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2024 DIGILAW 963 (GUJ)

Kavathiya Brijesh Pravinbhai v. State Of Gujarat

2024-04-22

BIREN VAISHNAV, PRANAV TRIVEDI

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JUDGMENT : (Biren Vaishnav, J.) 1. This appeal, under clause 14 of the Letters Patent, has been filed by the appellants who are the original petitioners before the learned Single Judge. On having failed in getting a favourable order before the learned Single Judge, the appellants are in appeal here challenging the order dated 24.12.2014 passed in Special Civil Application No. 17188 of 2014. 2. The appellants are 49 in number and at the outset it has been pointed out by Mr. K.B. Pujara, learned advocate for the appellants that the appellants at Sr. Nos. 6 and 20 have already been appointed as Teachers and therefore this appeal may be restricted to the appellants except appellants no. 6 & 20. This appeal is therefore heard qua the appellants except appellants no. 6 & 20. 3. It was the case of the original petitioners - appellants that they had passed B.A./M.A or B.Com/M.Com and that they had also passed B.Ed/M.Ed examinations and also had successfully undertaken the Teacher Eligibility Test-II in the subject of Social Studies. The petitioners were therefore eligible to be appointed as Vidhya Sahayaks/Teachers in the subject of Social Studies. 3.1 Pressing their right to be considered for appointment and be appointed accordingly on the basis of the Right To Education Act, it was case of the petitioners that Schedule B to the Act provides that for the standards 6 to 8 there shall be atleast one teacher per class for the subjects of Science, Maths, Social Studies and languages. It was the case of the petitioners that the respondents have committed breach of the mandatory provisions of the Right of Children To Free and Compulsory Education Act by not making recruitment of equal number of teachers/Vidhya Sahayaks for standards 6 to 8 for the subject of Social Studies as are made for the subjects of Maths, Science and languages. It was in this context that the petition was filed before the learned Single Judge. 4. Mr. It was in this context that the petition was filed before the learned Single Judge. 4. Mr. K.B. Pujara, learned counsel appearing for the appellants would submit that if the advertisement for the years pre-2014, which was the subject matter of this petition, are seen which have been demonstrated through a tabular form in the petition, the total number of vacancies notified for the subject of Social Studies from the total number of vacancies notified in all is much smaller than the one compared to the subjects of Maths, Science and languages. Taking us through the table at page 10 of the petition, Mr. Pujara would submit that for example if the advertisements for the period from 2010 to 2013 are seen, of the total number of vacancies notified namely 37,800, for Maths and Science the notified vacancies were 20,500 and for languages were 13,800 whereas for Social Studies it was a small percentage of 3500 vacancies. In the advertisement in question too, of the total notified vacancies being 4351, the Maths and Science had its share of 3003 vacancies, languages had 548 and Social Studies had 800 vacancies. He would therefore submit that this caused grave injustice to the petitioners inasmuch as with less number of vacancies advertised for the subject of Social Studies, the petitioners face less chances of being selected/appointed to the post in question. 4.1 In support of his submissions, Mr. Pujara would rely on various orders passed by the Apex Court in light of the Right of Children to Free and Compulsory Education Act, 2009 in the case of Environmental and Consumer Protection Foundation vs. Delhi Administration [ (2011) 7 SCC 55 ] and [ (2012) 10 SCC 197 ]. He would us take through the advertisement, the provisions of the Right to Education Act and the schedule thereto to indicate that there was a clear stipulation that for standards 6 to 8 there shall be atleast one teacher per class each for Science and Maths, Social studies and languages and therefore there was a shortfall as far as the subject of Social Studies was concerned resulting in the breach and violation of the provisions of Right to Education Act. 4.2 Mr. Pujara would take us through the Government Resolution dated 27.04.2011 setting out the qualifications for the subject of Social Studies. 4.2 Mr. Pujara would take us through the Government Resolution dated 27.04.2011 setting out the qualifications for the subject of Social Studies. He would take us through the various orders in the case of Environmental and Consumer Protection Foundation (supra) to submit that the Apex Court had deprecated the speed in which the implementation of the RTE Act was being done and also directions were issued that appropriate compliance of the RTE Act should be done. 4.3 Relying on the decision in the case of Pradeep Gogoi and others vs State of Assam and Others reported in (1998) 8 SCC 726 , he would submit that it is settled law that even an eligible candidate has a fundamental right to lay his claim for consideration in his own right for recruitment to a post. The process of selection not being undertaken would have a serious effect on the psyche of the people eroding the constitutions right under Article 16 of the Constitution of India. 