Gujarat High Court
Tejabhai Devjibhai Prajapati & vs State Of Gujarat & 2 on 10 December, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/20154/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20154 of 2015
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TEJABHAI DEVJIBHAI PRAJAPATI & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner(s) No. 1 - 2
Mr.Rashesh Rindani, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/12/2015
ORAL ORDER
Mr.Rashesh Rindani, learned AGP confirms that tomorrow, those candidates who are less meritorious than the petitioners have been called in the camp organized by respondent No.2 .
Mr.R.B.Thakore, learned advocate appearing for the respondent No.3 -District Primary Education Officer has no clue as to who are called for the interview. According to him, the service of notice was affected yesterday only and no instructions have been received from the respondent No.3
-authority. According to him, the respondent No.3 is the implementing authority of all the directions of Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER respondent No.2, who is in fact the appointing authority .
Mr. Dipak Dave, learned advocate appearing for the petitioners has relied upon the various decisions of this Court, one of which he has also relied upon the decision rendered is in case of Parmar Ajabhai Motibhai and Others Vs. State of Gujarat and others passed in Special Civil Application No. 4920 of 2015 and allied matters , wherein this Court has held thus :-
"Having thus heard both the sides and having also given thoughtful consideration to the material on record and particularly bearing in mind the decision of this Court rendered in case of Jignesh Hargovanbhai Makwana & Ors. [Supra], approved by Division Bench in Letters Patent Appeal No. 873 of 2014, these writ petitions deserve to be allowed where identical issue has been raised. This Court in case of Jignesh Hargovanbhai Makwana & Ors. [Supra] has held and observed that in view of non filling up of the posts reserved for the women candidates, it becomes incumbent upon the respondents to first call those candidates who are more meritorious and who could not be accommodated in the concerned district for want of availability of vacant seats, though that district was their first choice when their turn came. It would be profitable to reproduce the relevant observations and findings, which reads thus:-
7. From the facts and contentions noted hereinabove, it is apparent that the petitioners, who Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER were higher in order of merit, took part in the selection process. However, at the time when the petitioners turn came, all the vacancies in Banaskantha district were already filled up. The petitioners, who were desirous of getting appointment as Head Teachers only within the district of Banaskantha, therefore, did not opt for any other district and chose to give up their right to appointment as Head Teacher as no posts were available in Banaskantha district. Out of the eleven petitioners, only four petitioners, that is, the petitioners No.1, 7, 8 and 11 chose to appear before the Selection Committee and since they did not opt for any other district, undertakings were obtained from each petitioner to the effect that at the time of selection the available districts/Nagar Prathmik Shishan Samiti not being of his choice, he is giving up his right of choice of district. The petitioner No.7 has categorically stated in the undertaking that since Banaskantha district is not available he is giving up his right of selection of district. Thus, in effect and substance, the undertakings given by the petitioners is to the effect that since the district of their choice, viz. Banaskantha is not available for selection, they are giving up their right to select district.
8. The respondents have placed reliance upon the said undertakings given by the petitioners, to submit that the petitioners, who have given up their choice of district, can no longer contend that they are required to be offered posts which have Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER subsequently been opened up for the general category or fallen vacant for any reason. On a plain reading of the undertakings makes it amply clear that such undertakings were given because no vacancy was available in the district of Banaskantha. Since the petitioners desired to get appointment as Head Teachers only in Banaskantha district, they had waived their right to select any other district. However, none of the petitioners had given up their right for selection qua Banaskantha district. The said undertaking cannot in any manner be read to mean that the petitioners have given up their right qua Banaskantha district also. Under the circumstances, the contention of the respondents that in view of the undertaking given by the petitioners, it is not no longer open for the petitioners to seek appointment within the district of Banaskantha, does not merit acceptance.
9. Since the petitioners were more meritorious and subsequently certain vacancies within the district of Banaskantha were available in view of non-filling of the posts reserved for women candidates, it was incumbent upon the respondents to first call for the meritorious candidates who could not be accommodated in the district of Banaskantha, though that district was their first choice. In the opinion of this court, the undertakings given by the aforesaid four petitioners would not have come in the way of the respondents in calling the said petitioners to exercise their choice and posting them within the district of Banaskantha.Page 4 of 8
HC-NIC Page 4 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER
10. However, insofar as the remaining seven petitioners who had not appeared before the Selection Committee are concerned, in the opinion of this court, by not appearing pursuant to the call letters issued to them, such candidates can be said to have waived their rights to be appointed as Head Teacher pursuant to the recruitment procedure. Under the circumstances, no fault can be found in the action of the respondents in not calling upon the said petitioners to exercise their right of selection of district when subsequently further posts were available for selection within the district of Banaskantha. Since the said petitioners had not appeared before the Selection Committee pursuant to the call letters issued to them, their say that they had not appeared only because there were no vacancies in the district of Banaskantha and were afraid that they would be forced to give undertakings cannot be accepted. It is also pertinent to note that some of the petitioners who did not choose to appear before the committee are placed higher on merit than some of the above referred four petitioners. However, though four of the petitioners, despite no vacancies being available did appear before the Selection Committee, the others did not. In the aforesaid premises, the other petitioners other than petitioners No.1, 7, 8 and 11 would not be entitled to the relief claimed in the present petition.
11. For the foregoing reasons, the petition succeeds qua the petitioners No.1, 7, 8 and 11 only.
Page 5 of 8HC-NIC Page 5 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER The action of the respondents in filling up the vacancies that have subsequently been opened up for selection on account of non-filling of seats reserved for women candidates, without calling upon the more meritorious candidates to exercise their option, is arbitrary and unjust and overlooks the merit of the said petitioners. The respondents are, accordingly, directed to accommodate the petitioners No.1, 7, 8 and 11 herein as Head Teachers within the district of Banaskantha and shall further ensure that their seniority is maintained in accordance with their merits. It is clarified that this judgement has been rendered in the peculiar facts and circumstances of the present case and shall not be treated as precedent in future. In light of the findings and observations of the decision referred to hereinabove, all these writ petitions are allowed. The respondents are directed to accommodate the petitioners as Head Teachers within the district of their choice ie., Banaskantha, Sabarkantha, Mehsana; as the case may be. This exercise shall be completed within a period of four weeks from the date of receipt of copy of this order.
Rule nisi issued in each case is made absolute to the extent aforesaid. Direct service is permitted."
Bearing in mind the directions issued earlier to the authority in case of similarly situated petitioners, the respondent-authority is expected to Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER follow such directions issued by this Court from time to time.
As can be noted from the submissions, those who are called in the camp scheduled tomorrow are less meritorious candidates, by way of interim relief, therefore, the petitioners deserve to be protected. The action of the respondent -authority in filling up the vacancies which have arisen on account of non- filling of the seats without calling upon more meritorious candidates to exercise their option deserves to be interfered. Resultantly, the respondents are directed by way of interim relief not to proceed with the selection process of Head Teacher, Class III so far as Banaskantha District is concerned without considering the case of more meritorious candidates.
Copy of this order be given to learned AGP Mr.Rashesh Rindani today for onward communication as camp is scheduled tomorrow itself.
Direct service is permitted today.
Page 7 of 8HC-NIC Page 7 of 8 Created On Fri Dec 11 01:16:37 IST 2015 C/SCA/20154/2015 ORDER (MS SONIA GOKANI, J.) BINA Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Dec 11 01:16:37 IST 2015