1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 8638 OF 2006 SANDIP BHARAT SINH GOHIL ) Govt. Quarter No. 11, ) Opp. Panchayat Marker, ) Silvassa, UT od D & NH ) .. PETITIONER VERSUS 1. The Administrator ) UT of Dadra & Nagar Haveli ) Silvassa. ) 2. Asst. Director of Education ) Dadra & Nagar Haveli,Silvassa 3. The Collector ) Dadra & Nagar Haveli,Silvassa 4. The Mamlatdar ) Dadra & Nagar Haveli,Silvassa 5. Hinab Narpatsinh Parmar ) Govt. Higher Secondary School Naroli,Silvassa. ) .. RESPONDENTS Mr. C. M. Kothari for petitioner Mr. G. S. Kulkarni with Ms. Swati Deshpande for R-1 to 4. 2 Mr. M. B. Gawade for R-5 CORAM: SMT. RANJANA DESAI & SMT. R. S. DALVI,JJ. DATE ON WHICH THE JUDGMENT IS RESERVED:- 29TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 18TH MARCH, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The petitioner claims to be a resident of Silvassa after marriage. According to the petitioner when he learnt about the advertisement issued for recruitment for the post of Trained Graduate Teacher ("TGT" for short) and Post Graduate Teacher ("PGT" for short) issued by the 2nd respondent, Assistant Director of Education, Dadra and Nagar Haveli, he applied for the post of PGT. A copy of the advertisement dated 8/8/06 is annexed to the petition. 2. It appears that on 24/8/06 a corrigendum was issued stating that preference will be given to the candidates from Dadra & Nagar Haveli. The petitioner was called for written test held on 15/10/06. The petitioner was then informed that he had qualified in written test for PGT. According to the petitioner he was called to the office of 3 the 2nd respondent on 13/12/06 for verification of original documents pertaining to educational qualification, age etc. The petitioner was to also produce original Domicile Certificate issued by the Mamlatdar, Dadra Nagar Haveli, Silvassa. 3. According to the petitioner he learnt that in the merit list of candidates who had qualified in the written test for PGT Examination, he had stood first. The petitioner was eagerly awaiting the call for interview. According to the petitioner some of the other PGT candidates received calls for interview to be held on or before 15/12/06 but the petitioner did not receive the call. Since the oral interviews for the PGT candidates were already over without calling the petitioner although he stood first in the merit list and since the petitioner had learnt that candidate at Serial No. 2 i.e. the 5th respondent is likely to be selected, the petitioner filed the instant petition on 26/12/06. 4. In the petition the petitioner has inter alia prayed that it may be declared that the petitioner is entitled to be called for interview and the process of interview without the petitioner being 4 interviewed is incomplete and that no selection of the candidates shall be valid unless the petitioner is interviewed. The petitioner has further prayed that, if any selection is made on the basis of the interviews taken without interviewing the petitioner, the said selection be declared illegal and fresh interviews be taken of all the candidates including the petitioner. 5. On 28/12/06 the petition was moved before the learned Single Judge. It was pointed out that the petitioner was not issued call letter for interview as Dadra & Nagar Haveli is not his domicile. Learned Single Judge observed that the advertisement dated 8/8/06 so also the corrigendum dated 24/8/06 do not disentitle the petitioner from consideration. The corrigendum only mentions that preference will be given to the candidates from Dadra & Nagar Haveli. Learned Single Judge observed that giving preference to the candidates from Dadra & Nagar Haveli cannot be read as rendering others not eligible for being considered. He observed that as the interviews were going on it would not be inconvenient to direct the selection committee of the Assistant Director of Education Dadra & Nagar Haveli to conduct interview of the 5 petitioner for his post along with other candidates. He further observed that if such a direction is issued it will not cause any prejudice or inconvenience to the respondents. He, therefore, directed the respondents to conduct the interview of the petitioner for his post, if the petitioner made himself available before selection committee on the same day i.e.on 28/12/06, by 6 p.m. Accordingly the petitioner was interviewed. It is the case of the petitioner that he was interviewed for PGT as well as TGT whereas it is the case of the respondents that the petitioner was only interviewed for TGT. 6. The petition appeared on the board of the Division Bench of this court on 12/2/07 (H.L. Gokhale, Acg. CJ. & V.M. Kanade, J.). The