Hemantkumar Kantilal Patel & 19 vs State Of Gujarat & 2 on 21 October, 2016

[Cites 12, Cited by 0]

Gujarat High Court

Hemantkumar Kantilal Patel & 19 vs State Of Gujarat & 2 on 21 October, 2016

Bench: J.B.Pardiwala

                 C/SCA/14734/2004                                            CAV JUDGMENT




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        SPECIAL CIVIL APPLICATION NO. 14734 of 2004


                                              With
                        SPECIAL CIVIL APPLICATION NO. 15197 of 2004


         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MR.JUSTICE J.B.PARDIWALA

         ==========================================================

1 Whether Reporters of Local Papers may be allowed NO 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 ?

========================================================== HEMANTKUMAR KANTILAL PATEL & 19....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:

MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 20 MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1 - 3 RULE SERVED BY DS for the Respondent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/10/2016 COMMON CAV JUDGMENT Page 1 of 19 HC-NIC Page 1 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT

1. Since the issues raised in both the captioned writapplications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.

2. The writapplicants of the Special Civil Application No.14734 of 2004 have prayed for the following reliefs: 13(a) quash and set aside the G.R. dated 11/6/98 as per AnnexureB in so far as it does not provide for recruitment of vidyasahayaks only on the basis of result of PTC examination and in so far it provides for 40% weightage to the result of SSC/HSC examination;

(b) to quash and set aside the impugned G.R. dated 11/6/98 as per AnnexureB in so far as it does not provide for 30% reservation for the PTC candidates who have passed their SSC/HSC examination in science stream and it treats all the PTC candidates equally though the candidates having passed their SSC/HSC examination in science stream are not similarly situated as other candidates who have passed SSC/HSC examination in general stream, vocational stream, post basic stream etc;

(c) to direct the respondents to make recruitment of vidyasahayaks only on the basis of result of PTC examination or , in the alternative, to provide for 30% reservation in the recruitment of vidyasakayaks for those PTC candidates who have passed SSC/HSC examination in science stream;

(d) to direct the respondent no.3 to make recruitment of vidyasahayaks pursuant to the advertisement at AnnexureC only on the basis of result of PTC examination or, in the alternative, to provide for 30% reservation in the recruitment of vidyasahayak for those PTC candidates who have passed SSC/HSC examination in science stream;

(e) pending the hearing and final disposal of this petition, be pleased to stay the G.R. dated 11/6/98 in so far as it provides for 40% weightage to the result of HSC/SSC examination instead of providing for recruitment of vidyasayayaks only on the basis of result of PTC examination;

(f) pending the hearing and final disposal of this petition, be pleased to restrain the respondents, their agents and servants from making any recruitment on the posts of vidyasahayaks by giving any weightage to the result of SSC/HSC examination;

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(g) pending the admission, hearing and final disposal of this petition, be pleased to restrain the respondents, their agents and servants from making any recruitment without providing 30% reservation in such recruitment for those PTC candidates who have passed SSC/HSC examination in science stream;

(h) pending the hearing and final disposal of this petition, be pleased to restrain the respondents, their agents and servants from making any recruitment of vidyasahayaks pursuant to the G.R. dated 11/6/1998;

(i) pending the hearing and final disposal of this petition, be pleased to direct the respondents, their agents and or servants not to fill up 30% of the vacancies notified by them for recruitment of vidyasahayaks and to keep such vacancies vacant for those PTC candidates who have passed SSC/HSC examination in science stream;

(j) to grant any other appropriate and just relief/s;

3. The writapplicants of the Special Civil Application No.15197 have prayed for the following reliefs: 13(a) quash and set aside the G.R. dated 11/6/98 as per AnnexureB in so far as it does not provide for recruitment of vidyasahayaks only on the basis of result of PTC examination and in so far it provides for 40% weightage to the result of SSC/HSC examination;

(b) to quash and set aside the impugned G.R. dated 11/6/98 as per AnnexureB in so far as it does not provide for 30% reservation for the PTC candidates who have passed their SSC/HSC examination in science stream and it treats all the PTC candidates equally though the candidates having passed their SSC/HSC examination in Science Stream are not similarly situated as other candidates who have passed SSC/HSC examination in general stream, vocational stream, post basic stream etc;

