Gujarat High Court
Gavit Ganeshbhai Ramajbhai vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12440 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 12440 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8730 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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GAVIT GANESHBHAI RAMAJBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 17/07/2025
COMMON ORAL JUDGMENT
1. The petitioner in both these petitions is the same person and the facts are interconnected. In view of the order dated 19.6.2024 passed by coordinate Bench of this Court, to hear Special Civil Application No.8730 of 2024 along with Special Civil Application 12440 of 2020, with the consent of the learned advocates for the parties, these petitions are disposed of by this common judgment.
2. By way of the petition being Special Civil Page 1 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined Application No.12440 of 2020, the petitioner has prayed for the following reliefs:
"12(a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date;
(b) to direct the respondents to forthwith include the petitioner's name in the merit-list for Document Verification for 5th Round for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) as per Annexure-F, pursuant to the Advertisement dt.12-4-2016 as per Annexure-A.
(c) to quash and set aside the impugned decision of the Respondents dtd. 30-9-2020 at Annexure-G wrongfully denying to include the petitioner's name in the merit-list for Document Verification for 5th Round;
(d) PENDING HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the process of 5 th Round for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) pursuant to the Advertisement dtd.12-4-2016 as per Annexure-A."
(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to keep one post vacant for the petitioner at the time of finalising selection and giving appointment in the 5 th Round for English subject for Secondary School (Gujarati Medium) pursuant to the Advertisement dtd.12-4-2016 as per Annexure-A;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF Page 2 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined THIS PETITION, BE PLEASED to direct the respondents to verify the petitioner's documents for giving appointment as Shikshan Sahayak for English subject for Secondary Schools (Gujarati Medium) pursuant to the Advertisement dtd. 12-4- 2016 as per Annexure-A, subject to further orders of this Hon'ble Court;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to restrain the respondents from giving any appointments in the subject of English in the 5th Round for Secondary Schools (Gujarati Medium) pursuant to the Advertisement dtd. 12-4-2016 as per Annexure-A;
(h) xxxxx"
3. By way of Special Civil Application No.8730 of 2024, the petitioner has prayed for the following reliefs:
"13(a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date;
(b) to direct the respondents to forthwith verify the petitioner's documents and to place him in the merit-list for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) as Scheduled Tribe candidate pursuant to the Advertisement dtd.12-4-2016 as per Annexure-A and pursuant to the directions issued by this Hon'ble Court in the orders at Annexure-G colly;
(c) to direct the respondents to give appointment to the Page 3 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined petitioner as per his merit with all consequential benefits as if he was given appointment on the date on which other candidate having less merit than the petitioner was given appointment.
(d) to restrain the respondents from giving appointment to any other candidate having less merit than the petitioner in category of Scheduled Tribe for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) pursuant to the Advertisement dtd. 12-4-2016;
(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to forthwith verify the petitioner's documents and place him in the merit-list for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) as Scheduled Tribe candidate pursuant to the Advertisement dtd. 12-4-2016 as per Annexure-A, subject to further orders that may be passed in the present petition;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to restrain the respondents from giving appointment to any other candidate having less merit than the petitioner in category of Scheduled Tribe for the post of Shikshan Sahayak for English subject for Secondary School (Gujarati Medium) pursuant to the Advertisement dtd. 12-4-2016;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to keep one post vacant for the petitioner of Shikshan Sahayak Page 4 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined for English subject for Secondary School (Gujarati Medium) in Scheduled Tribe category pursuant to the Advertisement dtd.12-4-2016;
(h) xxxx"
4. The brief facts leading to filing of these petitions are that the petitioner was born on 1/4/1982. He belongs to Scheduled Tribe. He has passed BA English and MA English and Teachers Aptitude Test for English subject for secondary teacher. He is therefore eligible and qualified to be appointed. 4.1 The respondents issued advertisement dated 12/4/2016 for Shikshan Sahayak/ secondary teacher. The petitioner applied for the same as per his online application. The petitioner's merit comes to 56.91 as per the objective criteria laid down in the rules. The other candidates having merit up to 57.39 were given appointments in the fourth round as per the cutoff merit marks dated 27/6/2017. The petitioner's name was not included in the fourth round as his merit was 56.91.
4.2 On 21/9/2020, the respondents issued advertisement for the fifth round. They have declared the particulars of vacancies available after the fourth round as 5 vacancies of English subject for Scheduled Tribe candidates. However, in Page 5 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined the list of candidates for document Verification for fifth round dated 21/9/2020, the respondents have not included the petitioner whose merit is 56.91, though they have included the candidates having less merit than the petitioner at serial number 106 to 125 whose merit is 56.81 to 56.21. The petitioner, therefore, made a representation dated 23/9/2020. On 30/9/2020, the respondents have published their decision on the objections of the candidates on the website wherein at serial number 15 with regard to the objections raised by the present petitioner, it is stated that the merit of the candidate is more than the cut off of the fifth round but as per the data provided by Index B, the candidate has not given district preference in the fourth round and therefore the candidate is not entitled to be included in the fifth round. Hence, this petition is filed.
4.3 Special Civil Application No. 8730 of 2024 is filed by the same petitioner as pursuant to the other orders passed by this Court, the respondents have now issued the advertisement on or before 7/6/2024 for document verification of candidates in the list displayed on the website. The respondents herein are shown as two ST candidates at serial number 8 and 9 whose merit is 56.59 and 56.52, but the petitioner's name is not appearing in the list though his merit is 56.91 which is higher than both the said candidates. Page 6 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025
NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined As per the directions of this Court in the orders, the process of filling up all the vacancies of recruitment process of year 2016 is to be completed by 24/6/2024. Hence, this petition is filed.
5. Heard learned advocates for the parties. 5.1 Learned advocate Mr. Pujara has mainly submitted that the representation of the respondents was rejected only on the ground that the petitioner did not give district preference in the fourth round, however, as his name was not included in the fourth round and therefore there was no occasion for him to give any district preference at that time. It is only in the fifth round that the petitioner has become eligible to be included in the list as per his merit of 56.91 because all the 20 candidates whose names are appearing in the merit list at serial numbers 106 to 125 are having less merit than the petitioner. He submitted that there was never such condition in the advertisement dated 12/4/2016 that if the candidate does not give district preference in any round, he would be declined selection and appointment in the next round. He further submitted that in every round, the district preference was invited from the selected candidates, i.e. 10/11/2016, the district preference was invited by 12/11/2016 Page 7 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined 23.59 hours for the first round. On 28/11/2016, the district preference was invited by 30/11/2016 23.50 hours for the second round. On 10/12/2016, the district preference was invited by 13/12/2016 11.59 hours for third round. On 21/6/2017, the district preference was invited by 23/6/2017 for the fourth round. However, in the said fourth round, the time was extended on 23.6.2017. It is nowhere stated in the said notices that the candidate who does not give district preference within the said time limit of that round would lose right of district allotment in future rounds. He submitted that in the fourth round, the cut-off of merit of ST male candidates for English subject was 57.39 and the petitioner's merit being 56.91. He did not have any occasion to give district preference. He submitted that the name of the petitioner was not published at the time of fourth round as his merit was 56.91. However, in the fifth round, the respondents have issued the advertisement on 21/9/20 and invited district preference for the first time by publishing the document verification list on 21.9.2020, wherein despite the petitioner's high merit, his name is not shown and there are 20 ST candidates in the said list whose merit is less than the petitioner. He submitted that as per the settled legal position, the merit cannot be given a go-by while giving appointment. He submitted that even if it is admitted that the petitioner has not given the district preference, then also, Page 8 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined if a candidate has not given any district preference, he may be allotted to any district by the respondents as per their choice. But the respondents cannot deny appointment to such a meritorious candidate. He relied on the judgment of. Sankarshan Das, V Union of India, AIR 1991, SC 1613 and submitted that "Unless the relevant Recruitment Rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merits of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 5.2 He finally submitted that admittedly there are 5 vacancies available in the English subject for ST category and the petitioner's merit is more than all the 20 candidates of ST category who are called for document verification. He, therefore submitted that on the technical ground that the petitioner has not given the district preference, the respondents ought not to have denied the publication of his name in the fifth round list as he has secured more marks than all the candidates who appeared in the list. It is not true that the petitioner has not given the district preference Page 9 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined at any point of time. He did not give the district preference because his name was not appearing in the fourth round, and for the fifth round it was for the first time the district preference was called for, however, as the name of the petitioner was not appearing in the fifth round list, he could not opt for the district preference. He, therefore, submitted that these petitions are required to be allowed and the petitioner is required to be given the appointment as he has more merit marks than the persons who are appearing in the list.
6. Per contra, learned AGP Ms.Bhati has, by drawing the attention to the affidavit in reply filed, submitted that the office of the respondent has published an advertisement dated 12/4/2016 for selection of Shikshan Sahayak in grant- in-Aid Secondary and Higher Secondary School across the state and invited the online application from the candidates. The work is assigned to index B which is a government agency. The selection process is based on the application online made by the eligible candidate. She submitted that the flow chart of the advertisement would be to receive online application from the candidates, then to declare online merit of four time candidates against total vacant posts, thereafter online district preference from above candidates, thereafter an online district allotment as per the merit of the candidates, Page 10 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined thereafter document verification at district level camp, thereafter school allotment and then appointment. She submitted that if the candidates are not exercising his or her right and not responding to any of the above level, then it is deemed that she or he has lost the right. She submitted that the office of the respondent had published every instruction at every stage of selection on the notice board of its website and it is clearly stated that if the candidate does not opt for district preference in the prescribed time limit then the candidate would not have any right for district allotment. That the advertisement for the fifth round was published on 21.9.2020. The petitioner made an application on 23/9/2020 for inclusion of his name in the fifth round as his name was not appearing in the list. She submitted that there were 32 other similarly situated candidates who had a similar grievance and after receiving all such applications from the candidates including the present petitioner, the office of the respondent called for the information from the index B and on receiving such information, it revealed that the present petitioner and other 32 candidates were not given the district preference in the fourth round of selection and therefore, authority has taken a decision on 30/9/2020 which is impugned in the present petition.
6.1 She submitted that the petitioner, including 2104 candidates, have not exercised their right and not given the Page 11 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined district preference and therefore the authority had not allowed such candidates to participate in the fifth round of selection. She submitted that when the petitioner has not exercised his right at the proper time, it is not open for the petitioner to agitate his grievance that his name was not included in the list for the fifth round. She therefore submitted that both these petitions are required to be dismissed.
7. I have heard the rival submissions and also perused the material placed on record.
7.1. From the material produced on the record, it transpires that the advertisement for the post of Shikshan Sahayaks/Secondary Teacher was issued on 12/4/2016. The petitioner applied for the same. The petitioner's merit comes to 56.91 as per the objective criteria laid down in the rules. The ST male candidates having merit up to 57.39 were given appointments in the fourth round as per the cut-off marks. The name of the petitioner was not included in the fourth round as his merit was 56.91. The advertisement for the fifth round was issued on 21/9/2020 declaring the vacancies available after the fourth round wherein 5 vacancies of English subject are available for Scheduled Tribes. However, in the list of candidates for document verification for fifth round dated 21/9/2020, the name of the petitioner was not Page 12 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined included though he had merit of 56.91 and the candidates having less merit than the petitioner at serial numbers 106 to 125 whose merit is 56.81 to 56.21 were included. These are all the undisputed facts coming on the record. 7.2 The only point for controversy is whether the respondents were justified in not including the name of the petitioner in the list published for the fifth round of selection by giving the reason that "Merit of the candidate is more than the cut-off of the fifth round but as per the data provided by Index B, the candidate has not given district preference in the fourth round and therefore the candidate is not entitled to be included in the fifth round." This decision of the respondent authorities on the representation made by the petitioner is illegal and improper for the reason that in the advertisement dated 12.4.2016, which is a part of the record, nowhere it is mentioned that if the candidate does not give district preference in any round, he would be declined selection and appointment in the next round. It is clear that if the candidate would not give district preference by the prescribed time and date, then he would not have any right for allotment of district but on perusing the material in detail, it means that if the candidate does not give district preference in that particular round, he would not have right for allotment of district in that particular round. There is nothing to indicate that he would lose such right even in the Page 13 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025 NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined subsequent rounds in future. This is more clear from the dates mentioned in every round. The district preference was invited from the selected candidates in every round. In any of the notices, it is nowhere stated that the candidate who does not give district preference within the said time limit of that round would lose right of district allotment in future rounds also. In the case of the petitioner, in the fourth round, the cut-off of merit of ST male candidates for English subject was 57.39 and the petitioners merit being 56.91. He did not have any occasion to give district preference. The submission of the learned AGP that the district preference was sought from ST candidates for English subject in the fourth round of selection who fell between the merits of 63.25 to 51.25, however, the petitioner had not given the district preference is not correct as no such list was published at the time showing the petitioner's name on the website, therefore, the petitioner had never an opportunity to give the district preference in the fourth round as the cut-off mark was 57.39 and he obtained 56.91. However, in the fifth round, the respondents have issued the advertisement on 21/9/20 and invited district preference for the first time by publishing the document verification list on 21/9/2020 and the name of the petitioner is not reflecting in the said list and there are 20 ST candidates in the said list whose merit is less than the petitioner.
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NEUTRAL CITATION C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025 undefined 7.3 In view of the above discussion, the respondents' action of not including the petitioner's name in the list for fifth round and the rejection of the representation of the petitioner is improper and illegal and required to be interfered with by allowing these petitions. 7.4 Accordingly, these petitions are allowed. By way of interim order dated 24/6/2024, the coordinate bench of this Court has ordered that the petitioner's document verification be undertaken by the respondent authority. However, the same would not create any equity in favour of the petitioner. As these petitions are allowed, the petitioner be placed in the merit list for the post of Shikshan Sahayak for English subject for Secondary School Gujarati Medium as Scheduled Tribe Candidate pursuant to the advertisement dated 12.4.2016 and be given appointment after following the requisite procedure as stated in the advertisement dated 12.4.2016.
7.5 Rule is made absolute in each of the petitions. Civil Application stands disposed of accordingly.
(SANDEEP N. BHATT,J) SRILATHA Page 15 of 15 Uploaded by U. SRILATHA(HC00185) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:23 IST 2025