Gujarat High Court
Bhavikaben Prabhatsinh Patel vs State Of Gujarat on 3 December, 2025
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8292 of 2018
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 8292 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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BHAVIKABEN PRABHATSINH PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MS. FORUM B. SUKHADWALA, AGP for the Respondent(s) No. 1,2,4
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/12/2025
ORAL JUDGMENT
1. The present writ petition is filed under Article 14, 16, 21 and 226 of the Constitution of India, inter alia, seeking the following reliefs:
"(A) Direct the respondent authorities to consider the case of the petitioner for appointment on the post of Shikshan Sahayak in Government Secondary Schools pursuant to the advertisement at Annexure-A to this petition, and further be pleased to direct the respondent authorities to appoint the petitioner on the said post pursuant to the selection Page 1 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined order issued to the petitioner, with all the consequential benefits including deemed date of appointment, and (B) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to direct the respondent authorities to permit the petitioner to join the duty as per the selection order issued to the petitioner, subject to the outcome of the present petition, and (C) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to keep vacant one post of Shikshan Sahayaks in Model School, Taluka: Dhanpur, District:
Dahod, which is already allotted to the petitioner, and/or (D) Pending admission and final disposal of this petition the Honourable Court may be pleased to restrain the respondent authorities from filling up the wacant posts of Shikshan Sahayaks in the subject of Maths/ Science, till the final disposal of this petition, and (E) Award the cost of this petition, and (F) Grant any other relief of pass any other order which the Honourable Court may consider as just and proper in the facts and circumstance of the case and in the interest of justice."Page 2 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025
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2. Heard Ms. Prachi Upadhyay, learned advocate appearing for Mr. Vaibhav Vyas, learned advocate for petitioner and Ms. Forum B. Sukhadwala, learned Assistant Government Pleader for the respondents-State, at length.
3. SUBMISSIONS ON BEHALF OF PETITIONER:
3.1 At the outset, learned advocate Ms. Upadhyay would submit that issue germane in this matter is squarely covered by the two decisions of this Court; id est, (i) judgment dated 24.09.2024 passed by the Division Bench of this Court in Letters Patent Appeal No. 752 of 2020 and allied matter and, (ii) order dated 20.12.2024 passed by the Co-ordinate Bench of this Court passed in Special Civil Application No. 9961 of 2017 and allied matters, whereby this Court after appreciating the fact, held that if a person having Bachelor's Degree in Science any stream with Bachelor's Degree in Education, such person is eligible to be appointed as a teacher for Maths/Science in secondary school as "Shikshan Sahayak". 3.2 Learned advocate Ms. Upadhyay would submit that as petitioner is possessing Bachelor's Degree in Biology Page 3 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined with Bachelor's Degree in Education, i.e. B.Sc. (Biology) with B.Ed., having applied for said post and as such found meritorious thereby, put in selection/merit list by respondent authority, then petitioner eligible to get appointment on said post. Nonetheless, petitioner having denied such appointment on the ground which now no longer survived, such action of respondents is nothing but violative of Articles 14, 16 and 21 of the Constitution of India.
3.3 So, learned advocate Ms. Upadhyay would request to grant prayers so made in this petition.
4. SUBMISSIONS ON BEHALF OF RESPONDENTS-
STATE:-
4.1 Per contra, Ms. Sukhadwala, learned Assistant Government Pleader for the respondents-State is unable to refute such principal submission, so canvassed by learned advocate for the petitioner, as not disputed that aforesaid issue germane in this matter would stand covered by aforesaid decision.
4.2 Nonetheless, learned AGP has drawn the attention Page 4 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined of this Court that apart from the aforesaid issue, petitioner would not entitle to be appointed as she was not possessing non-creamy layer certificates as on the date of submitting her application and/or at the time of her call of appointment, inasmuch as, such certificate ought to have been obtained before 10.02.2017 as per clause-13 of impugned advertisement. It is submitted that such certificate has been obtained on 01.05.2017, thus, not to be seen.
