Gujarat High Court

Somani Prakashkumar Vrajlal vs State Of Gujarat on 23 January, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                              C/SCA/10887/2018                              ORDER DATED: 23/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 10887 of 2018

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                                                 SOMANI PRAKASHKUMAR VRAJLAL
                                                             Versus
                                                    STATE OF GUJARAT & ORS.
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                       Appearance:
                       MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
                       MR AKASH GUPTA, AGP for the Respondent(s) No. 1,3,4,5,6
                       NOTICE SERVED BY DS for the Respondent(s) No. 2
                       ==========================================================

                          CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                        Date : 23/01/2025

                                                         ORAL ORDER

1. Heard Ms. Mamta Vyas, the learned advocate appearing

for the petitioner and Mr. Akash Gupta, the learned AGP

appearing for the respondent - State.

2. By way of present petition the petitioner herein has

prayed for the following reliefs :-

"(A) This Honourable Court be pleased to admit and allow this petition.

(B) This Honourable Court be pleased to issue appropriate writ, order or direction including the writ in the nature of mandamus and present petitioner be allowed to resume at the

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selected place of Navjivan High School, at Limda, Taluka :

Umrala, Dist. Bhavnagar as teacher of petitioner. Accountancy and all service benefits be given to present

(C) This Honourable Court be pleased to issue appropriate writ, order or direction including the writ in the nature of mandamus and respondent No.4 as well as respondent No.5 be directed to give appointment to present petitioner pursuant to advertisement dated 15.4.2016 as teacher of Accountancy at Navjivan High School, at Limda, Taluka : Umrala, Dist.

Bhavnagar from that date on which the present petitioner 1 S selected 1. e. 6.12.2016 and seniority be fixed from the same date for all other service benefits.

(D) During the pendency, hearing and/or final disposal of this petition respondent No. 5_ as well as respondent No.2 be directed to give appointment to present petitioner as teacher of Accountancy at Navjivan High School, at Limda, Taluka :

Umrala, Dist. Bhavnagar.

(E) This Honourable Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and circumstances of the case."

3. Briefly stated that the petitioner herein applied for the

post of Teacher in higher secondary school and was declared

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successful. The petitioner was selected in open general category

and petitioner's subject was Account (Commerce). The

educational qualification of the petitioner herein was M. Com,

M.Ed. By order dated 6.12.2016 the petitioner was allotted

Navjivan High School at Limda, Taluka : Umrala, Dist.

Bhavnagar, upon recommendation by the District Education

Officer at Bhavnagar.

3.1 Surprisingly on 13.12.2016 the District Education Officer,

Bhavnagar issued another letter and stated that with regard to

the subject of the petitioner guidance would have to be taken

from the head office, hence till further instructions the

procedure to appoint the petitioner herein be kept in abeyance.

3.2 On 16.12.2016, the order of appointment dated

6.12.2016 was cancelled without assigning any reason or

granting opportunity of hearing to the petitioner. The aforesaid

has given rise to filing of the present petition.

4. Ms. Mamta Vyas, the learned advocate appearing for the

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petitioner submits that the impugned communication cancelling

the petitioner's appointment as teacher dated 16.12.2016 is an

unreasoned communication and is in violation of principles of

natural justice.

4.1 It is submitted that the petitioner was appointed in

accordance with the advertisement which is placed on record

at page-31. The petitioner fulfills all the conditions of the said

advertisement, in view thereof, it was not open for the

respondent authority to cancel the petitioner's appointment by

the impugned order dated 16.12.2016.

4.2 Reliance is placed on the order passed in the Special

Civil Application No.22974 of 2019 wherein in an identical

facts, the Government Resolution dated 28.10.1975, more

particularly Clause (a) describe qualification of the teacher. The

advertisement mentions qualification as prescribed under the

Rules, 2011 read with the 1974 Regulations and the

Government Resolutions of 1975 and 2009 describe the

supplant eligibility criteria. It is submitted that the aforesaid is

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not permissible in eye of law.

4.3 Placing reliance on the aforesaid, it is submitted that the

petitioner herein otherwise is eligible for appointment for the

post of teacher having the requisite qualification, as referred

above, and in view thereof the impugned order dated

16.12.2016 is required to be interfered with.

4.4 Reliance is also placed on the order passed in the

Letters Patent Appeal No.752 of 2020 and allied matters

wherein the said order passed in the Special Civil Application

No.6434 of 2017 and allied matters is confirmed.

