[Cites 4, Cited by 0]
Gujarat High Court
Bhavikaben Prabhatsinh Patel vs State Of Gujarat on 3 December, 2025
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8292 of 2018
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 8292 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
✓
==========================================================
BHAVIKABEN PRABHATSINH PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MS. FORUM B. SUKHADWALA, AGP for the Respondent(s) No. 1,2,4
RULE SERVED for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/12/2025
ORAL JUDGMENT
1. The present writ petition is filed under Article 14,
16, 21 and 226 of the Constitution of India, inter alia,
seeking the following reliefs:
"(A) Direct the respondent authorities to consider the case
of the petitioner for appointment on the post of Shikshan
Sahayak in Government Secondary Schools pursuant to the
advertisement at Annexure-A to this petition, and further
be pleased to direct the respondent authorities to appoint
the petitioner on the said post pursuant to the selection
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
order issued to the petitioner, with all the consequential
benefits including deemed date of appointment, and
(B) Pending admission and final disposal of this petition
the Honourable Court may be pleased to direct the
respondent authorities to direct the respondent
authorities to permit the petitioner to join the duty as per
the selection order issued to the petitioner, subject to the
outcome of the present petition, and
(C) Pending admission and final disposal of this petition
the Honourable Court may be pleased to direct the
respondent authorities to keep vacant one post of Shikshan
Sahayaks in Model School, Taluka: Dhanpur, District:
Dahod, which is already allotted to the petitioner, and/or
(D) Pending admission and final disposal of this petition
the Honourable Court may be pleased to restrain the
respondent authorities from filling up the wacant posts of
Shikshan Sahayaks in the subject of Maths/ Science, till the
final disposal of this petition, and
(E) Award the cost of this petition, and
(F) Grant any other relief of pass any other order which
the Honourable Court may consider as just and proper in
the facts and circumstance of the case and in the interest
of justice."
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
2. Heard Ms. Prachi Upadhyay, learned advocate
appearing for Mr. Vaibhav Vyas, learned advocate for
petitioner and Ms. Forum B. Sukhadwala, learned
Assistant Government Pleader for the respondents-State,
at length.
3. SUBMISSIONS ON BEHALF OF PETITIONER:
3.1 At the outset, learned advocate Ms. Upadhyay
would submit that issue germane in this matter is
squarely covered by the two decisions of this Court; id
est, (i) judgment dated 24.09.2024 passed by the Division
Bench of this Court in Letters Patent Appeal No. 752 of
2020 and allied matter and, (ii) order dated 20.12.2024
passed by the Co-ordinate Bench of this Court passed in
Special Civil Application No. 9961 of 2017 and allied
matters, whereby this Court after appreciating the fact,
held that if a person having Bachelor's Degree in Science
any stream with Bachelor's Degree in Education, such
person is eligible to be appointed as a teacher for
Maths/Science in secondary school as "Shikshan Sahayak".
3.2 Learned advocate Ms. Upadhyay would submit that
as petitioner is possessing Bachelor's Degree in Biology
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
with Bachelor's Degree in Education, i.e. B.Sc. (Biology)
with B.Ed., having applied for said post and as such
found meritorious thereby, put in selection/merit list by
respondent authority, then petitioner eligible to get
appointment on said post. Nonetheless, petitioner having
denied such appointment on the ground which now no
longer survived, such action of respondents is nothing
but violative of Articles 14, 16 and 21 of the
Constitution of India.
3.3 So, learned advocate Ms. Upadhyay would request
to grant prayers so made in this petition.
4. SUBMISSIONS ON BEHALF OF RESPONDENTS-
STATE:-
4.1 Per contra, Ms. Sukhadwala, learned Assistant
Government Pleader for the respondents-State is unable
to refute such principal submission, so canvassed by
learned advocate for the petitioner, as not disputed that
aforesaid issue germane in this matter would stand
covered by aforesaid decision.
4.2 Nonetheless, learned AGP has drawn the attention
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
of this Court that apart from the aforesaid issue,
petitioner would not entitle to be appointed as she was
not possessing non-creamy layer certificates as on the
date of submitting her application and/or at the time of
her call of appointment, inasmuch as, such certificate
ought to have been obtained before 10.02.2017 as per
clause-13 of impugned advertisement. It is submitted that
such certificate has been obtained on 01.05.2017, thus,
not to be seen.
4.3 According to learned AGP Ms. Sukhadwala, it is
sine qua non to submit said certificate when petitioner
to be appointed as Shikshan Sahayak on reserved
category i.e. Socially and Educationally Backward Classes
(hereinafter referred to as the "SEBC") and having not
submitted requisite certificate as required, petitioner is
not entitled to get any benefit as prayed in the present
petition.
4.4 Making the above submissions, learned AGP Ms.
Sukhadwala would request this Court to dismiss the
present writ petition.
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
5. REJOINDER SUBMISSIONS ON BEHALF OF
PETITIONER:
5.1 In response to the above submissions, learned
advocate Ms. Upadhyay would draw the attention of this
Court that petitioner, having cleared B.Sc. in Biology and
also having Master's degree in Biology, is eligible to be
appointed as Shikshan Sahayak in Secondary School and
as found meritorious thereby, her name found in the
merit list. It is further submitted that when she received
call from respondent authority to be appointed as
Shikshan Sahayak, then on 29.4.2017, a request made by
petitioner to the authority concerned that non-creamy
layer certificate possessed by petitioner was old one and
she may be permitted to submit new creamy layer
certificate within a period of 10 days. It is further
submitted that pursuant to the same, a fresh creamy
layer certificate has been obtained by the petitioner on
01.05.2017 from competent authority and submitted along
with her request application dated 6.5.2017 to respondent
authority.
5.2 Learned advocate Ms. Upadhyay would respectfully
submit that as such, submission of creamy layer
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
certificate along with application form was not sine qua
non as contended by learned AGP, inasmuch as, vide
letter dated 08.05.2017, District Education Officer, Dahod-
respondent No. 4 herein on getting fresh creamy layer
certificate from petitioner recommended her case to the
respondent No. 2 for her appointment. It is submitted
that as per Clause-13 of the impugned advertisement, if
such certificate requires to be submitted along with the
application or on or before 10.02.2017, the authority
concerned could not have processed the application and
put the candidature of petitioner into the merit list.
5.3 Learned advocate Ms. Upadhyay would respectfully
submit that it is not the case of the respondent that at
the given point of time, the petitioner did not fall within
the category of SEBC-non-creamy layer but too technical
a contention raised by learned AGP, that too, without
any supportive evidence to show that on getting the
letter from the office of respondent No. 4, respondent No.
2 has either accepted or rejected such request, as the
case may be.
5.4 Making the above submissions, learned advocate Ms.
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
Upadhyay would request this Court to allow the present
writ petition.
6. No other and further submissions are being made
by respective learned advocates.
ANALYSIS:-
7. At the outset, it is required to notice here that
despite the fact that the present petition is filed in the
year 2018 and admitted on 10.06.2019, till date, no reply
has been filed by the respondent-State. Hence, only on
this count alone and as such in view of above cited
decisions of the Co-ordinate bench and Division Bench of
this Court, the present writ petition could have been
straightaway allowed by this Court as none of the
contentions, so raised by the petitioner is controverted by
respondents.
8. It is also very shocking and surprising to note that
a person, who is going to be appointed as teacher by
respondent authority, who also officiating the high office
of the Education Department, not even thought it fit to
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
pass any formal order of rejection of candidature of
petitioner on any grounds. This shows the complete
callousness and arbitrariness on the part of the
respondent authority in handling the cases of
appointment that too of a teacher in secondary school. In
absence of any written order that too lacks reasons when
denied benefit to petitioner, this would be the second
reason whereby, this Court can straightaway allow this
petition.
9. Be that as it may, so far as the first so-called oral
objection raised by the authority as regards not
appointing petitioner on the post of Shikshan Sahayak
that she was not possessing due qualification is
concerned, such objection would no longer survive in view
of aforesaid decisions of the Division Bench and Co-
ordinate Bench of this Court, which have already dealt
with such argument of respondent authority. So, I would
not like to burden myself by quotations of relevant
observations of aforesaid judgments into this judgment,
especially when learned AGP has candidly accepted such
position of law. Thus, it is hereby held that petitioner
possessing requisite qualification to be appointed on the
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
post of Shikshan Sahayak in the subject of Maths and
Science.
10. So far as the second limb of oral objection so raised
by learned AGP is concern, although there is nothing on
the record to show that candidature of petitioner would
be cancelled by authority on the ground that she was
not possessing valid SEBC - non-creamy layer certificate
as unable to produce it on or before 10.02.2017.
