Gujarat High Court
Daxeshkumar Kantibhai Prajapati vs State Of Gujarat & on 15 February, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2096/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2096 of 2017
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DAXESHKUMAR KANTIBHAI PRAJAPATI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASHISH B DESAI, ADVOCATE for the Petitioner(s) No. 1
MS ASMITA PATEL, ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 15/02/2017
ORAL ORDER
1. The petitioner challenges the action of the Respondents of not accepting the hard copy of the online application form filled-up by him for the purpose of direct recruitment to the post of Head Teacher on the ground that he is not having requisite qualification of five years experience of teaching, as mentioned in the advertisement.
2. According to the petitioner, he is possessing the teaching experience of six years. He also has passed Head Teachers Aptitude Test (for short, 'HTAT') conducted by the State Examination Board, Gandhinagar, with 90 marks. He, therefore, is eligible and qualified to be selected for appointment on the post of Head Teacher for Primary School in Standards- 1 to 5 and Standards-6 to 8.
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3. An advertisement came to be issued on 22.01.2017 for recruitment to the post of Head Teachers for Primary Schools of District Education Committees, Municipal School Board. The applications were to be submitted online between 25.01.2017, 11:00 a.m. onwards up to 03.02.2017, 03:00 p.m.. The candidates, after submission of applications online, are required to submit the hard copy of the printout of the online applications filled-in by them physically at the acceptance centre from 25.01.2017 up to 03.02.2017, 05:00 p.m.. On the ground of lack of requisite teaching experience of five years, the petitioner has been denied acceptance of the hard copy.
4. The petitioner, therefore, is before this Court seeking following reliefs;
"9. ...
(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue a writ in that nature of mandamus / certiorari or any other appropriate writ, order or direction directing the respondents their agents or servants to accept the petitioner's application (Hard Copy) for the post of Head Teacher notified in the advertisement dated 22/1/2017 Page 2 of 12 HC-NIC Page 2 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER as per Annexure-A and to consider the same for selection and to give appointment as per the merit with all consequential benefits.
(C) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to accept the petitioner's application for the post of Head Teacher notified in the advertisement dated 22/1/2017 as per Annexure-A. (D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to keep one post vacant for the petitioner out of the vacancies of Head Teacher notified in the advertisement dated 22/1/2017 as per Annexure-A. (E) ..."
5. Reply is not filed on behalf of the State.
6. This Court has heard the learned Advocates for the parties. The reliance is placed on the decision of this Court rendered in Special Civil Application No. 4383 of 2015 and also on the Government Resolution dated 16.05.2012.
7. In the matter, which has been decided by Page 3 of 12 HC-NIC Page 3 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER this Court on 08.05.2015, the requirement of five years experience was not in dispute. The only dispute was with regard to the services of the petitioner with a private institute, as there was no salary account nor any substantiating documents, as were required by the State. However, there were other documentary evidences produced and the Court having found that the petitioners documents falls in the category of "
any other documentary evidence which is regularly kept by the respective school and furnished to the State Government/to be verified by the State authorities periodically" and on the ground that once any of the the four categories of documents are produced and the accounts of the schools are audited by a Charted Accountant, this Court had allowed the said petition by observing and holding thus:
"...
Both the sides have been heard at length and pleadings as well as documentary evidence is brought on the record have been examined on the strength of submissions as well as material on record, a short question that requires to be answered is that at the time of producing the testimonials, for the purpose of proving the experience of five years, whether the petitioner produced the certificates in accordance with the Government Page 4 of 12 HC-NIC Page 4 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER Resolution dated 16th May 2012. It is to be remembered at this stage that the post of Head Teacher was required to be filled in after the Right of Children to Free and Compulsory Education Act, 2009 came into existence. A challenge was made to the approach of the State Government of accepting only the salary account details for the purpose of proving the experience.
The Court having found such insistence of salary account to be unreasonable, directed the State to formulate new guidelines and on the strength of such directions of this Court, the respondents issued a Government Resolution dated 16th May 2012 providing for the following documents for the purpose of establishing the work experience, which read thus :
[a] The details of salary account;
[b] The details of Employee Provident Fund/Contributory Provident Fund Account;
[c] The details submitted by the respective school for the District Information System for Education [DISE];
[d] Any other documentary evidence which is regularly kept by the respective school and the same are verified by the State authorities.
The requirement of five years' experience is not being disputed. The petitioner having worked at H&K Patel PTC College for one year and one month is hardly a matter of dispute. The appointment of the Page 5 of 12 HC-NIC Page 5 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER petitioner on 30th September 2011 as Vidya Sahayak upto 25th February 2012 is also taken into account for considering the work experience.
The only dispute is with regard to his service with KK Vidyalaya, Mehsana. Admittedly, there is no salary account and nothing comes forward as to why such salary account was not maintained by the said School. Payment of salaries has been made to him through vouchers.
The attendance sheet of the
teachers, voucher books and
inspection reports of Academic Year 2006-2007 and audited report of Chartered Accountant of 2007-2008 alongwith voucher book, ledger book of the school are also produced before this Court. Likewise, for Academic Year 2008-2009, all the three being - voucher book, ledger book and Chartered Accountant's report with the Inspection report are before the Court. Undoubtedly, a certificate has been issued by the School of the petitioner of having worked with the school. Right from appointment letter to the attendance sheets and the vouchers by which payment of salary is made to the employees are produced on the record. After the school authority had been issued the notice, it has produced yearly inspection reports, audited reports of the Chartered Accountant of the report of every year as also a copy of the reply given to the petitioner under the Right to Information Act wherein from the year 2004-2005 to 2009- 2010, the name of the present Page 6 of 12 HC-NIC Page 6 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER petitioner continues to be reflected as Vidya Sahayak. Of course, the inspection reports, the audited accounts which includes salary details of the petitioner are forming part of the record. These are also required to be periodically submitted to the respondent authorities and it is not the case of either side that the same have not been produced. Reply given under the Right to Information Act also clearly suggests of service of the petitioner having been rendered as Vidya Sahayak from 2004-2005 to 2008-09. And therefore, the only contention of the respondent which requires to be dealt with at this stage is as to whether such documentary evidences produced before this Court can be taken into consideration by the Court for judging the action of the respondent of denying the participation of the petitioner on the ground of absence of work experience. The petitioner has produced on record, the receipt of application made by him. He had attached various testimonials including experience certificate. The details of salary account, provident fund account or DICE form were admittedly not there, and therefore, as per Government Resolution dated 16th May 2012, the case of the petitioner would fall under the fourth category ie., any other documentary evidence which is regularly kept by the respective school and the same are verified by the State authorities. If the guidelines produced by the receiving center at the time of recruitment of Page 7 of 12 HC-NIC Page 7 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER Head Teacher 2014-15 are looked at, it makes it mandatory for them to insist for any of these four categories of documents. Again, what is acceptable is yearly inspection reports issued by the District Education Officer/Primary Education Officer or any officer deputed by the Education Department which would include name of the teacher concerned. These guidelines further say that in the event of verifying the continuity, they can insist upon appointment letter, service book, attendance sheet/register and vouchers.
The petitioner has produced appointment letter, attendance sheets and vouchers. However, under category (4) above, yearly inspection reports with the authentication by DEO/Education Department has been produced before the concerned authority, therefore, in absence of any salary account, CPF/GPF details or DISE form of the school as also in absence of these documents, the respondent when have denied consideration to the petitioner, which may not be feasible for the Court to hold the action of the respondent contrary to the spirit of the Government resolution. Once any of those four categories of documents are there, additional documents in terms of appointment letter, attendance sheet, etc., could not be insisted. Here the case is reverse. Those documents were produced which could have been the additional requirement on asking. Undoubtedly, the accounts of school since are audited by the Chartered Accountant, the salary Page 8 of 12 HC-NIC Page 8 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER vouchers are part of those audited account which are required to be yearly submitted to the concerned Government authorities. But, in absence of yearly reports or even for that matter of the audited Chartered Accountant's report, coupled with absence of any specific grounds for the school to maintain the salary account, as was the case in case on which the petitioner has sought to rely upon, this Court is of the opinion that the request of the petitioner to quash the decision of the respondent no. 2 is not found sustainable. However, as it could be noticed, for the Head Teachers' selection, this Government resolution is introduced after a protracted legal battle and is comparatively new, its implication may not be fully comprehended by the teachers as well as by the school authorities despite availability of inspection records and the presence of name of the present petitioner in all the years from 2004-05 to 2008- 09 in the report as well as in the audited accounts by the Chartered Accountant. It would be in the fitness of things to direct the petitioner to produce these documents before the respondent no. 2 authority which can be directed to consider the same with due consideration in accordance with law.
However, instead of relegating the petitioner to the respondent no. 2 for the purpose of producing of audited accounts and authenticated copy of inspection reports of every year which the school authorities has already produced before this Page 9 of 12 HC-NIC Page 9 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER Court, a joint request is made to this Court to consider those documents and pass appropriate order without treating this order as a precedence, such request is acceded to bearing in mind non challenge to the audited accounts so also the lapse of time from the last camp already conducted for the said purpose. The petitioner was at serial no. 192 in the General Category Merit [Open merit] and at serial no. 15 in the reserved category [Scheduled Caste] as per his Call Letter dated 25th February 2015, where number of available vacancies for the post of Head Teachers was 2467. His wife also serves as a Head Teacher in the very district. He also moved Misc. Civil Application No. 4960 of 2015 to direct selection of his choice. Since such a prayer was part of his main petition, his Misc. Civil Application was disposed of by this Court. Learned Assistant Government Pleader had ensured to file details of merit of the last candidate vis-
a-vis the merit of present
petitioner.
As discussed hereinabove, the
documents produced by the school authorities are found to be genuine and not a semblance of doubt is raised against that authority by the respondents, the name of the petitioner being there from 2004- 2005 to 2008-2009 and when his salary was duly paid by way of vouchers and the same gets reflected in the audited accounts produced before the Government authorities, his five years' experience criteria Page 10 of 12 HC-NIC Page 10 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER as is being fulfilled duly and satisfactorily, the respondent State is directed to consider the case of the present petitioner as a Head Teacher on following the due procedure of giving a choice from the available vacancies at Mehsana District as per merit list. This shall be done within 8 weeks of receipt of this order. This order shall not be treated as precedence. With these observations and directions, present writ petition stands disposed of. Notice discharged.
Direct service as requested for is permitted."
8. In the instant case, it is not in dispute that the petitioner is bound to follow the Government Resolution dated 16.05.2012 and the decision of this Court, wherein, the very Resolution was under the scrutiny of this Court. Once, having accepted the application form of the petitioner online and the only issue now is non- acceptance of the hard copy of the online application form filled-up by the petitioner for want of necessary documents.
9. The petitioner is, therefore, directed to fulfill all the requirements laid down in the Government Resolution dated 16.05.2012, bearing in mind the directions issued by this Court in the afore-mentiond order. Since, the last date Page 11 of 12 HC-NIC Page 11 of 12 Created On Thu Feb 16 03:42:11 IST 2017 C/SCA/2096/2017 ORDER for submitting the hardy copy of the online application filled-in by the candidates was 03.02.2017, on the ground that his form was not accepted on, or before, the last date, i.e. 03.02.2017, which was meant for submission of hard copy of the online application, the petitioner is PERMITTED to submit the hard copy of his online application by 17TH FEBRUARY, 2017, by 01:00 p.m.. Such an opportunity is being given to the petitioner, without going into the merits of the matter. DISPOSED OF, accordingly. Direct service is permitted, TODAY.
(MS SONIA GOKANI, J.) UMESH Page 12 of 12 HC-NIC Page 12 of 12 Created On Thu Feb 16 03:42:11 IST 2017