Gujarat High Court
Patel Dineshkumar Ratilal & vs State Of Gujarat & on 2 July, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/8137/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.8137 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
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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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PATEL DINESHKUMAR RATILAL & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No.1 - 2
MR HK PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1
NOTICE SERVED BY DS for the Respondent(s) No.1 - 2
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 02/07/2014
ORAL JUDGMENT
1. Rule. Mr. Himanshu Patel, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents. Having regard to the facts of the case and Page 1 of 10 C/SCA/8137/2014 JUDGMENT considering the urgency of the matter, with the consent of the learned advocates for the respective parties, the matter was taken up for final hearing.
2. By this petition under Article 226 of the Constitution of India, the petitioners seek the following substantive reliefs:-
"9. The petitioners therefore humbly prays that YOUR LORDSHIPS BE PLEASED to issue a writ of or in the nature of mandamus and/or any other appropriate writ, order of direction:-
(a) to admit this petition and to allow the same by issuing notice for final disposal on returnable date;
(b) to hold and declare and direct that the respondents are duty bound to calculate the petitioners' merit for the purpose of recruitment as Vidya-sahayak/primary teacher for primary school (Std.1 to 5) pursuant to the Advertisement dtd. 14-2-2014 as per Annexure-A, as per the formula for calculation of merit laid down in the G.R.s dtd. 27-4-2011, 14-7-2011. 3-5-2012 and 18-5-2012 at Annexure-B Colly., and they have no authority, power or jurisdiction in law to consider the petitioners' merit by reducing their percentage on the ground of more than one attempts at the HSC examination;
(c) to quash and set aside the impugned communications of "No Call Letters" as per Ann-I Colly. and the illegal action of the respondents in wrongfully excluding the petitioners from selection and appointment as Vidya- sahayaks/primary teachers for primary school (Std. 1 to
5) pursuant to the Advertisement dtd. 14-2-2014 as per Annexure-A by treating the petitioners' percentage of HSC examination to be less than 53.54% and 58.92% respectively on the ground that they have passed the HSC examination at more than one attempts;
(d) to direct the respondents, their agents and servants to calculate the petitioners' merit for the purpose of selection and appointment as Vidya-sahayaks/primary teachers for primary school (Std. 1 to 5) pursuant to the Page 2 of 10 C/SCA/8137/2014 JUDGMENT Advertisement dtd. 14-5-2014 as per Annexure-A by treating the petitioners' percentage at HSC examination to be 53.54% and 58.92% respectively and to give appointments to them on that basis, with all the consequential benefits as if they are given appointments along with all other candidates."
3. Both the petitioners have passed the Higher Secondary Certificate Examination and the Primary Teachers Certificate Examination and are eligible and qualified to be appointed as Vidya Sahayaks/Primary Teachers for primary schools (Standards I to V). The first petitioner has passed the H.S.C. examination in two attempts whereas the second petitioner has passed the said examination in four attempts.
4. While considering the petitioners' merit, the respondents have calculated the petitioners' merit by grossing up the maximum marks and the marks obtained by the petitioners at all attempts including the attempts where the petitioners had failed. Consequently, the petitioners' merit had been reduced and they are sought to be excluded from the selection and appointment. According to the petitioners, there is no provision for deduction of any marks for additional attempts or for calculation of merit by grossing up the marks of all attempts while considering the merit of the candidates for the said recruitment in the Government Resolutions dated 27 th April, 2011, 14th July, 2011, 3rd May, 2012 and 18th May, 2012 governing the said recruitment or in the advertisement dated 14th February, 2014. It is in these circumstances that the petitioners had filed the present petition seeking the reliefs noted hereinabove.
5. Mr. K.B. Pujara, learned counsel appearing on behalf Page 3 of 10 C/SCA/8137/2014 JUDGMENT of the petitioners invited the attention of the court to the advertisement dated 14th February, 2014 issued by the Gujarat State Primary Education Selection Committee and Director of Primary Education whereby applications came to be invited from candidates seeking appointment on the posts of Vidya Sahayak in the primary schools run by the District Education Committees for the year 2014, to point out that there is no provision made which permits the respondents to gross the marks obtained by the candidate in all the attempts. Referring to the general instructions in the said advertisement and more particularly, clause (15) thereof, it was pointed out that the computation of merit is required to be made in terms of the Government Resolutions mentioned therein namely, the Government Resolutions dated 27th April, 2011, 3rd May, 2012 and 18th May, 2012. Referring to the said government resolutions, it was pointed out that none of them provide for adopting the course of action as adopted by the respondents of grossing the marks obtained by a candidate in all the attempts. Reliance was placed upon an unreported decision of this court in the case of Patel Hareshkumar Rameshbhai v. State of Gujarat rendered on 29th April, 2008 in Special Civil Application No.24535/2007 wherein in the facts of the said case, 1% marks had been deducted from the total marks of the concerned candidate as the candidate had first attempted in the Science Stream and had thereafter taken another attempt in the General Stream. Before the court, it was pointed out that the Director of Primary Education in his own wisdom had ordered for deduction of 1% marks where Vidya Sahayak recruitment is concerned for the purpose of determining the merit, if the candidate had taken more than one attempt. The court found that no source was identified for the aforesaid Page 4 of 10 C/SCA/8137/2014 JUDGMENT instructions. It was observed that there was no source available to make such orders to the Director over and above the Government policy and moreover, such change was not notified in the advertisement or otherwise by the respondents. The court held that the Director had overreached the State Government policy and that he had no power to formulate such scheme whereby the established schemes of the Government turn prejudicial to the candidate. The court, accordingly, directed that the case of the said petitioner be rejudged by adding 1% marks in his merit. Mr. Pujara accordingly urged that the said decision would be squarely applicable to the facts of the present case where the scheme for recruitment does not provide for aggregation of marks obtained at different attempts and as such, the petition deserves to be allowed.
6. Vehemently opposing the petition, Mr. Himanshu Patel, learned Assistant Government Pleader, placed reliance upon the contents of the affidavit-in-reply filed on behalf of the second respondent wherein it has been stated that Gujarat State Primary Education Selection Committee has issued circular dated 9th August, 2011, in paragraph 5(B) whereof it has been provided that when the candidate has cleared the examination by more than one attempt and has obtained exemption in the subjects which were cleared in the earlier attempts, the merit is required to be taken into consideration after considering the total marks and the marks obtained at each attempt and thereafter on the basis of the percentage, the merit is required to be determined. It was submitted that the above resolution has been issued by the Gujarat State Primary Education Selection Committee which is comprised of Page 5 of 10 C/SCA/8137/2014 JUDGMENT the Member Secretary and Deputy Director, Directorate of Primary Education, Gandhinagar as well as the Member/Director, GCERT, Gandhinagar, the Member/Deputy Secretary, Education Department, Gandhinagar as well as the Chairman and Director of Primary Education, Gujarat State, Gandhinagar. It was submitted that the second petitioner who had cleared the examination in four attempts and lastly appeared in the exams of two subjects only wherein he secured 80 marks in Mathematics and 63 marks in Physics, however, he had obtained 9, 16 and 9 marks in Mathematics in the first, second and third attempts. It was submitted that thus, such candidate is likely to steal a march over other candidates who have secured slightly less marks than 63 at the first time. It was submitted that clause 5(B) of the Resolution dated 9th August, 2011 is just and proper and also logical and hence, the respondents are justified in following the same and providing for grossing up the marks obtained by the candidates at all attempts and averaging the same. It was, accordingly, submitted that the petition being devoid of merit, deserves to be dismissed.
7. This court has considered the submissions advanced by the learned advocates for the respective parties and has considered the record of the case.
8. The short controversy involved in the present case is as to whether the respondents are justified in grossing up the maximum marks and the marks obtained by the petitioners at all the attempts while calculating the merit of the petitioners for recruitment to the post of Vidya Sahayak pursuant to the advertisement dated 14th February, 2014.
Page 6 of 10C/SCA/8137/2014 JUDGMENT 9. A perusal of the advertisement whereby
applications were invited for appointment of Vidya Sahayaks reveals that the educational qualification stated therein is H.S.C., P.T.C. etc. Both the petitioners have cleared the H.S.C. examination as well as the P.T.C. examination. The general instructions contained in the said advertisement inter alia provide that the manner of giving marks for preparation of select list shall be in terms of the Education Department Government Resolutions dated 27th April, 2011, 3rd May, 2012 and 18th May, 2012. Copies of all the above three Government Resolutions have been annexed with the petition. A close perusal of all the three Government Resolutions reveals that none of the said resolutions provide for grossing up the marks obtained in all the attempts. It is also not the case of the respondents that the advertisement or the Government Resolutions mentioned therein provide for adopting such a mode of action. The case of the respondents is that the Primary Education Selection Committee has by a circular/resolution dated 9th August, 2011 given certain instructions for preparing a final merit list. Clause (5) thereof provides that where any candidate has cleared the final degree examination in respect of educational qualification or vocational qualification at more than one attempts then, (A) if the candidate has failed in either the first, second or any other attempt and when he has given the final examination in all the subjects and has passed, then it has to be considered as a single attempt and the percentage of his total marks have to be taken into consideration, (B) if the candidate has passed the examination in more than one attempt or has been granted exemption in any subject, then the total of the marks obtained Page 7 of 10 C/SCA/8137/2014 JUDGMENT at each attempt shall be calculated and the percentage thereof shall be determined and his merit shall be considered keeping in view such percentage marks. (C) is not relevant and hence not reproduced. It is on the basis of the above referred circular/resolution that the respondents have grossed the marks of all attempts made by the petitioners and calculated the percentage accordingly.
10. Evidently, therefore, the advertisement inviting applications for the post of Vidya Sahayak does not prescribe for grossing the marks obtained in all the attempts and considering the percentage thereof for the purpose of merit, nor do the Government Resolutions which find mention in the general instructions, provide for such course of action. The circular/resolution dated 9th August, 2011 passed by the District Selection Committee does not find any reference in the advertisement dated 14th February, 2014 nor has any amendment been made in the said scheme subsequently. The respondents, on their own, have applied the circular/resolution dated 9th August, 2011 without notice to the candidates. At this juncture it may be apposite to refer to the decision of this court in the case of Patel Hareshkumar Rameshbhai v. State of Gujarat (supra) wherein it has been held thus:-
"3. After having heard the learned counsel for the parties and having looked the communication of the Government placed on record of this case, wherein certain questions, raised during the course of hearing, which are formulated by respondent No.3 and sent to the Director of Primary Education for answer, have been answered by the Director of Primary Education. In answer to question No.4, the Director of Primary Education has said at his own wisdom that he has ordered for deduction of 1% marks where Vidhyasahayak Recruitment is concerned, for the purposes of determining the merit, if the candidate has taken more Page 8 of 10 C/SCA/8137/2014 JUDGMENT than one attempt. When source was sought to be identified, in 1998-1999 Scheme, it was not found anywhere. There has been no source available to make such orders to the Director over and above the Government Policy. It is noticed that such change was also not notified in the advertisement or otherwise by the respondents. The power exercised by the Director and admitted by him in communication dated 19.3.2008, shows that it has over-reached the State Government policy. He has no power to formulate any such Scheme, whereby the established schemes of the Government turn prejudicial to the candidate. Such kind of exercise of power, can be seen as the attempt to usurp the power not vested with the authority. Having done so, the petitioner has been disfavourably considered. In that view of the matter, the order deserves to be quashed and the case of the petitioner will be rejudged by adding 1% marks in his merit and accordingly, the decision will be taken by respondent Nos.2 and 3 considering that the deduction of 1% mark was illegal and uncalled for."
11. Thus, when neither the advertisement inviting applications for recruitment to the posts of Vidya Sahayaks nor the relevant Government Resolutions provide for grossing the marks obtained at all the attempts and thereafter considering the percentage thereof, it is not permissible for the respondents to adopt such a course of action, inasmuch as, the same is contrary to the provisions of the advertisement and the relevant government resolutions referred to therein. Though, as submitted by the learned Assistant Government Pleader, it may not appear equitable to consider the marks obtained by candidates who have appeared at several attempts without grossing the same and calculating the percentage thereof for the purpose of considering the merits of the concerned candidate. However, if that be so, it was for the respondents to make provision for the same at the time of inviting applications. When no such provision has been made Page 9 of 10 C/SCA/8137/2014 JUDGMENT in the advertisement or under the recruitment scheme, it is not permissible for the respondents to add any further requirement into the same. The action of the respondents of grossing the marks obtained by the petitioners at all attempts and calculating the percentage thereof for considering their merits being de hors the recruitment rules, cannot be sustained.
12. For the foregoing reasons, the petition succeeds and is accordingly allowed. The respondents are directed to calculate the petitioners' merit for the purpose of selection and appointment of Vidya Sahayaks/Primary Teachers for primary schools (Standard I to V) pursuant to the advertisement dated 14th February, 2014 (Annexure 'A') by treating the petitioners' percentage of H.S.C. Examination to be 53.54% and 58.92% respectively and to give appointment to the petitioners on that basis with all consequential benefits as if they were given appointment along with other candidates (if candidates lower in merit to the petitioners have been given appointment), within a period of 45 days from the date of receipt of a copy of this judgment. Rule is made absolute accordingly with no order as to costs.
Direct Service is permitted.
( Harsha Devani, J. ) hki Page 10 of 10