State Of Gujarat vs Dipikaben Dhanjibhai Parmar
2021 Latest Caselaw 4777 Guj

            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 334 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 6721 of 2017
                                 With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
              In R/LETTERS PATENT APPEAL NO. 334 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI

and

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

==========================================================

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 ?

========================================================== STATE OF GUJARAT Versus DIPIKABEN DHANJIBHAI PARMAR ========================================================== Appearance:

MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3 MR DIPAK R DAVE(1232) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 26/03/2021 CAV JUDGMENT (PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

1. By this Letters Patent Appeal, the appellants have challenged the CAV judgment dated 26.2.2019, whereby, the learned single Judge has allowed the writ petition, setting aside the action of the appellants, that is, the respondents in not offering appointment to the original petitioner (hereinafter referred to as "the petitioner") as Head Teacher (Class-III), despite availability of vacancy and despite inclusion of name of

the petitioner in the selection list.

2. The facts, as is discernible from the record, are as under:

2.1 The petitioner is serving as a Teacher in Kasturba Gandhi Balika Vidyalaya, an approved school run by the District Panchayat under Sarva Shiksha Abhiyan (hereinafter referred to as "the SSA"). The petitioner has been appointed as Teacher in the said school since 9.7.2009 and barring artificial break of one or two days, the petitioner has been in continuous employment in the said school. Moreover, the petitioner has also cleared the Head Teacher Aptitude Test (hereinafter referred to as "the HTAT").

2.2 Vide advertisement dated 22.1.2017, online applications were called for, from the eligible candidates. Accordingly, the petitioner applied on 30.1.2017 for appointment to the post of Head Teacher (Class-III). The petitioner disclosed all the relevant details including the experience and accordingly, her form came to be accepted, followed by a call letter dated 28.3.2017 and the petitioner was shown at serial no. 62 in the merit list of the reserved category. The petitioner was required to remain present before the Selection Committee on 30.3.2017. As per the rules and regulations of the appellants, the candidates having requisite qualification were only called for the purpose of district selection and since the petitioner was fully qualified, was not only included in the selection list, but was also called to offer her choice of district. Consequently, the petitioner also gave her choice of district, as Mehsana.

2.3 The petitioner was informed orally by the Selection Committee that she cannot be offered an appointment since the petitioner is working on contract basis in the school. Being aggrieved, the petitioner preferred the captioned writ petition before this Court seeking direction that the action on the part of

the appellants - respondents, in not offering appointment in Mehsana district, despite availability of vacancy and despite the inclusion of the name of the petitioner in select list, is illegal, unjustified and arbitrary.

2.4 In the writ petition, the appellants - respondents, took a stand that the advertisement dated 21.1.2017 has been issued as per the notification, rules and regulations governing appointment to the post of Head Teacher. The State Government, relied upon the rules to contend that, it is mandatory for the appointment in question that a candidate must have five years' experience as a Teacher or Vidya Sahayak or Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer etc. in Government or grant-in-aid or non-grant-in-aid private lower primary school or upper primary school or secondary education or higher secondary education. The stand of the appellants - respondents had been that the petitioner had filled her qualification of PTC, BA, MA and has mentioned experience in different capacities. The petitioner has shown having possessing seven years, six months and seven days experience in the Kasturba Gandhi Balika Vidyalaya, Sachana from 9.7.2009 to 26.01.2017; however, the experience is on contractual basis. Further, the experience as Mukhya Bal Sakhi, cannot be considered to be a valid experience as a Teacher.

2.5 The learned single Judge, after hearing both the parties, vide CAV judgment dated 26.2.2019, allowed the writ petition and declared that the action on the part of the appellants - respondents in not offering appointment to the petitioner as Head Teacher (Class-III) despite availability of vacancy and despite inclusion of name in selection list, is illegal. The learned single Judge further directed the appellants - respondents to offer appointment to the petitioner as Head Teacher (Class-III) in the Mehsana district in the primary school run by the District Primary

Education Committee/Nagar Prathmik Shikshan Samiti under the appellant no.2 within 15 days from the date of service of the order. The appellants - respondents, being aggrieved, has filed the present appeal challenging the aforesaid CAV judgment dated 26.2.2019.

3. Mr. Utkarsh Sharma, learned Assistant Government Pleader, for the appellants submitted that the State Government has, in exercise of the powers conferred under sub-section (2) of Section 23 of the Gujarat Primary Education Act, 1947, has framed the rules called the Head Teacher, Class-III, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016 (hereinafter referred to as "the Rules of 2016"). Clause (3) of sub- rule (b) of Rule 4 prescribes the experience to be possessed by the candidate, and one of which provides that a candidate must have five years of separate or combined experience of teaching as a Teacher in Government or grant-in-aid or non-grant-in-aid private lower primary school or private upper primary school etc.; however, the petitioner was not possessing the said experience. The experience possessed as Mukhya Bal Sakhi cannot be considered to be a valid experience as Teacher and therefore, the petitioner was not eligible for being appointed to the post of headmaster.

