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SCA/5277/2010 2/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5277 of 2010
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SANGITABEN
KANTILAL PATEL & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
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Appearance :
MR
HARNISH V DARJI for
Petitioner(s) : 1 - 2.MR.H M.PATEL for Petitioner(s) : 1 - 2.
MS.
KRINA CALL AGP for Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/04/2010
ORAL
ORDER
By
way of this petition the petitioners have prayed to quash and set
aside order dated 15.11.2008 passed by the respondent and further to
direct respondent authority to give appointment to petitioner on the
posts of Vidya Sahayak.
The
brief facts of the case are as under :-
2.1
As per the say of the petitioners, in response to the
advertisement published by the respondents, the petitioners had
applied for the post of Primary Teacher. The petitioners were
appointed.
2.2
Vide order dated 15.2.1995, the respondent no.3 had terminated
services of 118 persons on the ground of large scale irregularities
and illegalities committed in appointment. The said order was
challenged before this Court and this Court had quashed and set
aside the said order.
2.3
Respondent no.3 authorities again terminated their services. The
said order was also challenged and the same was also quashed and set
aside. Against the said order the respondent had filed Letters
Patent Appeal bearing no. 539 of 1995, which came to be admitted by
this Court. The petitioners had filed Special Civil Application
bearing no. 6377 of 1999, which came to be dismissed by this Court
with a liberty to file fresh petition.
2.4
The petitioners made several representations to the respondent
authority from time to time. The petitioners had again filed Special
Civil Application bearing no. 17893 of 2007, which came to be
disposed of with a direction to the petitioners, to make a detailed
representation. The petitioners made representation, but the same
came to be rejected.
2.5
This Court has passed an order in L.P.A. 539 of 1995 and
thereafter, the petitioners made representation to the respondent
authorities. The said representation came to be rejected vide order
dated 15.11.2008 by the respondent authorities. Hence this petition.
Heard
learned advocates for the respective parties and perused the
documents on record.
On
9th September 2008, this Court in L.P.A. 539 of 1995 and
allied matters, has passed following order:
These
appeals are filed by the appellants against the common oral judgement
passed by the learned Single Judge on 15th/24th
September, 1994.
2. The
facts of the case in a nutshell are that The Sabarkantha District
Panchayat Education Committee issued public advertisement, dated
10.4.1991 through the District Primary Education Officer advertising
the vacant posts of Primary Teachers in the Primary Schools under the
control of District Education Committee, Sabarkantha. Such
advertisement stipulated the qualifications expected of the
candidate, age limit as on 1.7.1991, pay scale and other terms and
conditions to be fulfilled by the applicant. One of such conditions,
inter alia, stipulated that the selected candidate shall have to
report for duty at a post where he is directed to report for duty and
he shall have to execute a bond to continuously serve for a period of
3 years failing which to pay an amount of Rs. 10,000/-. It is also
stipulated that such candidate shall have to surrender his original
certificates of educational qualifications to the District Primary
Education Officer for a period of three years at the time of
reporting for duty.
3. Such
advertisement did not specify the number of vacancies in various
schools under the control of District Education Committee,
Sabarkantha. It also did not specify the seats or vacancies reserved
for or to be reserved for candidates belonging to SC, ST, Baxi Panch
community or other socially and educationally backward classes as
well as physically handicapped candidates. The selection took place
pursuant thereto and a select list was prepared and appointments
followed.
4. Such
orders of appointment which were identical in cases of all the
incumbants they, inter alia, stipulated that the appointment of the
candidate was purely temporary and was liable to be terminated in
case vacancies were not sanctioned or approved by the Government.
Condition No. 8 clearly required the candidate that on receipt of
order of appointment the candidate, if he was continuing in service
at another place shall tender his resignation, shall get his
resignation sanctioned, and thereafter only he shall report for duty
on the specified date. In case of his failure to report for duty the
order of appointment shall be treated as cancelled. Condition No. 13
stipulated that the candidate shall have to submit his certificates
of educational qualifications, age as well as his marks-sheet in
original to the office of the District Primary Education Officer
within seven days and the same shall be retained by the office for a
period of three years. Condition No. 14 stipulated that the candidate
shall have to work at least for a period of three years at the place
of his appointment and he shall have to compulsorily serve for three
years. In case such candidate would desire to leave the job earlier
than three years he shall have to deposit rs. 10,000/- in cash within
seven days or he shall execute a security bond for the said amount
within seven days.