Division Bench observed that the petitioner belongs to open category and he has stood first in the written test. In view of the Order dated 28/12/06 passed by this court, he was called for interview. It was observed that there are three posts of teaching for physical education and surely one would go to the open category candidate, if not more. It was observed that interview marks also show that the petitioner was at the highest 6 position and still he is not being appointed. The respondents were directed to keep one seat vacant for the petitioner if the same is not filled in as yet and inform the court as to what is the position in that behalf. The petitioner was given leave to amend the petition. 7. On 22/2/07 the petitioner amended the petition. By the amendment certain facts were added. It was brought on record that the interview of the petitioner was taken on 29/12/06. The result of PGT was declared on 30/12/06. A copy of result sheet was annexed to the petition at Exh.-E. According to the petitioner, though he had stood first in the merit list in the result sheet of PGT, the candidate who stood third in the merit list was shown as selected. The result sheet also contained a note that the results will be subject to the outcome of Writ Petition No. 8638 of 2006. It is stated that in fact when results were produced in the court since the petitioner was at the highest position, this court directed the respondents to keep one post vacant. It is also added by way of amendment that the respondents are misleading the court by giving particulars of marks of TGT candidate for comparing them with the marks of the 7 petitioner who was claiming the post of PGT. Thus the respondents want to mislead the court. 8. Further prayers are added by way of amendment. The petitioner has inter alia prayed that the petitioner be declared to have been selected for recruitment to the post of PGT and appointment of respondent 5 Hina Parmar on the post of PGT be set aside. 9. On 9/4/07 the petition was admitted. Rule was made returnable after six weeks. 10 Affidavit-in-reply dated 14/3/07 is filed by Assistant Director of Education (Admin.) Dadra & Nagar Haveli in this court on 4/4/07. It is stated in the affidavit that the petition concerns itself with the appointment to the single post of TGT (physical education). The petitioner had applied for PGT as well as for TGT for physical Education (Gujrati Medium). He passed written examination for physical education (Gujrati Medium) subject in TGT as well as in PGT. The petitioner was not called for personal interview because he had not produced domicile certificate. It is further stated in the affidavit that interviews were over 8 on 20/12/06 and the final results were announced on 22/12/06. It is further stated that in pursuance to the order passed by this court on 28/12/06, in the ongoing interview process of TGT on 29/12/06 i.e. the last day of TGT interviews petitioner’s interview was taken. In the affidavit break up of the marks obtained by the petitioner is given. It is stated that in written examination he got 33 out of 75 marks. In academic and professional gratification he got 6.15 marks out of 10 marks. In personal interview he got 4 out of 16 marks. Thus out of 100 he got 43.15 total marks. Another candidate by name Dhadhav Ashwinbhai secured total 57.86 marks. He was selected against the single vacancy in physical education (Gujrati Medium). It is finally stated that as the petitioner did not come in the merit list of final selection for TGT he was not selcted by the selection comittee and was not even placed in the TGT waiting list. 11. It appears that thereafter the petitioner applied to the respondents for relevant information under the Right to Information Act. After obtaining the information the petitioner filed Civil Application No. 2911 of 2007. In this civil application the petitioner has stated that although 9 the petitioner was only pressing his claim for PGT post yet his personal interview was treated for TGT as well as for PGT and thus his interview for TGT was redundant. Ex.1.3 is the document received under Right to Information Act by the petitioner. That it has been furnished by the respondents’ office is not denied by the respondents. This document states the date of interview as 29/12/06. It shows that the petitioner was interviewed for TGT as well as PGT. This does mean that pursuant to the High Court’s direction, the petitioner was interviewed for both the posts. It is true that the petitioner has stated in the petition that interviews were over but the information supplied by the respondents show that the petitioner was interviewed both for PGT & TGT in the ongoing process of interview pursuant to the order passed by Justice Deshpande on 28/10/06. 12. In the written examination the petitioner got 55 marks out of 75 marks. The results which were ready on 7/11/06 were published on 13/12/06. The petitioner stood first in written exam. Marks of personal interview declared as per Exh.-14 received by the petitioner under the Right to Information Act show that the petitioner obtained 5 out of 15 10 marks. Marks of educational qualification consisting of 5% of professional qualification work out to total 6 marks. Thus total marks obtained by the petitioner for written examination interview and educational qualification were 66. Therefore, the petitioner got 66 out of 100 marks. Exh.I-5 which is again information received by the petitioner under the Right to Information Act, shows that respondent 5 got 61.60 marks out of 100. 13. To this civil application affidavit-in-reply is filed by Peter Bara, the 2nd respondent herein. It is stated that in pursuance to this court’s order dated 28/12/06, the petitioner was interviewed for the single post vacancy of TGT. However, the petitioner secured less marks in interview and hence on 16/7/07 appointment order was issued to one Nilesh Patel. It is further stated that when the petitioner approached this court on 28/12/06, the interview process for PGT was already over on 20/12/06. Hence the petitioner could not have been considered for PGT. He was, therefore, interviewed for TGT. 14. So far as the information supplied to the petitioner under the Right to Information Act 11 indicating that the petitioner had been placed 1st in the PGT selection it is stated that there appears to be some irregularity committed by some officers in purporting to declare the petitioner’s result under the PGT as no marks under the PGT interview could have been assigned to the petitioner as the interview process was already over. It is stated that the Administration is enquiring into these irregularities. Further stand of the 2nd respondent is that the petitioner cannot claim any right to the said post as the advertisement issued by the Administration required preference to be given to a local candidate and hence he was not called for interview. He was interviwed for TGT post. The petitioner cannot in any event make any claim for the TGT post. 15. Affidavit-in-reply is filed by respondent 5. It is stated in the affidavit that since the petitioner does not have domicile certificate he is ineligible for appointment to the PGT post. It is further stated that respondent 5 was interviewed, she was selected being eligible and duly qualified for the post of PGT. It is further stated that selection list was published on 22/12/06 for PGT. Respondent 5 was given temporary appointment on 12 19/1/07 and approval was granted by the concerned authority on 9/2/07. Respondent 5 was posted at Naroli on 15/2/07 and she reported to duty on 17/2/07. It is then stated that 1 post out of 3 posts was for ST candidate and 2 posts were vacant for open category candidate. Since in general merit list respondent 5 was at the highest position she was appointed. Patel Sanjaykumar Umaidbhai, one S.T. candidate was immediately next to respondent 5. Hence he was selected for the post against open category. It is further stated that, if the petitioner is to be selected for the post against open category, then for the 2nd post respondent 5 will have to be selected because she is next to the petitioner on the merit list and she belongs to open category. If selection of respondent 5 is disturbed then the selection of Patel Sanjaykumar Umaidbhai will have to be set aside and, therefore, he is a necessary party to the petition. It is submitted that no relief can be granted to the petitioner at this stage. 16. We have heard Mr. Kothari, learned counsel appearing for the petitioner at some length. Mr. Kothari reiterated all the contentions raised in the petition as well as civil application. He 13 submitted that the respondents have attempted to mislead this court. The information received by the petitioner under the Right to Information Act clearly shows that the petitioner was interviewed for TGT as well as PGT. The respondents cannot get over this fact by contending that some irregularity is committed by some officer in purporting to declare the petitioner’s results under the PGT because interview process was over. Mr. Kothari submitted that the petitioner has secured more marks than respondent 5. The respondents have committed a breach of Justice Deshpande’s order dated 26/1/2/06, in the sense that they appointed respondent 5 on 9//2/07, even before the petition could be heard finally. The respondents have committed contempt of the order passed by the Division Bench of this court on 12/2/07 by posting the selected candidates on 15/2/07. He submitted that the petitioner is a more meritorious candidate. Preference to a local candidate could have been given if there were two candidates having equal merit. Respondent 5 who is less meritorious could not have been chosen over the petitioner. Mr. Kothari submitted that in the circumstances this is a fit case where the petitioner be declared to have been appointed. 