Gujarat High Court
Gavit Ganeshbhai Ramajbhai vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
C/SCA/12440/2020 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12440 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 12440 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8730 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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GAVIT GANESHBHAI RAMAJBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 17/07/2025
COMMON ORAL JUDGMENT
1. The petitioner in both these petitions is the same
person and the facts are interconnected. In view of the order
dated 19.6.2024 passed by coordinate Bench of this Court, to
hear Special Civil Application No.8730 of 2024 along with
Special Civil Application 12440 of 2020, with the consent of
the learned advocates for the parties, these petitions are
disposed of by this common judgment.
2. By way of the petition being Special Civil
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Application No.12440 of 2020, the petitioner has prayed for
the following reliefs:
"12(a) to admit this petition and to allow the same by
issuing Notice for Final Disposal on returnable date;
(b) to direct the respondents to forthwith include the
petitioner's name in the merit-list for Document Verification
for 5th Round for the post of Shikshan Sahayak for English
subject for Secondary School (Gujarati Medium) as per
Annexure-F, pursuant to the Advertisement dt.12-4-2016 as
per Annexure-A.
(c) to quash and set aside the impugned decision of the
Respondents dtd. 30-9-2020 at Annexure-G wrongfully
denying to include the petitioner's name in the merit-list for
Document Verification for 5th Round;
(d) PENDING HEARING AND FINAL DISPOSAL OF THIS
PETITION, BE PLEASED to stay the process of 5 th Round
for the post of Shikshan Sahayak for English subject for
Secondary School (Gujarati Medium) pursuant to the
Advertisement dtd.12-4-2016 as per Annexure-A."
(e) PENDING THE HEARING AND FINAL DISPOSAL OF
THIS PETITION, BE PLEASED to direct the respondents to
keep one post vacant for the petitioner at the time of
finalising selection and giving appointment in the 5 th Round
for English subject for Secondary School (Gujarati Medium)
pursuant to the Advertisement dtd.12-4-2016 as per
Annexure-A;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF
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THIS PETITION, BE PLEASED to direct the respondents to
verify the petitioner's documents for giving appointment as
Shikshan Sahayak for English subject for Secondary Schools
(Gujarati Medium) pursuant to the Advertisement dtd. 12-4-
2016 as per Annexure-A, subject to further orders of this
Hon'ble Court;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF
THIS PETITION, BE PLEASED to restrain the respondents
from giving any appointments in the subject of English in
the 5th Round for Secondary Schools (Gujarati Medium)
pursuant to the Advertisement dtd. 12-4-2016 as per
Annexure-A;
(h) xxxxx"
3. By way of Special Civil Application No.8730 of
2024, the petitioner has prayed for the following reliefs:
"13(a) to admit this petition and to allow the same by
issuing Notice for Final Disposal on returnable date;
(b) to direct the respondents to forthwith verify the
petitioner's documents and to place him in the merit-list for
the post of Shikshan Sahayak for English subject for
Secondary School (Gujarati Medium) as Scheduled Tribe
candidate pursuant to the Advertisement dtd.12-4-2016 as per
Annexure-A and pursuant to the directions issued by this
Hon'ble Court in the orders at Annexure-G colly;
(c) to direct the respondents to give appointment to the
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petitioner as per his merit with all consequential benefits as
if he was given appointment on the date on which other
candidate having less merit than the petitioner was given
appointment.
