Rizwana Abdul Gani Ranta vs State Of Gujarat
2022 Latest Caselaw 2387 Guj

     C/SCA/6670/2019                            JUDGMENT DATED: 03/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6670 of 2019
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
              In R/SPECIAL CIVIL APPLICATION NO. 6670 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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                       RIZWANA ABDUL GANI RANTA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR M T SAIYAD(3848) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP for the Respondent(s) No. 1
MS MAMTA R VYAS(994) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     Date : 03/03/2022
                     ORAL JUDGMENT

1. Heard Mr.M.T.Saiyed learned advocate for the

petitioner, Mr.Meet Thakkar learned AGP for

respondent nos.1 and 2 and Ms.Mamta Vyas learned

advocate for respondent no.4.

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

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

Constitution of India, the petitioner has challenged

the communication dated 24.01.2019 issued by the

District Education Officer respondent No.2 and

Panchmahals Muslim Education Society-respondent

no.3, by which, referring to the communication

dated 29.10.2018, by which, the NOC granted for

the purposes of selection of the petitioner as a

teacher in the subject of English has been cancelled.

3. Facts in brief would indicate that the petitioner

having an educational qualification of M.A. B.Ed.

with English and being qualified as an Assistant

Teacher, applied for the post of English Teacher in

the Iqbal Girls High School pursuant to an NOC

granted by the District Education Officer on

18.10.2017. On the basis of the NOC granted by the

District Education Officer, the respondent nos.3 and

4 issued an advertisement on 24.10.2017 for

appointment of an English teacher with the

respondent no.4 Iqbal Girls High School. The

petitioner applied, was interviewed, was found

meritorious and declared as the first selected

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

candidate. A Rojkam was accordingly prepared.

4. The petitioner waited for the order of appointment.

On inquiry, time and again, she was informed that

the issue is pending before the District Education

Officer, Panchmahals. She applied under the Right

to Information Act to seek reasons as to why her

appointment was withheld. Ultimately by the

impugned communication dated 24.01.2019, the

petitioner informed through the school that the NOC

pursuant to which she was appointed, has been

rejected on the ground viz. that the school already

has three teachers of English subject and therefore

there is no need of an English teacher. The second

ground on which the NOC was rejected was that

there was one teacher Shri S.A.Jujara who was

declared as surplus in the secondary section of Iqbal

Girls High School. He was given the work in the

higher secondary section on being so declared as

surplus. He had a right to be recalled. That the

school did not point out to the District Education

Officer of a surplus teacher's right being pending

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

and therefore the NOC was obtained by

misrepresentation.

5. Mr.M.T.Saiyed learned counsel for the petitioner

would submit that the stand of the authorities in not

granting the appointment on the basis of these two

grounds is bad. He would submit that as per the

timetable of the school, there is only one teacher in

the secondary section qualified with M.A. and B.Ed

in English and one teacher in the higher secondary

section and qualification of M.A. B.Ed. English,

Psychology and the 3rd being qualified in B.Com and

B.Ed but teaching English who is considered as the

3rd English teacher whereas, in fact, there are only

two teachers as per the said qualification. Of the

two, one Smt.Durvesh as a Head Teacher was taking

only eight periods in a week and considering all

these aspects, the stand of the District Education

Officer that in fact there were three English teachers

already, is bad.

6. Alternatively Mr.Saiyed would submit that in fact,

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

from the checklist for granting the NOC which was

asked for by the school on 05.10.2017, which has

now been placed on record during the course of

hearing today, the Education Inspector had

endorsed, specifically that the NOC was asked for

the Gujarati subject teacher, whereas, on the

assessment of the vacancies, the Education

Inspector found that there was no qualified teacher

for the subject of English and looking to the

workload of seven classes, for the years in question,

there were 41 periods in all and therefore the need

was for a teacher for the subject of English. It was

on the basis of this assessment that the certificate of

NOC having once been granted could not have been

withdrawn.

7. Mr.Saiyed also would draw the attention of the

Court to the rejoinder filed to the reply filed by the

State and reiterate the submissions made in the

petition and assailed the order of rejection of NOC.

He would dispute the fact of the excess number of

teachers being available by statistically showing to

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

the Court that the number of periods would indicate

that in fact a requirement was that of an English

teacher.

8. Mr.Meet Thakkar learned AGP for the State drawing

the attention of the Court to the affidavit in reply

would submit that the decision dated 24.01.2019 is

in reference to the decision taken earlier on

29.10.2018. Drawing the attention of the Court to

the decision of 29.10.2018, he would submit that

prior to asking for an NOC, it was incumbent upon

the school to certify together with the NOC that

there was no pending application of a surplus

teacher. What was found was that one Shri

S.A.Jujara who had been declared as surplus and

transferred to higher secondary section, needed to

be recalled, whose application for such recall dated

19.08.2017 was pending. Without disclosing this

fact, the NOC was applied for. Submissions were

also given by the Principal annexed to the reply

indicating that the Principal was not aware of the

fact of primary right of recall of a surplus teacher

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

and had through oversight applied for NOC. Shri

S.A.Jujara has also given a statement before the

DEO that his application dated 19.08.2017 was

pending. Policy decision of 22.11.2010 was relied

upon to suggest that the right of recall of a surplus

teacher was to be considered in priority. Clause 2(ii)

was relied upon.

9. Mr.Saiyed would dispute the resolution by

submitting that by a subsequent resolution dated

04.02.2020, Shri S.A.Jujara's right of recall was

insignificant as he was teaching the subject of

History and not of English.

10. Considering the submissions made by the learned

counsel for the respective parties and perusing the

communication dated 29.10.2018 in context of the

challenge to the communication of 24.01.2019, the

following aspects come to light.

(i) An NOC was applied for and granted by the

DEO, Panchmahals, to the respondent nos.3 and 4

institution on a presumption that there was no

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

application for recall for accommodation of surplus

teachers pending, based on the requisition made by

the institution.

(ii) Subsequently, it came to the notice of the DEO

that an application dated 19.08.2017 at the hands of

one Shri S.A.Jujara who was in secondary section

was pending. Shri S.A.Jujara was working in the

secondary section and was so declared surplus. On

him being declared surplus, he was transferred to

the higher secondary section. When a vacancy

occurred in the secondary section, in accordance

with the policy in vogue, he had a right to be

recalled. That application was pending. While

applying for NOC, the institution had to bring it to

the notice of the DEO that a surplus candidate had a

right of priority to be recalled. On this count, the

NOC was canceled.

(iii) As far as the first ground of the DEO of already

having three English teachers and enough staff

being available for the subject in question, perusal of

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

the affidavit in reply would indicate that the process

was undertaken after having considered the aspect

of not requiring any additional teacher for the

subject of English. Possibly it was only on this count

that the school itself had applied for NOC in the

subject of Gujarati and not English at the first point

of time. Considering the aspect therefore of the

petitioner having sought the benefit of being

considered for appointment on the basis of an NOC

applied for and the school by not guiding the DEO in

accordance with the policy which is even admitted

fact on the basis of the statements of the Principal

which are annexed to the reply, no fault can be

found with the DEO in passing the order dated

24.01.2019.

11. Both the orders dated 29.10.2018 and 28.01.2019

refusing to sanction the NOC therefore need not be

interfered.

12. The petition is accordingly dismissed. In view of the

dismissal of the main petition, no orders on Civil

C/SCA/6670/2019 JUDGMENT DATED: 03/03/2022

Application and the Civil Application also stands

disposed of.

(BIREN VAISHNAV, J) ANKIT SHAH