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LPA/173/2010 1/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 173 of 2010
In
SPECIAL
CIVIL APPLICATION No. 316 of 2010
with
CIVIL
APPLICATION No. 1266 of 2010
in
LETTERS
PATENT APPEAL No. 173 of 2010
With
LETTERS
PATENT APPEAL No. 175 of 2010
In
SPECIAL
CIVIL APPLICATION No.1292 of 2010
with
CIVIL
APPLICATION No. 1269/1292 of 2010
in
LETTERS
PATENT APPEAL No. 175 of 2010
With
LETTERS
PATENT APPEAL No. 373 of 2010
in
SPECIAL
CIVIL APPLICATION No.1392 of 2010
with
CIVIL
APPLICATION No. 2254 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1292 of 2010
With
LETTERS
PATENT APPEAL No. 153 of 2010
In
SPECIAL
CIVIL APPLICATION No. 293 of 2010
With
CIVIL
APPLICATION No. 981 of 2010
in
LETERS
PATENT APPEAL No. 153 of 2010
With
LETTERS
PATENT APPEAL No. 241 of 2010
In
SPECIAL
CIVIL APPLICATION No. 293 of 2010
With
LETTERS
PATENT APPEAL No. 251 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1237 of 2010
with
CIVIL
APPLICATION No. 1710 of 2010
in
LETTERS
PATENT APPEAL No. 251 of 2010
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
&
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
PATEL
PINALBEN DASHRATBHAI & 4 - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
: [Letters Patent Appeal Nos. 153, 173 & 241 of 2010]
Mr
SI NANAVATI Sr Advocate with Ms ANUJA S NANAVATI
for
Appellants
Mr SHIVANG SHUKLA AGP for Respondents
Mr
SHALIN N MEHTA for Respondent Nos. 3-7
Appearance
: [Letters Patent Appeal Nos.175 of 2010]
Mr
IS SUPEHIA with Mr AS SUPEHIA for Appellants
Mr SHIVANG SHUKLA
AGP for Respondents.
Appearance
: [Letters Patent Appeal Nos. 373 of 2010]
Mrs
NISHA M PARIKH for Appellants
Mr SHIVANG SHUKLA AGP for
Respondents.
Appearance
: [Letters Patent Appeal Nos. 251 of 2010]
Ms
TEJAL VASHI for Appellants
Mr SHIVANG SHUKLA AGP for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH 9th / 10th March
2010 & 11th March 2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
With the consent of the learned
advocates, the Appeals are heard and decided today.
This group of Appeals preferred
under Clause 15 of the Letters Patent arise from the judgment and
order dated 28th
January 2010 passed by the learned Single Judge in above Special
Civil Applications. The appellants are the writ
petitioners.
The appellants are the persons who have taken PTC training [Primary
Teacher’s Course] for two years
in the colleges recognized by the State of Gujarat and the National
Council for Education Training, Bhopal. The petitioners have taken
and have passed the PTC examination conducted by the State
Examination Board, Gujarat State, Gandhinagar between the years 2004
and 2008.
The matter at dispute is the selection procedure for appointment of
Vidya Sahayaks in the State of Gujarat. On 22nd
December 2009, an advertisement was published to invite applications
from the eligible candidates for appointment of Vidya Sahayaks under
various District Primary Education Committees in the State of
Gujarat. The selection for appointment of Vidya Sahayaks is made on
the basis of aggregate marks obtained by the candidates at the
qualifying examinations HSC-PTC; Graduate-B.Ed.; HSC-CP.Ed. It is
not in dispute that the merit list is drawn on the basis of marks
obtained in the qualifying examinations. Forty per cent
of the marks are attached to the first qualifying examination, that
is to say, HSC or Graduation. Sixty per cent
marks are attached to the later qualifying examinations; say
PTC/B.Ed./CP.Ed. The dispute arose on account of marking pattern at
the PTC examination which has undergone change over the years.
It appears that earlier, the PTC examination was of total 1600 marks
which was in the later years reduced to 1500 / 1450 and since 2009,
the total marks are reduced to 1000 marks. Evidently, if sixty per
cent of the total marks obtained
were considered, the candidates who had passed the PTC examination in
the earlier years viz., in the year 2008 or earlier, would stand at
an advantage. This position gave rise to a litigation. The aggrieved
candidates who have passed PTC examination in the year 2009
approached this Court under Article
226 of the Constitution in Special Civil Application No. 13743 of
2009. Pending the said petition, the State Government issued
Clarification / Explanation dated 6th
January 2010. The said explanation redressed the grievance of the
petitioners in Special Civil Application No. 13743 of 2009.
Eventually, the writ
petition was disposed of. However, the said explanation has triggered
the present set of writ
petitions.
