C/SCA/9331/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 9331 of 2017

With
R/SPECIAL CIVIL APPLICATION NO. 11276 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE N.V.ANJARIA

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1 Whether Reporters of Local Papers may be allowed to

see the judgment ? Yes

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the

judgment ? No

4 Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any No
order made thereunder ?

==========================================================
MANISH MANSUKHBHAI RAGHADAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR RV DESHMUKH(300) for the PETITIONER(s) No. 1,2
MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4,5
==========================================================

CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 15/10/2018

CAV JUDGMENT

As the facts in the two petitions captioned

herein are similar and the issues involved identical,
they were heard together, and are being treated for
disposal by this common judgment.

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2. The two petitioners of Special Civil

Application No.9331 of 2017 have prayed for a
direction to declare as illegal the action on part of
District Education Officer, Navsari and District
Education Officer, Anand – respondent Nos.4 and 5
respectively, in not granting to the petitioners the
letters of recommendation for the appointment to the
post of Shikshan Sahayak (Assistant Teacher). The
petitioners have prayed for declaring that the
petitioners were eligible and entitled to be
appointed to the post. In the other Special Civil
Application also, the two petitioners have prayed on
the similar lines to declare the action on part of
District Education Officer, Valsad – respondent No.4
therein to be illegal, further seeking appointment to
the post.

3. Outlining the relevant facts, all the four

petitioners in the two petitions passed their Higher
Secondary School examination and thereafter passed
the B.Com. Examination. They undertook the Master
Degree course of M.Com. which they completed. They
also passed B.Ed. examination and cleared Teachers'
Aptitude Test (TAT) prescribed under the Teachers and
Headmasters For Registered Private Secondary and
Higher Secondary Schools (Procedure for selection)
Rules, 2011. At the graduation level, the petitioners
had Statistics as one of the subjects whereas the
said subject of Statistics was the main subject at
the Master Degree level.

3.1 Pursuant to the advertisement issued on 15th

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April, 2016 for the recruitment to the post of

Shikshan Sahayak in the Non-Government Grant-in-Aid
Secondary Schools, the petitioners made their
applications online. They appeared before the duly
constituted selection committee. The committee
prepared select list on 07th November, 2016. The
petitioner No.1 in the first captioned Special Civil
Application figured at Merit No.54 and petitioner
No.2 secured the merit rank at Serial No.92 in the
list. The petitioners of the other petition also
secured their merit rank and their names figured at
Serial No.84 and 83 respectively in the list.

3.2 While all the petitioners having figured in

the merit list and having been selected by the
selection committee, anticipated issuance of letter
of recommendation, District Education Officer
concerned refused the petitioners the letter of
recommendation for the purpose of appointment. It is
the specific and undenied case of the petitioners
that upon their selection, they are also allotted the
respective school where they were going to be
appointed, still however, the respondent – District
Education Officer did not issue letter of
recommendation subsequently.

3.3 Though according to the petitioners they

were eligible possessing requisite qualification to
be appointed to the post, when the petitioners
complained about non-issuance of letter of
recommendation, they were conveyed by the authority
that at the graduation level, the subjects which the

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petitioners studied were Auditing-3 and Management

Account-4 whereas only in the Master Degree level
(M.Com.), the petitioners studied Statistics as main
subject. Though the petitioners studied subject of
Statistics at the graduation level and Statistics as
main subject at the post-graduation level, according
to the stand of the respondents, since the
petitioners did not have Statistics as main subject
at the graduation level, they were not qualified and
therefore not eligible to be appointed.

3.4 Advertisement dated 15th April, 2016

mentioned the eligibility criteria. It was stated
that for the appointment to the post of Shikshan
Sahayak in the school, eligibility in Rule 7(a) of
the Rules called Teachers and Headmasters of
Registered Private Secondary and Higher Secondary
Schools (Procedure for Selection) Rules, 2011
published by the Education Department by Notification
dated 11th February, 2011 would apply. It was further
mentioned that provisions of Resolution of the
Education Department dated 28th October, 1975 and 08th
October, 2009 would apply for the purpose of
determination and eligibility to be read with the
aforesaid Rules. Thus, for determining the
eligibility, aforesaid was the compass contemplated.

4. Learned advocate for the petitioners Mr.R.V.

Deshmukh submitted that the petitioners were selected
by selection committee constituted under the Rules
and the selection committee verified the educational
qualifications and selected the petitioners. Learned

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advocate for the petitioners after emphasising that

all the petitioners had at their graduate level the
subject of Statistics and at the post-graduate level
this subject was the main subject, further submitted
that the petitioners were treated to be possessing
the eligibility and were entitled to be issued the
letters of recommendation. It was submitted that in
the facts and circumstances, a legitimate expectation
arose for the petitioners to be appointed was right
denied to them. According to learned advocate for the
petitioners, the petitioners satisfied the
eligibility criteria as contemplated.

