Thaker Kaushal Hashmukhbhai vs State Of Gujarat
2021 Latest Caselaw 10204 Guj

     C/SCA/13428/2011                               JUDGMENT DATED: 31/07/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 13428 of 2011

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to NO
   see the judgment ?

2     To be referred to the Reporter or not ?                           YES

3     Whether their Lordships wish to see the fair copy of               NO
      the judgment ?

4     Whether this case involves a substantial question of               NO
      law as to the interpretation of the Constitution of India
      or any order made thereunder ?

====================================================
             THAKER KAUSHAL HASHMUKHBHAI
                               Versus
                STATE OF GUJARAT & 2 other(s)
====================================================
Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR.DHARMESH DEVNANI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
RULE SERVED BY DS(65) for the Respondent(s) No. 1,2,3
====================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                          Date : 31/07/2021
                        ORAL JUDGMENT

1) The present petition has been filed challenging the action of the respondent authorities in not appointing the petitioner to the post of Vidhya Sahayak for Upper Primary Schools (i.e. standard VI to VIII).

2) The case of the petitioner is that the respondents has issued an advertisement dated 15.07.2011 for the recruitment for 6500 Maths/Science Vidhya Sahayaks and accordingly he applied for the same with all

C/SCA/13428/2011 JUDGMENT DATED: 31/07/2021

certificates and mark-sheets. Thereafter, the respondents published a provisional merit list on their website on 31.07.2011 and invited objections, by 03.08.2011 in the said provisional merit list. The respondents have canceled the selections of the petitioner for the reason that he is not possessing the minimum 45% marks in B.Sc.

3) Learned Advocate Mr.Pujara appearing for the petitioner has submitted that the selection of the petitioner is illegally cancelled since the marks of both the mark-sheets of the petitioner are to be calculated in a consolidated manner, which would be 46.88%.

4) Learned advocate Mr. Pujara has submitted that the requirement as stated in the Government Resolution dated 24.07.2011 as well as in the advertisement dated 15.07.2011 is that the candidate should have possessed 45% marks at B.Sc. examination and the petitioner fulfills the said requirement as the petitioner obtained 427 out of 950 marks in the first attempt and 417 marks out of 850 marks in the second attempt in B.Sc. examination and, therefore, the total marks of the petitioner would come 844 out of 1800, i.e. comes to 46.88% and, therefore, the respondents cannot deny appointment on the erroneous ground that the marks of the petitioner were less than 45%.

5) Learned advocate Mr. Pujara has submitted that the petitioner was granted admission in the B.Ed. course also on the basis of both the mark- sheets of B.Sc. examination considering his percentage i.e. 46.88%, and the requirement for B.Ed. admission was also minimum 45% in B.Sc. degree Examination, and therefore, if the petitioner was granted admission in B.Ed. course on the basis of 46.88% marks in B.Sc. examination, then the respondents cannot deny appointment at this stage, on the ground that the marks of the petitioner were less than 45%, and hence, the impugned stand taken by the respondents is illegal, arbitrary, discriminatory and bad in law.

      C/SCA/13428/2011                                JUDGMENT DATED: 31/07/2021



6)       Learned advocate Mr.Pujara has further submitted that when a

candidate appears for the second attempt in B.Sc. examination, the marks of practical and internal, as given in the first attempt, remain the same because it is not permissible to a candidate to again appear in the practical examination as well as in internal examination. If, the petitioner would have been permitted to again appear in practical and for internal marks, then he would have performed much better in the second attempt. However, it is not permitted by the University authorities and, therefore, the respondents cannot ignore this fact and the respondents are required to consider the total marks of both the examinations and the total marks obtained by the petitioner in both the attempts for arriving at the percentage at B.Sc. examination and accordingly, the marks of the petitioner are 46.88%. This fact, was duly confirmed by the respondent No.2 before including the name of the petitioner in the final merit list and it is on that basis only that the petitioner was issued the call letter for District Selection and he has been allowed to select the district.

