Gujarat High Court
Mahida Jayendrasinh Mahendrasinh & 6 vs State Of Gujarat & on 2 March, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/18101/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18101 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MAHIDA JAYENDRASINH MAHENDRASINH & 6....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 7
MR. RONAK RAVAL, AGP for the Respondent(s) No. 1-2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 2 / 03 /2015
ORAL JUDGMENT
Page 1 of 25
C/SCA/18101/2014 JUDGMENT 1. Rule. Learned AGP Mr. Ronak Raval waives Rule for the Respondents.
2. The present petition is filed by the petitioners under Articles 14, 16, 19, 21 and 226 of the Constitution of India and also under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "the Compulsory Education Act") for the prayer as prayed for in detail in the prayer to quash and set aside filling up of the vacancies as per the advertisement dated 20.11.2014 proposing to fill up such vacancies in a particular ratio for the respective language, i.e. English, Gujarati and Hindi and / or Sanskrit. It is also prayed alternatively that a separate merit list of all the candidates may be prepared for total 548 vacancies in equal proportion, meaning thereby, 137 vacancies may be filled up by the candidates who have passed B.A. with English, 137 vacancies may be filled up by the candidates who have passed B.A. with Hindi, and 137 vacancies may be filled up by the candidates who have passed B.A. With Sanskrit.
3. Heard learned Counsel Shri K.B.Pujara for the petitioners and learned AGP Shri Ronak Raval for the Respondents.
4. Learned Counsel Shri K.B.Pujara referred to the advertisement produced at Annexure-B and emphasized that there are 548 total vacancies to be filled up for English teachers. He submitted that in view of the obligation cast upon the Respondent government pursuant to the Compulsory Education Page 2 of 25 C/SCA/18101/2014 JUDGMENT Act as well as the Resolutions and the directions made by the Hon'ble Apex Court large number of vacancies for recruitment of teachers for different subjects is required to be made. He submitted that if the advertisement has been issued for the purpose of filling such posts in view of the Compulsory Education Act, the persons like the petitioners have made applications. However, the number of 548 vacancies for language teachers are sought to be filled up in the ratio which has been decided by the government subsequently i.e. 49% of the post for English teachers and remaining 51% of the posts for other three languages in equal proportion of 17% each for the Hindi, Gujarati and Snaskrit. Learned Counsel Shri Pujara submitted that the advertisement does not specify anything. He referred to Annexure-R1 in the affidavit of the Respondent government and submitted that large number of posts are filled up for teachers of English language and therefore this bifurcation is not justified. The basic requirement is graduation with particular language and the number of posts are 548 for which the select list according to the merit could be made and thereafter appropriate posting could be given. However, learned Counsel Shri Pujara strenuously submitted that what is sought to be done is that out of 548 posts, 269 posts are kept for the candidates having B.A. with English, meaning thereby, the candidates who are having B.A. with English irrespective of Page 3 of 25 C/SCA/18101/2014 JUDGMENT their number in the merit list will claim the appointment whereas the candidates for other languages with the basic qualification would be eligible for only 93 seats each and again he would be pushed down though he may be higher in the merit list. He submitted that in fact the common merit list of 548 candidates has to be prepared as the number of vacancies advertised are 548 and the common test is held and therefore such advertisement could not be made which would permit the candidates having B.A. with English have some preference as compared to others. Learned Counsel Shri Pujara also referred to the affidavit in reply as well as Annexures to support his contention. He submitted that the criteria was fixed by the committee which is subsequently placed on portal and therefore the present petition is filed challenging such bifurcation. He tried to refer to the backgrounds and submitted that such decision is contrary to the concept of equality and opportunity.
