Gujarat High Court
Navyug vs Bharatiben on 26 August, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SA/150/1992 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 150 of 1992
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
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 ?
=========================================================
NAVYUG
EDUCATION SOCIETY - Appellant(s)
Versus
BHARATIBEN
A CHAVDA - Defendant(s)
=========================================================
Appearance
:
MR
SURESH M SHAH for
Appellant(s) : 1,
MR YOGESH S LAKHANI for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/12/2010
ORAL
JUDGMENT
Heard learned advocate Mr. SM Shah on behalf of appellant, learned advocate Mr. MN Devnani for learned senior advocate Mr. YS Lakhani on behalf of respondents.
The respondent - original plaintiff has filed Regular Civil Suit No. 303 of 1986 challenging selection and non selection made by present appellant on basis of advertisements dated 25.6.1986, 3.7.1986 and 11.7.1986 after following prescribed procedure by selection committee and also further sought declaration that defendant should be directed to invite an application from only for reserved posts of S.C. and S.T. Candidates, and also to hold fresh interview for selection of candidates. The plaintiff was not selected in post of teacher by selection committee and present appellant had invited application for 10 posts of teachers through advertisement as referred above.
According to plaintiff, out of 10 posts, 7 posts were reserved for S.C. and S.T. Candidates and plaintiff was one of the candidate and interview was held on 1.10.1986 and 3.10.1986. According to plaintiff, she was only candidate of schedule caste and also holding educational qualification, even though selection committee had selected candidates of non-schedule caste due to personal relation and they have also taken candidate on duty by passing order of appointment and plaintiff was not selected by selection committee. According to appellant, while filing reply against aforesaid civil suit vide Exh.14, for selection of one candidate for subject of social studies, they had called 16 candidates for interview and out of them, plaintiff was one of candidate. Before selection committee, 11 candidates were remained present. At that time, Shri N.G.Pandya, DEO, Shri P.B.Joshi, Principal of Navyug Vidhyalaya and Shri K.B.Shah, Vice Principal, Baluba Kanya Vidhyalaya were members of selection committee and they have taken interview of candidates and selected candidates had got 212 marks but, plaintiff had obtained 153 marks which was much less marks than other candidates. Therefore, question of appointment of plaintiff did not arise. According to appellant, said post was not reserved for schedule tribe and schedule caste candidates and plaintiff was not qualified for appointment of said post and therefore, appointments were given on basis of qualifications and merits by selection committee.
The suit filed by plaintiff has been dismissed on 15.7.1989. Thereafter, appeal was preferred by plaintiff before Assistant Judge at Porbandar in Regular Civil Appeal No.24 of 1989 wherein appellate Court has allowed appeal and judgment and decree passed by trial Court in Regular Civil Suit No.303 of 1986 dated 15.7.1989 has been set aside. The appellate Court has declared that advertisement given in daily newspaper dated 25.6.1986, 3.7.1986 and 11.7.1986 for filling up vacant post of Assistant Teachers in secondary section of Baluba Girls High School, Porbandar run by defendant Institution and procedure adopted by selection committee and selection made by selection committee on 1.10.1986 and thereafter, appointment given on strength of such selection is held to be illegal, arbitrary and discriminatory and therefore, same has been set aside and it was further directed to invite application from such candidates subjectwise for schedule tribe and schedule caste candidates first and thereafter, invite application from all candidates. The appellate Court has delivered judgment on 25.1.1991. Against which, present Second Appeal has been preferred by original defendant - Navyug Education Society.
The present Second Appeal has been admitted by this Court on 9.10.1992 considering substantial questions of law arose and involved in present second appeal in terms of Para.5 (1) and (2).
In Civil Application No.1799 of 1992 in present Second Appeal, initially Rule was made returnable on 12.11.1992 while granting ex-parte ad-interim stay in terms of Para.5(a). Thereafter, there was no opposition to Rule, therefore, ad-interim relief granted earlier, as referred above, has been made absolute, by order dated 16.11.1992. In view of aforesaid interim stay, confirmed upto final decision of second appeal, judgment and order passed by appellate Court has been stayed and not implemented.
