In the present petition filed under Article 226 of the Constitution, the petitioner challenged the action on part of respondent No.1 District Education Officer granting `No Objection Certificate’ (NOC) to the school run by respondent no.2 for filling up one post of Vocational Teacher as an unreserved category post. The petitioner, who is a member of scheduled caste, contended that the NOC was granted in breach of roster point, as according to the petitioner, the said permission was granted at roster point no.2, whereas the correct roster point was to be Sr. no. 17. Upon no objection granted by the DEO, respondent no.2 issued advertisement in the newspaper dated 29.07.2000 for recruitment of Vocational Teacher as unreserved seat. 1.1 The petitioner prayed for following relief, “(A) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction quashing and setting aside No Objection Certificate dated 7.7.2000 (At Annexure
A) granting permission to fill in vacancy of a Vocational Teacher as an unreserved post.
B) Issue a writ of mandumus (sic) or writ in the nature of mandumas (sic) or any other appropriate writ order or direction quashing and setting aside roster prepared in this behalf (annexure B).
(B) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction directing the Respondent to revise No Objection Certificate granting permission to fill in the vacancy of a Vocational Teacher reserved for Scheduled Caste candidates.
(C) By way of interim relief restrain the Respondent from finalising selection of candidates for the post of Vocational Teacher in connection with their advertisement appeared in Gujarat Samachar dated 29.7.2000”
2. According to the case of the petitioner, he was eligible for the post in question, having possessed the educational qualifications of passing HSC examination in vocational stream with distinction, passing B.Sc. with First Class, passing Bachelor of Library Science, and having two years experience as a child development teacher in vocational stream in Higher Secondary School. His case was that point of roster was not correctly applied, consequently, the seat in different category was advertised and he being a scheduled caste person, could not get selected. His case was that the total staff in respondent no.2 school was 13 wherein none belonged to scheduled caste. It is petitioner’s case that roster was required to be counted after Sr. no. 13. Respondent no.1 had granted NOC for four posts and the correct roster point was to be Sr. no. 17 and not one as counted by the District Education Officer. It was also contended that reservation policy was wrongly followed by the respondent in asmuch as the District Education Officer had wrongly counted and correct roster point was Sr. no.17. It was accordingly submitted that advertising the seat in the non-reserved category was arbitrary and violative of Articles 14 and 16 of the Constitution.
3. Heard learned advocate Ms. Khushboo Malkan for learned advocate Mr.
Purvish J. Malkan for the petitioner and learned Assistant Government Pleader Ms.
V.S. Pathak for respondents – the State and its authorities.
3.1 Respondent no.1 - District Education Officer filed affidavit-in-reply, and contended that on the basis of various Government Resolutions, dated 05.07.1989, 30.09.1994, 17.05.1997 and 08.03.1999, the reserved quota seats were fixed for Scheduled Caste, etc. and Roster Register was prepared for Anand District from Sr. No.
1 to Sr. No. 100. It was further stated that in the respondent-Institute, in vocational stream, there are five classes in Std. 11th and four classes in Std. 12th. Total there are ten classes. In Higher Secondary Division, the total sanctioned strength of teaching staff in the respondent-Institute was 19. It was further mentioned that as per the situation prevailing as on 31.05.1990 in the respondent-Institute only one post was vacant as backlog for scheduled castes, which was filled up by respondent-Institute after 31.05.1990.
3.2 Respondent no.2 and 3 in their affidavit-in-reply contended interalia that the District Education Officer had rightly granted No Objection Certificate on the basis of total strength in the school set up which was 19 in number. It was emphasised that roster points were duly observed, and it was submitted, “To substantiate this, it is required to be clarified that the total sanctioned strength in the set up of the said Higher Secondary School is, in all, 19 in number. In view of this, as and when any vacancy is to be filled in in the set up of the said Higher Secondary School, the roster in question is required to be followed seriatim upto No.19 and, thereafter, if any post is to be filled in, on account of vacancy qua the same for any reason whatsoever, the concerned roster is required to be followed afresh by referring to point No.1 therein. It is submitted that in the set up of the said Higher Secondary School, based upon the vacancies, which came to be filled in from time to time, the total sanctioned strength of 19 was reached and as a result thereof, when the said post of Vocational Teacher along with other three posts, were required to be filled in, the roster in question was required to be applied afresh by starting from point No.1 from the said roster. Accordingly, while issuing the said no objection certificate, the office of the respondent no.1 followed the said roster by starting from point 1, and accordingly, the said post of Vocational Teacher came to be reserved for unreserved category.”