The
appellants are aggrieved by the aforesaid clarification / explanation
dated 6th
January 2010 and the consequent circular dated 15th
January 2010. The appellants have passed the PTC examination in the
year 2008 or earlier. According to then prevalent system, the result
of the PTC was based on the marks awarded on internal evaluation at
the written examination and the practical examination. Under the
Circular dated 15th
January 2010, the State Government has decided that only the marks
obtained at the written examination and the practical examination
will be considered for ascertaining the comparative merit of the
candidates. In other words, the marks awarded for the internal
evaluation out of total 450/300 as the internal marks will be
ignored for the purpose of selection of the Vidya Sahayaks. This
clearly places the appellants to a disadvantage. Therefore, the writ
petitions.
Before
the learned Single Judge, the appellants challenged the above
referred Circular dated 15th January 2010. The appellants’
claim is that they had passed the PTC examination in the year 2008 or
earlier. At the time, the recruitment of Vidya Sahayaks was governed
by the Government Resolution dated 3rd September 2004. The right of
the appellants were accordingly crystallized. The same could not
have been altered to the detriment of the appellants. The subsequent
Resolution of 7th July 2008, though did do away with the internal
evaluation, did not affect the rights accrued to the appellants under
the above referred Circular dated 3rd September 2004. It is now for
the first time under Circular dated 15th January 2010, the rights
accrued to the appellants under Circular dated 3rd September 2004
have been abrogated with a view to striking equality between the
candidates who have passed the PTC examination in the year 2009 and
those who have passed examination in the year 2008 or earlier. The
marks obtained by the appellants in the internal examination have
been ignored. The impugned circular is thus arbitrary in so
far as it affects the vested rights of the appellants.
The learned Single Judge has, by the impugned judgment and order
dated 28th January 2010, rejected the contention. The learned Single
Judge was of the opinion that it was a matter of policy that, such
modification was along the policy and decision of the Government
after consideration of relevant facts and circumstances, which cannot
be subjected to judicial review. Therefore, the
argument that the Government has changed the rules by changing the
criteria for selection after starting the process of recruitment is
negatived and rejected.
10 th
March 2010
The
question is that of recruitment for appointment to the post of Vidya
Sahayaks. The scheme for appointment of Vidya Sahayaks to aid the
primary education in the State of Gujarat was evolved by the State
Government in June, 1998. It was decided to make appointment of Vidya
Sahayaks on vacant posts of primary school teachers on a consolidated
pay from amongst the candidates possessing educational qualification
– [i] SSC-PTC; [ii] Trained Graduates (Graduation & a
Post-Graduate Degree in Education); [iii] SSC-CP Ed. (Certificate
in Physical Education). It was also decided that for selection of
the candidates, the marks be calculated on the basis of forty per
cent of the marks obtained at SSC or Graduation examination; as
the case may be, and sixty per cent of the marks obtained at
the PTC or B.Ed. or CP.Ed. Examination; as the case may be. The said
criteria was modified to the extent that the required qualification
was raised to that of HSC-PTC or HSC-CP.Ed. The evaluation of merit
was maintained in the same manner i.e., forty per cent of the
marks obtained at HSC or Graduation examination and sixty per cent
of the marks obtained in PTC or B.Ed. or CP.Ed. examination.
11 th
March 2010
Under
its Resolution dated 9th June 1998, the Government of
Gujarat modified the admission rules to the PTC. Since the academic
year 1998-99, the required qualification for admission to PTC was
raised to HSCE [Higher Secondary School Certificate Examination]
from that of SSCE [Secondary School Certificate Examination].
With a view to keeping pace with the modified admission rules to PTC,
the State Government under its Resolution dated 21st June
2000 modified the rule of eligibility. Under Government Resolution
dated 1st October 2001, the State Examination Board
modified the pattern of PTC examination. The State Government under
its Resolution dated 3rd September 2005 modified the
standard of selection for recruitment of Vidya Sahayaks. Under its
Resolution dated 7th July 2008, the State Government
modified the examination pattern for PTC examination effective from
the academic year 2008-2009. Under the modified pattern, the
weightage to the internal marks has been done away with so that the
examination result is based on written examination of 900 marks and
practical examination of 100 marks [50 marks for annual lesson and
50 marks for computer knowledge]. Now, in the year 2010, the
competition is between the candidates who have passed PTC examination
of total 1000 marks in the year 2009 and the candidates who have
passed the PTC examination of total 1500 marks earlier. The
competition being not amongst the equals, the State Government was
required to strike the balance. That balance has been struck by the
impugned circular dated 15th January 2010. The State
Government has decided that for all candidates only the marks
obtained in the external examination and practical examination out of
total of 1000 marks will be considered for recruitment as Vidya
Sahayak. In other words, the marks obtained by the candidates for
internal evaluation will not be considered for the purpose of
recruitment as Vidya Sahayak. Evidently, those of the candidates who
had secured better marks for internal evaluation would stand to lose
in competition.