3.1 It is submitted that there has to be a right crystallised in favour of a party and if there is any refusal or denial of that right, then the petitioner would be justified in claiming the appointment. In other words, there has to be some rights rendering the petitioner eligible for being appointed to the post of Headmaster. It is next submitted that the documents submitted do not confer any right in favour of the petitioner and that there was no material before the learned single Judge, whereupon, the Court has come to the conclusion that the action on the part of

the appellants - respondents is illegal unjustified and arbitrary. It is not that the appellants - respondents are against the petitioner, but they are against the broad equivalence drawn, which will have the effect of diluting the requirements provided by virtue of the Rules of 2016 and more particularly, sub-clause

(ii) of clause (3) of sub-rule (b) of Rule (4) of the Rules of 2016.

3.2 It is submitted that the appointment letter dated 8.7.2009 clearly suggests that the petitioner was appointed as Bal Sakhi at Kasturba Gandhi Balika Vidyalaya and that too on a contract basis. Similarly, the appointment letter dated 27.6.2014 is with respect to the appointment of the petitioner as Warden-cum- Principal at the Kasturba Gandhi Balika Vidyalaya School, Sachana and therefore, the petitioner was not possessing the requisite experience so as to make her eligible for being appointed as headmaster.

3.3 While referring to the observations made by the learned single Judge, it is submitted that what weighed with the Court was the fact, that the petitioner was informed about the rejection at the fag end of the process. It is submitted that it is only at the time of verification of documents, the qualification can be determined and the petitioner could have been informed and therefore, the observation of the learned single Judge that having cleared all the stages, the petitioner could not have been denied the appointment, is not in the right earnest. It is further submitted that the learned single Judge further erred in concluding that there was no good reason not to treat the experience of Bal Sakhi which is another name of Teacher and duties discharged by the Bal Sakhi are akin to the duties discharged by the Teacher. The said observation is erroneous for, there was no evidence led or any material produced or for that matter any rules, which could have proved that the duties discharged by the Bal Sakhi are akin to those of Teacher. The

Selection Committee considered the provisions of the Rules of 2016 and did not accept the candidature of the petitioner and therefore, it cannot be said that the action on the part of the appellants - respondents was illegal and arbitrary. It is submitted that the judgment by the learned single Judge, has far-reaching effect, not only on the present recruitment, but also on the other recruitments inasmuch as, the experience prescribed by the Rules of 2016 has been given a go bye.

3.4 It is submitted that it ought to have been appreciated that the Rules of 2016 provides for a particular requirement and the petitioner was bound to fulfill the said qualification, however, the petitioner is not possessing the requisite experience and in absence of any challenge to the Rules of 2016, no fault can be found with the action of the appellants - respondents. In fact, the qualification of the petitioner, if considered, is vague, inconsistent and ambiguous. In view of the form filled in by the petitioner, she was selected, because, under the heading "post" she has furnished the details of working on the post of "Teacher". However, considering the experience and the fact that the petitioner has worked as Bal Sakhi and Warden, the petitioner cannot be said to have possessing requisite experience for being appointed as Headmaster and therefore, the Committee has rightly rejected her candidature. Therefore, it is urged that the CAV judgment dated 26.2.2019 warrants interference by this Court.

4. Mr Deepak R. Dave, learned advocate for the petitioner, while taking this Court to the judgment of the learned single Judge, and more particularly paragraph 5.5 onwards submitted that the petitioner was named in the select list as she was found eligible and it was at the fag end of the process that the candidature of the petitioner was rejected. While doing so, no grounds worth the name have been given as to why the

petitioner's candidature has been rejected. It is submitted that the recruitment of the Head Teacher and other posts is governed by the Vidya Sahayak/Teacher, Head Teacher, Assistant Education Inspector and Supervisor, Class III, in Subordinate Service of the Directorate of Primary Education and District Primary Education Committees and Municipal Primary Education Committees (Procedure for Selection) Rules, 2017 (hereinafter referred to as the "Rules of 2017").

4.1 It is next submitted that Rule 7 of the Rules of 2017 provides for preparation of merit list by the Selection Committee of the candidates who are otherwise found eligible in accordance with the provisions of recruitment rules of the concerned post on the basis of marks obtained in the relevant examination. Concerned District Education Officer scrutinised the testimonials of the petitioner and placed her in the merit list. In other words, all the documents were duly verified and it is only thereafter that the petitioner was included in the merit list. All the experiences are of the Kasturba Gandhi Balika Vidyalaya, Sachana, where, admittedly, she was imparting education as a Teacher. It is a recognised primary school run by the District Panchayat under the SSA with full grant-in-aid from the Central Government. It is submitted that after undertaking the recruitment process, the Selection Committee had required the petitioner to remain present and was simply informed that her appointment was contractual and was accordingly, not offered the option. The appellants - respondents at the stage of preparation of the merit list could have informed about the ineligibility of the petitioner, but they did not do so. Even otherwise, the petitioner is fully eligible for being appointed as Head Master as she is possessing the requisite experience as contemplated under Rule 4(b)(3)(ii).

4.2 It is next submitted that the factum of the petitioner possessing requisite experience is substantiated by the

information provided by the District Information System for Education for the years 2010 till the years 2015-16. The said information was provided at the threshold, which clearly reveals that the petitioner has imparted education as Teacher. While emphasising on the details in the tabular forms, it is submitted that in Column no.6, the category mentioned is '3', which has been further clarified below the tabular form as "Teacher". Therefore, the information provided by the District Information System for Education, for all the years has assigned the petitioner the category "3", which is further categorised as "Teacher". Therefore, there was no reason for the Selection Committee to have rejected the candidature of the petitioner more particularly, when these vital informations were provided to it at the threshold, which clearly reflects that the petitioner has rendered her service as Teacher and resultantly possessing the experience of more than seven years of teaching.

4.3 The sole objection raised by the appellants - respondents is that petitioner is Bal Sakhi and not a Teacher. The said stand of the appellants - respondents is erroneous because, the Kasturba Gandhi Balika Vidyalaya is run under SSA and has its own nomenclature for Teachers. Further, for part-time Teachers duty is for eight hours teaching, which is supported by the job chart. Therefore, the objection of the nomenclature is without any basis and against the guidelines provided by the State Government itself.

4.4 It is submitted that it is not that the petitioner is not possessing requisite qualification; stand of the other side is that the petitioner is lacking in experience. Therefore, the learned single Judge has rightly observed that the petitioner having cleared all the stages, reasonably expected that she would be appointed in the district for which she had offered a choice upon being asked by the appellants - respondents where the vacancy

was, also available. The learned single Judge has rightly observed that the appellants - 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 duly examined and the petitioner was found to have possessing the necessary experience.

4.5 While adverting to the judgment relied upon by the appellants - respondents, it is submitted that the said judgment has no application to the facts of the present case because, the issue before the Hon'ble Division Bench was with regard to persons working as block resources and were not allowed to take examination and therefore the rules came to be challenged. So far as the block resources persons are concerned their duties were to supervise the working of the teachers and were not required to actually teach; whereas the petitioner is required to take subjects and impart teaching in the classes. Therefore, the reliance placed on the judgment dated 6.4.2017 passed by this court in Special Civil Application no. 1746 of 2017, is misplaced.

4.6 While concluding, reliance is placed on the judgment in the case of The Management of Narendra & Company Private Limited vs. The Workmen of Narendra & Company reported in (2016) 3 SCC 340 to contend that merely because another view or better view is possible, there should be no interference with or disturbance of the order passed by the learned single Judge. It is further submitted that the appellants - respondents have failed to point out that the judgment is based on no material or that the material germane to the issue has not been considered. Therefore, the appellants - respondents having failed to make out any case, the appeal deserves to be rejected in limine.

5. Heard the learned advocates for the respective parties, perused and considered the material available on record.

6. The issue revolves around the qualification and experience prescribed by virtue of sub-clause (ii) of clause (3) of sub-rule (b) of Rule 4 of the Rules of 2016. It provides that to be eligible for appointment by direct selection to the post of Headmaster, a candidate shall have about five years' separate or combined experience of teaching as a Teacher or Vidya Sahayak, and other categories mentioned therein, in Government or grant-in-aid or non-grant-in-aid private lower primary school or upper primary school etc. Rule 4(b)(3)(i) and (ii) of the Rules of 2016, read 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-in- Aid or Non-Grant-in-Aid Private Lower Primary 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 ...."

The rule provides for two-fold requirements; firstly, that the candidate to be eligible for appointment shall have about five years separate or combined experience of teaching and ; secondly, in Government or grant-in-aid institution. Hence, what was required to be seen was whether the petitioner possesses five years', separate or combined experience of teaching as a Teacher?

7. Pertinently, the petitioner was working under the nomenclature of Bal Sakhi. The information provided by the District Information System for Education for the period from the

year 2010-2011 till the year 2015-2016, specifically reflects the category of the petitioner as Teacher. The tabular form carries various headings and one of which pertains to "category", wherein the number mentioned is "3" . Below the tabular form, further clarifications are provided and the category "3" pertains to "Teacher". Therefore, the details provided by the District Information System for Education records the fact about the petitioner being a Teacher in the year 2010-11 and thereafter in the years 2011-12 , 2012-13, 2013-14, 2014-15. Similarly, the details for the year 2015-16 of the District Information System for Education, the petitioner has been shown as the "Headmaster". The said factual aspect has not been disputed by the appellants - respondents and the objections raised are that there was a discrepancy in the certificates issued by the authorities and the petitioner was appointed on contractual basis. Pertinently, the certificates are issued by the authorities working under the appellants- respondents and therefore, there cannot be any question of disbelieving those certificates, certifying that the petitioner has worked for a particular duration as a Teacher and thereafter, as Head Teacher, with the Kasturba Gandhi Balika Vidyalaya, which is an approved primary school run by the District Panchayat under SSA and in fact, is a Government primary school functioning on the basis of grant-in-aid from the Central Government. Therefore, both the requirements envisaged under Rule 4(b)(3)(ii) stand fulfilled by the petitioner. Therefore, the learned single Judge recording the petitioner's tenure working as a Teacher and experience in paragraph 5.5, has rightly observed in paragraph 5.6 that the certificates produced by the petitioner along with the petition and further affidavit, fortify that the petitioner has total experience of 56 months as Bal Sakhi and has further experience of working as Head Teacher-cum-Warden.

8. Pertinently, the petitioner applied on 30.1.2017, disclosing

all the relevant details, including her experience, details and it is thereafter, that the form of the petitioner came to be accepted. It is only when the petitioner was found eligible and qualified that she received a call letter dated 28.3.2017 and was thereafter, required to choose the district as per the norms of the Selection Committee. The petitioner also chose the district of Mehsana as her preference; however, it was only at the fag end of the recruitment process that the petitioner was orally informed by the Selection Committee that the petitioner cannot be offered appointment as she is working on contractual basis. It is not that the certificates and testimonials were not verified by the Selection Committee. Such exercise was undertaken by the Selection Committee and that the petitioner was selected. Therefore, the Selection Committee was also of the view that the petitioner was qualified to be included in the select list. The subsequent stand taken by the Selection Committee of rejecting the candidature of the petitioner, is erroneous in view of the certificates and informations provided by the concerned authorities. Therefore, the observations made by the learned single Judge to the effect that 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 respondents and where the vacancy was also available. Therefore, considering the material available on record, it cannot be said that the learned single Judge committed any error in concluding that the respondents acting through the Selection Committee under the Rules, cannot be permitted to contend at a later stage that the experience required was not satisfied and more particularly, when there was in-depth examination of the certificates and testimonials during the selection process.

9. Further, the learned single Judge has also observed that the details of experience mentioned are not disputed and that there

was no good reason not to treat the experience of Bal Sakhi which is other name of Teacher and the duties discharged by Bal Sakhi was that of and akin to the Teacher only. The aforesaid findings of the learned single Judge are based on various certificates issued by the District Project Co-ordinator and District Primary Education Officer, SSA Ahmedabad, so also the information provided by the District Information System for Education, clearly recording that the petitioner has been working as Teacher.

10. Adverting to the judgment of the learned single Judge, it is required to be noted that after considering all the documentary evidences produced by the petitioner in support of her case, the learned single Judge has in paragraphs 5.5 to 5.9, observed thus:

"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-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."

11. Quiet apart, the State Government in its Education Department has issued a resolution dated 18.1.2012 providing for Head Teacher Attitude Test. The same has been amended from time to time. As per the Rules of 2016, a person for becoming eligible for being appointed as a Teacher, is required to clear the HTAT as prescribed by the State Government. It is also not in dispute that the petitioner has cleared her HTAT with 65.33% in the first attempt. Therefore, the said requirement envisaged in Rule 4(b)(3)(i) stands fulfilled. Not only the requirement of Rule 4(b)(3)(ii), but the petitioner fulfills the requirement of Rule 4(b) (3)(i) as well.

12. We have considered the arguments advanced by the learned advocates for the respective parties and as is discernible from the aforementioned paragraphs, the learned single Judge has dealt with each and every aspect. Considering the documents in juxtaposition with the language of the Rule 4(b)(3)(ii) of the Rules of 2016, the learned single Judge has held in favour of the

petitioner and against the appellants - respondents. Therefore, the findings recorded by the learned single Judge do not warrant any interference as there is no perversity or manifest error of law, pointed out by the learned Assistant Government Pleader. The judgment of the learned single Judge does not suffer from any infirmity and the appeal being devoid of any merits is accordingly dismissed.

13. Consequently, the connected Civil Application also stands disposed of. No order as to costs.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) BINOY B PILLAI