Gujarat High Court
Dhandhalya Pratikkumar Ishwarbhai vs State Of Gujarat & on 25 January, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2942/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2942 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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DHANDHALYA PRATIKKUMAR ISHWARBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR RASHESH RINDANI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 25/01/2016
ORAL JUDGMENT
1. The present petitioner possessing the qualifications of B.A., B.Ed. and M.A. degrees, has passed Teachers Eligibility Test-II (TET-II) for the Page 1 of 16 HC-NIC Page 1 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT subject of Social Science, and being qualified to be appointed as Vidya Sahayak/Teacher for Upper Primary Schools (Std. VI to VIII), has submitted online application pursuant to an advertisement issued by the respondent dated 20.11.2014 for total 4351 vacancies of Vidya Sahayaks for Upper Primary Schools. 820 vacancies out of the total number were notified for the subject of Social Science. The petitioner also submitted physically the form with all the relevant testimonials on 2.12.2014. According to the policy of recruitment, his merit comes to 73.87 percentage. The candidates having merit upto 71.67 percentage in general category had been called in the first round for selection of District on 10th February and 11th February 2015. Because of his merit of 73.87%, he was called for selection of District on 10th February 2015. However, on the ground that the petitioner had passed B.Ed. and M.A. examinations in more than one attempt, he has been denied the selection of District and issuance of the appointment letter. It is the stand of the respondent that all attempts are not required to be grossed up and merit is to be worked out as per the calculation method provided in the advertisement, and therefore, he was not eligible to be appointed in the open category. The calculation of petitioners merit as per the prescribed formula is given at paragraph No.4, which reads as under:
cation Marks Percentage Weightage Merit
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TET-II 114/150 76.00 50% 38.00
Graduate 388/700 55.43 20% 11.09
B.Ed. 1564/1750 89.37 25% 22.34
Post 487/1000 48.70 5% 2.44
Graduation
Total 73.87
Whereas the calculation made by the respondent considering the attempts of the petitioner because of his illness in the first attempt is as under:
Education Marks Percentage Weightage Merit
TET-II 114/150 76.00 50% 39.00
Graduate 388/700 55.43 20% 11.09
B.Ed. 1564/1890 82.75 25% 20.69
Post 487/1400 34.79 5% 1.74
Graduation
Total 71.52
2. It is the grievance of the petitioner that because of wrongful calculation he has been pushed down to No.559/1 and he has been denied the selection of the District and the consequent appointment order. The petitioner seeks to rely upon the Government Resolutions dated 27.4.2011, 14.7.2011, 3.5.2012 and 18.5.2012, which govern such recruitment. According to him, there is no provision for calculation of merit in the manner the respondents have done, and in absence of any provision for deduction of any marks for passing the examination in more than one attempt or calculation of merit by grossing up all marks of all Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT the subjects of all the attempts, the Court needs to interfere.
3. Affidavit-in-reply on behalf of respondent No.2 Administrative Officer, Directorate of Primary Education on issuance of the notice is filed. According to the respondents, in the advertisement itself at instruction No.16 it has been stated as to how and in what circumstances the calculation of marks is to be made. Clause 16 states that the grand total should be considered, and in cases of attempts, granted total of all the attempts should be considered while calculating the merit. The petitioner could not clear the B.Ed. and M.A. examinations in the first attempt, therefore, the total marks of the petitioner include the marks of the second trial. It was within the knowledge of the petitioner when he had applied as to how the calculation of marks is going to be made, therefore, the petition is not tenable. It is further urged that the petitioner remained present in the District Selection Camp held on 5.6.2015, and his appointment in Jamnagar District is already made on 25.6.2015 as per the individual merit calculated by the respondent authority, therefore also, no course of action survives.
4. Affidavit-in-rejoinder is also filed.
5. Learned advocate Mr. K.B. Pujara appearing for the petitioner, has Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT stressed on all the aforesaid four Government Resolutions, which are sought to be relied upon by him. He has further urged that the issue is no longer res integra as the issue is covered by the decisions of this Court rendered in the following cases:
(1) Patel Hareshkumar Rameshbhai Vs. The State of Gujarat and others in Special Civil Application No. 24535 of 200 7 decided on 29.4.2008, (2) Patel Dineshkumar Ratilal and another Vs. State of Gujarat and another in Special Civil Application No. 8137 of 2014 decided on 2.7.2014, and (3) Parmar Harishkumar Ranchhodbhai Vs. State of Gujarat and another in Special Civil Application No. 18727 of 2013 decided on 2.12.2014.