I have considered submissions made by learned advocates appearing for respective parties and also perused judgment and decree passed by both Courts below and also perused R & P received from Courts below. Now, I am examining question of law as involved in present second appeal.
In this second appeal, which was filed on 18/6/1991, following substantial question of law arise as under:
(1)Whether the advertisement given in the daily news papers on 25/6/86, 3/7/86 and 11/7/186 as per Exhs. 25, 26 and 27 for filling up the vacant post of Assistant teachers in the Secondary Section of Baluba Girls High School Porbander run by the defendant appellant institution and the procedure adopted by selection committee and the selection made by the Section committee on 1/10/86 and the appointments given on the strength of such selection are illegal, unconstitutional, discriminatory, arbitrary, improper and null and void?(2)
Whether the decree directing the defendant to invite subjectwise SC and ST candidates first and to take interview of SC and ST candidates first and to make such attempt twice accordingly and if suitable candidates are not available from ST and SC candidates then only the defendant shall invite applications from all the candidates by third attempt and it shall select candidates after following the said procedure, is legal and valid?
In such circumstances as referred above, whether suit is maintainable or not without joining selected and appointed candidates to be party as defendants by plaintiff or not? The relief which has been granted by Appellate Court where entire selection has been set aside which includes to set aside appointments made in favour of such candidates and also directed to re-advertise posts of Teacher subjectwise in respect to Scheduled Caste and Schedule Tribe candidates. The Appellate Court has examined matter as if that entire selection made by Selection Committee is contrary to Rule 55.5 of Grant in Aid Code, where 9 posts are to be kept reserved for Scheduled Tribe and Scheduled caste candidates. The Appellate Court has also examined issue, which has not been raised by plaintiff before Trial Court. According to Appellant, plaintiff had submitted an application for posts of Teacher in Social studies subject, which was only one post and that was not reserved post for Schedule Tribe and Schedule Caste candidates. For selection of one candidate in subject of Social studies, there were called 16 candidates for interview. Out of them, plaintiff was one of candidate and eleven candidates were remained present including plaintiff. The plaintiff was not qualified for appointment of said post and this post was not being reserved as specifically made clear by appellant in Advertisement issued on 25/6/1986, 3/7/1986 and 11/7/1986 in Daily Newspaper "Jansatta". According to appellant, in respect to other subjects, nine posts have been made reserved for Schedule Caste and Schedule Tribe candidates and accordingly selection was made. But for subject of Social studies, that one post is not reserved for Schedule Caste and Schedule Tribe candidates. According to appellant, plaintiff was not eligible for selection at all and even on merits also, she was not qualified and not selected in interview. The plaintiff has not sought any declaration against appointment which has been given to particular candidates. Therefore, plea of appellant raised before Trial Court non-joiner of candidates as defendants has not been accepted only on ground that plaintiff has not sought any declaration against appointment, which have been given to particular candidates. Even though, Appellate Court has set aside all selection and appointments were made by Appellate though there was a challenged by one candidate plaintiff in respect to her non selection in post of Assistant Teacher in subject of Social studies. So, Appellate Court has not examined issue as a whole and considering entire selection in respect to different posts, for which, no application was made by plaintiff even that selection is also set aside by Appellate Court. For post of Assistant Teacher in respect to subject of Social studies, one Manjri P. Chhaya was selected. The Appellate Court has misunderstood question and challenged made by plaintiff because an application made by plaintiff in post of Assistant Teacher in respect to subject of Social studies, where only one post was available and same was not reserved for Schedule Caste and Schedule Tribe candidates. Naturally, general candidates must have to be selected because this post is not reserved for Schedule Caste and Schedule Tribe candidate.
The relevant discussion made by Appellate Court in para 9, 10 and 11, which are quoted as under:
"9. Defendant has produced zerox copy of the mark sheet of the plaintiff at ex.