4.4 Further taking us through various data that the learned AGP has produced in the affidavit-in-reply, Mr. Pujara would submit that despite a large number of schools having large number of vacancies, the ratio of teachers as far as the subject of Social Studies was concerned was abysmal. Relying on a table produced at page 196 together with the affidavit-in-reply, Mr. Pujara would submit that though the total students’ strength for classes 6 to 8 was 17,187 schools, for the purposes of Social Studies only 3,107 candidates were selected and 3,658 vacancies were available for recruitment of teachers and in absence of carrying out such recruitment, the State was clearly causing injustice. 5. Ms. Shruti Dhruve, learned AGP would support the order of the learned Single Judge. She would take us through the affidavit-in-reply and reiterate the contentions raised by her counter part before the learned Single Judge. She would submit that the prayers made in the petition were misconceived and no declarations as prayed for could be granted. 6. Having considered the submissions made by the learned counsels for the respective parties and having perused the order of the learned Single Judge in not entertaining the petitions, we must first set out the prayers that have been made in the petition which were a subject matter of challenge before the learned Single Judge. 6. Having considered the submissions made by the learned counsels for the respective parties and having perused the order of the learned Single Judge in not entertaining the petitions, we must first set out the prayers that have been made in the petition which were a subject matter of challenge before the learned Single Judge. The prayers made in the petition read as under: “(a) to admit this petition and to issue notice for final disposal on returnable date; (b) to quash and set aside the impugned illegal actions of the respondent authorities in not making recruitment of Teachers/Vidyasahayaks for the subject of Social Studies in Std. 6 to 8 in equal number to the recruitment of teachers for the subjects of Maths – Science and Languages during the years 2010 to 2014, despite the clear mandate of the Right of Children to Free and Compulsory Education Act, 2009; (c) to direct the respondent authorities to forthwith make recruitment of as may Teachers/Vidyasahayaks for the subject of Social Studies in Std. 6 to 8 as has been made for the subjects of Maths – Science and Languages during the years 2010 to 2014; (d) to quash and set aside the impugned Advertisement dtd. 20112014 as per Annexure-G in so far as and to the extent of the vacancies notified for the subjects of Maths – Science and Language; (e) to direct the respondents and their agents and servants to forthwith make recruitment of atleast 10000 candidates for the subject of Social Studies in Std. 6 to 8 and till then they may be restrained from making any recruitment for the subjects of Maths – Science and Language; (f) to restrain the respondents, their agents and servants from giving options to the existing Teachers/Vidyasahayaks of Std. 1 to 5 for being appointed as Teachers/Vidyasahayaks of Std. 6 to 8 if they are not satisfying the requirements of B.Ed. And TETII as per the statutory provisions laid down by National Council for Teacher Education (NCTE); (g) PENDING THE HEARING AND FINAL DISPOAL OF THIS PETITION, BE PLEASED to stay the impugned Advertisement dtd. 1 to 5 for being appointed as Teachers/Vidyasahayaks of Std. 6 to 8 if they are not satisfying the requirements of B.Ed. And TETII as per the statutory provisions laid down by National Council for Teacher Education (NCTE); (g) PENDING THE HEARING AND FINAL DISPOAL OF THIS PETITION, BE PLEASED to stay the impugned Advertisement dtd. 20-11-2014 as per Annexure-G in so far as and to the extent of the vacancies notified for the subjects of Maths – Science and Language; (h) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents and their agents and servants to forthwith make recruitment of atleast 10000 candidates for the subject of Social Studies in Std. 6 to 8 and till then they may be restrained from making any recruitment for the subjects of Maths – Science and Language; (i) To grant any other appropriate and just relief/s;” 6.1 Reading of the prayers would indicate and we affirm the view of the learned Single Judge that 49 candidates have come before this court contending that there were only 800 vacancies notified for the subject of Social Studies which causes serious prejudice to the remaining 10,000 candidates atleast who aspired to be selected for the post of teachers in Social Studies. With respect to the learned counsel for the appellant, the prayer of such a nature in a petition under Article 226 seeking a declaration that apart from the candidates who are the petitioners, a remaining approximately 10000 aspiring candidates waiting for being selected have had their rights violated, is a prayer in the realm of surmises and conjectures and therefore it cannot be so considered by this court in a petition under Article 226 of the Constitution of India. 