Patel Janhviben Jayantilal vs State Of Gujarat
2021 Latest Caselaw 16973 Guj

     C/SCA/3369/2019                                  JUDGMENT DATED: 28/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3369 of 2019

FOR APPROVAL AND SIGNATURE:                      sd/-

HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             Yes

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

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

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                         PATEL JANHVIBEN JAYANTILAL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
JAY R SHAH(8428) for the Petitioner(s) No. 1,2
MR BHAVESH J PATEL(6801) for the Petitioner(s) No. 1,2
MR.ROHAN SHAH, AGP for the Respondent(s) No. 1,2
MR MITUL K SHELAT(2419) for the Respondent(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 28/10/2021
                              ORAL JUDGMENT

[1] Rule. Learned AGP Mr.Rohan Shah waives service of notice of rule on behalf of the respondent nos.1 and 2. Learned advocate Mr.Mitul Shelat waives service of notice of rule on behalf of the respondent nos.3 and 4.

[2] The present writ petition has been filed seeking directions directing the respondent to

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appoint the petitioners as the Assistant Teachers.

[3] The brief facts of the present case are that the petitioners, who belong to General Category are possessing the qualification of SSC, HSC and PTC. Vide communication dated 21.09.2016, the District Education Officer, Karelibaug, Vadodara, sanctioned total six posts of Assistant Teachers and pursuant to the same, the respondent no.3 - University, vide communication dated 23.09.2016 directed the respondent no.4 to recruit six persons for the post of Assistant Teachers after following due selection procedure as per University Rules and as per the sanction given by the District Education Officer.

[3.1] Accordingly, by the advertisement dated 01.10.2016, the University invited written applications to fill up six posts of Assistant Teachers. Out of six posts, 01 post was reserved for SC quota, 01 for ST, 01 post for SEBC and 03 for general category. The petitioners filed written applications seeking appointment for the post of Assistant Teachers.

[3.2] After holding recruitment process, a select list of first three candidates was declared vide Public Notice dated 17.01.2017 by the respondent no.4 - School. The names of the petitioner Nos.1 and 2 figured at Sr. Nos.2 and 3

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respectively.

[3.3] On 27.01.2017, the Syndicate Meeting of the Maharaja Sayajirao University of Vadodara was held, whereby the selection committee has approved the agenda (Appendix-27) regarding the appointment of the Assistant Teachers (3 posts) for the University Experimental School.

[4] Learned advocate Mr.Jay Shah for the petitioners has submitted that the Syndicate had approved the appointment of Assistant Teachers for three (3) posts, however the respondent University has given appointment to only one candidate Ms.Devangi Bhanubhai Patel as Assistant Teacher (Vidhya Sahayak) vide office order dated 18.02.2017 on permanent basis. It is submitted that the petitioners were selected in oral interview at Sr.No.2 and 3 and the DEO, Vadodara had also approved the appointment of the petitioners and other candidate Ms.Devangi Bhanubhai Patel vide letter dated 21.01.2017, however the respondent-University has appointed the petitioners on ad hoc basis instead of regular basis.

[4.1] Learned advocate for the petitioner has further submitted that on 26.11.2018, the petitioners made written representation to the District Education Officer, Vadodara requesting to consider the matter of the petitioners and

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give appointments to them for the posts in question.

[4.2] It is further submitted that the respondent no.2 has erred by not appreciating the fact that as per the advertisement, the requirement was of total three (3) Assistant Teachers of General Category and in the present case, the petitioners who belong to General Category and possess all the required qualifications and the petitioners also have cleared the recruitment process and hence, they cannot be denied regular appointment. It is thus, submitted that the inaction on the part of the respondent no.3 in not giving regular appointment to the petitioners has caused grave injustice to them and this action of the respondent no.3 amounts to violation of Article 21 of the Constitution of India.

[5] In response to the aforesaid submissions, learned advocate Mr.Mitul Shelat appearing for the respondent University has submitted that pursuant to the 'No Objection Certificate' dated 21.09.2016 granted by the District Education Officer to fill up the posts of Assistant Teachers, on 01.10.2016, the respondent issued a public advertisement inviting applications for the post of Assistant Teachers. It is further submitted that in terms of the advertisement, 6 posts were advertised for Primary Division Class-

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I to V. Out of these 6 posts, 01 post for SEBC candidate, 02 posts of SC and 03 posts of General Category candidates were reserved and in addition to above, 01 post of Drawing Teacher for Upper Primary Division, which was for a candidate belonging to ST.

[5.1] It is further submitted that the University has noticed that in fact total sanctioned setup of the school was of 9 Assistant Teachers and out of 9 posts, only 4 posts remained vacant and by mistake, while issuing the advertisement, 6 posts were advertised in the category of Primary School and 01 post in the category of Upper Primary School and out of 3 post in the Primary School, 01 post was for General Category candidate and 01 for SC and 01 for SEBC, therefore, the University has issued the appointment order only in respect of 01 General Category candidate, who was at Sr.No.1 in the list. It is further submitted that the present petitioners have been appointed by the University on the said post on a contractual basis from the year 2016-17 till today.

[5.2] It is further submitted that as far as the sanctioned posts and appointments are concerned, the University is governed by the Government Resolution No.MUS/1208/4465/Kh dated 03.09.2010 and as per the said Government Resolution, the respondent is not empowered to

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create a post beyond the sanctioned setup or give appointments on the vacant posts, without the prior approval of the State Government.

[5.3] It is further submitted that the respondent-University has received a communication from the District Education Officer, Vadodara dated 15.03.2018 and the said communication was replied by the respondent vide letter dated 10.05.2018, inter alia, stating that the University is awaiting the approval of the State Government in order to make such appointments.

[5.4] In support of his submissions learned advocate Mr.Mitul K. Shelat has placed reliance on the judgment of Supreme Court in the case of State of U.P. and Others vs. Rajkumar Sharma and Others reported in (2006) 3 SCC 330 and in case of Malik Mazhar Sultan and Another vs. U.P.Public Service Commission and Others reported in (2006) 9 SCC 507. Thus, it is submitted that the petitioners do not have right to being appointed in view of the advertisement as it is erroneously advertised for filling up six posts.

[6] Learned AGP Mr.Rohan Shah has submitted that vide Communication dated 20.10.2021 the Education Department has already rejected the application of respondent-University by stating that in fact no approval was granted for filling up six posts

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of Assistant Teachers vide Government Resolution dated 03.09.2010. The said communication is ordered to be taken on record.

[7] Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

[8] The petitioners as on today are continued on the contractual basis however, they are claiming regular appointment to the post of Assistant Teachers in view of the advertisement issued for filling up such posts. The respondent-University after the issuance of notice specifically contended on affidavit that in fact the total sanctioned setup of the school was of 9 Assistant Teachers and out of 9 posts, 5 posts were already filled up and 4 posts had remained vacant and by mistake, while issuing the advertisement, six posts were advertised in the category of Primary School and Upper Primary School. It is specifically stated that out of 3 posts in the primary school, 01 post was for General Category and 01 post for SC and 01 post for SEBC were reserved and accordingly, the University issued the appointment order only in respect of 01 General Category candidate, who was at Sr. No.1 in the list of recommended candidates. Thus, because of the error in publishing the number of posts in the advertisement i.e. six, the recruitment process was held for filling up six

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posts against the actual 4 vacant posts, which comprised of only one post of General Category. Thus, in fact only single post of general category existed at the time of issuance of advertisement, but due to inadvertence, the advertisement was issued for filling up of 6 posts comprising of 3 posts belonging to general category. The petitioners are asserting their right of being appointed to vacant 2 posts of general category as per their placement in the select list at Sr.Nos.2 and 3 respectively. Thus, the petitioners are claiming their right of being appointed to those posts, which are non-existence or non est. The petitioners have not controverted the fact that only 4 sanctioned posts were in existence at the time of issuance of advertisement hence, it is not open for petitioners to claim the appointment on those posts, which are not in existence. Merely, because their names figure in the select list, they cannot assert their right of being appointed in wake of the fact that there only one post of general category was vacant and the candidate at Sr.no.1 of the select list is already appointed. Thus, there is no vacant sanctioned post available, hence, the petitioner cannot be offered appointment.

[9] The Supreme Court in the case of State of U.P. and Others(supra), while examining the right of the selected candidates has observed thus:

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"13. Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14 and 16 of the Constitution. (See: Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992 Supp (3) SCC

84), Gujrat State Dy. Executive Engineers, Association v. State of Gujarat & Ors. (1994 Supp (2) SCC 591); State of Bihar & Ors. v. the Secretariat Assistant S.E. Union, 1986 & Ors. (AIR 1994 SC

736); Prem Singh & Ors. v. Haryana State Electricity Board & Ors. (1996 (4) SCC 319); Surendra Singh & Ors. v. State of Punjab & Anr. (AIR 1998 SC 18), and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta & Ors. (AIR 1998 SC 1021).

14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. (See: Shankarsan Dash v. Union of India, (AIR 1991 SC 1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir and another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR 1996 SC 2346), Hanman Prasad v. Union of India (1996 (10) SCC 742), Bihar Public Service Commission & Ors. v. State of Bihar & Ors. (AIR 1997 SC 2280), Syndicate Bank & Ors. v. Shankar Paul & Ors. (AIR 1997 SC 3091), Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra and Ors. (1997 (10) SCC 264), Punjab State Electricity Board v. Seema (1999 SCC (L&S) 629); All India SC & ST Employees Association v. A Arthur Jeen, (AIR 2001 SC 1851), Vinodan T. v. University of Kalikut, (2002 (4) SCC 726), S. Renuka v. State of Andhra Pradesh and Ors. (AIR 2002 SC 1523), and Baitariani Gramiya Bank v. Pallab Kumar & Ors. (AIR 2000 SC 4248).

15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See: Snehprabha v. State of U.P. & Ors. (AIR 1996 SC 540), Secretary, Jaipur Development Authority, Jaipur, v. Daulat Mal Jain & Ors. (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar Mann (1997 (3) SCC

321), Faridabad C.T. Scan Centre v. D.G. Health Services & Ors. (1997 (7) SCC 752), Jalandhar Improvement Trust, V. Sampuran Singh (AIR 1999 SC 1347), State of Punjab and Others v. Dr. Rajeev Sarwal (1999 (9) SCC 240), Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors. (2003 (3) SCC 548), Union of India and

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Anr. v. International Trading Co. and Anr. (2003 (5) SCC 437) and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority (JT 2006 (2) SC 259)."

[10] In the case of Malik Mazhar (supra), the Supreme Court has held thus:-

"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."

[11] The Apex Court has articulated that the selectees cannot claim the appointment as a matter of right and mere inclusion of candidates' name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. It is held that even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. It is also declared by the Supreme Court that an error, if any, in the advertisement cannot override the Rules and create a right in

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favour of a candidate if otherwise not eligible according to the Rules. In the instant case, the petitioners cannot claim the appointment due to error caused in the advertisement since the Rules do not permit any appointment over and above the sanctioned post. It is also noticed that in fact, the State Government vide Communication dated 28.01.2021 has already clarified that in the Government Resolution dated 03.09.2010 no set up for filling up 6 posts of Assistant Teachers was sanctioned.

[12] In view of the aforenoted observations, the present writ petition fails. Rule is discharged.

(A. S. SUPEHIA, J) NABILA