Gujarat High Court
Jagdishbhai Chimanlal Khalas vs State Of Gujarat & 2 on 31 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/940/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 940 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
JAGDISHBHAI CHIMANLAL KHALAS....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
ADVOCATE NOTICE SERVED for the Petitioner(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR HEMANG R RAWAL, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
MR PALAK H THAKKAR, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 31/07/2017
Page 1 of 14
HC-NIC Page 1 of 14 Created On Tue Aug 15 18:32:02 IST 2017
C/SCA/940/2006 JUDGMENT
ORAL JUDGMENT
1. When the petition is called out and taken up for hearing, learned advocate for the petitioner or the petitioner is not present. Mr.Goutam, learned AGP for respondent No.1 and Mr.Thakkar, learned advocate for respondent No.3 are present.
2. In present petition, the petitioner has prayed, inter alia, that:
"10B. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to consider the case of the petitioner for appointment on the post of Cane Teacher and further be pleased to direct the respondents to appoint the petitioner on the said post with all admissible benefits;
C. Pending admission and/or final hearing of this petition, this Hon'ble Court may be pleased to direct the respondents to consider the case of the petitioner for appointment on the post of Cane Teacher and further be pleased to stay the further proceedings of interview process held in pursuance of the advertisement dated 18.7.2005 (AnnexureE), which includes selection and appointment;"
3. To support the relief prayed for in the petition, the petitioner has averred and stated that:
"4.1 The petitioner most humbly and respectfully submits that the petitioner is a visually handicapped (blind) and was appointed as Assistant Teacher vide order dated 20.8.1993 for a period of one year by the respondent no.3. However, the said arrangement was continued till 1997. Even the principal of ATCB has Page 2 of 14 HC-NIC Page 2 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT also issued certificate to the effect that the petitioner has worked with the institution from 20.08.1993 to 3.05.1997 as Assistant Teacher. The petitioner is possessing qualification of M.A., B.Ed. and is also having certificate of Special Course for Blind with Cane work as a trade subject of the Technical Examination Board Gujarat State. 4.2 The petitioner most humbly and respectfully submits that the appointment of the petitioner on the post of Assistant Teacher was continued till 1997 and thereafter the petitioner came to be terminated as the suitable candidate belonging to Scheduled Tribes having requisite qualification was selected. It is pertinent to note that the petitioner is belonging to Socially and Economically Backward Class (SEBC) and he was appointed as Assistant Teacher with the respondent no.3 and has worked with the said respondent almost for five years.
4.3 The petitioner most humbly and respectfully submits the petitioner challenged the order of termination by way of Special Civil Application No.2484 of 1997, which came to be dismissed by order dated 7.5.1997. The petitioner most humbly and respectfully submits that the said order was challenged by way of Letters Patent Appeal No.866 of 1997. The said appeal came to be disposed of, as not pressed in view of the statement made therein, by order dated 18.11.2002. 4.4 The petitioner most humbly and respectfully submits that the petitioner was waiting for the response from the respondent no.3 pursuant to the statement made before the Hon'ble Division Bench. However, he did not receive any response from the said respondent.
4.5 The petitioner most humbly and respectfully submits that recently the petitioner came to know from the newspaper advertisement published in daily "Divya Bhaskar" on 10.7.2005 that the respondent no.3 has invited application for appointment of teacher in the institution.
4.6 The petitioner most humbly and respectfully submits that pursuant to the said newspaper advertisement, the petitioner had written a letter dated 25.7.2005 to the respondent no.3 for appointing the petitioner on the post of teacher. 4.7 The petitioner most humbly and respectfully submits that the petitioner has worked with the respondent no.3 institution for almost five years and he is having experience of Assistant Teacher. During Page 3 of 14 HC-NIC Page 3 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT his tenure as Assistant Teacher, there was no iota of complaint from any of the persons working with the respondentinstitution."
4. From the details it has emerged that the petitioner is visually handicapped. He served with the respondent school from August 1993 to May 1997. It appears that in May 1997 his service was discontinued on the ground that regularly selected employee for the post in question (i.e. for the post on which the petitioner was serving) was available and consequently such person came to be appointed and the petitioner came to be relieved from service. Feeling aggrieved by the action of the respondents of reliving him from service, the petitioner filed Special Civil Application No.2484 of 1997. The said petition came to be disposed of vide order dated 7.5.1997. While disposing the petition the Court observed that the action of relieving the petitioner cannot be faulted, the Court, however, expressed the hope that if any post becomes available or if any other vacancy arises, the petitioner's case Page 4 of 14 HC-NIC Page 4 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT will be considered.