6.2 Perusal of the reasonings from para 16 of the order of the learned Single Judge would also indicate that the learned Single Judge and in our opinion rightly so, has held thus: “16. From the background of the facts and considering the rival submissions, it is evident that number of posts, which have been advertised for the teachers in Social Science are 800 as against which, the petitioners are 49, who have already applied for being considered. Therefore, the right of the petitioner to be considered as eligible candidates has not been affected and they stand every chance for consideration. Therefore, the right of the petitioner to be considered as eligible candidates has not been affected and they stand every chance for consideration. Therefore as rightly submitted, one fails to understand that how the petition could be filed or maintained on the ground that if there are large number of posts advertised then, they stand on a better chance for consideration. Again if the petitioners are claiming the direction for the compliance with the requirement of Education Act, 2009 then, it would be in the realm of PIL. If the petitioners have filed this petition as interested persons, who have also filed the application/forms pursuant to the advertisement for the posts of teachers for the Social Studies, then they have only right to be considered. Therefore, the petition cannot be permitted to approbate and reprobate taking a totally different or self contradictory stand.” 7. True it is that the schedule to the Right to Education Act indicates that for 6th class to 8th class, there has to be atleast one teacher per class so that there shall be atleast one teacher each for Science, Maths, Social Studies and languages, the argument cannot be stretched thus far as canvassed by the learned counsel before the appellant that there should be a teacher one each for the languages, science, maths and social studies and therefore the argument that the ratio of vacancies are lopsidedly advertised so as to do injustice to the subject of Social Studies. 8. By demonstrating through a table at page 10 of the petition, it is sought to be canvassed that in the subject of Social Studies, less posts are advertised as compared to that of Maths and Science, however, it comes out from the affidavit-in-reply and from the data that the student teacher ratio for standards 6 to 8 is just 26.90. It will be apt to reproduce the contents of the affidavit-in-reply filed in compliance of the order of the learned Single Judge dated 05.08.2019. “2. It is most respectfully submitted that as far as schedule to the Right to free and Compulsory Education Act, 2009 is concerned, for classes 1 to 5 and 6 to 8 provide the requirement of number of teachers. “2. It is most respectfully submitted that as far as schedule to the Right to free and Compulsory Education Act, 2009 is concerned, for classes 1 to 5 and 6 to 8 provide the requirement of number of teachers. As far as student-teacher ratio is concerned, the requirement is 1 teacher for every 40 students in the lower primary (standard 1 to 5) and 1 teacher for 35 students in upper primary (standard 6 to 8). The present situation indicating the number of teachers against the number of students and availability of teacher per student is indicated by way of chart herein below: Particular Standard 1 to 5 Standard 6 to 8 Standard 1 to 8 Student 32,07,522 19,19,977 51,27,499 Teacher 1,16,117 71,378 1,87,495 Student-Teacher ratio 27.62 26.90 27.35 3. It is submitted that as per G.R. Dated 16-02-2012 & 19-02-2014, Teachers/Vidhya-Sahayak are also absorbed by giving options. As on 01-10-2014, total 6741 Teachers/Vidhya-Sahayak absorbed by giving options for the Subject of Social Science. It shows that required numbers of Teacher/Vidha-Sahayak are filled by Giving options and Direct Recruitment process. Therefore, it cannot be said that no sufficient teachers are available for the subject of Social Science. Copy of the G.R. dated 16-02-2012 & 19-02-2014 are Annexure here to and marked as Annexure R-1. However, from the year-2010 to year-2018 such advertisements were published for Maths-Science, Social Science and Language as per below table: Vacancies Advertised for std 6 to 8 (Gujarati & other medium) Sr. No. Date of Advertisement Total Vacancies Notified Maths/Science Languages Social Studies 1 28-05-10 10000 5000 5000 - 2 15-07-11 13000 6500 6500 - 3 24-09-12 8800 