5. Learned Counsel Shri Pujara submitted that NCT is laying down the norms and it has not laid down separate bifurcation for the separate language teachers as sought to be done. He emphasized that nor it has left any discretion with the State authority which is the appointing authority. Learned Counsel Shri Pujara referred to the background and submitted that after the NCT has been a authority and has issued the Government Resolution dated 27.4.2011, the examination of TET is required Page 4 of 25 C/SCA/18101/2014 JUDGMENT to be cleared by the candidates and all teachers who would fulfill the basic criteria and also passing the examination of TET would be eligible. He therefore submitted that nowhere any proportion or the bifurcation qua the teachers for the English language is specified or provided in the advertisement. He therefore submitted that the language-wise bifurcation made subsequently is discriminatory and in fact no such discretion is left with the authority to make such bifurcation when the teachers having the basic qualification with graduation and examination TET can appear in all the languages as it is a common test or the recruitment for the post of language teachers. He therefore submitted that there is no question of creating a separate class for the respective language teachers or laying down bifurcation for each separate language and the number of post available for each respective language. Learned Counsel Shri Pujara therefore strenuously submitted that while filling up the post for the language teacher, further bifurcation or division could not be made which is not contemplated since the recruitment is for a language teacher containing all languages and there is a common test or the recruitment. He submitted that in the advertisement also there is no such reference nor any policy decision for such language- wise bifurcation has been provided for the post of teachers. He submitted that assuming without admitting that it was a policy for the purpose of deciding the ratio of the teachers to be Page 5 of 25 C/SCA/18101/2014 JUDGMENT recruited for each respective language, then also it could be a matter of policy in a particular year i.e. 2012 and it cannot have any application in the subsequent recruitments. He therefore submitted that the petition may be allowed. Learned Counsel Shri Pujara also prayed that when there is a recruitment for the post of language teachers, there has to be a common list according to the merit or performance and then there could be further advertisement while giving the posting as regards the respective languages with which the candidates are qualified like one may be posted as a language teacher if he is B.A. with English and another selected candidate may be posted as a Hindi teacher if he is B.A. or B.Com with Hindi. However, if a separate list as sought to be made for the teachers for the English language for 49% posts on such bifurcation is permitted, a candidate having B.A. with English will have a preference over others and there will be a denial of opportunity to the other candidates who are also qualified with basic qualification and are appearing in the same test to be appointed as a language teacher. Learned Counsel Shri Pujara emphasized that the candidate may not be a B.A. with English but he may be with B.A. with Hindi or B.A. with Sanskrit and still he has scored better marks standing higher in the merit list. He therefore alternatively tried to submit that in spite of the bifurcation let the recruitment be made and the posting may be offered to the selected candidates in equal proportion for the Page 6 of 25 C/SCA/18101/2014 JUDGMENT respective languages that is the equal number of posts to be filled up for the respective language teachers.
6. Learned Counsel Shri K.B.Pujara submitted that there is no clarification or distinction made for a particular language or there is no bifurcation for every language test-wise or the vacancy-wise. He emphasized that this bifurcation is not made at the time of advertisement and the recruitment is made as a common recruitment towards the language teacher, then it has to be a recruitment for teachers for every language taken together and the candidates who have the basic qualification would be eligible and qualified for all vacancies irrespective of any subject-wise bifurcation since he has a basic qualification and passed the TET examination which is also conducted in common for all such candidates eligible for the post of language teacher. Learned Counsel Shri Pujara referred to page 90 and 91 to support his submission. He submitted that in fact this aspect has been considered by the Hon'ble Division Bench of the High Court (Coram: Bhaskar Bhattacharya, ACJ and A.L.Dave,J) in a judgment reported in 2012 (1) GLH 548 - Prajapati Paresh Govindbhai and ors. v. State of Gujarat through Principal Secretary and Ors. He emphasized the observations made in paragraphs 14 to 16 and also emphasized:
"In other words, TET is the forum, where any candidate having the required minimum qualification fixed by NCTE, can justify Page 7 of 25 C/SCA/18101/2014 JUDGMENT his ability to appear in any subject he likes by competing with others. If an Arts graduate without Mathematics and science in his graduation level takes the risk of competing with the science graduates by taking the option of 60 marks in science and Mathematics subjects out of total 150 and becomes successful, the State Government cannot refuse his appointment on the ground that the science graduates having obtained lesser marks would be more effective. Similarly, a science graduate can opt for social studies by proving his excellence in TET on basis of his knowledge of social studies acquired at the Higher Secondary Level."
7. Learned Counsel Shri Pujara has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2008) 3 SCC 512 - K.Manjusree v. State of Andhra Pradesh and Anr.
