Gujarat High Court
Patel Manojkumar Babulal vs State Of Gujarat on 26 August, 2021
Bench: A.Y. Kogje
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1123 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1232 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL MANOJKUMAR BABULAL
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR. HARDIK J JANI(6497) for the Petitioner(s) No. 1
MS. DIVYANGANA JHALA, AGP, (99) for the Respondent(s) No. 1
MR AD OZA(515) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 26/08/2021
ORAL JUDGMENT
[1] These petitions under Article 226 of the Constitution of India are
arising out of identical facts and the contentions and the issues are
also common and hence, with consent of all the parties, both the
petitions are taken up for joint hearing and disposal. The facts are
recorded from Special Civil Application No.1123 of 2018.
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
[2] This petition is filed seeking direction to give appointment to the
petitioner as Shikshan Sahayak/teacher in the Grant-in-Aid Higher
Secondary School as per the District allotment list. It is the case of
the petitioner that despite the petitioner being fully qualified and
having cleared all the necessary selection procedure and was also
selected, but thereafter considering the degree of the petitioner in
the subject of "Industrial Chemistry" as against the qualification
advertised being "Chemistry", the petitioner was treated to be
disqualified for appointment.
[3] Learned advocate for the petitioner submits that the recruitment is
governed by the Teachers of Government Secondary and Higher
Secondary Schools (Procedure for Selection) Rules, 2012. According
to the said Rules, the candidate is required to possess the requisite
educational qualification as per Regulation-20 of the Gujarat
Secondary and Higher Secondary Education Rules, 1974. He submits
that as per the advertisement, the candidate is required to possess
Bechelor's Degree in concerned subject and B.Ed. And TAT. The
petitioner is possessing the said qualifications also. The weightage
for TAT is 70%. Accordingly. the petitioner gets Merit Mark 60.32.
The petitioner is therefore, clearly entitled to the appointment, and
the denial of appointment to him by the respondents is wholly
unjustified.
[3.1] Learned advocate submits that the subject of "Industrial Chemistry"
is much wider and modern as compared to the popularly known
subject of "Chemistry" and therefore, the respondents cannot deny
appointment on the ground that the petitioner has the subject of
"Industrial Chemistry" instead of "Chemistry" in the M.Sc.. The
respondents are required to take holistic view and not hyper-
technical view of the matter. Once the petitioner is selected for the
post, he has the legitimate expectations of the selection being
continued, as held by the Hon'ble Apex Court in the case of
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
Chandrakala Trivedi v/s. State of Rajasthan, reported in (2012)
3 SCC 129.
[3.2] He submits that the Education Department-the respondent No.1
herein vide amendment dated 17.10.2017 and 21.12.2017 carried
an amendment in Gujarat Secondary and Higher Secondary
Education Rules, 1974 and thereby specified the subjects of
concerned faculty which covers the subject of "Industrial
Chemistry", as is the subject of the petitioner in the present case.
However, the Education Department-the respondent No.1 herein has
brought into necessary amendment in the notification the petitioner
is denied appointment by citing reason of his subject being
"Industrial Chemistry" which is already covered/included by the
respondent herein in the amendments already carried out so far.
[3.3] Learned advocate for the respondent has relied upon the decision in
the case of Manish Mansukh Raghadal v/s. State of Gujarat,
reported in 2018 JX(Guj.) 630 and unreported judgment in the
case of Prakashukumar Jeshingbhai Patel v/s. State of
Gujarat in Special Civil Application No.21005 of 2016.
[4] As against this, learned advocate for the respondents opposed the
petition by submitting that no aspirant of a recruitment can
presume a right for being appointed. No such right exists or is
identified in law. That, mere inclusion in the select list cannot entail
a right to be appointed. The presumption of a right vested in the
petitioner to prefer the present petition for the ventilated cause of
action is thus ill founded.
[4.1] It is submitted that petitioner's candidature may have to be evalued
in consonance with the prescription of notification dated 11.02.2011
being the Teachers and Head Masters of registered Private
Secondary and Higher Secondary Schools (Procedure for Selection)
Rules, 2011. As per Rule 11(1) to 11(3), the determination of merit
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
for ascertaining the merit order to be appointed would be based
upon qualifications of an aspirant availed at graduation level post-
graduation level and professional level. Also taken into consideration
would be the TET Qualification. A consideration of the said Appendix
I & II of Rules would reveal that only those qualifications availed in
the concerned subject at graduation, post graduation, professional
and TET level would qualify for being evalued as provided for in the
Appendix for determining the merit of a candidate. In the instant
case such subject would be Chemistry, and therefore, the
qualifications at various levels availed in Chemistry subject alone
shall qualify for being evalued for determining the merit of a
candidate.