4.1 On the other hand, learned Assistant

Government Pleader Mr.K.M. Antani vehemently opposed
the case of the petitioners to submit on the basis of
contentions raised in the affidavit-in-reply filed on
behalf of respondent No.2, that the petitioners did
not possess the requisite qualifications as per the
Rules notified by the Education Department by
Notification dated 11th February, 2011. He relied on
averments in paragraph 7 of the affidavit to contend
that the required qualification for study in the
subject of Statistics was not fulfilled. According to
the affidavit-in-reply, the qualifications required
were these for the higher secondary teacher-(i)
Graduate Degree in concerned subject, (ii) Post
Graduate Degree in concerned subject, (iii) Graduate
Degree in professional subject i.e. B.Ed/B.P.Ed. etc.
and (iv) Post Graduate Degree in professional subject
i.e. M.Ed/M.P. Ed. Etc. (if possesses). For the post
of secondary teacher, according to the contentions,

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following were the required qualifications-(i)

Graduate Degree in concerned subject, (ii) Post
Graduate Degree in concerned subject (if possesses),
(iii) Graduate Degree in professional subject i.e.
B.Ed/B.P.Ed. etc. (iv) Post Graduate Degree in
professional subject i.e. M.Ed/M.P. Ed. Etc. (if
possesses).

4.2 It was contended that none of the

petitioners who had applied for the post of Shikshan
Sahayak had the Statistics subject as main subject in
the graduation degree as well as post-graduation
degree. It was stated that the petitioner No.1 had
passed B.Com. in Auditing and Management Account.
Similar were the qualifications of the other
petitions, contended learned Assistant Government
Pleader. The crux of the objection of the respondents
were that the petitioners had studied the subject of
Statistics as only one of the subjects but they had
not specialised in the said subject as far as
graduation level study was concerned. The Statistics
was the main subject only at the post-graduation
level which by itself did not meet the requirement as
the subject of Statistics was also necessary to be
the main subject at the graduation level, according
to the stand of the respondents.

5. From the facts of the case and the rival

contentions canvassed, it emerges that the
petitioners passed their B.Com. examination with
Statistics as one of the subjects and in their post-
graduation study in M.Com., subject of Statistics was

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the main subject. Since the petitioners did not have

Statistics as main subject in the graduation level,
they were treated as ineligible on the ground that
the Rules notified on 11th February, 2011 of the
Education Department contemplated such requirement.
Whether the Rules contained and mandated this
prescription as eligibility, is the moot question to
be considered.

5.1 The Rules called Teachers and Headmasters of

Registered Private Secondary and Higher Secondary
Schools (Procedure For Selection) Rules, 2011,
provides for selection procedure. Rule 4 deals with
the selection of Teachers and Headmasters which
states that the selection committee shall select the
persons for appointment on the said post in the
registered private schools from amongst the persons
who are qualified to be appointed as per the
provisions of the Rules. The selection committee
undertakes the process of inviting applications,
recommending the names of the candidates and carrying
out the selection.

5.2 The eligibility for appointment is provided

for in Rule 7. Rule 7 reads as under.

“7. Eligibility for appointment:- To be eligible for

appointment as Teacher or Head Master, a candidate
shall possess-

(a) requisite educational qualifications and age in

accordance with the provisions of the Gujarat
Secondary Education Regulations, 1974; and

(b) basic knowledge of computer application as

prescribed in Gujarat Civil Services
Classification and Recruitment (General) Rules

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1967:

Provided that the age limit shall be relaxed in

favour of a candidate belonging to the Scheduled
Castes, Scheduled Tribes, Socially and Educationally
Backward class and women in accordance with the
provision of the Gujarat Civil Services Classification
and Recruitment (General) Rules, 1967.”

5.3 Rule 9 provides for application for the post

of Headmaster, Rule 10 provides for scrutiny of
applications, whereas Rule 11 deals with the
preparation of the selection list. Rules 11 may be
extracted in its relevant portion.

“11. Preparation of select list:-

(1) (a) The selection committee shall prepare a

list on teh basis of weightage of 70% marks of
the marks secured by the concerned candidate in
Teacher's Aptitude Test to be conducted atleast
once in a year by Gujarat Secondary and Higher
Secondary Education Board, Gandhinagar.