(d) to restrain the respondents from giving appointment to
any other candidate having less merit than the petitioner in
category of Scheduled Tribe for the post of Shikshan
Sahayak for English subject for Secondary School (Gujarati
Medium) pursuant to the Advertisement dtd. 12-4-2016;
(e) PENDING THE HEARING AND FINAL DISPOSAL OF
THIS PETITION, BE PLEASED to direct the respondents to
forthwith verify the petitioner's documents and place him in
the merit-list for the post of Shikshan Sahayak for English
subject for Secondary School (Gujarati Medium) as Scheduled
Tribe candidate pursuant to the Advertisement dtd. 12-4-2016
as per Annexure-A, subject to further orders that may be
passed in the present petition;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF
THIS PETITION, BE PLEASED to restrain the respondents
from giving appointment to any other candidate having less
merit than the petitioner in category of Scheduled Tribe for
the post of Shikshan Sahayak for English subject for
Secondary School (Gujarati Medium) pursuant to the
Advertisement dtd. 12-4-2016;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF
THIS PETITION, BE PLEASED to direct the respondents to
keep one post vacant for the petitioner of Shikshan Sahayak
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for English subject for Secondary School (Gujarati Medium)
in Scheduled Tribe category pursuant to the Advertisement
dtd.12-4-2016;
(h) xxxx"
4. The brief facts leading to filing of these petitions
are that the petitioner was born on 1/4/1982. He belongs to
Scheduled Tribe. He has passed BA English and MA English
and Teachers Aptitude Test for English subject for secondary
teacher. He is therefore eligible and qualified to be appointed.
4.1 The respondents issued advertisement dated
12/4/2016 for Shikshan Sahayak/ secondary teacher. The
petitioner applied for the same as per his online application.
The petitioner's merit comes to 56.91 as per the objective
criteria laid down in the rules. The other candidates having
merit up to 57.39 were given appointments in the fourth
round as per the cutoff merit marks dated 27/6/2017. The
petitioner's name was not included in the fourth round as his
merit was 56.91.
4.2 On 21/9/2020, the respondents issued advertisement
for the fifth round. They have declared the particulars of
vacancies available after the fourth round as 5 vacancies of
English subject for Scheduled Tribe candidates. However, in
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the list of candidates for document Verification for fifth round
dated 21/9/2020, the respondents have not included the
petitioner whose merit is 56.91, though they have included
the candidates having less merit than the petitioner at serial
number 106 to 125 whose merit is 56.81 to 56.21. The
petitioner, therefore, made a representation dated 23/9/2020.
On 30/9/2020, the respondents have published their decision
on the objections of the candidates on the website wherein at
serial number 15 with regard to the objections raised by the
present petitioner, it is stated that the merit of the candidate
is more than the cut off of the fifth round but as per the
data provided by Index B, the candidate has not given
district preference in the fourth round and therefore the
candidate is not entitled to be included in the fifth round.
Hence, this petition is filed.
4.3 Special Civil Application No. 8730 of 2024 is filed
by the same petitioner as pursuant to the other orders
passed by this Court, the respondents have now issued the
advertisement on or before 7/6/2024 for document verification
of candidates in the list displayed on the website. The
respondents herein are shown as two ST candidates at serial
number 8 and 9 whose merit is 56.59 and 56.52, but the
petitioner's name is not appearing in the list though his
merit is 56.91 which is higher than both the said candidates.
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As per the directions of this Court in the orders, the process
of filling up all the vacancies of recruitment process of year
2016 is to be completed by 24/6/2024. Hence, this petition is
filed.
5. Heard learned advocates for the parties.
5.1 Learned advocate Mr. Pujara has mainly submitted
that the representation of the respondents was rejected only
on the ground that the petitioner did not give district
preference in the fourth round, however, as his name was
not included in the fourth round and therefore there was no
occasion for him to give any district preference at that time.
It is only in the fifth round that the petitioner has become
eligible to be included in the list as per his merit of 56.91
because all the 20 candidates whose names are appearing in
the merit list at serial numbers 106 to 125 are having less
merit than the petitioner. He submitted that there was never
such condition in the advertisement dated 12/4/2016 that if
the candidate does not give district preference in any round,
he would be declined selection and appointment in the next
round. He further submitted that in every round, the district
preference was invited from the selected candidates, i.e.
