IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 10288 of 2000
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA
====================================== 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 ?
Whether this case involves a substantial question of 4 law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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VIRENDRA KARSANBHAI SOLANKI
Versus
STATE OF GUJARAT AND OTHERS
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Appearance :
MR GM JOSHI for Petitioner.
MR RAKESH PATEL, AGP for Respondent Nos.1 2. MS SEJAL K MANDAVIA for Respondent No.3.
MR HM PRACHCHHAK for Respondent No.4.
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CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
Date : 13/06/2012 CAV JUDGMENT
1. The petitioner is B.Sc.B.Ed. and belonging to Socially and Educationally Backward Class in relation to the State of Gujarat and had applied for the post of Assistant Teacher pursuant to advertisement dated 30th April 2000 issued by respondent No.3School. His grievance is that he was not called for interview held on 30th June 2000 and respondent No.4 was appointed, though he was eligible and entitled on merits to be called for the interview. Therefore, he has prayed to quash appointment of respondent No.4 and to issue direction to the respondents concerned to hold a fresh interview.
2. Initially, the petition was disposed of on 27th September 2000 with a direction to the petitioner to make a representation to respondent No.3 and with the direction to respondent No.3 to give out reasons on the representation; and if the petitioner were not satisfied with the reasons, liberty was granted to revive the petition. After such initial order, the Principal of respondent No.3School has stated on oath that as the petitioner had not annexed original marksheets with his application for appointment, he was not called for interview. After the aforesaid order and subsequent order of this Court, the petitioner was informed to remain personally present on 10th July 2001 for personal hearing. Thereafter, on 10th July 2001 a Rojkam was recorded in presence of the petitioner and respondent No.4, wherein it was stated that the petitioner had not attached copies of the marksheet along with the application and, therefore, interview call was not sent to him. In the meantime, respondent No.4 was appointed and upon his appointment being sanctioned by the District Education Officer (respondent No.2), he had taken over charge on 12th July 2000. A copy of the Rojkam dated 10th July 2001 is annexed with affidavit of the Principal of respondent No.3 School.
3. By filing another affidavit of another Principal of the School, it is later stated that the Gujarat Secondary Education Board has by resolution dated 22nd March 1993 issued specific instructions and the petitioner not having attached his marksheet along with his application, his merit could not be decided due to which he was not called for the interview. It is stated that the process of selection was carried out as per the aforesaid resolution and no irregularity or illegality was committed.
4. After the aforesaid affidavitsinreply, the petitioner has submitted his affidavitinrejoinder dated 01st May 2010, to state that respondents had tried to mislead the Court by not producing complete resolution of the Government; and he relied upon the later Circular dated 15th October 1994. It is submitted on oath that Clause 19 of that Circular specifically provided that candidature of an applicant could not be rejected on the ground that the applicant had not produced certified copies of the testimonials, if the applicant had mentioned the qualifications with percentage. It was on that basis submitted that the appointment of respondent No.4 was patently illegal and the petitioner had suffered huge continuing monetary loss and serious injustice due to loss of status and prospects of promotion. Thus, the petitioner ultimately relied only on Clause 19 of the later Circular dated 15th October 1994 of the Gujarat Secondary Education Board, according to which, an application could not be rejected only on the ground that certified true copies of marksheets were not annexed with the application, if the applicant had mentioned his educational qualifications with percentage of marks obtained.
5. On perusal of the Circular dated 15th October 1994, it was noticed that it was issued to all the District Education Officers to prescribe a uniform selection procedure for recruitment of teaching and non teaching staff in the registered private secondary schools. The specific instructions are contained in two parts in the Circular. The first part relates to constitution of Staff Selection Committees, which is followed by specific instructions prescribing the procedure for selection of staff in the registered private secondary schools. It is clearly stated in Clause 3 (1) of the instructions that all the earlier instructions in respect of selection of staff in registered private secondary schools stood repealed by the Circular; and subclause (12) prescribed that the original testimonials of the application were to be verified at the time of interview and certified copies thereof were to be kept on record. It is further instructed in Clause 3(19) that the applicant who had mentioned in the application his educational qualifications with percentage of marks, has to be compulsorily issued a call for interview, and such application could not be rejected on the ground that the applicant had not annexed with the application certified copies of the marksheets. The obligation to abide by these instructions is not denied by the respondents and it is clear that the District Education Officer, the respondent No.2 herein, is an active participant in the process of selection.
6. Having regard to the above instructions and the facts that the petitioner was indisputably a qualified candidate belonging to Socially and Educationally Backward Class for which the sole vacancy was advertised; as also the fact that the application dated 05th May 2000 of the petitioner did mention not only percentage of marks obtained in each qualifying examination, but listed in the annexures to the application the certified copies of all the marksheets, it is quite clear that the respondent Nos.2 and 3 had violated the instructions of the Gujarat Secondary Education Board in not calling the petitioner for interview and appointing respondent No.4 as an Assistant Teacher in the year 2000. In these facts, the allegations of favouritism amounting to pick and choose policy stand substantiated and violation of Articles 14 and 16 of the Constitution of India is proved. Therefore, the issue of moulding relief, at this stage, has to be addressed.