(c) to direct the respondents to make recruitment of vidyasahayaks only on the basis of result of PTC examination or, in the alternative, to provide for 30% reservation in the recruitment of vidyasahayaks for those PTC candidates who have passed SSC/HSC examination in science stream;

(d) to direct the respondent no.3 to make recruitment of vidyasahayaks pursuant to the advertisement at AnnexureC only on the basis of result of PTC examination or, in the alternative, to provide for 30% reservation in the recruitment of vidyasahayaks for those PTC Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT candidates who have passed SSC/HSC examination in science stream;

(dd) to quash and set aside the illegal action of the respondents in providing for more than 50% vacancies for reserved category candidates by providing for 4% for SC, 40% for ST and 27% for SEBC categories in Surat District, in violation of the constitutional provisions and the law laid down in Indra Sawheny v/s Union of India, AIR 1993 SC 477 and other decisions;

(ddd) to direct the respondents to fill up the vacancies remaining unfilled due to nonavailability of reserved category candidates of Marathi medium candidates of unreserved/ open category as per the policy laid down in the G.R. dated 18/12/2002, communications dated 19/7/2003 and 8/8/2003 of the State Government as per AnnexureF colly;

(e) pending the hearing and final disposal of this petition, be pleased to stay the G.R. dated 11/6/98 in so far as it provides for 40% weightage to the result of HSC/SSC examination instead of providing for recruitment of vidyasahayaks only on the basis of result of PTC examination;

(i) pending the hearing and final disposal of this petition, be pleased to direct the respondents, their agents and or servants not to fill up 30% vacancies notified by them for recruitment of vidyasahayaks and to keep such vacancies vacant for those PTC candidates who have passed SSC/HSC examination in science stream;

(j) pending the hearing and final disposal of this petition, be pleased to direct the respondents to keep 3 (three) posts of Marathi medium Vidyasahayaks vacant for the petitioners;

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(k) pending the hearing and final disposal of this petition, be pleased to direct the respondents to make appointment of the petitioners as Marathi medium Vidyasahayaks on the vacancies remaining unfilled due to nonavailability of sufficient number of ST and SEBC category candidates;

(l) to grant any other appropriate and just relief/s;

4. The writapplicants before me are desirous of being appointed as the Vidya Sahayaks. They all have passed the H.S.C. (Science Stream) Examination. They were admitted in the P.T.C. Course on the strength of 30% seats reserved for the candidates passing the H.S.C. (Science Stream) Examination.

5. The principle grievance redressed by the writapplicants is that since they cleared the H.S.C. Examination in the science stream, their percentage compared to those students who cleared the H.S.C. Examination in other stream like the Arts and Commerce was less. As a result, they could not find place in the final meritlist prepared by the authorities concerned.

6. It is the case of the writapplicants that if the State has thought fit to provide 30% reservation to the candidates having passed the H.S.C. Examination (Science Stream) for the purpose of admission in the P.T.C. Course, then reservation should also be provided to the candidates of the science stream when it comes to recruiting them to the post of Vidya Sahayak.

7. As no reservation has been provided in the recruitment of the Vidya Sahayaks for the candidates of the H.S.C. (Science Stream) and 40% weightage has been given to the result of the H.S.C. Examination and 60% weightage is being given to the result of the P.T.C. Examination, the writapplicants who have passed the H.S.C. Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT Examination in the science stream are at huge a loss. In such circumstances, it is their case that the Government Resolution dated 11/06/1998 deserves to be declared as irrational, unreasonable, arbitrary and discriminatory.

8. It is the case of the writapplicants that the Recruitment Rules for the Vidya Sahayaks ought to provide for reservation to the extent of 30% for the candidates passing the H.S.C. Examination in the science stream. In the alternative, the case of the writapplicants is that no weightage at all should be given to the result of the H.S.C. Examination and the recruitment should be based only on the result of the P.T.C. Examination.

9. One another grievance voiced by the writapplicants is that the action on the part of the respondents in providing for more than 50% vacancies for the reserved category candidates by providing 4% for the SC, 40% for the ST and 27% for the SEBC categories in the District of Surat is in violation of the constitutional provision and the law laid down by the Supreme Court in the case of 'Indra Sawhney etc., Vs. Union of India and others', AIR 1993 SC 477.