10/11/2016, the district preference was invited by 12/11/2016
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23.59 hours for the first round. On 28/11/2016, the district
preference was invited by 30/11/2016 23.50 hours for the
second round. On 10/12/2016, the district preference was
invited by 13/12/2016 11.59 hours for third round. On
21/6/2017, the district preference was invited by 23/6/2017 for
the fourth round. However, in the said fourth round, the
time was extended on 23.6.2017. It is nowhere stated in the
said notices that the candidate who does not give district
preference within the said time limit of that round would
lose right of district allotment in future rounds. He submitted
that in the fourth round, the cut-off of merit of ST male
candidates for English subject was 57.39 and the petitioner's
merit being 56.91. He did not have any occasion to give
district preference. He submitted that the name of the
petitioner was not published at the time of fourth round as
his merit was 56.91. However, in the fifth round, the
respondents have issued the advertisement on 21/9/20 and
invited district preference for the first time by publishing the
document verification list on 21.9.2020, wherein despite the
petitioner's high merit, his name is not shown and there are
20 ST candidates in the said list whose merit is less than
the petitioner. He submitted that as per the settled legal
position, the merit cannot be given a go-by while giving
appointment. He submitted that even if it is admitted that
the petitioner has not given the district preference, then also,
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if a candidate has not given any district preference, he may
be allotted to any district by the respondents as per their
choice. But the respondents cannot deny appointment to such
a meritorious candidate. He relied on the judgment of.
Sankarshan Das, V Union of India, AIR 1991, SC 1613 and
submitted that "Unless the relevant Recruitment Rules so
indicate, the State is under no legal duty to fill up all or
any of the vacancies. However, it does not mean that the
State has the licence of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be taken bona
fide for appropriate reasons. And if the vacancies or any of
them are filled up, the State is bound to respect the
comparative merits of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted."
5.2 He finally submitted that admittedly there are 5
vacancies available in the English subject for ST category
and the petitioner's merit is more than all the 20 candidates
of ST category who are called for document verification. He,
therefore submitted that on the technical ground that the
petitioner has not given the district preference, the
respondents ought not to have denied the publication of his
name in the fifth round list as he has secured more marks
than all the candidates who appeared in the list. It is not
true that the petitioner has not given the district preference
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at any point of time. He did not give the district preference
because his name was not appearing in the fourth round,
and for the fifth round it was for the first time the district
preference was called for, however, as the name of the
petitioner was not appearing in the fifth round list, he could
not opt for the district preference. He, therefore, submitted
that these petitions are required to be allowed and the
petitioner is required to be given the appointment as he has
more merit marks than the persons who are appearing in the
list.
6. Per contra, learned AGP Ms.Bhati has, by drawing
the attention to the affidavit in reply filed, submitted that
the office of the respondent has published an advertisement
dated 12/4/2016 for selection of Shikshan Sahayak in grant-
in-Aid Secondary and Higher Secondary School across the
state and invited the online application from the candidates.
The work is assigned to index B which is a government
agency. The selection process is based on the application
online made by the eligible candidate. She submitted that the
flow chart of the advertisement would be to receive online
application from the candidates, then to declare online merit
of four time candidates against total vacant posts, thereafter
online district preference from above candidates, thereafter an
online district allotment as per the merit of the candidates,
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thereafter document verification at district level camp,
thereafter school allotment and then appointment. She
submitted that if the candidates are not exercising his or her
right and not responding to any of the above level, then it is
deemed that she or he has lost the right. She submitted that
the office of the respondent had published every instruction
at every stage of selection on the notice board of its website
and it is clearly stated that if the candidate does not opt for
district preference in the prescribed time limit then the
candidate would not have any right for district allotment.
That the advertisement for the fifth round was published on
21.9.2020. The petitioner made an application on 23/9/2020
for inclusion of his name in the fifth round as his name was
not appearing in the list. She submitted that there were 32
other similarly situated candidates who had a similar
grievance and after receiving all such applications from the
candidates including the present petitioner, the office of the
respondent called for the information from the index B and
on receiving such information, it revealed that the present
petitioner and other 32 candidates were not given the district
preference in the fourth round of selection and therefore,
authority has taken a decision on 30/9/2020 which is
impugned in the present petition.
6.1 She submitted that the petitioner, including 2104
candidates, have not exercised their right and not given the
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district preference and therefore the authority had not
allowed such candidates to participate in the fifth round of
selection. She submitted that when the petitioner has not
exercised his right at the proper time, it is not open for the
petitioner to agitate his grievance that his name was not
included in the list for the fifth round. She therefore
submitted that both these petitions are required to be
dismissed.
7. I have heard the rival submissions and also
perused the material placed on record.
7.1. From the material produced on the record, it
transpires that the advertisement for the post of Shikshan
Sahayaks/Secondary Teacher was issued on 12/4/2016. The
petitioner applied for the same. The petitioner's merit comes
to 56.91 as per the objective criteria laid down in the rules.
The ST male candidates having merit up to 57.39 were given
appointments in the fourth round as per the cut-off marks.
The name of the petitioner was not included in the fourth
round as his merit was 56.91. The advertisement for the fifth
round was issued on 21/9/2020 declaring the vacancies
available after the fourth round wherein 5 vacancies of
English subject are available for Scheduled Tribes. However,
in the list of candidates for document verification for fifth
round dated 21/9/2020, the name of the petitioner was not
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included though he had merit of 56.91 and the candidates
having less merit than the petitioner at serial numbers 106
to 125 whose merit is 56.81 to 56.21 were included. These
are all the undisputed facts coming on the record.
7.2 The only point for controversy is whether the
respondents were justified in not including the name of the
petitioner in the list published for the fifth round of selection
by giving the reason that "Merit of the candidate is more
than the cut-off of the fifth round but as per the data
provided by Index B, the candidate has not given district
preference in the fourth round and therefore the candidate is
not entitled to be included in the fifth round." This decision
of the respondent authorities on the representation made by
the petitioner is illegal and improper for the reason that in
the advertisement dated 12.4.2016, which is a part of the
record, nowhere it is mentioned that if the candidate does
not give district preference in any round, he would be
declined selection and appointment in the next round. It is
clear that if the candidate would not give district preference
by the prescribed time and date, then he would not have any
right for allotment of district but on perusing the material in
detail, it means that if the candidate does not give district
preference in that particular round, he would not have right
for allotment of district in that particular round. There is
nothing to indicate that he would lose such right even in the
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subsequent rounds in future. This is more clear from the
dates mentioned in every round. The district preference was
invited from the selected candidates in every round. In any
of the notices, it is nowhere stated that the candidate who
does not give district preference within the said time limit of
that round would lose right of district allotment in future
rounds also. In the case of the petitioner, in the fourth
round, the cut-off of merit of ST male candidates for English
subject was 57.39 and the petitioners merit being 56.91. He
did not have any occasion to give district preference. The
submission of the learned AGP that the district preference
was sought from ST candidates for English subject in the
fourth round of selection who fell between the merits of 63.25
to 51.25, however, the petitioner had not given the district
preference is not correct as no such list was published at the
time showing the petitioner's name on the website, therefore,
the petitioner had never an opportunity to give the district
preference in the fourth round as the cut-off mark was 57.39
and he obtained 56.91. However, in the fifth round, the
respondents have issued the advertisement on 21/9/20 and
invited district preference for the first time by publishing the
document verification list on 21/9/2020 and the name of the
petitioner is not reflecting in the said list and there are 20
ST candidates in the said list whose merit is less than the
petitioner.
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7.3 In view of the above discussion, the respondents'
action of not including the petitioner's name in the list for
fifth round and the rejection of the representation of the
petitioner is improper and illegal and required to be
interfered with by allowing these petitions.
7.4 Accordingly, these petitions are allowed. By way of
interim order dated 24/6/2024, the coordinate bench of this
Court has ordered that the petitioner's document verification
be undertaken by the respondent authority. However, the
same would not create any equity in favour of the petitioner.
As these petitions are allowed, the petitioner be placed in the
merit list for the post of Shikshan Sahayak for English
subject for Secondary School Gujarati Medium as Scheduled
Tribe Candidate pursuant to the advertisement dated
12.4.2016 and be given appointment after following the
requisite procedure as stated in the advertisement dated
12.4.2016.
7.5 Rule is made absolute in each of the petitions.
Civil Application stands disposed of accordingly.
(SANDEEP N. BHATT,J)
SRILATHA
