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2025 DIGILAW 1069 (GUJ)

Ishitaba Jaydevsinh Zala v. State of Gujarat

2025-09-16

NIKHIL S.KARIEL

body2025
ORDER : 1. Heard learned Advocate Mr. Ishan Joshi on behalf of the petitioner and learned Assistant Government Pleader Mr. Aditya Pathak on behalf of respondent-State. 2. By way of this petition the petitioner challenges decision of the respondent authority of not continuing with the candidature of the petitioner for selection of schools, inspite of the fact that the petitioner was a candidate who had qualified in the substantive selection. 3. The case of the petitioner being that the petitioner, had applied to the post of Assistant Teacher (Computer), in a selection process, initiated by the respondents for the post in question, vide advertisement dated 25.09.2024. It is the case of the petitioner that name of the petitioner figured at Sr. No. 59 in the provisional merit list no.1 and provisional merit list no. 3.1. It is the case of the petitioner that after the provisional merit list no. 2 was published, the respondent had called for preference of school from the aspiring candidates, and whereas the petitioner had given her preference on 08.06.2025. It appears that thereafter, the petitioner could not access her details on the online portal and whereas vide a communication dated 27.06.2025, the respondent selection committee had inter alia given a list of reasons for which candidatures have been rejected one of them being that the candidate had only given a limited number of choices in her school selection and whereas since the candidate could not be posted to such school therefore the candidate has been removed from the remainder of the selection process. 3.2. It is the case of the petitioner that said issue stands covered by judgement of this Court dated 11.03.2022 in Special Civil Application No. 7401 of 2021 and whereas it is submitted that the law laid down by this Court in the said decision being categorical, it was not open for the respondents, being the same selection committee, to have continued with the same ground for rejection inspite of such a ground now no more being available with the respondents. 4. As against the same, the present petition is vehemently opposed by learned AGP Mr. Mitul Gautam who would submit that the petitioner having not given adequate choices, the respondent no. 2 Board as the selection committee was well justified in rejecting the candidature of the petitioner for taking part in the remaining selection process. Learned AGP Mr. 4. As against the same, the present petition is vehemently opposed by learned AGP Mr. Mitul Gautam who would submit that the petitioner having not given adequate choices, the respondent no. 2 Board as the selection committee was well justified in rejecting the candidature of the petitioner for taking part in the remaining selection process. Learned AGP Mr. Gautam would further submit that the law laid by this Court in the decision refereed to hereinabove, has already been subjected to challenge before Hon’ble Division Bench and whereas it is submitted that the petitioner may not be permitted to rely upon the said judgement. Thus submitting learned AGP would request this Court not to entertain this petition. 5. Considering the submissions made by learned Advocates for the respective sides, it would appear to this Court that the issue as to whether a candidate who is successful in a selection process, could be ousted from the selection process just because the candidate had given limited choices for being posted, has been considered by this Court in the decision referred to hereinabove, in case of Patel Sonambahen Vasantbhai vs. State of Gujarat. Relevant portion of the said judgement, more particularly paragraphs no. 4.2, 4.3, 10.1, 11, 12, 12,1, 12.2, 13, 14, 15, 16,16.1, 17, 18, 19, 20, 21, 24[2] being relevant for the present purpose are reproduced hereinbelow: “4.2 It is the case of the petitioner that respondent – Gujarat State Secondary and Higher Secondary Education Academic Staff Recruitment Selection Committee, ( hereinafter referred to as the Selection Committee) issued advertisement dated 15.01.2021 being Advertisement No. 17 of 2021 inviting applications for recruitment of Shikshan Sahayak to be appointed in grant-in-aid Higher Secondary School. The petitioner had submitted her online application along with necessary documents and whereas the petitioner was directed to remain present at Dahod for document verification on 09.03.2021. During document verification a communication had been given to the petitioner as had been given to other candidates with regard to the proposed recruitment process which would be held thereafter and instructions to the candidates as regards the further recruitment process. Such communication being signed by respondent no.3. It is the case of the petitioner that after document verification the respondents had published a Provisional Merit List No. 2 (PML-2) with regard to candidates selected in recruitment for grant-in-aid Higher Secondary Teachers. The petitioner’s name figured at Sr. Such communication being signed by respondent no.3. It is the case of the petitioner that after document verification the respondents had published a Provisional Merit List No. 2 (PML-2) with regard to candidates selected in recruitment for grant-in-aid Higher Secondary Teachers. The petitioner’s name figured at Sr. No. 188 in the Provisional Merit List No. 2 (PML-2) which list was the merit list, and whereas though the petitioner belonging to the Economically Weaker Section (EWS) category, since the petitioner had secured high marks therefore her name figured in the merit list in the unreserved category. The petitioner states that the merit list comprised of 212 candidates and whereas in terms of the communication given at the stage of document verification as well as in terms of the instructions to candidates of PML-2, the candidates in the merit list were directed to submit their preference with regard to the place / school where they would want to be posted. 