5. Mr. Akash Gupta, the learned AGP appearing for the

respondent - State placed reliance on the affidavit-in-reply and

submitted that as per the Government Resolution 1975 the

petitioner's appointment is rightly cancelled by the respondent

authority.

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6. The petitioner herein is an identically placed to the

petitioner of the said petition wherein petitioner was issued the

order of appointment on 6.12.2016 and without granting any

opportunity of hearing and in violation of principles of natural

justice by the impugned order the appointment stood cancelled.

7. Reliance placed on the Government Resolutions of the

year 1975 and 2009 issued by the respondent - State are also

held to be erroneous vide order dated 7.12.2023 passed in the

Special Civil Application No.2297 of 2019 duly confirmed in

the Letters Patent Appeal No.183 of 2022 order dated

22.8.2024 wherein it is held that the Government Resolution of

the year 1975 is contrary to the 1974 Regulations. Rule 7A of

the Rules 2011 prescribe that the requisite education

qualifications would be in accordance with the provisions of

Gujarat Secondary Education Regulations, 1974. Regulation 20

of the said Regulation prescribe the qualifications of Head

Master, teachers and members of non-teaching staff in a

registered school.

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From the aforesaid, it emerges that the person to be

appointed as teacher shall possess a degree "any faculty of any

university in India established by law". While the regulation

is silent about the candidate requiring to possess Master

Degree, however the regulation prescribes possessing a valid

degree from a valid university. Rule 11 of the Rules prescribes

preparation of the select list whereas the said rule also

mentions about giving weightage of 70% marks secured by the

candidate in TAT whereas remaining 30% would be given as

per the educational qualification in Appendix-2. The Appendix-

2 only prescribes allotting marks for graduation and post-

graduation that is giving weightage to the requisite

qualification. In view of the fact that the Recruitment Rules

prescribes eligibility to be decided as far as educational

qualification is concerned, as per the Gujarat Secondary

Education Regulations 1974, and Regulation 20 prescribes the

requirement of a degree in any faculty. Upon harmonious

reading with the Government Resolution dated 28.10.1975 as

per the advertisement, the respondent authorities could not

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have included requirement of Master Degree which is de hors

the Recruitment Rules.

In the opinion of this Court also, in case of conflict

between the Rules i.e. Recruitment Rules as in the facts of the

present case and the Government Resolution, the Rule would

have primacy over the Government Resolution. It is not open

for the respondent - State to refer to the requirement in the

Government Resolution and deny appointment to the

petitioner, more particularly when the petitioner was otherwise

eligible for the appointment to the post of teacher as per the

Recruitment Rules.

8. Considering the facts of the present case, it is apposite

to refer to paragraphs 5.1, 5.2, 6 to 6.5, 8, 9 and 11 of the

order dated 7.12.2023 passed in the Special Civil Application

No.22974 of 2019 which read thus :-

"5.1. Learned AGP would thereafter rely upon GR Dated 28.10.1975 more particularly Clause-5A thereof which inter alia prescribes the qualification required for a teacher. According to learned AGP, the said GR inter alia prescribes that the trained

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teachers should have atleast a second class Master's Degree in respective subject or trained graduate teachers who have experience of teaching concerned subject for about seven years in standard 10 and 11. Learned AGP would submit that since the regulation does not state anything as regards the Master's Degree, more particularly the regulation being silent as regards the same, the GR should be treated as supplanting the lacuna in the regulation.

5.2. Learned AGP would submit that as far as the present petition is concerned, while the petitioner had applied for being selected as a teacher in the Statistics subject in which subject the petitioner had passed the TAT, yet, it would be required to be noted that while the Statistics was the main subject of the petitioner in the graduation, yet, Statistics was not a subject at all in the post-graduation degree of the present petitioner. It is submitted by learned AGP that even the judgment relied upon by learned advocate for the petitioner in case of Manish Mansukhbhai Raghadal (supra) proceeds on the footing that the candidate atleast had a Statistics degree i.e. the concerned subject as an ancillary subject in his Master's Degree.