3.3 It was further contended, “... even if it is assumed, on hypothesis, that there is some substance in what the petitioner is intending to contend by pressing into service a submission to the effect that roster is required to be followed with effect from point No.14 while following the said post of Vocational Teacher, along with other three posts, which is intended to be filled in simultaneously, even in that case, the petitioner would not be having even a semblance of case to her credit to question the said no objection certificate and the process of selection which came to be followed pursuant thereto. Appropos this, in the first place, it is required to be highlighted that as per the say of the petitioner, the roster point No.17 should have been given to the said post of Vocational Teacher while issuing the said no objection certificate by the Respondent No.1. However, if the said roster point No.17 is perused in its true perspective, it becomes evidently crystal-clear, beyond the province of any doubt that the same is referable to candidates belonging to scheduled tribe. In view of this, if the said roster point No.17 is to be made applicable to the said post of Vocational Teacher, as it is sought to be suggested by the petitioner, the said post of Vocational Teacher would go to the candidates belong to the scheduled tribe and not the scheduled caste, to which the petitioner claims to belong.”
4. Thus, it was the case of the respondents that the total seats were 19 and not 13 as sought to be suggested by the petitioner and the roster was arranged on that basis. The entire premise of the petition was therefore, misconceived, because the petitioner submitted about non-compliance of the roster on the basis that the incorrect total strength, which was actually 19. The contentions raised by the petitioner thus stand falsified. No rejoinder affidavit is filed to refute or controvert the affidavit-in-reply of respondent No.1 or respondents Nos. 2 and 3. In this light, all the contentions raised by the petitioner in respect of roster points and against the recruitment process undertaken for appointment on the post of Vocational Teacher are without substance and devoid of merits.
5. Further,, the petitioner participated in the selection process and in the interview which were conducted pursuant to the advertisement dated 29.07.2000. In the advertisement, it was specifically mentioned that post of Vocational Teacher was to be filled in in unreserved category. The petitioner applied for the post with full knowledge and with open eyes. He was not selected. It appeared that after the interview, when she found that there was unlikely to be favorable nod for her selection in view of superior performance by others, she chose to challenge the process. This conduct by itself would disentitle the petitioner to seek any relief. In University of Cochin v. N. S. Kanjoonjamma and others, [AIR 1997 SC 2083], similar principle was reiterated. The Syndicate of the University had adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Castes and Scheduled Tribes to the posts reserved for them. The first respondent had applied for and sought selection but remained unsuccessful. It was observed by the apex court that having participated in the selection, she is estopped from challenging the correctness of the procedure. In Dhananjay Malik and Ors. v. State of Uttaranchal and Ors [AIR 2008 SC 1913], it was held that unsuccessful candidates having participated in the selection process without any objection or protest, could not be allowed to turn around and challenge the selection as illegal or null and void. The petitioner on the same principle could not be allowed to ‘approbate and reprobate at the same time’.
6. Not only above, as already discussed, there was no error on part of the respondents in following the roster positions. The advertisement for the post of Vocational Teacher was duty issued for unreserved category. From any standpoint, the case of the petitioner was not acceptable, No ground whatsoever is made out to exercise powers under Article 226 of the Constitution.
7. For the foregoing reasons and discussion, the petition being devoid of merits, it deserves to be dismissed. Accordingly, it is dismissed. Rule is discharged. Interim relief, if any, stands vacated. There shall be no order as to costs.
sndevu (N.V.ANJARIA, J.)