4.3 It is the case of the petitioner that the petitioner had in the online process given choices for upto 50 schools out of total 212 choices that every candidate had. It is the case of the petitioner that the respondents published list of selected candidates with the name of the school where they were appointed and whereas the name of the petitioner not figure in the said list and the name of of the petitioner figured in a list of candidates published on 12.04.2021 under heading “candidate out due to no choice or limited choice”. The petitioner having submitted a representation against such non- appointment and requesting the respondents to consider the case of the petitioner for appointment in the EWS category such representation having not being considered by the respondents the petitioner has preferred the present petition. 10.1. The Recruitment Rules being “The Teachers and Head Masters in the Registered Private Secondary and Higher Secondary Schools ( Procedure for Selection ) Rules, 2011” inter alia envisages that the Selection Committee known as “The Gujarat State Secondary and Higher Secondary School Educational Staff Recruitment Selection Committee” shall be constituted. 10.1. The Recruitment Rules being “The Teachers and Head Masters in the Registered Private Secondary and Higher Secondary Schools ( Procedure for Selection ) Rules, 2011” inter alia envisages that the Selection Committee known as “The Gujarat State Secondary and Higher Secondary School Educational Staff Recruitment Selection Committee” shall be constituted. The constitution of the Selection Committee having been mentioned in the Recruitment Rule itself, the scope of the Selection Committee was to select persons for appointment on the post of teacher and headmasters in registered private schools amongst persons who are qualified to be appointed in accordance with the provisions of the rules in question. Rule (5) of the recruitment rules lays down the duties and function of the Selection Committee. The Selection Committee having been empowered to ascertain the number of posts of Head Masters and Teachers for which recruitment is to be made. That the Selection Committee was further empowered to invite applications by issuance of advertisement in English and Gujarati Newspaper having wide circulation in the State. The Selection Committee has been empowered to scrutinize applications received and recommend names of selected candidates for appointment to the concerned District Education Offices and management of concerned schools. The Selection Committee was required to maintain record of recommendations, submit annual reports of the activities undertaken by it to Government in Education Department and be responsible for such other functions as may be entrusted by the Government from time to time. 11. The Recruitment Rules further envisages the methodology whereby applications of candidates are to be scrutinized and how the select list is to be prepared and further as to how the candidate is to be appointed. The Recruitment Rules at Rule No. 7 sets out the eligibility required for being appointed as Teachers and Head Masters as the case may be. Rule No. 9 states with regard to how the application is to be made by a candidate. Rule 10 states with regard to scrutiny of applications. Rule 11 states with regard to preparation of the select list and waiting list. Rule 12 states with regard to preparation of three different lists being a select list of qualified candidates, a waiting list and a list of unqualified candidates. Rule 13 states with regard to appointment of candidates. 12. Rule 10 states with regard to scrutiny of applications. Rule 11 states with regard to preparation of the select list and waiting list. Rule 12 states with regard to preparation of three different lists being a select list of qualified candidates, a waiting list and a list of unqualified candidates. Rule 13 states with regard to appointment of candidates. 12. At this stage it would be relevant to mention that since the aspect with regard to the petitioner being selected on merit and her name appearing in the provisional merit list, not being in dispute, the provisions of the Recruitment Rules with regard to the said aspects have not been discussed in detail. 12.1 Rule 13 as stated hereinabove states with regard to appointment of candidates. Rule 13(1) states with regard to document verification. Rule 13(2) states with regard to the Selection Committee conveying the list of vacant posts to the selected candidate and invite options from the candidate. It is further envisaged that the Selection Committee shall offer a place of posting to the selected candidate taking into consideration his options and his merit. Rule 13(3) inter alia envisages that a candidate failing to appear for verification of certificate or at the camp held for the purpose of posting, then the name of the candidate being deleted from the select list. Rule 13(4) envisages that the allotment letter for the post of selected candidate shall be issued by the Selection Committee in the camp itself and a copy shall be sent to the concerned private schools for appointment of the candidate and to the concerned District Education Officer. Sub Rule 13(5), (6), (7) and (8) are not relevant for the purpose of present petition and therefore the same are not being touched upon in this judgement. 