7) Vehemently opposing the aforesaid submission, learned Assistant Government Pleader Mr.Devnani, has submitted that as per the policy of State Government, which was circulated vide circular dated 09.08.2011, the petitioner would not be qualified as he has secured less than 45%, which is the requirement of the advertisement. While referring to the circular dated 09.08.2011, learned Assistant Government Pleader has submitted that the case of the petitioner would fall under clause-B, which specifically states that the total marks of both the attempts are to be considered, and accordingly, a candidate has to be placed in merit list. While referring to the mark-sheets of the petitioner, he has submitted that initially in the first attempt, the petitioner's scored total marks of 427 out of 950 marks in 3 rd year B.Sc. Subsequently, the petitioner in the second attempt has sought exemption in English subject, and accordingly, he appeared for five

C/SCA/13428/2011 JUDGMENT DATED: 31/07/2021

subjects. It is submitted that the total such subjects would be 350 marks and the petitioner obtained 138 marks. Thus, it is submitted that 138 marks out of 350 would amount to 39.43%. It is also submitted that in any case, if the total marks of both the mark-sheets can be considered, the same would be 950+350 i.e. come to 1300 marks and the petitioner has secured 427 (the first attempt) and 138 (the second attempt), which comes to 565 marks. Thus, the actual calculation would be 565 marks out of 1300 marks of both the attempts, which would come to 43.46%. Thus, it is submitted that in fact the calculation, which has been undertaken by the Director of Primary Education, vide communication dated 03.08.2011, calculating the percentage of the petitioner as 46.88%, is incorrect, and hence, the petition may not be considered.

8) Learned advocate Mr.Munshaw appearing for the respondent No.3 has submitted that, as per the policy dated 09.08.2011, the Gujarat State Primary Education Selection Committee has decided not to grant appointment to the petitioner as he has secured 43.46%, which is below the criteria of 45%. He has placed reliance on the communication dated 12.09.2011, whereby categorically it was stated that as the petitioner has secured 43.46%, he would not be entitled and the percentage calculated by the Director of Primary Education Officer to the effect that 43.46%, is incorrect.

9) I have heard the learned advocates appearing for the respective parties at length. The mark-sheets as well as relevant circular are perused by this Court.

10) The entire controversy is premised on the interpretation of clause-B of the circular dated 09.08.2011.

    C/SCA/13428/2011                                    JUDGMENT DATED: 31/07/2021



11)    It is not in dispute that the petitioner cleared his selection process, and

accordingly, he was also communicated to remain present for selection. The Director of Primary Education, vide communication dated 03.08.2011, while calculating the merit of the petitioner, has observed that the total percentage of the petitioner, by counting both the mark-sheets, would be 46.88%. Thereafter, on the aforesaid communication, a call letter was issued asking the petitioner to appear before the Selection Committee on 17.08.2011 at 3:00 pm vide a communication (at Annexure-E), whereby his total percentage is calculated as 69.12% and so far as the graduation is concerned, which is the subject matter of the present petition, it is mentioned as 46.89%. Thus, while issuing the call letter, the respondent authority i.e. Gujarat State Primary Teachers Selection Committee, has calculated the B.Sc. graduation percentage as 46.89%, and accordingly the petitioner was issued a selection letter dated 29.08.2011, Thus, it is not in dispute that the petitioner has succeeded in having been qualified for the aforesaid post, however, he was not issued the appointment letter by respondent no.3, which constrained him to file the present petition.

12) At this stage, it would be apposite to refer to the Order dated 19.10.2011 passed by the Coordinate Bench of this Court, while admitting the petition.

13) The Coordinate Bench, while issuing Rule has specifically directed the respondent authorities to keep one post vacant, till further orders are passed. Hence, it is not denied that the one post is still vacant. While examining the aforesaid facts in light of the clause-B of the circular dated 09.08.2011, this Court is of the considered opinion that the percentage (marks) of both the attempts appears to have been miscalculated by the respondent No.3, despite the calculation done by his higher authority i.e. Director of Primary Education vide communication dated 03.08.2011. The

C/SCA/13428/2011 JUDGMENT DATED: 31/07/2021

communication dated 05.09.2011, which is produced along with the affidavit-in-reply addressed by the District Primary Education Officer to the Director of Primary Education, signifies the method of calculation, as it can be noticed that the marks of both attempts of the petitioner, are calculated thus:-

Sr. Year Attempt Total Marks Obtained Marks Result No.

