1. Heard Mr. A.J. Yagnik, learned advocate for the applicants and Mr. Prakash Jani, learned Government Pleader with Mr. Rohan Yagnik, learned AG.
2. Learned advocate for the applicants has contended that present application is taken out by the concerned petitioners, who claim to have teaching experience in primary school prior to their acquiring B.Ed. Qualification and on the basis of such teaching experience and qualification, the applicants-petitioners claim that they are eligible for being considered for the post of Head Teacher.
2.1 The applicants have, for the purpose of present application, the applicants have stated that:-
"Because petitions raising the issue whether experience of teaching before acquiring degree of B.Ed. Can be counted or not in the context of eligibility criteria provided in Rule 4(d) of HTAT Rules has not been decided at all while disposing of all the petitions on merit by a collective and a common judgment and order dated 08.05.2012.
Several petitions came to be filed raising the issue in question. The issue was raised during the arguments and argued and debated at length independently. However, the common judgment and order does not deal with the issue at all while dealing with other issues. Hence the present Review Petition."
3. Mr.
Yagnik, learned advocate for the applicants also claims that now/subsequently, certain other petitions raising similar grievance-issue have been preferred by certain other teachers and the petitions have been admitted by the Court (Coram: Hon'ble Mr.Justice K.S. Jhaveri).
4. He, in particular, relied upon the decision in Special Civil Application No.7303 of 2012.
5. He has submitted that in the said petition being Special Civil Application No.7303 of 2012, the grievance raised by the concerned petitioners is similar to the issue raised by the applicants-petitioners in present application, i.e. as was raised in Special Civil Application No.3960 of 2012.
6. The applicants have claimed that in the petition being Special Civil Application No.3960 of 2012 which was taken out by present four applicants and which came to be disposed of by common judgment and order dated 8.5.2012, the applicants' petition had raised similar grievance as is raised in Special Civil Application No.7303 of 2012. In this background, the said four applicants-petitioners have, in present application, claimed below mentioned relief/s:
"(A) To review the common judgment and order dated 08.05.2012 passed in Special Civil Application No.3960 of 2012 and be further pleased to recall the judgment and order to the extent it disposed of or dismissed the Special Civil Application without deciding the issue raised therein at all and rehear the matter to the extent it is required;
(B) During the pendency and/or final disposal of the present application, be pleased to stay the common judgment and order dated 08.05.2012 passed in Special Civil Application No.3960 of 2012 to the extent it disposed of or dismissed the Special Civil Application without deciding the issue raised therein at all and rehear the matter to the extent it is required;"
7. The applicants, inter-alia, claimed in present application that:
"5.12 The judgment and order in question was pronounced on 08.05.2012. However, by bonafide inadvertence the Hon'ble Court, while disposing of the petition on merit has not dealt with the issue raised in the petition. Therefore, without deciding the subject matter of the petition, by common judgment and order the Hon'ble Court was pleased to disposed of the SCAs on the issue of counting experience of teaching prior to acquiring Degree of B.Ed."
8. After the application was presented, learned advocate for the applicant was heard, under order dated 16.6.2012, office was directed to issue Notice making it returnable on 26.2.2012.
9. Since then, any reply-affidavit opposing the application, particularly maintainability of the application and/or dealing with and controverting the submissions and allegations made in the application, is not filed. On the other hand, learned advocate for the applicants has submitted that another petition involving similar issues is already admitted by the Court (Coram: Hon'ble Mr.Justice K.S. Jhaveri).
10. Learned advocate has, as aforesaid, relied on the order dated 27.6.2012 in Special Civil Application No.7303 of 2012.
11. Having regard to the aforesaid aspects, the application requires consideration. Hence, Rule returnable on 22.10.2012.
12. So far as request for interim relief is concerned, learned advocate for the applicants-petitioners has relied on paragraph 9 of the said order dated 27.6.2012 in Special Civil Application No.7303 of 2012 read with the order dated 14.6.2012 passed in the same petition i.e. Special Civil Application No.7303 of 2012. The said paragraph 9 in the order dated 27.6.2012 reads thus:
"(9) In view of the order, the State Government is directed to keep four posts vacant as directed by this Court on 14.06.2012.
However, Mr. Pujara contended that the case on hand is required to be considered mandatorily. Having heard learned advocate for the parties and having gone through the records, prima-facie, this Court is of the considered opinion that Policy and Circulars issued by the State Government is for the betterment of the students and for the quality of the education that does not require any interference by this Court at admission stage. It shall not be appropriate to allot untrained teachers to primary students who are at the threshold of their academic career. Hence, this Court is of view that the contention raised by the learned Government Pleader is for the betterment of the students at large or teachers without basic degree/training and therefore, the relief, if at all can be granted at final hearing stage. Such a mandatory relief cannot be granted at this stage."
13. Learned advocate for the applicants-petitioners has submitted that similar interim relief, i.e. requiring the respondents to keep four posts vacant, may be granted.
14. However, learned Government Pleader has submitted that the entire process of selection is now concluded and in any matter filed after the judgment and order dated 8.5.2012 in group of petitions was passed, any mandatory relief, muchless any relief of staying the process of selection, is granted by the Court and that, therefore, the Government is in process of effecting appointments on the basis of the selection which is already concluded and in about 1700 posts, interviews have been concluded and orders have been issued and/or are in process being issued.
15. In the background of such developments, learned Government Pleader has submitted that instead of requiring the respondent-Government to keep posts vacant, the Government may be required/allowed to fill up the posts with liberty to intimate the last four candidates/appointees from the merit list with clarification that their appointment is subject to the order that may be passed in present application. Mr. Yagnik, learned advocate for the applicants-petitioner has, in view of subsequent developments, accepted the said suggestion. Therefore, below mentioned order is passed.
With reference to request for interim relief, it is clarified and directed that it will be open to the respondent State to make appointments in pursuance of the concluded selection process, however, considering the case of four applicants, the State Government shall, in the appointment letters which may be issued to the four appointees who are last in the merit list, expressly mention and clarify their appointment letters that their appointment will be subject to the order that may be passed in present application.
(K.M.
Thaker, J.) Bharat*