7. Learned counsel, Mr.G.M. Joshi, appearing for the petitioner relied upon Nilabati Behera v. State of Orissa [(1993) 2 SCC 746], to submit that award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution would be justified when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of fundamental rights is claimed by resorting to the remedy in public law under the Constitution by recourse to Articles 32 and 226. The Apex Court relied upon observations in Rudul Shah v. State of Bihar and another [(1983) 4 SCC 141]. In Rudul Shah (supra), a ThreeJudge Bench of the Supreme Court has observed that, where the Court has already found that prolonged detention of the petitioner was wholly unjustified and illegal, there could be no issue that if the petitioner filed a suit to recover damages, a decree of damage would have to be passed, though it may not be possible to predict the precise amount which would be decreed. In such circumstances, refusal by the Supreme Court to pass an order of compensation in favour of the petitioner would be doing mere lip service to the fundamental right. Therefore, the only effective method open to the judiciary to prevent violation of that right and secure due compliance with the mandate of Article 21 was to mulct its violators in the payment of mandatory compensation. The right to compensation is, thus, some palliative for the unlawful acts of the instrumentality of the State. Therefore, the State must repair the damage done by its officers to the fundamental right.
7.1 In Chapter 14 of “Judicial Remedies in Public Law” by Clive Lewis [4th Edition Sweet and Maxwell, 2011], it is stated as under :
“14110 – Public authorities may act in violation of directly effective rights derived from EU law or may fail to implement the provisions of a directive. A Member State may be required to compensate an individual who suffers loss as a result of a sufficiently serious breach by the Member State of a rule or provision of EU law which is intended to confer rights on the individual.
This topic is considered in detail in Chapter 15. In procedural terms, the English courts are required to ensure that the rights derived from EU law are treated no less favourably than similar rights derived from domestic law. This topic is also considered in Chapter 15.”
7.2 In Maharaj v. Attorney General of Trinidad and Tobago [(1978) 2 All ER 670], the Privy Council, while interpreting Section 6 of the Constitution of Trinidad and Tobago, held that though not expressly provided therein, it permitted an order for monetary compensation, by way of redress for contravention of the basic human rights and fundamental freedoms. Lord Diplock, speaking for the majority went on to observe:
"Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone."
7.3 In Simpson v. Attorney General [(1994) NZLR 667], the Court of Appeal in New Zealand, dealt with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for which no specific remedy was provided, Hardie Boys, J. observed, after referring to Nilabati Behra (supra), thus:
"The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system, which aims to protect their interests and preserve their rights".
7.4 Learned counsel Mr.G.M. Joshi also relied upon Beg Raj Singh v. State of U.P. and others [(2003) 1 SCC 726], to submit that the ordinary rule of litigation is that the rights of the parties get crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done against him.
7.5 Learned counsel Mr.Joshi also relied upon A. Jithendranath v. Jubilee Corporation House Building Society and another, to point out that the Apex Court has, in the facts of that case, directed initiation of an inquiry against the persons concerned, who were responsible for making a wrong representation before the Court for taking suitable action against them in accordance with law. The Supreme Court also directed the first respondent therein to pay a further sum of Rs.1 lac to the appellant by way of compensation with liberty to recover the amount of interest and compensation from such persons who may be found responsible therefor.
8. In the facts of the present case, the petitioner has claimed, and it is not disputed, that in his alternative employment as a Primary Teacher at village Haripar, he was paid salary of Rs.2500/ for five years, and thereafter he was given an appointment as a Primary Teacher in the pay scale of Rs.40006000, due to which he was drawing salary of Rs.14,752/ as on 01st May 2010. On the other hand, respondent No.4, appointed as a Secondary School Teacher, was drawing salary in the vicinity of Rs.22,000/ with the prospect of being promoted as a Principal. Thus, a case of monthly loss of Rs.7,000/ for nearly five years is sought to be made out. As against that, only a bald statement is made in the affidavitsinreply and the Rojkam dated 10th July 2001 that the petitioner was already employed elsewhere. The Rojkam is signed by the Head Master of respondent No.3School and respondent No.4 with the observation therein that respondent No.4 had to be continued in service and the petitioner could be accommodated, if he wants, when vacancy in future arises. Thus, a clear case of misrepresentation about requirement of the marksheets and following the guidelines in respect of procedure for recruitment by respondent Nos.2 and 3, is made out and respondent No.4 turns out to be a participant in, and beneficiary of, the irregularities committed by respondent Nos.2 and 3. Therefore, the petitioner is required to be compensated at least by a token amount of compensation, without prejudice to his right to claim damages upon proof of actual loss caused to him. In view of uncertainty about the events that could have happened, had the petitioner been called for interview and also selected and in absence of any material to definitely conclude that only the petitioner could have been selected for the post and the petitioner as well as the respondent No.4 having already been employed on the respective posts since more than a decade, the following order is made at this stage to serve the ends of justice.
9. The petition is partly allowed. The action of the respondents in not calling the petitioner for interview is held and declared to be illegal and deprecated; and respondent Nos.2, 3 and 4 are each directed to pay to the petitioner by way of compensation and costs the sum of Rs.10,000/ (Total Rupees Thirty Thousand) within a period of one month from the date of this order. The respondent Nos.2 and 3 shall be at liberty to recover from the persons concerned, who may be found to be responsible for committing or approving the commission of aforesaid illegality, the amount paid by way of compensation and costs to the petitioner as directed hereinabove.
*malek
(D.H.Waghela, J.)