Gujarat High Court
Jayeshkumar Parsotambhai Vaghela vs State Of Gujarat on 22 July, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/12564/2017 ORDER DATED: 22/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12564 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14902 of 2017
================================================================
ARVINDBHAI RAMJIBHAI MAKWANA
Versus
STATE OF GUJARAT & 1 other(s)
================================================================
Appearance:
MR SUDHANSHU JHA FOR PRABHA M S J PRASAD(8453) for the
Petitioner(s) No. 1
MS NISHA THAKORE for the Respondent(s) No. 1,2
MR AR THACKER(888) for the Respondent(s) No. 3
SHIVANG A THACKER(7424) for the Respondent(s) No. 3 (SCA/12564/2017)
MR A.D.OZA for the Respondent No.3 (SCA/14902/2017)
================================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/07/2021
COMMON ORAL ORDER
Heard learned advocate Mr.Sudhanshu Jha for learned advocate Mr.Prabha M S J Prasad for the petitioner, learned Assistant Government Pleader Ms.Nisha Thakore for the respondents-State, learned advocate Mr.Shivang Thacker and learned advocate Mr.A.D.Oza for the respondent No.3 through video conference.
1. Learned advocate Mr.Jha has tendered a draft amendment. The same is allowed in terms of the draft. To be carried out forthwith.
2. Both the petitions arise out of the common issue and therefore, the same are heard analogously and are Page 1 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 disposed of by this common order. Special Civil Application No.12564 of 2017 is treated as lead case.
3. By this petition under Articles 226 and 227 of Constitution of India, the petitioner has prayed for the following reliefs :
"A. This Hon'ble Court be pleased to admit and allow this petition;
B. This Hon'ble:Court be pleased to issue a wit of mandamus or any other writ, order or direction in form of writ of mandamus directing and/or commanding the respondents to consider the application of the petitioner in the Selection list for the post of 'Shikshan Sahayak' in Secondary School, and further be pleased to direct the respondents to appoint the petitioner as per his merit and the selection list;
C. This Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction in the form of writ of mandamus directing the respondents to stay the recruitment process for the secoridary teachers qua the subjects of petitioner and further be pleased to direct the respondents to issue another call letter for appointment;
D. This Hon'ble Court be pleased to hold and declare that the policy of the respondents in not considering the Bachelor of Rural Studies Degree as equivalent to the Bachelor of Arts as unjust, arbitrary as well as illegal;
E. This Hon'ble Court be pleased be pleased to stay the selection merit list wherein candidates other than the petitioner are likely to be considered by ignoring the rights and merit of the petitioner;
F.Prayer of interim relief:
This Hon'ble Court be pleased to, be pleased to grant interim relief by restraining the respondents from issuing final appointment order for the post of Shikshan Sahayak in the Secondary Govt. Schools without considering the case of the petitioner pending admission, hearing and final disposal of this petition;
G. This Hon'ble Court be pleased be pleased to pass such j nd other and further relief as'may be deemed just a proper in the facts and circumstances of the case."
4.1 The brief facts of the case are that the petitioner is having qualification of Graduation Degree of Bachelor of Rural Studies (Lok Shikshan). The petitioner has also passed Teachers' Aptitude Test (TAT Examination) in the year 2014.
Page 2 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021C/SCA/12564/2017 ORDER DATED: 22/07/2021 4.2. The petitioner applied for the post of Shikshan Sahayak in Social Science subject pursuant to the advertisement for appointment of Shikshan Sahayak in Secondary and Higher Secondary Government School in the month of January, 2017.
4.3. The petitioner was called for interview by letter dated 31st March, 2017. However, the
petitioner was not selected for the post of Assistant Teacher of Social Science. The petitioner therefore has filed this petition with the aforesaid prayers.
5.1. Learned advocate Mr.Sudhanshu Jha appearing for the petitioner submitted that the Degree of Bachelor of Rural Science (for short 'BRS') held by the petitioner is equivalent to the Degree of Bachelor of Arts, Science or Commerce as stated in the advertisement issued by the respondent authority and as the petitioner is having the equivalent degree, the respondents ought to have selected the petitioner.
5.2. In support of his submission, learned advocate Mr.Jha relied upon the Certificate issued by the Saurashtra University dated June 8, 2020 which has conferred degree of BRS (Lok Shikshan) to the petitioner wherein, it is certified that degree of BRS is a validly recognized course of the University. Learned advocate Mr.Jha also referred to and relied upon the letter dated 8.10.2012 issued by the Page 3 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 Saurashtra University addressed to the Director of Primary Education to point out that the Saurashtra University has stated in the said letter that students who have passed T.Y.BRS Examination in the subject of "Extension and Social Reconstruction" are equivalent to the students who have graduated in Social Science.
5.3. Learned advocate Mr.Jha relied upon the decision of this Court in case of similarly situated person i.e. Pareeliya Bharatbhai Dhudabhai Vs. State of Gujarat rendered in Special Civil Application No.5750 of 2017 to submit that the said petition was allowed by this Court relying upon the decision in case of Kantaben Zaverbhai Desai Vs. State of Gujarat dated 2nd February, 2017 in Special Civil Application No.1861 of 2017. It was also pointed out that this Court also referred to the communication dated 29th December, 2017 addressed to the District Education Officer wherein also it is stated that the Degree of BRS is accepted as recognized Graduate Degree. It was therefore submitted that the petitioner ought to have been selected as the petitioner is having the BRS Degree which is equivalent to the Graduate Degree for the post of Shikshan Sahayak in Secondary School.
5.4. Learned advocate Mr.Jha also referred to and relied upon the decision of the Division Bench in case of State of Gujarat Vs. Shah Kalpesh Kanubhai in Letters Patent Appeal No.138 of 2021 whereby the Appeal filed by the State Government was dismissed by Page 4 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 the Division Bench confirming the judgment of the learned Single Judge wherein it was held that the Mark-sheet of B.Sc. Degree indicating that the petitioner had undergone the subject of Maths in the said case was available and there is no other material was produced by the authority to indicate that there was any specification in the advertisement with regard to the Maths being the main subject for the purpose of considering the case of the petitioner in the said case more particularly, having regard to the Regulation 20 of Secondary Education Regulations, 1974.
5.5. Learned advocate Mr.Jha also referred to the Government Resolution dated 11.01.2021 to point out that the purpose of subject of Social Science, Degree with BRS is sufficient for a candidate to be appointed as Assistant Teacher. According to learned advocate Mr.Jha, the BRS in Lok Shikshan is equivalent to BRS in Social Science and therefore the petitioner is required to be considered by the respondent authority for appointment of Assistant Teacher in Social Science.
6.1. On the other hand, learned Assistant Government Pleader Ms.Thakore submitted that though the petitioner is BRS which is equivalent to the Graduate Degree, the petitioner is not having the BRS Degree in the Social Science and therefore, the case of the petitioner is rightly not considered for being selected as Assistant Teacher in Social Science for Page 5 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 the post of Sikshan Sahayak in Secondary School.
6.2. Learned Assistant Government Pleader Ms.Thakore submitted that the post of Sikshan Sahayak in Government Secondary and Higher Secondary Schools is under taken in accordance with the rules which are known as Government Secondary and Higher Secondary Schools (Procedure for selection) Rules, 2012 (for short 'the Rules, 2012'). Reference was made to the Rule Nos.7 and 11 in support of her submission to point out that the Rule 7 prescribes for eligibility for appointment whereas, Rule 11 stipulates how to select list is to be prepared after following the procedure.
6.3. Learned Assistant Government Pleader also referred to the Appendix-I as per Rule No.11(3) of Rules, 2012 which provides for the qualification for post of Secondary Teacher.
6.4. Reference was also made by the learned Assistant Government Pleader Ms.Thakore to the condition in the advertisement for recruitment of Sikshan Sahayak that TAT Examination in specific subject is compulsory. It was pointed out that the respondent-authority published the advertisement in the month of January, 2017 and the requisite qualification for the post of Social Science would be B.A. with History, Geography, Political Science, Economics, Sociology, Social Science plus B.Ed or equivalent degree. It was submitted that the main subject in which the Page 6 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 petitioner has done Bachelor and Master Degrees is not in specific subject of Social Science and the BRS (Lok Shikshan) cannot be considered similar to main subject as Social Science.
6.5. Learned Assistant Government Pleader Ms.Thakore also relied upon the communication dated 19.02.2018 of the Gujarat Secondary and Higher Secondary Education Board wherein it is opined that the petitioner did not possess the qualification in the concerned subject as such opinion was sought by the communication dated 08.02.2018 by the respondent No.2 Office of the Director of Commissioner of Schools. It was therefore submitted that as the petitioner has studied and specialized in Lok Shikshan at Graduate level, the petitioner is not selected for the post of Shikshan Sahayak for subject of Social Science as he would not be qualified for teaching Social Science to the Secondary School students.
6.6. Learned Assistant Government Pleader also submitted that the recruitment process of 2017 is already over, advertisements for recruitment process of 2019 and 2020 were also issued and the said process is also over.