18. It is mark sheet of third B. A. Exam and the plaintiff has passed B. A. with pass class by securing 316 marks out of 700. Ex. 19 is xerox copy of the statement of marks obtained by the plaintiff in B.Ed. Examination. She has passed said examination with second class by securing 284 marks out of 500. Ex. 20 is caste certificate of the plaintiff. The plaintiff is Mochi by caste. Ex. 21 is interview call letter issued to the plaintiff. Ex. 22, is zerox copy of advertisement for vacant post given by the defendant society on 25/6/86. It shows that said advertisement is for all posts and for all costs. There is no specific mentioned that particular post is for particular reserved to unreserved candidate. However, so far as the post of Librarian is concerned, it is mentioned that the said post is for S. T. candidate. Ex. 23 is also advertisement given in the news paper on 11/7/86. It is also of the same kind. Ex. 24 is N.O.C. given on 17/6/86 by the District Education Officer, Junagadh. There is condition No. 1 that for post of S.T. and S.C. Separate advertisement should be given and separate application should be invited. As I have stated, above no separate advertisement for the post of S.T. and S.C. Candidate has been given and no such separate applications are invited by the defendant at any time, but all three advertisement are combined advertisement for all kind of candidates. Ex. 25,26 and 27 are paper cutting of said three advertisements, for which, I have already discussed above. Ex. 28 is latter written by District Education Officer, Junagadh where instructions have been given regarding interview. There is specific instruction in the said latter also that as per grant in aid code Rule 55.5 the post of S.T. and S. C. candidates should be filled up by making sufficient efforts and only those candidates should be called for interview. Now, in the present case, so separate advertisement for only S.T. and S.C. Candidate has been given and no interview of such S.T. and S.C. Candidates only are held by the defendant society and defendant has called reserved and non reserved candidates at the same time. Ex. 29 to Ex. 30 are letters written to two members of the selection Committee by which they were informed to remain present for interview. Ex. 32 is letter by which principals R.D. Joshi was appointed as member of the Selection Committee on behalf of the society. Ex. 2 is statement filed by the plaintiff at the time of interview which shows that she is B.A. B.Ed. Ex. 33 is statement of interview filled up by Manjari Chhaya P. who is selected for the post of Assistant teacher. She is also B.A. B.Ed. She has passed B.A. B.Ed. in second class with economics and politics in B.A. and history and geography in B.Ed. The plaintiff has experience of primary teacher from 1983 while Manjari P. Chhaya has experience as teacher in Municipal English Medium School from 2/6/1973. It shows that she is having better qualification than the plaintiff. It shows that said Manjari P. Chhaya is from non reserved candidates and the plaintiff has to enter into competition with such experience, candidate. If the competition was between S.C. candidates only, Manjari P. Chhaya would have not been selected and perhaps the plaintiff would have been selected and perhaps the plaintiff would have been selected. Hence, this is inequality and it is against the provisions of the Constitution Ex. 34 is statement of candidates who had remained present and who had remained absent at the time of interview. It is a statement of the teachers who were to be selected for the subject of social studies and date of interview is 1-10-86, and the vacant post is only one and the qualification was asked as B.A. B.Ed. It appears that the name of the plaintiff is at serial No. 10, and name of the plaintiff is at Serial No. 10, and name selected candidate Manjariben Chhaya is at serial no. 15 and in all there were 16 candidates. It shows that the plaintiff is the only S.C. candidate while other candidates are not S.T. Or S.C. candidates. Ex.35 is statement of marks obtained by the candidates. It shows that the plaintiff has secured 33 marks while Manjari Chhaya P. has secured 49 marks. These marks have been given by the member of the selection committee named N.G.Pandya. Marks of the plaintiff are lowest marks. Ex.36 is statement of marks given by the representative of the society the time of interview. It shows that the plaintiff has secured 37 marks while Manjari Chhaya P. has secured 50 marks. Ex.37 is statement of marks given by the third member of the selection committee which shows that the plaintiff has secured 44 marks while Manjari Chhaya P. has secured 44 marks. Ex.38 is statement of marks given by the educationalist member of the selection committee which shows that the plaintiff has secured 39 marks while Manjari Chhaya P. has secured 56 marks. Ex.39 is statement of total number of marks secured by the candidates. It shows that the plaintiff has secured 153 marks while Manjari Chhaya P. has secured 212 marks. It shows that the plaintiff has secured lowest marks. The post of social studies teacher was only one post and therefore, Manjari Chhaya P. is selected for the post Ex.40 is rojkam of selection committee. Ex.41 is appointment order given to Manjari Chhaya P. It shows that she is appointed on permanent post. As there is no specification that whether the said post was for ST SC candidates or for general and therefore, said Manjari Chhaya is not appointed for one year or 2 years till the SC or ST candidates are available to the society. In fact, there must be specific determination that particular post for particular subject are to be filled from ST or SC candidates are not available general candidates can be appointed for one year or 2 years with a condition that they will be relieved on availability of ST SC candidate, defendant society has not given appointment with such condition. Hence, appointment given by the society are also illegal. Ex.42 is report of resumption of duty given by Manjari Chhaya P. It shows that she has already resumed duty from 3.10.86. Ex.43 is NOC given by the Chief Officer, Porbandar Municipality which shows that the Municipality has no objection if Manjari Chhaya is willing to joint any other institution. Ex.44 is Zerox copy of the application given by Menna P. Dharnidhar. It shows that she had given application for language teacher. Ex.45 is the statement to be filled at the time of interview and it is filled up by Kodiyatar Santhok Hiralal. She is B.A.B.Ed. with Gujarati and Hindi. Ex.46 is statement of Wadhar Savitri Naranbhai she is B.A.B.Ed. with second class. Ex.47 is statement filled up by Chavda Daksha Girdharlal. She is also B.A. B.Ed. With Gujarati and Hindi subjects. Ex.48 is statement filled up by Dharnidhar Meena Prabhudas. She has passed B.A. B.Ed. With first class with Gujarati and Hindi subjects and she has passed B.A. with compulsory English also. She has also passed Hindi Dusari. Ex.49 is statement of the candidates who had remained absent at the time of interview. It is for language teachers. Ex.51 is statement of marks given by one member of the selection committee for the four posts of language. It shows that names of ST SC candidates are first. Ex.52 is statement of marks given by third member to the candidates of language. One candidate is ST and 2 candidates are SC. The other candidates are of unreserved caste. Ex.53 is statement of marks given by the fourth member of the committee. Ex.54 is the statement of total marks secured by the candidates. It shows that in all 6 candidates are selected out of which 2 candidates are selected from ST candidates. Ex.55 is rojkam of the selection committee for the candidates of language. Ex.56 is appointment order given to Meenaben P. Dharnidhar. She is also appointed on permanent post. Ex.57 is report of resumption of duties given by Meenaben P. Dharnidhar which shows that she has resumed her duties on 3.10.86.
10. In view of the above evidence, it appears that there was no norms before the members of the selection committee that which post is vacant for ST or SC but arbitrarily the members of the selection committee have decided that SC and ST candidates should be selected from the candidates of language teacher and they have selected 2 SC candidates from language candidates. As the members of the selection committee have selected 2 SC candidates from language candidates the plaintiff could not get chance to be selected as she was forced to complete with general candidates. Hence, principle of equality is infringed.
