LPA/836/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 836 of 2008 In SPECIAL CIVIL APPLICATION No. 9575 of 2008 With LETTERS PATENT APPEAL No. 837 of 2008 In SPECIAL CIVIL APPLICATION No. 9574 of 2008 With LETTERS PATENT APPEAL No. 845 of 2008 In SPECIAL CIVIL APPLICATION No. 9753 of 2008 To LETTERS PATENT APPEAL No. 851 of 2008 In SPECIAL CIVIL APPLICATION No. 9752 of 2008 With LETTERS PATENT APPEAL No. 866 of 2008 In SPECIAL CIVIL APPLICATION No. 9577 of 2008 To LETTERS PATENT APPEAL No. 871 of 2008 In SPECIAL CIVIL APPLICATION No. 9836 of 2008 With LETTERS PATENT APPEAL No. 918 of 2008 In SPECIAL CIVIL APPLICATION No. 9754 of 2008 To LETTERS PATENT APPEAL No. 920 of 2008 In SPECIAL CIVIL APPLICATION No. 9835 of 2008 With LETTERS PATENT APPEAL No. 922 of 2008 In SPECIAL CIVIL APPLICATION No. 9832 of 2008 With LETTERS PATENT APPEAL No. 924 of 2008 In SPECIAL CIVIL APPLICATION No. 9739 of 2008 With LETTERS PATENT APPEAL No. 1001 of 2008 In SPECIAL CIVIL APPLICATION No. 9576 of 2008 With LETTERS PATENT APPEAL No. 1027 of 2008 In SPECIAL CIVIL APPLICATION No. 10023 of 2008 And LETTERS PATENT APPEAL No. 1121 of 2008 In SPECIAL CIVIL APPLICATION No. 9574 of 2008 LPA/836/2008 2/14 JUDGMENT With CIVIL APPLICATION No. 9803 of 2008 With CIVIL APPLICATION No. 9804 of 2008 With CIVIL APPLICATION No. 9863 of 2008 With CIVIL APPLICATION No. 9869 of 2008 To CIVIL APPLICATION No. 9874 of 2008 With CIVIL APPLICATION No. 9946 of 2008 With CIVIL APPLICATION No. 9947 of 2008 With CIVIL APPLICATION No. 9950 of 2008 With CIVIL APPLICATION No. 9953 of 2008 With CIVIL APPLICATION No. 9958 of 2008 With CIVIL APPLICATION No. 10270 of 2008 To CIVIL APPLICATION No. 10272 of 2008 With CIVIL APPLICATION No. 10358 of 2008 And CIVIL APPLICATION No. 11650 of 2008 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 ? LPA/836/2008 3/14 JUDGMENT 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL HARDIKKUMAR JAGDISHBHAI & 17 - Appellant(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 49 - Respondent(s) ========================================================= Appearance : MR YATIN OZA, SR.COUNSEL with MR ASHISH B DESAI for Appellants. MR SHALIN MEHTA for Appellants. MR SUNIT SHAH, GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 3,8 - 50. DS AFF.NOT FILED (N) for Respondent(s) : 4 - 7. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/11/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This group of Appeals preferred under Clause 15 of the Letters Patent arise from the common judgment and order dated 12th August, 2008 passed by the learned Single Judge in above writ petitions. The appellants are the writ petitioners. The subject matter of dispute is the selection for appointment as Vidya Sahayak in the primary schools run and managed by the District Panchayats/Nagar Panchayats/ Municpalities/Municipal Corporations in the State of LPA/836/2008 4/14 JUDGMENT Gujarat. In supersession of its earlier Resolution dated 1st July, 1974, on 25th February, 1980, the State Government passed a resolution in respect of employment of sports persons to Class-III and Class- IV service by relaxing the standard of selection. The preamble of the said Resolution speaks of encouraging the Government servants in Class-III and Class-IV service in sports activities. It provides that other things being equal, the sports persons be selected for appointment to Class-III and Class-IV service. Paragraph 2 of the said Resolution provides for addition of marks to the extent of 5% to the marks obtained at oral or written competitive test given by the Gujarat Public Service Commission. In case of recruitment on the basis of oral interview based on the marks obtained at the qualifying examination, it provides that the standard of selection be lowered not exceeding the extent of 5%. Paragraph 3 of the said Resolution provides that the sports persons who have secured first, second or third position in any state level or national level tournament or are the members of a winning team at such tournament are LPA/836/2008 5/14 JUDGMENT eligible for the benefit of the said Resolution. It further provides for the games which are approved for such benefit. The games which are approved for the purpose include weight-lifting, gymnastics, volleyball, kabbadi, football and wrestling. The Resolution also provides for the authorities which are competent to issue such certificate. The authorities competent to issue such certificate are the Secretary of the state level association or the national level association. The aforesaid Resolution dated 25th February, 1980 has been modified on 1st August, 1990 to extend the said benefit not only to the sports persons securing first, second or third position or to members of the winning team but to all sports persons who participate in national or international or inter-university