1. By way of this petition under Article 226 of the Constitution of India, the petitioner-Trust has prayed for the following reliefs:-
"A. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 20.02.2010 and further be pleased to direct the District Education Officer to approve the selection of the candidates whosoever comes in merit and who want to join the petitioner institution;
B. Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned order dated 20.02.2010 and further be pleased to direct the District Education Officer to rehear all the parties and place the report before this Hon'ble Court;
(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordships in the facts and circumstances of the case."
2. The facts emerging out of the record of this petition are that the petitioner is a registered Trust and runs a Secondary School at village Rellavala, Taluka Meghraj, District Sabarkantha. It is the case of the petitioner that village Rellavala is a remote area and the petitioner-Trust runs two classes each of Standard 8th, 9th and 10th.
It is further the case of the petitioner-Trust that as per the provisions and regulations, the petitioner-Trust is entitled to get 9 teachers as against which, only 7 teachers are working at present and two posts are vacant.
3. It is the case of the petitioner-Trust that on 30.12.2002, competent authority i.e. the District Education Officer, Sabarkantha, granted No Objection Certificate for appointment of a teacher having qualifications of B.A., B.Ed. (Sanskrit and Hindi). Inspite of several attempts having been made by the petitioner-Trust, the petitioner-Trust could not find a suitable candidate for teacher of Hindi and Sanskrit. It transpires from the record that again on 24.07.2008, a further No Objection Certificate was granted by the competent authority for filling up three posts of different subjects. The petitioner-Trust thereafter, gave a public advertisement for recruiting teachers on those three posts for which, No Objection Certificate was granted on 27.08.2008. It further transpires from the record that pursuant to the said public advertisement, about 45 applications were received and, in addition to those applications, even 10 applications were received from the concerned Employment Exchange.
4. It is the case of the petitioner-Trust that on scrutiny, it was found that 16 candidates were not eligible and, therefore, a list was prepared of eligible candidates and interviews were accordingly held on 24.02.2009. On the said date of interview, 14 candidates appeared in the interview wherein, respondent No.2 herein was found to be having the highest merits and respondent Nos.3 and 4 were at merit list Nos.4 and 5. The record reveals that during the said interview, respondent No.2 submitted an application expressing his unwillingness to join the services, if he is selected. Considering the said application, the Interview Committee of the petitioner-Trust prepared a list of selected candidates wherein, respondent Nos.3 and 4 along with one Chaudhary Gangaram M. were placed at merit list Nos.1,2 and 3 respectively and the said proposal was sent to the competent authority for its approval. It further transpires that after the interviews were held, respondent No.3 herein gave an application expressing his unwillingness to join the services and requested the petitioner-Trust as well as the respondent to return back the original certificates. Thereafter, on 16.03.2009, respondent No.2 herein filed objection to the interview proceedings and also issued legal notice through his advocate. It is pertinent to note at this stage that respondent No.2 raised several objections and his main grievance before the authority was that he was forced to sign the communication whereby, he was made to express his unwillingness to join the services even though, he was selected at merit list No.1. It reveals from the record that vide communication dated 12/15.06.2009, the District Education Officer, Sabarkantha fixed hearing on 23.06.2009 asking respondent No.2 to appear before him to redress his grievance. However, it appears from the record that respondent No.2 preferred not to attend the said hearing and thereafter, order impugned dated 20.02.2010 came to be passed.
5. This Court, vide order dated 10.10.2011, passed the following order:-
"1. Heard learned Advocate Ms. Mamta R. Vyas for the petitioner and learned Assistant Government Pleader Ms. Jirga Jhaveri for the respondent - State.
2. Perused the affidavit filed on behalf of respondent No.1 in which it is stated that one Rajput Jaguji Bhagwanji had highest merit in the selection who also happens to be respondent No.2 in this proceeding and inspite of service of notice, has not remained present.
3. Further, on an earlier occasion on hearing before the Office of the District Education Officer and as per the order dated 20.02.2010, Rajput Jaguji Bhavanji at Serial No.1 in the merit had not remained present. However, to give respondent No.2 one more chance, respondent No.1 - District Education Officer, Himmatnagar is directed to ascertain whether respondent No.2 - Rajput Jaguji Bhagwanji is ready and willing to be appointed on the basis of his rank in the merit of selection.
If necessary and incase if the respondent No.2 - Rajput Jaguji Bhagwanji apprehends any danger to his life, he may be provided proper police protection so that he can remain personally present before this Office of the District Education Officer.
4. Copy of this order be given to the learned Assistant Government Pleader for necessary compliance.
5. Matter to be listed on 19th October, 2011."
6. Learned advocate Ms.Vyas appearing for the petitioner-Trust submits that even after the aforesaid order, respondent No.2 has not appeared before the District Education Officer and because of such a situation, the petitioner-Trust has not been able to fill up the vacant posts of teachers. Ms.Vyas further submitted that as village Rellavala is a remote area, it is difficult for the petitioner-Trust to find a suitable candidate. She submitted that the District Education Officer has wrongly denied the benefit of grant inasmuch as respondent No.3 herein was the next eligible candidate on merits as per the interview held on 24.02.2009. Ms.Vyas further submitted that in view of the fact that now respondent No.2 is not interested, which is clear from his own conduct by not appearing before the District Education Officer for hearing, the petitioner-Trust should be permitted to fill up the posts as per the selection already undertaken.
7. Mr.Alkesh Shah, learned A.G.P., on instructions, submitted that inspite of giving several opportunities, respondent No.2 has preferred not to attend the hearing.
8. Having heard learned counsel for both the parties and on perusal of impugned order dated 20.02.2010, it appears that the District Education Officer was right in coming to the conclusion that the merit list was not properly prepared and considering the fact, as it exists on record, the District Education Officer has rightly taken action and has made endeavour to inquire into the allegations made by respondent No.2. However, considering the fact that respondent No.2 is not responding to the notice for hearing given by District Education Officer, at the same time, the petitioner-Trust also cannot be precluded from selecting the right candidate, as ultimately, it would be detrimental to the interest of the students of the school run by the petitioner-Trust.
9. In the above circumstances, it would be open for the petitioner-Trust to approach the District Education Officer again by further application/representation and the same may be considered in accordance with law within a stipulated time so that by the next academic year, the petitioner-Trust may be able to either appoint somebody or adopt further procedure for selection.
10. In view of the above, the petitioner-Trust may file such application/representation on or before 01.02.2012 and the same may be decided on or before 15.04.2012 in accordance with law. It is however, made clear that if such a representation is made, the same may be decided on its own merits without being influenced by the fact that the present petition is not entertained by this Court.
11. In view of the above, the petition is not accepted and the same is disposed of as directed above. Notice is discharged. Direct service is permitted.
(R.M.CHHAYA, J.) Hitesh Top