the State is desirous to consider them as a special case, they may be continued on the post of Shikshan Sahayak, however, these observations are only confined to the respondent No. 3, 5 & 8 and to those respondents who are appointed along with them. These observations may not be treated as precedent, and we will leave the issue of their appointment and continuation entirely on the wisdom of the State Government. If any order is passed by the State government, the same will not give rise to any equity in favour of any other candidate. 26. In view of the above, the Letters Patent Appeals succeed. The judgment and order passed by the learned Single Judge is hereby quashed and set aside.