3000 2300 3500 4 20-11-13 6000 6000 - - 5 20-11-14 4351 3003 548 800 6 03-12-15 921 542 166 213 7 18-12-15 1079 458 334 287 8 22-01-17 6000 2943 1488 1569 9 13-06-18 484 341 63 80 10 15-10-18 3262 2166 502 594 Total 53897 29953 16901 7043 4. It is respectfully submitted that the appellants are seeking directions for appointment of teachers for the subject of Social Science. It would be appropriate to submit at this stage that as far as the weightage and number of classes which are undertaken weekly for subjects is required to be considered by this Hon'ble Court. Following is a chart indicating the time table of a class for a week. Sr. It would be appropriate to submit at this stage that as far as the weightage and number of classes which are undertaken weekly for subjects is required to be considered by this Hon'ble Court. Following is a chart indicating the time table of a class for a week. Sr. No. Subject Teacher Subject Classes which are undertaken in a week Subject Teacher’s workload Workload Percentage Std. 6 Std. 7 Std. 8 Total 1 Maths Science Maths 7 7 7 21 42 35% Science 7 7 7 21 2 Language Hindi 5 5 5 15 60 50% English 6 6 6 18 Sanskrit 2 2 2 6 3 Social Science Social Science 6 6 6 18 18 15% Total 40 40 40 120 120 100% Therefore, it is humbly submitted that a Teacher is required to take 42 classes of Maths and Science each, 60 classes of Language and 18 classes of Social Science. Considering the schedule of weekly classes more teachers are required for the subject of Maths, Science and Language as compared to Social Science. It is humbly submitted that considering the first chart to the affidavit it is indicative of the ratio which was required to be maintained by 1 teacher for 40 students and 1 teacher for 35 students in the lower and upper primary respectively. The State has so far maintained a ratio of approximately 1 teacher for 27 students as is indicated in the first chart.” 9. Comparative tables would therefore indicate that from the workload set out in the tabular form, the Social Studies’ subject workload is much lower than the workload of the subjects of Maths and languages and therefore the argument of being given a step-motherly treatment in the subject of Social Studies as far as recruitment is concerned, is something that cannot be accepted. The learned Single Judge therefore has considering this aspect of the affidavit-in-reply and the arguments of Mr. Pujara, learned advocate for the appellants held thus: “18. Learned advocate, Shri Pujara has referred to and emphasized the word “one teacher each for Science, Mathematic and Social Studies, meaning thereby, he has tried to emphasis that equal number of teachers per class. Whereas learned AGP Shri Raval has stated that one teach per class is provided, meaning thereby, if one teacher is appointed, it would be sufficient and there has to be a teacher for different subjects. Whereas learned AGP Shri Raval has stated that one teach per class is provided, meaning thereby, if one teacher is appointed, it would be sufficient and there has to be a teacher for different subjects. For that purpose, it is evident that if there are three classes and three teachers are appointed then, it would be sufficient with the requirement inasmuch as the teachers could be rotated interse for different class and for different subjects and there would be a sufficient compliance with the requirement of the schedule that one teacher is provided for per class and at the same time, three teachers with different branches like Science, Social Studies and Language could be rotated for three different classes for the purpose of taking class. Therefore, the submissions which have been made by learned advocate, Shri Pujara with reference to number of teachers is misconceived. 19. Again reference is made to number of vacancies relying upon the additional affidavit and the statement provided that there are large number of vacancies, which have been fulfilled and he has tried to submit that about 10,000 vacancies for Social Science teachers are to be filled in, cannot be readily accepted. Note and the minutes of the meeting of the respondent-State produced along with the affidavit would clearly suggest that they have made efforts and the requirements are sought to be fulfilled with the preparation of the recruitment calendar. 20. Again the emphasis by learned advocate, Shri Pujara referring to the affidavits that large number of vacancies are remaining unfilled up cannot be accepted in light of the statement, which has been produced by learned AGP Shri Raval during the course of hearing, which summarizes district-wise and subject-wise details of the vacancies, which is not matching with the vacancies reflected by the petitioners. There may be some imbalance inasmuch as for the Science and Mathematics, there are 4906 vacancies, whereas for Language teacher, it is 2,330 and for Social teacher, it is 3,658. Therefore in all, 10,000 vacancies are to be filled up and not 10,000 vacancies for the Social Science teachers only as sought to be canvassed. 