Gujarat High Court
Mahasukh Nandlalbhai Dave & 2 vs State Of Gujarat & 2 on 6 April, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/1746/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1746 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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MAHASUKH NANDLALBHAI DAVE & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1 3
MR DM DEVNANI, AGP for the Respondent(s) No. 1 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/04/2017
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] This Special Civil Application is filed seeking prayers which read as under : Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT "(A) Declare and hold that Rule 4(b)(3)(ii) of the Head Teacher, ClassIII, in the Directorate of Primary Education District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016, AnnexureA to this petition, so far as it excludes the experience of working as a Block Resource Persons at the Block Resource Center, is absolutely illegal, arbitrary, discriminatory, irrational and unconstitutional, and (B) Further be pleased to direct the respondent authorities to include the experience of working as Block Resource Person at Block Resource Center in Rule 4(b)(3)(ii) of above the referred Rules, by appropriately modifying or amending the said Recruitment Rules, or in the alternative (C) Direct the respondent authority to consider the experience of the petitioners of working on the post of Block Resource Person at Block Resource Center for recruitment on the post of Head Teacher Class - III, and (D) Pending admission and final disposal of this petition the Honourable Court may be pleased to stay the recruitment process for appointment on the post of Head Teacher ClassIII pursuant to the advertisement dated 22.1.2016, AnnexureE to this petition, and (E) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to consider the case of petitioners for direct recruitment on the post of Head Teacher, ClassIII, and (F) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to accept the application forms of the petitioners physically for appointment on the post of Head Teacher, ClassIII and further be pleased to direct the respondent authorities to permit the petitioners of participate in the recruitment process for appointment on the said post, and (G) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to keep vacant three posts of Head Teacher, ClassIII, pursuant to the advertisement dated 22.1.2017, AnnexureE to this petition, and Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT (H) Award the cost of this petition, and (I) Grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case."
[2] 1st respondent - State has framed Recruitment Rules regulating to the post of Head Teachers Class III in the subordinate services of the Directorate of Primary Education and the District Primary Education Committee or Municipal Primary Education Committees in exercise of powers conferred by Subsection (3) of Section 23 of the Gujarat Primary Education Act, 1947, vide notification dated 22.09.2016.
[3] Eligibility criteria for direct recruitment to the post of Head Teacher Class - III is prescribed under Rule 4 of the Directorate of Primary Education, District Primary Education Committees and Municipal Primary Education Committee Recruitment Rules, 2016 (hereafter referred as "the Rules, 2016"). Apart from eligibility criteria notified, experience is one of the criterion mentioned in the Rule 4(b)3(ii) of the Rules, 2016. Said Rule reads as under : "(ii) Have about five years' separate or combined experience of teaching as a Teacher or Vidhya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Government or GrantinAid or NonGrantinAid Private Lower Primary School or Upper Primary School or Secondary Education School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training (DIET)".
[4] Experience notified in the said Rule is mainly subject matter of challenge in this petition.
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[5] The petitioners are presently working as Block Resource
Persons at the Block Resource Center (BRC) established under the Sarva Shiksha Abhiyan, a scheme of Government of India. Said scheme of Government of India is prepared mainly for universal elementary education in the country.
[6] It is the case of the petitioners that they had initially joined the service as Assistant Teachers in private schools. Thereafter, they were appointed on the post of Block Resource Persons in Block Resource Center and since then they continued to work on the said post on contractual basis for a period of 11 months at a stretch. It is the case of the petitioners that appointment of Block Resource Persons is made subject wise and for such appointment, one of the essential requirements is passing out TET / TET (II) Examination. It is stated in the petition that though they were mainly engaged in academic activities related to primary education, their experience as Block Resource Persons is excluded in the impugned Rules and same is arbitrary and illegal.
[7] One of the functions of the Block Resource Persons working at Block Resource Center is to deliver training to reorient pedagogic practices of Primary School teachers to make them more sensitive towards children and to make learning more enjoyable and interesting.
[8] 2nd respondent has issued advertisement for recruitment to the post of Head Teacher Class - III and Vidhya Sahayaks in the schools administered by the respondent authorities. By the aforesaid notification / advertisement, 1000 posts are sought to be filledin, in the category of Head Teacher ClassIII. Online applications are invited from 25.01.2017 to 03.02.2017. It is the say of the petitioners that as they are eligible and qualified, they applied to the post in question by way of on line application form, but they were unable to process the online Page 4 of 12 HC-NIC Page 4 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT applications, for the reason that their experience of Block Resource Person was not considered as valid experience, for filling up the post of Head Teacher.
[9] It is the case of the petitioners that functions and duties which are discharged by the petitioners are in furtherance of improving standard of teaching at the primary level under the Sarva Shiksha Abhiyan scheme. When discharge of functions and duties by the petitioners are directly related with the improvement of education at primary level, exclusion of the petitioners' experience as Block Resource Persons and similarly situated candidates in the recruitment rules is absolutely arbitrary and illegal.
[10] On behalf of 2nd respondent, affidavit in reply is filed. In the affidavit in reply, while denying various allegations made by the petitioners, the case of 2nd respondent is as under.
[10.1] Impugned Rules are notified in exercise of powers conferred by section 23 of the Gujarat Primary Education Act, 1947. The petitioners have essentially, challenged Rule 4(b)(3)(ii) of the Rules, 2016 on the ground that the services rendered by the Block Resource Persons is not considered to be valid experience for recruitment to the post of Head Teachers.
[10.2] Allegations of the petitioners that Block Resource Persons are engaged in activity pertaining to imparting education to the students of primary schools, is denied. Block Resource Centers are set up for academic activity related to primary education, however, Block Resource Persons are not involved in any activity of teaching in the primary schools and therefore, the petitioners are not entitled for any relief as prayed for.
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[10.3] The appointment of the petitioners is made under the Sarva
Shiksha Abhiyan Mission by the Government of India. Under the said scheme, the petitioners are appointed purely on contract basis for 11 months, on fixed pay, as Block Resource Persons. Duties and nature of work of Block Resource Persons is essentially for guidance on the subject and to carry out review periodically. For the said purpose, they are supposed to undergo training and to get feedback and follow up from the cluster to the block. Experience required under the Rules is essentially pertaining to teaching experience. As the appointments are to the post of Head Teachers and Rules are in conformity with the provisions of the Act, the candidates who have no experience of teaching are rightly not considered in the eligibility criteria notified in the Rules for recruitment to the post of Head Teachers. It is stated that essentially prescribed qualification is prerogative of the employer and therefore, challenge to the Rules is misconceived and unsustainable.
[10.4] With reference to the allegation of the petitioners that the petitioners have passed Head Teach Aptitude Test, it is stated that it has no consequence for the experience as provided under the Rules. Further it is stated that such test is conducted by Gujarat State Examination Board and same cannot confer any experience on the petitioners.
[11] On behalf of the petitioners, rejoinder is filed. In the rejoinder, it is stated that after filing of the petition, 2nd respondent has placed on record communication dated 01.02.2017 issued by it, wherein, it is specifically stated that experience of working in Block Resource Centers (BRC) / Cluster Resources Centers (CRC) will be considered as valid experience. To the same effect, 2nd respondent has issued proceedings. However, such instructions are also placed on website of the respondent authorities, wherein it is stated that Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT experience of working as BRCC and CRCC will be considered as valid experience.
[11.1] It is alleged in the rejoinder that only after filing of the petition, experience of the Coordinators are considered as valid experience, that itself indicates that the respondents are not considering claim of various stakeholders, whether they satisfy requisite criteria or not to treat the same as valid experience. It is stated that though Block Resource Center Coordinator and Cluster Resource Center Coordinators are included for the purpose of reckoning experience, but in discriminatory manner, experience of the persons like the petitioners who are working as Block Resource Persons is not included which is arbitrary and illegal.
[11.2] In the rejoinder, it is stated that earlier recruitment rules were framed in the year 2012, in which teaching experience of B.Ed. and M.Ed. was not considered as valid experience for the recruitment on the post of Head Teacher Class - III. In such circumstances, affected persons approached this Court by filing Special Civil Application. The said Special Civil Application was rejected by the learned Single Judge. Against the said order, Letters Patent Appeal was preferred and same was confirmed by the Division Bench of this Court in Letters Patent Appeal No.848 of 2012. Thereafter, the State Government on its own amended the Recruitment Rules vide notification dated 7.8.2013 whereby teaching experience in B.Ed. and M.Ed. was considered to be valid experience. Further in the year 2016, Recruitment Rules once again came to be amended where teaching experience of B.Ed. and M.Ed. is not considered as valid experience. Therefore, it is clear that Government itself is not sure as to which experience is to be included and which experience is not to be included in the eligibility criteria while Page 7 of 12 HC-NIC Page 7 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT framing Rules for the appointment to the post of Head Teacher Class - III. As such exclusion of experience secured by the petitioners while working as Block Resource Persons in the impugned Rule is illegal and arbitrary.
[12] Heard learned advocate Mr.Vaibhav Vyas for the petitioners and learned Assistant Government Pleader Mr.Devnani for the respondents.
[13] With reference to pleading on record, it is submitted by learned advocate Mr.Vyas for the petitioners that there is no reason or justification for excluding the experience of the petitioners as Block Resource Persons as valid experience in the impugned Rule for the purpose of recruitment to the post of Head Teachers Class - III. It is submitted that perusal of the impugned Rule makes it clear that all other persons who are working on teaching side are included and the petitioners who are working under Sarva Shikshan Abhiyan and directly involved in the academic activities related to primary education, their experience is excluded in the impugned rule. One of the functions of Block Resource Persons working at Block Resource Centers is to deliver training to reorient method and practice of teaching to the school teachers to make them more sensitive towards children and to make learning more enjoyable and interesting. The functions and duties which are discharged by the petitioners are in furtherance of improving standard of teaching at the primary level. Therefore, there is no reason to exclude their experience for the purpose of recruitment to the post of Head Teachers Class - III. It is contended that all the petitioners who have qualified in Teachers Eligibility Test, which was also one of the conditions for recruitment to the post of Block Resource Persons, in spite of same, experience of the petitioners is excluded in the impugned rule.
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It is further contended by learned counsel for the petitioners that experience of Block Resource Center Coordinator / Cluster Resource Center Coordinator is considered as valid experience subsequent to filing of the petition, but at the same time the petitioners' service as Block Resource Persons is excluded, which is illegal and arbitrary.
[14] On the other hand, Mr. Devnani, learned Assistant Government Pleader appearing for the respondent authorities would contend that eligibility criteria is prerogative within the domain of the employer. Having regard to nature of post notified, it is submitted that Head Teachers' job includes teaching to the students and also administration. In that view of the matter, teaching experience as contemplated in the impugned Rule is valid. It is submitted that the petitioners are not involved in teaching at all and they cannot be equated with the teachers who are actually involved in teaching. Further it is also submitted that so far as Coordinators are concerned, they are primary teachers working in the schools and on deputation they are posted as Coordinators. It is submitted that having regard to post, experience of Coordinators, as teachers, who are working on deputation, the authorities have decided to consider their experience for the purpose of recruitment, but at the same time, the petitioners who constitute different class without any teaching experience, are not rightly included in the impugned Rule to treat their experience working as Block Resource Persons as valid for the recruitment to the post of Head Teacher Class III.
[15] From the submissions made by the learned Counsel for the parties and having perused material placed on record, it is clear that impugned Rule apply to the recruitment to the post of Head Teacher Class III by way of promotion as well as direct recruitment. For direct Page 9 of 12 HC-NIC Page 9 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT recruitment, criteria is notified in the rule. One of the criterion mentioned in the impugned Rule is with regard to experience. As it is clear from the submission of learned Assistant Government Pleader that job of Head Teacher includes teaching to the students, apart from administration function, respondents have notified experience for the purpose of appointment to the post of Head Teacher by way of direct recruitment.
[16] The petitioners are appointed on contract basis as Block Resource Persons. It may be that the petitioners have cleared TET Examination conducted by Gujarat State Examination Board and it may be one of the conditions notified for recruitment to the post of Block Resource Persons, but passing out that examination itself cannot be equated with the experience as required in the impugned Rule. The petitioners are working as Block Resource Persons under the scheme of Sarva Shiksha Abhiyan and its aim is universalization of elementary education for the children in the age group of 6 - 14 years. It appears that said scheme is implemented by the Central Government in partnership with the State Governments through a district level decentralized management framework involving local bodies. It is also clear from the material placed on record that important goal of the scheme is to provide elementary education of satisfactory quality with emphasis on education for life and to bridge all gender and social category gaps. May be that the scheme relate to elementary education but in the set up for implementation of the scheme, different category of employees are employed and for effective implementation of the scheme, Centers are established at Block level which are called Block Resource Centers and Cluster Resource Centers.
[17] Even according to the say of the petitioners, they are not
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directly involved in teaching in the said scheme of any primary sections. Further perusal of the functions and duties of Block Resource Persons as notified in the Sarva Shiksha Abhiya Mission also include that they are appointed for guidance to the students and teachers in the concerned subject so that they can understand the procedures, methods, activities, techniques and applications in various subject. Further various categories which are included in the impugned Rule also clearly indicate that experience of all the categories of persons, who are shown in the impugned rule, construe as valid experience, as they are mainly involved in teaching. As recruitment to the post of Head Teachers' job include teaching and administration in the school at primary sections, one of the eligibility criterion notified includes experience of 5 years teaching and all those persons included in the impugned rule to consider their experience as valid experience construe a different and distinct class than compare to the petitioners who are not involved in teaching. Having regard to nature of job provided to the post of Head Teacher Class - III, noninclusion of the petitioners' experience in the impugned Rule cannot be said to be illegal and arbitrary. However, it is rightly contended by learned Assistant Government Pleader that eligibility criteria is within the domain of the employer. Unless it is demonstrated that eligibility criteria in the Rule is illegal or arbitrary, this Court is normally slow in interfering such matters which relate to academic issues.
[18] As the petitioners are appointed in the Scheme on contractual basis and as admittedly they are not involved in actual teaching of students, we are of the view that no case is made out for grant of any directions as prayed for. So far as plea of the petitioners that experience of the Coordinators in the same scheme at Block Level and Cluster Level are considered as valid experience, there is acceptable Page 11 of 12 HC-NIC Page 11 of 12 Created On Sun Aug 13 08:29:20 IST 2017 C/SCA/1746/2017 JUDGMENT submission made by learned Assistant Government Pleader on the issue. As it is not disputed that the persons who are appointed as Coordinators are mainly teachers working in the school and they are posted as Coordinators on deputation, it cannot be said that they are not having teaching experience. Basically all the Coordinators, who are appointed on deputation, work as teachers, as such, the petitioners cannot compare their case with them so as to plea discrimination in support of their plea of infraction of Article 14 of the Constitution of India.
[19] We are of the view that all the categories of persons who are notified in the impugned Rule stand on different footing constituting different class and further in absence of any valid experience of teaching by the petitioners working as Block Resource Persons, we do not find any merit in this petition for grant of reliefs as prayed for.
[20] For the aforesaid reasons, the writ petition is devoid of merits. Accordingly, the Special Civil Application is dismissed. No order as to costs.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Aug 13 08:29:20 IST 2017