Gujarat High Court
Banaskantha Jilla Dalit Sangathan ... vs State Of Gujarat & on 22 February, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
BANASKANTHA JILLA DALIT SANGATHAN THRO' SECRETARY....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/5285/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5285 of 2007 With SPECIAL CIVIL APPLICATION NO. 8180 of 2007 TO SPECIAL CIVIL APPLICATION NO. 8183 of 2007 With CIVIL APPLICATION NO.
11988 of 2012 In SPECIAL CIVIL APPLICATION NO. 5285 of 2007 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ?
================================================================ BANASKANTHA JILLA DALIT SANGATHAN THRO' SECRETARY....Petitioner(s) Versus STATE OF GUJARAT &
2....Respondent(s) ================================================================ Appearance:
MR YATIN OZA, LEARNED SENIOR ADVOCATE WITH MR RAJESH SAVJANI, LEARNED ADVOCATE AND MR D.P. JOSHI, LEARNED ADVOCATE MR PK JANI, LEARNED GOVERNMENT PLEADER WITH MR RASHESH RINDANI, LEARNED ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 - 1.2 , 2 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 1.1 - 1.2 , 2 - 3 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/02/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As common questions of fact and law are involved in the above captioned Writ Applications, those were heard analogously and are being disposed of by this common judgment.
The present petition, under Article 226 of the Constitution of India, is at the instance of members of the Scheduled Caste redressing a grievance that the respondents, while issuing advertisement for recruitment to the post of P.T.C. Vidhya Sahayak in the district of Banaskantha for the year 2007, failed to provide for reservation of the posts for the candidates belonging to the Scheduled Caste.
Accordingly, the petitioners have prayed for an appropriate writ in the nature of mandamus seeking a declaration that the action of the respondent-authorities in not advertising any post for Scheduled Caste candidates in the recruitment of P.T.C. is illegal, arbitrary and in contravention of the guidelines laid down by the various decisions of the Supreme Court. The petitioners have also prayed for appropriate directions on the respondents to issue fresh advertisement for filling up the posts of P.T.C. with 10% reservation for the Scheduled Caste candidates.
Case of the petitioners:
According to the petitioners for the recruitment of Class-I and Class-II employees, there is a State-wise reservation, but for Class-III and Class-IV employees according to the Government Resolution dated 21.01.1986, there is a District-wise reservation system, which is being followed and 10% reservation has been earmarked for Scheduled Caste candidates in the district of Banaskantha.
According to the Schedule-6 annexed with the Government Resolution, the reservation earmarked in the district of Banaskantha is as under:
Scheduled Castes : 10% Scheduled Tribes : 7% SEBC/OBC : Previously 10% Now 27% Physically Handicapped : 4% Total : 48% It is also the case of the petitioners that according to the policy of the State Government, separate reservation has to be given for physically handicapped candidates i.e. 4% irrespective of whether such candidates belong to backward class or fall in non-reserved class. By Government Resolution dated 05.09.2000, the percentage reserved for handicapped candidates is reduced to 3%.
By Government Resolution dated 08.03.1999, the State Government adopted the principles as laid down by the Supreme Court in the case of P.K. Sabharwal Vs. State of Punjab reported in AIR 1995 SC 1371. According to the said Resolution, those candidates, who are given appointment in open merits, although candidates belong to the Scheduled Caste should not be considered to have been appointed in the reserved category.
In order to show that there has been an absolute contravention of the guidelines laid down by the decision of the Supreme Court in the case of R.K. Sabharwal (supra), the petitioners have furnished the following details in a tabular form:
Recruitment to the post of P.T.C. Vidhya Sahayak in Banaskantha District for SC Candidates:
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Recruitment Available Posts filled Nos. of Posts Excess No./Stage posts in in on which posts view of appointment carried 10% reservation was given in forward for SC non-reserved candidates category 1st 132 188 56 --
2nd 242 351 101 +8 3rd 376 561 160 +25 4th & 516 970 311 +143 5th 6th 544 1053 349 +160 7th 587 1135 376 +172 *8th 715 1335 440 +180 *Last recruitment in 2004
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According to the petitioners in the advertisement dated 24.01.2007 for the recruitment to the post of Vidhya Sahayak, no post has been advertised for the Scheduled Caste candidates with a note that the same had been set off against the excess recruitment made in the past. According to the petitioners, when this lapse was brought to the notice of the authorities, they were told that the authorities had included the Schedule Caste candidates appointed on open merit category either on account of their high merits or on account of the posts available in open merits category being not filled on account of non-availability of candidates and also of Scheduled Caste candidates appointed on the separate category of physically handicapped.
Thus, according to the petitioners, the action of the respondent-authorities could not be termed to be in accordance with law and deserves to be set aside.
Stance of the respondent-authorities:-
Initially, at the time of admission of the matter, it appears that the respondent-authorities on service of notice appeared and opposed the petition by filing their respective affidavits-in-reply. However, as the hearing of the matter progressed, the respondent-authorities realized that 137 seats could have been filled up under the category of Scheduled Caste in the selection for the year 2007. In such circumstances, this Court on 14.09.2012 passed the following order:
Seen the affidavit affirmed on behalf of the respondent No.2. It appears from paragraph 4 of the affidavit that the respondent has admitted that 137 seats could have been filled up under the category of Scheduled Caste in the selection for the year 2007. However, in this affidavit it has proposed to fill-up those 137 seats from the Scheduled Caste candidates in the selection for the year 2012. In our view, the proposal given by the State-respondent will deprive those Scheduled Caste candidates in the process of selection of 2007, who were within first 137 among the candidates, who, inspite of clearing the minimum number fixed, were not selected. Therefore, we direct the respondent to find out the means for giving appointment to 137 candidates from the Scheduled Caste category from the selection list of 2007, who could not get appointment but otherwise cleared the benchmarked fixed. Let the State-respondent disclose before us by next Thursday i.e. 20th September, 2012, the step they propose to take. If no benchmark is fixed, then those 137 candidates should be selected among the 137 candidates of the Scheduled Caste category, who could not secure appointment.
Pursuant to the order passed by this Court dated 14.09.2012, the District Primary Education Officer, Banaskantha filed an affidavit-in-reply stating, inter-alia, as under:
2. I state that to find out the means that how the appointment of 137 candidates of Schedule Caste Category from the merit list of the year 2007 can be given, exercise was carried out by the deponent authority. I state that upon the close scrutiny of 2007 recruitment process and merit list, it was noticed that no separate merit list was prepared for Schedule Caste Category as in the advertisement there was no bifurcation for the post of Schedule Caste Category.
However, out of merit list of the year 2007, 2443 applications were received and out of that 65 candidates were found from Schedule Caste Category and the list of 65 Schedule Caste Category is separately prepared. Now presently to place on record the details of the persons who participated in the 2007 selection process, a cop of separate list of Schedule Caste category prepared for the perusal of this Hon ble Court from the merit list of the year 2007 is annexed herewith and marked as Annexure-R-I. I state that out of those 65 Schedule Caste Candidates, 24 Schedule Caste candidates including 2 candidates of Valmiki Samaj (22 candidates of Schedule Caste + 2 candidates of Valmiki Samaj) already got employment on merits, and therefore, 41 remaining candidates were not eligible for the appointment in General Category but they are the candidates who were eligible to be selected as Schedule Caste candidate if the post is advertised for Schedule Caste Category.
Therefore, the State Government is duty bound and ready and filling to appoint those 41 Schedule Caste candidates on the said posts of Vidhyasahayaks as advertised in the year 2007 within the stipulated time after completing necessary formalities and the State Government had directed the deponent office to see that appointments will be given as expeditiously as possible to the Schedule Caste candidates of 2007 merit list. In turn the deponent office has written letters to all the 41 Schedule Caste Candidates on their last known address. The copies of the said letters are annexed herewith and marked as Annexure-R-II(Colly.).
I state that to see that all the 41 Schedule Caste candidates may put to notice that they will be entitled to the benefit of appointment, the advertisement was also issued on 16.09.2012 in Gujarat Samachar daily. A copy of advertisement dated 16.09.2012 is annexed herewith and marked as Annexure-R-III.
Therefore, out of 137 Schedule Caste candidates after deducting 41 candidates, remaining 96 Schedule Caste candidates are required to be given appointment in Schedule Caste Category and the same will be done in the next recruitment.
5.3 Thus, having regard to the stance of the respondent-authorities, the picture is now abundantly clear and adjudication on merits is not necessary. It appears that an advertisement was also issued in a daily vernacular newspaper dated 16.09.2012 and the respondent-authorities have assured that the Scheduled Caste candidates, who were left out in the recruitment of the year 2007, would be given appointment in the next recruitment.
5.4 Mr.Y.N. Oza, the learned Senior Advocate submitted that the State Government, at the time of giving appointments, is not following the correct procedure and that the reserved category candidates selected on the rule of merit (and not by virtue of rule of reservation) are counted as reserved category candidates and by counting such candidates, it is sought to be shown that appropriate representation is being given to the members of the reserved category.
5.5 It is needless to state that the position of law in this regard is well settled. While determining the number of posts reserved for Scheduled Casts and Scheduled Tribes, the candidates belonging to reserved category, but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. The Government should follow this principle of law in all appointments without any departure on any grounds not tenable in law.
We may also state that after the hearing of the main matter was over, one Civil Application No.11988 of 2012 was filed in Special Civil Application No.5285 of 2007 with a prayer that the respondents be directed to declare that the 96 remaining candidates would be entitled to the benefit of the appointment according to the criteria applicable pursuant to the advertisement for the year 2007 in terms of age and qualifications. This prayer of the petitioners was strongly opposed by the State Government by filing an affidavit-in-reply. The stance of the respondent-State, as reflected from its affidavit-in-reply, is that at the time of issuance of the advertisement in the year 2007, the minimum qualifications as prescribed in the advertisement was H.S.C. as well as P.T.C., whereas subsequently, the State Government vide Resolution dated 27.01.2011 has prescribed qualifications for the post of Vidhya Sahayak keeping in mind the provisions of the right to Children to Free and Compulsory Education Act, 2009, whereby the educational qualifications now required are that of graduate in the specific field and P.T.C. with B.Ed. It has also been clarified in the affidavit-in-reply that the educational qualifications as prescribed in the advertisement dated 24.09.2012 is according to the Resolution dated 27.04.2011. It would be expedient, at this stage, to quote Paragraph Nos.11 and 12 of the affidavit-in-reply:
11. It is stated that the applicant in the present application has sought direction of the Hon ble Court to entitle the remaining 96 candidates to benefit of appointment as per the criteria made applicable for selection with respect to age and qualification in pursuance to the advertisement for the year 2007. It is most respectfully stated that the said benefit so far as the issue of the qualification is concerned, cannot be made available to those 96 candidates as there has been subsequent change in the educational qualifications required for the posts of the vidhyasayaks since the time when the advertisement in the year 2007 was issued. The resolution dated 27.04.2011 passed by the State Government, Education Department prescribes for educational qualification for the post of vidhyasayaks wherein a candidate must be a graduate and PTC or he or she must be a graduate with B.Ed. Therefore, the qualification which was prevalent at the time when the advertisement in the year 2007 was issued has undergone changes and hence as per the prevailing norms, the benefit with respect to qualifications cannot given to 96 candidates. So far as the issue with regards to the age limit is concerned, it is stated that 96 remaining candidates, were to be included in fresh recruitment for the post of vidhyasayaks. It is stated that out of 137 seats to be filled for the scheduled caste, 65 applications were received from scheduled caste category and the list of those candidates was separately prepared. Out of those 65 candidates, 24 candidates had already got appointment on merits. Hence, the remaining 41 candidates are to be given appointment by the State Government. So far as remaining 96 candidates are concerned, the application of those candidate shall be received pursuant to the fresh advertisement dated 24.09.2012. These candidates have for the very first time applied for the post of vidhyasayaks and had in not point of time made whatsoever made applications when the advertisement in the year 2007 was issued. Therefore, the applicants cannot claim benefit of age limit so on the date of advertisement in the year 2007 as claimed in the present application. The applicants would be in any case governed by the age limit prescribed in the fresh advertisement dated 24.09.2012.
12. It is stated that the Gujarat Civil Service Classification and Recruitment (General) Rules 1967 prescribes for rules for recruitment for class-I, class-II, class-III and class-Iv employees of the State Government. Rule 8 of the aforesaid rules provides for conditions as to prescribed qualifications. Rule 8(1) reads as follows:
subject to the provisions of these rules, no person shall be appointed to any service or post, unless he possesses the qualification, if any, prescribed in the rules relating to the recruitment to such service or post (hereinafter referred to as the prescribed qualification ) Rule 8(4) of the said rule provide as follows:-
if for the purpose of recruitment to any post, application for appointment to such post are invited by means of a notification or advertisement published in a news paper or in any other manner than save as otherwise provide in such notification or advertisement, the question whether a candidate applying for such post has crossed the age limit prescribed for such post shall not be determined with reference to the first day of the month immediately following the month in which a period of ninety days from the date of the first publication of the notification or as the case may be advertisement expires and accordingly a candidate shall be deemed to have crossed the age limit if he has attained that age limit before the aforesaid first day of the month.
Hence, as per the aforesaid rules prescribed under the Gujarat Civil Services Classification and Recruitment Rules (General), 1967, these 96 candidates cannot claim benefit with respect to qualification as well as age limit. A copy of the Gujarat Civil Services Classification and Recruitment Rules (General), 1967 is annexed herewith and marked as Annexure-R-III.
Thus, having regard to the stance of the respondent-State and also taking into consideration the provisions of the Gujarat Civil Services Classification and Recruitment Rules (General) Rules, 1967, we are not inclined to grant the relief as prayed for by the petitioner in the Civil Application No.11988 of 2012. Thus, the relief, as prayed for in the Civil Application, is hereby rejected.
The State-respondents are hereby directed to complete the procedure of recruitment pursuant to the fresh advertisement dated 24.09.2012, within a period of three months from today.
With the above observations and directions, the applications are accordingly disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) rakesh/ Page 15 of 15