Gujarat High Court
Divya Kshmapati Sharma vs State Of Gujarat on 12 April, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6415 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed 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 the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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DIVYA KSHMAPATI SHARMA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR ROHAN SHAH AGP for the Respondent(s) No. 1 - 4
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 12/04/2022
ORAL JUDGMENT
1. In this petition, which is filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs, "(A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction be issued to Page 1 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022
(i) hold and declare that action on part of the respondents in not offering appointment to the petitioner in government secondary school at Bhavnagar as illegal, unjustified and further may be pleased to direct the respondents to immediately appoint the petitioner as secondary teacher in government school at Bhavnagar;
(ii) hold and declare that action on part of the respondents in appointing less meritorious candidates than the petitioner on the post of Teacher, Class III, in government secondary schools as illegal, unjustified and discriminatory and further may be pleased to direct the respondents to appoint the petitioner as Teacher in government secondary school from 01.04.2017 and further may be pleased to direct the respondents to pay all service benefits and consequential benefits in pursuance to the said appointment;
(B) Pending the admission hearing and final hearing of the petition, this Hon'ble Court may be pleased to direct the respondents to immediately offer appointment to the petitioner on the post of Teacher in government secondary school at Bhavnagar in view of the fact that the petitioner is in the selection list and juniors to the petitioner have been appointed;
IN THE ALTERNATIVELY (C) Pending the admission hearing and final Page 2 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 hearing of the petition, this Hon'ble Court may be pleased to restrain the respondents from undertaking selection process further on the post of Teacher in government secondary school;
(D) xxx xxx xxx."
2. Heard learned advocate, Mr. Dipak Dave for the petitioner and learned Assistant Government Pleader, Mr. Rohan Shah for the respondents.
3. Learned advocate for the petitioner submitted that the respondent no.3 issued advertisement for the post of 'Shikshan Sahayak' in the Government Secondary School, which was published in the newspaper and pursuant to the said advertisement issued by the respondent no.3, on-line application was submitted by the petitioner. It is submitted that the petitioner has passed Graduation in Master in Hindi medium but her main subject was English in Master. It is submitted that the petitioner is having Master Degree in English subject and was required to impart education in the medium of English as English Teacher and after verifying all details and eligibility of the petitioner, the petitioner was allowed to appear in TAT examination in English subject and the petitioner has passed the said examination.
Page 3 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 Learned advocate has referred to the documents, which are placed on record. It is submitted that pursuant to the said advertisement for the subject of English, the petitioner submitted an application. It is contended that looking to the merit of the petitioner, she was called for the choice of her places on 22.03.2017 and the petitioner remained present along with her original certificates before the concerned authorities, however at that time, the concerned respondent orally informed the petitioner that since the petitioner has obtained degree from the University situated outside the State of Gujarat, her case is not considered. It is also submitted that the candidates, who are having lower merit, have been given choice of their place and the case of the petitioner has not been considered, therefore, the petitioner has filed present petition.
4. Learned advocate has referred to the advertisement, copy of which is placed on record at Page No.64. It is pointed out that as per Government Resolution dated 02.04.2013 as referred in the advertisement, the petitioner is possessing Page 4 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 the requisite qualification and the petitioner has obtained degree from the University established by an Act of Parliament or a State Legislature in India and, therefore, she is eligible to participate in the recruitment process. At this stage, it is submitted that the petitioner has completed her graduation in Bachelor of Arts from Chaudhari Charansingh Vishva Vidhyalaya, Meerut and, thereafter, the petitioner has completed her Master Degree in Arts in English literature. It is submitted that after getting married in the year 2004, the petitioner shifted from Uttar Pradesh to Bhavnagar at her matrimonial home, where she passed her Master Degree in the year 2008 and undertook M.Ed. in the year 2015 from Bhavnagar University. It is submitted that prior to that, the petitioner passed B.Ed. course from college situated at Vadodara. It is, therefore, submitted that thus, the petitioner is duly qualified to participate in the aforesaid recruitment process and, therefore, the petitioner participated in the said process and she has been shown at Sr. No.88 in the open category female candidate and accordingly, call letter was issued to her and in Page 5 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 pursuance thereto, the petitioner remained present before the concerned Committee constituted by the respondent no.3 and the testimonials of the petitioner were verified by the concerned officer, however thereafter, the Committee informed the petitioner that since the petitioner has done Graduation and Master outside the Gujarat and medium of instruction is Hindi, the petitioner cannot be said to be eligible candidate.
5. At this stage, learned advocate for the petitioner further submits that the petitioner did M.Ed.
course in Gujarati medium and she has also passed TAT examination in Gujarati medium, therefore, merely because the petitioner has passed her Bachelor and Master Degree in Hindi medium, it is not open for the respondents to reject the candidature of the petitioner on that ground. At this stage, learned advocate submitted that one candidate viz., Reenaben Bansibhai Patel, who was appointed in school pursuant to the aforesaid advertisement, has also studied from Madhya Pradesh, inspite of that, she has been given appointment by the Government.
6. It is also contended by learned advocate for the Page 6 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 petitioner that the petitioner is eligible for the appointment on the post in question as per Notification dated 18.04.2012 issued by the respondent - State Government as the petitioner is having requisite educational qualification in accordance with provision of Regulation 20 of the Secondary Education Regulations, 1974 and, therefore, it is not open for the respondents to deny the appointment on the ground that the petitioner has passed B.A. and M.A. from University situated at Uttar Pradesh and that too, in Hindi medium. Learned advocate, therefore, urged that the respondent authority be directed to consider the case of the petitioner for the appointment on the post of 'Shikshan Sahayak' for the subject of English.
7. On the other hand, learned Assistant Government Pleader has opposed this petition and referred to the averments made in the affidavit-in-reply filed on behalf of the respondent no.2, copy of which is placed on record at Page No.75 of the compilation.
It is submitted that as per Clause - VIII of the advertisement dated 26.01.2017, the candidate, who possesses the qualification in respective medium, Page 7 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 can apply in a particular medium only. It is also submitted that the advertisement was issued for the Gujarati Medium Secondary School for the post of 'Shikshan Sahayak'. It is contended that the petitioner has passed her B.A. and M.A. examination in Hindi medium from the University situated at Uttar Pradesh and thus, the petitioner is not eligible to participate in the aforesaid recruitment process though the petitioner has passed B.Ed. and TAT examination from State of Gujarat in Gujarati medium. Learned AGP therefore submitted that thus, the respondent authority has not committed any illegality while not giving appointment to the petitioner on the post of 'Shikshan Sahayak'. At this stage, learned AGP has placed reliance upon CAV Judgment dated 29.03.2019 rendered by the Coordinate Bench of this Court in Special Civil Application No.6445/2017. Learned AGP has referred to relevant observations made by the Coordinate Bench and, thereafter, contended that the issue involved in the present petition is squarely covered by the aforesaid judgment.
8. I have considered the submissions canvassed by learned advocates for the parties and I have also Page 8 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 perused the material placed on record. It would emerge from the record that the petitioner has passed B.A. and M.A. examination from University situated at Uttar Pradesh in Hindi medium and the said aspect is not in dispute. The petitioner submitted on-line application as per the advertisement issued by the respondent authority for the post of 'Shikshan Sahayak' for the subject of English. If the advertisement is carefully seen, it is revealed that the advertisement is issued for the post of 'Shikshan Sahayak' for Secondary School and the advertisement was also for Gujarati medium school. It is true that the petitioner has passed B.Ed. and TAT examination from the State of Gujarat in Gujarati medium, copies of necessary certificates are placed on record.
9. It is pertinent to note that the exactly similar issue has been decided by the Coordinate Bench of this Court vide CAV Judgment dated 29.03.2019 passed in Special Civil Application No.6445/2017, wherein the Coordinate Bench of this Court has observed in Paragraph Nos.2, 3, 3.2, 3.3 and 3.4 as under, Page 9 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 "2. By filing the present petition under Article 226 of the Constitution, the petitioner seeks to set at naught the action on part of the respondents in denying the appointment to the petitioner on the post of Shikshan Sahayak. The petitioner further wants this Court to declare that the petitioner was eligible to be appointed to the post for Maths/ Science subject. The petitioner has prayed to grant appointment and all consequential benefits of salary and seniority to be given appointment on the post from 23rd March, 2017 along with other candidates in the recruitment process.
3. The petitioner has stated that he passed B.Sc. (Chemistry) examination as also obtained M.Sc. (Chemistry). These degrees were obtained from Mohanlal Sukhadia University, Udaipur, Rajasthan. The petitioner has further possessed B.Ed. Degree in the subjects of Maths, Science and I.T. Education from Gujarat University. The petitioner further cleared the Teachers' Aptitude Test-2014 of the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar. According to the petitioner, he was qualified and eligible to be appointed as a Shikshan Sahayak in the secondary and higher secondary schools for the subjects of Maths and Science. 3.1 xxx xxx xxx.
Page 10 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 3.2 The petitioner was placed in the merit list of general category merit and was issued call letter on 19th March, 2017 for remaining present for the district selection. It is the case of the petitioner that he remained present with his original certificates and mark-sheets and filled up the necessary form. It appears that the petitioner, at the stage of document verification, was refused the appointment. He was told that since the petitioner had studied in Hindi medium, his candidature was not accepted. An endorsement on the form of the petitioner was made stating accordingly.