11. It appears from the judgment and decree passed by the learned trial Judge that he has not considered all these aspects. He has not considered the purpose of enacting the provisions of ST and SC candidates. He has not gone through the advertisement and ex.24 document. He has also not considered that advertisement for SC and ST candidates should be given separately and there must be competition between only SC and ST candidates for the post of ST and SC candidates. Hence, the judgment and decree passed by the learned trial Judge is erroneous and contrary to the facts and law. Hence, the plaintiff has been able to prove that the judgment and decree passed by the learned trial Judge is erroneous and contrary to the facts and law. Hence, I hold point No.1 in affirmative. "
The aforesaid reasoning given by Appellate Court apparently found beyond prayer made in plaint by plaintiff. The Appellate Court has not examined issue whether one post for Social studies is meant for reserved candidate only or not? If post is meant for all, then naturally competition is bound to be occurred between general candidates and reserved candidates, that can not consider to be inequality as understood by Appellate Court. The reasoning given by Appellate Court in respect to other subjects and posts for Assistant Teacher is beyond scope of plaint. It is necessary to note that plaintiff has not raised any objection at the time of filing an application for post of Assistant Teacher in respect to subject to Social studies that advertisement is contrary to provisions of Constitution and policy of Reservation. The plaintiff had appeared in interview without dimar and raising objection participated in selection process. Thereafter, she was declared failed and her non-selection has been challenged. Therefore, such suit is not maintainable in law because after active participation without objection raised by plaintiff against advertisement, subsequent challenge can not be entertained by Court. This aspect is totally ignored by Appellate Court.
Recently, view taken by Division Bench of Karnataka High Court in case of Krishnamurthy V. Registrar General, High Court of Karnataka reported in 2010 Lab IC 3335. The relevant para 8 and 13 are quoted as under:
"8. At the out set, we are of the view that the petition filed is not maintainable as the petitioner has without any demur appeared for the test under the very same rules / Norms and Guidelines. Being unsuccessful in getting chosen to file this writ petition. The impugned Rules are framed as back as in the year 2005. They are published in the Gazette on 9.9.2005. The impugned norms/guidelines for promotion to the post of District Judge are notified as per the Circular dated 12.12.2008. The examination (written test) for filling up the vacancies by conducting limited competitive examination for the eligible judicial officers who had put in 5 years of service in the cadre of Civil Judges (Sr.Dn.) was conducted on 10.05.2009. Appointment of 45 + 3 ad hoc District Judges / Civil Judges (Sr.Dn.) based on the test conducted as per Rules and Norms was made on 27.06.2009 and 29.7.2009. This writ petition is filed on 8.3.2010. It is thus clear that the petitioner has chosen to approach this Court challenging the norms having participated in the recruitment process under the same rules and norms and after failing to get qualified for recruitment. It is a well established principle by a catena of decisions of the Apex Court that in such circumstances, petitions at the instance of such persons may not be entertained. Reference can be made to the judgment in the case of K.A.Nagamani v. Indian Airlines (2009 (5) SCC 515) : (AIR 2009 SC 3240). The Apex Court, in this case, has held that having participated in the selection process without any demur, the unsuccessful candidate cannot be later permitted to question the process. It is not the case of the petitioner that any of his fundamental rights under Articles 14 and 16 of the Constitution are violated. Therefore, on this ground alone, this writ petition deserves to be dismissed.
13. Yet another contention raised by the petitioner regarding the failure to notify the number of vacancies available for different channels of recruitment cannot be permitted to be raised at this belated stage, particularly because the petitioner has participated in the recruitment process without raising any such objection. We do not find it appropriate to examine this contention at this stage at the instance of the petitioner, particularly when the entire process of selection are completed and the appointment orders are issued as back as in the month of June and July 2009."
The selection made by selection committee for post of teachers on 1.10.1986 and 3.10.1986 and that entire selection has not been challenged by plaintiff even though same has examined by Appellate Court below without joining selected candidates as a party to proceedings before trial Court and Appellate Court. Therefore, in absence of selected candidates, appellate Court has committed gross error in law while passing judgment and order in favour of plaintiff. The appellate Court has set aside selection of the candidates, who have received appointment orders without giving them reasonable opportunity of hearing and without joining such candidates, as per parties to proceedings who have been appointed by appellant. Therefore, apparently, appellate Court's order is contrary to law. Therefore, question arise as to whether selection of all candidates can be challenged by one person without joining selected candidates as a party to proceedings. This aspect has been examined by Apex Court and it is well settled principles laid down that in absence of selected candidates and those who have been appointed pursuant to that, said selection cannot be challenged by party in absence of such candidates. Therefore also, apparently, order passed by appellate Court is required to be quashed and set aside.
