LPA/42/2002 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 42 of 2002 In SPECIAL CIVIL APPLICATION No. 5974 of 1987 With CIVIL APPLICATION No. 961 of 2002 In LETTERS PATENT APPEAL No. 42 of 2002 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 ? ========================================================= DISTRICT PRIMARY EDUCATION OFFICER & 2 - Appellant(s) Versus DAKSHABEN L PANDYA & 46 - Respondent(s) ========================================================= Appearance : MS TANUJA KACHHI, AGP for for Appellant(s) : 1 - 3. MR BP GUPTA for Respondent(s) : 1, MR ALPESH RAJPURIYA for Respondent(s) : 2,4 - 6, 8,11 - 12,15 - 18,21 - 22,24 - 27, 29,31 - 34, 36,40 - 41,43 - 44. NOTICE SERVED for Respondent(s) : 3, 7,9 - 10,13 - 14,19 - 20, 23, 28, 30, 35,37 - 39, 42, 45, - for Respondent(s) : 0.0.0,0.0.0 ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/42/2002 2/18 JUDGMENT Date : 15/02/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 9th August, 2001 passed by the learned Single Judge in Special Civil Application No.5974 of 1987. The appellant before this Court is the District Primary Education Officer, Panchmahals. The respondents Nos.1 to 45 – writ petitioners are the candidates who, in answer to the advertisement published on 29th September, 1986, had applied for appointment as primary school teacher under the appellant. For appointment as primary school teacher, a candidate, under the relevant recruitment rules, is required to possess Certificate in Primary Teacher's Training (PTC). The State Government, under its Resolution dated 31st May, 1965, resolved that untrained teachers possessing qualification in the LPA/42/2002 3/18 JUDGMENT special subjects like Hindi, Drawing, Physical Education, Music, Tailoring, etc., be appointed in the primary schools. But such appointment should not be more than 15% of the new recruitment. It was, however, experienced that adequate number of PTC trained teachers were not available or trained teachers were not willing to accept posting in remote or tribal areas. With a view to providing adequate educational facilities for young children in tribal areas and to ascertaining that their education did not suffer, the State Government by its Circular dated 7th August, 1986 issued instructions that in case adequate number of trained primary teachers were not available, to fill up the remaining vacancies, appointments may be made from amongst; the trained candidates who were age barred but had not attained the age of 40 years; the retired teachers who were willing to join the schools in the backward or tribal areas may be reemployed for a period of two years upto the age of 60 years; the untrained candidates who possessed qualification in special subjects may be appointed in excess of 15% of the vacancies but not exceeding 20% of the vacancies. Such candidates be treated as untrained teachers and LPA/42/2002 4/18 JUDGMENT they be appointed after they undergo the PTC training at their own expense; the candidates possessing higher qualification of B.A., B.Sc., B.Com., B.Ed. on condition of executing a bond of service for 5 years and on condition that they should obtain the PTC training at their own expense within 5 years from the date of the appointment. By later Circular dated 3rd July, 1987 the aforesaid instructions were cancelled and fresh instructions were issued in the subject matter. On 29th June, 1986 the appellant had published advertisement to invite applications from eligible candidates for appointment as primary school teachers under him. Pursuant to the said advertisement, recruitment was made. The petitioners were those untrained applicants who had applied for appointment as primary school teacher in special subject. On the basis of their relative merit, the petitioners were not selected for appointment as primary school teacher in special subject in 15% vacancies allowed to be filled in by the teachers in special subjects. But, as the adequate number of trained teachers were not LPA/42/2002 5/18 JUDGMENT available, in accordance with the Government Circular dated 7th August, 1986, a separate list of untrained candidates not selected as teachers in special subject was prepared. The petitioners also had been included in the said list of untrained candidates. On 8th December, 1986 the appellant forwarded a proposal to the Director of Primary Education that in view of non- availability of required number of trained candidates, pursuant to the instructions contained in Government Circular dated 7th August, 1986, 5% of the vacancies i.e. 77 posts be permitted to be filled in by untrained candidates possessing the qualification of TCWCG (Tailoring Certificate in Women & Children Garments) or in Needle Craft. Pending the said proposal, the applications were invited afresh by advertisement published on 12th September, 1987. Feeling aggrieved, some of the untrained candidates (the respondents Nos.1 to 45) preferred above Special Civil Application No.5974 of 1987 under Article 226 of the Constitution of India before this Court. The petitioners relied upon Rule – 14 of the Gujarat Panchayat Service (Recruitment of Primary LPA/42/2002 6/18 JUDGMENT Teachers) Rules, 1970 (hereinafter referred to as “the Rules of 1970”). According to the petitioners, until the previous select list was exhausted, new recruitment cannot be permitted to be made. In other words until the petitioners were appointed, the next recruitment procedure could not be taken up. The petitioners prayed that the existing select list be first exhausted and that the Government Circular dated 3rd July, 1987 did not apply to the vacancies which arose before the date of the said Circular. The petition was contested by the appellant. It was pointed out that the petitioners possessed qualification of TCWCG (Tailoring Certificate in Women & Children Garments) or in Needle Craft. There was no vacancy for a teacher in the special subject of Tailoring or Needle Craft, Physical Education and Drawing. It was further pointed out that the names of the petitioners were maintained on the list of untrained candidates to be operated in case of necessity. However, pursuant to the advertisement published in September, 1987 adequate number of PTC trained teachers were available and that the proposal LPA/42/2002 7/18 JUDGMENT for appointment of 77 untrained candidates had yet not been accepted. From the record, it further appears that the proposal for appointment of 77 untrained candidates possessing qualification of TCWCG made in the year 1986 was approved under communication dated 19th December, 1991. However, as by that time adequate number of trained candidates were available, the untrained candidates were not appointed. The learned Single Judge has allowed the writ petition. The learned Single Judge has held that the 77 candidates selected for appointment as untrained teachers had a right to appointment. The action of the appellant in not appointing the said candidates was arbitrary and unreasonable. The learned Single Judge was pleased to issue direction “to appoint the petitioners from 19.12.1991 notionally when the Government approved the proposal of the Managing Committee of the District Panchayat for appointment of the petitioners. Though the petitioners are entitled for some compensation, but since they had LPA/42/2002 8/18 JUDGMENT not been appointed and worked for any period, they are not entitled for any back wages. The respondents are directed to appoint the petitioners as untrained teachers forthwith, if there is need of training, they will send the petitioners for training.” Feeling aggrieved, the appellant has preferred the present Appeal. Pending the Appeal, by order made on Civil Application No.961 of 2002 stay has been granted against the implementation of the aforesaid direction. Mr. Gupta has appeared for the respondents – writ petitioners. He has submitted that as stated in the counter affidavit made by the District Primary Education Officer, the petitioners were selected for appointment as untrained primary school teachers. The petitioners, therefore, had indefeasible right to employment as untrained primary school teacher. The proposal to appoint the petitioners was approved by the State Government on 19th December, 1991. The petitioners are deprived of their legitimate right of appointment on account of bureaucratic delay for no fault of the petitioners. The learned Single Judge has rightly issued direction to appoint the writ LPA/42/2002 9/18 JUDGMENT petitioners as primary school teachers notionally since 19th December, 1991 and to give them required training. In support of his submission Mr. Gupta has relied upon the judgment of the Division Bench [Coram: Mr. Justice G.S.Singhvi, as he then was and Mr. Justice A.S.Dave] in the matter of Bamaniya Manguben Vechatbhai And Others V. State of Gujarat And Others (Letters Patent Appeal No.2060 of 2004 in Special Civil Application No.8892 of 2002 decided on 17th August, 2005). In the above referred matter, the appellants – writ petitioners were selected by the District Primary Education Officer, Panchmahals for appointment as Vidya Sahayak in the subject of Physical Education in primary schools against the 37 vacancies for Vidya Sahayak (Physical Education) advertised on 8th August, 2000. The proposal of their appointment, however, was not accepted by the Director of Primary Education on the basis that the next selection procedure had already been completed. In the said set of facts, the Division Bench held that, “the appellants on the basis of their selection by the competent authority LPA/42/2002 10/18 JUDGMENT acquired a valuable right to be appointed against the advertised posts and they cannot be deprived of their right merely because the District Primary Education Officer did not take steps to issue appointment orders well in time. The fortutious factor, namely the failure of the District Primary Education Officer to issue appointment orders within one year of the preparation of the initial select list cannot be made a ground to deny appointment to the appellants.” As we shall discuss hereafter, the above judgment shall have no applicability to the facts of the present case. It is not in dispute that pursuant to the advertisement published on 29th June, 1986, the petitioners had applied for appointment as primary school teacher; that the petitioners possessed qualification of TCWCG (Tailoring) and were not trained, i.e. they did not possess the PTC training, the qualification required for appointment as primary school teacher. The petitioners, therefore, had a limited right to compete for selection for appointment to 15% of the vacancies allowed to be filled in by LPA/42/2002 11/18 JUDGMENT special subject teachers. In absence of the requisite qualification of PTC, the petitioners had no right to appointment as trained primary school teacher. As observed hereinabove, for want of adequate number of trained candidates available for appointment as primary school teachers, by Circular dated 7th August, 1986, the State Government allowed recruitment of untrained teachers having qualification in special subjects to a limited extent (5% of the vacancies advertised). However, appointment could be made only after they obtained PTC training at their own expense. It was pursuant to the aforesaid concession granted by the State Government that the petitioners and some other (77 in number) possessing qualification in special subjects were selected as untrained candidates. The communication dated 10th December, 1986 (Annexure E to the petition) sent to one of the petitioners is explicit. The concerned candidate had been specifically informed that she was selected for appointment as untrained teacher. Subject to the approval granted by the State Government, her name was placed on the waiting list. Under the communication dated 19th December, 1991 sent by the State Government, LPA/42/2002 12/18 JUDGMENT the said proposal was accepted subject to the order made in above Special Civil Application No.5974 of 1987. As pointed out by the appellant, by the time the approval was received no vacancy for the teachers in special subjects was available and adequate number of trained teachers were available. It should be noted that when the petitioners approached this Court in the year 1987 the only challenge was to the fresh recruitment process initiated in September, 1987. The contention was that until the select list