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Rameshbhai Jinabhai Nakum & vs State Of Gujarat & 2

High Court Of Gujarat|16 April, 2015
1. In all these petitions, since similar question arises in the identical set of facts and law, they are being decided by this common order.
2. NOTICE. Learned Assistant Government Pleader Mr. Bhargav Pandya waives service of Notice for the respondents.
3. Facts for the purpose of deciding these petitions shall be drawn from Special Civil Application No.6685 of 2015.
4. The petitioners are qualified and eligible for Teachers Aptitude Test (TAT) for the year 2011-2012. They passed TAT in the year 2011 Page 1 of 6 C/SCA/6684/2015 ORDER for Higher Secondary and in May 2012 for Secondary Schools. They have sought following prayers:-
(A) To hold and declare that Teachers Aptitude Test cannot be linked with specific recruitment process be it for Government School or granted school and be further pleased to hold and declare that Teachers Aptitude Test is common for recruitment in the Government or granted secondary or higher secondary schools for the purpose of recruitment of teacher/ Shikshan/ Sah/ay/ak and Head Teacher;
(B) To hold and declare that Teachers Aptitude Test conducted in the year 2011 and 2011 are valid for recruitment process to the post of Teacher/ Shikshan Sahayak and Head Teacher in Government as well as granted secondary and higher secondary schools;
(C) To direct the respondents to include the names of the petitioners in the merit list or selection list for the purpose of appointment to the post of Shikshan Sahayak in Secondary as well as Higher Secondary Government School and be further pleased to direct the respondents to consider giving appointments to the petitioners to the post of Shikshan Sahayak in the Recruitment Process initiated vide advertisement at Annexure-G.
(D) To quash and set aside the merit list dated 27.3.2015 including the petitioners prepared by the respondents for the purpose of recruitment to the post of Teacher/ Shikshan Sahayak in Government secondary as well as higher secondary schools pursuant to recruitment process initiated vide advertisement appended at Annexure-G;
(E) Pending the admission, hearing and final disposal of this petition, be pleased to stay the recruitment process for the post of Teacher/ Shikshan Sahayak in Government secondary as well as higher secondary schools pursuant to recruitment process initiated vide advertisement appended at Annexure-G;
(F) to pass any other and further reliefs that may be deemed fit and proper in the interest of justice.
5. The petitioners have emphasized that they are aggrieved by exclusion of their names by virtue of judgment of Division Bench of this Court rendered in Special Civil Application No.17666 of 2014 with Special Civil Application No.18917 of 2014. It is their say that for want of requisite assistant in placing all materials on record, Division Page 2 of 6 C/SCA/6684/2015 ORDER Bench had held to prepare select list of TAT examination, excluding result of TAT of 2011 with further direction to prepare fresh select list within a period of one month. It is their say that 2011 Rules are para-materia to the Rules framed in the year 2012, which have been notified on 18.4.2012. Introduction of Teachers Aptitude Test is not for recruitment but it is for preparing pool of eligible teachers who can participate in every recruitment test after clearing TAT. It is, therefore, urged that the test cleared by the petitioners when otherwise was permitted to be considered for five years based on their performance in TAT, exclusion of test conducted in the year 2011 is working contrary to the interest of the petitioners who were never parties before the Court. It is urged that judgment and order of Division Bench is required to be considered and interpreted in prospective manner in the context of Rules framed in the year 2011 and 2012.
6. Learned counsel Mr. Yagnik appearing with learned advocate Mr. Riddesh Trivedi for the petitioners submitted that the respondent- State ought to have brought to the notice of the Court that the Rules made in the year 2011 and 2012 virtually had contained identical provisions. It is urged by learned counsel that if the Court had been assisted properly by placing the Rules of 2011, pursuant to which test had been conducted of TAT, it could not have excluded the result of examination which was conducted prior to framing of 2012 Rules. Learned counsel also distinguished the examinations conducted after the Right of Children to Free and Compulsory Education Act, 2009 came into being and Teachers Aptitude Test introduced by the Government of Gujarat as also the decision of this Court rendered in Special Civil Application No.10199 of 2011 and allied petitions, where this Court did not uphold the decision of the State Government debarring some of the candidates having requisite qualifications of being graduate in different streams for appearing in the TAT with Page 3 of 6 C/SCA/6684/2015 ORDER other and further directions. It is urged by learned counsel that on 11.2.2011, notification has been issued under Section 35 of the Gujarat Secondary Education Act, 1972 and such notification is for selection of teachers and headmasters of registered private secondary and higher secondary schools. The only distinguishing feature is that Rules framed by the State is on exercise of the power of proviso to Article 309 of the Constitution of India, which are again meant for the teachers of the secondary and higher secondary schools. It is further pointed out that in the curriculum meant for TAT, it is also specified that notification dated 11.2.2011 needs to be taken into account as already placed on the website of the Board. Therefore, it is urged that Rules which were meant for selection of teachers and headmasters of registered private secondary and higher secondary schools and the Rules subsequently framed for teachers of Government and higher secondary schools, when are verbatim the same, exclusion of petitioners is discriminatory act. Had these aspects been brought to the notice of the Court, according to learned counsel, the result could have been different. It is urged that TAT was organized twice in the year 2011/2012 and in the year 2014 and in between, because of administrative reasons, they could not conduct the same. According to learned Assistant Government Pleader, when TAT was conducted, it was based on the result of 2011 result.
7. Learned counsel Mr. N.V. Gandhi appearing for the petitioner in Special Civil Application No.6588 of 2015 urged that petitioner of this petitions had participated in TAT in the year 2012, of-course prior to the Rules having been notified on 18.4.2012. He, therefore, urged that such decision has aggrieved the petitioner also in major way.
8. Upon hearing both the sides and considering the prayers sought in these petitions, the petitions are not required to be entertained for the reasons to follow:
C/SCA/6684/2015 ORDER 8.1. It can be noticed from the tenor of the pleadings so also the submissions of learned counsel that had there been proper placement of the record, particularly 2011 Rules when Division Bench of this Court considered the Rules notified on 18.4.2012, result according to the petitioners would have been different. Rules of 11.2.2011 which are meant for teachers and headmasters of registered private secondary and higher secondary schools are para-materia similar to the Rules notified on 18.4.2012.
8.2. What could be noticed from the decision of Division Bench is that the challenge was made by the petitioners to the constitutional validity of the Rules of 2012. The Court after having noted the entire Rules, particularly of 11.2.2011, took notice of the fact that those candidates were allowed to appear in the examination thrice within five years and held that such period would commence from the date on which the Rules were notified, i.e. 18.4.2012. As the Rules permitted treating of average marks obtained by persons in all three attempts during three examinations that a person may take within a period of five years, Division Bench held and observed that the applicability of the Rules since is prospective, examination conducted prior to Rules having come into effect would not be saved and therefore, allowing those writ petitions held that select list of TAT examination deserved to be quashed and select list was directed to be prepared excluding the result of TAT of 2011.
8.3. It is pointed out to this Court that while recruiting the teachers for higher secondary and grant in aid schools and Government schools in the year 2013-14, result of TAT of 2011 and May 2012 have been taken into consideration and this aspect was never brought to the notice of the Court when it delivered judgment on 2.3.2015. This stand of the Government is also strongly objected to Page 5 of 6 C/SCA/6684/2015 ORDER by the petitioners who have fervently urged that one of the prayers is to hold and declare the TAT conducted in the year 2011 and 2012 to be valid for recruitment process to the post of teachers and headmasters in the Government as well as grant in aid secondary and higher secondary schools. Other prayers since are of similar nature, considering the decision of Division Bench of this Court, it would not be feasible for this Court to entertain these petitions and consider request of granting such reliefs.
8.4. It is also to be noted that this Court in Special Civil Application No.4855 of 2015, has followed the said decision of the Division Bench at an interim stage. Such petition has also been placed for final hearing today.
9. Petitioners if are desirous to approach the Division Bench seeking to review its judgment, if permitted by the law, may approach the concerned Court and make a request for review of its decision rendered in Special Civil Application No.17666 of 2014 and Special Civil Application No.18917 of 2014.
10. With the above observations, the petitions are disposed of.
Sd/-
(MS SONIA GOKANI, J.) Omkar Page 6 of 6
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