Learned
advocate Mr. S.I Nanavati appears for the appellants in Letters
Patent Appeal Nos.173 of 2010; 153 of 2010 & 241 of 2010. He has
submitted that the impugned circular abridges the vested
rights of the appellants of selection on the basis of the marks out
of the total 1500 marks, including the marks allotted for internal
evaluation. He has submitted that until the Resolution dated 7th
July 2008, the marks obtained in internal evaluation were considered
for selection for appointment as Vidya Sahayak. Even under Government
Resolution dated 7th July 2008 this position continued as
the said resolution was made prospective in its application i.e.,
with effect from the academic year 2008-2009. The appellants who had
passed the PTC examination in the year 2008 or earlier were not
adversely affected by the said Resolution. It is the impugned
circular dated 15th January 2010 which has changed the
position to the detriment of the appellants’ interest. He has
submitted that no change in Government policy could be made
retrospectively so as to adversely affect the vested right of the
appellants. In support of his submission, he has relied upon the
judgments of the Hon’ble Supreme Court in the mattes of Punjab
University vs. Subhas Chander & Anr.[(1984) 3 SCC 603];
and of Chairman, Railway Board & Ors. vs. C.R
Rangadhamanaiah & Ors. [1997 (6) SCC 623].
In the alternative, Mr. Nanavati has submitted that if at all the
State Government was required to strike balance amongst the
candidates not equally situated, the State Government could have
decided to scale down the marks obtained by the candidates out of the
total 1500 marks proportionately so as to bring them at par with the
candidates who have passed the examination of a total 1000 marks. But
in no circumstances, the State Government can be permitted to ignore
the marks obtained by the appellants for internal evaluation. The
appellants had to work hard to secure good marks for internal
evaluation. If the marks for internal evaluation are not considered
for the purpose of selection for appointment as Vidya Sahayak, the
appellants would stand to lose. He has submitted that the impugned
circular dated 15th January 2010 is arbitrary to the
extent the appellants’ vested right is abrogated as aforesaid and
requires to be quashed and set-aside.
Learned advocates Mr.I.S Supehia, Ms. Nisha M. Parikh & Ms. Tejal
Vashi appearing for the appellants in respective Letters Patent
Appeals have adopted the arguments advanced by Mr. Nanavati.
We
are afraid, we are unable to agree with the contentions raised by Mr.
Nanavati.
The
grievance made by the appellants is based on a misconception of law.
First, by passing PTC examination, no right is conferred upon the
appellants to appointment as Vidya Sahayak. Second, it is also
misconceived that the State Government is under obligation to
consider the marks
obtained by the candidates at PTC examination in its entirety, for
recruitment as Vidya Sahayak. The passing of PTC examination is one
thing and the selection for appointment as Vidya Sahayak is another.
It is a mere co-incidence that in the present case, the PTC
examination is conducted by the State Examination Board. In other
words, it is the State Government which gives the PTC examination and
by and large the persons who have passed the PTC examination do
secure employment as Vidya Sahayak in the Primary Schools run by
various District Panchayats/Municipalities. But, in our opinion, two
things are quite different.
As recorded hereinabove, there are two sets of Resolutions/Circulars
running parallel. One set of Resolutions/Circulars are issued in
respect of the PTC course and the PTC examination i.e., the requisite
qualification for admission to PTC course; the number of subjects in
the PTC course and the pattern of examination. There is a constant
change in the pattern of examination i.e., whether or not to have
internal evaluation; what should be the extent of weightage to the
internal evaluation; what should be the total marks in the
examination, etc.
The other set of Resolutions/Circulars deal with recruitment of Vidya
Sahayaks. It is evident that the pattern of recruitment of Vidya
Sahayak has been changed from time to time to fall in line with the
pattern in PTC examination. Now that since the academic year
2008-2009 the State Government has done away with the internal
evaluation at the PTC course, the question of considering the marks
of internal evaluation for the purpose of selection of Vidya Sahayak
would not arise. Further, the selection process is required to be
uniformly applied to all candidates irrespective of the year of their
passing the examination or the pattern of examination in the relevant
year. The policy decision contained in the Government Resolution
dated 7th July 2008, therefore, will apply to all
recruitment procedures conducted after 7th July 2008
uniformly to all the candidates. It is manifestly wrong to say that
the present policy contained in the Government Resolution dated 7th
July 2008 and the Circular dated 15th January 2010 cannot
be made applicable to the appellants who have passed the PTC
examination prior to the academic year 2008-2009. It is equally wrong
to say that the policy has been applied retrospectively. The said
Resolution and the Circulars are indeed applied prospectively i.e.,
to the recruitment procedures commencing after 7th July
2008, the date of the Resolution.