4.3 According to learned AGP Ms. Sukhadwala, it is sine qua non to submit said certificate when petitioner to be appointed as Shikshan Sahayak on reserved category i.e. Socially and Educationally Backward Classes (hereinafter referred to as the "SEBC") and having not submitted requisite certificate as required, petitioner is not entitled to get any benefit as prayed in the present petition.
4.4 Making the above submissions, learned AGP Ms. Sukhadwala would request this Court to dismiss the present writ petition.
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5. REJOINDER SUBMISSIONS ON BEHALF OF PETITIONER:
5.1 In response to the above submissions, learned advocate Ms. Upadhyay would draw the attention of this Court that petitioner, having cleared B.Sc. in Biology and also having Master's degree in Biology, is eligible to be appointed as Shikshan Sahayak in Secondary School and as found meritorious thereby, her name found in the merit list. It is further submitted that when she received call from respondent authority to be appointed as Shikshan Sahayak, then on 29.4.2017, a request made by petitioner to the authority concerned that non-creamy layer certificate possessed by petitioner was old one and she may be permitted to submit new creamy layer certificate within a period of 10 days. It is further submitted that pursuant to the same, a fresh creamy layer certificate has been obtained by the petitioner on 01.05.2017 from competent authority and submitted along with her request application dated 6.5.2017 to respondent authority.
5.2 Learned advocate Ms. Upadhyay would respectfully submit that as such, submission of creamy layer Page 6 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined certificate along with application form was not sine qua non as contended by learned AGP, inasmuch as, vide letter dated 08.05.2017, District Education Officer, Dahod-
respondent No. 4 herein on getting fresh creamy layer certificate from petitioner recommended her case to the respondent No. 2 for her appointment. It is submitted that as per Clause-13 of the impugned advertisement, if such certificate requires to be submitted along with the application or on or before 10.02.2017, the authority concerned could not have processed the application and put the candidature of petitioner into the merit list. 5.3 Learned advocate Ms. Upadhyay would respectfully submit that it is not the case of the respondent that at the given point of time, the petitioner did not fall within the category of SEBC-non-creamy layer but too technical a contention raised by learned AGP, that too, without any supportive evidence to show that on getting the letter from the office of respondent No. 4, respondent No. 2 has either accepted or rejected such request, as the case may be.
5.4 Making the above submissions, learned advocate Ms. Page 7 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined Upadhyay would request this Court to allow the present writ petition.
6. No other and further submissions are being made by respective learned advocates.
ANALYSIS:-
7. At the outset, it is required to notice here that despite the fact that the present petition is filed in the year 2018 and admitted on 10.06.2019, till date, no reply has been filed by the respondent-State. Hence, only on this count alone and as such in view of above cited decisions of the Co-ordinate bench and Division Bench of this Court, the present writ petition could have been straightaway allowed by this Court as none of the contentions, so raised by the petitioner is controverted by respondents.
8. It is also very shocking and surprising to note that a person, who is going to be appointed as teacher by respondent authority, who also officiating the high office of the Education Department, not even thought it fit to Page 8 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined pass any formal order of rejection of candidature of petitioner on any grounds. This shows the complete callousness and arbitrariness on the part of the respondent authority in handling the cases of appointment that too of a teacher in secondary school. In absence of any written order that too lacks reasons when denied benefit to petitioner, this would be the second reason whereby, this Court can straightaway allow this petition.
9. Be that as it may, so far as the first so-called oral objection raised by the authority as regards not appointing petitioner on the post of Shikshan Sahayak that she was not possessing due qualification is concerned, such objection would no longer survive in view of aforesaid decisions of the Division Bench and Co- ordinate Bench of this Court, which have already dealt with such argument of respondent authority. So, I would not like to burden myself by quotations of relevant observations of aforesaid judgments into this judgment, especially when learned AGP has candidly accepted such position of law. Thus, it is hereby held that petitioner possessing requisite qualification to be appointed on the Page 9 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined post of Shikshan Sahayak in the subject of Maths and Science.