5. On
15th February, 1995 i.e. within a period of ten months
from the order of appointment the District Primary Education Officer,
Sabarkantha District Panchayat issued orders of termination
terminating service of approximately 118 persons who joined as
teachers inter alia stating in said orders of termination that the
appointee has in his application for recruitment referred to
additional qualification. It is further stated in said orders of
termination that such candidate was entitled to specified number of
marks only. While the Staff Selection Committee has allotted more
marks (2/4 more marks). It is further stated that large scale
complaints were received alleging irregularities and illegalities in
recruitment/appointment of Primary Teachers and therefore by
Resolution dated 2nd/8th July, 1992 passed by
the General Board of the District Panchayat investigation was
entrusted to the President of Sabarkantha District Panchayat who has
on private investigation found that additional marks allotted to the
appointees were wrongly allotted. It was further stated in such order
of termination that the appointee was not entitled to such additional
marks which were given and that allotment of such additional marks
was contrary to the Government Circular dated 7.8.1989, and that
therefore in the case of appointee irregularity, illegality and/or
fraud was committed, and that therefore, appointment was wrongly
given. It was further stated in such order of termination that after
such additional marks were excluded the appointee was not entitled to
be appointed, and that therefore, the appointment was liable to be
cancelled and was therefore terminated with immediate effect. Such
cancellation was challenged and was set aside and the matter was
remanded for fresh consideration. Once again the authorities
terminated the services. There was a fresh challenge. The orders were
once again set aside. The appellants have challenged such order of
setting aside the order of termination.
6. Learned
Single Judge noticed that when this group of petitions was initially
notified before this Court, after hearing the petitioners as well as
the respondents, it was felt that the main objecton on behalf of the
respondents was that the then Selection Committee committed
illegalities/irregularities in allotting additional marks for
additional qualifications. It was felt that if the marks are allotted
by the Selection Committee scrupulously as per the circular issued by
the Government dated 7.8.1988 and if the marks in the special
subjects are allotted on the basis of requisite qualification on the
date of interview and if some independent agency is also directed to
remain present at the point of time when Selection Committee prepares
the merit/select list then such list would be beyond any dispute or
challenge, and that the appointing authority shall abide by such
select list. Accordingly, by order dated 28.12.1993 a Special
Committee was constituted with the consent of all the advocates and
further directions were also stipulated in the said order which are
as under:
It
is agreed that for special subjects where 10 marks are to be allotted
the candidates must possess such qualification on the date of
interview which in the present group of petitions admittedly took
place on 28.2.1992. If the candidates possessed prescribed
qualification in any of the special subjects on the date of
interview, i.e. 28.2.1992 on his producing such original certificate
and/or xerox copies thereof with undertaking to get confirmation from
appropriate authority before whom he has produced the original
certificate within time to be directed by the Committee entitlement
of such candidate for allotment of additional marks shall be
accepted .
7. Partly
in conformity with the directions issued by this Court, though not
within stipulated time, the respondents prepared five separate merit
lists i.e. (i) general merit list of all candidates based on the
marks obtained by them (totalling to 3474) (ii) separate list of
candidates belonging to Scheduled Castes (553), (iii) separate list
of candidates belonging to Scheduled Tribe (62), (iv) candidates
belonging to Baxi Panch (665), (v) Physically handicapped (108), thus
totalling to 4862.
8. The
appointment of the petitioner was set aside on the ground of
misrepresentation etc. Thus arose the question which has been
answered by the learned Single Judge.
9. Are
original petitioners or anyone of them said to be guilty of
misrepresentation? The original petitioners have produced
certificates of marks-sheets of examinations they have passed.
Whether the original petitioners were entitled to additional two
marks for passing examination in special subjects or not was the
question which was the centre point of controversy between the
appllants on one hand and the respondents on the other hand. What was
the relevant date on which the candidate must possess such
qualification was the question that was argued at length before the
learned Single Judge initially. At that point of time it was
submitted before the Court by the respondents that by giving 2/4/6
additional marks for passing examination in special subjects two
candidates who were not entitled to such additional marks the
Selection Committee has manoeuvred the select list and has thereby
wrongly included large number of candidates who were not entitled to
the allotment of additional marks and therefore not entitled to be
included in the select list. In order to see that wrong allotment of
additional marks for passing examination in special subjects do not
result into exclusion of meritorious candidates, this Court with the
consent of learned advocates for parties passed interim order on
28.12.1993. The order was self explanatory. At that time, it was felt
both by the petitioners as well as respondents that if the marks are
allotted by the Selection Committee scrupulously as per circular
dated 7.8.1989 and if marks in the special subjects are allotted on
the basis of possession of requisite qualification on the date of
interview and if same independent agency is also directed to remain
present at a point of time when the select list is prepared,
preparation of such select-list would be beyond dispute and/or
challenge and that the petitioners as well as respondents shall abide
by such select list.