5. Feeling aggrieved by the said order, the petitioner preferred Letters Patent Appeal No.866 of 1997. The said appeal came to be withdrawn by the petitioner on the premise that around that period two posts had fallen vacant with the respondent school and both posts were reserved for Baxi panch candidate and therefore, the petitioner hoped that he will be selected. 5.1 It is claimed that the petitioner's case was considered by the respondent school and it was ready and willing to appoint the petitioner. The respondent school has claimed that it had recommended petitioner's case for appointment, however, the government authorities did not approve the recommendation of the school on the ground that the post for which the petitioner did not possess requisite qualification for the post for which his case was recommended and that the petitioner had crossed prescribed age limit.
Page 5 of 14
HC-NIC Page 5 of 14 Created On Tue Aug 15 18:32:02 IST 2017
C/SCA/940/2006 JUDGMENT
5.2 It appears that subsequently when vacancy arose in July 2005, the petitioner submitted his application, however, again the petitioner's case was not considered.
5.3 Therefore, he filed present petition.
6. Respondent No.3 school has filed affidavit opposing the petition. The said respondent No.3 has clarified the facts and circumstances involved in the case and why the petitioner could not be appointed. In the reply affidavit, respondent No.3 has averred and stated that:
"3. At the outset, it is submitted that two vacancies had arisen on account of the retirement of two teachers. Those posts were reserved for Baxi panch. Names were invited from the office of the Employment Exchange. The employment exchange sent nil report and thereafter names were invited from the Training colleges such as teachers Training College for Blind, Ashram Road and Secondary Teachers Training College in Diploma for the Blind, Vastrapur which are recognized by the Rehabilitation Council of India (RCI).
4. It is submitted that permission from the Social Defence Department of the Government of Gujarat was obtained for taking interview and the Deputy Director, Social Defence Department, Government of Gujarat remained present in the interview. In all 13 candidates were interviewed by the Committee. I say that the petitioner was selected and placed at Serial No.1. I say that respondent No.3 had thereafter addressed a letter dated 15th October, 2003 to the Director of Social Defence Department, Government of Gujarat giving the aforesaid details and also stating that in case approval for the selection of the Page 6 of 14 HC-NIC Page 6 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT petitioner is not granted, names of Ms.Brahmbhatt Yaminiben and Mrs.Manishaben Vishnuprasad be considered who were listed at Sr.No.2 and 3 in the select list.
It is submitted that respondent No.3 received a reply dated 14th November 2003 from respondent No.2 stating that the petitioner who was put at Sr.No.1 in the select list was not fulfilling the required educational qualification and he was also overaged and therefore, approval sought for could not be granted.
8. It is respectfully submitted that respondent No.3 has made the following statement before the Division Bench of this Hon'ble Court:
"Respondent No.3 will accommodate the appellant against one of the two posts which have fallen vacant subject to the approval of the State Government."
I say that in view of the approval having not been granted by the Social Defence Department of the Government of Gujarat, respondent No.2 herein, by its communication dated 14th November 2003 for the reasons stated therein, the appointment of the petitioner was not made. I submit that respondent No.3 has therefore not breached the statement made before the Division Bench of this Hon'ble Court.
9. It is submitted that respondent No.3 has issued advertisement for the post of Assistant Teacher in the local daily newspapers. Since the age of the petitioner was above the prescribed upper age limit of 40 years with all permissible relaxations and since the petitioner has not passed the Teachers Training Course for the blind approved by the Rehabilitation Council of India (RCI) the question of appointment of the petitioner did not arise.
13. With reference to para 4.1, it is submitted that the post vacant was reserved for Scheduled Tribe. It is submitted that in view of the nonavailability of the ST candidates, the petitioner was appointed for one year on a fixed salary with effect from 20th August 1993 and respondent No.3 requested the Government for approval of the appointment of the petitioner for the relevant period of one year only on account of non availability of ST candidate. It is respectfully submitted that the said appointment was extended year by year upto 3rd May 1997. It is submitted that during the tenure of the petitioner which was extended by year by year requests were made by respondent No.3 to the Government to convert the said post of Assistant Teacher which was reserved for ST category for the blind persons. However, the Government has not acceded Page 7 of 14 HC-NIC Page 7 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT to the request of the respondent No.3 to convert the reserve post meant for the ST candidates as per the roster point. It is submitted that subsequently respondent No.3 has appointed an ST candidate who is also a blind person on the said post.
