Madhu Dilsukhbhai Joshi vs State Of Gujarat
2021 Latest Caselaw 7155 Guj

    C/SCA/13652/2017                                 JUDGMENT DATED: 29/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13652 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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                        MADHU DILSUKHBHAI JOSHI
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 29/06/2021

                             ORAL JUDGMENT

1. Heard learned advocate Mr. Dipak Dave for the petitioner and learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent State through video conference.

C/SCA/13652/2017 JUDGMENT DATED: 29/06/2021

2. Rule. Learned Assistant Government Pleader Mr. Jayneel Parikh waives service of notice of rule on behalf of the respondent-State through video conference.

3. Brief facts of the case are as under :

3.1) The petitioner applied for the post of teacher in Social Science subject in Government Aided Higher Secondary School pursuant to the advertisement dated 12.4.2016 issued by respondent no.2. The petitioner was possessing the qualifications of BA with Psychology as main subject, M.A. with Psychology Clinical as main subject, Diploma in Computer Science, B.Ed. with subject of History and Geography, PGDCA and M.Ed with Sociology. The petitioner was selected and her name appeared in the merit list. The petitioner had selected Junagadh District as her choice of District and accordingly came to be allotted Junagadh District in third round of selection.

3.2) After verification of the documents by respondent no.3, the petitioner came to be issued appointment letter dated 08.05.2017.

3.3) It is the case of the petitioner that when the petitioner went to resume the duty, she was informed by the principal of respondent no.4 school that they have received telephonic instructions from the office of District

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Education Officer not to allow the petitioner to resume duty. The petitioner also received call from office of respondent no.3 -District Education Officer that she should not resume the duty until further instructions.

3.4) The petitioner thereafter made representations before the various authorities but no reply has been received by the petitioner. It is the case of the petitioner that candidates below the petitioner in the merit list have been allowed to resume the duties with effect from 5.6.2017, however, the petitioner was not permitted to join the duty.

3.5) Being aggrieved by such action on part of the respondents authorities, the petitioner has preferred the present petition.

4. This Court (Coram ; Hon'ble Mr. Justice S.G. Shah, As His Lordship was then) passed the following order on 21.07.2017 :

"The appointment of the petitioner herein is subject to the final outcome of this petition irrespective of filing a detailed affidavit-in-reply. The respondents will have to disclose on oath on the returnable date that when they have called the petitioner for appointment in school by order dated 8th May, 2017, then why they have denied or restrained the petitioner from joining the service.

Notice returnable on 2.08.2017. Learned AGP waives service of notice for respondent-

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State."

5. This Court (Coram : Hon'ble Mr. Justice Biren Vaishnav) in similar facts as that of the petitioner allowed the Special Civil Application No.18767/2017 vide order dated 24.1.2020, whereby the respondents were directed to appoint the petitioner therein on the post of "Shikshan Sahayak" and in the eventuality of no vacancy being there in the school, further directed the respondents to give the posting to the petitioner on a vacant post at any other suitable place. The said order dated 24.1.2020 came to be challenged by filing Letters Patent Appeal No.138/2021 and this Court (Coram : Hon'ble the Chief Justice Mr. Justice Vikram Nath and Hon'ble Mr. Justice Ashutosh J. Shahstri) vide judgment dated 23.2.2021 dismissed the appeal filed by the respondent- State.

6. In yet another matter having similar facts as that of petitioner being Special Civil Application No.6721/2017, this Court (Coram : Hon'ble Mr. Justice N.V. Anjaria) allowed the Special Civil Application No.6721/2017 vide judgment dated 26.2.2019, whereby the action on part of the respondents in not offering appointment to the petitioner therein as Head Teacher (Class-III) despite availability of vacancy and despite inclusion of name of the petitioner in the selection list, was quashed

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and set aside and the respondents therein were directed to offer appointment to the petitioner within stipulated time limit. It was held as under :

"5. In exercise of powers conferred by Section 23(3) of the Gujarat Primary Education Act, 1947, the State Government has framed the rules called the Head Teacher, Class-III, in the Directorate of Primary Education, District Primary Education Committees and Municipal Primary Education Committees Recruitment Rules, 2016. The recruitment to the post of Head Teacher is governed by these Rules. According to Rule 2, appointment to the post of Head Teacher, ClassIII, could be made by promotion or by way of direct selection which is in the ratio of 1:1. Rule 4 provides for the eligibility regarding age, etc.