14 17. Mr. Kulkarni learned counsel for respondents 1 to 4 submitted that it is the petitioner’s own case as stated in the petition that when he filed the petition interviews were over. The petitioner was only interviewed for TGT. He cannot take advantage of mistake committed by some officer while giving information under the Right to Information Act. Mr. Kulkarni submitted that results were declared on 22/12/06 and not on 30/12/06 as stated by the petitioner. Document annexed at Exh.-E is the petitioner’s own document. It is not an authentic document and hence date 30/12/06 cannot be accepted as correct date because it is mentioned there. Appointment of respondent 5 is already made. There is no challenge to the policy of giving preference to a local candidate in the petition and, therefore, it is not open to the petitioner to find fault with it now. He submitted that in TGT interview the petitioner did not fare well hence another candidate was appointed. Mr. Deshpande contended that in the circumstances the petition deserves to be dismissed. 18. At the outset, we must express our extreme displeasure at the manner in which the Union 15 territories of Dadra & Nagar Haveli have dealt with the appointments to the post of PGT & TGT. Advertisement for recruitment to the post of PGT and TGT was issued by the 2nd respondent Assistant Director of Education, Dadra & Nagar Haveli on 8/8/06. In that advertisement it was not stated that preference will be given to the candidates from Dadra & Nagar Haveli. Subsequently a corrigendum was published on 24/8/06 indicating the preference. 19. The petitioner applied for both PGT as well as TGT. He was called for written test on 15/10/06. He qualified for the written test for PGT. He stood first in the written test. It is pertinent to note that there is no denial in the affidavits filed by the 2nd respondent that the petitioner stood first in the written test. Yet the petitioner was not called for interview. It is stated by the respondent that on 13/12/06 he was called for verification of original documents. But because he could not produce domicile certificate he was not called for interview. The petitioner, therefore, filed the instant writ petition. On 8/8/06, in his order learned Single Judge rightly observed that giving preference to a candidate 16 cannot be read as rendering others not being eligible. He further observed that as the interviews were going on it would not be inconvenient to direct the selection committee of respondent 2 to interview the petitioner for his post. He gave a direction accordingly. The direction appears to have been given because the question of giving preference would come when candidates having equal merit are before the appointing authority. 20. It is true that in the petition the petitioner has stated that interviews of PGT candidates were over. But the fact remains that interview process was going on because Justice Deshpande has so observed in his order on 28/10/06. This order was passed when learned counsel for the 2nd respondent was present. It is pertinent to note that Justice Deshpande had directed the 2nd respondent to interview the petitioner for his post. Obviously, therefore, the petitioner was to be interviewed for PGT post because in the petition the petitioner has staked his claim only to that post. It appears that the petitioner was interviewed for PGT as well as TGT. The petitioner received this information under the Right to Information Act. The said 17 information is annexed to the petitioner’s civil application. In his affidavit a very bold stand is taken by the 2nd respondent that some officer has committed irregularity while giving information and in fact the petitioner was only interviewed for TGT. It is difficult to accept this because interviewing the petitioner for PGT is what was ordered by Justice Deshpande and that seems to have been done by the respondents and that information is supplied to the petitioner. Stand of the respondents that wrong information was given by mistake is suspect. Mr. Bara says that the administration is looking into the irregularities. We feel that the respondents’ approach is most casual and callous. Supply of information under the Right to Information Act is an important and onerous duty. It must be performed with a sense of responsibility. Citizens cannot be treated so unfairly. That is exactly what has happened in this matter. It is a bad precedent. For this purpose this order must be placed before the Administrator Union Territories of Dadra & Nagar Haveli. 