16. With reference to para 4.4, it is denied that the application of the petitioner was not invited. It is submitted that the petitioner was called for the interview in 2003 and he was also selected and placed at Sr.No.1 and proposal for approval was made to the Hon'ble Government of Gujarat, respondent No.2 herein. It is submitted that in view of nonfulfillment of the requirement qualification and the age being more than the prescribed age limit, the appointment of the petitioner was not approved by respondent No.2. The statement made in para 4.4 that the petitioner was waiting for call from respondent No.3 as per the statement made before the Hon'ble Division Bench is therefore not true and hence denied. It is not correct that the petitioner did not receive any response from respondent No.3.
22. It is respectfully submitted that the petitioner was interviewed in terms of the statement made by respondent No.3 before the Hon'ble Division Bench. However, in view of the fact that his appointment was not approved by the Hon'ble State Government as stated hereinabove, the petitioner was not appointed. It is respectfully submitted that it was not required for the respondent to give any reply to the petitioner."
7. At this stage, it will not be out of place to take into account the observations by the Court in the order dated 7.5.1997 in Special Civil Application No.2484 of 1997, wherein the Court observed and held that:
"Heard learned Advocates for the parties.
Petitioner was appointed as an Assistant Teacher under order dated 20th August, 1993 for one year only. It appears that said post of Assistant Teacher under respondent No.3 was reserved for a scheduled Tribe candidate in accordance with roster maintained by the Government. However, at the relevant time, qualified Page 8 of 14 HC-NIC Page 8 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT person belonging to scheduled Tribe was not available. The petitioner though does not belong to a scheduled Tribe he came to be appointed temporarily for want of availability of a scheduled Tribe candidate. This arrangement is continued till 1997. In the meantime, several efforts were made to select a qualified person belonging to a scheduled Tribe. The respondent No.3 also made a proposal to the Government to dereserve the said post and to regularize the service of the petitioner. The said proposal has, however, been not accepted/not considered by the Government. However, sometime in the month of March 1997, suitable candidate belonging to the scheduled Tribe having requisite qualification was selected. Said selection also received approval of the State Government. Pursuant to the said selection the newly recruited person has been appointed. I am told that the person now selected for appointment to the post hitherto held by the petitioner is also a blind person.
In above view of the facts the petitioner's appointment being temporary and by way of stop gap arrangement the petitioner did not acquire a right to hold the post more so when the fresh recruitment is made in consonance with the Rules and after following due procedure, and in accordance with the roster. In my view, therefore, the petitioner cannot be permitted to hold the post after the expiry of the term of his appointment. Learned Advocate Mr.Tripathi has submitted that the Government ought to have considered the proposal made by the respondent No.3 and ought to have dereserved the post held by the petitioner. If that were done, the petitioner's appointment would have been regularized. I am afraid, I cannot accept this contention. The Government cannot be compelled to de reserve the post which is earmarked for a scheduled Tribe candidate. It is, however, hoped that the petitioner will be accommodated on any other post for which he might be found suitable as and when such an occasion arises.
In the circumstances, petition fails. Petition is dismissed in limine. Notice is discharged."
8. From the said order, following observations are relevant for the purpose:
"In the meantime, several efforts were made to select a qualified person belonging to a scheduled Tribe. The respondent No.3 also made a proposal to the Government to dereserve the said post and to regularize the Page 9 of 14 HC-NIC Page 9 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT service of the petitioner. The said proposal has, however, been not accepted/not considered by the Government. However, sometime in the month of March 1997, suitable candidate belonging to the scheduled Tribe having requisite qualification was selected. Said selection also received approval of the State Government. Pursuant to the said selection the newly recruited person has been appointed. I am told that the person now selected for appointment to the post hitherto held by the petitioner is also a blind person."
9. From the said facts, it has emerged that at the relevant time regularly selected candidate was made available to respondent No.3 school and the said person was also a blind person. 9.1 In the said order, the Court also observed that the petitioner's demand for dereserveing the post cannot be considered and such direction cannot be passed to the Government. The appeal against the said order came to be withdrawn by the petitioner.