1)     B.Sc.              First              950                427                Fail
       April-2000
2)     B.Sc.             Second              350                138               Result
       Nov.-2000                                                                   Pass
       Grant Total                          1300                565              43.46%


14)       Thus, as per the calculation of the District Primary Education, the

total percentage of both the attempts, would be 43.46%. The entire calculation is premised on the interpretation of clause-B of circular dated 09.08.2011. The learned advocates appearing for the respective parties are ad idem that the case of the petitioner is governed by clause-B, and hence, this Court is proceeding on the basis such consensus. The Clause-B of circular dated 09.08.2011, reads as under:-

"(B) If a candidate has passed any examination in more than one attempt and has availed subject exemption, then sum of the total marks of each attempt and percentage calculated from the marks obtained by them shall be considered for preparing a merit"

15) If, the marks of the petitioner are recalculated in light of the aforesaid clause-B, it is not in dispute that so far as the first attempt is concerned, the mark-sheet refers to the grand total 950 marks of all subjects, and the total marks secured by the petitioner, is shown as 427. So far as the mark-sheet of the second attempt is concerned, the fallacy, which is being committed by the respondent No.3 in calculating his marks the passing marks of only five

C/SCA/13428/2011 JUDGMENT DATED: 31/07/2021

subjects, in which the petitioner had appeared, are calculated. The subsequent mark-sheet of November-2000 shows that the petitioner in his second attempt has secured total 417 marks, whereas, the respondents have considered the passing marks of 138 out of grand total of 350 marks which is erroneous. The respondents were required to deduct 100 marks of the exempted English subject from grand total of 950 marks, which would come to 850 marks and hence, the passing marks or the percentage has to be calculated on the basis of 417 marks (out of 850 marks), which would come to 49.05%. Now, if the grand total of both the mark-sheets of all the subjects are concerned, that would come 950+850=1800 marks and the marks secured by the petitioner in both the attempts would come to 427+417=844 marks, so the percentage has to be calculated from 844 marks out of 1800 marks i.e. which comes to 46.88%. The miscalculating of the marks has created the entire controversy and the petitioner has been left out from the job for all these years. Thus, it was a total misunderstanding of calculation of grant total marks of both the marks-sheets.

16) Clause-B of circular dated 09.08.2011 stipulates; "sum of the total marks of each attempt" and "percentage calculated from the marks obtained." The correct calculation as per Clause-B is as under:-

Sr. Year Attempt Total Marks Obtained Marks Result No.

1)     B.Sc.              First           950              427                Fail
       April-2000
2)     B.Sc.             Second          850*              417               Result
       Nov.-2000                                                              Pass
       Grant Total                       1300              844              46.88%

*850 marks in second attempt, since the petitioner had taken exemption in one subject, i.e English, which is of 100 marks.

    C/SCA/13428/2011                                   JUDGMENT DATED: 31/07/2021



17)    It is not in dispute that the respondent No.3 has taken the grand total

of 950 marks of the mark-sheet of April-2000, however, in the subsequent mark-sheet of November-2000 all other marks are excluded and only the marks of the five subjects are included, which, in the considered opinion of this Court, would be misreading of clause-B of the circular dated 09.08.2011. When in the first mark-sheet the total 950 marks are considered, then, while calculating the marks of second attempt, the respondents cannot only count marks of five subjects. Such an eventuality is not prescribed under clause-B of the Circular dated 09.08.2011.

18) In light of the aforesaid facts, indubitably, the petitioner has been illegally denied the appointment by the respondent No.3, in wake of the fact that the Director of Primary Education, had accordingly calculated the correct percentage of the petitioner. He was legally and validly selected, but at the time of reporting, he was denied appointment due to miscalculation of marks on the part of respondent no.3. Since, one post of the teacher is left vacant, as per the order passed by the Coordinate Bench of this Court vide order dated 19.10.2011, the respondents are directed to appoint the petitioner on the suitable post of Vidhya Sahayak. Learned advocate Mr.Pujara has very fairly submitted that during the pendency of the petitioner, the petitioner was in the employment for four years and the petitioner would not claim any back-wages.

19) Accordingly, the following order is passed:-

A) The respondents are directed to issue appointment order to the petitioner, appointing him to the post of Vidhya Sahayak for upper primary Schools (standard VI to VIII);

B) The respondents are further directed to fix the deemed date of appointment as 01.09.2011. The seniority of the petitioner shall be

C/SCA/13428/2011 JUDGMENT DATED: 31/07/2021

calculated from 01.09.2011 and he shall be placed in the seniority accordingly.

C) It is further clarified that the intervening period shall be treated as notional for all these purposes and his pay-scale shall also be fixed accordingly while calculating the intervening period.

19. The aforesaid directions shall be complied within a period of three months from the date of receipt of the writ of the order of this Court.

20. With the above directions, the petition stands disposed of. Rule is made absolutely.

21. Registry is directed to intimate the concerned authority about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode.

22. Learned advocate for the petitioner is also permitted to send a copy of this order to the concerned authority through Fax message, email and/or any other suitable electronic mode. Direct service is permitted.

Sd/-

(A. S. SUPEHIA, J) VISHAL MISHRA