Gujarat High Court
The State Of Gujarat vs Shah Kalpesh Kanubhai on 23 February, 2021
Bench: Mr. Justice Nath, Ashutosh J. Shastri
C/LPA/138/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 138 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 18767 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 138 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
=========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
=========================================================
THE STATE OF GUJARAT
Versus
SHAH KALPESH KANUBHAI
=========================================================
Appearance:
MS SHRUTI PATHAK ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
MS MAMTA R VYAS(994) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
=========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Page 1 of 14
Downloaded on : Wed Sep 01 04:21:23 IST 2021
C/LPA/138/2021 JUDGMENT
Date : 23/02/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. The present Letters Patent Appeal under Clause 15 of the
Letters Patent is filed by the appellants assailing the correctness
of the order passed by the learned Single Judge dated
24.01.2020 in the aforesaid writ petition whereby, the learned
Single Judge has allowed the petition with a consequential
direction to the present appellants to appoint the respondent -
original petitioner to the post of 'Shikshan Sahayak' in the
school of respondent no. 3 (respondent no. 2 herein) forthwith
and in the event if no vacancy at which he was offered
appointment, then appropriate posting may be given to the
respondent - original petitioner on a vacant post at any other
suitable place.
2. The background of facts is that the respondent - original
petitioner has approached this Court under Article 226 of the
Constitution of India, on the premise that pursuant to the
advertisement issued for the post of 'Shikshan Sahayak' for the
subjects of Maths and Science, online application was
submitted as the respondent - original petitioner had cleared
B.Sc., from M.S. University, Baroda in the subjects of
Statistics/Maths/Physics and completed his B.Ed., degree from
Hemchandra Acharya North Gujarat University, Patan. It is the
case of the respondent - original petitioner that on the basis of
such qualification in response to the application, the respondent
- original petitioner was allowed to appear in TAT examination
and thereafter was called for the round of selection and was
allotted Taluka : Kharoda, District : Dahod. Though the merit is
C/LPA/138/2021 JUDGMENT
shown as 55.87%, the respondent - original petitioner was not
appointed. As a result of this, the respondentoriginal petitioner
has approached this Court by way of aforesaid writ petition and
after hearing both the learned advocates appearing for the
respective sides, by way of order dated 24.01.2020, the petition
came to be allowed as stated above. It is this, order passed by
the learned Single Judge, that has given rise to the present
Letters Patent Appeal by the appellants - State authorities.
3. We have heard Ms. Shruti Pathak, learned Assistant
Government Pleader for the appellants and Ms. Mamta R. Vyas,
learned counsel appearing for contesting respondent no. 1.
4. Ms. Pathak, learned Assistant Government Pleader has
contended that it was noticed by the appellant - authorities that
though the respondent - original petitioner has completed his
graduation, but was not having the prescribed relevant
qualification and as such, since the degree obtained by the
respondent - original petitioner was not in the concerned
subject, the authority found that the respondent - original
petitioner was not eligible. It was also contended that in the
present selection, the concerned subjects were Maths and
Science, in fact it was Maths and Science subjects alone and the
respondent - original petitioner is having a degree of Bachelor in
Science in principal subject of Statistics and as such, does not
deserve to be considered. It was further contended that the
benchmark for the requisite merit was 55.12% and the
respondent - original petitioner on the basis of having secured
00.00 in graduation would have merit assessed as 50.64% and,
therefore, found to be ineligible for appointment.
C/LPA/138/2021 JUDGMENT
4.1. Ms. Pathak, learned Assistant Government Pleader has
based the aforesaid contention on the basis of Rule 7 as well as
Rule 11 of Rules 2011, where Rule 11 explicitly provides for the
parameters of preparing the select list and as such, the relevant
subject becomes the subject matter of consideration for such
selection by the authority. As the respondent - original petitioner
not having completed the graduation in Maths being the relevant
subject, nonselection to the appointment of the respondent -
original petitioner is just and proper.
