Gujarat High Court Case Information System
Print
SCA/3769/2010 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3769 of 2010
=========================================================
SONALBEN
SOMABHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR.DIPAK
B PATEL for
Petitioner(s) : 1,
MR JK SHAH AGP for Respondent(s) : 1,
None
for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 31/03/2010
ORAL
ORDER
1. The
issue involved in this petition is covered by a decision of this
Court rendered in Letters Patent Appeal No.173/2010 & allied
matters dated 09.03.2010. The said judgment and order is reproduced
hereunder for ready reference;
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 be apply to 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.
2. Hence, this petition will
also be governed by the principle laid down in the aforesaid
decision. Consequently, the petition stands rejected. Rule is
discharged.
[K.S.JHAVERI, J.]
Pravin/*
Top