9.2 In this background, the reply by the respondent authority is also relevant. In the affidavit dated 6.9.2006, the respondent has averred and stated that:
"5. At the outset, it is stated that it is the case of the petitioner that the petitioner was appointed by Page 10 of 14 HC-NIC Page 10 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT the respondent No.3, as Assistant Teacher vide order dated 20.8.1993. The petitioner is possessing qualification of M.A., B.Ed. and is also having certificate of Special Course for Blind with Cane work as a trade subject of the technical Examination Board Gujarat State. Petitioner's service was terminated by the respondent No.3. The said order was challenged by the petitioner in Special Civil Application No.2484 of 1997, which came to be dismissed by order dated 7.5.1997. The petitioner preferred Letters Patent Appeal against the order of Single Judge which was disposed of, as not pressed. It is the case of the petitioner that the respondent No.3 has made statement before the Hon'ble Division Bench to the effect that, as and when vacancies arisen, the case of the petitioner will be considered accordingly. The petitioner came to know from the newspaper that the respondent No.3 has invited an application for appointment of teacher in the institution. The petitioner has approached respondent No.3 institution. Though the statement made before the Hon'ble Division Bench of this Hon'ble Court, the case of the petitioner does not considered by the respondent No.3.
6. The petitioner was appointed by the respondent No.3 as Stop Gape Arrangement and was also paid by the management of the respondent No.3 institution. The respondent No.1 and 2 has not approved the service of the petitioner at the relevant time. Hence, are not liable to consider the case of the petitioner at this stage.
7. At the out set, it is stated that in the year 1997 the post of Assistant Teacher in respondent No.3 institution as per the roster was to be filled up by ST candidate, which could not filled up. The seat was reserved for ST candidate and cannot be filled up by any candidate of any other category."
10. In backdrop of such facts, the Court could have still considered the option of recommending the petitioner's case for appropriate and sympathetic decision in light of his past service with the respondent school. However, the fact disclosed by the petitioner would persuade the Page 11 of 14 HC-NIC Page 11 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT Court to refrain from passing such order.
11. From the affidavit made by the petitioner (in support of and to verify the petition), it has emerged that in December 2005, the petitioner was aged 47 years. Thus, by now the petitioner has already crossed or reached age of superannuation.
12. After the petition came to be admitted, almost 12 years have passed. Thus, the petitioner has reached 59 years of age and that, therefore, it would not be appropriate to pass any direction to respondent No.3 or the respondent State for granting any relaxation to the petitioner or for considering the case of the petitioner.
13. Further, it is releavnt and pertinent that on previous occasion when the service of the petitioner was terminated the Court did not find that action illegal and the Court dismissed the petition and the petitioner had withdrawn the appeal.
14. Besides this, the reasons in light of which Page 12 of 14 HC-NIC Page 12 of 14 Created On Tue Aug 15 18:32:02 IST 2017 C/SCA/940/2006 JUDGMENT the petitioner's case was not considered at the relevant, cannot be considered to be extraneous or nongermane.
15. It is true that respondents No.1 and 2 ought to have and could have taken practical, beneficial and welfare oriented approach, more so when any candidate from the Scheduled Tribes or Scheduled Castes was not available and having regard to the facts of the case as well as qualification and experience of the petitioner, respondents No.1 and 2 ought to have sympathetically considered petitioner's case and could have allowed respondent No.3 school to appoint the petitioner.
16. However, the respondents No.1 and 2 took rigid and technical stand which deprived the petitioner from being employed when the post was available with respondent No.3 school and even the school did not have an objection in appointing the petitioner.
Page 13 of 14
HC-NIC Page 13 of 14 Created On Tue Aug 15 18:32:02 IST 2017
C/SCA/940/2006 JUDGMENT
17. However, the said possibility now does not survive.
18. Having regard to his advanced age and the fact that he has already reached / crossed age prescribed for the purpose of superannuation, at this belated stage, it would not be proper and just for this Court to grant any relief.
19. Under the circumstances, for above mentioned reasons and on the said limited ground, it is not possible to grant any relief and that, therefore, the petition is not entertained. Accordingly, the petition stands disposed of. Rule is discharged.
Sd/ (K.M.THAKER, J.) Bharat Page 14 of 14 HC-NIC Page 14 of 14 Created On Tue Aug 15 18:32:02 IST 2017