of untrained candidates was exhausted, fresh recruitment should not be made. Indisputably pending the petition fresh recruitments were made. The question that arises in the present proceedings is whether the petitioners had acquired an indefeasible right to appointment as untrained primary school teacher as held by the learned Single Judge. The appointment of the primary school teachers under the District Panchayats is governed by the LPA/42/2002 13/18 JUDGMENT Gujarat Panchayat Service (Recruitment of Primary Teachers) Rules, 1970 made under Section 323 of the Gujarat Panchayats Act, 1961. Rule – 4 of the said Rules lays down the eligibility for appointment. Clause (b) thereof provides for passing of any one or more of the qualifying examinations specified in Schedule – I to the said Rules. Schedule – I refers to the following qualifications. “1. Secondary School Certificate Examination of the Gujarat Secondary School Certificate Board together with a certificate of Primary Teachers', Certificate Examination ; 2. Primary School Certificate Examination together with a certificate of Primary Teacher's Certificate Examination. 3. Lok Shala Certificate Examination together with a certificate of Primary Teachers', Certificate Examination.” Thus, atleast passing of one of the aforesaid examinations was a prerequisite for appointment as primary school teacher. As recorded hereinabove, none of the petitioners or the 77 candidates referred to LPA/42/2002 14/18 JUDGMENT hereinabove possessed any of the above qualifications. None of them had, therefore, right to be appointed as a primary school teacher. The eligibility of the petitioners to be appointed as primary school teacher in the special subject (Tailoring in respect of the petitioners) came from various Government Resolutions permitting appointment of untrained teacher as a special subject teacher to a limited extent (15% of the available vacancies). It is also not in dispute that none of the petitioners was selected for appointment as primary school teacher in special subject on the basis of his / her merit. The petitioners had, therefore, no right to appointment either as a trained primary school teacher or as a teacher in special subject. Nevertheless, in view of the instructions contained in the above referred Resolution dated 7th August, 1986, contrary to the Rules of 1970, they came to be selected for appointment as untrained teacher subject to the approval of the State Government. The instructions contained in the said Resolution was in the nature of permission to recruit untrained candidates only in case of a dire need where adequate number of trained LPA/42/2002 15/18 JUDGMENT candidates were not available and that too on condition that the appointment could be made only after the concerned candidate obtained training at his / her own expense. In our view, the petitioners not being qualified for appointment as Primary School Teacher had no right to appointment as a matter of course. Besides, it is not the case of the petitioners that since their inclusion in the list of untrained candidates any of them has obtained required training. In that case there was no corresponding liability upon the appellant to operate the merit list of untrained candidates or to exhaust the same before the recruitment process was undertaken anew. The petition was based on a misconceived notion that the petitioners, by their placement on the list of untrained candidates, had acquired right to appointment. The reliance on Rule – 14 of the Rules of 1970 is also misplaced. The said Rule – 14 provides, inter alia, that, “subject to the availability of vacancies candidates from the select list prepared in May shall be appointed before select list prepared in October LPA/42/2002 16/18 JUDGMENT next becomes finalized and candidates from select list prepared in October shall be appointed before the select list prepared in May next becomes finalized.” It also provides that, “The select list prepared in May shall lapse as soon as the select list prepared in October next is finalized and the select list prepared in October shall lapse as soon as the select list prepared in May next is finalized.” Thus, by the aforesaid provision, the life of given select list is restricted till the next select list is finalized. By no stretch of imagination the aforesaid provision can be construed to mean that until the existing select list is exhausted, the process for preparation of a select list afresh shall not be undertaken. On the contrary recruitment for appointment to public service is a continuous process to be undertaken at regular intervals. The contention raised in the petition runs contrary to the provisions made in the aforesaid Rule – 14 and is also against the public policy. For the aforesaid reasons, we are of the opinion that the learned Single Judge has erred in holding LPA/42/2002 17/18 JUDGMENT that the petitioners had indefeasible right to appointment and in issuing direction to appoint the petitioners, though admittedly, they do not possess requisite qualification. In the above referred matter of Bamaniya Manguben Vechatbhai And Others, the concerned petitioners did possess the requisite qualification and they were selected for appointment in order of their merit against the posts advertised. The petitioners herein were not qualified for appointment. They cannot claim a right to appointment. For the aforesaid reasons, impugned judgment and order dated 9th August, 2001 passed by the learned Single Judge in Special Civil Application No.5974 of 1987 is quashed and set aside. Special Civil Application No.5974 of 1987 is dismissed. Appeal is allowed. Civil Application stands disposed of. The parties will bear their own cost. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) LPA/42/2002 18/18 JUDGMENT ===================================================== N.B :- On page-12 of this judgment, in paragraph starting with the words “It should be noted”, the words “in the year 1997” & “in September, 2007” are replaced by the words “in the year 1987” and “in September, 1987” as per the order made on 27th March, 2008 made on Review Application No. 1130 of 2008. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.)