According to respondent, it was sine qua non to have
such certificate obtained/issued before 10.02.2017.
10.1 Nonetheless, to appreciate such contention, as
observed during the course of arguments and so also on
perusal of the documents, which are made available on
the record by the petitioner, would indicate that when
petitioner received call from office of respondent No. 2 or
4 as regards to her selection on the post of Shikshan
Sahayak having found meritorious, she requested to
respondent authority vide her request letter dated
29.04.2014 to allow her to submit her caste certificate -
SEBC (non-creamy layer certificate) within a period of 10
days. There is nothing on record to show such request
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
was out-rightly rejected by the respondent authority.
10.2 It can be seen that in no time, on 01.05.2017,
petitioner in fact obtained such certificates, she submitted
it on 06.05.2017 with respondent authority, which
confirms that she would fall within the category/class of
SEBC. Furthermore, on getting said certificate, the case
of petitioner recommended by office of respondent No. 4
vide its order dated 08.05.2017, would itself suggests and
shows that it was not sine qua non to obtain such
certificate on or before 10.02.2017.
10.3 Moreover, when query raised by this Court and
put to learned AGP as regards any further steps taken
by the respondent No. 2 or any other higher authority
pursuant to the aforesaid letter dated 08.05.2017 issued
by the office of the District Education Officer, Dahod
(respondent No. 4), learned AGP under the instruction of
one Mr. Birju Joshi, Legal Analyst at Commissioner of
School Department, Gandhinagar, who is present in the
Court, replied that nothing has been done in regards to
the aforesaid letter.
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
10.4 It is also not out of place to mention that when
petitioner has submitted her application to get appointed
on said post (Annexure-E), there was a reference about
her Creamy Layer Certificate given wherein Creamy
Layer Certificate No. 57590/2015 and its date shown 01-
Jan-2017 is provided in the application form. It may be
true that petitioner as per her said request letter to
obtain fresh certificate for which time sought and
accordingly, she has submitted fresh certificate with
respondent authority on 06.05.2017, thus, her case
recommended on 08.05.2017 as aforesaid.
11. Having considered the aforesaid entire facts and
circumstances of the case and in absence of any written
order passed by respondent authority rejecting the
candidature of petitioner on so called aforesaid lapses on
the part of petitioner, according to my view, the
aforesaid oral objections now raised by the respondent
would not germane from the record, inasmuch as, there
is nothing to show that it was sine qua non to obtain
the copy of non-creamy layer certificate on or before
10.02.2017. It may be true that there could be one of
the requirements and in fact, before getting actual
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
appointment, a candidate requires to possess and produce
such SEBC certificate (non-creamy layer) to respondent
authority as obtaining benefit of reservation. But at the
same time, in the facts of the present case, when
petitioner did request to the respondent authority vide
her consent letter dated 29.04.2017 to allow her to
submit such certificate within short time, which appears
to have been impliedly accepted by respondent authority
as not outrightly rejected such request, whereby
permitted the petitioner to submit such certificate within
a short period of time and in fact she submitted it on
06.05.2017 and thereafter respondent No.4 recommended
her case, then it can be gainsaid that to obtain non-
creamy layer certificate on or before 10.02.2017 was not
sine qua non to get appointment.
CONCLUSION:
12. In view of the foregoing reasons, according to my
view, petitioner requires to be appointed by respondent
authority and as such all oral objections, which raised by
respondents, are unsustainable in the eyes of law, thus,
such objections on the part of the respondent authority
require to be quashed and set aside, which is hereby
NEUTRAL CITATION
C/SCA/8292/2018 JUDGMENT DATED: 03/12/2025
undefined
quashed and set aside.
13. The impugned action on the part of the respondent
in not issuing appointment letters to the petitioner for
the post of Shikshan Sahayak is set aside. The
respondent concerned is directed to issue appointment
order forthwith to the petitioner for the post of Shikshan
Sahayak in question. Accordingly, the present petition is
hereby allowed with consequential benefits to follow. Rule
is made absolute to the aforesaid extent.
14. As a sequel, no order is required to be passed in
Civil Application. Hence, the present Civil Application
would not survive and the same is disposed of
accordingly.
Direct Service Permitted.
(MAULIK J.SHELAT,J)
DIWAKAR SHUKLA