Let us examine the very issue from another angle. If we accept the
argument of the appellants; it would mean that in the same
recruitment process, the State Government should apply two different
sets of selection standards one for the candidates who have
passed the PTC examination in the year 2009 and other for the
candidates who have passed the PTC examination in the year 2008 or
earlier. The contention which leads to such absurdity has to be
rejected.
In our view the learned Single Judge has rightly held that
determination of standard of selection is a matter of policy and that
the Court should not interfere with it. More so, when we are of the
opinion that neither the appellants have a vested right to selection
for appointment as Vidya Sahayak nor to selection by a particular
method which was prevalent at the time of their passing the PTC
examination.
As to the feasibility of scaling down the marks proportionately, we
are of the opinion that while exercising the power of judicial review
under Article 226, we need not usurp the advisory
jurisdiction.
In the matter of Punjab University vs. Subash Chander &
Anr. [Supra], the Hon’ble Court had an occasion
to consider the claim of a student of medical college for grace marks
in accordance with the rules prevalent at the time of his admission
to medical college and not in accordance with the rules prevalent at
the time of the concerned examination. The argument was that a change
in the rules relating to the award of grace marks brought about in
the month of May 1970, after the student had secured admission in the
year 1965, could not be applied retrospectively to the student
concerned. In answer to the argument, the Hon’ble Court held
that the change in the rules was prospective. The Court observed,
..It is not possible to hold that it is retrospective in
operation merely because though introduced in 1970 it was applied to
Subhash Chander, respondent 1, who appeared for the final examination
in 1974, after he had joined the course earlier in 1965. No promise
was made or could be deemed to have been made to him at the time of
his admission in 1965 that there will be no alteration to the rule or
regulation in regard to the percentage of marks required for passing
any examination or award of grace marks and that the rules relating
thereto which were in force at the time of his admission would
continue to be applied to him until he finished his whole course.
In the matter of Chairman, Railway Board & Ors. [Supra],
the matter at issue was the amendment made to a service regulation
affecting the running staff of the railways. The impugned
amendment not only operated in futuro, had an effect of
reversal from an anterior date, adversely affecting the pension of
the retired running staff [personnels employed as Drivers, Guards,
etc., attached to the railway]. The Hon’ble Court accepted
the proposition that once a person joins service under the
Government, the relationship between him and the Government is in the
nature of status rather than contractual and the terms of his service
while he is in employment, are governed by statute or statutory rule,
which may be unilaterally altered without the consent of the
employees. But, the Court held, ..It can, therefore, be said
that a rule which operates in futuro so as to govern future rights of
those already in service cannot be assailed on the ground of retro
activity as being violative of Articles 14 and 16 of the
Constitution, but a rule which seeks to reverse from an anterior date
a benefit which has been granted or availed of, e.g., promotion or
pay scale, can be assailed as being violative of Articles 14 and 16
of the Constitution to the extent it operates retrospectively.
Both the above referred principles are well established and do not
call for further deliberation.
The question is whether or not the appellants before us had a vested
right for being considered for recruitment as Vidya Sahayak in a
particular manner; whether or not the decision to consider only the
external marks and the practical marks obtained at the PTC
examination for recruitment under process is arbitrary in as much as
in operates retrospectively; as alleged.
As discussed hereinabove, we are of the opinion that passing of PTC
examination did not confer a vested right unto the appellants to
employment as Vidya Sahayak or to be considered for employment as
Vidya Sahayak in a particular manner. Further, for any recruitment
process a uniform policy is required to be applied. Such policy,
merely because the participating candidates have passed the PTC
examination in different years, cannot be said to be retrospective.
If the contention is accepted the present recruitment process can be
said to have been applied with effect from 2004 and also with effect
from 2005, from 2006, from 2007, etc. The absurdity of the argument
is explicit and requires to be rejected.
For the aforesaid reasons, we dismiss this set of Appeals.
Civil Applications stand disposed of. Ad interim
relief, if any, stands vacated.
Learned advocate Mr. Nanavati requests that the interim order made
on 14th February 2010 [Coram
: Mr. Justice Bhagwati Prasad & Mr.
Justice Bankim N. Mehta] be continued for four weeks.
Continuation of interim order will result into posts being
kept vacant and would also lead to preparation of merit list on the
basis of two different principles. The Appeals having been dismissed,
neither the posts are required to be kept vacant nor the respondents
are required to prepare two merit lists applying two different
principles. The request is rejected.
{Ms.
R.M Doshit, J.}
{M.D
Shah, J.}
Prakash*
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