It is the say of the petitioner that the respondents are also required to be fastened with exemplary costs of Rs.1 lac for unnecessarily dragging the petitioner to the Court when the issue is already covered. He further has urged that mere appointment of the petitioner at Jamnagar may not serve the purpose as his actual merit is 73.87%, and therefore, he is required to be given the District/Centre of his choice with a matching seniority. Denying him the order of appointment as per his merit of 73.87% would require urgent indulgence.
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6. Learned Assistant Government Pleader, Mr. K.M. Antani, has vehemently submitted that when the Court decided all those matters, the advertisements had no reference to the Government Resolutions as is the case in the instant case. Moreover, clause 16 also provides for the calculation of marks and also details as to in what manner and in which circumstances the same needs to be done. The grand total is required to be considered and in cases of more attempts the grand total of all the attempts should be considered while calculating the merit.
7. Having thus heard both the sides, and also having considered the submissions of learned advocates appearing for the parties, coupled with the judgments sought to be relied upon by the petitioners, it can be said that the issue of determining the merit in case of recruitment to the post of Vidya Sahayak of the candidates who have taken more than one attempts was firstly decided by way of Special Civil Application No.24535 of 2007. This Court in the case of Patel Hareshkumar Rameshbhai (supra) found no source in 1998-99 scheme for deduction of 1% marks for the purpose of determining the merit for the recruitment to the post of Vidyasahayak. It was also noticed that such a change was not notified in the advertisement by the officers of the respondent authority, and the power exercised by the Director was held to have overreached the State Government's policy. The Court held thus: Page 6 of 16
HC-NIC Page 6 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT "3. After having heard the learned counsel for the parties and having looked the communication of the Government placed on record of this case, wherein certain questions, raised during the course of hearing, which are formulated by respondent No.3 and sent to the Director of Primary Education for answer, have been answered by the Director of Primary Education. In answer to question No.4, the Director of Primary Education has said at his own wisdom that he has ordered for deduction of 1% marks where Vidhyasahayak Recruitment is concerned, for the purposes of determining the merit, if the candidate has taken more than one attempt. When source was sought to be identified, in 1988-1999 Scheme, it was not found anywhere. There has been no source available to make such orders to the Director over and above the Government Policy. It is noticed that such change was also not notified in the advertisement or otherwise by the respondents. The power exercised by the Director and admitted by him in communication dated 19.3.2008, shows that it has over-reached the State Government policy. he has no power to formulate any such Scheme, whereby the established schemes of the Government turn prejudicial to the candidate. Such kind of exercise of power, can be seen as the attempt to usurp the power not vested with the authority. Having done so, the petitioner has been disfavourably considered. In that view of the matter, the order deserves to be quashed and the case of the petitioner will be rejudged by adding 1% marks in his merit and accordingly, the decision will be taken by respondent Nos. 2 and 3 considering that the deduction of 1% mark was illegal and uncalled for."
8. This judgment has a reference in the case of Patel Dineshkumar Ratilal and another Vs. State of Gujarat in Special Civil Application No. 8137 of 2014, where again the question was of the candidate's merit Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT for the purpose of recruitment as Vidya Sahayak, who had taken more than one attempt. Reference was also made to the Government Resolutions dated 27.4.2011, 3.5.2012 and 18.5.2012. It was pointed out that none of these Resolutions provided for adopting the course of action adopted by the respondents of grossing up the marks obtained by a candidate in all the attempts. The State had relied upon the circular dated 9.8.2011 wherein it has been provided that when a candidate clears the examination by more than one attempt, and has obtained exemption in the subjects which were cleared in the earlier attempts, the merit is required to be taken into consideration after considering the total marks and the marks obtained at each attempt, and thereafter, on the basis of the percentage, the merit is required to be determined. The Gujarat State Primary Education Selection Committee issued the said Circular, which is comprised of the Member Secretary and Deputy Director, Directorate of Primary Education, Gandhinagar as well as the Member/Director, G.C.E.R.T., Gandhinagar, the Member/Deputy Secretary, Education Department, Gandhinagar as well as the Chairman and Director of Primary Education, Gujarat State, Gandhinagar. The Court after a close perusal of all the three Government Resolutions held that none of the said Resolutions provided for grossing up of marks obtained in all the attempts. The advertisement or the Government Resolutions mentioned therein did not provide for adopting such a mode of action, and therefore, Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT the State had heavily relied upon the Circular dated 9.8.2011 passed by the Primary Education Selection Committee giving certain instructions for preparing the final merit list. The Court, after referring to the decision in Special Civil Application No.8137 of 2014, and bearing in mind the absence of any reference to any general instructions or the Circular dated 9.8.2011 in the advertisement, held that it is not permissible for the respondent to adopt such a course of action. Relevant would be to reproduce the findings and observations:
"9. A perusal of the advertisement whereby applications were invited for appointment of Vidya Sahayaks reveals that the educational qualification stated therein is H.S.C., P.T.C. etc. Both the petitioners have cleared the H.S.C. examination as well as the P.T.C. examination. The general instructions contained in the said advertisement inter alia provide that the manner of giving marks for preparation of select list shall be in terms of the Education Department Government Resolutions dated 27th April, 2011, 3rd May, 2012 and 18th May, 2012. Copies of all the above three Government Resolutions have been annexed with the petition. A close perusal of all the three Government Resolutions reveals that none of the said resolutions provide for grossing up the marks obtained in all the attempts. It is also not the case of the respondents that the advertisement or the Government Resolutions mentioned therein provide for adopting such a mode of action. The case of the respondents is that the Primary Education Selection Committee has by a circular/resolution dated 9th August, 2011 given certain instructions for preparing a final merit list. Clause (5) thereof provides that where any candidate has cleared the final degree examination in respect of educational qualification or vocational qualification at more than one attempts then, (A) if the candidate has Page 9 of 16 HC-NIC Page 9 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT failed in either the first, second or any other attempt and when he has given the final examination in all the subjects and has passed, then it has to be considered as a single attempt and the percentage of his total marks have to be taken into consideration, (B) if the candidate has passed the examination in more than one attempt or has been granted exemption in any subject, then the total of the marks obtained at each attempt shall be calculated and the percentage thereof shall be determined and his merit shall be considered keeping in view such percentage marks. (C) is not relevant and hence not reproduced. It is on the basis of the above referred circular/resolution that the respondents have grossed the marks of all attempts made by the petitioners and calculated the percentage accordingly.
10. Evidently, therefore, the advertisement inviting applications for the post of Vidya Sahayak does not prescribe for grossing the marks obtained in all the attempts and considering the percentage thereof for the purpose of merit, nor do the Government Resolutions which find mention in the general instructions, provide for such course of action. The circular/resolution dated 9th August, 2011 passed by the District Selection Committee does not find any reference in the advertisement dated 14th February, 2014 nor has any amendment been made in the said scheme subsequently. The respondents, on their own, have applied the circular/resolution dated 9th August, 2011 without notice to the candidates. At this juncture it may be apposite to refer to the decision of this court in the case of Patel Hareshkumar Rameshbhai v. State of Gujarat (supra) wherein it has been held thus:-
"3. After having heard the learned counsel for the parties and having looked the communication of the Government placed on record of this case, wherein certain questions, raised during the course of hearing, which are formulated by respondent No.3 and sent to the Director of Primary Education for answer, have been answered by the Director of Primary Education. In answer to question No.4, the Director of Primary Page 10 of 16 HC-NIC Page 10 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT Education has said at his own wisdom that he has ordered for deduction of 1% marks where Vidhyasahayak Recruitment is concerned, for the purposes of determining the merit, if the candidate has taken more than one attempt. When source was sought to be identified, in 1998-1999 Scheme, it was not found anywhere. There has been no source available to make such orders to the Director over and above the Government Policy. It is noticed that such change was also not notified in the advertisement or otherwise by the respondents. The power exercised by the Director and admitted by him in communication dated 19.3.2008, shows that it has over-reached the State Government policy. He has no power to formulate any such Scheme, whereby the established schemes of the Government turn prejudicial to the candidate. Such kind of exercise of power, can be seen as the attempt to usurp the power not vested with the authority. Having done so, the petitioner has been disfavourably considered. In that view of the matter, the order deserves to be quashed and the case of the petitioner will be rejudged by adding 1% marks in his merit and accordingly, the decision will be taken by respondent Nos.2 and 3 considering that the deduction of 1% mark was illegal and uncalled for."
11. Thus, when neither the advertisement inviting applications for recruitment to the posts of Vidya Sahayaks nor the relevant Government Resolutions provide for grossing the marks obtained at all the attempts and thereafter considering the percentage thereof, it is not permissible for the respondents to adopt such a course of action, inasmuch as, the same is contrary to the provisions of the advertisement and the relevant government resolutions referred to therein. Though, as submitted by the learned Assistant Government Pleader, it may not appear equitable to consider the marks obtained by candidates who have appeared at several attempts without grossing the same and calculating the percentage thereof for the purpose of considering the merits of the concerned candidate. However, if that be so, it was for the respondents to make provision for Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT the same at the time of inviting applications. When no such provision has been made in the advertisement or under the recruitment scheme, it is not permissible for the respondents to add any further requirement into the same. The action of the respondents of grossing the marks obtained by the petitioners at all attempts and calculating the percentage thereof for considering their merits being de hors the recruitment rules, cannot be sustained.