(See:H. H. Parmar Vs. Collector, Rajkot & Anr; 1979 (2) GLR 97., in case of Sadananda Halo and Others Vs. Momtaz Ali Sheikh and Ors; 2008 (4) SCC 619., in case of Biswa Ranjan Sahoo & Ors Vs. Sushanta Kumar Dinda & Ors; JT 1996 (6) S.C. 515., in case of R.C. Gajjar & Anr Vs. State of Gujarat and Ors; 1996 (1) GLH 276) Considering the fact that selection of Assistant Teachers held on 1.10.1986 and 3.10.1986. In pursuance to aforesaid selection, appointment orders were issued by appellant in favour of said selected candidates and said persons are working with appellant. The judgment delivered by appellate Court on 25.1.1991 setting aside selection of candidates dated 1.10.1986 and 3.10.1986 after a period of five years. Thereafter, immediately this Court has granted ad-interim relief on 12.10.1992, that interim relief confirmed by order dated 16.11.1992. Therefore, naturally, by passage of this much time from, 1986 to 2010, about more than 24 years have passed, therefore, otherwise also according to my opinion, judgment and order passed by appellate Court in the year 1991 is practically cannot be implemented because by passage of time, the age of respondent - Bharatiben A. Chavda and other candidates, those who have been appointed and working, it is not possible even practicably to enforce judgment and order passed by appellate Court. Even by passage of time, this respondent now is not able to get any fruit from judgment and order passed by appellate Court. Therefore, considering entire matter as well as facts and circumstances and also keeping in mind passage of time about 24 years have passed, it is very difficult to sustain such judgment and order passed by appellate Court which apparently found contrary to law because while setting aside selection list without giving reasonable opportunity of hearing to such selected candidates and without joining them in the proceedings and after participating in the selection process and failing which in selection, challenge made by plaintiff apparently is contrary to law. Therefore, trial Court has rightly dismissed suit but, appellate Court has committed gross error in law in allowing appeal of plaintiff.
It is necessary to note that in present facts of case, Appellate Court has set aside selection and advertisement because of Appellant has adopted malpractice as well as malafied and arbitrary, but Appellate Court has set aside it because advertisement issued by Appellate is violated Rule 55.5 Grant in Aid Code and also policy of Reservation. The plaintiff has filed suit to challenge her non-selection and also challenge advertisement issued by Appellate in respect to post of Assistant Teacher in subject of Social studies only. The plaintiff can not challenge selection and advertisement issued by Appellate in respect to other subject, in which plaintiff had not submitted an application for appointment. The appellate Court has granted larger relief than claim or prayer made by plaintiff in her suit. The cause of action arise in case of plaintiff of her non-selection and advertisement issued by appellant in respect to post in which an application was made by plaintiff. When selection is not vitiated due to malafide and adopted malpractice or corruption by appellant that does not mean selection has been set aside due to aforesaid reason by Appellate Court. Therefore, in such circumstances, candidates who was selected and appointed is necessary parties and before passing any adverse order by Appellate Court against such candidates who has been selected and appointed, reasonable opportunity of hearing must have to be given which has not been given as selected and appointed candidate, who was not join as party defendants in Civil Suit filed by plaintiff. Therefore, selected and appointed candidates was necessary party and before passing adverse order, principle of natural justice must have to be observed by Appellate Court which has not been observed. Therefore, judgment and decree passed by Appellate Court is also required to be set aside.
Therefore, according to my opinion, present Second Appeal is required to be allowed and is hereby allowed. The judgment and order passed by appellate Court in Regular Civil Appeal No.24 of 1989 at Exh.13 dated 25.1.1991 is hereby quashed and set aside. No order as to cost. Interim relief granted by this Court is hereby stand vacated.
(H.K.RATHOD, J) asma Top