8. Learned AGP Shri Ronak Raval submitted that the petitioners have not disclosed whether they have applied or not. He submitted that the advertisement is for recruitment to the post as language teacher which may include all the languages - English, Hindi and Sanskrit. He therefore submitted that there is no question of any preference. However, he submitted that the selected candidates may be offered the posting on the basis of their performance. He therefore submitted that the petitioners have no legal or fundamental right which can be said to have been violated and the submission regarding the preference given to the teachers for the English language is misconceived and such petition is not maintainable at all. It is Page 8 of 25 C/SCA/18101/2014 JUDGMENT submitted that it is a matter of policy which has been considered by the Respondent State. Learned AGP Shri Raval pointedly referred to the affidavit-in-reply and also the annexures. He emphasized that out of the total number of vacancies when the recruitment is made the requirement of teachers for the English language as well as requirement for other languages have to be considered and the posting could be made. Learned AGP Shri Raval submitted that as per the Compulsory Education Act, the Respondent Government is required to fulfill the obligation of providing free and compulsory education and the said Act provides for various aspects including people - teacher ratio. Further the schedule refers to the qualification and appointment of teachers. He submitted that it does not necessarily mean that the recruitment has to be made and equal number of teachers have to be recruited for every subject or the language. He submitted that it depends upon the various factors including requirement of the teachers for the respective languages. Learned AGP Shri Raval has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 3 SCC 618 - Food Corpn. Of India and others v. Bhanu Lodh and ors. and pointedly referred to the observations made in paragraph 14:
"14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some Page 9 of 25 C/SCA/18101/2014 JUDGMENT provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review."
9. Learned AGP Shri Raval submitted that the requirement and the right of the people is considered by the Government and this court may not in exercise of discretionary jurisdiction under Article 226 issue necessary direction that the post may be filled up in the manner as claimed by the petitioners. He submitted that it is a matter of policy where normally the court would decline to interfere. In support of this submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2008) 2 SCC 161 - Jitendra Kumar and Ors. v. State of Haryana and Anr. and pointedly referred to the observations made in paragraphs 42 to 46 with regard to the scope of judicial review. Learned AGP Shri Raval has also referred to and relied upon the judgment of the Hon'ble Apex Court in a judgment reported in (2009) 14 SCC 734 - High Court of Judicature for Rajasthan v. Veena Verma and anr. He has also referred to and relied upon the judgment Page 10 of 25 C/SCA/18101/2014 JUDGMENT reported in 2004 (2) GLR 1188 - Joshi Tushar Tansukhbhai & Ors. v. State of Gujarat and also the judgment of the Hon'ble Apex Court reported in (2003) 10 SCC 144 - State of Orissa & Ors. v. Bhikari Charan Khuntia & Ors. Learned AGP Shri Ronak Raval therefore submitted that the present petition may not be entertained and the prayers as prayed may not be granted.
10. Learned AGP Shri Ronak Raval submitted that the recruitment is for the language teacher and it is the policy decision as referred to in detail in the affidavit-in-reply depending upon the requirement of the teachers subject-wise including the respective languages. He has also referred to the papers and submitted that the petitioners were very well aware about the ratio and having participated and appeared in the examination now cannot challenge. He submitted that the Government in its policy decision has prescribed the ratio of 49% for English language and 17% each for the remaining three languages is based upon the policy and the administrative exigencies and the court may not entertain this petition in exercise of discretion under Article 226. He pointedly referred to the advertisement at Annexure-B and submitted that Clause-7 referred to the earlier petitions and it is made clear that it is subject to the result, meaning thereby, earlier petitions are also filed and now it is not possible for the Government to make recruitment of the language teachers Page 11 of 25 C/SCA/18101/2014 JUDGMENT without bifurcation as stated above in equal proportion, i.e. 25% of the total seats for each respective languages. He submitted that the rules of the game cannot be changed by the government. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of K.Manjusree v. State of Andhra Pradesh and Anr. (supra). He submitted that if the criteria which is now sought to be claimed would amount to making change in the criteria and it may lead to multiplicity of the proceedings and therefore he tried to submit that the present petition may not be entertained. Learned AGP Shri Raval has placed on record the decision of the government which has suggested for alternate prayer of learned Counsel Shri Pujara to have equal ratio for language teachers of every language. Learned AGP Shri Raval has placed on record the communication dated 11.2.2015 that the discussion made during the course of the hearing may be welcomed and accepted for fresh recruitment in the year 2015-
16. However, he submitted that for the present recruitment pursuant to the advertisement at Annexure-B, it cannot be changed and the alternate prayer of bifurcation of language teachers in equal proportion of 25% for the respective languages cannot be accepted.
11. In rejoinder, learned Counsel Shri Pujara however submitted that whoever candidate is eligible and qualified for the post of language teachers pursuant to the advertisement Page 12 of 25 C/SCA/18101/2014 JUDGMENT could be considered and common list could be prepared based on the performance in the recruitment process. He submitted that therefore there is no justification for such argument about change of the rules or multiplicity of proceedings if the recruitment is made for the teachers in equal proportion for every language.