5.1 Rule 4(b)(3) of the Rules which is relevant for the purpose of present controversy and which prescribes the experience requirement to be possessed by the candidate, reads as under.

"4. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall -

(a) ... ... ...

(b)(1) ... ... ...

(2) ... ... ...

3(i) have passed the Head Teacher Aptitude Test as may be prescribed by the Government;

and

(ii) have about five years' separate or combined experience of teaching as a Teacher or Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Government or Grant-inAid or Non-Grant-in-Aid Private Lower Primary

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School or Upper Primary School or Secondary Education School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training (DIET); and

(c) possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and

(d) possess adequate knowledge of Gujarat or Hindi or both."

5.2 Thus, sub-clause(ii) of sub-rule (b)(3) of Rule 4 of the Rules contemplate that the aspiring candidates should have the experience of five years separate or combined, of teaching as Teacher, Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in the government or grantin-aid or non-grant-in- aid school or secondary education school etc. The prescription of five years' experience as Teacher has indicated.

5.3 It is also relevant to refer the Rules called the Vidhya Sahayak/Teacher, Head Teacher, Assistant Education Inspector and Supervisor, Class III, in the Subordinate Service of the Directorate of Primary Education and District Primary Education Committees and Municipal Primary Education Committees (Procedure for Selection) Rules, 2017 which are stipulative of the procedure for selecting the candidates to the post. These Rules are also applicable to the post of Head Teacher, Class-III. The Selection Committee is defined in Rule 2(d) which is constituted under Rule 3. The designation of the Members who are to constitute the Selection Committee are indicated. Rule 4 deals with the duties and functions of the said Primary Education Selection Committee which is the Committee which would undertake the process of issuing advertisement for recruitment. Selection procedure and the

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stages are also delineated and under Rule 6, the Selection Committee scrutinise the applications regarding eligibility and performance of the candidates and proceeds to prepare merit list under Rule 7.

5.4 The district selection procedure is mentioned in Rule 9. The candidate will be selected by the Selection Committee in compliance of this Rule. Selection Committee examines degree certificates of the candidates under Rule 14(1) and also judges the suitability and eligibility. Under Rule 14(3) it is provided that District Primary Education Officer/Administrative Officer shall give appointment to the selected candidates.

5.5 The petitioner claimed before the Selection Committee that she had seven years' of teaching experience. Details of experience which the petitioner admittedly possess, are thus - (i) 09-07- 2009 to 08- 01-2010 as Mukhya Balsakhi/Priya Sakhiat Sachaya, (ii) 10-01-2010 to 09-11-2010 as Balsakhi at Sachana, (iii) 11-11-2010 to 10- 09-2011 as Balsakhi at Sachana, (iv) 12-09- 2011 to 11-07-2012 as Galsakhi at Sachana,

(v) 02-06-2012 to 30-04-2013 as part time (only teaching worker) Teacher at Sachana,

(vi) 02-05-2013 to 31-03-2014 as part time Teacher (only teaching work) at Sachana,

(vii) 02-04-2014 to 29-02-2015 as Warden- cum-Head Teacher at Sachana, (viii) 01-06- 2014 to 30-05-2015 as Warden-cum-Head Teacher at Sachana, (ix) 01-06-2015 to 30- 04-2016 as Warden-cum-Head Teacher at Sachana, (x) 01-05-2016 to 31-03-2017 as Warden-cum-Head Teacher at Sachana.

5.6 The certificates produced by the petitioner along with the petition and further affidavit fortify that the petitioner has the experience. The petitioner thus has the total experience of 56 months as Balsakhi and has further experience of working as Head Teacher-cum-

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Warden.

5.7 The petitioner undewent the whole process of selection. She has not only passed the preliminary test but was also called for selection and even was offered the district having been placed in the merit list. The petitioner selected district where there was a clear vacancy, however all of a sudden, appointment was for denied on the ground that the petitioner did not have the requisite experience.

