Gujarat High Court
Panchal Vijayalaxmi Babulal And Ors. vs District Primary Education Officer And ... on 3 May, 1999
Author: S.K. Keshote
Bench: S.K. Keshote
ORDER
1. Petitioners prayed for the following reliefs :
A. Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to respondent authorities to accommodate the petitioners as Vidhyasahayak on ad hoc basis till the final outcome in Letters Patent Appeal filed by the District Panchayat, Sabarkantha is decided.
B. Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to delete the condition, of sub-mitting original certificate of qualification along with the application form.
C. Pending admission, hearing and final disposal of this petition, alternatively, be pleased to restrain the respondents from filling up the vacancies about 30 in numbers of Vidhya Sahayak pursuant to the advertisement at Annexure A till the dispute with regard to the Recruitment Drive of Primary Teachers pursuant to the advertisement of 1991 is not finally resolved.
2. The facts of this case in brief are that, District Panchayat. Sabarkantha vide its advertisement on 10-4-1991 invited the applications for making selections, for appointments on the post of Primary Teachers in the district. In response to that advertisement, it is the case of the petitioners that they submitted their applications.
3. It is the grievance of the petitioners that, candidates who had secured less marks i.e. lower in the merits than the petitioners, were given appointments. Services of those candidates who were lower in merits but appointed were terminated which gave rise cause to file Special Civil Applications before this Court. Those Special Civil Applications were allowed by this Court on the ground that their services were terminated in violation of the principles of natural justice. Thereafter, fresh order after giving notice and opportunity of hearing terminating their services has been passed by the District Panchayat Education Committee. Those persons have come up before this Court and initially they have been protected by this Court. At this stage candidates who were in higher merits than those persons aforesaid filed Special Civil Applications before this Court and petitions of both the groups were came to be decided by this Court and candidates who were lower in merits were ordered to be continued. The respondent No. 1 District Panchayat filed Letters Patent Appeals before this Court and those have been admitted and the same are pending.
4. In Special Civil Application it is not the case of the petitioners that any of the candidates who were lower in the merit list than them were given appointments. It is also not the case of the petitioners that they are parties in those Special Civil Applications or Letters Patent Appeals. Petitioners were not felt aggrieved at very point of time by the selection which has been made in the year 1991. This petition has been filed by the petitioners on 30-4-1999 is suffering from vice of delay and laches. What the petitioners want that all those subsequent posts which have been sanctioned from time to time after 1991 should be given to those persons who are there on the merit list of 1991.
5. In all 737 posts of Primary Teachers are there in the year 1993 which were sanctioned after 1991 and this petition has been filed when the respondent has taken two proceedings to fill in these posts by inviting applications from the open market. This clearly comes out from the prayer which has been made by the petitioners in sub para C of the para 14 of the Special Civil Application.
6. Today in the Court the petitioners filed draft amendment. In the draft amendment the petitioners have stated that, they made representation on 22-3-1999 to the Committee representing their grievances of non-appointing them on the post of Vidhya Sahayak. It is necessary to mention here that now appointments are being made as Vidhya Sahayak. The Committee vide its letter dated 31-3-1999 replied to the representation of the petitioners wherein the respondent No. 1 is directed to look into the matter and to decide the case of the petitioners.
7. It is the grievance of the petitioners that, this Court has directed to the respondent authority in Special Civil Application Nos. 5626 and 5628 of 1998 to call similarly situated persons like the petitioners for verification of their documents and for appointments. Respondents thereafter called many candidates who are having less percentage of marks than the petitioners, for verification of their documents which in their submission is contrary to Arts. 14 and 16 of the Constitution.
8. On the record of this Special Civil Application or along with the draft amendment the petitioners have not produced pleadings of Special Civil Applications Nos. 5626 and 5628 of 1998. Not only this the petitioners have also not produced on the record, of this Special Civil Application the order which has been passed in those Special Civil Applications. In absence of pleadings of those Special Civil Applications as well as the orders passed therein, it is very difficult to accept that those two matters are identical to the present matter.
9. Otherwise also, the petitioners have no case whatsoever of merits. In 1991 selections though were made and the petitioners were candidates therein, but on the basis of that selection they cannot be given any benefit and that too to the extent to give them appointments against the posts which have been sanctioned after that selection.
10. Petitioners are claiming protection under Articles 14 and 16 of the Constitution which is totally misplaced in this Special Civil Application. In case the grievance of the petitioners is accepted and those posts subsequently sanctioned are permitted to be filled in from that merit list, it will certainly in violation of the provisions of Articles 14 and 16 of the Constitution.
11. Petitioners' claim for appointments though in case they stood on merit, is restricted to the posts which were available on the date on which advertisement in the year 1991 has been issued. Petitioners have not challenged that selection. However some other persons have challenged that selection. The petitioners cannot be given benefits of the same for the reasons that this decision was between the persons who are party to those litigations. Petitioners now cannot be permitted at this belated stage to fall back on the merit list which has been prepared in 1991. That merit list has no relevance whatsoever nor any candidate from that list can be given appointment against the post which has been sanctioned afterwards.
12. Selectees as per their merits may have rights for appointments on the posts which were available at that time. The posts which were sanctioned later in point of time have to be filled in by fresh selection in which the petitioners, if eligible can also apply. But, the prayer of the nature as made by the petitioner in this Special Civil Application cannot be granted. Otherwise it will affect adversely constitutional rights as available to the candidates who became eligible subsequently under Articles 14 and 16 of the Constitution.
13. Much emphasis has been placed on the letter of the Committee, but the Committee also cannot act contrary to the provisions of Articles 14 and 16 of the Constitution. Any directions if has been given by the Committee to the respondent No. 1 to call candidates from the selection list of 1991 for giving them appointments on the posts which were subsequently sanctioned, may clearly be in violation of the provisions of the Articles 14 and 16 of the Constitution. This action of the Committee may be illegal. It is well settled that on the basis of the illegal order of an authority no plea of discrimination can be raised. The facts which have been stated by the petitioners are taken to be correct then certainly the letter of the Committee giving directions to the respondent No. 1 to call candidates from the selection list of 1991 is illegal and unconstitutional and on the basis of which no plea of discrimination is available to the petitioners. Reference in this respect may have to the decisions of the Apex Court in the case of Chandigarh Administration v. Jagjit Singh, AIR 1995 SC 705 and the decision of this Court in the case of Bhanmati Tapubhai Muliya v. State of Gujarat, (1995) 2 Guj LH 228 : (1996 Lab IC 885).
14. This Court while sitting under Article 226 of the Constitution cannot give any direction to the respondents which result in making appointments by the said officers in violation of Articles 14 and 16 of the Constitution. This Court cannot perpetuate any illegality and in case relief of the nature as prayed by the petitioners is granted, it will certainly amount to perpetuating illegality.
15. Law is well settled that selectees have no indefeasible right of the appointment merely because their names found place in the select list. Moreover, they have no right whatsoever to claim appointment on the post in excess of number of the posts advertised. Their right of appointment is restricted and subject to the condition that they stood in merits, against the posts which have been advertised.
16. In this case the petitioners are really intending to get appointments or they are making attempt to get appointments on the posts other than which were advertised in the year 1991. This is not permissible both to the Courts and authorities.
17. Here, fruitfully reference may have to the decision of the Apex Court in the case of Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319. The respondent No. 1 is equally under legal duty to see that he may not make any appointments contrary to the provisions of Articles 14 and 16 of the Constitution. In view of these facts the petitioners have no right whatsoever for their appointments to the post of Vidhya Sahayak merely on the basis of the fact that their names were there in the list prepared in the year 1991. However, they have right to apply for their appointments against these 73 posts subject to their fulfilling the eligibility. They have to compete with the candidates and if, they come in merits then they will get appointments, but not because their names were there in the merit list of the year 1991. Candidates inclusive of the petitioners are in fact misled the authority. They are trying to get appointments without facing the selection and if it is done then it will certainly amount to back door entry. Prayer to the extent where the petitioners prayed for their ad hoc or regular appointments, is wholly misconceived. The respondent cannot be restrained from making appointments by open selection against these 73 posts of Vidhya Sahayak. Similarly respondents also cannot be restrained from making appointments till the dispute with regard to the recruitment rights of Primary Teachers pursuant to the advertisement of 1991 is finally decided. Otherwise also the petitioners are not parties to litigation pertains to 1991 selection.
18. Unemployment in the country is real a serious problem. To get employment, unemployed persons are to submit their applications from time to time to different authorities of one or other districts in the State. In case it is desire or there is rule that candidates are to enclose to the application forms their original certificates of the qualifications, certainly it will adversely affect or denial of their fundamental rights of consideration for public employment. I fail to see any logic in the decision or the rule in calling for original certificates along with the applications. It is true that these are basic documents on the basis of which merits has to be prepared. If it is accepted then certainly for a considerable period, for want of original documents, many of the candidates may not be in a position to apply elsewhere also for the employment. Appointments to the post of Primary Teachers or Vidhya Sahayaks as per recruitment rules are made only on the basis of marks they secured in SSC and PTC, though interviews are being there and candidates are called for interview. In fact, no interview is taken nor any marks are prescribed for the interview and which are to be taken for preparation of merit list of the candidates. This fact is a process of calling candidates to ascertain correctness of the documents by necessary verification thereof. So the purpose of calling of original documents along with the main application, if we go by this process to be followed in the form of interview is absolutely uncalled for, irrelevant and it is not in whatsoever the larger interest of the candidates. At this stage, insistence should have been only for genuine, authenticity and attested xerox copy of the same is understandable and sufficient.
19. I have seen many of the cases where the original of the certificates of the candidates are being retained by the District Panchayat for considerable long time. If it is really a condition or a rule to submit along with the application original certificates or marksheets or any other document, it is certainly arbitrary, unjustified and it may adversely result deprival of the rights of the many of the candidates of their consideration for the appointment in the Government or other services. Along with the applications candidates should be permitted to file xerox copies of the original duly attested, certified or authenticated either by the Gazetted Officer of the State of Gujarat or by the Notary Public or by the Executive Magistrate. Before making appointments candidates may be called with original documents for verification of the correctness of the attested xerox copies thereof.
20. In the result, this Special Civil Application fails and the same is dismissed. Copy of this order may be sent to the respondent Nos. 1 and 2. It is expected that the respondent No. 2 may issue necessary circular to all the appointing authorities of Vidhya Sahayak in light of this order regarding submission of the xerox copies of the original duly attested or certified or authenticated by the Gazetted Officer, Notary Public or Executive Magistrate.
21. Application dismissed.