10. Hence, the two writapplications.

11. I have heard Mr. K.B. Pujara, the learned counsel appearing for the writapplicants; Mr. Dipak R. Dave, the learned counsel appearing for the private respondents in the Special Civil Application No.15197 of 2004 and Mr. Prashant G. Desai, the learned senior counsel appearing for the respondent no.3 - Surat Municipal Corporation School Board and the learned AGP appearing for the State respondents.

12. In the Special Civil Application No.14734 of 2004, the following Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT order was passed on 03/11/2004: Rule.

2. Mr. KB Pujara, learned counsel for the petitioner presses for interim relief on the ground that while granting admissions to the PTC course, 30% reservation is provided for the candidates who have passed their HSC examination in Science Stream and, therefore, similar reservation be also required to be provided in the recruitment rules so that the primary schools get adequate number of teachers qualified to teach Science subjects. Hence, the petitioner challenges the recruitment rules for the posts of vidya sahayak as contained in the Government Resolution dated 11.6.1998 (Annexure "B") in so far as they do not provide for 30% reservation for candidates who have passed HSC examination in Science Stream and in so far as such rules provide for giving 40% weightage to the result of SSC/HSC examinations and 60% weightage to the result of PTC examination.

3. The Recruitment Rules are in force since 1998. The advertisements inviting applications for the posts of vidya sahayak were published as far back as in July, 2004. For the last several years, the recruitments of vidya sahayaks are being made on the basis of the recruitment rules as contained in the aforesaid Government Resolution dated 11.6.1998. The selection process for the posts of vidya sahayak purusuant to the aforesaid advertisements published in July, 2004 is now going to commence form 4.11.2004 i.e. tomorrow. It is, therefore, too late in the day for the petitioner to pray in this petition filed on 1.11.2004 for stalling the selection process at the eleventh hour. Hence, the interim reliefs as prayed for are refused.

4. However, considering the grievance made in this petition, it appears to the Court that the petition does deserve an early final hearing because before the selection process for the next academic year commences, the controversy is required to be adjudicated upon. Hence, the petition shall be listed for final hearing in the first week of March, 2005.

Affidavit in reply, if any, shall be filed by 15.12005.

Direct service is permitted and shall be effected on respondent Nos.1 and 2 by 10th November, 2004.

13. In the Special Civil Application No.15197 of 2004, the following order was passed on 09/02/2005:

1. Leave to amend paragraph2 on page3 of the petition.

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2. Mr.K.B.Pujara, learned Advocate for the petitioner, invited the attention of the Court to page nos.96, 98 and 99 and submitted that on the same lines, in absence of the availability of S.T. and S.E.B.C. Candidates, appointment of the open category candidates be allowed.

Mr.Pujara submitted that so far as S.T. Category is concerned, three posts are reserved for them and candidates from S.T. category are available, therefore, no question survives for that. However, he submitted that candidates from other reserved category are not available and if a similar stand is not taken by the Government, as is taken in similar situation of nonavailability of the candidates of a particular category, candidates from other category are appointed, injustice is going to be caused to the petitioners as they will be deprived of the appointment and the posts will remain vacant.

3. Ms. Paurami Sheth, learned AGP, wants time to file affidavitin reply to the petition. At her request, the matter is adjourned to 3rd March, 2005.

Ad interim relief in terms of paragraph13(k).

14. I take notice of the fact that the issue as regards providing reservation for the H.S.C. (Science Stream) candidates for the post of Vidya Sahayaks is concerned as they are unable to compete with other general stream candidates fell for consideration before a Division Bench of this Court in the Special Civil Application No.8220 of 2004 and allied matters. The Division Bench vide its judgment and order dated 27/09/2004 held as under:

26. The contention that there should be reservation for H.S.C. (Science Stream) candidates for the post of Vidya Sahayaks since they cannot compete with other General Stream candidates is not justified as they cannot have better marks than the other category. Simply because they are extended 30% reservation at admission stage in P.T.C., claim for reservation in employment on that basis is not justified for reasons asserted by them and contention that State had in mind and decided as such on the file, is not there anywhere, nor placed before us for perusal by the State.

15. Mr. Pujara submitted that although the Division Bench has held in Page 8 of 19 HC-NIC Page 8 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT so many words that the candidates having cleared the H.S.C. (Science Stream) cannot claim any reservation in employment yet the issue needs to be reconsidered by the State Government in its true perspective. Mr. Pujara also submitted that necessary materials should have been placed by the State Government before the Division Bench in this regard and the failure on that part to do so compelled the Court to take such a view.