6. Heard learned advocates for the respective parties and perused the record.

6.1. At the outset, as far as the advertisement is concerned,

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while it mentioned that the qualifications would be as prescribed in the 2011 Rules read with 1974 Regulations and Government Resolutions of the year 1975 and 2009, yet, it also requires to be mentioned that while learned AGP had attempted to submit that the GR of 1975 supplants the probable lacuna in the Regulation of 1974, but, in the considered opinion of this Court, the GR does not supplant the probable lacuna rather, it clearly appears that the GR is completely contrary to the 1974 Regulations.

6.2. To appreciate the above position, it would be profitable to have an understanding of the rules and GRs. The 2011 Rules more particularly Rule 7 thereof inter alia prescribes the eligibility for appointment to the post in question. The same is reproduced hereinbelow for benefit:-

"7. Eligibility for appointment:- To be eligible for appointment as Teacher or Head Master, a candidate shall possess -

(a) requisite educational qualifications and age in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974; and (emphasis supplied)

(b) basic knowledge of computer application as prescribed in Gujarat Civil Services Classification and Recruitment (General) Rules 1967 :

Provided that the age limit shall be relaxed in favour of a candidate belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and women in accordance with the provision of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967."

6.3. Rule 7(a) prescribes that the requisite educational qualifications would be in accordance with the provisions of

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the Gujarat Secondary Education Regulations, 1974. In this regard, it requires to be noted that Regulation 20 of the Gujarat Secondary Education Regulations, 1974 which prescribes the qualifications, being the relevant Regulation, is also reproduced hereinbelow for benefit:-

"20. Qualifications of head-masters, teachers and members of non-teaching staff in a registered school.-

(1) No person shall be appointed as a head-master unless he is a trained graduate (B.T. or B.Ed., or its equivalent as declared by the State Government) with teaching experience of not less than two years in a secondary school, and with post training experience of not less than three years:

Provided that in a school having exclusively girl students, no person other than a woman having the aforesaid qualifications shall be appointed.

(2) The qualifications for being appointed as a Supervisor shall be the same as those prescribed for the head-master, in clause (1).

(3) No person shall be appointed as a teacher unless he-

(a) has attained the age of eighteen years, and

(b) possesses-

(i) a degree in any faculty of any university in India established by law, and (emphasis supplied)

(ii) a degree of Bachelor in Teacher or Bachelor in Education or any degree recognised by the Board as equivalent thereto, or

(iii) a diploma in Education given by the Graduates Basic Training Centre, or

(iv) any other degree, diploma or certificate which the State Government or the Inter University Board has sanctioned as equivalent to any of the qualifications mentioned in

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paragraphs (ii) to (iv).

(4) ... ... ...

(5) ... ... ...

(6) ... ... ...

(7) ... ... ...

(8) ... ... ...

(9) ... ... ... "

6.4. The said regulation, as could be clearly discernible, prescribes that the person to be appointed as a teacher shall possess a degree in "any" faculty of any university in India established by law. While the regulation is silent about the candidate being required to have a Master's Degree, yet, what would be relevant is that even insofar as the Graduate Degree is concerned, the regulation prescribes possessing of a valid degree from a valid university and the same does not prescribe that the degree should be in the subject concerned.

6.5. It also requires to be mentioned here that Rule 11 of the 2011 Rules prescribes the preparation of the select list and whereas the said Rules also mentions about giving weightage of 70% as regards the marks secured by the candidate in TAT whereas, the remaining 30% would be given as per the educational qualification as found in Appendix-II. Relevant portion of Appendix-II which is reproduced hereinbelow for benefit states about granting 10 marks for graduation in

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concerned subject and 10 marks for post-graduation in concerned subject.

Appendix-II [see Rule No.11(1)(d) & 11(2)] Example

(1) Calculation of 70% Weightage

If a candidate secured 175 marks out of 250 marks in TAT conducted by the Board, for selection he gets 175* 70/250 = 49 marks

(2) Calculation of 30% Weightage

(1) For the post of Head Master:-

No. Qualification Maximum For Example Marks Percentage Marks secured by eligible on the the basis candidate of percentage secured by the candidate (Col.3* Col.4/100)

1 Graduate degree 05 50 2.5 i.e. B.A./B.Sc. Etc. 2 Post Graduate 07 60 4.2 degree i.e. M.A./M.Sc. etc. 3 Post Graduate 05 80 4.0 degree in professional subject

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i.e. M.Ed./M.P.Ed.