10.
It was in that situation that a Special Committee was constituted by
the Court and such Committee was directed to prepare the select list
afresh. The Committee was directed that for passing examination in
special subjects where two marks per examination were to be allotted
must be allotted, but the candidate must possess such qualification
on the date of interview which in the present group of petitions
admittedly took place on 28.2.1992. If the candidate possessed
prescribed qualification in any of the special subjects on 28.2.1992
on his producing such original certificate and/or xerox copies
thereof with undertaking to get confirmed from appropriate authority
before whom he has produced the original certificate within time to
be stipulated by the Committee entitlement of such candidate for
allotment of additional marks was to be accepted. Accordingly,
Special Committee has undertaken the exercise and has produced the
fresh select list before this Court.
11.
As pointed out hereinabove the Committee has, in all, prepared 5
separate lists. From out of 74 petitioners who instituted petitions
in this Court four petitioners were falling within the merit list
because of addition of two additional marks and such petitions being
SCA Nos. 10295, 10246, 10228 and 10237 of 1993 were allowed and with
the consent of learned advocates for the parties orders of
termination passed against those petitioners were directed to be
quashed and set aside. The Court was left with balance 70 matters
where because of orders of stay granted by K.G. Shah, J, the
petitioners are continued in service and are as on date continuously
working from the date of their appointment as primary teachers in the
primary schools run by Sabarkantha District Primary Education
Committee.
12. Further
development took place during the course of hearing which has been
noticed by learned Single Judge. It is agreed between the parties
that the Court may proceed to decide the rival submissions on the
basis that 442 vacancies are required to be filled from the select
list prepared by the Committee.
13. Learned
Single Judge after examining the arguments found that in the
aforesaid fact situation, the course of action adopted by the
administration was the only permissible course, if on the ground of
large scale irregularities allegedly committed by the Selection Board
the entire select list is to be cancelled, such course of action in
the context of irregularities may be upheld. However, in the facts
before this Court the respondent authorities did not want to set at
naught the entire process of selection. They did not want to cancel
the entire select list. They did not want to affect those meritorious
candidates who were already appointed pursuant to their selection.
They only wanted to confine their course of action vis-a-vis those
candidates to whom additional marks for passing examination in
special subjects were wrongly allotted.
14.
It was orally contended by the authorities before the learned Single
Judge that large number of meritorious candidates though applied
were not at all called for interview and were therefore excluded from
consideration but that ground ground was not pressed into service for
cancellation of the select list. Therefore, because of the stand of
the respondent authorities before the learned Single Judge, it was
not found possible to hold that the select list prepared by the
Selection Committee was unfair or injudicious or that it was vitiated
as a whole. It was contended that the select list prepared by the
Committee shall have to be operated partially and the aforesaid
decision of the Supreme Court, in fact, would not support the
respondents because they themselves have taken up the stand that the
entire select list is not vitiated. The auathorities want to defend
the select list vis-a-vis those meritorious candidates who were
already appointed but they wanted to challenge it vis-a-vis the
candidates like petitioners to whom additional marks for passing
examination in special subjects were allegedly allotted by the
Selection Committee.
15. It
was seen that in none of the orders of termination except alleging
irregularity, any specific misconduct is attributed to the
candidate. In fact, no foundation was laid for holding that fraud was
committed by any of the candidates. Learned Advocate for authorities
also could not substantiate the allegation of fraud as in none of the
orders of termination specific fraud is attributed to anyone of the
candidates nor is any element of fraud stated in the order or proved
before the Court. No specific allegation of nepotism or favourtism
was made against any of the candidates. In the absence of such
allegations, question of proving the same could not arise. In cases
of most of the petitioners the stand of the authorities was that two
marks were wrongly allotted by the Selection Committee. In some of
the cases the allegation is that more meritorious candidates were
left out and appointments were given to the petitioners. When learned
Advocate for authorities was confronted with a straight question as
to who are the candidates more meritorious and left out by the
Selection Committee the answer was that such candidates were not at
all called for interview. If such an allegation was to be accepted,
the respondent authorities ought to have cancelled the entire process
of selection, but that exercise they have not undertaken. Those
candidates who have allegedly applied, secured more marks and not
called for interview had not made any grievance before this Court or
before any other Court. They did not bother to come to Court of law
at all. In this group of petitions, therefore, in the opinion of
learned Single Judge, it was not just and proper to take into
consideration those candidates who were allegedly more meritorious
and who were not called for interview despite their better merits.
When such persons did not make any grievance before this Court or
before the respondent authorities and when they had not instituted
any proceeding in the Court of law it had to be assumed that they had
waived their right and/or they were not vigilant about enforcement of
their right if there can be said to be any. In this position,
therefore, in the opinion of learned Single Judge it was just and
proper to ignore consideration of such candidates who were allegedly
more meritorious, who had applied for the posts but who were not
called for interview at all by the Selection Committee. The
advertisement is of 1991. One round of litigation was already over in
the Court when C.K. Thakkar J, quashed the order of termination and
remanded the matter to respondents. At no stage since 1991, such
allegedly more meritorious candidates had challenged their
non-consideration or exclusion from consideration.
16. In
the show cause notice as well as impugned order of termination it is
alleged against the petitioners that they were guilty of
irregularity. Once again, the question is as to whether any
irregularity could be attributed to the petitioners. The only
function of the petitioners in the entire process of selection is to
make application pursuant to advertisement along with necessary
certificates and testimonials and marks-sheets. Based on such
application and the marks obtained in relevant examination the
Selection Committee is to work out the total number of marks. Under
the Govt. Circular also the Selection Committee had no power to allot
marks beyond allotting marks for passing SSC, PTC examinations and 10
additional marks for passing in special subjects such as Drawing,
Physical Training, Sewing etc. The Selection Committee therefore also
does not possess any power to allot any marks for performance at
interview and in fact it is not the case of the respondents that
marks were allotted by the Selection Committee for performance at
interview. In view of this peculiar method of selection which is more
or less objective and in which subjective element does not appear at
any stage, it is very difficult to appreciate as to how the
petitioners can be said to be guilty of any irregularity.
17.
The relevant date for considering the eligibility for additional
marks was to be fixed by the Selection Committee. The candidates have
simply submitted their certificates and marks sheets either in
original or xerox copies thereof. One fails to understand as to how a
candidate can be said to be guilty of any irregularity if he has
submitted marks-sheet or certificate of passing examination
subsequent to the date of advertisement but prior to the date of
interview. The Selection Committee has with open eyes allotted marks
for passing examination in special subjects. Irregularity, if any,
can be said to have been committed by the Selection Committee. The
candidates cannot be visited with penal consequences for such
irregularities allegedly committed by the the District Primary
Education Officer or other members of Selection Committee or
subordinate staff. In case of no petitioner, it is specifically
attributed to him that anyone of the officers was related to the
petitioners or had taken special interest in the case of petitioner
for extraneous considerations or has acted at the instance or under
the influence of the petitioner. In the absence of any allegation of
this nature it would be difficult for this Court to come to
conclusion that the petitioners were guilty of irregularity
attributed to them in the process of selection. From the nature of
affidavit-in-reply and the steps taken by the respondents against
erring officers it prima facie becomes clear that the fault lay at
the doors of the authorities and not at the doors of the candidates.
The authorities are absolutely justified in taking action against
such erring officers which they have already taken by initiating
departmental proceedings. This Court has no manner of doubt that in
case the charges are established against such erring officers the
respondents shall take appropriate action against such officers.
However, for any misconduct on their part irregularity of the nature
alleged cannot be attributed to the candidates and learned Single
Judge was of the opinion that the orders of termination of services
which are solely based on such allegation of alleged irregularity
were not justified.
18. It
is contended by the candidates before the Court that even under the
principle of promissory estoppel the respondents should be estopped
from terminating the services of the petitioners inasmuch as acting
on the printed order of appointment issued in their favour they have
acted to their detriment inasmuch as firstly some of the
petitioners resigned from service where they were already serving
with a view to join the school at which postings were offered to them
by the respondents, secondly some
of the petitioners received appointment orders in other schools
subsequent to the orders of appointment received from the respondent
authorities and they preferred to continue with the respondent
authorities and did not join the other posts of appointment, thirdly
some of the petitioners received interview calls from various other
District Panchayats for the post of Primary Teachers under their
control, but they could not respond to such interview calls as they
were already employed in the schools run by the respondents and
secondly their original documents/certificates/testimonials and
marks-sheets were retained by the respondent authorities for three
years under the order of appointment and therefore in the absence of
such documentary evidence they could not appear before the other
authorities in other Districts, fourthly
they have already executed bond for an amount of Rs. 10,000/- to
perform their part of contract i.e. to continue to serve as primary
teachers in the schools run by the respondents for three years and
therefore they having changed their position to their detriment the
respondents are now estopped from terminating their services.
19. It
was further noted by learned Single Judge that petitioners of
following SCAs are those who resigned from their existing job to join
the services of the respondents or who despite receipt of their
appointment orders from other districts could not join.