(b) ... ... ...

(c) ... ... ...

(d) ... ... ...

(2) The weightage of 30% will be given, out of the

marks secured in teh prescribed educational
qualification for the concerned post. (Please see the
example in Appendix II)

(3) The maximum marks for the qualification for the

purpose of weightage of 30% shall be as prescribed in
Appendix I.

(4) The Selection Committee shall prepare subject-

wise and category-wise lists on the basis of marks
secured by the concerned candidates as provided in
sub-rules (a) and (b) above.

(5) The selection committee shall prepare a list of

teh successful candidates in the order of merit on the
basis of aggregate marks finally awarded to each
candidate as provided under sub-rule (d) above limited
to the number of posts advertised by the selection
committee.

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(6) The selection committee shall prepare a separate

list of successful candidates belonging to the
Scheduled Castes, Scheduled Tribes, Socially and
Educationally Backward classes and women to the extent
of the number of vacandies reserved for such
categories.

Provided that where the requisite number of

candidates, belonging to Scheduled Casts, Scheduled
Tribes, Socially and Educationally Backward Class or,
as the case may be Nomadic Tribes and Denotified
Tribes, could not qualify on the basis of the
qualifying aggregate marks fixed for general category,
the selection committee may relax the qualifying
aggregate marks to make up the deficiency in these
reserved posts.

(7) The selection committee shall prepare subject-

wise and category-wise waiting lists, showing the
names of the candidates of about 10% of the list of
successful candidates so prepared under sub-rules (2)
and (3) above.

(8) The waiting lists referred to in sub-rule (7)

shall be operative for a period of two years from the
date of publication of the result or till the date of
publication of the result of the next examination,
which ever is earlier.”

(9) The waiting list may be operative in the

following circumstances:-

(i) If the post of Headmaster or Secondary

teacher or higher secondary teacher is not
filled up due to non-joining of the selected
candidate in the prescribed time limit.

(ii) If the selected candidate is disqualified

for appointment for any of the reasons.”

5.4 This Rule thus contemplates giving of

weightage on the basis of the educational
qualification held by the candidate. It provides that
selection committee shall prepare a list on the basis
of weightage of 70% marks of the marks secured by the
concerned candidate in Teachers’ Aptitude Test. It
further says that the candidate who has secured at
least 50 marks in the Teachers’ Aptitude Test (TAT)
shall be considered as qualified for TAT weightage.

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The petitioners have passed the TAT.

5.5 What is further provided, and which is

relevant, is in sub-rule (2) and sub-rule (3) of Rule
11. Sub-rule (2) speaks of giving weightage of 30%
out of the marks secured in the prescribed
educational qualification for the concerned post as
per the example given in Appendix II. Under sub-rule
(3), it is stated that the maximum marks for the
qualification for the purpose of weightage of 30%
shall be as per Appendix II. For the post of Higher
Secondary Teacher.

5.6 The table indicating the weightage which is

part of Appendix II of the Rules, is extracted
hereunder.

“For the post of Higher Secondary Teacher:-

No. Qualification Maximum Marks For example

Percentage Marks
secured by the eligible on
candidate the basis of
percentage
secured by
the
candidate
(col.3xcol.4
/100)
1 2 3 4 5
1 Graduate degree 10 70 7.0
in concerned
subject
2 Post Graduate 10 60 6.0
degree in
concerned subject
3 Graduate degree 5 80 4.0
in professional
subject i.e.
B.Ed./B.P.Ed.
etc.
4 Post Graduate 50 60 3.0
degree in
professional

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subject i.e.
M.Ed./M.P.Ed.
etc.
30 20

5.7 The Rules therefore provide that the

candidates who satisfy the eligibility criteria under
Rule 7 shall be further treated for the purpose of
preparing select list under Rule 11. In preparation
of the select list, the candidates are to be treated
for giving weightage on the basis of the marks they
may have secured in the subject concerned. This is a
stage after the stage of ascertainment of the
eligibility and after short-listing the eligible
candidates who will be, in the subsequent stage,
would be ranked in the order of selection after
giving the weightage as contemplated under Rule 11
read with the Appendix I and II to the Rule.

6. As noticed, the eligibility contemplated

under Rule 7 is the requisite educational
qualification and age in accordance with the
provisions of the Gujarat Secondary Education
Regulations, 1974. The Regulations of 1974 do not lay
down the educational qualification for the post of
Teacher, however Government Resolution dated 28th
October, 1975, referred to in the advertisement as
well under the eligibility condition, provides for
the qualification required to be held by the
candidate. The requisite qualification prescribed
under this Resolution is, “Trained Teachers having
second class Master’s Degree in respective subject or
trained graduate Teachers who have experience of

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teaching in concerned subject for about seven years

in standards 10 and 11”. The respondent authorities
have not been disputing that the petitioners satisfy
this criteria to meet the eligibility.

