Bombay High Court
Shri Tikeshkumar S/O Udelal Bopche vs District Selection Committee on 10 January, 2014
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
MISC. CIVIL APPLICATION NO. 645 OF 2012
IN
WRIT PETITION NO. 5897 OF 2011
Shri Tikeshkumar s/o Udelal Bopche,
aged - Major, occupation - Nil,
r/o Kholgad, Post - Lotori,
Taluka - Salekasa, District - Gondia.
ig ... APPLICANT/
PETITIONER
Versus
1. District Selection Committee
through its Chairman/
Collector, Gondia.
2. Member Secretary,
District Selection Committee,
Gondia/ Chief Officer,
Municipal Council, Gondia.
3. Municipal Council Secondary,
through Principal/ Head Master,
Gondia.
4. Municipal Council, Gondia,
through its Chief Officer,
Gondia.
5. Pratima Dhanraj Shivankar,
aged - Major, occupation -
Not known, r/o Gaddhatoli,
Tahsil & District - Gondia.
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6. Member,
District Selection Committee/
Education Officer (Secondary),
Zilla Parishad, Gondia. ... NON-APPLICANTS/
RESPONDENTS
Shri A.Y. Kapgate, Advocate for the applicant/ petitioner.
Mrs. M.N. Hiwase, AGP for respondents No. 1 & 6.
Shri Anoop Parihar, learned counsel for respondents No. 3 & 4.
Shri S.K. Pardhy, Advocate for respondent No. 5.
.....
ig
CORAM : B.P. DHARMADHIKARI &
A.P. BHANGALE, JJ.
DATE OF RESERVING JUDGMENT : DECEMBER 20, 2013.
DATE OF PRONOUNCING JUDGMENT : JANUARY 10, 2014.
JUDGMENT :(Per B.P. DHARMADHIKARI, J.) Heard Shri Kapgate, learned counsel for the review applicant/ petitioner, Mrs. Hiwase, learned AGP for respondents No. 1 & 6, Shri Parihar, learned counsel for respondents No. 3 & 4 and Shri Pardhy, learned counsel for respondent No.5.
2. The original petitioner has sought the review of the order dated 30th April 2012, disposing of Writ Petition No. 5897 ::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 3 of 2011. In the said Writ Petition, he challenged the selection and appointment of Respondent No. 5 on the post of Shikshan Sevak on the ground that she has secured less marks in B.Ed.
Examination. He sought an appointment order in his favour in terms of advertisement dated 30th July 2010. Respondent No. 4 before this Court is employer - Municipal Council while respondent No. 3 is the School. Respondents No. 1, 2 & 6 are the members of District Selection Committee, who completed selection process.
3. The review is sought on the ground that the review petitioner has obtained 61.67% marks in B.Ed. Examination while Respondent No. 5 secure only 61.17% marks. The other ground for review is, the statement that the petitioner has not studied Social Sciences at B.A. level is incorrect inasmuch as his mark sheet shows that he has studied History and Political Science at Graduation level. The third ground is the reason that Respondent No. 5 has studied Sociology for graduation is not ::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 4 relevant because not passing B.A. with Social Science as one of the subjects is not the reason given by the District Selection Committee for not selecting the petitioner and its affidavit in Writ Petition filed on 25.04.2012 was, therefore, unsustainable.
It is submitted that the rejection of the petitioner was on the ground that he did not study Sociology. The forth reason given is alleged instructions by Respondent No. 6 that candidate to be selected should hold qualification of Literature in Hindi as also English. It is contended that if this reason is accepted and advertisement is read accordingly, absurd results follow. It is further pointed out that Respondent No. 6 has not signed proceedings of District Selection Committee. It is also stated that Special District Social Welfare Officer, Gondia, has placed signature on 18.05.2011 i.e. almost eight months after the selection proceedings.
4. In this background, Shri Kapgate, learned counsel for the petitioner has invited our attention to advertisement dated ::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 5 30th July 2010 to urge that as disclosed therein, selection needed to be only on the basis of marks obtained in written examination held for B.Ed. degree. The petitioner/ review applicant is Graduate with Hindi Literature and, therefore, fulfilled the requirements and as he has more marks than Respondent No. 5, he needed to be selected. Our attention has also been drawn to various orders passed by this Court in Writ Petition, from time to time till the impugned order dated 30th April 2012, of which review is sought. Even the orders passed in present proceedings and affidavits filed are pressed into service with contention that there is change in the stand of the Education Officer.
5. Mrs. Hiwase, learned AGP appearing for respondents No. 1 & 6 has relied upon the reply affidavit. On its basis, she points that Respondent No. 6 had suggested giving importance to Literature as per advertisement dated 30th July 2010. It is further pointed out that by the time the minutes of District Selection Committee were received by the office of Respondent No. 6 for ::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 6 signature, incumbent Smt. Jha had already retired and hence her signature could not be obtained. It is further pointed out that in High School, subject Sociology is not taught. A candidate with qualification of B.A. in English or Hindi or Social Sciences was entitled to be considered for the post & Review Applicant, being more meritorious, should have been appointed.
