Gujarat High Court
State Of Gujarat vs Prajapati Girishkumar Moghajibhai on 25 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1215/2019 ORDER DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1215 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 13486 of 2017
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STATE OF GUJARAT & ORS.
Versus
PRAJAPATI GIRISHKUMAR MOGHAJIBHAI & ORS.
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Appearance:
MS SHRUTI R. DHRUVE, AGP for the Appellant(s) No. 1,2,3,4
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
MR Y J PATEL(3985) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 25/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under Clause 15 of the Letters
Patent, 1865, is directed against the common oral order dated
30.08.2018 passed by the learned Single Judge in the
captioned writ petition and allied petitions, wherein and
whereby the learned Single Judge has allowed the writ
petitions. By the impugned order dated 30.08.2018, the
learned Single Judge allowed the writ petition, primarily placing
reliance on the decision rendered by this Court dated
08.02.2017 passed in Special Civil Application No.21003 of
2016 in the case of Patel Dimpal Natubhai & Anr. vs. State of
Gujarat.
2. Learned Assistant Government Pleader has submitted
that, for the purpose of obtaining No Objection Certificate
(NOC) for the appointment of new teachers, Sheth Shri K.T.
Shah High School, Khedbrahma, managed by Shri Khedbrahma
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Kelavni Mandal, had furnished data on 01.08.2012 regarding
the number of students enrolled in Standards 6 th to 8th, stating
that as of 31.07.2012, 602 students were studying in the said
classes. Based on this data, the District Education Officer
(DEO), Sabarkantha, issued an NOC for the appointment of 11
teachers.
3. She has further submitted that as per prevailing norms,
the District Primary Education Officer (DPEO), Himmatnagar,
had sanctioned only three classes for Standard 8 th vide order
dated 30.08.2012. However, as on 01.08.2012, the school did
not have a single sanctioned class for Standard 8 th. Despite
that, the school applied for an NOC for the appointment of
teachers for four classes of Standard 8 th and admitted 263
additional students without such classes being sanctioned,
which clearly indicates that the request made by the school for
the additional teacher appointments was improper. It is
contended that upon receiving the NOC, the school published
an advertisement for the appointment of 11 teachers.
However, there were material contradictions between the
particulars mentioned in the NOC and those stated in the
advertisement issued by the school, since the NOC allowed the
recruitment of two teachers for Mathematics and Science, the
school advertised for three such posts. Similarly, although the
NOC had sanctioned posts for various subjects, the school
issued advertisements for eight teachers in Language and
Social Science. Thus, it is submitted that the respondent-
School misled both - the State authorities and the applicant-
teachers, including the present respondents.
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4. Learned Assistant Government Pleader has further
submitted that although the school was duty-bound under the
NOC to appoint 11 teachers for different subjects, it in fact
appointed 10 teachers for Language and one for Social
Science, thereby violating the terms of the NOC and the
provisions of the Right of Children to Free Education and
Compulsory Education Act, 2009 (in short, "the Act, 2009"). It
is further submitted that this Court in Letters Patent Appeal
No.1216 of 2019, vide order dated 15.10.2024, had directed
the Registry to inquire into the matter, and if it was found that
the school was complicit along with the respondent-employee
therein, to initiate appropriate criminal proceedings. Pursuant
to this direction, an F.I.R. was registered against the private
respondent and the school on 08.11.2024. She has further
submitted that the whole recruitment procedure undertaken by
the School is tainted.
5. Learned Assistant Government Pleader further submitted
that the original petitioner - Prajapati Girishkumar Moghajibhai,
the respondent herein had cleared the Teacher Aptitude Test
(TAT), which is a qualification for recruitment to Secondary
Education (Standards 9th and 10th). However, as per Clause 2(II)
(1) of Government Resolution dated 27.04.2011, a candidate
applying for teaching posts in primary or upper primary
schools must have cleared the Teacher Eligibility Test (TET). At
the time of his application, the respondent had not cleared the
TET. While he had cleared the TAT, the same is not sufficient
for recruitment as a teacher for Standards 6th to 8th. Moreover,
Clause 2(II)(2) of the said Government Resolution stipulates
that, if a candidate has not cleared the TET as on the date of
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application, they must have at least applied to appear in the
TET before the last date for submission of applications. In the
present case, respondent No.1 had not even applied for the
TET before the date of his application.
6. Learned Assistant Government Pleader has further
submitted that, as per the Notification dated 18.02.2012
issued by the Education Department under the Act, 2009,
Clause-7 provides that teachers already in service prior to the
Government Resolution dated 27.04.2011 were granted five
years to clear the TET examination. However, such relaxation
is not available to fresh recruits. Therefore, any appointment
made after 27.04.2011 must comply with the mandatory
requirement of clearing the TET. Finally, she has submitted
that Sheth Shri K.T. Shah High School is a private grant-in-aid
school and, therefore, Government Resolution dated
03.06.2010 is not applicable to it. Since the school failed to
comply with the statutory requirements under the Act, 2009
and the Gujarat Right of Children to Free and Compulsory
Education Rules, 2012 (in short, "the Rules, 2012"), and as the
respondent did not possess the requisite qualification on the
date of his application, the recruitment made is in clear
violation of law. Hence, the present appeals deserve to be
allowed.