12. In view of this rival submissions it is required to be considered whether the petition deserves consideration.
13. The facts as stated briefly are that in view of the Compulsory Education Act, the obligation has been cast upon the government to take suitable steps to achieve the purpose as set out in the statement and objects of the Compulsory Education Act. Therefore, pursuant to this the resolutions have been passed and large number of vacancies for recruitment of teachers for each subject is sought to be made. In fact the Compulsory Education Act refers to this aspect including the provisions of the Compulsory Education Act and the Schedule, which refers to the qualification and the student-teacher ratio etc. It is in this background, 548 vacancies are sought to be filled up for the language teachers. However, out of this 548 total seats, for the bifurcation of the number of teachers for the respective languages, like English, Gujarati, Hindi and / or Sanskrit, there is no clarification and the recruitment as per advertisement is for the language teachers, which would mean that the post of 548 teachers are to be filled up taking together Page 13 of 25 C/SCA/18101/2014 JUDGMENT all the three languages. However, it appears that the government has, considering the need or requirement for the purpose of education and to meet with its obligation, subsequently bifurcated the number of posts for different languages. It appears that 49% of the posts are to be filled up for English teachers and the remaining 51% posts are to be filled up for the other three languages in equal proportion i.e. 17% each for Hindi, Gujarat and Sanskrit languages. The real crux of the matter therefore is whether such bifurcation could have been made which in turn may give preference to the candidates who are B.A. with English. Again, the recruitment for the language teachers, taken all that languages together, the common test is required to be passed. The candidates who have passed the TET examination are also required to pass through the same common test. Thus, once the candidate has appeared for the post of teacher as a language teacher, the recruitment would be as a teacher for the language. However, subsequent bifurcation could be made depending upon the requirement at the time of posting. As against that it appears that the government has made some decision for different languages in the ratio of 49% for English teachers and 51% for the teachers for the remaining three languages which has created some heart-burning and grievance. In fact if it is a common recruitment for "language teachers", the merit list has to be prepared of all the candidates according to their Page 14 of 25 C/SCA/18101/2014 JUDGMENT performance and merit. Thereafter, according to their respective merits, the appropriate bifurcation could be made depending upon the administrative exigencies instead of having the bifurcation of the post itself for the respective languages. Therefore, there is some substance in the submissions made by learned Counsel Shri K.B.Pujara for the petitioners.
14. On the other hand though learned AGP Shri Ronak Raval has tried to refer to the administrative exigencies, it cannot be overlooked that the advertisement refers to the recruitment for the language teachers which in turn include all the languages. The test is common and having passed through the test, a candidate would stand chance for consideration for the post and he could be offered the posting according to the merit as a respective language teacher. However, if 49% of the seats are kept for English teachers only, the remaining 51% of the posts are to be filled up for the teachers for the remaining languages would imply that the teachers for the respective three languages would be selected from out of selected candidates in the ratio of 51%. Whereas, the candidates with a preference for English would be getting a chance for the appointment as 49% seats are kept for English teachers only. Thus, the recruitment will be made for the English teachers for 49% of the total number of seats, which in turn will give a better chance or a preference to such candidates who have given Page 15 of 25 C/SCA/18101/2014 JUDGMENT preference for English. In other words, the candidate who is lower in the merit, could get the appointment as a English teacher based on his preference. In fact as it is a common recruitment as a 'Language Teacher' for all languages, the person who is selected according to the merits should be given the posting according to the position in the merit list, and at the time of posting, bifurcation can be made for the English or the respective languages. Again, at the time of posting, the candidate could be considered for the purpose of posting as a language teacher in respect of any of the language. It is required to be noted that depending upon the exigencies earlier the Respondent government had made large number of recruitments for English only. Therefore if it was needed or if it was felt that the teachers for English are required more, there could have been a more detailed advertisement with a specification qua the number of posts for the respective languages. However, when it has been clubbed together under one head of 'language teachers' it would cover all the teachers for all the four languages. Therefore, the common list has to be prepared depending upon the merit of each candidate. It was perhaps open for the government to specify subsequently in the advertisement itself with regard to the number of posts for each respective language and then there could have been a separate bifurcation for the purpose of recruitment of teachers for the respective languages. It was purely an administrative Page 16 of 25 C/SCA/18101/2014 JUDGMENT discretion left to the government to have such bifurcation depending upon their administrative experience and exigencies. In fact as stated in the past they had made recruitment of the teachers for English language only itself which suggests that such course was open to them. However, now as it is a combined advertisement for the language teacher including all the four languages with a common test it could not have been further bifurcated. If that is permitted, the 49% of the seats for English teachers would mean that the candidate who has given preference