6. Shri Pardhy, learned counsel appearing for respondent No. 5 is strongly opposing the prayer for review. He states that after appreciating all relevant facts and passing various orders, this Court did not find anything wrong with selection and appointment of Respondent No. 5. The change in the stand of Respondent No. 6 in review petition is, therefore, liable to be ignored.
7. Writ Petition No. 5897 of 2011 was first considered by this Court on 30.11.2011. While issuing notice, this Court has specifically noted that the petitioner secured 61,67% marks as against 61.17% marks secured by Respondent No. 5 in B. Ed.
::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 7Examination. The parties were directed to maintain status quo.
On 20.04.2012, this Court again considered the respective rival contentions. This Court noted the advertisement and found it rather confusing as advertisement stated that for mediums, English and Hindi, Literature was essential. This Court found that a person teaching in Hindi medium or English medium or even Marathi medium, was thus expected to possess qualification in English and Hindi Literature. This Court further noted that Shikshan Sevak to be selected was supposed to teach three subjects viz., Social Sciences, Hindi and English in Hindi medium. The petitioner did not possess a Graduate qualification in Social Sciences and he was not selected though called for interview. This Court has noted that he was not selected though he has more marks than Respondent No. 5 on the ground that Respondent No. 5 has got qualification in English Literature as well as Hindi Literature. This Court also noted that the petitioner was not found unfit because he lacked qualification in Social Sciences. Instead of disposing of the writ petition at that ::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 8 juncture, after observing that the Municipal Council was not assisting the Court properly, its Chief Officer was directed to file responsible affidavit and the matter was adjourned to 30th April 2012. On 27th April 2012, the Chief Officer of Municipal Council filed an affidavit stating that Respondent No. 5 was found more suitable to teach the subjects of Hindi, English and Sociology than the petitioner and, therefore, he was selected. This Court also noted that the advertisement did not require a candidate to possess Graduation in Social Sciences. The advertisement disclosed one post for Teacher holding B.A., B.Ed. qualification and subjects to be taught by him are shown as Social Sciences/ Hindi/ English. The medium of instructions is Hindi. Thus, Social Science is disclosed to be one of the subjects to be taught by said Teacher. In view of this application of mind, no merit was found in the petition. Thus, this Court found that Social Science was one of the subjects concerned with the Education of students.
::: Downloaded on - 27/01/2014 23:08:22 ::: mca645.12 98. In review, while issuing notice, the new Counsel engaged by the petitioner, submitted that Sociology was not the subject to be taught to students of VIII and X Standard and Social Sciences is a general name under which subjects like History Civics and Geography are taught. In view of these arguments and order dated 30.11.2011 in Writ Petition No. 5897 of 2011 noted supra, notice came to be issued in Misc. Civil Application.
On 02.08.2013, Respondent No. 5 urged that it was basically for Municipal Council to clarify the position. On 16.08.2013, this Court noted the effort of the petitioner to demonstrate that his qualification in Political Science and History at Graduate level is sufficient and it cannot be said that the petitioner does not possess requisite qualification in Social Sciences. Respondent No. 5 submitted that subjects of the petitioner at Graduation do not form part of Social Sciences. Respondent No. 5 who has a degree in Sociology, urged that the subjects covered under Sociology equip Respondent No. 5 sufficiently to teach Social Sciences to High School students. The petitioner had disputed ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 10 this. The Education Officer had filed reply on 30.07.2013 and that reply did not throw any light on this controversy. Similarly, the employer - Municipal Council or its School had not taken any specific stand, hence the necessary affidavits of the Education Officer and Employer were directed to be filed. The matter was effectively considered again on 06.12.2013. On that day, Respondent No. 3 - Municipal Council as also Respondent No. 5 were directed to place on record time tables after 22.06.2012 showing the subjects/ periods taught by Respondent No. 5.
Accordingly, time table came to be supplied and we have heard respective counsel further.
9. The Selection proceedings placed on record as Annexure II with review petition are disputed only because the same are not signed by Smt. Jha. In review petition, it is nowhere stated that Smt. Jha was not present during said proceedings. It is also not stated that the proceedings have been written subsequently. The reasons given by Respondent No. 6 ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 11 (present incumbent) for absence of signature of Smt. Jha, are also not challenged. By the time the minutes of selection proceedings dated 13.09.2010 were received by the office of Respondent No. 6, Smt. Jha had retired. The Collector, who is the Chairman of the District Selection Committee, the Chief Officer of Municipal Council, who acted as the Secretary of the said Committee, have placed their signatures without mentioning any date. At the top of the proceedings, it is mentioned that the interviews were conducted on 13.09.2010 and 14.09.2010.
Against Subject No. 4, a communication dated 18.09.2010 on the aspect of strength of students is also mentioned. The review applicant is relying upon the signature of Special District Social Welfare Officer, Gondia. The said signature is placed by him on 18.07.2011. These facts, therefore, show that there was some delay in writing proceedings, however, the said delay by itself is not fatal in the absence of any allegations of malafides or interpolation. The review petitioner nowhere submits that Smt. Jha was not present in the meeting of selection committee.
::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 1210. We, therefore, find that after considering all rival contentions and after noticing the fact that Respondent No. 5 was possessing qualifications to teach Hindi as also English to students, this Court has upheld her selection. It is not in dispute that neither the petitioner nor Respondent No. 5 possess qualification in Social Sciences. In this situation, it is not proper on the part of this Court to find out whether the petitioner has studied some subjects covered by syllabus of Social Sciences during his Graduation or then whether some subjects of Respondent No. 5 at graduation also enable her to teach Social Sciences. There is a change in the stand of the Education Officer, but that by itself is not sufficient to review the order passed by this Court in Writ Petition, after extending an opportunity of hearing. In the affidavit dated 25.04.2012, the Chief Officer of the Municipal Council stated that the petitioner's name was not included in Select list as he was not having subject of Social Sciences in B.A. The said affidavit also discloses that Respondent ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 13 No. 5 was held suitable to teach subjects like Hindi, English and Sociology. This stand of the Municipal Council, does not militate with the view expressed by the Education Officer in selection proceedings. The said minutes reveal selection of Respondent No. 5 because of her qualification in Hindi Literature and English Literature.
11. The perusal of the advertisement shows that the Shikshan Sewak to be selected against the post at Sr. No. 3 with which this Court is concerned, was to teach Social Sciences/ Hindi/ English to class VIII to X in Hindi medium. The important provision about selection procedure given in clause (xii) of the advertisement needs to be viewed in this background. It stipulates that the Merit list of the applicants shall be prepared as per written marks obtained in B.Ed. examination by them and a select list of candidates securing more marks at B.Ed. shall then be prepared. It also states that interview process shall not carry any marks. Thus, this clause itself contemplates two types of lists ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 14 viz. merit list and select list. The requirement was of a Teacher having qualification either in Social Sciences or Hindi or English.
The facts above clearly show that neither the petitioner nor Respondent No. 5 possess the qualification in Social Sciences.
Respondent No. 5 possess necessary qualifications in Hindi Literature as also in English Literature and is, therefore, eligible to teach Hindi and English to the concerned standards. This Court, on 20.4.2012, in writ petition did note qualifications prescribed in the advertisement and also observed the same to be rather confusing as advertisement stated that for mediums, English and Hindi Literature both was essential. Nobody took care to explain the same and Petitioner also did not seek any amendment in writ petition to assail that stipulation. Even, in review there is no such effort. Thus, when post at serial number 3 in the advertisement was for a Shikshan Sevak to teach in Hindi Medium, the advertisement expected aspirant like Review-
petitioner to posses qualification in both the literature i.e. Hindi as also English Literature. The petitioner does not possess ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 15 qualification in English Literature. The petitioner and Respondent No. 5 are, therefore, not similarly situated and an occasion to find out one who scored more marks in written part of B.Ed. examination between the two, did not arise. The affidavit filed by the Municipal Council on 27.04.2012 in writ petition disclosed that the District Selection Committee found Respondent No. 5 a better candidate as she, in addition to English Literature & Hindi Literature is also having Sociology as one of the subjects during B.A. degree course. Time Table on record does not show that Respondent No. 5 is engaging any Social Science class & hence, the dispute about better competency or eligibility to teach said subject being raised by the Review petitioner is not decisive here.
12. Advertisement dated 30/29.07.2010 itself points out the need of the Employer Municipal Council to recruit a full time teacher to teach the subject of Social Sciences or Hindi or English to students. In a normal situation, one teacher to teach all these ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 16 subjects may not always be possible. An average candidate who has scored more marks in B.Ed. and, therefore, gets appointed, may be qualified to teach only one subject. Thus, a Teacher qualified to teach two subjects gives better options to Employer local body. Respondent No. 5 satisfies the norms as advertised and it is not in dispute that he can teach Hindi as also English to Hindi Medium students. In absence of any allegations of malafides, we find that the Recruiting Agency / Employer in such a situation, must be left free to use its powers. Selection of Respondent No. 5 by the Respondent No. 1 - District Selection Committee is in the interest of the administration . Personal time table for the years 2012-13 and 2013-14 produced before us by Respondent No. 5 also shows that she has been teaching English and Hindi both. When in one teacher, Employer gets both the qualifications, selection of such teacher as against the other who does not posses such dual capacity, need not be quashed by this Court as there is no question of comparing the marks at B.Ed.
level in such a contingency. Better suitability of Respondent No. ::: Downloaded on - 27/01/2014 23:08:23 ::: mca645.12 17 5 is enough to place her above Review Petitioner in select list.
13. In this situation, we did not find anything wrong with said selection. While disposing of the writ petitions, various facets involved were looked into & the parties were give opportunity to advance their case or cause. All this culminated into the final order dated 30.4.2012. Fresh efforts being made through a new Counsel are thus misconceived. In any case, the review petitioner fails to make out any ground sufficient to invoke the review jurisdiction or for taking a different view. No interference is, therefore, necessary. Misc. Civil Application is, therefore, rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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