16. Mr. Pujara submitted that so far as the issue as regards the reservation exceeding 50% is concerned, needs no detailed examination as the law in this regard is wellsettled.

17. A learned Single Judge of this Court in the case of 'Harsh Popatlal Patel and Others Vs. District Primary Education Officer and Others', Special Civil Application No.9091 of 1998, decided on 13/01/2016 had the occasion to consider the very same issue. The matter was one relating to the appointments of the Vidya Sahayaks in the District of Sabarkantha. The learned Single Judge observed as under:

5. From the record, it thus emerges that for a particular recruitment process for the posts of Vidhya Sahayaks, the recruiting authority had applied reservation percentage of 9% in favour of SC, 17% in favour of ST and 27% in favour of SEBC candidates. The total reservation amongst these reserved classes, therefore, come to 53%. 4% of the vacancies were reserved for handicapped candidates. Admitted position thus is that of the total number of available vacancies, 57% were reserved in favour of different reserved categories. 43% was available to general category candidates. Nevertheless, the question of 4% of the handicapped candidates cannot be, for want of sufficient data, mixed up in the present case since it is not known whether such vacancies were filled up by applying horizontal reservation or not. In other words, it is entirely possible that such 4% vacancies earmarked for physically handicapped candidates would also include general category candidates. I would, at least, therefore, proceed on the basis that the reservation for three reserved category classes of candidates was 53% in the said recruitment process.

6. This has been frowned upon by the Supreme Court in case of Indra Sawhney (supra), in which it was held and observed as under: Page 9 of 19 HC-NIC Page 9 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT 94A We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.

It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) conceived in the interest of certain sections of society should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr.Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.

From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.

While 50% shall be the rule, it is necessary not to put out of Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.

7. The prescription of reservation to the extent of 53% is thus directly opposed to the Supreme Court view in case of Indra Sawhney (supra). The respondents have, however, relied on secondlast subpara of said para94A of the decision in which the Supreme Court kept a small window open for the authorities to exceed such reservation above 50% under certain extraordinary situations inherent in the great diversity of the country. It was observed that in farflung and remote areas, the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way and therefore, some relaxation in this strict rule may become imperative. The respondents also rely on the decision of the learned Single Judge of this Court in case of Patel Linaben Manilal Vs. State of Gujarat dated 18.08.1998 in SCA No.6305 of 1998, in which the reservation in excess of 50% was, in the case on hand, upheld in view of the above noted observations of the Supreme Court.

8. In my view, however, the said observations of the Supreme Court are in the nature of providing exception to a rule. The main rule having requirement of reservation not exceeding 50% of the vacancies, the exception being in extraordinary circumstances for the special reasons noted, deviation from such ceiling. Such exception cannot be made a norm nor the rule can be breached without valid justification. If, therefore, Panchayat and the State authorities desired to prescribe reservation in excess of 59% in a given situation of the district, there ought to be sufficient material to justify the same. Mere prescription without any matching material to support deviation from the rule would not permit the authorities to ignore the very foundation, the ratio of the decision. Any other view would enable the authorities to ignore the cap of the reservation with impunity and to plead exception to the rule.

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9. While, thus, holding that the excess reservation in favour of SC, ST and OBC together, to the 3% above 50% permissible limit was unlawful, the question of molding relief would arise. The selection process was undertaken in the year 1998. The petition was filed when the appointments were not yet made. Shortly after completion of the selection process, appointments would have been made and the appointed candidates would, therefore, be working since more than 17 years by now. They have not been joined as parties to this petition. It would therefore be out of question to upset any of the appointments already made, even if they were in excess of the permissible reservation quota. Only present 40 petitioners have raised a grievance. Remaining candidates, even if adversely affected, have not pursued the litigation. Many of the petitioners also would have by now settled down in alternative occupation and would not, even if allowed to, join service at this point of time. However, I cannot deny them opportunity to opt for such service, if otherwise they come within the selection zone on the basis of additional 3% vacancies being made available to general category candidates.

18. Mr. Pujara also placed reliance on the decision of the K.N. Sreenivasan Vs. Flag Officer CommandinginChief, Head Quarters, Kochi and Others, (1996) 7 SCC 73 to substantiate his contention that if sufficient number Scheduled Caste or Scheduled Tribes candidates are not available then the proper course in such a case is to convert the post into a nonreserved one and carry forward the post for the reserved candidate if the carry forward rule exists and so permits.