etc. 4 Experience, more 08 70 5.6 than ten years (per year 0.5 marks) 5 Experience, more 05 12 years 1.0 than ten years (per (more than year 0.5 marks) 10, 2 years i.e. 2*0.5) Total 30 17.3

8. As observed by learned Coordinate Bench, while the said Appendix only prescribes about giving marks for graduation and post-graduation i.e. giving weightage to the qualification concerned, it would appear that the respondents have considered the weightage as the educational qualifications or as the eligibility for appointment, which is clearly erroneous. In the considered opinion of this Court, since the recruitment rules prescribe eligibility to be decided as far as educational qualification is concerned as per the Gujarat Secondary Education Regulations, 1974 and whereas Regulation 20 prescribing requirement of a degree in any faculty, by referring to GR dated 28.10.1975 in the advertisement, the respondent authorities could not have tried to include a requirement which is otherwise not found in the recruitment rules. In the considered opinion of this Court, in case of a conflict between a rule i.e. recruitment rule in the instant case and a government resolution, then the rule concerned would have a primacy over the government resolution. The issue being well settled does not require any further hallucination. The respondents would not be

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entitled to refer to the requirement in the GR to deny appointment to the petitioner more particularly when the petitioner was otherwise eligible as per the recruitment rules.

9. Considering the law as laid down by the learned Coordinate Bench and further considering the discussion as hereinabove, it would clearly appear that the stand that had been termed as 'misapplication of criteria' by learned Coordinate Bench in the judgment referred to hereinabove is what has been reiterated by the respondents in the present instance. As noted hereinabove, the weightage criteria while calculating the 30% marks to be awarded to a candidate could not be imported as the eligibility criteria and whereas, it also requires to be mentioned that the requirement which is not found in the rules, under which selection process had been conducted, could not have been considered by the respondents more particularly by relying upon a government resolution.

10. In this view of the matter, in the considered opinion of this Court, the prayers made by the petitioner is required to be granted. The respondents are directed to issue appointment order to the petitioner as per the placement of the petitioner in the merit list dated 19.11.2016. The petitioner shall be entitled to benefit of seniority from the date persons junior to the petitioner in the select list were appointed and whereas, the salary of the petitioner from the date he is given posting, shall be paid as if the petitioner appointed on the date his junior had

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been appointed and whereas, the benefit of the interregnum period shall be treated as notional.

11. Accordingly, the present petition stands disposed of as allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted."

8.1 The relevant paragraphs 12 and 13 of the judgment

dated 22.8.2024 passed in the Letters Patent Appeal No.183 of

2022 and allied matters read thus :-

"12. Rule 11(3), of the Rules under which the Appendix is prescribed pertains to the allocation of the maximum marks for the qualification for the purpose of weightage of 30%. It is the case of the appellant - State that the respondent - candidates cannot be offered maximum 10 marks as per Item No.2 of the Appendix since they hold post-graduation degree in 'Industrial Chemistry' whereas the graduation degree is in 'Chemistry'. It is also contended that the post-graduation degree should also be in "concerned subject" , i.e. Chemistry in order to claim 10 marks.

13. On a specific query raised by us to the learned AGP as to whether it is possible for a candidate to obtain a post graduate degree in the same subject in which a candidate has done his graduation, to satisfy the requirement of 'concerned subject'; the

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learned AGP on instructions has submitted that the postgraduation degree would always be in a specialized subject and it cannot be in the same subject. Hence, the respondent - candidates, who possess graduate degree in 'Chemistry', cannot obtain post-graduation degree in 'Chemistry', but they have to undertake a specialized subject in order to obtain the postgraduation degree. In the present case, the respondent - candidates have their graduation degree in 'Chemistry' and their specialized subject for post-graduation is in 'Industrial Chemistry'. The expression "concerned subject" in the Appendix cannot be stretched to an extent that the graduate degree and post graduate degree should be in identical and similar subject, which is an impossible task as the current education system does not allow the graduation and postgraduation degree in the similar/identical subject."

9. In light of the aforesaid, this is a fit case to exercise

extraordinary jurisdiction under Article 226 of the Constitution

of India. The impugned order dated 16.12.2016 is quashed

and set aside. The respondent to issue appointment order to

the petitioner and place the petitioner in the merit list dated

19.11.2016 within a period of six weeks from the receipt of

this order. The respondent - State to consider the seniority of

the petitioner from the date of joining of juniors in the said

list and the salary from the date of posting be given to the

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