7. The weightage to be given in terms of Rule

11 of the Rules read with the Appendix as above, is
not the eligibility. The weightage to be given on the
basis of the possessed qualification and the criteria
for eligibility are two different aspects. When the
weightage is given with reference to certain
qualification and when such weightage is counted
under the Rules for the purpose of preparing
selection list on teh basis of merit marks so
obtained of candidates, such weightage cannot be
treated as part of eligibility. The eligibility
consists of criteria separately provided. The
weightage does not determine the selection itself. It
is an additional benefit to be applied or to be given
to the eligibles to be selected in the order amongst
the eligible candidates. The weightage to be given
could be said to be part of procedure of selection
and not the part of the criteria to be in the
eligibility zone. Therefore, the provision for giving
weightage in the Rules is not to be confused with the
concept or criteria of eligibility.

8. The respondent No.2 in his affidavit-in-

reply, as can be seen from the averments in paragraph
7 onwards, has referred to the weightage provision as
eligibility by extensively relying on them. The
contention is accordingly raised that petitioners are

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not eligible. In canvassing in such a way, to say the

least, the deponent has misled and misdirected
himself. Therefore, the defence of the respondents on
this principla count falls flat.

9. Furthermore, it is undisputed that when the

advertisement in question was issued on 15th April,
2016 and the selection of Teaches thereunder took
place, aforementioned Rules dated 11th February, 2011
read with the Resolutions dated 28th October, 1975 and
08th October, 2009 were to be applied. The petitioners
expected for issuance of the letter of
recommendations but either the said was not acted
upon or they were withdrawn. The appointment orders
to the candidates considered eligible were issued in
December, 2017. There was no provision regarding the
criteria of Statistics to be the main subject in the
Gujarat Secondary Education Regulations, 1974.

9.1 The eligibility on this score came to be

specified and prescribed subsequently and in that
regard Resolution dated 08th June, 2018 was issued by
the Education Department of the State Government. The
eligibility criteria providing for the subject
required to be possessed by the candidates for being
appointed to the post in question came to be inserted
in Regulation 20(3) to 20(8) as per the
recommendations in the expert committee meeting dated
07th March, 2018, pursuant to which the aforesaid
Resolution was issued. Respondent No.2 has produced
the said Resolution dated 08th June, 2018 for seeking
reliance thereon for submitting that the petitioners

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did not possess the eligibility with regard to the

subject required to be part of the eligibility.

9.2 Thus it was admittedly in the year 2018 only

that the subject of Statistics was provided to be the
main subject required in the graduation and post-
graduation level. This provision was made in
Resolution dated 08th June, 2018, which, in any view,
cannot apply retrospectively and would apply only
prospectively. On the said count, the petitioners
eligibility is not affected when they possessed the
requisite eligibility prevalent and in force when
they underwent the selection process. The denial of
appointment to the petitioners could not hold good.

10. Thus, it became evident that the respondents

while applying the Rules notified on 11th February,
2011, invoked the provisions as regards granting of
weightage in the said Rules. The provision of
weightage contemplated in Rule 11 for mistaken as the
criteria of eligibility. The petitioners were held
dis-entitled to the post treating them ineligible on
such basis. What was contemplated in the Rule
regarding giving of weightage was not the part of the
eligibility criteria indicated and prescribed for the
post in question. The provision of weightage could
not have been treated as prescription of eligibility
to deny the appointment to the petitioners who were
otherwise duly selected and were entitled to the
letters of recommendation for the appointment. In
view of this misapplication of criteria, the refusal
on part of the respondents to appoint the selected

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petitioners to the post of Shikshan Sahayak stood

rendered arbitrary, illegal and in violation of
Articles 14 and 16 of the Constitution.

11. As a result of above discussion and reasons,

both the petitions are allowed in terms of paragraph
7(A) of the respective petitions. Thereby it is
declared that the action on part of respondent No.4-
District Education Officer, Navsari and respondent
No.5-District Education Officer, Anand in not
granting the letters of recommendations to the
petitioners for appointment of Shikshan Sahayaks
(Assistant Teachers) stands as illegal. The
respondents are directed to issue letters of
recommendations t the petitioners in both the
petitions declaring the petitioners as eligible for
the appointment to the post in question.

Direct service is permitted.

(N.V.ANJARIA, J)
Anup

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