for English even if he is lower in the merit could claim appointment and posting. In fact, on the basis of the common recruitment the selected candidates are to be kept in the select list according to their merits and the posting could be offered for any of the language. At this stage, the government could work out referring to their educational background and qualification whether to give posting as English, Hindi teacher or Gujarati teacher. It is required to be mentioned as emphasized by learned Counsel Shri K.B.Pujara that all the candidates have passed the TET examination for language teachers, meaning thereby they have the basic qualification for the post and therefore the common select list has to be made. The submission made by learned AGP Shri Raval referring to the judgment of the Hon'ble Apex Court in case of Food Corpn. Of India and others v. Bhanu Lodh and ors. (supra) is required to be considered in context and Page 17 of 25 C/SCA/18101/2014 JUDGMENT background of the fact and scenario. In this very judgment referring to the earlier judgment it is observed that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons and the State is bound to respect comparative merit of the candidates, as reflected at the recruitment test. Therefore, the submission made by learned AGP Shri Raval that merely because there are vacancies which have been notified, it does not mean that the recruitment has to be made and equal number of teachers have to be recruited for every subject or every language, cannot be readily accepted. It has to be considered with reference to the observations made by the Hon'ble Division Bench of this court in the case of Prajapati Paresh Govindbhai and ors. v. State of Gujarat through Principal Secretary and Ors. (supra) which has also been relied upon by learned Counsel Shri Pujara. The Hon'ble Division Bench referred to the minimum qualification and has clearly observed that if the basic qualification is possessed and the TET examination is conducted in common for all such eligible candidates for the post of language teachers then one would be considered on the basis of the performance in the selection process or the test and the appointment has to be made on the basis of the selection and the merit of the candidate in the particular recruitment whether he is a science graduate or a social studies or like in the present case whether one has passed the Page 18 of 25 C/SCA/18101/2014 JUDGMENT B.A. or B.Com with English or Hindi or any other language. The submissions which have been made by learned AGP Shri Raval that mere selection does not justify the claim for appointment referring to the judgment of the Hon'ble Apex Court is also misconceived inasmuch as it has to be read in the context and background of the facts that even after selection, if for reasons justifiable the appointment may not be made. On the other hand there would be an obligation once the recruitment procedure is followed and the person who is selected can claim appointment and cannot be denied such appointment without any justification or reason. In the facts of the case as stated above, therefore, common merit list has to be prepared as a selection of teacher for the language based on the performance in the test and thereafter at the time of posting the bifurcation could be made in exercise of administrative discretion to serve the purpose. In any view of the matter the interest of justice would be served if the alternate prayer which has been pressed by learned Counsel Shri Pujaraj that total number of 548 vacancies may be filled up by selected candidates on equal ratio for all the four languages, require consideration as more reasonable and practical. In fact in fairness it must be stated that when during the course of the hearing learned AGP Shri Raval was suggested to examine he has placed on record the communication dated 11.2.2015 from the education department to follow such pattern of bifurcation of the total Page 19 of 25 C/SCA/18101/2014 JUDGMENT number of posts in equal proportion, i.e. 25% of the total seat for each respective language - English, Hindi, Gujarati and Sanskrit for future for the recruitment in the year 2015-2016. Thus, in principle, the Respondent government has positively responded for the rational approach for future. However, learned AGP Shri Raval has stated that for the present it may not be possible as the posts have been advertised and the decision has been taken by the government for bifurcation in the ratio of 49% for English language and the remaining 51% for three languages i.e. 17% each for Hindi, Gujarati and Sanskrit. Again, a close scrutiny of this submission with reference to the factual background would suggest that the apprehension or the submission is not well-founded. The advertisement which is produced at Annexure-B referred to the total number of 548 posts as language teachers without any further bifurcation subject-wise. Thus the recruitment is for the post of language teachers which may include teachers of all the four languages. Therefore, there should not be any difficulty for the purpose of such bifurcation as suggested in the alternate prayer that the selected candidates may be given appointment for the respective language teacher in equal proportion i.e. 25% each for English, Hindi, Gujarati and Sanskrit. The decision for bifurcation as stated above is taken by the government subsequently which is an administrative decision taken subsequently for the requirement or the Page 20 of 25 C/SCA/18101/2014 JUDGMENT feasibility of the number of teachers for the respective language. It is also taken note of the fact that the teachers for the Sanskrit language may be required less than the teachers for the English language. Thus, in future either they may have a detailed bifurcation at the very inception which could be reflected in the advertisement itself. For the present, as there are common recruitment as a language teacher it is desirable to have a bifurcation of 25% in equal proportion for every language which would serve the purpose. In any view of the matter as stated above, the Respondents are required to prepare a common merit list and then at the time of giving posting it could be worked out in the manner which leaves the equal number or equal proportion of teachers for every language.