[4.2] It is submitted that the evaluation of the qualifications for the
purpose of determination of merit as provided for under Rule 11(1)
to (3) read with Appendix I & II of Rules 2011 would be as follows:-
Sr Qualification Marks/Result Merit
No. Evalution
1. Graduation degree in 62.76 00.00
concerned subject
2. Post Graduation degree in 66.22 00.00
concerned subject
3. Graduation degree in 80.36 04.02
Professional subject
4. Graduation degree in 00.00 00.00
Professional subject (if any)
5. TAT 155 43.40
TOTAL 47.42
[5] Reliance is placed upon the decision in the case of Patel Shilpaben
Vitthalbhai v/s. State of Gujarat and others passed in Special
Civil Application No.21628 of 2016.
[6] The Court has considered the rival submissions of the parties and
perused the documents placed on record. The petitioner has passed
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
B.Sc. With Chemistry and M.Sc. With Industrial Chemistry The
petitioner has also passed B.Ed and Teachers' Aptitude Test (TAT) for
the post of Higher Secondary Teacher for Chemistry subject. The
petitioner is therefore eligible and qualified to be appointed as
Teacher/Shikshan Sahayak in the Higher Secondary School.
[6.1] The respondents issued advertisement dated 12.04.2016 for 4397
vacancies of Shikshan Sahayaks/Teachers for Grant-in-Aid Higher
Secondary Schools, out of which 180 vacancies are earmarked for
Chemistry subject, and out that 2940 vacancies are earmarked for
Ope Category.
[6.2] The petitioner came into merit and therefore, he was invited for the
post selection of district of service. Accordingly, the petitioner was
appeared for selection for selection of district of service and selected
Anand District. In the third round, the petitioner was granted Anand
District as per choice as his service place. However, the DEO, Anand
District orally told the petitioner that he is not allowed to join duties
for the present as his subject at M.Sc. Is "Industrial Chemistry" and
therefore, the Selection Committee at Gandhinagar would take the
decision in this regard. Thereafter, the petitioner appeared before
the DEO and Selection Committee, but no decision is being taken.
[7] Rule 11(1) to (3) of Rules, 2011 would prescribe the weightage of
qualifications availed at graduation, post-graduation and
professional level to be 30% whereas TAT qualification would be
70%. The determination of merit as prescribed in Rule 11 of the
Rules would thus be availed as provided for in Appendix I & II.
[8] The annexures annexed to the petition indicate that the petitioner
had applied on the basis that the petitioner has all the valid
qualifications and after undertaking the selection procedure, was
declared to be selected as Shikhan Sahayak for the subject of
Chemistry by the Selection Committee. The petitioner has
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
qualification of B.Sc. with Chemistry from Hemchandracharya North
Gujarat University, M.Sc. with Chemistry from Hemchandracharya
North Gujarat University and B.Ed. from Hemchandracharya North
Gujarat University and accordingly total merit as per the formula
given in the Rules, the petitioner was getting 60.32 merit numbers
(Page-19). Considering the selection, the petitioner was called for
document verification, wherein the petitioner was to produce all the
documents in support of his application and on the very day, the
petitioner was to be given posting and considering his merit, the
petitioner was given posting at Anand as Higher Secondary Shikhan
Sahayak (Grant-in-Aid) (See Annexure-E).
[8.1] It appears that thereafter, comparing the certificates regarding his
educational qualification, the authorities came to the conclusion that
as the petitioner was having qualification of M.Sc. in "Industrial
Chemistry", allotment of points/marks in the category of Master
Degree could not be allotted and hence, allotment of marks under
the category of post gradation degree in professional subjects were
treated to be "00.00" as against 66.22 and thereby, reduced the
mark merit evaluation at 47.42 as against 60.32.
[9] Therefore, the issue which is for consideration is to whether the
educational qualification of M.Sc. in the subject of "Industrial
Chemistry" is to be treated at par and to be allotted the same merit
evaluation as the degree of M.Sc. in Chemistry.
[10] This Court in reported judgment in the case of Manish Mansukh
Raghadal (Supra) has held as under:-
"6. As noticed the eligibility contemplated under Rule 7 is the
requisite qualification and age in accordance with the
provisions of the Gujarat Secondary Education Regulations,
1974. The Regulations of 1974 do not lay down the
educational qualification for the post of Teacher, however
Government Resolution dated 28 th October 1975, referred to
in the advertisement as well as under the eligibility condition,
provides for the qualification required to be held by the
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
candidate. The requisite qualification prescribed under this
Resolution is "Trained Teachers having second class Master's
Degree in respective subject or trained graduate Teachers who
have experience of teaching in concerned subject for about
seven years in standards 10 and 11". the respondent
authorities have not been disputing that the petitioners satisfy
this criteria to meet the eligibility.
7. The weightage to be given in terns of Rule 11 of the
Rules read with the Appendix as above, is not the eligibility.
The weightage to be given on the basis of the possessed
qualification and the criteria for eligibility are two different
aspects. When the weightage is given with reference to
certain qualifications and when such weightage is counted
under the Rules for the purpose of preparing selection list on
the basis of merit marks so obtained of candidates such
weightage cannot be treated as part of eligibility. The
eligibility consists of criteria separately provided. The
weightage does not determine the selection itself. It is an
additional benefit to be applied or to be given could be said to
be part of procedure of selection and not the part of the
criteria to be in the eligibility zone. Therefore, the provision for
giving weightage in the Rules is not to be confused with the
concept or criteria of eligibility.
10. Thus, it became evident that the respondents while
applying the Rules notified on 11th February, 2011 invoked the
provisions as regard granting of weightage in the said Rules.
The provision of weightage contemplated in Rule 11 for
mistaken as the criteria of eligibility. The petitioners were held
dis-entitled to the post treating them ineligible on such basis.
What was contemplated in the Rule regarding giving of
weightage was not the part of the eligibility criteria indicated
and prescribed for the post in question. The provision of
weightage could not have been treated as prescription of
eligibility to deny the appointment to the petitioners who were
otherwise duly selected and were entitled to the letters of
recommendation of the appointment. In view of this
misapplication of criteria, the refusal on part of the
respondents to appoint the selected petitioners to the pot of
Shikhan Sahayak stood rendered arbitrary,illegal and in
violation of Articles 14 and 16 of the Constitution of India."
[11] Similarly, in the case of Prakashukumar Jeshingbhai Patel
(Supra), the Court had taken into consideration the fact in that
petition where the petitioner was a candidate of Shikhan Sahayak in
the subject of Statistics had studied Statistics at graduation level,
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
B.Ed. level and M.Ed.level. However, at the graduation level, the
petitioner had studied with the subject of Cost Accounting. It is on
this basis of educational qualification, the petitioner there in for the
post gradation was not treated to be qualifying criteria for the
teacher of Statistics. In this case also, following the ratio laid down in
the case of Manish Mansukh Raghadal (Supra) proceeded to hold
that the educational qualification in Graduation, B.Ed. and M.Ed. level
in Statistics was sufficient to treat the petitioner as qualified to be
Shikhan Sahayak in Statistics.
[12] From the facts as narrated above, the Selection Committee after
taking into consideration the educational qualification has treated the
petitioner to be selected and had also offered posting in the Grant-in-
Aid School at Anand. With such development, the petitioner had the
legitimate expectation to his selection to be continued more
particularly when no other disqualification was incurred. Reliance can
be placed on the decision of the Apex Court in the case of
Chandrakala Trivedi (Supra), wherein in para-8 following is held:-
"8. The word "equivalent" must be given a reasonable
meaning. By using the expression "equivalent" one means
that there are some degrees of flexibility of adjustment
which do not lower the stated requirement. There has to be
some difference between that is equivalent and what is
exact. Apart from that, after a person is provisionally
selected, a certain degree of reasonable expectation of the
selection being continued also comes into existence."
[13] Over and above this, the Court also deems it appropriate to consider
very relevant aspect which his borne out from the Government
Resolution of Education Department dated 21.12.2017, wherein it
has been resolved that as per the requirement of Gujarat Secondary
and Higher Secondary Education Rules, 1974, with reference to
Regulation 20(3), list of subjects were included for considering them
to be qualified criteria. Both in Secondary and Higher Secondary, the
master degree in "Industrial Chemistry" has been included. When
the Government itself has found the Master's Degree in the
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
"Industrial Chemistry" to be educational qualification for teacher in
Secondary and Higher Secondary School, there is no reason why the
same benefit should not be extended to the petitioner merely on the
ground that the selection procedure was in the year 2016.
[14] Useful reference can be made to the decision of Apex Court in
aforesaid regards in the case of Praveen Kumar C.P. v/s. Kerala
Public Service Commission in Civil Appeal Nos.4846 and 4847
of 2021 dated August, 17 2021 wherein, in paras-27 and 28, the
Apex Court has held as under:-
"27.Whether a GO would have prospective effect or relate back
to an earlier date is a question which would have to be decided
on the basis of text and tenor of the respective orders. The GOs
which declared appellants' degrees to be equivalent to those
required as per the applicable notifications were not general
orders but these two orders24 were person specific, relating to
the two appellants. Once the GO sspecifically declared that their
B.Ed. degrees were equivalent to the designated subject which
formed part of the employment notification,the GOs in
substance have to be interpreted as clarificatory in nature and
these cannot be construed to have had elevated the status or
position of the degree they already had after the declaration
was made in the Gos. The subject GOs only recognised an
existing state of affairs so far as the nature of the degrees were
concerned and did not create fresh value for the degrees which
the appellants possessed. Though these equivalent orders were
not in existence on the dates of issue of employment
notifications, the GOs in substance recognize such status from
the dates of obtaining such degrees. The GOs do not reveal any
intervening circumstances which could be construed to imply
that the respective degrees acquired the equivalent status
because of such circumstances occurring subsequent to grant of
their B.Ed. degrees. The aforesaid Notes to Clause 7 of the
employment notifications postulated disclosure of the number
and date of the orders on equivalence. But the GOs to which we
have referred treat the equivalency to be operating on the dates
of obtaining such degrees. Thus, the defect, if any, on disclosure
requirement, shall stand cured on issue of the University orders
followed25 by the GOs. The GOs also specify the context in
which these were issued and refer to the appellants being
included in the list of KPSC. This being the case, we do not think
treating the appellants' degrees as equivalent to those required
under the applicable notifications by the GOs issued in the year
2019 would result in change in the rules of the game midway. At
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
best, it can be termed as interpreting the rules when the game
was on, figuratively speaking. Such a course would, in our
opinion, be permissible. For this reason, we do not consider it
necessary to deal with the different authorities cited on the
principle of"change in the rule of the game midway". We have
opined that theappellants' degrees in B.Ed. were equivalent to
those required by the employment notifications and the
equivalency orders were merely clarificatory in nature. For this
reason, we do not think there was any fundamental breach of
Notes (v) and (vi) of Clause 7 of the respective employment
notifications in the cases of the applicants.
28. Once we hold so, we do not think relief can be denied to
these two appellants on the ground that other similarly situated
persons may not have had applied for the same posts and were
being put to dis advantage.In the case of Aarya K. Babu
(supra), that course was adopted by a coordinate Bench as it
was a new subject which was added to a26 subsisting range of
subjects in the qualification criteria. The principle of service
jurisprudence that a candidate must possess the requisite
qualification for a post on the date of issue of employment
notification cannot be applied in the appellants' cases, as in our
view, they possessed equivalent qualifications when they
applied for the posts. The GOs only confirmed the equivalency
of their B.Ed. degrees. In our opinion, they shall be deemed to
have had the equivalent qualification on the relevant date. As
we have held that the respective GOs only clarified or
confirmed an existing status of certain educational
qualifications, in absence of specific instance of similarly
situated but unspecified number of persons having not applied
for the posts would be unfair to the ones who apply for the
same and undergo three levels of litigations to establish that
they had equivalent degrees."
[15] In view of the aforesaid, the Court is of the view that the post
graduation qualification of the petitioner in the subject of "Industrial
Chemistry" is treated to be at par with the post graduation
qualification of Chemistry and merit value/marks should be allotted
to the petitioner for his qualification as Master's Degree-Industrial
Chemistry.
[16] The judgment relied upon by the respondent in an unreported
judgment dated 23.8.2019 in Special Civil Application No.21628 of
2016, wherein the Court was considering the appointment of the
petitioner therein to the post of Shikshan Sahayak (Gujarati Medium)
C/SCA/1123/2018 JUDGMENT DATED: 26/08/2021
for the post of Geography. The candidature of the petitioner therein
was not considered on the ground that the petitioner therein did not
have the subject of Geography in gradation as well as Master's
Degree. The petitioner had the subject of Geography in the TAT
examination. On these facts, the Court came to the conclusion that
the candidature of the petitioner therein could not considered to be
valid candidature in view of the subjects which the petitioner therein
have at the stage of B.A. with History and M.A. with History to be
sufficient for being Shikshan Sahayak in the subject of Geography.
(Unlike this case). In the facts of the present case, the petitioner has
the qualification of subject for which he has been selected as a
teacher.
[17] In view of the aforesaid, the petitions succeed and the same are
hereby allowed. The petitioners are hereby declared not to be
unqualified due to the educational qualification. The
selection/appointment of the petitioner is held to be valid . The
respondent authorities are directed to issue appointment and
posting orders and the appointment of the petitioners be considered
from the date of their appointment pursuant to this judgment.
(A.Y. KOGJE, J)
SIDDHARTH