2. It appears from the letter dated 1631991 addressed by the Commanding Manager (Administration) to the appellant as well as from the counter filed by one Commander Khanna, Chief Staff Officer in July 1993 in reply to this appeal, that there was a roster maintained for promotion to the post of the Senior Foreman, Grade I. When the incumbent of the said post, viz., Shri Pillai reited on 311 1991, the post fell vacant. At this stage, according to the roster, it was the turn of a Scheduled Caste candidate was available. There is nothing on record to show that if a Scheduled Caste candidate is not available, the rule requires that the post should be offered to either a Scheduled Tribe or an OBC candidate. Nor is there any material to show that even if such a rule existed, the candidates from the said two categories were available to be appointed. On the other hand, both the said letter as well as the counter show that the stand taken by the respondents was that the said post would remain vacant and in fact it Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT has remained vacant because no Scheduled Caster candidate was available. We are unable to understand the reasoning of the respondents. If no individual from the reserved category is available, then the procedure to be followed is to convert the post into a non reserved post and offer the same to the candidate from the non reserved category and carry forward the post for the reserved category for which it was meant if the carry forward rule exists and so permits.

3. In the present case, this is the second time when the reserved post was carried forward for the Scheduled Castes. Hence the post has to be converted into a nonreserved post and offered to the appellant who even as per the counter filed on behalf of the respondent is qualified to be appointed to the same. Since it is only the second time when the post was carried forward for the Scheduled Castes, the same can be carried forward for the said category for the third time if the carry forward rule permits.

19. On behalf of the State respondents, an affidavitinreply has been filed in the Special Civil Application No.15197 of 2004 interalia stating as under: I further say and submit that facts regarding reservation have not been provided for recruitment of Vidyasahayak for the candidates of H.S.C. (Science Stream) are not absolutely true and correct.

It has been fairly admitted by the petitioner that 40% weightage has been given to result of H.S.C. Examination and 60% weightage has been given to the result of P.T.C. Examination. This is one type of indirect reservation for the students who have passed H.S.C. Examination in Science Stream. Initially in the admission to P.T.C. Training the reservation is there vide notification of Education Department dated 09.06.1998 for primary teachers having background of science in H.S.C. Examination which serves the purpose of teaching the subjects of science and mathematics to the students at primary level.

Therefore Government Resolution dated 11.06.1998 is absolutely rational, reasonable, just, legal and proper and hence it is not liable to be quashed and set aside.

I further say and submit that alternative reservation of 100% weightage of P.T.C. marks is of no use, as attraction to candidates who passed H.S.C. in Science Stream will become zero. And there may be a stage that there will not be any candidate having H.S.C. Passed in Science Stream and ultimately even if there is a reservation in Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT recruitment of P.T.C. teachers for H.S.C. Passed (Science Stream) there may be zero candidate with Science education.

7. With reference to para 4 of the petition, I say and submit that it is not true that Government Resolution dated 11.06.1998 is violative of Article 14 , 16 , 19 & 21 of the Constitution of India and it is not irrational, arbitrary, discriminatory, unjust, unreasonable, bad in law, null and void and it is not liable to quashed and set aside.

8. With reference to para 5 of the petition, I say and submit that merit list is subject matter of respondent No.2 & 3 and it is obvious that meritorious candidates are selected by respondent No.2 & 3, hence this is not a good ground or cause to file this petition and hence it is not admitted by answering respondent. Government Resolution dated 11.06.1998 is true, legal & proper.

9. I say and submit that decision regarding keeping aside two seats per district for Bhangi/Valmiki candidate of Education Department is not at all identical to the case of petitioner.

I further say and submit that decision of providing two seats in each district for Bhangi/Valmiki is having some constitutional support whereas petitioners claim has no constitutional support.

10. With reference to para 7 of the petition, I say and submit that it is true that it is observed that Government has not placed the relevant material on record before this Division Bench and that is the reason that the Hon'ble Division Bench could not accept the claim of the petitioner. The petitioner contended this on the basis of para 26 of the Judgment of Division Bench but it is clear cut justification that reservation in two fashion have been given to accommodate candidates of H.S.C. With Science Stream first of all before admission to P.T.C. college 30% seats are reserved for H.S.C. Candidates with Science Stream and subsequently during the time of recruitment 40% weightage is given to candidates having H.S.C. Science Stream. I am producing herewith copy of the resolution dated 9.6.1998 as AnnexureRI to this affidavitin reply and I am also annexed the copy of the resolution regarding reservation in each category for recruitment in P.T.C. teachers at AnnexureRII.

11. With reference to para 8 of the petition, I say and submit that it is not true that purpose to provide the student with science knowledge will be defeated if reservation in recruitment of primary teachers/ vidhyasahayaks is not provided hence the prayer of the petitioner regarding 30% reservation in the recruitment for P.T.C. candidates who have passed H.S.C. Examination with Science Stream. I further say and submit that originally recruitment rules are rational, Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT just and proper hence it is not true that Government Resolution dated 11.6.1998 is irrational, arbitrary, discriminatory, unjust, unreasonable, bad in law, null and void.

12. With reference to para 9 of the petition, I reiterate the same as mentioned in the above para, hence the petitioner is not entitled to get 30% reservation for the recruitment in P.T.C. teachers who have passed the H.S.C. Examination in Science Stream.

13. With reference to para 9(a) of the petition, it is not true that petitioners are suffering from injustice because the vacancies remaining unfilled due to non availability of reserved category of candidates being not filled up by appointing the unreserved open category candidates by the respondent herein though it is the duty of the respondent to fill up such vacancies of unreserved/ open category candidates. Hence it is not true that respondents are acting arbitrarily and discriminate manner in the recruitment.

14. With reference to para 9(b) of the petition, it is not true that more than 50% vacancies has been reserved by respondent No.3. It is not true that respondent No.3 has reserved 71% of the vacancies considering all reserved categories. The actual date and figures can be given by respondent No.3.

15. With reference to para 10 & 11 of the petition, I do not offer any comments.

16. With reference to para 12 of the petition, I say and submit that no interim relief can be granted to the petitioner as sought for in this para, hence the interim relief in Special Civil Application No.14734 of 2004 has been revised by this Hon'ble Court on 3.11.2004, which is already produced by the petitioner at AnnexureG.

20. On behalf of the Surat Municipal Corporation School Board, an affidavitinreply has been filed interalia stating as under:

5. I submit that in pursuance to the advertisement for the post of Vidya Sahayak published in the daily news paper dated 19.7.2004 by Nagar Prathmik Sikshan Samiti, Surat (Which will be herein after referred to as the "Samiti" for the sake of convenience), has followed GR dated 11.06.1998 of the State Government strictosensu.

6. I further submit that the Samiti has not received any direction from the State Government about reservation in the recruitment of Vidya Sahayak for the candidates of HSC (Science Stream), therefore, no reservation has been provided in the recruitment of Vidya Sahayak Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT for the candidates of HSC (Science Stream) while recruiting the candidates in pursuance to the advertisement issued on 19.7.2004.

7. I further submit that there are no instruction in regard to reservation for the candidates who have passed HSC with Science Stream in GR dated 11.6.1998 of the State Government. Annexed hereto and marked as AnnexureI is copy of said GR dated 11.6.1998.

8. I deny that the respondents have provided reservation making total of 71% of vacancy being reserved for SC/ST/SEBC categories. I submit that the Samiti has maintained the standard of reservation fixed by the State Government and, therefore, the say of the petitioner about 71% reservation of the vacancy are not correct.

9. I submit that the Samiti is the implementing Authority and bound to follow the instructions issued by the State Government from time to time. Therefore, it can not do anything at its own wish. Thus, the recruitment process followed and the standard reservation maintained by the Samiti are in pursuance to the GR dated 11.6.1998 and the direction issued by the State Government. However, the respondent no.3 is ready and willing to produce the record of the recruitment process before this Hon'ble Court as and when this Hon'ble Court directs.

21. There is one additional affidavitinreply filed on behalf of the Surat Municipal Corporation School Board interalia stating as under:

2. I submit that in the School Board earlier the reservation was as under: For Scheduled Caste 4% For Scheduled Tribe 14% For Baxi Panch (OBC) 10% While 4% priority in appointment was given to the physically handicapped people.