SUBMISSIONS ON BEHALF OF RESPONDENT-TEACHERS :
7. Per contra learned advocate Mr.Y.J.Patel, has submitted
that the learned Single Judge has rightly allowed the captioned
writ petition while relying upon the decision in the case of
Patel Dimpal Natubhai (supra) since both are following the
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similar selection process. It is submitted by him that the
respondent No.1 is claiming parity since he is possessing
qualification and also holding TET mark-sheet and the same
has been completed on September, 2013.
8. Learned advocate Mr.Y.J.Patel, appearing for respondent
No.1, has further submitted that the appellant-State
authorities cannot be permitted to argue new ground in this
appeal since the impugned order passed by this Court dated
30.08.2018 relying upon the decision dated 08.02.2017. He
has submitted that the appellant could not go beyond the
stand taken before the learned Single Judge in the writ
petition.
9. We have heard the learned advocates appearing for the
respective parties.
10. The learned Single Judge, while allowing the writ petition
filed by respondent No.1, placed reliance on the decision in the
case of Patel Dimpal Natubhai & Anr. (supra). However,
the learned Single Judge in the said case has not entered into
the education qualification of the petitioner therein. It is not in
dispute and even it is very fairly admitted by learned advocate
Mr.Patel that pursuant to Government Resolution dated
27.04.2011, any teacher appointed thereafter is mandatorily
required to have cleared the TET examination. In the present
case, at the time of the recruitment process initiated by the
school through the advertisement dated 27.04.2013,
respondent No.1 did not possess the requisite TET
qualification, but possessed TAT (Teachers Aptitude Test).
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11. At this stage, it is also pertinent to note that the
recruitment process initiated by the school was required to
adhere strictly to the eligibility criteria laid down under the Act,
2009, and Government Resolution dated 27.04.2011. As per
Section 23(1) of the Act, 2009 a person shall be eligible for
appointment as a teacher only if he or she possesses the
minimum qualifications as prescribed by the academic
authority. Clause 2(II)(1) of the Resolution mandates that
clearing the Teacher Eligibility Test (TET) is a pre-condition for
fresh appointment. The concession under Section 23(2) of the
Act, 2009 allowing five years to clear TET, applies only to
teachers already in service prior to the enforcement of the
norms.
12. The process of appointment, initiated by the respondent-
School is also tainted. It is an established fact though the
School did not have the sanctioned class of Standard 8 th, it
applied for NOC for appointment of teachers of four classes of
Standard 8th on 01.08.2022, and admitted 263 additional
students without such classes having being sanctioned. The
DPEO, Himmatnagar, sanctioned only three classes for
Standard 8th vide order dated 30.08.2012. After receiving the
NOC, the school published an advertisement for the
appointment of 11 teachers. The authorities found that there
was material contradictions between the particulars mentioned
in the NOC and those stated in the advertisement issued by
the school, since the NOC allowed the recruitment of two
teachers for Mathematics and Science, the school advertised
for three such posts. Similarly, although the NOC had
sanctioned posts for various subjects, the school issued
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advertisements for eight teachers in Language and Social
Science. In wake of these established facts, the respondent-
Teacher cannot be permitted to have the fruits of tainted
process of selection.
13. Vide order dated 15.10.2024 passed in Letters Patent
Appeal No. 1216 of 2019, this Court had directed the Registry
to inquire into the selection process, and it was found that the
school, along with the respondent-Teacher of the said matter,
was complicit in including him in the selection process by
forging the documents. Hence, on the directions issued by this
Court, an F.I.R. has been registered against the private
respondent-School on 08.11.2024.
14. The respondent No.1 was an aspirant under a fresh
recruitment process and not a continuing appointee.
Therefore, she / he cannot claim the benefit of the relaxation
period extended to in-service teachers. Reliance placed by the
learned Single Judge on the case of Patel Dimpal Natubhai
(supra) is misplaced The learned Single Judge in the case of
Patel Dimpal Natubhai (supra) had not entered into the issue of
educational qualification raised in the present case. The respondent
No.1 is unable to dispute that at the time of recruitment respondent
No.1 did not have required educational qualification of TET
examination), as the facts in that case are clearly distinguishable
that the candidate therein had cleared the TET prior to the date of
application, unlike in the present case.
15. The Supreme Court in the case of State of Rajasthan Vs.
Lata Arun, (2002) 6 S.C.C. 252, held that appointment made de
hors the rules and eligibility criteria is null and void, and equity
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cannot be invoked in favour of a person who does not meet the
mandatory requirements of law. Similarly, in the case of Ashok
Kumar Sharma Vs. Chander Shekhar, (1997) 4 S.C.C. 18, it was
reiterated that mandating minimum qualifications serves a
larger public interest and any dilution thereof would have
cascading consequences on the education system. Therefore,
in the considered opinion of this Court, the respondent No.1,
who admittedly did not possess the requisite TET qualification
as on the date of application, cannot claim any right of
consideration for appointment. Any subsequent qualification
attained after the cut-off date does not relate back. The right
to be considered for appointment arises only when the
candidate meets all statutory requirements on the date of
application, and not thereafter.
16. In view of the above, the present appeals succeed and
are hereby allowed. The common judgment and order passed
by the learned Single Judge are quashed and set aside.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(R. T. VACHHANI, J)
MAHESH/30