21. There may be some imbalance inasmuch as for the Science and Mathematics, there are 4906 vacancies, whereas for Language teacher, it is 2,330 and for Social teacher, it is 3,658. Therefore in all, 10,000 vacancies are to be filled up and not 10,000 vacancies for the Social Science teachers only as sought to be canvassed. 21. Further assuming without admitting the aspect of statutory requirement or the obligation under the Education Act, 2009 and also the observations made by the Hon’ble Apex Court, it is required to be appreciated that it is in the realm of the policy, where the respondent-Government is obliged to take necessary steps in compliance with the statutory obligation. Again inspite of the efforts, due to resources or many other constraints, it may not be possible to achieve standard or to fulfill the obligation, for which, the direction under Article 226 of the Constitution of India would not be justified. Therefore assuming that there are obligation under the Education Act, 2009 and there remain certain obligation to be fulfilled, the court would restrain itself from passing necessary direction as prayed for without any basis or detailed material with regard to the number of vacancies available inasmuch as as explained in affidavit-in-reply, teachers, who are already surplus, may have to be accommodated, which would otherwise generate litigation and, therefore, if the surplus teachers are accommodated, number of posts to be filled in also get reduced. Therefore, it is a complex issue which is better left to the administrative exigency for the purpose of implementation of the policy and the compliance with the statutory obligation under the Education Act, 2009. It may be added that the statutory obligation particularly like the Education Act, 2009 may not be condoned or may not be readily overlooked but it could be permitted to be complied with in phase manner with some breathing time. Even the Hon’ble Apex Court in a judgment in case of Environmental and Consumer Protection Foundation Vs. Delhi Administration & Ors., reported in (2012) 10 SCC 204 referring to the same Education Act, 2009 has issued direction and as could be seen, the directions have been given from time to time. It is also required to be noted that these directions have more focused on the infrastructure and facilities like toilet facility etc. Delhi Administration & Ors., reported in (2012) 10 SCC 204 referring to the same Education Act, 2009 has issued direction and as could be seen, the directions have been given from time to time. It is also required to be noted that these directions have more focused on the infrastructure and facilities like toilet facility etc. Therefore as the petitioners have not been able to point out with necessary details or data for non-compliance with the statutory obligation under the Education Act, 2009 and considering the affidavit along with the statement with regard to non-filled vacancies as stated in chart given by the respondent authorities, it could be a matter for the respondent to take suitable measures within time framed to fulfill the statutory obligation in its true spirit and the court declines to interfere in exercise of discretion under Section 226 of the Constitution of India in absence of specific details couple with other aspects. It is required to be mentioned that there may be a various aspects, which may have to be considered like the surplus teachers are required to be accommodated, which may have some bearing on fulfillment of the posts. Similarly whenever there are such issues for the compliance with the obligation under the statute, there have always been a gap between the resources infrastructure and necessary obligations with which the State is required to discharge its duty. For that matter, whether it is an aspect of judicial appointment or appointment of Doctor in Primary Health Center, and whether it is any other obligation under the Directive Principles of the State Policy, it may not be possible to have the fulfillment in spite of the efforts. Within this circumstances, pragmatic approach is required for the implementation in the phase manner which in turn would require some play in the joint to be allowed to the respondent- Government subject to some time and broader policy or the commitment to be made. Therefore, it would be in the fitness of things that if the present petition is disposed of as dismissed subject to rider that as stated in the minutes of the meeting and the statement produced on record by the Government showing deficiency and unfulfilled posts are admitted to be filled in a phase manner.” 10. For the aforesaid reasons therefore, we do not find any merits in the appeal and the same is therefore dismissed. For the aforesaid reasons therefore, we do not find any merits in the appeal and the same is therefore dismissed. Notice of admission is discharged.