However, by Resolution dated 26.11.1993 of the Administrator, the Corporation has passed the resolution to have the same reserved quota for Scheduled Caste/ Scheduled Tribe and economically backwardclass as of Surat Municipal Corporation and thereupon the Corporation has decided to have the reservation as 7% for Scheduled Caste, 14% for Scheduled Tribe and 10% for OBC. Annexed hereto and marked as AnnexureI is the copy of Resolution dated 26.11.1993.

3. I submit that thereafter the General Administration Page 16 of 19 HC-NIC Page 16 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT Department of the State Government passed Resolution on 8.3.1999, whereby the State Government has resolved to have the reservation of 7% for Scheduled caste, 14% reservation for Scheduled Tribe, 27% for other than Backward Class and 4% for handicapped, in all the categories. I submit that the Corporation has adopted the said Resolution of the State Government. Annexed hereto and marked as Annexure:II is the copy of Resolution passed by the State Government dated 8.3.1999.

4. I submit that the Corporation invited Application for 89 posts of Vidya Sahayak in Marathi medium, wherein, as per the Reservation quota 43 seats are kept for unreserved category, 24 seats are kept for OBC, 12 seats are kept for scheduled Tribe and 6 seats are kept for Scheduled Caste. It is submitted that all the 40 seats were for open category candidates, while in OBC, out of 24 seats 10 seats were filled up, in Schedules Caste, out 6 seats, 3 seats are filled up. I submit that thereby, out of 89 seats, 57 seats have been filled up for the post of Vidya Sahayak and 32 seats are vacant. I submit that 14 seats are vacant in OBC category, 11 seats are vacant in ST and 3 seats are vacant in SC category. I submit that there are no candidates of physically handicapped and therefore 4% seats kept separate in all the categories not filled up.

5. I submit that if the general candidates are required to be placed in reserved seats, as claimed by the petitioners, then the reserved seats will be required to be carried forward as per the Government direction. In any case the petitioners before this Hon'ble Court are much below in the merit list and their numbers are at Sr.No.76, 88 and 89 in the merit list. I submit that, therefore in any case the petitioners cannot have any priority in other categories.

6. I submit that in any view of the matter the petitioners are not entitled to any relief. Alternatively, it is submitted that if the direction is given by this Hon'ble Court for filling up the reserved category, from general candidates, the unfilled reserved category are required to be carried forward in future.

22. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writapplicants are entitled to reliefs as prayed for in these writapplications.

23. It is difficult for me sitting as a Single Judge to declare the Page 17 of 19 HC-NIC Page 17 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT Government Resolution dated 11/06/1998 at this stage as arbitrary or unconstitutional keeping in mind the observations of the Division Bench of this Court as contained in Paragraph26 of the judgment and order rendered in the Special Civil Application No.8220 of 2004 referred to above. At the same time, I find merit in the submission of Mr. Pujara, more particularly, the problem which has been highlighted by Mr. Pujara. It is wellsettled that ordinarily the Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India should not interfere with any policy matter, but at the same time, if the Court finds the policy unreasonable or leading to gross injustice to a category of candidates, more particularly, those having cleared the H.S.C. Examination in the science stream, then the Government should be asked to look into the same through a Committee of Experts in the subject.

24. Since this is going to be a long standing problem, the State Government should constitute a Committee of Experts in this regard and seek its opinion for the purpose of a relook to the Policy as regards recruitment of the candidates having cleared the HSC in the science stream to the post of the Vidya Sahayaks.

25. I am of the view that the Committee should also look into the issue as regards the reservation exceeding 50% and more particularly, the decision of this Court referred to above.

26. Both the writapplications are disposed of with a direction that the State Government shall constitute a Committee of Experts to look into the issue as regards the Government Resolution dated 11/06/1998 and also, the issue as regards the reservation exceeding 50% in the appointments to the post of Vidya Sahayaks. Let this exercise be undertaken at the earliest and completed within a period of four months Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat Oct 22 01:36:34 IST 2016 C/SCA/14734/2004 CAV JUDGMENT from the date of the receipt of the order. It will be open for the writ applicants to adduce necessary materials or any other information in this regard before the Committee that the State Government may constitute.

27. It is clarified that the appointments already made are not disturbed in any manner.

28. With the above, both the writapplications are disposed of. Rule is made absolute to the aforesaid extent.

(J.B.PARDIWALA, J.) aruna Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Oct 22 01:36:34 IST 2016

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