Patel Ashaben Manilala vs State Of Gujarat
2021 Latest Caselaw 18171 Guj

      C/SCA/13009/2017                                          ORDER DATED: 07/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13009 of 2017
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                           PATEL ASHABEN MANILALA
                                    Versus
                          STATE OF GUJARAT & 3 other(s)
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Appearance:
MR .B A PATEL(5281) for the Petitioner(s) No. 1
MR.ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
MR AD OZA(515) for the Respondent(s) No. 2
MR.MEET SHAH for the Respondent No.4
NOTICE SERVED(4) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                   Date : 07/12/2021
                                    ORAL ORDER

[1] When the matter is taken up for hearing, learned advocate Mr.Meet Shah appearing on behalf of the respondent no.4 has submitted that the issue is squarely covered by the decision of this Court by the order dated 12.03.2018 passed in Special Civil Application No. 20839 of 2016 and the judgment dated 28.03.2019 passed in Special Civil Application No. 21628 of 2016.

[2] Learned advocate Mr.Shah has invited the attention of this Court to the averments made in Paragraph No.15 of the memo of petition, wherein the statement has been made that "identical petition has been filed by one Shitalben Rameshbhai Patel, which is pending" . It is submitted that by the order dated 16.01.2017 passed in Special Civil Application No. 541 of

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2017, the Court had tagged the said matter with Special Civil Application No. 20839 of 2016, which is dismissed by the order dated 12.03.2018. Thus, he has submitted that appropriate orders may be passed in this petition.

[3] When the matter is taken up for hearing, learned advocate Mr.B.A.Patel has chosen not to remain present before this Court. On earlier occassions also he did not remain present.

[4] The facts as narrated in the writ petition are as under:-

[4.1] It is stated that the petitioner is a lady, who possesses the qualification of B.A. with History and M.A. with History and B.Ed. with Social Science with total secured merit marks of 57.03 in TAT 2014. It is stated that an advertisement was issued by the respondent State, Education Department on 12.04.2016 inviting applications for recruitment of Shikshan Sahayak for the Higher Secondary Schools. It is stated that pursuant to the advertisement, the petitioner made an online application along with all required details and paid the prescribed fees of Rs.140/- and also received online receipt towards acknowledgment.

       C/SCA/13009/2017                                       ORDER DATED: 07/12/2021



[4.2]           It        is    stated         that         thereafter,                 the

respondent no.3 had published a selection list of candidates, who have been selected for the post of Shikshan Sahayak in Higher Secondary Schools, wherein she figured at Sr.No.108. Accordingly, the petitioner was called to remain present before the concerned authority on 28.06.2017 at 11:00 hrs at the selection camp at R.K.Gharshala High School, Parimal Chowk, Bhavnagar through SMS and the petitioner remained present there along with the relevant documents.

[4.3] It is further stated that during the course of selection, the respondent authority informed the petitioner that her case cannot be considered for selection as she possesses degree of B.A. with History and M.A. with History and B.Ed. with Social Science and TAT examination with Geography and the petitioner came to be rejected orally.

[4.4] It is further stated that the respondent no.2 rejected the application dated 28.06.2017 of the petitioner by stating that since the petitioner has not given the examination of the subject of History in the TAT examination conducted on the relevant date, her case cannot be considered for selection in view of the Notification dated 11.02.2011 issued by the

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Education Department without giving copy of the said notification.

[5] As the facts would suggest that the petitioner has passed B.A. with History and M.A. with History and B.Ed with Social Science and TAT examination with Geography, the petitioner had applied for the post, wherein the qualification was required of Geography as a main subject.

[6] It would be apposite to refer to the judgment dated 28.03.2019 passed in Special Civil Application No. 21628 of 2016, wherein also the concerned petitioner had applied for the post of Shikshan Sahayak (Gujarati Medium) for the subject of Gujarati, however, she was possessing the educational qualification in B.A. and M.A. in the subject of History.

[7] While passing the judgment dated 28.03.2019 in Special Civil Application No. 21628 of 2016, the Coordinate Bench after detailed examination has held thus:-

9. From the aforesaid situation which is prevailing, it is not in dispute as found by the Court that except TAT examination, the petitioner has not cleared rest of the examination in the relevant subject of Geography and true construction of the statutory rules is indicating that the eligibility criteria which has been prescribed is that the candidate must possess the degree in relevant subject.

Since the Coordinate Bench has undertaken this very exercise of analysis in an identical issue, the Court in such a situation is not inclined to accept the submissions made by the learned advocate

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for the petitioner. So far as the principles of natural justice being violative is concerned, no doubt, apparently it may look like that, but then this principles of natural justice is not possible to be stretched beyond proportion particularly in view of the fact that even after giving an opportunity, the ground reality of not clearing the graduation and post graduation in the relevant subject is not going to be altered and as such the mistake may not be allowed to be perpetuated."

10. Yet another submission which is not possible to be ignored by the Court is that the educational qualification which is mentioned by the petitioner is undisputedly not in the relevant subject, except TAT examination and, therefore, when the appointing authority is insisting a particular subject, such experts opinion would not be made as a subject matter of judicial review. As has been held by series of decision, including the decision delivered by the Apex Court in the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374. that normally the judicial review on the experts opinion should not be undertaken, this Court would not like to deviate from such pronouncement and accordingly, the Court is of the view that no case is made out by the petitioner. One additional circumstance also is not to be overlooked is that the Rules which are framed vide notification dated 11.02.2011 are having statutory effect and are upheld by the Court and so long as those Rules are in existence and Regulation 20 of the Act of 1972, cannot be resorted to more particularly, when in the year 2011, in exercise of Section 35 of the Act itself, new Rules have prescribed the eligibility criteria and no different reading is possible to be curled out since the coordinate Bench has examined the issue at length and has specifically opined.

10.1. Before the judgment is pronounced, learned advocate Mr.Pujara has drawn attention of this Court to one of the decision delivered on 15.10.2108 rendered in Special Civil Application No.9331 of 2017 and has requested that in this case almost similar situation is considered by the Court and has taken a different view then what has been taken by the Court in Special Civil Application No. 20839 of 2016. While examining this decision, it has been found by the Court is related to the candidate from the same list of the present case and the issue at length has been examined. Additionally, it has further been found that the coordinate Bench has dealt with the matters of other candidates from the very same list in which the present petitioner was placed and has disposed of all these petitions. Undisputedly, the present petitioner is also out of the very same list which has been dealt with by the coordinate

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Bench on 12.03.2018, as referred to above. Hence, this Court is unable to deviate from the decision delivered on 12.03.2018 and the case of the petitioner is also dealt with by considering this very decision. Since the petitioner is forming part of the very same list, the Court is of the view that the law of precedent as clearly defined by the Apex Court and as propounded that if there is slight change in the fact and one additional fact if found, would make a world of difference in applying the precedent. Resultantly, since the facts are different from the decision which has been lastly pointed out by learned advocate Mr. Pujara the same will not apply here, particularly, when the Court was dealing with the different sets of employees and not from the list in which the present petitioner was finding place. Accordingly, the decision rendered in the Special Civil Application No. 9331 of 2017 is not possible to be applied mechanically by this Court, particularly when several petitions have been disposed of the petitioners who were forming part of the same list in which the petitioner was also part thereof.

[8] Similar view has been taken by this Court while passing the order dated 12.03.2018 in Special Civil Application No. 20839 of 2016, wherein the concerned petitioner, though was possessing qualification of B.A. in History and M.A. with History and B.Ed. with Social Science and also cleared TAT examination with Social Science had applied for the post of Sikshan Sahayak for the subject of Sociology.

[9] The Coordinate Bench, while passing order dated 12.03.2018 in Special Civil Application No. 20839 of 2016, has observed thus:-

21. Even the contention that B.A. with History is equivalent to B.A. in Sociology is nowhere provided and in the instant case, the petitioner having degree in B.A. & M.A. in History cannot be said to have acquired graduation and post graduation which is equivalent to Sociology by any stretch of

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imagination and therefore, as the Resolution dated 11.02.2011 clearly provides for bare minimum requirements and the required qualification as prescribed in it as graduation in concerned concerned subject, subject, would post graduation definitely mean in that the candidate who possesses graduation and post graduation in the concerned subject, as in the instant case sociology can only be considered for the post of Sikshan Sahayak in Sociology. Only because the petitioner has passed examination of TAT in Sociology would not take the case of the petitioner any further as such requirement is an additional requirement.

22. Even considering the data which was shown for the perusal learned of the counsel Court appearing by Shri for the A.D. Oza, respondent no.4 Board, the other contention raised by the petitioner as regards nonavailability of TAT in History is contrary to the record.

23. The Division considering Bench the of very this Court while notification dated 11.02.2011 has upheld the very circular. In light of the ratio laid down by this Court in the case of Akhil Gujarat Rajya Shala Sanchalak Mandal & Ors. Vs. State of Gujarat & Ors. reported in 2011 (5) GLR 3807 and in facts of this case, the petitioner does not possess the required qualification for the post of Sikshan Sahayak in Sociology as the petitioner is B.A. with History therefore, and the M.A. petitioner with History and is rightly not appointed as Sikshan Sahayak for the subject of Sociology as applied by the petitioner himself.

[10] Thus, the matter on reliance was placed by the present petitioner on the judgment in the case of Shitalben Rameshbhai Patel is ultimately withdrawn and the issue is laid quietus by the aforesaid judgments. Hence, the petitioner, who is possessing qualification of B.A., M.A. with History and B.Ed with Social Science and cleared the examination of TAT with Geography cannot be

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considered for appointment to the post of Shikshan Sahayak in the subject of Geography.

[11] In view of the above, the writ petition fails. Notice is discharged.

(A. S. SUPEHIA, J) NABILA