3.3 The Rules called Teachers of Government Secondary and Higher Secondary Rules (Procedure for Selection) Rules, 2012 as amended by Notification dated 02nd April, 2013 and further amended by Notification dated 23rd February, 2016 attend to the recruitment to the post. Rule 7 contemplates that in order to be eligible for appointment as Teacher in secondary school, the candidate shall have to possess a Bachelor's degree in Arts or Science or Commerce, obtained from any of the universities or institutions established or incorporated by Act of Parliament or by a State Legislature etc. or an equivalent qualification recognised as such the Government. It further stipulates that Page 11 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 candidate should possess a Bachelor's degree in education obtained from any of the universities established or incorporated as above etc. 3.4 As a part of the advertisement published for recruitment of Shikshan Sahayak in Gujarati medium in the registered government colleges, the competent authority notified instructions and conditions which are part of the advertisement. Conditions mentioned in the advertisement include the eligibility stipulations as well as other conditions which a candidate would be required to satisfy. It provided that candidate would have to meet with the educational qualifications. It mentioned about the requirement of possessing the knowledge of computer. Condition No.VIII stated that the candidate would be entitled to compete for the post in the same medium of instruction, in which the candidate has studied and has obtained educational qualification. The petitioner studied in Hindi Medium in the Udaipur University to obtain his Degrees of B.Sc. and M.Sc. in that medium. The petitioner was treated to be disqualified to be considered for the post."
10. Thus from the aforesaid paragraphs, it is clear that the facts were identical before the Coordinate Bench and the Coordinate Bench has Page 12 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 considered various decisions rendered by the Hon'ble Supreme Court and, thereafter observed in Paragraph Nos.5.3, 6, 6.1 to 6.6 as under, "5.3 Also disposing of the other contention about the passing Teachers' Aptitude Test in Gujarati medium, it has to be stated that it is of no avail to the petitioner and stands meritless inasmuch as the result-sheet itself of the said examination mentioned that the qualification of passing the same would not mean possessing the requisite qualification to become secondary teacher. Yet another miscellaneous argument was canvassed that giving importance to the Hindi language was necessary, which submission was too spacious to be accommodated and it cannot be said to be germane to the issue involved.
6. Now, adverting to the core merit in the controversy, undisputedly, out of the earned educational qualifications, the petitioner passed his B.Sc. and M.Sc. in Hindi medium. The post of Shikshan Sahayak was meant for secondary school which impart education in Gujarati as its medium of instruction. Since the appointees are to be placed in such schools and they were to teach the students in Gujarati medium, it entirely stands to reason that the prescription is provided in the qualification to become Shikshan Sahayak by Page 13 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 placing a condition that candidature of those candidates only would be treated as acceptable who have studied and acquired all basic educational qualifications in the same medium of instructions for which they are to be posted. In other words, since the appointees are to be posted in the Gujarati medium schools, their basic qualifications obtained in the Hindi medium or the medium other than the Gujarati were not recognised.
6.1 When the probable appointee is to be posted in the Gujarati medium secondary schools and are expected to teach in the medium of instructions which would be Gujarati, the providence of the requirement that the candidate must have studied in the same medium, is a requirement having rational nexus with the object sought to be achieved, the object being securing proper and smooth impartation of education in the medium concerned. It is only rational that the employing authorities have insisted upon this requirement. It stands valid to the touchstone of Article 14 of the Constitution. Reasonability and rationality always inform the spirit of Article 14. They also go with the mandate of equality in public employment, therefore sand valid to the tenets of Article 16 of the Constitution. What satisfies the test of Article 14, does meet with requirements of Page 14 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 Article 16 of the Constitution.
6.2 It takes the Court to the next contention
that the Rule did not provide the
requirement in the above regard which was stated in the advertisement. Once the condition prescribed in this regard is found to quite relevant and rational, it can be said to be supplementing the Rules to lay down the final eligibility. Such a condition bear a close nexus with the object sought to be achieved. It cannot be said to be in conflict with the requirement for the post. It is a condition which adds to the criteria of judging suitability.
6.3 In J. Ranga Swamy v. Government of Andhra Pradesh [(1990) 1 SCC 288] the Supreme Court observed to state that it is not for the Court to consider the relevance of qualifications prescribed for various posts. In Chandigarh Administration through Director of Public Instructions (Colleges), Chandigarh v. Usha Kheterpal Waie [(2011) 9 SCC 645], the issue was regarding prescription of Ph.D. as requirement for the post of College Principal. What is relevant to notice is the observation of the Supreme Court, though the background fact was slightly different than the present one, that, "when the said qualification is not unrelated to the duties and functions of the post of Principal and is reasonably relevant to Page 15 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 maintain the high standards of education, there is absolute no reason to interfere with the provision of the said requirement as eligibility requirements."