6.7. Reliance was placed on the decision of this Court (Coram: Hon'ble Mr.Justice J.B.Pardiwala, J.) in Special Civil Application No.9773 of 2015 and other allied matters in case of Ravikant Prabhunath Sharma and others Vs. State of Gujarat and others Page 7 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 rendered on 3rd May, 2016 to submit that the respondent authorities have ample power and authority to prescribe condition for admission and there is nothing on record to show that the prescribed qualification for the subject of Social Science includes the subjects which are studied by the petitioner and therefore, the petitioner is rightly not selected for the post of Sikshan Sahayak for the subject of Social Science.
7. Learned advocate Mr.Thacker appearing for the respondent No.3-University submitted that the University has clarified that the Degree of BRS is equivalent to Graduate Degree.
8. Heard learned advocates appearing for the respective parties and having gone through the material on record, it appears that though the petitioner is having degree of BRS which is equivalent to the Graduate Degree, the petitioner is not having the BRS Degree in the concerned subject i.e. Social Science for which he applied for the post of Shikshan Sahayak pursuant to the advertisement issued by the respondent-authorities.
9. The petitioner is having BRS in Lok Shikshan and on perusal of the Mark-Sheets of all the three years of the Graduation course undergone by the petitioner, there is no subject of Social Science or Social Studies which has been studied by the petitioner during the Graduation. The subject of Social Science Page 8 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 even as per the Government Resolution dated 11.01.2021 includes subjects of History, Geography, Civics, Economics, Political Science and Social Science at Graduate level which may be studied in B.A., Social Studies Visharad, BRS or B.Sc. These subjects are specified in Annexure-3 at Serial No.10 in the Government Resolution dated 11.01.2021. Therefore, it is apparent that the petitioner has not studied any subject with relation to the subject of Social Science in BRS Course. The subjects which are studied by the petitioner are Gujarati, Principles of Economics, Principles of Gandhian, Crop-reproduction, Horticulture, Animal Husbandry, Rural Extension, Health Science, Social Psychology, Hindi, Cultural History of India, Indian Philosophy. These subjects are not equivalent to the subjects which are prescribed for the purpose of considering subjects equivalent to the Degree in Social Science.
10. In view of such peculiar facts of the case as the petitioner is not having studied in the concerned subject at Graduate level, the respondent-authorities have rightly not considered the case of the petitioner for the post of Shikshan Sahayak in the subject of Social Science.
11. It would be germane to refer to the relevant observations made by this Court in the case of Ravikant Prabhunath Sharma (Supra) which reads as under :
"63. From the aforesaid decision, it is clear that the State has ample power and Page 9 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 authority to prescribe conditions for admission to the Under Graduate and Post Graduate medical course. In the same manner, the State has ample power and authority to prescribe eligibility for the purpose of appointments on the posts of fhe Adhyapak Sahayaks. The same, in no way, impeaches upon the power of the Central Government conferred under Entry 66 in list I (Union List) of the 7 th Schedule of the Constitution. The said entry deals merely with the coordination and determination of standards Institutions for higher education or research and scientific and technical institution. The same does not deal with laying down conditions for anointment of candidates on the posts of the Adhyapak Sahayaks. This, the State Government, can legitimately provide for, in exercise of power conferred by Article
162. The same would be within its competence under Entry 25 in List III (concurrent List) of the 7th Schedule. The Regulations framed by the University Grants Commission provide for laying down of standards of education. They do not provide for conditions for appointments on the posts, like Professor, Lecturer, Adhyapak Sahayak, etc. The Government owes a duty to see that the quality of higher education is maintained. It has, therefore, every authority to prescribe conditions of eligibility for appointments on the posts in question.
64. The object behind insisting that the subject should be same at the Under Graduate and Post Graduate level has some nexus with the object sought to be achieved. It has a rational nexus to the object sought to be achieved, and hence, there is no violation of the principles of equality enunciated under Article 14 of the Constitution. At the cost of repetition, once the experts in the field say so, then the Court should be loath in disturbing such opinion unless the Court finds the opinion to be absolutely perverse or unreasonable.
65. At the cost of repetition, I state that the standards of education as prescribed by the University Grants Commission has not been compromised in any manner. It is not the case on hand wherein a legislation made by the State Government on the qualifications of the Adhyapak sahayaks is in conflict with the prescription regarding such qualification prescribed by the University Grants Commission, and if, there is any conflict, then definately the regulations of the University Grants Commissions would prevail. The Article 25 of the Concurrent List and the Entry 66 of the Union List has nothing to do so far as the case in hand concerned.
66. In the case in hand, there is nothing on record to show any mala fide which could be attributed against the members of the experts committee or the office of the higher education. In this view of the matter and in the absence of any mala fide and in view of the discussion made hereinabove, the recommendations made by the experts committee and acted upon by the State Government cannot be said to be illegal, invalid and without jurisdiction.
67. In Ganapath Singh Gangaram Singh Rajput v. Gulbarga University [2014 (3) SCC 767], the Supreme Court observed in para 17 as under:
"17.....when the view taken by the expert body is one of the possible views, the same is fit to be accepted. Further, the yardstick would be different when it concerns eligibility conditions pertaining to 'qualification' and 'experience'. In case of experience it is best known to the expert body in the field in regard to the actual work done and, therefore, its opinion is of higher degree deserving acceptance ordinarily. Hence, in our opinion, this judgment did not fetter the power of the High Court."Page 10 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021
C/SCA/12564/2017 ORDER DATED: 22/07/2021
68. In Tariq Islam vs. Aligarh Muslim University and Ors. (2001) 8 SCC 546, following its earlier decision in the Constitution Bench of the Supreme Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, the Supreme Court observed that "normally it is wise and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally are".
69. A similar view has been expressed in several decisions of the Supreme Court e.g. Dr. Uma Kant vs. Dr. Bhika Lal Jain JT 1991 (4) SC 75 (para 9), Bhushan Uttam Khare vs. The Dean, B.J. Medical College and Ors. JT 1992 (1) SC 583 (para 8), Rajender Prasad Mathur vs. Karnataka University and Anr. AIR 1986 SC 1448 (para 7) : 1986 Supp SCC 740 (para 7); P.M. Bhargava and Ors. vs. U.G.C. and Anr., 2004 (6) SCC 661 (para 13); Chairman, J.andK. State Board of Education vs. Feyaz Ahmed Malik and Ors (2000) 3 SCC 59; Varanaseya Sanskrit Vishwavidyalaya and Anr. Vs. Dr. Raj kishore Tripathi and Anr. (1977) 1 SCC 279 (para 12); Medical Council of India vs. Sarang and Ors. (2001) 8 SCC 427 (para 6); Bhagwan Singh and Anr. vs. State of Punjab and Ors. (1999) 9 SCC 573 (para 6).
70. On a clarification sought from the University Grants Commission as regards the meaning of the term " relevant subject", it was clarified that the relevance of subject or interdisciplinary nature of subject should be decided by the appointing authority with the help of subject experts as the University Grants Commission had not prescribed any norms on the subject matter. Thus, this is the view of the matter of the University Grants Commission, which is an expert in academic matters and the Court should not set in appeal over its opinion and take a contrary view.
71. In Rajput Dalal v. Chaudhary Dala University [2008 (9) SCC 284], the Supreme Court observed thus in paras 30 to 33:
"30. Learned counsel for the appellant has also pointed out that a large number of universities in this country have a single department for both the subjects of Political Science and Public Administration, and this also demonstrates that the subjects Political Science and Public Administration are interchangeable and interrelated. Political Science is the mother subject and Public Administration is the offshoot of the same.
31. We agree with Mr. Patwalia, learned counsel, that it is not appropriate for this Court to sit in appeal over the opinion of the experts who are of the view that Political Science and Public Administration are interrelated and interchangeable subjects, and hence a candidate who possesses Master's degree in Public Administration is eligible for the post of Lecturer in Political Science and viceversa. We are told that a large number of persons having qualifications in the interchangeable/interrelated subjects have been appointed Readers/Professors/Lecturers and are continuing as such in various colleges and Universities in the State.
32. In para 5 of the counteraffidavit filed by the respondentUniversity before the High Court, it has been specifically stated therein that Public Administration is one of the branches of Political Science, and the appellant was selected by a Selection Committee consisting of eminent experts after evaluating his qualifications and work.
33. As regards the decision in Dr. Bhanu Prasad Panda vs. Chancellor, Page 11 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021 C/SCA/12564/2017 ORDER DATED: 22/07/2021 Sambalpur University (supra), we have carefully perused the same. In paragraph 5 of the said judgment it has been observed :
"Though the Department concerned for which the appointment is to be made is that of 'Political Science and Public Administration', the appointment with which we are concerned, is of Lecturer in Political Science and not Public Administration and subjectmatter-wise they are different and not one and the same. It is not in controversy that the posts of Lecturers in Public Administration and in Political Science are distinct and separate and on selection the appellant could not have been appointed as Lecturer in Public Administration."
12. In view of the above dictum of law, in the facts of the case when the respondent authorities have held that degree of BRS in Lokshikshan is not equivalent to the degree in BRS with Social Science and Social Studies as concerned subjects are not studied by the petitioners, the decisions of the respondent authorities cannot be said to be contrary to the law and hence no interference can be made therein by exercising extra ordinary jurisdiction under Article 226 of the Constitution of India.
13. For the foregoing reasons, the petitions fail and are accordingly dismissed. Notice is discharged. No order as to cost.
(BHARGAV D. KARIA, J) PALAK Page 12 of 12 Downloaded on : Fri Sep 03 22:16:24 IST 2021