15. The another facet of the submission that since the advertisement refers to the fact that it will be subject to the orders that may be passed by the Hon'ble Apex Court in the SLP or in the LPA, they cannot make any statement, is again misconceived, as the advertisement is given that it will be subject to the result or the outcome in those proceedings. However, the recruitment is permitted and therefore at the time of making posting the proportion or the ratio for each respective language could be maintained. If it was the apprehension that the litigations are pending as stated in the advertisement, they would not have made any bifurcation of Page 21 of 25 C/SCA/18101/2014 JUDGMENT 49% for language teachers and 51% for the remaining three languages. Therefore, if the Respondent government can make the administrative decision for the detailed bifurcation, they can as well maintain the bifurcation in equal proportion i.e. 25% each for each respective language for the purpose of filling the 548 seats in equal proportion. Therefore, it would be more rational and desirable that the Respondent government is directed to fill up 548 posts on the basis of the merit list and fill up the post with bifurcation of 25% of the posting for each respective language.
16. The submission which has been made by learned AGP that the scope of judicial review under Article 226 could be limited and the court may not exercise the discretionary jurisdiction under Article 226 with regard to the manner in which the number of seats for the respective language teacher should be made. It was emphasized that as it is a matter of policy, normally the court would not decline to interfere and he has strongly relied upon the judgment of the Hon'ble Apex Court in the case of Jitendra Kumar and Ors. v. State of Haryana and Anr. (supra) referring to the concept of judicial review. However, there is no quarrel with the proposition canvassed referring to the scope of judicial review that normally while exercising discretionary jurisdiction under Article 226, the court would decline to interfere in a policy matter or the actual implementation and the manner of implementation Page 22 of 25 C/SCA/18101/2014 JUDGMENT of the policy. However, at the same time, it is well accepted that it is a matter of self-restraint rather than the jurisdiction. As stated above, the subsequent bifurcation or the decision after the advertisement by the government as an administrative exigency would stare in the face which would call for the scrutiny of such exercise or decision on the aspect of equality and estoppel. All the candidates have a fair chance to be considered for the post and if the policy / decision which has been taken subsequently, negates any such opportunity, would certainly a matter which could be examined. The candidates have right to be considered fairly in the matter of public employment. This in turn would imply the fairness in the selection process and the decision making process. In the facts of the case the decision for bifurcation of the post subject-wise like 49% English and 51% for the remaining three languages each is subsequently taken which may have a bearing on the selected candidates who are selected and who have undergone the same process of selection for the posts advertised as language teacher. Therefore the selected candidates have to be arranged in the order of their merit and such bifurcation may lead to compromising or denying with the chance of the appointment. The court would be justified in exercising such discretion. In fact as stated above, the government has also fairly accepted to have such bifurcation in equal proportion in future or they can have more detailed home work before the Page 23 of 25 C/SCA/18101/2014 JUDGMENT advertisement so as to advertise number of posts for respective teachers required for every respective language like more number of posts for Hindi or Sanskrit depending upon the requirement or the exigencies.
However, in the present, interest of justice would be served if the present petition is allowed for the alternate prayer as prayed in the petition. Therefore, the prayer in terms of paragraph 15(D) deserves to be granted for the alternate prayer that the 548 vacancies may be bifurcated in equal proportion of 25% each for the respective language i.e. English, Hindi, Gujarati and Sanskrit, meaning thereby, 137 vacancies could be filled up by the candidates who have passed B.A. with English, 137 vacancies could be filled up by the candidates who have passed B.A. with Hindi, and 137 vacancies could be filled up by the candidates who have passed B.A. with Sanskrit, which would serve the purpose. However, it is clarified that this order is made only in the present state of affairs as and by way of a solution as a one time measure keeping it open for the Respondent government to evolve their own method for future as stated above.
17. With the aforesaid observations, the present petition stands allowed to the aforesaid extent. Rule is made absolute.
(RAJESH H.SHUKLA, J.)
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JNW
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