Special
Civil Application Nos. 1233, 10236, 10485, 10306, 10310, 10281,
10304, 10222 of 1993.
20. SCA
10537/92 – The petitioner of this petition has actually received
appointment order from Kutch, Amreli and Baroda districts but could
not resume in view of employment with respondents.
21. SCA
No. 11032/93 – The petitioner of this petition has actually
received appointment letter from Ahedabad District Panchayat but
could not join in view of employment with respondents.
22. Petitioners
of the following SCAs are those who actually received interview calls
from other district panchayats but could not report or join duties as
the original documents were retained by respondent authorities:
SCAs
18186, 10608, 10320, 10521, 10180, 10533, 10538 and 10536 of 1993.
23. Arguing
the appeals, learned counsel for the appellant contended that
illegality as alleged is writ large. Those who have been held
selected have been awarded marks they were not entitled to.
24. Learned
counsel contended that among appointment beyond 257 candidates was
impermissible. The appointment of only such candidates could be made
as per Rule.
25. Any
appointment which is the consequence of a process which is illegal
cannot in any way have the legitimacy. Any illegality be not
permitted to be continued.
26. Invoking
of the doctrine of promissory estoppel is also not conducive in the
facts of the present case.
27. Per
contra learned counsel for the candidates submitted that the
candidates are in service since their first appointment. Any amount
of illegality in award of marks would not be sufficient to undo the
experience they have gained in teaching. Their years of service and
the experience gained would be lost if they were to be thrown out of
service now.
28. It
was further contended that those who could possibly be appointed in
place of the incumbent have not raised any grievance at any point of
time. They have abdicated in favour of the present incumbents. There
are no persons to be adjusted in place of the petitioners.
29. It
was also pointed out that learned Single Judge has taken note of the
situation wherein it is obvious that most of the original
petitioners, had they been not appointed by the selection in question
then, had alternatives available to them. Now with the passage of
time they will be left high and dry. They will not only not be able
to have any other employment but will have to remain jobless wasting
the experience gained by them.
30. In
the whole process no single incident has been indicated by
authorities that the candidates ever intended to play any mischief.
If they have been bona fide thrown out for reasons other than for the
reasons communicated by the officials they be not punished.
31. We
have given our careful consideration to the facts of the case. The
most important aspect which stands out boldly is that the only
allegation against the appointments is that they could not have been
awarded 2/4 marks which were awarded to them by authorities.
32. If
their question is objectively considered then it is more than obvious
that the candidate had no say in the process at all. Whatever was
done was done by the authorities without there being any active or
passive aid or involvement of the candidates. If the involvement of
the candidate is excluded then any mala fide on the part of the
authorities gets excluded positively.
33. The
resultant effect of the alleged wrong award of marks was that the
meritorious candidates were excluded. They have never raised any
grievance. In their absence if the candidate has occupied the
position for almost fifteen years then their shortcomings, if any,
would get compensated by their experience. In this background when
we see that the candidates while joining the service in question had
altered their position to a level where they in some cases resigned
their present occupation then their case is required to be judged in
that background also.
34. It
is also noteworthy that the original certificates were taken over by
the authorities. This prevented the incumbents from pursuing their
cause for another employment. Thus, they rendered their services in
hapless situation.
35. Where
no active or passive wrong is attributable to the candidates, the
infringements have to be attributed to the authorities. The result is
not affected by the rightful claimants. Then disturbing the position
at this distance of time appears to be a very tough situation. It was
noticed that a belated attempt at challenging the judgement is made
in the form of Letters Patent Appeal Nos. 1145, 1146 and 1147 of 1996
by the candidates who were excluded from consideration; but no
further attempt appears to have been made for even an early hearing
of the appeals. Therefore, even assuming that they were entitled to
consideration for being more meritorious than the respondents, they
could not be granted any relief by disturbing the impugned judgement
so as to accommodate them in service without their through a fresh
process of selection which, in any case, is impractical now.
36. Thus
in the peculiar facts and circumstances of this case where the
person who could claim has not come forward in time, the defect was
of the system followed by authorities over which petitioners had no
control. The situation has forced the candidates in a position where
if they are removed a greater injustice would ensue. The defect was
very minimal. No fraud or nepotism was established. We would
countenance the situation and would consider that in this particular
case no interference be made. Thus, these appeals deserve no
consideration. The same are, therefore, dismissed. The judgement of
learned Single Judge is upheld. Civil Applications are also
disposed as not surviving. No costs.
In
view of above, no relief can be granted in this petition. Hence
petition is rejected.
[K.S.Jhaveri,J.]
*Himansu
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