Jignesh Gordhanbhai Chudasma vs State Of Gujarat

,,,,

J.B.Pardiwala, J",,,,

1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:",,,,

“[A] This Hon’ble Court be pleased to Admit and Allow this petition;,,,,

[B] This Hon’ble Court be pleased to declare Appendix-II of the Gujarat Secondary Teacher, Class III, (Procedure for Selection) Rulesâ€, 2019",,,,

being Ultra Vires to the Constitution of India, 1950 and to The Gujarat Secondary Teacher, Class III, (Procedure for Selection) Rulesâ€, 2019 and be",,,,

further please to direct the respondents to consider only required education qualification for calculation of 30% weightage in preparing merit list;,,,,

[C] Pending admission, hearing and final disposal of the present petition, the respondent be directed not to prepare and operate the final merit list and",,,,

not to carry out any further selection process following the provisional merit list.,,,,

[D] Ad-interim relief in terms of prayer 8(C) above may kindly be granted.,,,,

[E] Filing of Affidavit may be dispensed with due to Pandemic;,,,,

[F] Any other and further relief as deemed fit and proper may be granted, in the interest of justice;â€​",,,,

2 The case of the writ applicant in his own words as pleaded in his writ application is as under:,,,,

“4.1 The Petitioner has completed Bachelor of Arts (B.A.) in the year 2011 and thereafter completed the Bachelor of Education (B.Ed.) in 2013.,,,,

The petitioner joined as Primary teacher on 24.08.2013 in the Jilla Siksan Samiti at Dahod and is in service till today.,,,,

4.2 The petitioner has cleared “Teachers Aptitude Test (TAT) â€" Secondary†examination twice once in the year 2014 and recently in January,,,,

2019. The petitioner has scored 172 marks out of 200 in TAT Examination 2019. Annexed hereto and marked as Annexure â€" B Collectively are the,,,,

copies of Petitioners education qualification and TAT result.,,,,

4.3 That in pursuance to the advertisement issued by the Selection Committee established under the Rules, for the appointment of the Secondary",,,,

Teachers for various subjects in Gujarati and English Medium. The Petitioner had applied for the Secondary Teacher in Social Science subject in,,,,

Gujarati Medium based on his TAT score and educational qualification as required under the Rules. Annexed hereto and marked as Annexure-C is,,,,

the cop of the Advertisement.,,,,

4.4 The petitioner stands at 792 in Social Science in Provisional Merit list and stands at 953 in General list. The Final Merit list is yet to be declared till,,,,

the time of drafting of this petition. The petitioner will produce the provisional merit list as and when required by the Hon’ble Court.,,,,

4.5 The Petitioner came to know that the selection list is prepared according to Rule 10 of The Gujarat Secondary Teacher, Class III, (Procedure for",,,,

Selection) Rules, 2019 and the Rule 10(1) provides for 30% weightage to “Required†education qualification. But to the surprise of the petitioner,",,,,

the Appendix-II divides 30% weightage into two parts 15% for “Required education criteria and 15% for the optional education criteria and in,,,,

doing so it goes beyond the selection process rules and violates the fundamental rights of the petitioner.â€​,,,,

3 Thus, it appears from the materials on record that the applicant seeks to challenge the legality and validity of the Appendix-II read with Rule 10(3)",,,,

of the Rules, 2019 on the ground that the same is violative of Articles 14, 16, 19 and 21 of the Constitution of India.",,,,

4 The grounds of challenge as raised by the writ applicant in the memo of the writ application are as under:,,,,

“[A] The impugned Appendix-II read with rule 10(3) is violative of Article 14, 16, 19 and 21 of the Constitution of India.",,,,

[B] The impugned Appendix-II is ultra vires to Rule 10(1) of the Rules. It is expected that the Appendix-II will give 30% weightage for,,,,

“Required†Education Qualification as prescribed in Rule 10(1) but the Appendix-II runs contrary to the Rule, which makes the Rule 10(1)",,,,

redundant. The Appendix-II is dehors the provision of “The Gujarat Secondary Teacher, Class III, (Procedure for Selection) Rulesâ€, 2019 and is",,,,

required to be struck down to that extent.,,,,

[C] In the present case, the impugned Appendix-II is contradictory to the selection process prescribed under Rule10(1) by only giving 15% marks to",,,,

the “Required†Education Qualification when the rules provide 30% weightage to the “Required†Education qualification and hence, the",,,,

impugned Appendix-II fail to meet the Doctrine of Legitimate Expectation.,,,,

[D] It is now a well-settled law that when something is done capriciously, irrationally, without adequate determining principle, excessively and",,,,

disproportionately, it can be struck down by Doctrine of Manifest Arbitrariness. In the present case, the impugned Appendix-II is dehors the Rules it",,,,

seeks to serve and hence is irrational, excessive, disproportionate and seems to have been incorporated without following substantive due process.",,,,