6.4 In Usha Kheterpal Waie (supra), the Court proceeded to observe to hold, "It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. ... ... ... " (Para 22) (emphasis supplied) 6.5 In P.U. Joshi v. Accountant General, Ahmedabad [(2003) 2 SCC 632] the principle was stated that determination of condition of service, alteration thereof by amending rules, etc., all belonging to executive policy and within the exclusive discretion of the State. Laying down the criteria and qualifications, prescribing the conditions Page 16 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 of eligibility in addition to the basic qualification, determining the condition of appointment, selecting the yardstick to judge the suitability to the post, are the all functions in the domain of the employer. The employing authority has to be given a free-hand in this regard for charting its own area so long the action and the decision by the employing authority do not come into conflict with or not in discordance with or do not violate any rule, statutory norm or constitutional limitation. Also, the candidate cannot unreasonably question the decisions of the employer on such score and in this sphere. It is permissible for the employer to stipulate the criteria and conditions to govern the appointment to a post.
6.6 It was entirely logical, rational and reasonable to put a condition for appointment of candidate who would teach in the schools imparting education in the Gujarati medium instruction, that he or she would have acquired his or her basic qualification for the post in the same medium. Petitioner was validly subtracted from the list of eligible candidates as he was found to have acquired his basic degrees of B.Sc. and M.sc. in the different, that is Hindi medium."
11. From the aforesaid observations made by this Court in the aforesaid order, it can be said that when Page 17 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 the probable appointee is to be posted in the Gujarati medium secondary schools and are expected to teach in the medium of instructions which would be Gujarati, the insistence on the part of the respondents that the candidate must have studied in the same medium, is a requirement having rational nexus with the object sought to be achieved i.e. the object being securing proper and smooth impartation of education in the medium concerned. Therefore, it is entirely logical, rational and reasonable to put a condition for appointment of candidate who would teach in the schools imparting education in the Gujarati medium instruction, that he or she would have acquired his or her basic qualification for the post in the same medium. In the present case, it is clear that the petitioner has cleared her basic degree of B.A. and M.A. in Hindi medium. Thus, this Court is of the view that the issue involved in the present petition is squarely covered by the aforesaid decision.
12. Now it is the case of the petitioner that Reenaben Patel has been appointed as Teacher of Maths -
Science and though she has passed her graduation Page 18 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 in Hindi medium, she has been appointed. With regard to said contention, it is pertinent to note that even if the respondent has committed mistake by appointing said candidate dehors the Rules and the advertisement, negative equality would not be applicable. Hence, the petitioner cannot take advantage of the same.
13. It is also contended by learned advocate for the petitioner that the petitioner is eligible for the appointment on the post in question as per Notification dated 18.04.2012 issued by the respondent - State Government as the petitioner is having requisite educational qualification in accordance with provision of Regulation 20 of the Secondary Education Regulations, 1974 and, therefore, it is not open for the respondents to deny the appointment on the ground that the petitioner has passed B.A. and M.A. from University situated at Uttar Pradesh and that too, in Hindi medium. With regard to the said contention, it is pertinent to note that in the advertisement itself, the respondent has stated that to be eligible for appointment as teacher in Secondary School, a candidate shall possess a Page 19 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022 C/SCA/6415/2017 JUDGMENT DATED: 12/04/2022 bachelor's degree from a particular branch obtained from any of the Universities or the institutions established or incorporated by an Act of Parliament or a State Legislature in India. It is further revealed that the advertisement has been issued for the subject of English for Gujarati medium secondary school. As per the discussion made hereinabove, when the petitioner has obtained B.A. and M.A. decree in Hindi medium, the appointment is rightly denied by the respondent and as observed hereinabove, the issue involved in the present petition is covered by the decision rendered by the Coordinate Bench of this Court in CAV Judgment dated 29.03.2019 passed in Special Civil Application No.6445/2017. Therefore, the aforesaid contention is misconceived.
14. Thus in the facts of the present case, when the issue involved in the present petition is squarely covered by the aforesaid decision, this Court is of the view that the petitioner is not entitled to claim any relief as prayed for in the present petition. This petition is accordingly dismissed.
Notice is discharged. Interim relief stands vacated.
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15. After this Court has passed the aforesaid judgment, learned advocate for the petitioner has requested that the interim relief granted by this Court, which is in operation since March, 2017, be continued for a period of five weeks. Learned AGP has opposed this request. However, when the interim relief granted in favour of the petitioner is in operation since March, 2017, the said interim relief is extended for a further period of five weeks.
Sd/-
(VIPUL M. PANCHOLI, J.) Gautam Page 21 of 21 Downloaded on : Sat Dec 24 14:46:02 IST 2022