10. So far as the second limb of oral objection so raised by learned AGP is concern, although there is nothing on the record to show that candidature of petitioner would be cancelled by authority on the ground that she was not possessing valid SEBC - non-creamy layer certificate as unable to produce it on or before 10.02.2017. According to respondent, it was sine qua non to have such certificate obtained/issued before 10.02.2017. 10.1 Nonetheless, to appreciate such contention, as observed during the course of arguments and so also on perusal of the documents, which are made available on the record by the petitioner, would indicate that when petitioner received call from office of respondent No. 2 or 4 as regards to her selection on the post of Shikshan Sahayak having found meritorious, she requested to respondent authority vide her request letter dated 29.04.2014 to allow her to submit her caste certificate - SEBC (non-creamy layer certificate) within a period of 10 days. There is nothing on record to show such request Page 10 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined was out-rightly rejected by the respondent authority. 10.2 It can be seen that in no time, on 01.05.2017, petitioner in fact obtained such certificates, she submitted it on 06.05.2017 with respondent authority, which confirms that she would fall within the category/class of SEBC. Furthermore, on getting said certificate, the case of petitioner recommended by office of respondent No. 4 vide its order dated 08.05.2017, would itself suggests and shows that it was not sine qua non to obtain such certificate on or before 10.02.2017. 10.3 Moreover, when query raised by this Court and put to learned AGP as regards any further steps taken by the respondent No. 2 or any other higher authority pursuant to the aforesaid letter dated 08.05.2017 issued by the office of the District Education Officer, Dahod (respondent No. 4), learned AGP under the instruction of one Mr. Birju Joshi, Legal Analyst at Commissioner of School Department, Gandhinagar, who is present in the Court, replied that nothing has been done in regards to the aforesaid letter.
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NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined 10.4 It is also not out of place to mention that when petitioner has submitted her application to get appointed on said post (Annexure-E), there was a reference about her Creamy Layer Certificate given wherein Creamy Layer Certificate No. 57590/2015 and its date shown 01- Jan-2017 is provided in the application form. It may be true that petitioner as per her said request letter to obtain fresh certificate for which time sought and accordingly, she has submitted fresh certificate with respondent authority on 06.05.2017, thus, her case recommended on 08.05.2017 as aforesaid.
11. Having considered the aforesaid entire facts and circumstances of the case and in absence of any written order passed by respondent authority rejecting the candidature of petitioner on so called aforesaid lapses on the part of petitioner, according to my view, the aforesaid oral objections now raised by the respondent would not germane from the record, inasmuch as, there is nothing to show that it was sine qua non to obtain the copy of non-creamy layer certificate on or before 10.02.2017. It may be true that there could be one of the requirements and in fact, before getting actual Page 12 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined appointment, a candidate requires to possess and produce such SEBC certificate (non-creamy layer) to respondent authority as obtaining benefit of reservation. But at the same time, in the facts of the present case, when petitioner did request to the respondent authority vide her consent letter dated 29.04.2017 to allow her to submit such certificate within short time, which appears to have been impliedly accepted by respondent authority as not outrightly rejected such request, whereby permitted the petitioner to submit such certificate within a short period of time and in fact she submitted it on 06.05.2017 and thereafter respondent No.4 recommended her case, then it can be gainsaid that to obtain non- creamy layer certificate on or before 10.02.2017 was not sine qua non to get appointment.
CONCLUSION:
12. In view of the foregoing reasons, according to my view, petitioner requires to be appointed by respondent authority and as such all oral objections, which raised by respondents, are unsustainable in the eyes of law, thus, such objections on the part of the respondent authority require to be quashed and set aside, which is hereby Page 13 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025 NEUTRAL CITATION C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025 undefined quashed and set aside.
13. The impugned action on the part of the respondent in not issuing appointment letters to the petitioner for the post of Shikshan Sahayak is set aside. The respondent concerned is directed to issue appointment order forthwith to the petitioner for the post of Shikshan Sahayak in question. Accordingly, the present petition is hereby allowed with consequential benefits to follow. Rule is made absolute to the aforesaid extent.
14. As a sequel, no order is required to be passed in Civil Application. Hence, the present Civil Application would not survive and the same is disposed of accordingly.
Direct Service Permitted.
(MAULIK J.SHELAT,J) DIWAKAR SHUKLA Page 14 of 14 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:17:55 IST 2025