Hence, it is required to be struck down to the extent it is manifestly Arbitrary.",,,,

[E] Even if, for the sake of argument, it is assumed that the impugned Appendix-II is not going beyond the Rule 10(1)& 7then also the impugned",,,,

Appendix-II read with rule 10(3)is irrational to the extent that it gives equal weightage to the “Required†and “Optional†education,,,,

qualification and that both “Required†and “Optional†educational qualification carry 15% weightage, which is irrational and hence fails the",,,,

Wednesbury test of Reasonableness and hence, the Appendix-II is required to be struck down to that extent.",,,,

[F] The impugned Appendix providing for 15% weightage for optional educational qualification is disproportionate to the object sought to be achieved,,,,

i.e. selection of teachers for Secondary Education, hence the impugned Appendix and Rule fails to meet the Doctrine of Proportionality. It is pertinent",,,,

to note that even for the selection as a teacher in the “Higher Secondary Education†the weightage of the Optional education qualification is 5%,,,,

only. Which goes on to show the impugned Appendix is disproportionate to the object of the selection of secondary teacher.,,,,

[G] That even otherwise the impugned Appendix and rule is violative of fundamental and constitutional rights of the petitioner.â€​,,,,

ANALYSIS,,,,

No.,Qualification,"Maximum

Marks",,

01,"Graduate degree in concerned

subject as specified in Appendix-I",10,,

02,"Post Graduate degree in

concerned subject as specified in

Appendix-I (if Possesses)",10,,

03,"Graduate degree in professional

subject as specified in Appendix-I",05,,

04 P,"Post Graduate degree in

professional subject as specified in

Appendix-I (if Possesses)",05,,

No,Qualification,"Maximum

Marks",For example,

1,,,"Percentage

secured by the

candidate","Marks eligible

on the basis of

percentage

secured by the

candidate

(col.3xco

1.4/100)

1,2,3,4,5

2,Xx,Xx,Xx,Xx

3,"Graduate degree

in professional

subject i.e. B.Ed.

/ B.P.Ed. etc.",5,80,4

4,"P o s t Graduate

degree in

professional

subject i.e. M/

Ex./ M.P.Ed. etc",5,60,3

,,30,,20

doubt true as noticed by this Court in Adhiyaman’s case that there may be situations when a large number of seats may fall vacant on account of,,,,

the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be,,,,

said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are,,,,

not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed,,,,

as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of",,,,

decisions of this Court including Dr. Preeti Srivastava’s case. If higher minimum marks have been prescribed, it would certainly add to the",,,,

excellence in the matter of admission of the students in higher education. xxx xxx xxx,,,,

One other argument is further advanced before us that the criteria fixed by the AICTE was to be adopted by the respective colleges and once,,,,

such prescription had been made it was not open to the Government to prescribe further standards particularly when they had established the,,,,

institutions in exercise of their fundamental rights guaranteed under Article 19 of the Constitution. However, we do not think this argument can be",,,,

sustained in any manner. Prescription of standards in education is always accepted to be an appropriate exercise of power by the bodies recognising,,,,

the colleges or granting affiliation, like AICTE or the University. If in exercise of such power the prescription had been made, it cannot be said that",,,,

the whole matter has been foreclosed.â€​,,,,

From the aforesaid decisions rendered by the Hon’ble Supreme Court, it can be said that the State can always prescribe higher qualifications",,,,

than the minimum provided by the central legislation. In the present case, as observed hereinabove, the Regulations of 2014 issued by the NCTE by",,,,

notification dated 12.11.2014 prescribe minimum qualification and therefore it is open for the respondent State to prescribe higher qualification by,,,,

giving weightage of marks at the time of giving appointment to the post of higher secondary teacher. 19. The decision rendered by the Hon’ble,,,,

Supreme Court in the case of Shiv Kumar Pathak (supra) relied upon by the learned advocate appearing for the petitioners would not render any,,,,

assistance to him as in the said case it was held by the Hon’ble Supreme Court that the State Government was under obligation to act as per the,,,,

notification issued by the NCTE and not to give any effect to any contrary rules. In the present case, the standards prescribed by Appendix II of the",,,,

Notification dated 11.02.2011 issued by the State Government are not contrary to the standards prescribed by the Regulations 2014 issued by the,,,,

NCTE. The Respondent State has prescribed qualification higher than the minimum prescribed by the NCTEâ€​.,,,,

8 In the overall view of the matter, we are convinced that no case is made out by the writ applicant for interference. In the result, this writ application",,,,

fails and is hereby rejected.,,,,