12. For the foregoing reasons, the petition succeeds and is accordingly allowed. The respondents are directed to calculate the petitioners' merit for the purpose of selection and appointment of Vidya Sahayaks/Primary Teachers for primary schools (Standard I to V) pursuant to the advertisement dated 14th February, 2014 (Annexure 'A') by treating the petitioners' percentage of H.S.C. Examination to be 53.54% and 58.92% respectively and to give appointment to the petitioners on that basis with all consequential benefits as if they were given appointment along with other candidates (if candidates lower in merit to the petitioners have been given appointment), within a period of 45 days from the date of receipt of a copy of this judgment. Rule is made absolute accordingly with no order as to costs."
9. Subsequently, when the very issue had cropped up in the case of Parmar Harishkumar Ranchhodbhai (supra) before this Court, relying upon the earlier judgments it was held that grossing up of marks of all attempts for the purpose of considering the merits cannot be sustained in the wake of absence of any such provision in the recruitment rules and for want of any details published in the advertisement itself.
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10. Referring to the facts in the instant case, the petitioner is right in pointing out that if no grossing up of the marks obtained by the petitioner in both the attempts for the purpose of considering his merit is done, the petitioner is entitled to the merit of 73.87%, whereas once the grossing up of the marks is permitted his merit comes down to 71.67%. The petitioner of course is presently serving at Jamnagar, and therefore, according to the respondent, the petition has become infructuous. This Court does not agree with such submission of the learned Assistant Government Pleader inasmuch as the petitioner was constrained to accept the lower merit of 71.67%, and if his say is admitted by the Court, his merit comes to 73.87%, and he would be entitled to the selection in the first list, thereby, he is entitled not only to the place of his choice, but also the consequential benefits, which includes seniority.
11. As far as the Government Resolution dated 27.11.2011, 3.5.2012 and 18.5.2012 are concerned, they all do not provide for grossing up of marks obtained in all attempts. However, the Circular dated 9.8.2011 is concerned, clause 5 thereof provides that when any candidate clears the final degree examination in respect of educational qualifications or vocational qualifications at more than one attempt, then (a) if he/she fails in either first, second or any other attempt and when he/she has given final examination in all the subjects and has passed, then it is to be Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT considered as a single attempt, and the percentage of total marks shall need to be taken into consideration; and (b) if the candidate passes the examination in more than one attempt or has been granted exemption in any other subject, then, the total of the marks obtained at each attempt shall be calculated, and the percentage thereof needs to be determined, and the merits shall be considered keeping in view such percentage marks. Grossing up of all marks of both the attempts made by the petitioner is done accordingly for calculating the percentage and to determine his merit accordingly.
12. Unlike in the judgments which are sought to be relied upon by the petitioner, the advertisement inviting the applications for the post of Vidya Sahayak itself prescribed for grossing up the marks obtained in all attempts and considering the percentage thereof the merit of the candidate will be determined. It also refers to all the Government Resolutions, which includes Circular dated 9.8.2011. At clause 16, it provides for total calculation and the method of grossing up of the marks and percentages on the strength thereof. Therefore, the submissions which were available to the petitioner in the earlier petitions are not available to the present petitioner as far as non publication of the Government Resolutions and the Circular dated 9.8.2011 are concerned. It also puts the candidate to sufficient notice and the manner in which the scheme and Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT the grossing up of the marks of all attempts is required to be done.
13. The only question, therefore, would be as to whether the absence of any provision in the recruitment rules can permit the respondent-State to fill in the gap with the Circular dated 9.8.2011, as admittedly with regard to the other three Resolutions dated 27.11.2011, 3.5.2012 and 18.5.2012, the Court has been categorical in earlier decisions as referred to hereinabove that they did not provide for grossing up the marks obtained in all the attempts. Admittedly, the circular dated 9.8.2011 does provide for the same. However, in absence of any such provision, the State can not be permitted to gross up the marks and prepare the select list on the strength of calculation of the merit on such grossing up is the issue which requires to be answered. As there has been no challenge to the decisions of Special Civil Application No. 8137 of 2014 and the subsequent decision in Special Civil Application No.18727 of 2013, where a reference is made to the recruitment rules, this Court is required to follow the same despite specific reference in the advertisement itself. Admittedly, no change is made in the recruitment rules. Assuming that in absence of any rules, the State is at liberty to fill in the gap with a Resolution or Circular to bring it to the notice of the concerned candidates so as to ensure that some meritorious candidates are attracted, with no further challenge to the above decisions, judicial discipline would Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Jan 31 00:13:57 IST 2016 C/SCA/2942/2015 JUDGMENT demand this Court to follow suit and allow the petition of the petitioner.
14. Accordingly, the petition is allowed. The State is directed to consider the merit of the petitioner at 73.87% and give all the consequential benefits including the choice of District and seniority. Rule is made absolute.
(MS SONIA GOKANI, J.) sndevu Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Jan 31 00:13:57 IST 2016