12.2 Bare reading of sub rules 13(1) to 13(4) inter alia envisages the mode of offering a place of posting to the selected candidate and the exercise which is to be carried out by the Selection Committee. 12.2 Bare reading of sub rules 13(1) to 13(4) inter alia envisages the mode of offering a place of posting to the selected candidate and the exercise which is to be carried out by the Selection Committee. While it is undoubtedly true that the Selection Committee is empowered to invite options from the selected candidates but such granting of options, would not stretch the power available to the Selection Committee to even disqualify a candidate whose options have already been opted for by candidates having more merit, rather Rule 13(2) clearly envisages that the Selection Committee shall offer a place of posting to the selected candidate taking into consideration his option and his place in the merit list. Thus the Recruitment Rules envisage that the Selection Committee would be required to balance between the options given by the candidate and the merit rank of the candidate. What would be further relevant to note here is that the Selection Committee is required to hold a camp for the purpose of posting and appointment letter for that posting is to be issued to the candidate in the camp to be held by the Selection Committee. 13. Thus from the overview of the Recruitment Rules as above, it would become abundantly clear that the Recruitment Rules except for not providing an adjudicatory mechanism has provision for every and all eventualities and requirements in itself inasmuch as in addition to having laid down the qualifications and experience for candidates to apply for selection to the post of Teachers and Head Masters in registered private secondary and higher secondary schools, the rules further envisage formation of Selection Committee, constitution of Selection Committee, functions and duties of the Selection Committee, the mode and method for considering the application, selection of candidates, preparation of select list, waiting list and list of unqualified candidates, the method of offering appointment and also the general proposition with regard to selection. 14. Insofar as, the present controversy is concerned, viewed from the angle of the comprehensive Recruitment Rules, it becomes clear that the scope of the duties and functions of the Selection Committee were clearly circumscribed i.e. to state that the Selection Committee did not have vast and unbridled powers with regard to the selection rather the Selection Committee was to operate within the framework as set out in Rules. However, expansively and liberally one may read the duties and functions of Selection Committee, as per the Recruitment Rules, one does not find any power with the Selection Committee to frame any instructions governing choice to be made by selected candidates for selecting their preferred school for posting. 15. Furthermore, the Recruitment Rule envisages that the Selection Committee shall offer a place of posting to the selected candidate taking into consideration his options and his merit position. The power to disqualify a candidate after selection was available with the Selection Committee only if the candidate did not appear for document verification or the candidate did not appear in the Camp held for posting. Thus, the Rules do not envisage any power available to the Selection Committee to disqualify a candidate based on limited number choices being given by the candidate and the same being opted by the candidates more meritorious than the candidate concerned. 16. The rules also envisage holding of a Camp for the purpose of posting. Such camp was to be held by the Selection Committee and the allotment letter for posting of the selected candidate was to be issued to the candidate at the camp itself. In the instant case, while there is no reference to any camp held by the Selection Committee but it becomes clear that by virtue of instructions which were dehors the provisions of the Recruitment Rules and which were clearly beyond the power and duty of the Selection Committee as envisaged in the recruitment rules, the present petitioner has been ousted on a ground that she has not given 100 % options and whatever options had been given by the candidate had already been given by the candidates more meritorious than the candidate i.e. present petitioner. 16.1 In the instant case, it appears that the Selection Committee had published list of instructions for filling up of the preference for schools and also further the Selection Committee had also intimated these instructions to the candidates at the stage of document verification. Pertinently, the instructions contained were beyond the competency of the Selection Committee to issue a clear overreach of the Recruitment Rules itself. The Recruitment Rules had clearly set out the power and duties of the Selection Committee. The power to frame any instructions are not found in the Recruitment Rules. Pertinently, the instructions contained were beyond the competency of the Selection Committee to issue a clear overreach of the Recruitment Rules itself. The Recruitment Rules had clearly set out the power and duties of the Selection Committee. The power to frame any instructions are not found in the Recruitment Rules. Thus, the Selection Committee having framed instructions was clearly acting beyond its power or competence as circumscribed and stated by the Recruitment Rules. 