5.8 The ground abruptly raised denying the petitioner of having the requisite experience, stand refuted by virtue of the details of certificates of experience of the petitioner. The Selection Committee considered the details of the experience and testimonials in that regard and permitted the petitioner in all the stages of recruitment. The petitioner was selected and was put virtually at irreversible situation by even offering selection of district.

5.9 The respondents are now estopped, having allowed the petitioner all throughout in the stages of process, treating her to be eligible and offering appointment, to contend that the experience requirements was not satisfied. The petitioner having cleared all the stages, reasonably expected that she would be appointed in the district for which she had offered choice upon being asked by the respondent and where the vacancy was also available. The respondents acting through the Selection Committee under the Rules cannot be permitted to contend at a later stage that the experience requirement was not satisfied more particularly when the details were examined in the process and the petitioner was found to be possessed the necessary experience.

6. Even otherwise, the details of experience mentioned hereinabove which are not disputed the aforesaid experience of five years as

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Teacher, there was no good reason not to treat the experience of Balsakhi which was other name of Teacher and the duties discharged by Balsakhi was that of and akin to the Teacher only. The petitioner was rightly selected and offered a district for appointment on the basis of her experience as above.

7. Accordingly, the present petition stands allowed. The action on part of the respondents in not offering appointment to the petitioner as Head Teacher (Class-III) despite availability of vacancy and despite inclusion of name of the petitioner in the selection list, is hereby set aside. Respondent Nos.2 and 3 are directed to offer appointment to the petitioner as Head Teacher (Class-III) in the Mehsana District in the primary school run by District Primary Education Committee/Nagar Prathmik Shikshan Samiti under respondent No.2 within fifteeh days from the date of service of this order.

The petition stands allowed accordingly. Rule is made absolute in the aforesaid terms."

7. The said order dated 26.2.2019 came to be challenged by filing Letters Patent Appeal No.334/2021 and this Court (Coram : Hon'ble Ms. Justice Sonia Gokani and Hon'ble Ms. Justice Sangeeta K. Vishen) vide judgment dated 26.3.2021 dismissed the appeal filed by the respondent-State.

8. The case of the petitioner is similar to that of petitioners in the judgments mentioned above. In facts of the present case, the petitioner was selected by a regular recruitment process and her name also appeared in the merit list. After

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verification of the documents by respondent no.3, the petitioner came to be issued letter dated 08.05.2017. Even the petitioner came to be allotted Junagadh District in third round of selection. However, the petitioner was denied permission from actual resumption of duty by orally informing her that there is discrepancy in subjects studied by the petitioner as petitioner is B.A. in Psychology and B.Ed. with Social Science, (History and and Geography).

9. The ground abruptly raised denying the petitioner of having requisite qualification, is not tenable in law. The Selection Committee considered the details of the education qualification and permitted the petitioner to appear in all the stages of recruitment. The petitioner was selected and was put virtually at irreversible situation by even offering selection of district.

10. The respondents are therefore, now estopped, having allowed the petitioner to appear in all stages of recruitment and offering appointment, to contend that the petitioner was not possessing requisite qualification. The petitioner having cleared all the stages, legitimately expected that she would be appointed in the district where the vacancy was available for which she had offered choice upon being asked by the respondent. The respondents acting through the Selection Committee under the

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Rules cannot be permitted to contend at a later stage that requisite educational qualification was not satisfied, more particularly when the details were examined in the selection process and the petitioner was found to be eligible and even issued appointment letter.

11. Even other-wise, the petitioner did possess the required educational qualification and the action of respondent authorities of not permitting her to join the duties at a later stage, irrespective of the fact that she has cleared all the stages of recruitment, after being appointed, is not tenable in eye of law.

12. Accordingly, the petition is allowed. The action on part of the respondents in not offering appointment to the petitioner as "Shikshan Sahayak" in the respondent no.4 - school despite availability of vacancy and despite inclusion of name of petitioner in selection list, is hereby set aside. Respondents are directed to offer appointment to the petitioner on the post of "Shikshan Sahayak" in the respondent no.4-school within 12 weeks from the date of receipt of a copy of this order.

13. Petition stands disposed of accordingly. Rule is made absolute to above extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR