Parmar Jigisha Anilsinh vs State Of Gujarat
2022 Latest Caselaw 6101 Guj

     C/SCA/8409/2020                               CAV JUDGMENT DATED: 08/07/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 8409 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================

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 ?

========================================================== PARMAR JIGISHA ANILSINH Versus STATE OF GUJARAT ========================================================== Appearance:

MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1 MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER for the Respondent(s) No. 1,2,6,9 NOTICE SERVED for the Respondent(s) No. 3,4,5,7,8 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 08/07/2022

CAV JUDGMENT

1. Rule. Mr. Utkarsh Sharma, learned AGP waives service of notice

of rule on behalf of respondent State.

C/SCA/8409/2020 CAV JUDGMENT DATED: 08/07/2022

2. By way of this petition, under Article 226 of the Constitution of

India, the petitioner has prayed for quashing and setting aside the Rojkam

dated 19.06.2020 cancelling the selection process for the post of

Shikshan Sahayak.

3. Facts in brief are as under:

3.1 The petitioner has passed her B.A, B.Ed, M.A and TAT

Examination for higher secondary teachers and is therefore eligible to be

appointed as a teacher/ Shikshan Sahayak. An advertisement was issued

by the school management for appointment of a Shikshan Sahayak on

1.11.2019 after obtaining NOC on 17.10.2019 from the Assistant

Commissioner, Tribal Development Department. The marking formula

for the recruitment is objective and there are no marks for oral interview.

A call letter was issued to the petitioner on 7.1.2020. Physical

verification of documents was done on 21.01.2020.

3.2 A merit list was prepared which the petitioner obtained under The

Right to Information Act and it was found that the petitioner having

obtained 61.18 out of 100 points as per objective marking formula laid

down under the statutory rules was at merit number 1. By the impugned

rojkam dated 19.06.2020, the respondent School management has

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cancelled the recruitment on the ground that there were inconsistencies

between the principles set out by the Government of Gujarat in the

gazette dated 23.06.2011 and the notification of the government dated

15.11.2019.

4. Mr K.B. Pujara, learned advocate appearing for the petitioner

assailing this cancellation would submit that the petitioner was selected

and placed at serial number 1 in the merit list in accordance with the list

prepared in accordance with the statutory rules namely 'The Teachers and

Headmasters of Registered Private Secondary And Higher Secondary

School (Procedure For Selection) Rules, 2011 (for short 'the rules of

2011') published by the notification dated 11.02.2011. He would further

submit that there appeared to be no Gujarat Government gazette dated

23.06.2011. He would rely on the relevant rules published by the

notification dated 11.02.2011 published on 23.06.2011 and the

notification dated 15.11.2019. He would submit that as per rule 11 of the

rules of 2011 and the rules known as the Government Higher Secondary

Teacher, Class III (Procedure For selection) Rules 2019, rule 10 of which

provides for preparation of select list. The merit of the instant selection

was prepared in accordance with these rules and therefore there was no

illegality committed so as to cancel the selection on the ground that there

appeared to be inconsistencies between the notification dated 15.11.2019

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and the Government Gazzette dated 23.06.2011.

4.1 Taking the court to the merit list, Mr. Pujara would submit that the

petitioner had obtained a score of 2669 out of 4200 marks at graduation

or in BA. In accordance with each qualification and weightage as

prescribed under the statutory rules, the petitioner was given 61.18 points.

She was placed at merit number 1. One Thorat Deepikaben Bharatbhai

having obtained 60.85 points was placed at merit number 2. He would

therefore submit that the petitioner deserves to be appointed on the post

of Shikshan Sahayak in the subjects of Gujarati and Sanskrit.

4.2 Referring to the reply filed by the state, Mr. Pujara would submit

that nothing has come on record in the reply to suggest that there were

inconsistencies and therefore the selection has been cancelled. The

affidavit-in-reply is silent on that issue. The stand of the state in the reply

is that the selection is cancelled because as per the application of the

petitioner in the Bachelor of Arts (6th Semester - April 2014), the

marksheet evaluation and disclosure shows percentage as 59.30 whereas

while calculating the same on the basis of total marks, it is claimed by the

petitioner as 63.54% on the basis of total marks 2669 out of 4200 marks.

This has resulted in a discrepancy and therefore a decision has been taken

to cancel the recruitment to avoid far reaching consequences.

C/SCA/8409/2020 CAV JUDGMENT DATED: 08/07/2022

4.3 Assailing the stand of the respondent state in the affidavit-in-reply

on the CGPA score, Mr Pujara would submit that there is total

inconsistency in the stand taken by the state. He would submit that as per

the statutory rules, especially Rule 10 (5), the list has to be prepared in

the order of merit on the basis of aggregate marks finally awarded to each

candidate. Even the guidelines issued by the State Educational Staff

Recruitment Selection Committee clearly provides that there are different

systems for calculation of total marks and obtained marks in different

Universities and therefore for maintaining uniformity in all cases, it has

been decided that the candidates must state in the online application form

the total marks and obtained marks as stated in the marksheet and where

the total marks and obtained marks are not stated in the marksheet and

only CGPA/ CPI/ GRADE is given then such candidates must obtain the

certificate from the university. According to Mr Pujara, the petitioner had

calculated and stated the marks of BA as 63.54% on the basis of total

marks and obtained marks of all the six semesters. He would submit that

when the petitioner was called for document verification and was asked

to provide the necessary certificate from her college, certificate dated

21.01.2020 was produced before the authority. He would rely on the 6

marksheets of the six semesters of BA and the certificate. He would

submit that the respondent no. 6 cannot assign 5.93 marks to the

C/SCA/8409/2020 CAV JUDGMENT DATED: 08/07/2022

petitioner for BA by referring to CGPA 5.93 out of 10. He would submit

that when CGPA is stated in a marksheet, the candidates are required to

obtain certificate from the university or own college and therefore the

assessment made by the respondent is wrong. Placing the petitioner on

the merit list at serial number 2 on the basis of this assessment therefore

must be set aside.

4.4 Mr. Pujara, learned advocate appearing for the petitioner would

further submit that when an advertisement was issued by the

Commissioner of Schools for the subject of Shikshan Sahayak in grant-

in-aid higher secondary schools for the subject of Gujarati, the petitioner

and one Deepikaben had applied where the petitioner was placed in merit

rank no. 1239 having total merit 61.1941 whereas Deepikaben was

placed at merit rank 1348. The said recruitment and the present

recruitment in question are both governed by the same notification dated

11.02.2011 and therefore there cannot be a different manner in the

present recruitment process in question which results in denial of

appointment.

4.5 Mr. Pujara would further submit that it is not open for the

respondent no. 6 to rely upon some formula adopted by the Veer Narmad

South Gujarat University on the basis of a circular dated 28.12.2015 as

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the selection of the petitioner is governed by statutory rules vide

notification dated 11.02.2011 published by the government on

23.06.2011 and the guidelines and the notification dated 15.11.2019. The

guideline specifically stated that when CGPA is stated in the marksheet,

the certificate of total marks and obtained marks has to be obtained from

the college and therefore it was the certificate of the college that ought to

have been relied upon by the respondents.

5. Mr. Utkarsh Sharma, learned AGP for the state would submit that

it is open for the state to cancel the recruitment once it is found that is

not in accordance with the established procedure as stipulated and a

candidate would not have a right to be selected and once the selection has

been held to be bad, it is open for the authorities to undertake a fresh

selection.

5.1 Mr. Sharma, learned AGP would further submit that what is

evident from reading the affidavit-in-reply is that the rojkam dated

19.06.2020 is just and proper. He submitted that on the basis of the fifth

semester marksheet evaluation and disclosure shows 59.30 percentage

whereas while calculating the same on the basis of total marks it is

claimed by the petitioner as 63.54%. He would further submit that on the

basis of total marks of 2669 out of 4200, the same would result into

C/SCA/8409/2020 CAV JUDGMENT DATED: 08/07/2022

discrepancy. Since the marksheet was issued by the Veer Narmad

Gujarat University which showed a CGPA of 5.93 and "SECOND" and

when the college has also issued a certificate showing CGPA of 5.93 on

the basis of a specific formula for a particular University the percentage

calculation of the petitioner would be 59.30% and not 63.54%. It is

therefore thought proper that in accordance with the notification dated

11.02.2011 the petitioner had secured 60.76 points where as Deepikaben

had secured 60.85 which is higher than the petitioner and therefore she

was placed at serial no. 1 on the list whereas the petitioner was moved to

serial no. 2 on the list. The recruitment process was therefore rightly

cancelled.

6. Having considered the submissions made by the learned counsel

for the respective parties, what is borne out is that advertisement was

issued for the post of Shikshan Sahayaks. The petitioner had applied for

the post of Shikshan Sahayak in the subject of Gujarati and Sanskrit. By

a gazette notification dated 23.06.2011, the state published The Teachers

and Headmasters of Registered Private Secondary And Higher Secondary

Schools (Procedure For Selection) Rules, 2011. The use of the rules

would indicate that for the purposes of preparing a merit list weightage is

to be given to TAT at 70%. The tabular chart would indicate that 10

marks have to be allotted for the purposes of a graduate degree in the

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professional subject and for a postgraduate degree in the professional

subject 5 marks each are to be allotted and accordingly the allotment is

total 30. Even the notification dated 15.11.2019 which provide for

selection of Government higher secondary teacher set out the same

formula.

6.1 Reading Rule 10 of the notification dated 15.11.2019 would

indicate that the selection committee has to prepare a list of successful

candidates on the basis of weightage of 70% marks secured by the

concerned candidate in the Teachers Aptitude Test. 30 marks are

provided for educational qualifications. Rule 10(3) of the rules provide

that the maximum marks for the purpose of qualification for the purpose

of weightage of 30% shall be as prescribed at appendix-II. Rule 10 of the

Rules and the appendix at page 42 of the petition are set out here under:

"10. Preparation of select list.-

(1) 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 Teachers Aptitude Test Higher Secondary and 30% marks of the required educational qualification. Provided that the candidate who has secured at least 50% marks in Teachers Aptitude Test Higher Secondary shall be Eligible to apply for the post of Government Higher Secondary teacher.

(2) The marks secured by the concerned candidate in Teachers Aptitude Test Higher Secondary shall be valid for five years from the date of the result of the Teachers Aptitude Test Higher Secondary

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(3) The maximum marks for the qualification for the purpose of weightage of 30% shall be as prescribed in Appendix-II.

(4) The Selection Committee shall prepare subject-wise and category-wise lists on the basis of marks secured by the candidates as provided in sub-rule 1.

(5) The Selection Committee shall prepare a list of the successful candidates in the order of merit on the basis of aggregate marks finally awarded to each candidate to the extent of posts advertised by the Selection Committee.

(6) The Selection Committee shall prepare a separate list of successful candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes (including Nomadic tribes and Denotified Tribes), Economically Weaker Sections, the persons with disabilities and women to the extent of the number of vacancies reserved for such categories including:

provided that where the requisite number of candidates, belonging to Scheduled Casts, Scheduled Tribes, Socially and Educationally Backward Classes (including Nomadic tribes and De-notified Tribes), Economically Weaker Sections could not qualify on the basis of the qualifying aggregate marks fixed for general category, the Selection Committee may relax the qualifying aggregate marks to make up the deficiency in the reserved posts. (7) The Committee shall prepare the waiting list of the qualified candidates which shall contain 20% of vacancies advertised for each category and each subject. The waiting list shall remain in force in accordance with the relevant rules issued by the Government in this behalf."

Appendix-II

[See rule 10(3)]

(1) For the post of Higher Secondary Teacher: -

             No.     Qualification                                      Maximum
                                                                        Marks






  C/SCA/8409/2020                                      CAV JUDGMENT DATED: 08/07/2022



                      specified in Appendix-I.

                      subject as specified in Appendix-I.
              03.     Graduate degree in professional subject                   05
                      as specified in Appendix-I.

                      subject as specified in Appendix-I. (if
                      Possesses).




               (2) for the post of Special Teacher: -

               (I) Physical Education Teacher: -

              No.     Qualification                                      Maximum
                                                                         Marks

                      Higher Secondary Department.
              02.     Post Graduate in any subject taught in the                10
                      Higher Secondary Department
              03.     Bachelor in Professional Subject (B.P.Ed./                05
                      D.P.Ed)
              04.     Master's in Professional Subject (M.P.Ed)                 05
                      (if Possesses).
                                             OR
              01.     Degree of Bachelor of Physical Education                  20
                      (B.P.E) awarded at the end of the three /
                      four year course of NCTE accredited
                      college after H.S.C.

                      Bachelor of Physical Education (B.P.E)
                      awarded at the end of the three / four year
                      course of NCTE accredited college after
                      H.S.C.

6.2 Even the guidelines laid on the same objective making formula for

higher secondary teachers are set out in the rules. Therefore, what is

clear is that while making the selection for the post of Shikshan Sahayak

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in the subject of Gujarati and Sanskrit for the higher secondary section,

the assessment was done in accordance with the statutory rules read with

the guidelines. The stand of the respondent that there was discrepancy in

assessment of merit as a result of CGPA 5.93 is absolutely misconceived.

Reliance on the CGPA score of 5.93 on the basis of the 5th semester

marksheet has no foundation when the rules of recruitment which are

statutory in nature are considered. At the point of document verification,

it was specifically pointed out to the candidates that when there is a

CGPA score, a candidate should obtain a certificate of total marks and

obtained marks from the college. That certificate was obtained by the

petitioner and based on this calculation of marks of all the 6 semesters the

marks were shown as 2669 out of 4200. Therefore, the merit of the

petitioner was 63.54 percentage and not 59.30 percentage as set out in the

affidavit-in-reply and the revised merit list. The heading 'Calculation of

merit' in the guidelines would indicate that when there are different

system for calculation of total marks and obtained marks in different

universities and in different years of the same University and therefore

for maintaining uniformity in cases of all students it has been decided

that the candidates must state in the online application form the total

marks and obtained marks as stated in their marksheet and when the total

marks and obtained marks are not stated in the marksheet but only CGPA

is given, then such candidates must obtain the certificate from the

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university and state the total marks and obtained marks. According to

this instruction, when the petitioner was called for document verification,

a necessary certificate was provided from the college dated 22.01.2020.

Denying of appointment to the petitioner therefore on the basis of a

CGPA of 5.93 stated in the marksheet and on that basis she having

obtained 59.30 percentage is absolutely wrong and obviously was a way

to deny appointment to the petitioner.

6.3 Documents on record with the petition would indicate that the

assessment of merit of the petitioner was made in accordance with the

statutory rules, the gazette notification dated 23.06.2011 and the

notification dated 15.11.2019 read with the guidelines. The affidavit-in-

reply does not explain as to how there was an inconsistency between the

notifications and the guidelines. An entirely new case of assessment of

merit was brought about in the reply. The stand of the respondents

therefore is contrary to the statutory rules and the guidelines referred to

hereinabove. What is more startling as pointed out by Mr. Pujara in his

additional affidavit is that when the Commissioner of Schools had issued

an advertisement bearing number 8/2021 for the post of Shikshan

Sahayak in grant-in-aid higher secondary schools for the subject of

Gujarati, both the petitioner and Deepikaben had participated and applied

for the post of Shikshan Sahayak. The petitioner was placed on merit rank

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1239 having a total merit of 61.1941 whereas Deepikaben was placed at

merit rank 1348 having a total merit of 60.8699. This selection was done

in accordance with the same notification dated 11.02.2011 published in

the gazette on 23rd of June 2011. The respondents therefore have taken a

stand directly contradictory to the one taken as shown in the selection of

the present case.

7. Accordingly, the petition is allowed. The rojkam dated 19.06.2020

cancelling the selection process of the petitioner for the post of Shikshan

Sahayak for the subjects of Gujarati and Sanskrit in Kunkana Samaj

Vikas Mandal Chikhli Sanchalit Uttar Buniyadi Ashramshala is quashed

and set aside. The respondents are directed to forthwith issue

appointment order to the petitioner as Shikshan Sahayak for the subjects

of Gujarati and Sanskrit in the Ashramshala and such appointment needs

to be given to the petitioner with effect from 07.07.2020 i.e. from the date

of filing of the petition. Since the court is of the opinion that the denial of

appointment was entirely without any basis, the appointment with all

consequential benefits shall take effect from 07.07.2020 i.e. from the date

of filing of the petition. Rule is made absolute. Direct service is

permitted.

(BIREN VAISHNAV, J) DIVYA