{"id":253643,"date":"2010-03-22T00:00:00","date_gmt":"2010-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-22-march-2010"},"modified":"2017-08-09T12:20:08","modified_gmt":"2017-08-09T06:50:08","slug":"patel-vs-state-on-22-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-22-march-2010","title":{"rendered":"Patel vs State on 22 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Patel vs State on 22 March, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1237\/2010\t 12\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1237 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1292 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1440 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1630 of 2010\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 2066 of 2010\n \n\n=========================================================\n\n\n \n\nPATEL\nMAHESHKUMAR SADABHAI & 12 - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance : \nMS\nTEJAL A VASHI for\nPetitioner(s) : 1 - 13. \nMR JK SHAH AGP (In SCA Nos.1237\/2010,\n1292\/2010, 1440\/2010 & 1630\/2010) MRS. KRINA CALLA AGP (In SCA\nNo. 2066\/2010) for Respondent(s) : 1 -\n2. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\nDate\n: 22\/03\/2010 \n\n \n\nORAL\nORDER<\/pre>\n
1.\tThe
\nissue involved in these petitions is covered by a decision of this
\nCourt rendered in Letters Patent Appeal No.173\/2010 & allied
\nmatters dated 09.03.2010. The said judgment and order is reproduced
\nhereunder for ready reference;\n<\/p>\n
 With
\nthe consent of the learned advocates, the Appeals are heard and
\ndecided today.\n<\/p>\n
This group of Appeals preferred under Clause 15 of the Letters Patent
\narise from the judgment and order dated 28th January 2010
\npassed by the learned Single Judge in above Special Civil
\nApplications. The appellants are the writ  petitioners.\n<\/p>\n
The appellants are the persons who have taken PTC training [Primary
\nTeacher’s Course] for two years in the colleges recognized by the
\nState of Gujarat and the National Council for Education Training,
\nBhopal. The petitioners have taken  and have passed the PTC
\nexamination conducted by the State Examination Board, Gujarat State,
\nGandhinagar between the years 2004 and 2008.\n<\/p>\n
The matter at dispute is the selection procedure for appointment of
\nVidya Sahayaks in the State of Gujarat. On 22nd December
\n2009, an advertisement was published to invite applications from the
\neligible candidates for appointment of Vidya Sahayaks under various
\nDistrict Primary Education Committees in the State of Gujarat. The
\nselection for appointment of Vidya Sahayaks is made on the basis of
\naggregate marks obtained by the candidates at the qualifying
\nexaminations   HSC-PTC; Graduate-B.Ed.; HSC-CP.Ed. It is not in
\ndispute that the merit list is drawn on the basis of marks obtained
\nin the qualifying examinations. Forty per cent of the marks are
\nattached to the first qualifying examination, that is to say, HSC or
\nGraduation.  Sixty per cent  marks are attached to the later
\nqualifying examinations; say PTC\/B.Ed.\/CP.Ed. The dispute arose on
\naccount of marking pattern at the PTC examination which has undergone
\nchange over the years.\n<\/p>\n
It appears that earlier, the PTC examination was of total 1600 marks
\nwhich was in the later years reduced to 1500 \/ 1450 and since 2009,
\nthe total marks are reduced to 1000 marks. Evidently, if sixty per
\ncent of the total marks obtained were considered, the candidates who
\nhad passed the PTC examination in the earlier years viz., in the year
\n2008 or earlier, would stand at an advantage. This position gave rise
\nto a litigation. The aggrieved candidates who have passed PTC
\nexamination in the year 2009 approached this Court under Article 226<\/a>
\nof the Constitution in Special Civil Application No. 13743 of 2009.
\nPending the said petition, the State Government issued Clarification
\n\/ Explanation dated 6th January 2010.  The said
\nexplanation redressed the grievance of the petitioners in Special
\nCivil Application No. 13743 of 2009. Eventually, the writ petition
\nwas disposed of. However, the said explanation has triggered  the
\npresent set of writ petitions.\n<\/p>\n
\tThe
\nappellants are aggrieved by the aforesaid clarification \/ explanation
\ndated 6th January 2010 and the consequent circular dated
\n15th January 2010. The appellants have passed the PTC
\nexamination in the year 2008 or earlier. According to then prevalent
\nsystem, the result of the PTC was based on the marks awarded on
\ninternal evaluation at the written examination and the practical
\nexamination. Under the Circular dated 15th January 2010,
\nthe State Government has decided that only the marks obtained at the
\nwritten examination and the practical examination will be considered
\nfor ascertaining the comparative merit of the candidates. In other
\nwords, the marks awarded for the internal evaluation   out of total
\n450\/300 as the internal marks will be ignored for the purpose of
\nselection of the Vidya Sahayaks. This clearly places the appellants
\nto a disadvantage. Therefore, the writ petitions.\n<\/p>\n
\tBefore the learned Single
\nJudge, the appellants challenged the above referred Circular dated
\n15th January 2010. The appellants’ claim is that they had
\npassed the PTC examination in the year 2008 or earlier. At the time,
\nthe recruitment of Vidya Sahayaks was governed by the Government
\nResolution dated 3rd September 2004. The right of the appellants were
\naccordingly crystallized.  The same could not have been altered to
\nthe detriment of the appellants. The subsequent Resolution  of 7th
\nJuly 2008, though did do away with the internal evaluation, did not
\naffect the rights accrued to the appellants under the above referred
\nCircular dated 3rd September 2004. It is now for the first time under
\nCircular dated 15th January 2010, the rights accrued to the
\nappellants under Circular  dated 3rd September 2004 have been
\nabrogated with a view to striking equality between the candidates who
\nhave passed the PTC examination in the year 2009 and those who have
\npassed examination in the year 2008 or earlier. The marks obtained by
\nthe appellants in the internal examination have been ignored. The
\nimpugned circular is thus arbitrary in so far as it affects the
\nvested rights of the appellants.\n<\/p>\n
\t The learned Single Judge
\nhas, by the impugned judgment and order dated 28th January 2010,
\nrejected the contention. The learned Single Judge was of the opinion
\nthat it was a matter of policy that,  such modification was
\nalong the policy and decision of the Government after consideration
\nof relevant facts and circumstances, which cannot be subjected to
\njudicial review.  Therefore,  the argument that the Government
\nhas changed the rules by changing the criteria for selection after
\nstarting the process of recruitment is negatived and rejected.\n<\/p>\n
\t\t\t\t 10 th
\nMarch 2010<\/p>\n
\tThe question is that of
\nrecruitment for appointment to the post of Vidya Sahayaks. The scheme
\nfor appointment of Vidya Sahayaks to aid the primary education in the
\nState of Gujarat was evolved by the State Government in June, 1998.
\nIt was decided to make appointment of Vidya Sahayaks on vacant posts
\nof primary school teachers on a consolidated pay from amongst the
\ncandidates possessing educational qualification – [i] SSC-PTC; [ii]
\nTrained Graduates (Graduation & a Post-Graduate Degree in
\nEducation); [iii] SSC-CP Ed. (Certificate in Physical Education). It
\nwas also decided that for selection of the candidates, the marks be
\ncalculated on the basis of forty per cent of the marks obtained at
\nSSC or Graduation examination; as the case may be, and sixty per cent
\nof the marks obtained at the PTC or B.Ed. or CP.Ed. Examination; as
\nthe case may be.  The said criteria was modified to the extent that
\nthe required qualification was raised to that of HSC-PTC or
\nHSC-CP.Ed. The evaluation of merit was maintained in the same manner
\ni.e., forty per cent of the marks obtained at HSC or Graduation
\nexamination and sixty per cent of the marks obtained in PTC or B.Ed.
\nor CP.Ed. examination.\n<\/p>\n
\t\t\t\t 11 th
\nMarch 2010<\/p>\n
     Under its Resolution
\ndated 9th June 1998, the Government of Gujarat modified
\nthe admission rules to the PTC. Since the academic year 1998-99, the
\nrequired qualification for admission to PTC was raised to HSCE
\n[Higher Secondary School Certificate Examination] from that of SSCE
\n[Secondary School Certificate Examination]. With a view to keeping
\npace with the modified admission rules to PTC, the State Government
\nunder its Resolution dated  21st June 2000 modified the
\nrule of eligibility. Under Government Resolution dated 1st
\nOctober 2001, the State Examination Board modified the pattern of PTC
\nexamination. The State Government under its Resolution dated 3rd
\nSeptember 2005 modified the standard of selection for recruitment of
\nVidya Sahayaks. Under its Resolution dated 7th July 2008,
\nthe State Government modified the examination pattern for PTC
\nexamination effective from the academic year 2008-2009. Under the
\nmodified pattern, the weightage to the internal marks has been done
\naway with so that the examination result is based on written
\nexamination of 900 marks and practical examination of 100 marks [50
\nmarks for annual lesson and 50 marks for computer knowledge]. Now, in
\nthe year 2010, the competition is between the candidates who have
\npassed PTC examination of total 1000 marks in the year 2009 and the
\ncandidates who have passed the PTC examination of total 1500 marks
\nearlier. The competition being not amongst the equals, the State
\nGovernment was required to strike the balance. That balance has been
\nstruck by the impugned circular dated 15th January 2010.
\nThe State Government has decided that for all candidates only the
\nmarks obtained in the external examination and practical examination
\nout of total of 1000 marks will be considered for recruitment as
\nVidya Sahayak. In other words, the marks obtained by the candidates
\nfor internal evaluation will not be considered for the purpose of
\nrecruitment as Vidya Sahayak. Evidently, those of the candidates who
\nhad secured better marks for internal evaluation would stand to lose
\nin competition.\n<\/p>\n
\tLearned advocate Mr. S.I
\nNanavati appears for the appellants in Letters Patent Appeal Nos.173
\nof 2010; 153 of 2010 & 241 of 2010. He has submitted that the
\nimpugned circular abridges the vested rights of the appellants of
\nselection on the basis of the marks out of the total 1500 marks,
\nincluding the marks allotted for internal evaluation. He has
\nsubmitted that until the Resolution dated 7th July 2008,
\nthe marks obtained in internal evaluation were considered for
\nselection for appointment as Vidya Sahayak. Even under Government
\nResolution dated 7th July 2008 this position continued as
\nthe said resolution was made prospective in its application i.e.,
\nwith effect from the academic year 2008-2009. The appellants who had
\npassed the PTC examination in the year 2008 or earlier were not
\nadversely affected by the said Resolution. It is the impugned
\ncircular dated 15th January 2010 which has changed the
\nposition to the detriment of the appellants’ interest. He has
\nsubmitted that no change in Government policy could be made
\nretrospectively so as to adversely affect the vested right of the
\nappellants. In support of his submission, he has relied upon the
\njudgments of the Hon’ble Supreme Court in the mattes of Punjab
\nUniversity vs. Subhas Chander & Anr<\/a>.[(1984) 3 SCC 603]; and
\nof Chairman, Railway Board & Ors. vs. C.R Rangadhamanaiah &
\nOrs<\/a>.  [1997 (6) SCC 623].\n<\/p>\n
\t  In the alternative, Mr.
\nNanavati has submitted that if at all the State Government was
\nrequired to strike balance amongst the candidates not equally
\nsituated, the State Government could have decided to scale down the
\nmarks obtained by the candidates out of the total 1500 marks
\nproportionately so as to bring them at par with the candidates who
\nhave passed the examination of a total 1000 marks. But in no
\ncircumstances, the State Government can be permitted to ignore the
\nmarks obtained by the appellants for internal evaluation. The
\nappellants had to work hard to secure good marks for internal
\nevaluation. If the marks for internal evaluation are not considered
\nfor the purpose of selection for appointment as Vidya Sahayak, the
\nappellants would stand to lose. He has submitted that the impugned
\ncircular dated 15th January 2010 is arbitrary to the
\nextent the appellants’ vested right is abrogated as aforesaid and
\nrequires to be quashed and set-aside.\n<\/p>\n
\t Learned advocates Mr.I.S
\nSupehia, Ms. Nisha M. Parikh & Ms. Tejal Vashi appearing for the
\nappellants in respective Letters Patent Appeals have adopted the
\narguments advanced by Mr. Nanavati.\n<\/p>\n
\tWe are afraid, we are
\nunable to agree with the contentions raised by Mr. Nanavati.\n<\/p>\n
\tThe grievance made by the
\nappellants is based on a misconception of law. First, by passing PTC
\nexamination, no right is conferred upon the appellants to appointment
\nas Vidya Sahayak. Second, it is also misconceived that the State
\nGovernment is under obligation to consider
\nthe marks obtained by the candidates at PTC examination in its
\nentirety, for recruitment as Vidya Sahayak. The passing of PTC
\nexamination is one thing and the selection for appointment as Vidya
\nSahayak is another. It is a mere co-incidence that in the present
\ncase, the PTC examination is conducted by the State Examination
\nBoard. In other words, it is the State Government which gives the PTC
\nexamination and by and large the persons who have passed the PTC
\nexamination do secure employment as Vidya Sahayak in the Primary
\nSchools run by various District Panchayats\/Municipalities. But, in
\nour opinion, two things are quite different.\n<\/p>\n
 \t As recorded
\nhereinabove, there are two sets of Resolutions\/Circulars running
\nparallel. One set of Resolutions\/Circulars are issued in respect of
\nthe PTC course and the PTC examination i.e., the requisite
\nqualification for admission to PTC course; the number of subjects in
\nthe PTC course and the pattern of examination. There is a constant
\nchange in the pattern of examination i.e., whether or not to have
\ninternal evaluation; what should be the extent of weightage to the
\ninternal evaluation; what should be the total marks in the
\nexamination, etc.<\/p>\n
\t The other set of
\nResolutions\/Circulars deal with recruitment of Vidya Sahayaks. It is
\nevident that the pattern of recruitment of Vidya Sahayak has been
\nchanged from time to time to fall in line with the pattern in PTC
\nexamination. Now that since the academic year 2008-2009 the State
\nGovernment has done away with the internal evaluation at the PTC
\ncourse, the question of considering the marks of internal evaluation
\nfor the purpose of selection of Vidya Sahayak would not arise.
\nFurther, the selection process is required to be uniformly applied to
\nall candidates irrespective of the year of their passing the
\nexamination or the pattern of examination in the relevant year. The
\npolicy decision contained in the Government  Resolution dated 7th
\nJuly 2008, therefore, will apply to all recruitment procedures
\nconducted after 7th July 2008 uniformly to all the
\ncandidates. It is manifestly wrong to say that the present policy
\ncontained in the Government Resolution dated 7th July 2008
\nand the Circular dated 15th January 2010 cannot be made
\napplicable to the appellants who have passed the PTC examination
\nprior to the academic year 2008-2009. It is equally wrong to say that
\nthe policy has been applied retrospectively. The said Resolution and
\nthe Circulars are indeed applied prospectively i.e., to the
\nrecruitment procedures commencing after 7th July 2008, the
\ndate of the Resolution.\n<\/p>\n
\t Let us examine the very
\nissue from another angle. If we accept the argument of the
\nappellants; it would mean that in the same recruitment process, the
\nState Government should be apply to two different sets of selection
\nstandards   one for the candidates who have passed the PTC
\nexamination in the year 2009 and other for the candidates who have
\npassed the PTC examination in the year 2008 or earlier. The
\ncontention which leads to such absurdity has to be rejected.\n<\/p>\n
\t In our view the learned
\nSingle Judge has rightly held that determination of standard of
\nselection is a matter of policy and that the Court should not
\ninterfere with it. More so, when we are of the opinion that neither
\nthe appellants have a vested right to selection for appointment as
\nVidya Sahayak nor to selection by a particular method which was
\nprevalent at the time of their passing the PTC examination.\n<\/p>\n
\t As to the feasibility of
\nscaling down the marks proportionately, we are of the opinion that
\nwhile exercising the power of judicial review under Article 226<\/a>, we
\nneed not usurp the advisory jurisdiction.\n<\/p>\n
 \t In the matter of Punjab
\nUniversity vs. Subash Chander & Anr. [Supra], the Hon<\/a>‘ble
\nCourt had an occasion to consider the claim of a student of medical
\ncollege for grace marks in accordance with the rules prevalent at the
\ntime of his admission to medical college and not in accordance with
\nthe rules prevalent at the time of the concerned examination. The
\nargument was that a change in the rules relating to the award of
\ngrace marks brought about in the month of May 1970, after the student
\nhad secured admission in the year 1965, could not be applied
\nretrospectively to the student concerned. In answer to the argument,
\nthe Hon’ble Court held that the change in the rules was prospective.
\nThe Court observed,  ..It is not possible to hold that it is
\nretrospective in operation merely because though introduced in 1970
\nit was applied to Subhash Chander, respondent 1, who appeared for the
\nfinal examination in 1974, after he had joined the course earlier in
\n1965. No promise was made or could be deemed to have been made to him
\nat the time of his admission in 1965 that there will be no alteration
\nto the rule or regulation in regard to the percentage of marks
\nrequired for passing any examination or award of grace marks and that
\nthe rules relating thereto which were in force at the time of his
\nadmission would continue to be applied to him until he finished his
\nwhole course.\n<\/p>\n
\t  In the matter of
\nChairman, Railway Board & Ors. [Supra], the matter at issue was
\nthe amendment made to a service regulation affecting the running
\nstaff of the railways. The impugned amendment not only operated in
\nfuturo,  had an effect of reversal from an anterior date, adversely
\naffecting the pension of the retired running staff [personnels
\nemployed as Drivers, Guards, etc., attached to the railway]. The
\nHon’ble Court accepted the proposition that once a person joins
\nservice under the Government, the relationship between him and the
\nGovernment is in the nature of status rather than contractual and the
\nterms of his service while he is in employment, are governed by
\nstatute or statutory rule, which may be unilaterally altered without
\nthe consent of the employees. But, the Court held,  ..It can,
\ntherefore, be said that a rule which operates in futuro so as to
\ngovern future rights of those already in service cannot be assailed
\non the ground of retro activity as being violative of Articles 14 and
\n16 of the Constitution, but a rule which seeks to reverse from an
\nanterior date a benefit which has been granted or availed of, e.g.,
\npromotion or pay scale, can be assailed as being violative of
\nArticles 14 and 16 of the Constitution to the extent it operates
\nretrospectively.\n<\/p>\n
\t Both the above referred
\nprinciples are well established and do not call for further
\ndeliberation.\n<\/p>\n
\t  The question is whether
\nor not the appellants before us had a vested right for being
\nconsidered for recruitment as Vidya Sahayak in a particular manner;
\nwhether or not the decision to consider only the external marks and
\nthe practical marks obtained at the PTC examination for recruitment
\nunder process is arbitrary in as much as in operates retrospectively;
\nas alleged.\n<\/p>\n
\t As discussed
\nhereinabove, we are of the opinion that passing of PTC examination
\ndid not confer a vested right unto the appellants to employment as
\nVidya Sahayak or to be considered for employment as Vidya Sahayak in
\na particular manner. Further, for any recruitment process a uniform
\npolicy is required to be applied. Such policy, merely because the
\nparticipating candidates have passed the PTC examination in different
\nyears, cannot be said to be  retrospective. If the contention is
\naccepted the present recruitment process can be said to have been
\napplied with effect from 2004 and also with effect from 2005, from
\n2006, from 2007, etc. The absurdity of the argument is explicit and
\nrequires to be rejected.\n<\/p>\n
\t  For the aforesaid
\nreasons, we dismiss this set of Appeals. Civil Applications stand
\ndisposed of. Ad interim relief, if any, stands vacated.\n<\/p>\n
\t  Learned advocate Mr.
\nNanavati requests that the interim order made on 14th
\nFebruary 2010 [Coram : Mr. Justice Bhagwati Prasad & Mr. Justice
\nBankim N. Mehta] be continued for four weeks. Continuation of interim
\norder will result into posts being kept vacant and would also lead to
\npreparation of merit list on the basis of two different principles.
\nThe Appeals having been dismissed, neither the posts are required to
\nbe kept vacant nor the respondents are required to prepare two merit
\nlists applying two different principles.  The request is rejected.\n<\/p>\n
2.\tHence, these petitions
\nwill also be governed by the principle laid down in the aforesaid
\ndecision. Consequently, the petitions stand rejected. Rule is
\ndischarged.\n<\/p>\n
[K.S.JHAVERI, J.]\t<\/p>\n
Pravin\/*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Patel vs State on 22 March, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print SCA\/1237\/2010 12\/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1237 of 2010 With SPECIAL CIVIL APPLICATION No. 1292 of 2010 With SPECIAL CIVIL APPLICATION No. 1440 of 2010 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-253643","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPatel vs State on 22 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-22-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Patel vs State on 22 March, 2010 - 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