LPA/1059/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1059 of 2007 In SPECIAL CIVIL APPLICATION No. 12245 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PANDYA JASWANTRAY KALYANBHAI & 17 - Appellant(s) Versus STATE OF GUJARAT THRO' THE SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR SHALIN N MEHTA for Appellant(s) : 1 - 18. MRS ML SHAH, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, Respondent(s) : 2 SERVED , MR HS MUNSHAW for Respondent(s) : 3, MR KB PUJARA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/1059/2007 2/12 JUDGMENT Date : 07/02/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The appellants, respondents Nos.4 to 21 in above Special Civil Application No.12245 of 2007, have preferred the present Appeal under Clause 15 of the Letters Patent against the judgment and order dated 23rd May, 2007 passed by the learned Single Judge. The appellants are the candidates qualified to be appointed as “Vidya Sahayak” in the subject of music in primary schools under the control of the District Panchayat, Patan. The respondent No.4 is the writ petitioner (hereinafter referred to as “the petitioner”). The learned advocates are heard extensively. With the consent of the learned advocates the Appeal is heard and finally decided by this judgment. The petitioner is a blind female candidate belonging to Socially & Educationally Backward Class LPA/1059/2007 3/12 JUDGMENT qualified for being appointed as “Vidya Sahayak” in the subject of music. In answer to the advertisement published on 17th April, 2007 given by the respondent No.3, the District Primary Education Officer, Patan for recruitment of 17 Vidya Sahayaks (Music), the petitioner and the appellants had applied for selection and appointment as Vidya Sahayak (Music). As the petitioner was not called for interview, she made further inquiries. She was informed that she was not called for the interview as she stood lower in the merit list. Feeling aggrieved, the petitioner preferred the above Special Civil Application No.12245 of 2007. According to the petitioner, she deserves to be selected and appointed as Vidya Sahayak (Music) as she is entitled to reservation in various categories. She is entitled to benefit from the reservation for Socially & Educationally Backward Class candidates; for handicapped candidates; for female candidates and from the priority granted to the blind candidates. Nevertheless, she has not been selected or called for interview for appointment as Vidya Sahayak (Music). LPA/1059/2007 4/12 JUDGMENT In the petition, the claim is based on the Government policy to grant priority to the blind candidates. By Resolution dated 11th June, 1998 passed in respect of the appointment of teachers with specialized qualification like Hindi, Drawing, Physical Education, Tailoring, etc., in primary schools the State Government has resolved, inter alia, that not more than 15% of the vacancies be filled in by teachers possessing special qualifications. The said resolution also sets out the qualifications required in the special subjects. Clause (5) of the said Resolution provides that in case of music teacher, blind candidates be given priority in selection. It is this instruction, which is the center point of controversy in the present litigation. According to the petitioner, as long as blind candidates in the subject of music are available, no other candidate should be appointed as music teacher in the primary school. According to the appellants, if the petitioner's claim is accepted, it would amount to reservation of vacancies for blind candidates contrary to Articles 14 and 16 of the LPA/1059/2007 5/12 JUDGMENT Constitution. The said instruction cannot mean to oust all other candidates, irrespective of their merits, from the selection procedure merely on the ground that some other candidates who are blind are available. The learned Single Judge has recorded the facts, rival contentions, dictionary meaning of the expression “priority” and the judgments cited before the learned Single Judge. The learned Single Judge has noticed that the State Government has not set out the modalities to work out the priority mentioned in the above referred Resolution. Her Lordship has also noticed that thus far no practical problem had arisen as number of blind candidates available were far less than the posts advertised. In the present case, there was sufficient number of blind candidates available. If all of them were appointed, the other candidates would be completely ousted. In paragraph 16.14 of the judgment the learned Single Judge has held that “literally interpretation of clause (5) would be to give priority to blind candidates to the exclusion of all others in the matter of recruitment of Vidhya LPA/1059/2007 6/12 JUDGMENT Sahayaks in the subject of music.” In paragraph 17 of the judgment the learned Single Judge has summed up the method and manner of recruitment of Vidhya Sahayaks in the subject of music as under :- “(i) blind candidates are entitled to priority in the matter of selection and appointment; so long as a blind candidate is available, he would be entitled to appointment to the said post to the exclusion of other candidates as per the policy laid down in Government Resolution dated 11th June, 1998; (ii) The respondent authorities shall consider the merits of the blind candidates only on the basis of the marks obtained at the Sangeet Visharad Examination, without considering the marks obtained in the S.S.C. or H.S.C. Examinations; (iii) Insofar as the demand made by District Primary Education Officer for production of five additional certificates is concerned, the District Primary Education Officer shall strictly abide by the decision of this Court in the case of Patel Alkesh Ambalal v. District Primary Education Officer (supra).” LPA/1059/2007 7/12 JUDGMENT Learned advocate Mr. Mehta has appeared for the appellants. He has assailed the