tournaments or in the tournaments organized by Akhil Bharat Shala Sangh. The appellants are the sports persons who claim to have participated in various games at national or state level tournaments organized by the respondents Associations so as to claim the benefit of additional LPA/836/2008 6/14 JUDGMENT marks for appointment as Vidya Sahayak under the aforesaid Resolution dated 25th February, 1980. On 21st April, 2008 the State Government advertised a public notice for appointment of large number of Vidya Sahayaks (assistant teachers in primary schools) in the State of Gujarat. Pursuant to the decision of the State Government to fill-in the vacant posts of Vidya Sahayak, the concerned Panchayats/ Municipalities/ Municipal Corporations published advertisements in daily newspapers to invite applications from eligible candidates for appointment as Vidya Sahayak under the concerned Panchayat/ Municipality/ Municipal Corporation. Pursuant to the said advertisements the appellants made application with relevant documents including sports certificates. It is not in dispute that appointment to the post of Vidya Sahayak is made in order of merit. The merit is assessed on the basis of the marks obtained at S.S.C., H.S.C. and qualifying examination (P.T.C./ C.P.Ed./D.P.Ed.). The State Government has prescribed arithmetical formula to assess the comparative merits LPA/836/2008 7/14 JUDGMENT of the applicants. It is also not in dispute that the appellants fall short in the merit list. However, if they are given the benefit of enhanced marks on the basis of the sports certificates, they do have a chance to get into the merit list. In that case, they will displace the candidates who are already in the merit list. However, by decision dated 17th July, 2008 the Director of Primary Education has decided not to accept the sports certificates issued by the respondent Associations. In other words, the sports certificates produced by the appellants are not acceptable to the respondents authorities. The appellants will not be given the benefit of enhanced marks for such sports certificates. In the process, the appellants will lose their chance to be selected for appointment as Vidya Sahayak. It is this communication dated 17th July, 2008 sent by the Director of Primary Education to all District Primary Education Officers which was subject matter of challenge in the above writ petitions. The challenge has failed before the learned Single Judge. Therefore, the present Appeals. LPA/836/2008 8/14 JUDGMENT The arguments of all the learned advocates are common. In the submission of the learned advocates, the impugned communication dated 17th July, 2008 amounts to blacklisting of the respondent Associations and depriving the appellants of the additional marks otherwise available to them. Such communication, therefore, could not have been issued without affording opportunity of hearing to the respondent Associations and also to the affected applicants (the appellants). The said communication does not disclose the reasons why such decision was taken. The said communication is now explained by filing affidavits in the present proceedings. The submission is that the impugned communication has to be read as such and cannot be explained by the affidavits filed in the present proceedings. Ex- facie, the said communication is not a speaking order. The said communication is illegal, null and void. The learned advocates have taken us through each and every sports certificate which is produced on the record of the proceedings to show that they are genuine certificates and the appellants are entitled to the additional marks based on the said LPA/836/2008 9/14 JUDGMENT certificates. It is also submitted that the impugned communication metes unfair treatment to the appellants. The decision is based on a mere suspicion. In absence of any proof of illegality, such a decision could not have been taken on mere suspicion. In support of their submissions, the learned advocates have relied upon the judgments in the matters of Commissioner of Police, Bombay v/s. Gordhandas Bhanji [AIR 1952 SC 16]; of V.Balasubramaniam v/s. Tamil Nadu Housing Board and others [AIR 1988 SC 6]; of M/s Star Enterprises and others v/s. City and Industrial Development Corporation of Maharashtra Limited and others [(1990)3 SCC 280]; of National Buildings Construction Corporation v/s. S.Raghunathan and others [(1998)7 SCC 66]; of Gulzar Singh v/s. Sub-divisional Magistrate and another [(1999)3 SCC 107]; of Sisir Kumar Mohanty and others v/s. State of Orissa and others [(2002)9 SCC 219]; of Hindustan Petroleum Corporation Limited v/s. Darius Shapur Chenai and others [(2005)7 SCC 627]; of Dolly Chhanda v/s. Chairman, Jee and others [(2005)9 SCC 779]; of Union of India v/s. R.Bhusal [(2006)6 SCC 36]; of Rajesh LPA/836/2008 10/14 JUDGMENT Kumar and others v/s. Dy.CIT and others [(2007)2 SCC 181] and of Commissioner of Sales Tax, Orissa and others v/s. Crown Re-roller (P) Limited and Others [(2007)3 SCC 659]. The Appeals are contested by learned Government Pleader Mr.Sunit Shah. He has supported the judgment of the learned Single Judge. He has submitted that the certificates produced by the appellants are ex- facie doubtful. The State Government could not have accepted the said certificates for the purpose of employment in the Government service. The respondent Associations were given opportunity to produce relevant materials and of hearing to establish their authenticity/the authenticity of the tournaments allegedly organized by them. After considering the available materials, the State Government decided not to accept such doubtful certificates for enhancement of marks of the concerned applicants. By impugned communication, the State Government has instructed the concerned authorities not to accept the said certificates as genuine and not to grant the additional marks on the basis of such certificates. LPA/836/2008 11/14 JUDGMENT Nevertheless, the concerned applicants (the appellants) are considered for appointment as Vidya Sahayak on the basis of their qualifying marks. The learned Single Judge has elaborately discussed the above arguments. The learned Single Judge has also examined individual sports certificates produced on the record. We, therefore, do not discuss each sports certificate produced on the record. Suffice it to note that one Sanjay Vakil, Honorary Secretary of the Indian Wrestling Association of Gujarat has made affidavit. It is stated that during the period from the years 2003 to 2008 the said Association had issued 440 sports certificates. As against that as many as 6878 certificates issued by the said Association, signed by the said Shri Sanjay Vakil are produced by the concerned applicants in support of their application for appointment as Vidya Sahayak. We are alive to the fact that some of the applicants may have made multiple applications but that too would not explain the grossly excessive (17 times) number of certificates produced by the candidates. Besides, the LPA/836/2008 12/14 JUDGMENT holding of certain tournaments or the participation in such tournaments viz. cross-country running race at Thane and the Kabaddi tournament held at Anand are highly doubtful. It should be noted here that it is not the case of the State Government that the appellants have produced false or forged sports certificates. The objection is in respect of the authenticity of the associations organizing the tournaments or the alleged tournament itself is questionable. If the State Government has decided to keep such doubtful certificates out of consideration, the court of law should not make exception about it. Moreover, neither the appellants have right to appointment nor a right to selection. All that they can claim is a right to be considered for selection, the said right has not been abridged by the impugned action. What is taken away is the preferential treatment given on the basis of participation in certain sports event. In a case like the present one where a large scale fraud has been perpetrated upon the public authority, issuance of show-cause notice to each individual is neither LPA/836/2008 13/14 JUDGMENT possible nor necessary (reference can be had to the decisions of the Hon'ble Supreme Court in the matters of The Bihar School Examination Board v/s. Subhas Chandra Sinha and others [AIR 1970 SC 1269]; of M/s. Andhra Steel Corporation Limited v/s. The Andhra Pradesh State Electricity Board and another [AIR 1991 SC 1456]; of Union Territory of Chandigarh v/s. Dilbagh Singh and others [AIR 1993 SC 796]; of Union of India and others v/s. O.Chakradhar [(2002)3 SCC 146] and of Karnataka Power Corporation Limited and another v/s. A.T.Chandrashekar [AIR 2007 SC 2480]). What is paramount is public interest, particularly primary education and for that matter selection and appointment to the posts of Vidya Sahayak. The production of inexplicably large number of sports certificates, genuineness of which is doubtful, has already delayed the process of selection and appointment of Vidya Sahayak by nearly six months. Such delay is detrimental to the primary education in the State. For the aforesaid reasons, we agree with the learned Single Judge. No case for interference is LPA/836/2008 14/14 JUDGMENT made out. The Appeals are dismissed. Civil Applications stand disposed of. Interim relief stands vacated. The parties will bear their own cost. Learned advocate Mr.Ashish Desai requests that the recruitment process be stayed for a period of three weeks. Request is rejected. Registry will send the writ forthwith. Registry is directed to maintain copy of this judgment in each Appeal. (K.M.Thaker, J.) (Ms.R.M.Doshit, J.) /moin