21. Justice Deshpande has in his order dated 28/12/06 stated that after the petitioner is 18 interviewed the petition can be considered on merits on 8/1/07. It is stated in the affidavit by the 2nd respondent that final results of PGT were announced on 22/12/06. If this was so, a statement to that effect should have been made before Justice Deshpande on 28/12/06. The fact that the court was not informed about it makes the respondents’ case still worst. Had the court been told about it at that stage the entire texture of the matter would have changed. The petitioner then appeared before the Division Bench on 12/2/07. On that date also no statement was made that final result of PGT interview were declared on 22/12/06. The Division Bench observed that the petitioner had stood first in the written test. It was further observed that the interview marks also show that the petitioner was at the highest position, still he is not being appointed. The respondents were directed to keep one post vacant, if it is not filled as yet and inform the court about it. It is stated on affidavit that on 9/2/07 respondent 5 was appointed. This is not denied by the respondents. Surprisingly the respondent went on to post candidates on 15/2/07 despite the order of the Division Bench dated 12/2/07. 19 22. The petitioner has annexed to the petition a document at Exh.-E which is a list of PGT candidates who qualified for interview. There is a note below this which reads "All the results in the PGTs/TGTs recruitment process will be subject to the final verification of all original documents and the final outcome of the Writ Petition No. 8638 of 2006 in the High Court, Mumbai". This document bears the date 30/12/06 alongside the words Assistant Director of Education, Education Department. This document is disowned by the respondents as not being their document. All this casts a shadow of doubt on the entire exercise. Undoubtedly giving preference to a person domiciled in a particular state is a policy decision. We are aware that policy decisions cannot be interfered with lightly. Besides there is no challenge to the policy decision. 23. But we are certain about one thing that prima facie there appears to be lack of transparency in the entire process. On both the occasions i.e. on 28/12/06 and 12/2/07 facts which are now told to us were not told to the court. This is not a happy state of affairs. 20 24. The petitioner is a meritorious person. He appears to have secured the highest marks. However, as of today appointments and postings have been made. It is pointed out by respondent 5 that final selection list for PGT was published on 22/12/06. Besides the petitioner himself has come to the court with a case that by the time he had filed the petition, the results were already declared. Respondent 5 has in her reply stated that such a course is likely to affect Patel Sanjaykumar Umaidbhai, who is not before us. In such a situation it is not possible for us to give a direction to appoint the petitioner by setting aside appointment of respondent 5. 25. Mr. Kulkarni learned counsel for the respondents on instructions from Mr. Bara, the 2nd respondent, who is present in the court states that he has telephonically contacted Mr. A. K. Singh, Director of Education who has told him that the petitioner’s case would be considered in next vacancy in accordance with law. We, however, feel that in the peculiar circumstances of the case, the petitioner’s case must be considered by the respondents in the next vacancy that arises in accordance with law. 21 26. We dispose of the petition by expressing a hope that the respondents shall deal with the petitioner’s case with a positive approach. Petition is disposed of. 27. Office is directed to forthwith send a copy of this judgment to the Administrator of Dadra & Nagar Haveli for information and necessary action with reference to paragraph 20 of this judgment. JUDGE JUDGE IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 8638 OF 2006 DATE ON WHICH THE JUDGMENT IS RESERVED: 29TH FEBRUARY, 2008 22 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:____TH MARCH, 2008 THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE (SMT.) JUSTICE R. S. DALVI: 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2.