judgment of the learned Single Judge. He has submitted that word “priority” is synonymous to the word “preference.” In case of employment, where a category of candidates are preferred, the word “preference” has been interpreted by the Courts to mean preference to be given amongst the candidates who are equal in all other things. In other words, amongst the candidates having equal merits, a blind candidate should be preferred. If the interpretation put forth by the learned Single Judge were allowed to prevail, it would amount to 100% reservation for blind candidates. Such an interpretation which would undermine the fundamental right to equality guaranteed under Articles 14 and 16 of the Constitution of India be best avoided. He has submitted that in the matter of Indra Sawhney etc. etc. V. Union of India and Others, etc. [AIR 1993 SC 477], the Hon'ble Supreme Court has held that in no circumstances reservation in employment should exceeds 50% of the vacancies. If the aforesaid Clause LPA/1059/2007 8/12 JUDGMENT 5 of the Government Resolution dated 11th June, 1998 were interpreted to mean exclusion of all other candidates in favour of the blind candidates, the said Clause (5) would be in contravention of the aforesaid judgment of the Hon'ble Supreme Court. In the submission of Mr. Mehta, the said interpretation is erroneous. Even if it is not erroneous, the said Clause 5 should be read down to conform with the principles of equality and the above referred judgment of the Hon'ble Supreme Court. To buttress his contention he has relied upon the judgments in the matters of P. Raghava Kurup And Another V. V. Ananthakumari And Others, [(2007) 9 SCC 179], Administrator Of The Specified Undertaking Of The Unit Trust of India And Another V. Garware Polyster Ltd., [(2005) 10 SCC 682], Ghaziabad Development Authority V. Union of India And Another, [(2000) 6 SCC 113], R.B.Desai And Another V. S.K.Khanolker And Others, [(1999) 7 SCC 54], Calcutta Port Trust V. Deba Prosad Bag, [AIR 1994 SC 2137], Secretary, A.P. Public Service Commission V. Y.V.V.R. Srinivasulu And Others, [(2003) 5 SCC 341], State of Bihar And Others V/ Shyam Yadav And Others, [(1997) 2 SCC 507] and LPA/1059/2007 9/12 JUDGMENT Textile Labour Association And Another V. Official Liquidator And Another, [(2004) 3 GLH 416]. He has also relied upon the Law Laxicon by Ramnath Iyer [1997 edition]. The Appeal is contested by Mr. Pujara. He has supported the judgment of the learned Single Judge. He has submitted that the above referred Resolution is in vernacular. It provides for priority to the blind people. The word used is “agrata.” He has relied upon the Legal Glossary published by the State Government. He has submitted that the word “agrata” means “priority” and not “preference.” For the word “preference”, the Legal Glossary has used the word “pasandgi” in vernacular. Thus, the word “agrata” used in the Resolution has a distinct connotation. It cannot be considered equivalent/synonymous to 'preference'. The blind candidates are given prior right of employment to the exclusion of other candidates as held by the learned Single Judge. We are unable to agree with Mr. Pujara. At the LPA/1059/2007 10/12 JUDGMENT outset, it should be noted that what we are called upon to interpret is a Government Resolution and not a legislative enactment. Principles of interpretation of statutes cannot be invoked to interpret government instructions contained in Clause (5) of the Resolution. Besides, if the interpretation put forth by the learned Single Judge were accepted, there might arise a situation where eligible blind candidates may be more than the posts advertised. In such a situation, irrespective of the merits of other candidates, they would be unceremoniously ousted from the selection and appointment. Such interpretation which would undermine the fundamental principle of equality in employment guaranteed by Article 16 of the Constitution of India should be avoided. Further, in the judgments relied upon by Mr. Mehta, the words “priority” and “preference” are used alternatively to convey the same meaning. In our view, in the matter of employment in public service, the words “priority” and “preference” carry the same meaning. It is well settled and universally accepted principle that wherever in case of employment the word “preference” is used, it would mean that other factors being LPA/1059/2007 11/12 JUDGMENT equal, the candidates of preferred category shall have prior chance to employment. The same meaning is required to be attributed to the word “priority” used in Clause (5) of the above referred Resolution. For the aforesaid reasons, the Appeal is allowed. The impugned judgment and order dated 23rd May, 2007 passed the learned Single Judge in Special Civil Application No.12245 of 2007 in so far as it holds that “blind candidates are entitled to priority in the matter of selection and appointment; so long as a blind candidate is available, he would be entitled to appointment to the said post to the exclusion of other candidates as per the policy laid down in Government Resolution dated 11th June, 1998,” is quashed and set aside. It is clarified that the word “Agrata” used in Clause (5) of the Resolution dated 11th June, 1998 passed by the Government means that other factors being equal, candidates who are blind, shall be preferred in matter of employment in primary schools as Vidya Sahayak in the subject of Music. The respondent - District Primary Education LPA/1059/2007 12/12 JUDGMENT Officer, Patan will operate the merit list prepared by him for appointment to the posts of Vidya Sahayak pursuant to the advertisement dated 17th April, 2007, in accordance with the observations made in this judgment. Parties will bear their own cost. Learned advocate Mr. Pujara requests that this judgment be stayed for a period of six weeks. Request is rejected. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc