)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5974 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ DAKSHABEN L PANDYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR SR BRAHMBHATT for Petitioner No. 1-45 Mr. Ketan M. Parikh, ASSISTASNT GOVERNMENT PLEADER for Respondent No. 1-2 MR SK JHAVERI for Respondent No. 3 MR MUKESH R SHAH for Respondent No. 4 .......... for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision: 09/08/2001 ORAL JUDGEMENT This is a unique type of case in which an advertisement was published for selection of teachers on 29th September, 1986. On the basis of the Government Resolution dated 31st May, 1965 wherein special subject teachers i.e. Hindi, Drawing and Physical Training were required to be appointed to the extent of 15%. By the Government Resolution dated 22nd October, 1970, the stitching or needle teachers (tailoring) were also included by way of amendment in the Government Resolution dated 31st May, 1965 as special subject teacher. On the basis of the Government Resolution dated 7th August, 1987 special subject teachers such as sewing teachers, Hindi teacher, music teacher, physical training teachers were required to be appointed in 15% ratio. After completing 15% quota of special subject teachers, if any post remains vacant, then the ratio was extended upto 20% of the total requirement and the candidates covered by 15% to 20% are termed as untrained teachers. By the advertisement, applications were invited from candidates for the selection of teachers having the qualifications mentioned therein including item no. 4 : SSC/TC/TCWCG. Various candidates applied. Interview call letters were issued on 10th December, 1986 to the candidates. After some selection procedure was adopted and a selection list of 77 candidates was prepared and intimation was sent by the District Primary Education Officer to all the candidates that they have been selected, by a leter dated 10th December, 1986. The District Primary Education Officer, wrote a letter to the Director of Education vide letter dated 8th December, 1986 for approval of the select list of 77 candidates and for the appointment of those 77 TCWCG candidates. While, the approval was pending, the District Primary Education Committee issued another advertisement on 12th September, 1987 for the PTC training teachers. By an order dated 19th December, 1991, the Government of Gujarat issued orders to the Director of Primary Education that the proposal of D.P.E. O. for the approval has been accorded and also directed to appoint 77 candidates including the petitioners. By that time, the petitioners had already filed the present petition in this Court. It was also required to be mentioned in their appointment letter that their appointment letter will be subject to the result of the petition pending in the High Court. Inspite of the approval by the Government of Gujarat, 77 candidates including the petitioners were not appointed. Though the petitioners have agitated their claim by filing this petition from the year 1987, when the second list prusuant to the advertisement dated 12.9.1987 was about to be prepared. The main cause of non-appointment of 77 candidates including the petitioners was the result of mischevious conduct of the District Primary Education Officer inspite of the directions of Government of Gujarat and the Director of Primary Education. 2. This petition has therefore, been filed by 45 selected candidates, lateron 6 candidates have also been joined in the petition, for a direction to the respondent authorities to appoint 77 candidates including the petitioners and till the expiry of the select list, the list prepared pursuant to the advertisement dated 12th September, 1987 be not given an effect in appointing the candidates selected pursuant to the advertisement dated 12.9.87 and for a direction to the respondent authorities not to proceed with the selection procedure pursuant to the advertisement dated 12.9.87 when the first select list prepared pursuant to the advertisement dated 29th September, 1986 was already in existence. 3. It is stated that by the Government Resolution dated 31st May, 1965, the percentage of special subject teacher was fixed to the extent of only 15% and special subject were to be treated Hindi, Drawing and Physical Training. Such requirement of ratio was to be fixed by the Education Committee as per requirements. The separate qualifications were also prescribed for Hindi subject teacher, drawing teacher, physical training teacher and tailoring teacher. It is also mentioned that subject teachers will be deemed to be equivalent to the junior PTC teachers and they will be paid as Junior Primary Teacher (JPCT). By the Government Resolution dated 22nd October, 1970 the subject teacher for stitching course (tailoring) was also included in para-2, Item No. 3 after physical training as Needle, Craft teacher. By the Government resolution dated 7th August, 1986 it was noticed by the Government that the qualified PTC candidates for PTC teachers are not available for the appointment in the tribal areas of the District either they are not available or they are not joining and reporting to be present after their appointment. It was considered that in such cases, the education of the children should not suffer adversely. Therefore, the Government has carefully taken cautious considerations and decided as per the requirement of Rules, that if PTC trained candidates are not available, other candidates should be recruited subject to the condition of availibility of PTC trained candidates. The subject teachers were required to be appointed to the extent of 15% and if there is some more requirement and the explanation in the Rules requires, there should be change in the ratio of seniority, maximum upto 20% of the requirement. It is also mentioned in the Resolution that the candidates covered by 15% to 20%, they must be having qualification of S.S.C. and they will be treated as untrained and they were required to obtain PTC training at their own expenses and thereafter they will be treated as trained teachers. In the last, it is also mentioned that after making appointment as per existing Recruitment Rules, the remaining posts will be filled up in accordance with the aforesaid relaxation of age and qualification with prior approval of the Government, if necessary. The District Primary Education Committee issued an advertisement on 29th September, 1986. Several candidtes applied for appointment and after selection procedure, a select list of 77 candidates was prepared and those persons are also having the qualification of SSC/TCWCG. Though there was no need for getting the approval of the State Government as they are required to be appointed against 15% quota earmarked for special subject teacher. Still however, the District Primary Education Officer required the approval of the Government and sent a letter to the Director of Primary Education for appointment of 77 TCWCG candidates vide letter dated 8.12.1986. The Government of Gujarat issued orders to the Primary Education Officer on 19.12.1991 according approval of the select list and directed for the appointment of 77 candidates as the writ petition filed by the petitioners is pending in the High Court. Hence, it was also directed that the appointment be made subject to the result of the petition pending in the High Court. The District Primary Education Officer of the Panchmahals district was not interested in making the appointment of the select list. Hence, in order to avoid appointment of 77 candidates, he wrote a leter to the Director of Primary Education by his letter dated 16.1.1992 seeking guidance on the following points. (i) Whether these candidates are to be appointed as untrained or trained teachers. (ii) If they are to be appointed as untrained teacher, then whether such candidates are to be appointed when now trained teachers are available. (iii) The recruitment of untrained teacher in the district is over, hence clarification on the point was necessary. (iv) 5% subject teachers are to be appointed whereas in this case, there are 77 candidates, whether they are to be appointed as untrained teacher or not. The Director of Primary Education, addressed a letter to the District Primary Education Officer in reply of his letter stating that the District Primary Education Officer should comply with the direction of the Government or give cogent reasons for non-compliance or dorpping the proposal. The District Primary Education Officer again sent a letter to the Director of Primary Education in the month of February, 1992 mentioning that the permission was granted to appoint total 77 untrained teachers and directions have been given to take action for compliance at the district level. He also mentioned that the Managing Committee of the District Panchayat has made protest against such appointments as trained teachers are available. Hence, the appointment as untrained primary teachers cannot be given in compliance of the direction of the Government. He gave his opinion that the recruitment of untrained teachers can be done only to the extent of filling backlog as prescribed by the Government as required to be given to untrained teachers. Hence, he required specific orders to be obtained from the Government. The District Managing Committee has resolved to issue instructions to undertake process as per the Rules of the Government in connection with the recruitment of untrained and trained teachers. The Director of Primary Education vide his letter dated 3rd February, 1992 sent a letter to the District Primary Education Officer that the proposal made by his office dated 8.12.86 has already been sent by the facts on the facts stated therein. The office of the District Primary Education Officer is required to undertake the process for its compliance. The proposal made by his office is not required, otherwise he is required to send report alongwith his opinion for dropping the proposal with reasons for doing so. It is also mentioned in the note that the decision be taken after convening the meeting of Education Committee. The Chairman of the District Primary Education Committee made a note that now there is no need to convene the meeting as the Government has already granted permission, therefore, the process for making appointment be undertaken. Immediately on 4th February, 1992 letters were issued to all the 77 candidates for appointment as primary teachers in primary schools under District Education Committee, Panchmahals at Godhra. With reference to the letter dated 19.12.1991 addressed by the Under Secretary, Education Department, the candidates were called upon to remain present in the office of District Panchayat Education Committee, Panchmahals at Godhra at 9.00 a.m. on 7.2.1992 alongwith the original testimonials mentioned in the letters and undertaking (bond) to be prepared on the stamp paper of Rs.40/- to serve in tribal areas. Before coming of 7th February, 1992, on 6th February, 1992, at the instance of Primary Education Officer, Resolution no. 679 was passed to issue instructions to undertake proces as per rules of the Government as may be in force for appointment of untrained and trained teachers holding that the orders for immediate recruitment of 77 candidates of TCWC was absolutely illegal and contrary to the interest of the children of Panchmahals district. Such candidates having TCWC should not be given new appointments and it was unanimously resolved to cancel the orders of the Education Department. It appears that this resolution was passed at the behest of the Primary Education Officer and he was behind this resolution. Again on 25th February, 1992 the District Primary Education Officer sent a confidential letter to the Director of Primary Education stating therein "Original proposal dated 8.12.1986 of this office for appointment of other qualified teachers is accepted by the Government vide their order dated 3.2.1991 and your office vide letter dated 3.2.92 has asked us to implement the original proposal and appointing these 77 candidates, untrained teachers is approved. At present in the district, a number of candidates having qualifications of SSC/PTC or CP.Ed. are available. Therefore, the Government has, through its Education Department ordered that these candidates having TCWCG qualifications be appointed as teachers by treating them as untrained teachers. Therefore, looking to the present circumstances, there are technical and administrative complications. Therefore, at district level, the Managing Committee also resolved to process the appointments of these candidates as per rules. In view of these, specific orders from Government are required so that their appointments could be processed. The appointments cannot be given as untrained. The District Primary Education Officer sent another letter dated 10/11.3.1992 informing that the Managing Committee of District Panchayat has passed the resolution no. 679 in the meeting held on 6.2.1992 alongwith the copy of the resolution wherein the action of the Government was held to be bad and illegal. The Director of Primary Education also sent another letter dated 2/5.4.1992 calling for explanation of the D.P.E.O. that despite clear instructions, the D.P.E. O. was required to make clarifications on the following points including (1) What the technical questions arise for appointing proposed candidates and what is his view on the questions. (2) What kind of administrative problems or questions were likely to arise in giving appointment to the candidates and what sort of complications were arising in the administration if such appointments are made. (3) The District Committee has recommended regularisation of all the candidates before appointment them what type of regularisation was required that was not clear and the regularisation and for regularisation which rules are required to be relaxed that was also not made clear. (4) When the Government has already issued orders for appointing these candidates having TCWCG, then why DPO was insisting for still some orders, was not clear. (5) Reasons were required to be stated for not giving them appointment as trained teachers and no clarification was made on this aspect. (6) You have just sent the resolution of the Managing Committee, but what was his approach in the context of the rules and his report was not given by him that was not desirable and hence he should give clear opinion and views. (7) The letter dated 26th February, 1992 was enclosed. Hence, the DPO was required to give views alongwith his report urgently. The D.P.E. O. by his letter dated 4.5.92 replied to the Director stating therein that a detailed reply has already been offered by letter dated 25th February, 1992. The resolution dated 6th February, 1992 was clear on the points and due to resolution of the District Committee the appointments could not be given. A clarification had already been made by a letter dated 25th February, 1992. The letter dated 26th February was not enclosed and hence no reply could be made. The affidavit of the Government made on 2nd December, 1987 was required to be considered which has been filed in the petition and the order of the High Court dated 23rd January, 1989 was also to be considered. It is significant to note here that the learned A.G.P. states that he has not filed any affidavit-in-reply in this case on behalf of the respondent nos. 1 and 2. 4. One Kantibhai Trikambhai Bhil, the District Primary Education Officer of the District Primary Education Committee, Panchmahals at Godhra has filed affidavit on behalf of the respondent nos. 3 to 5. As such, the D.P.E.O. tried to mislead the Director of Education that some affidavit dated 2.12.1987 has been filed on behalf of the Government in the High Court and the order dated 23rd January, 1989 by which an interim relief granted earlier for keeping 45 posts of primary teachers vacant was vacated and it was directed that the appointments to the posts shall be subject to the result of the petition and it was also made clear that it would be so stated in the appointment orders and in the order, it is also required to be mentioned that such appointees can apply to the High Court for being joined as respondents in the petition in order to enable such persons to contest the petition. By the order dated 23rd January, 1989 the Court has directed to appoint persons, but they are required to be informed that their appointment shall be subject to the result of the petition pending in the High Court and the appointing authority was directed to make it mentioned to inform the appointees that if they intend to contest the petition, may implead themselves in the petition as party. From the order dated 23rd January, 1989, it appears that this Court has not made any restriction on the department concerned from making any appointments of the petitioners or any other persons similarly situated. The Director of Primary Education, after considering the resolution dated 7.8.1986, the proposal dated 8.12.1986, the order of the High Court dated 23rd January, 1989 and the letter dated 9.12.1991 and the resolution no. 679 dated 6.2.1992 passed by the Managing Committee of the Panchmahals district, directed the District Primary Education Committee to give appointments to 77 candidates with a direction to mention in their appointment orders that their appointments would be subject to the decision of this petition pending in the High Court. Inspite of the orders dated 1.9.92 passed by the Director of Primary Education, the D.P.E. O. has not appointed 77 candidates of the select list. The Government of Gujarat passed the resolution dated 27th April, 1994 whereby the recruitment of 15% was reduced to 10% of the subject teachers except 5% of C.P.Ed. in the recruitment and to recruit 7% teachers of subject teachers( for the subjects of Drawing and Music). The District Panchayas, Panchmahals at Godhra sent a letter to the Deputy Secretary, Education Department on 30th June, 1994 stating that the office has obtained an opinion from the advocate of the High Court Mr. S.K.Zaveri as to whether 77 candidates should be appointed or not on 9.2.1992 that looking to the recruitment rules for primary teachers, the list of primary teachers will atuomatically stand cancelled when new list comes into existence. In his view, they cannot be appointed and he asked to wait till the final outcome of the petition. The D.P.E.O. sent a letter dated 25th August, 1994 stating that all the details have already been furnished earlier. Resolution no. 679 dated 6th February, 1992 was cancelled by resolution no. 922 dated 22nd September, 1993 and as per the proposal, the names mentioned in the select list be recommended for appointment. The Administrator vide his letter dated 21st September, 1994 sent a letter to the Secretary, Education Department stating that the Government has granted approval for the appointment of 77 candidates vide order dated 19.12.1992. Mr. Zaveri, advocate for the Panchayat has given his opinion vide his letter dated 9.2.1992 that on the preparation of the select list, earlier select list will get cancelled automatically. Hence, the appointment of 77 persons cannot be given and he required a direction from the Government as to whether these 77 candidates are to be appointed or not and if yes, whether they are to be appointed as trained or untrained teachers. The District Panchayat Educatio Officer sent a letter to the Director of Primary Education on 31.5.1995 requesting for decision of the Government, for the appointment of 77 candidates having sewing subject. 5. No affidavit-in-reply has been filed on behalf of the respondent nos. 1 and 2. Affidavit-in-reply has been filed by Kantibhai T.Bhil, District Primary Education Officer on behalf of respondent nos. 3, 4 and 5 stating therein that the petitioners are admittedly untrained and are not eligible to be appointed to the post of P.T.C.trained teachers. There is no vacancy for the post of tailoring or sewing craft, post of physical education and drawing teachers. About 224 posts have already been filled up from amongst the list prepared in October, 1986. The petitioners being untrained teachers were kept in the select list as untrained teachers. In case of non-availibility of trained teachers, with the permission of the State Government, they could have been appointed and they were retained in the select list and they were so informed by the letter dated 10.12.1986. Now, the PTC trained teachers are available, but select list for October, 1986 was prepared for which an advertisement was given in September, 1987@ and applications were called for by 25th September, 1986. The proposal for the approval was sent up in December, 1986 to the Director for sanction of the State Government for appointment of untrained teachers, but no sanction or approval or permission from the State Government was received. But the petitioners have no right to be appointed as it has already been specifically stated in the letter communicated to them on 10.12.1986. The petitioners have no right to claim appointments even in respect of vacancies prior to July, 1987. Under the Rules, it is incumbent to prepare a select list in May and October of every year, but due to special circumstances, such list could be prepared in May, 1987 and the appointments came to be made from the select list prepared for October, 1986. Now, the list has already exhausted except in case of untrained teachers in respect of which proposal was sent to the Director as stated earlier. No approval was received from the State Government in that regard. Under Rule 14, whether select list has exhausted or not, on preparation and finalisation of the list in May or October, earlier list lapsed and it is not incumbent upon the authorities to exhaust the previous list. In pursuant of the advertisement, interview calls were already issued and interviews had been completed. Select list is to be finalised and there are about 713 vacancies for which the list was prepared. 6. A re-joinder affidavit has been filed on behalf of the petitioners wherein it is stated that PTC colleges has not been imparting education in subjects like sewing etc. Due to their importance, the Government has resolved to recruit 15%, non-PTC teachers trained in this craft subject. The Government has already resolved to include sewing as craft subject and that has been included by the Government resolution dated 22nd October, 1970 in the Government resolution dated 31st May, 1965. The respondent no. 4 issued another advertisement on 29th September, 1986 for the appointment of primary teachers. As per the Government circular dated 7.8.1986 it was open and advisable to consider for the recruitment of non-PTC teachers due to dearth of PTC teachers. Originally, only 15% of the total vacancies of primary teachers were to be filled in by such non-PTC teachers. However, the respondent Government increased this percentage of 15% to 20% vide circular dated 7.8.1986. The District Primary Education Officer sent a communication dated 8.12.1986 making it clear that the total 619 vacancies were available. At the relevant time, there was a dearth of PTC teachers and about 619 vacancies were available. Hence, the respondents ought to have appointed the petitioners after their due selection. It is not open to the respondents to wait for indefinite period to appoint untrained PTC persons. The stand that now, PTC trained teachers are available is not available to the respondents inasmuch as at the relevant point of time, there was a dearth of PTC trained teachers. The question of sanction was solved and they will give legitimate right of the petitioner. Actually, the respondent authorities ought to have included some of the persons from sewing, craft teachers. 15% has been increased to that of 20% by circular dated 7.8.86. The respondent authorities have treated the petitioners discriminatory inasmuch as they have not been given any share in the first 15 percentage. The respondents have arbitrarily withheld sanction and there was no fault of the petitioner and hence they cannot be denied