4.2. For strengthening the submissions, Ms. Pathak, learned
Assistant Government Pleader has tried to refer to certain
documents attached to the compilation and then has referred to
the marksheet produced by the respondent - original petitioner
in which, the principal subject at graduation level is Statistics
theory and Statistics practical and Maths/Physics were
subsidiary subjects. Thus, according to Ms. Pathak, learned
Assistant Government Pleader irrespective of the fact that the
respondent - original petitioner has secured more in TAT
examination, but the weightage which was to be given to
graduation was not found in favour of the respondent - original
petitioner and therefore, the authority has rightly not considered
the respondent - original petitioner for appointment. Ms. Pathak,
learned Assistant Government Pleader has referred to relevant
Rules prescribing eligibility for appointment as a Teacher to the
compilation on page 35 onwards. The Rules prescribed vide
Notification dated 18.04.2012 and by referring to Rule 7 and
Rule 11, precisely Rule 11 subrules (2) and (3), Ms. Pathak has
contended that since the petitioner is not having graduation
degree in the concerned subject, no marks were allocated rightly
by the authority. It has been contended that a teacher who is to
C/LPA/138/2021 JUDGMENT
be selected to impart teaching to students of standards 8th, 9th
and 10th, which are very crucial years in the career of the
students and in that event if ineligible person, not having any
concerned subject is allowed to be appointed, the same would
mar the interest of the students as well. It has been further
contended that Rule 7 which has been amended by virtue of
Notification dated 02.04.20213, produced at page 51 of the
petition compilation has also categorically stated that one must
have an equivalent qualification recognized as such by the
Government and as such when the respondent - original
petitioner undisputedly is not having such degree in relevant
subject for which appointment is to be given, there is hardly any
justification in the claim of the original petitioner and as such
the learned Single Judge having not appreciated this aspect in
the right spirit, the order impugned in the present appeal
deserves to be corrected.
4.3. Ms. Pathak, learned Assistant Government Pleader further
has tried to rely upon two decisions delivered by the learned
Single Judge rendered in Special Civil Application No. 20839 of
2016 dated 12.03.2018 and another rendered in Special Civil
Application No. 21628 of 2016 dated 28.03.2019 and after
referring to these decisions, it has been contended that the
concept of relevant subject and concerned subject has already
been analyzed by the learned Single Judge in the aforesaid
decisions and that having bearing on the present conclusion
after perusal of the same, this Court may kindly correct the error
committed by the learned Single Judge. In addition thereto, Ms.
Pathak, learned Assistant Government Pleader has also pointed
out relevant particulars with regard to the course of Bachelor in
Science and the course contents and syllabus and then has
C/LPA/138/2021 JUDGMENT
contended that upon perusal, it would clearly indicate that if the
candidate is not having qualification in relevant subject then it is
always open for the authority to deny the appointment and mere
clearance of TAT examination is of no consequence. As a result
of that, Ms. Pathak, learned Assistant Government Pleader has
requested to quash and set aside the impugned order by
allowing the appeal.
5. As against this, Ms. Mamta Vyas, learned counsel
appearing for the contesting respondent - original petitioner has
vehemently opposed the stand taken by the learned Assistant
Government Pleader and has submitted that the learned Single
Judge has considered every aspect of the matter including the
subject in which the petitioner undertook graduation. It has
been contended that the respondent - original petitioner has
already appeared in TAT examination and was allowed to appear
on the basis of the very certificate and degree course and there is
no misrepresentation by the respondent - original petitioner at
any time and once having been allowed to participate in selection
process, now the respondent - original petitioner may not be
allowed to be declared as ineligible on the basis on which the
authority is inclined. According to learned advocate Ms. Vyas, on
the contrary, the post in question is a post of Secondary Teacher
wherein the respondent - original petitioner has not only studied
in the subject for which there was a requirement, but also
having additional qualification of passing B.Ed., examination
and as such, the marking system which has been adopted by
the authority is quite contrary to the parameters of Regulation
20. According to learned advocate Ms. Vyas, Regulation No.20 is
not bifurcating the subjects any more and the special
requirement is not even stipulated in the advertisement as well.
C/LPA/138/2021 JUDGMENT
As such, now in the selection process to carve out such
exception to deprive the original petitioner from participating in
the process is devoid of merit, illegal and impermissible. Learned
advocate Ms. Vyas, with a view to substantiate her arguments
has also drawn attention of this Court to the decision delivered
by the Division Bench of this Court in the case of Prajapati
Paresh Govindbhai & Ors., v. State of Gujarat through
Principal Secretray & Ors., reported in 2012(1) GLH 548
produced at page 63 of the petition compilation and after
referring to certain observations contained in various para,
precisely para 5, has submitted that the minimum qualification
of the candidate for the post as teacher in upper primary is
passing of either B.A., B.Sc., or B.Com., and in addition thereto,
passing of TAT examination and as such, prescribing and
putting restriction on the subjects of the courses for which, one
is required to study whie clearing the degree of B.A., B.Com.,
and B.Sc., is impermissible and on the contrary after referring to
various circumstances, the Division Bench of this Court has
clearly opined to allow the petition by holding that any graduate
whether passing B.A., B.Com., or B.Sc., can appear in TAT
examination and is entitled to get appointment if the said
candidate becomes successful in the merit list on the basis of
performance in the TAT examination as well as possessing all the
guidelines prescribed by the NCERT.
5.1. Ms. Vyas, learned advocate appearing for the respondent -
original petitioner has further contended that if Regulation 20 is
closely read, there is no embargo which authority is now inclined
to deprive the writ petitioner from the appointment and a
reference is made to the said Regulation which is placed on
record of the petition compilation on page 59. Learned advocate
C/LPA/138/2021 JUDGMENT
Ms. Vyas has therefore, contended that the post in question is a
post of Shiksan Sahayak for secondary section i.e. 8th, 9th and
10th wherein, the graduation degree is relevant and not the
special subject which is tried to be referred as the concerned
subject by the authority. Learned advocate Ms. Vyas has
submitted that the both these decisions delivered by the co
ordinate Benches which are referred to by the learned Assistant
Government Pleader are of no relevance since the said decisions
are pertaining to the post of teachers in higher secondary
section where the yardstick is altogether different. Learned
advocate Ms. Vyas has submitted that no doubt, it is not for the
Court to determine which is the concerned subject, but here is a
case in which, the concerned subject concept is not possible to
be unnoticed especially when neither the advertisement nor the
Rules are prescribing such and therefore, insistence of the
appellant authority about the main subject is not valid
particularly, when the writ petitioner was permitted to clear TAT
examination, and had been given weightage to the extent of 70%
for that apart from holding a degree of B.Ed., and as such,
keeping overall view of the matter, the contention raised by the
appellate authority is of no avail.
5.2. Additionally, learned advocate Ms. Vyas has submitted
that the observations which have been made by the learned
Single Judge and the findings arrived at are completely in
consonance with the material on record and as such in the
absence of any illegality or perversity of any nature, no
interference be made. Keeping in view the scope of Letters Patent
Appeal and by referring to the aforesaid submissions she has
further contended that an attempt is made to indicate the
syllabus as well as the courses, which is nothing but to deviate
C/LPA/138/2021 JUDGMENT
the Court from the core issue involved in the petition by not
producing them before the learned Single Judge and has
requested to dismiss the appeal as having no merit.
6. Having heard the learned advocates appearing for the
respective parties and having gone through the material on
record, the following circumstances are not possible to be
unnoticed by the Court.
6.1. It is not in dispute that the original writ petitioner is
possessing the qualification of B.Sc. B.Ed., and was permitted to
appear in TAT examination with the subjects in which he studied
which has weightage of 70% in the process of recruitment and
after the merit list having been prepared, the appellant authority
has given merit to the original petitioner of 55.87% and then
called at Dahod, District Eduction Office, on 28.06.2017 and
was specifically informed that the original petitioner is to be
appointed at Gayatri School and Higher Secondary School at
Kharoda District : Dahod. These entire proceedings having been
adopted and subsequent thereto, it appears that the
appointment came to be denied of late and for the first time in
the writ proceedings, a stand is taken by the appellant authority
that the original writ petitioner is not having subjects of
Maths/Science at graduation level and since the respondent -
original petitioner is having Statistic subject at B.Sc., level as a
principal subject, the respondent - original petitioner was found
to be not eligible. This stand which has been taken by the
appellant authority has been examined at length by the learned
Single Judge and on the basis of the material on record, the
learned Single Judge had critically analyzed the documents as
well as interpreted the Regulation 20 and has come to the
C/LPA/138/2021 JUDGMENT
conclusion that a case is made out by the original petitioner. We
may reproduce the said conclusion arrived at by the learned
Single Judge hereinafter :
"11.Considering the issue at hand, admittedly, the petitioner
had applied for the subjects of Maths and Science. The
stand of the respondent is that he did not possess the
requisite qualification in the concerned subject and,
therefore, though having given sufficient weightage for TAT,
he was rightly assessed as 00.00 in the graduation subject.
Perusal of the marksheet of the petitioner, when she
underwent the graduation course in B.Sc., would suggest
that though the principal subject of the petitioner was
Statistics, Maths and Physics are the subjects which he had
also studied. Therefore, the concept `relevant subject' or
`concerned subject' cannot be given a restricted meaning
especially in the context of the case on hand when
admittedly the petitioner did pursue degree of B.Sc. With
Maths subject. Though Statistics was a principal subject, it
had the traits of Maths as is evident from the marksheet.
12. Regulation 20 of the Government Secondary Education
, 1974 was though cited as not being applicable in the case
of Patel Shilpaben Viththalbhai (Supra), the Court in the
judgment has extensively so discussed the regulation.
13. Regulations 7, 11(1), 11(2) and 11(3) of the 18.4.2012
notification read as under:
7.Eligibility for appointment:
To be eligible for appointment as Teacher, a
candidate shall possess
(a) requisite educational qualifications and age
in accordance with the provisions of
regularisation 20 of the Gujarat Secondary and
Higher Secondary Education Regulations, 1974;
and
(b) basic knowledge of computer application as
prescribed in subrule 1(A) of the rule 8 of the
Gujarat Civil Services Classification and
Recruitment (General) Rules, 1967;
Provided that the age limit shall be relaxed in
C/LPA/138/2021 JUDGMENT
favour of a candidate belonging to the Scheduled
Caste, Scheduled Tribes, Socially and Educationally
Backward Class and Women in accordance with the
provision of the Gujarat Civil Services Classification
and Recruitment (General) Rules, 1967.
11. Select list
(a) The selection committee shall prepare a list of
successful candidates on the basis of weightage
of 70% marks of the marks secured by the
concerned candidate in TAT.
(b) The marks secured by the concerned
candidate in TAT shall be valid for five years
from the date of the result of the TAT.
(c) The candidate who has secured at least 50%
marks in TAT shall be considered as qualified
candidate for TAT weightage.
(d) A candidate shall be allowed to appear in TAT
for three times. A candidate who after availing
the first attempt also avails second or third
successive attempt within the period of five
years from the date of the result of the first
attempt, the average marks obtained by such
candidate in such attempts shall be considered
for preparation of the select list, as explained in
Appendix - II.
(2) The weightage of 30% will be given, out of the marks
secured in the prescribed educational qualification for
the respective post as specified in AppendixII.
(3) The maximum marks for the qualification for the
purpose of weightage of 30% shall be as prescribed in
AppendixI.
14. Reading of such regulations would make it evident that
the interpretation of the State in restricting, in the case on
hand to hold that Statistics cannot be relevant subject for
the teaching of Maths has no nexus to the objectives to be
achieved. In the judgment of Patel Shilpaben Viththalbhai
(Supra), admittedly, the controversy was with regard to the
teacher of the Geography when the subject in which the
C/LPA/138/2021 JUDGMENT
petitioner had done his graduation was history. The said
judgment would therefore not be of much help so far as the
words `concerned subject' as in the case on hand. From the
marksheet of B.Sc. Degree, it is evident that the petitioner
had undergone Maths subject."
6.2. On the basis of the aforesaid conclusion and the material
on record, we had examined the rival submissions made by the
learned counsel appearing for the respective parties and we
found that the view taken by the learned Single Judge is a
possible view and as such, in peculiar background of this case,
such possible view, we are not inclined to disturb in absence of
any distinguishable material.
6.3. On the issue of Regulation 20, which has been pressed into
service by the learned Assistant Government Pleader, a close
scrutiny of the said Regulation and the amended Rules referred
to on page 51 vide Notification, we may observe that by the said
material, the issue has been dealt with by the learned Single
Judge and after dealing with the said contention, possible view is
taken and as such we are not inclined to disturb the findings
arrived at by the learned Single Judge.
6.4. Additionally, we have found from the pleadings that there
is specific contention raised by the appellants that the
respondent - original petitioner is not having the concerned
subject qualification, but to substantiate the same, we are
surprised that even the advertisement is also not produced by
the appellant which was published for inviting application and
as such, reading Regulation 20 in literal form on the basis of any
other material, we are not in a position to dislodge the possible
finding arrived at by the learned Single Judge. We have further
noticed that the conclusion arrived at by the learned Single
C/LPA/138/2021 JUDGMENT
Judge to the effect that the marksheet of B.Sc., degree is
indicating that the original petitioner had undergone the subject
of Maths and as such, when no other material is produced by
the appellant authorities to indicate that there was any
specification in the advertisement, we are unable to take a
different view. In the context of the aforesaid circumstance, the
decisions delivered by the coordinate Benches of this Court in
respect of the writ petitioners, are having different background of
facts and having carefully considered the rival submissions,
looking to the scope of Letters Patent Appeal on the basis of the
material on record, we are not inclined to disturb the possible
view taken by the learned Single Judge. The scope of Letters
Patent Appeal is well defined by the Apex Court in the case of
Management of Narendra & Company Private Limited v.
Workmen of Narendra & Company reported reported in
(2016) 3 SCC 340 and the relevant observations contained in
para 5 of the said decisions, is reproduced below:
"5. Once the learned Single Judge having seen the records
had come to the conclusion that the industry was not
functioning after January, 1995, there is no justification in
entering a different finding without any further material
before the Division Bench. The Appellate Bench ought to
have noticed that the statement of MW 3 is itself part of the
evidence before the Labour Court. Be that as it may, in an
intracourt appeal, on a finding of fact, unless the Appellate
Bench reaches a conclusion that the finding of the Single
Bench is perverse, it shall not disturb the same. Merely,
because another view or a better view is possible, there
should be no interference with or disturbance of the order
passed by the Single Judge, unless both sides agree for a
fairer approach on relief."
7. In view of the above, we are not inclined to disturb the
findings arrived at by the learned Single Judge in peculiar
C/LPA/138/2021 JUDGMENT
background of present facts. Hence, the appeal lacks merit and
the same deserves to be dismissed. Accordingly, the appeal
stands dismissed.
8. Consequently, the connected civil application also stands
disposed of.
(VIKRAM NATH, CJ)
(ASHUTOSH J. SHASTRI, J)
/phalguni/