17. The instructions by the Selection Committee requiring the candidate to give preference and while giving 100% preference was not mandatory as specifically stated in the instructions itself but at the same time, the instructions envisaged candidature of the candidate concerned not being placed in the selection list and not allotted any school on account of limited choices by the candidate. In the considered opinion of this Court the Selection Committee did not have any competence to issue such instructions informing the candidates about online school selection procedure, the same not being envisaged in the Recruitment Rules and furthermore the Selection Committee not at all being empowered to disqualify a candidate on basis of lack of choices given by the candidate concerned. As noted hereinabove, the Recruitment Rules more particularly Rule 13(2), whereby it is envisaged that a selected candidate not remaining present for document verification at the Camp held for posting being disqualified. The Recruitment Rules clearly envisaging only two contingencies where a selected candidate gets disqualified and merely by framing an instruction, it was beyond the competence of the Selection Committee to envisage a third stage of disqualification of selected candidate. Furthermore having regard to the above the Recruitment Rules being statutory in nature would prevail over the instructions issued by the Selection Committee which are in the nature of executive instructions, the instruction whereby a candidate stands disqualified upon the choices exercised by a candidate being opted by more meritorious candidates, it would be completely contrary to the recruitment rules and cannot be sustained at all. The legal position that executive instructions can only compliment statutory rules and cannot supplement or be dehors the said statutory rules no more being ‘res integra’ the aspect is not required to be explained any further. The legal position that executive instructions can only compliment statutory rules and cannot supplement or be dehors the said statutory rules no more being ‘res integra’ the aspect is not required to be explained any further. On the other hand as regards the principal question i.e. whether the petitioner could have been disqualified by the Selection Committee for not giving adequate number of choices, as observed hereinabove, the same in the considered opinion of this Court was beyond the competence and authority of the Selection Committee. The Selection Committee in such a situation where the Selection Committee itself had made 100% choice not being mandatory, ought to have given a meritorious candidate option of choosing from the unfilled vacancies which had not been filled on account of none of the candidates opting for the same or on account of candidates who having opted for the vacancy but later was not reported, so on and so forth. This was required to ensure that inspite of meritorious candidate not being appointed on account of more meritorious candidates having opted for the vacancies, which had been opted by the candidate concerned. As such in the considered opinion of this Court, such situation should not and ought not to have resulted in the ouster of the candidate herself because in the considered opinion of this Court such situation would leave aspect of a selected candidate getting appointment as a matter of chance, which is a position beyond comprehension and an anathema to service jurisprudence. 18. In a scenario like present where the candidates are given the option to select a place of posting of their choice, as rightly stated in the Recruitment Rules, the posting could be offered to the candidate taking into consideration his option and his merit position. That except candidate at Sr. No. 1 who is normally assured of getting posting to his/her first choice, for all the subsequent candidates, a place of posting, is a matter of chance based upon their merit position i.e to state that the more lower down in the merit position a candidate is the higher are the chances against such candidates for not getting place of posting as per the initial or primary choice of the said candidate. What would be relevant to mention here is that while a place of posting in case where the candidate has an option of giving choice or even otherwise is always a matter of chance depending on various factors, at the same time appointment per se cannot be and ought not to be a matter of chance. A successful candidate cannot be left without an order of appointment on the ground that the choices offered by the candidate concerned had already been opted for by other meritorious candidates and therefore there is no place available as per choice of the candidate to post her. Such a situation in the considered opinion of this Court smacks of arbitrariness. 19. At this stage, this Court also fails to appreciate as to why the Selection Committee could not have offered appointment to the petitioner to any other vacancy beyond the choice of the petitioner. In a scenario where all the choices given by the petitioner had already been opted by the candidates more meritorious than the petitioner, then also there would be one post vacant. To clarify it is stated that total 213 candidates figured in the Provisional Merit List-2 and such candidates were given a choice of opting for a place of posting in an online process. Assuming a situation that all 212 remaining candidates would have given 100% options and they could be accommodated in place of their choice, yet even thereafter there would be one vacancy remaining since there were in all 213 posts. The question is why could not the Selection Committee offer appointment to the petitioner in that remaining seat since the petitioner was even otherwise eligible and entitled to claim for appointment. 20. Furthermore, a question would also arise that why the petitioner whose name figured in the merit list could not be offered appointment upon any candidate in the select list not opting for appointment. This question acquires significance since record would show that candidates who were allotted posting at the school opted for by the petitioner as her third and 46 th choice had not reported to the said post. The posts thereafter had been provided to candidates at Sr. No. 1 and Sr. No. 2 in the waiting list. This question acquires significance since record would show that candidates who were allotted posting at the school opted for by the petitioner as her third and 46 th choice had not reported to the said post. The posts thereafter had been provided to candidates at Sr. No. 1 and Sr. No. 2 in the waiting list. The question is since the petitioner having opted for certain choices and such posts being allotted to candidates more meritorious than the petitioner, resulting in the ouster of the petitioner, then why should not those choices of the petitioner upon remaining vacant on account of the candidate choosing not to join, be offered to the present petitioner. This question though relevant and crucial, but absolutely avoidable, has cropped up on account of the fact that the Selection Committee had exercised power beyond their ambit and had issued instructions without considering the consequences and ramification of such instructions. 21. At this stage, it would be further apposite to state that the instructions, more particularly, the instructions in question here, were also completely ambiguous, arbitrary and illogical inasmuch as, on one hand, the Selection Committee had stated that filling up 100% of choices was not necessary and on the other hand it was mentioned that in case the choices given by the candidate were opted for by more meritorious candidates then the candidate would not be entitled for a posting order. A candidate being offered appointment, would be at loss to appreciate the intent of the Selection Committee as to whether the Selection Committee wanted the candidate to give 100% choice or not more particularly the instructions having not made 100% choice i.e. giving of 100% preference in all vacancies as being mandatory. It was therefore absolutely arbitrary on the part of the Selection Committee to have disqualified a candidate who gives less than 100% preference but in those cases candidates having more merit have opted for posting to all the vacancies opted by candidate concerned, more particularly when the Selection Committee having not mandatorily required the candidate to submit preference for all vacancies. 24. 24. Having regard to the discussion, reasoning and conclusion as above, the questions raised by this Court, at paragraph [9] are answered as below: [2] The instructions that a candidate not being entitled for appointment in case the choice given by the candidate has already been filled up by more meritorious candidate was clearly dehors the recruitment rules since the recruitment rules only gives the power to the Selection Committee to disqualify a candidate at that stage only for not appearing for document verification or at the camp held for the posting.” 6. Considering the observations of the Court in the earlier decision, it would clearly appear that in a similar situation, while this Court had come to a conclusion that the authorities would be precluded from ousting a candidate, from being offered appointment on the ground that the choice of posting opted by the candidate, had already been selected by candidates more meritorious than her and whereas this Court had also deprecated such practice more particularly whereby this Court had lamented upon the purpose for such an instruction being introduced by the selection committee. 7. Insofar as the submission that the judgement referred to hereinabove may not be relied upon since an appeal is pending, to this Court it would appear that the same may not be correct a legal proposition. Any decision unless it is stayed or set aside, retains its original efficacy and is a precedent which could be rightly relied upon being the correct position of law, the submission of the learned AGP cannot be countenanced. 8. Having regard to the above, observations, while to this Court it would appear that the stand taken by the respondents that the petitioner would be disqualified and ousted from the selection process, could not be countenanced yet, the question would also arise as to the circumstances under which, inspite of a decision of this Court of the year 2022 deprecating the practice, by the very selection committee yet, the selection committee has continued to refer to the very selfsame instructions. Under such circumstances, the following directions are passed: [1] Decision dated 27.06.2025 insofar as it cancels the candidature of present petitioner ( not specifically) on the ground that the choices offered by the candidate for posting, having already been taken up by other candidates, therefore, the candidate concerned would now be precluded from continuing in the remaining part of the selection process is hereby quashed and set aside. [2] Necessary consequences including, incorporating the name of the petitioner in the select list and giving her choice for posting shall follow. [3] Appropriate follow up action to be taken by the respondents within a period of four weeks from the date of receipt of this order. [4] Cost quantified at Rs. 50,000/- is imposed upon the respondent no. 2, to be deposited with the Gujarat High Court Legal Services Authority within a period of four weeks failing which it will be open for the Legal Services Authority to initiate appropriate proceedings under the law against the Chairman of the Selection Committee. 9. With the above observations and directions the petition stands allowed. Consequently civil application stands disposed of. Direct service is permitted.