Trial Court Can't Assume Interview Committee's Role, Direct Appointment Of Govt School Teacher 11 Yrs After Merit List: Gujarat High Court
Holding that civil court cannot reassess interview marks or direct appointment to a public post, the Gujarat High Court quashed concurrent judgments of the Trial Court and First Appellate Court which had directed appointment of a primary school teacher nearly 11 years after the declaration of merit list.A Single Judge Bench of Justice J.C. Doshi observed: “If we peruse paragraph Nos. 12 to...
Holding that civil court cannot reassess interview marks or direct appointment to a public post, the Gujarat High Court quashed concurrent judgments of the Trial Court and First Appellate Court which had directed appointment of a primary school teacher nearly 11 years after the declaration of merit list.
A Single Judge Bench of Justice J.C. Doshi observed:
“If we peruse paragraph Nos. 12 to 17 of the Trial Court's judgment, it reveals that the learned Trial Court assumed the role and character of the Interview Committee and decided that interview committee committed serious error in not granting two more marks to the plaintiff. It is surprising that, in absence of any specific pleadings challenging the interview process, learned Trial Court undertook such exercise and granted two additional marks to the plaintiff on the ground that she possessed knowledge of special subjects. In fact it seems that learned Civil Court has assumed the character and dramatis personae of the interview committee. Unfortunately, said error which ought to have been rectified by the learned first appellate Court, failed to correct the same by allowing appeal, rather dismissed the Regular Civil Appeal and confirmed the judgment of learned Trial Court".
The Court held that such interference was “beyond jurisdiction vested under section 9 of CPC” and is "completely faulty, palpably erroneous" and an egregiously malicious exercise of power.
It further questioned the trial court as to under which provision of law the Trial Court had "assumed jurisdiction to re-assess the interview process, grant additional marks" to the respondent and direct the District Panchayat to appoint her to the post of Primary Teacher that too after 11 years, terming it a "complete colorable exercise of power and abuse of process of law".
The court further said that ordinarily while exercising jurisdiction in a second appeal, the high court would refrain from interfering with concurrent findings recorded by the Courts below.
It however said:
"in the present case, learned Civil Court had no jurisdiction to assume role of appointing authority or usurp jurisdiction of interview committee or appointing authority to add two marks to the score of plaintiff's marks, and then direct the defendant to appoint plaintiff as primary teacher, and since it is found to be in excess of inherent jurisdiction of learned Trial Court, I find that it is fit case where, this Court is required to interfere with impugned judgments".
The dispute arose from a recruitment process initiated in 1991 for the post of Primary Teacher in Amreli District. The respondent-plaintiff, Sabihaben Ayubhbai Vora, possessed the requisite qualifications and was called for interview on 23.12.1991. A final merit list was declared the same day.
The respondent secured 58.98% marks and her name did not appear in the select list. Alleging that a less meritorious candidate had been appointed, she instituted a Regular Civil Suit seeking declaration that she was qualified and a mandatory direction to appoint her as Primary Teacher.
The appellants-defendants contested the suit on several grounds, including lack of Civil Court jurisdiction, limitation, and the fact that the plaintiff had secured fewer marks than the last selected candidate. They further argued that the statutory notice required under Section 270 of the Gujarat Panchayat Act was not served. Section 270 deals with the procedure for appointment of officers and servants to panchayat services and requires a 1 month notice in writing when any action is brought against an associated member.
By judgment dated 12.04.2001, the Trial Court decreed that the Interview Committee had erred in awarding marks and that the respondent was entitled to 60.98% marks. It directed the appellants to appoint her as a Primary Teacher. The First Appellate Court confirmed the decree in appeal.
Aggrieved, the appellants moved the high court in a Second Appeal seeking determination of substantial questions of law concerning the Civil Court's jurisdiction to direct appointment and reassess interview marks, among others.
Deciding in favour of the appellants, the High Court observed that “a candidate whose name does not appear in the merit list cannot claim appointment as a matter of right” and reiterated that the “right to appointment is not an indefeasible right.”
Relying on Shankarsan Dash v. Union of India and State of Punjab v. Raghbir Chand Sharma, the Court emphasised that mere inclusion in a panel does not confer a vested right to appointment and that a select panel “ceased to exist and has outlived its utility” once the notified vacancies are filled.
The Court further noted that the final merit list was declared on 23.12.1991, whereas the Trial Court disturbed the recruitment process in 2001, which was “nearly eleven years thereafter.” It described this as a “sheer and palpable error.”
It further said, "The plaintiff remained silent for three years after declaration of merit list and expiry of waiting list, if any. The plaintiff who has secured less marks than last selected and appointed candidate in merit list, cannot come out with case after three years that selection procedure is faulty. Civil Court cannot assume jurisdiction either of interview committee or appointing authority to direct the defendant to add two more marks to plaintiff's score so as to place her in list of selected candidates. It is beyond jurisdiction of learned Civil Court".
On limitation, the Court held that the cause of action arose on the date of declaration of the final merit list and that the suit, filed in December 1994, was beyond the prescribed period of three years.
The Bench also held that the selected candidate, who would be prejudicially affected by the decree, was a necessary and proper party. Without impleading and hearing him, no effective order could have been passed.
The High Court held that the Civil Court's decree amounted to a “complete illegality” and an exercise in excess of inherent jurisdiction.
Accordingly, the Court allowed the appeal and quashed the judgments of the Trial Court and the First Appellate Court.
Case Title: District Primary Education Officer & Anr. v. Sabihaben Ayubhbai Vora
Case No.: R/Second Appeal No. 117 of 2003
Appearance: Mr. H.S. Munshaw for the Appellants; Mr. D.G. Shukla, Mr. Krishna R. Bhatt and Mr. Harsheel D. Shukla for the Respondent.