LPA/53919/1995 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 539 of 1995 In SPECIAL CIVIL APPLICATION No. 5389 of 1993 To LETTERS PATENT APPEAL No. 606 of 1995 In SPECIAL CIVIL APPLICATION No. 10519 of 1993 With CIVIL APPLICATION No. 1665 of 1997 In LETTERS PATENT APPEAL No. 539 of 1995 With LETTERS PATENT APPEAL No. 1145 of 1996 In SPECIAL CIVIL APPLICATION No. 5389 of 1993 With CIVIL APPLICATION No. 8516 of 1996 In LETTERS PATENT APPEAL No. 539 of 1995 With LETTERS PATENT APPEAL No. 1147 of 1996 In SPECIAL CIVIL APPLICATION No. 5389 of 1993 With LETTERS PATENT APPEAL No. 1146 of 1996 In SPECIAL CIVIL APPLICATION No. 5389 of 1993 With CIVIL APPLICATION No. 8516 of 1996 In LETTERS PATENT APPEAL No. 539 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DISTRICT PRIMARY EDUCATION OFFICER - Appellant(s) Versus KG GOR & 1 - Respondent(s) ========================================================= LPA/53919/1995 2/25 JUDGMENT Appearance : L.P.A. Nos. 540/1995 to 606/1995 MR AMIT M PANCHAL for Appellant(s) : 1, MR JV JAPEE for Respondent(s) : 1, MRS KETTY A MEHTA for Respondent(s) : 1, MR YN OZA for Respondent(s) : 1, MRS SANGEETA N PAHWA for Respondent(s) : 1, MR BS PATEL for Respondent(s) : 1, MR PS PATEL for Respondent(s) : 1, MR RAJENDRA PATEL for Respondent(s) : 1, MR SK PATEL for Respondent(s) : 1, MR KB PUJARA for Respondent(s) : 1, MR AM RAVAL for Respondent(s) : 1, Mr. Sunit Shah, G.P. with Mr. K.P. Rawal, Ms. Hansaben Punani, Ms. Trusha Patel, Ms. Asmita Patel, AGPs for Respondent(s) : 2 L.P.A. No. 1145/1996 to 1147/1996 Mr. N.A. Pandya for the appellant Mr. Sunit Shah, G.P. with Mr. K.P. Rawal, Ms. Hansaben Punani, Ms. Trusha Patel, Ms. Asmita Patel, AGPs for Respondent(s) : 1 Mr. Amit Panchal for respondent No. 2 Mr. A.M. Raval for respondent No. 3 ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 09/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These appeals are filed by the appellants against the common oral judgement passed by the learned Single Judge on 15th/24th September, 1994. LPA/53919/1995 3/25 JUDGMENT 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 LPA/53919/1995 4/25 JUDGMENT 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. LPA/53919/1995 5/25 JUDGMENT 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 LPA/53919/1995 6/25 JUDGMENT 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 LPA/53919/1995 7/25 JUDGMENT 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 LPA/53919/1995 8/25 JUDGMENT 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 LPA/53919/1995 9/25 JUDGMENT 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 LPA/53919/1995 10/25 JUDGMENT 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 LPA/53919/1995 11/25 JUDGMENT 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. LPA/53919/1995 12/25 JUDGMENT 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 LPA/53919/1995 13/25 JUDGMENT 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 LPA/53919/1995 14/25 JUDGMENT 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 LPA/53919/1995 15/25 JUDGMENT 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 LPA/53919/1995 16/25 JUDGMENT 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 LPA/53919/1995 17/25 JUDGMENT 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 LPA/53919/1995 18/25 JUDGMENT 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 LPA/53919/1995 19/25 JUDGMENT 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 LPA/53919/1995 20/25 JUDGMENT with respondents. 21. SCA No. 11032/93 - The petitioner of this petition has actually received appointment letter from